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News analysis
The constitutional court has reserved judgment on two applications by lawyers from neighbouring countries who argue that barring foreigners who have the right to live and work in South Africa, but lack permanent residency, from practising law here is unconstitutional.
The applicants represent a small section of foreigners resident in South Africa, but the case also speaks to the precarity that job reservation inflicts on refugees and other migrants.
Advocate Steven Budlender, appearing for Zimbabweans Bruce Chakanyuka, Nyasha Nyamagure and Dennis Chadya, said theirs was a double challenge because the absolute prohibition, in section 24 (2) (b) of the Legal Practice Act, infringed on both the right to equality and the right to human dignity, enshrined in sections 9 and 10 of the Constitution.
He argued that nationality or citizenship was a characteristic that could impair the intrinsic dignity of people and, when used as criteria for certain entitlements, it affected equality. “Non-citizens are a vulnerable group, and in recent years have been rendered more vulnerable. The impact of the barrier is severe.”
Budlender’s three clients have been in South Africa for more than 15 years and obtained law degrees here. Nyamagure has secured a high court order for the home affairs department to grant him permanent residency but is still waiting for this to happen. Chakanyuka completed his pupillage with the Gauteng Society of Advocates in 2020 and now works as a waiter.
The impugned section of the Act was declared unconstitutional by the Free State high court in September, in that it prohibits the admission of locally-trained and qualified foreigners as non-practising attorneys, unless they have permanent residency.
But the high court upheld the prohibition on foreigners being admitted as practising attorneys as fair, because this was done in pursuit of the government’s policy objective of protecting employment opportunities for citizens.
Budlender said there was no compelling reason for this distinction. By failing to advance one, the justice minister, the first respondent in the matter, was limiting two fundamental rights without meeting the standard of justification set out in section 36 of the Constitution.
The ministry submits that the policy rationale for section 24 (2) (b) is to ensure that foreigners who apply to be enrolled as attorneys and advocates do so “after having followed the proper legal channels which permit their employment in South Africa”.
Budlender said this was a legitimate purpose but by logic did not require permanent residence because foreigners who were here legally but lacked this status were still allowed to work.
Mosioa Mazibuko, representing Lesotho citizens Relebohile Rafoneke and Sefoboko Tsuinyane, who brought the initial challenge to the Act in the Free State high court, went further and questioned whether the purpose of the prohibition was what the minister claimed it to be.
The argument was made on behalf of the minister that foreigners who qualified as lawyers in South Africa could use admission to the bar as a way of circumventing immigration law.
But Mazibuko said it did not work that way, hence: “The minister confuses the issue of admission with that of employment.”
By way of factual justification for the limitation, the ministry and the Legal Practice Council (LPC) argued that allowing foreigners to be admitted to practice law could worsen unemployment because it may “open the floodgates” and create competition for those with South African citizenship.
It could also create the risk, they said, that clients may be abandoned by counsel who lack loyalty to the country and the Constitution.
Budlender countered that no evidence was advanced to support these arguments, saying it was not enough “to gesture vaguely at the national economy”. And, he added, the pleadings were, in part, plainly xenophobic.
“My clients have a very narrow and focused attack which says where the government admits people into the country and gives them the right to live and work [here], the government may not then say you are precluded from practising as a lawyer, you can go and work for Anglo-American for an internal legal adviser, you can go and work for the Gauteng government as an internal legal adviser but you cannot have the status of an attorney or advocate unless they have a cogent reason for that,” Budlender argued.
“When we come to the limitation of constitutional rights, even when we come to the principle of rationality, there has to be a proper basis … a proper justification, other than, with great respect, xenophobic tropes, because there are parts of the affidavit, particularly of the LPC, which amount to little more than xenophobic tropes.”
Should the court dismiss the challenge, he added, it risked conferring credibility on such prejudice.
Dysfunctional: Immigrants wanting to have their presence in South Africa made legal and official have had to queue for days outside the department of home affairs’ office in Pretoria and other home affairs centres. Photo: Madelene Cronjé
The minister made an anecdotal submission on the number of candidate attorney positions available a year while the LPC referred to national employment statistics. His counsel, Kgomotoso Moroka SC, argued that there was a shortage of attorney candidate positions, and that transformation in the legal profession would be hampered if the door were thrown open to foreigners to practise.
But the problem with the first argument, as the applicants pointed out, is that the Act does not bar foreigners who obtained law degrees here from training as candidate attorneys.
Budlender said this and several other anomalies were so stark as to render the Act irrational.
“This is purportedly an Act that was designed to protect job reservation, the jobs of South Africans, and yet it is an Act which allows people to take up the limited and valuable vocational training spots, which are essential to enter into the job market … And in doing so they do not get the benefit themselves. That makes no sense at all.”
If the purpose was job reservation, he asked, why were foreigners allowed to work as legal advisers instead of not reserving those positions for South Africans? And why, furthermore, were foreigners who studied at local universities and later admitted as lawyers in other countries allowed to practice in South Africa should they return, but not allowed to be admitted directly here?
The minister’s response that this was for the sake of oversight fell short, he said, because it would be better achieved if the LPC remained in control of their admission.
“When you take those anomalies on the one hand and you weigh up the justifications on the other hand, this is an Act that almost falls to be struck down as irrational … before we even get to unfair discrimination. It is an Act that simply does not hang together.”
The applicants face the hurdle that section 22 of the Constitution guarantees citizens the freedom to choose their trade. Acting Justice Dunstan Mlambo said the language was pointed, with this right conferred on citizens, whereas the Constitution ascribes other rights to everyone.
“Why is it then discriminatory if the authorities choose to formulate legislation in such a way that they decide that certain occupations will be reserved for citizens or primarily for citizens in the case of this legislation also for permanent residents?,” Acting Justice David Unterhalter added.
“We may not think it is the wisest policy, we might have other ways of regulating our policies but why is it discriminatory? A foreigner has no right to choose an occupation in South Africa.”
Both Mazibuko and Budlender argued that section 22 did not trump their challenge.
“The internal limitation in section 22 to citizens does not deny to non-citizens the protection of all the rights that apply to everyone, including sections 9 and 10,” the latter submitted. “It cannot be correct that section 22 strips non-citizens of all their other rights in every context connected with employment.”
Furthermore, lawmakers in drafting section 24, did not fully reserve the legal field for citizens. But once it allowed foreigners to enter the profession, Budlender said, it could not then impose a divide between those who are permanently resident and those who are ordinarily resident.
“If parliament is going to draw the line somewhere other than where section 22 does, then parliament can’t rely on section 22 to immunise its choice against constitutional scrutiny.’’
Mazibuko ventured that the historical genesis of the provision seemed rooted in apartheid, when black South Africans who lived in Venda, Transkei, Ciskei and Bophuthatswana were, by law, stripped of their nationality.
“Due to that state of affairs, black South Africans who lost their citizenship by reason of the said pieces of legislation were ineligible to be admitted as advocates or attorneys (in the then republic) in terms of the Attorneys’ Act and the Admission of Advocates’ Act respectively.”
Case law from the apartheid era showed clearly that the requirement of citizenship or permanent residency was aimed at excluding black legal practitioners from the profession in their own country, Mazibuko said. “Having regard to this historical background, it is clear that the impugned provisions do not have a legitimate purpose.”
The Pan African Bar Association of South Africa, the International Commission of Jurists and the Scalabrini Centre of Cape Town were admitted as amicus curiae in the matter, which was heard four days before the government published the proposed National Migration Labour policy. This policy aims to introduce quotas on the number of foreigners with work visas that can be employed in major economic sectors, including tourism and agriculture, and lists sectors where they cannot be allocated business visas.
Appearing for the Scalabrini Centre, advocate Chris McConnachie submitted that it was an affront that refugees were barred from legal practice because their loyalty to the same Constitution that afforded protection of their status was in doubt, while the supreme court of appeal had confirmed that their right to seek employment is unqualified.
“This exclusion is unfairly discriminatory, it undermines the dignity of this vulnerable group, perpetuates xenophobia, and contributes to their marginalisation in South African society,” he said. “To exclude all asylum seekers and refugees, no matter what their qualifications are, from legal practice sends the very clear message that regardless of their qualifications, they are second-class, their allegiance to the Constitution is in question, they are untrustworthy.”
The exclusion is not mitigated by the fact that refugees may eventually become permanent residents because they can only apply for this 10 years after they were first granted asylum, which in itself took many years in a system mired in backlogs.
Replying to questions from Unterhalter, McConnachie stressed that the 1951 United Nations Refugees Convention conferred the right on refugees to wage-earning employment, self-employment and employment in what it termed “liberal” professions, a category which has been interpreted by scholars as including law.
Advocate Thabang Pooe, for the International Commission of Jurists, argued that the constitutional court had a duty to consider international law and baseline universal standards in respect of equality, which prohibit discrimination on the grounds of nationality, when interpreting the country’s laws. In this instance, she said, the Legal Practice Act fell foul of section 9(3) of the Bill of Rights by discriminating against foreigners on the basis of social origin as an analogous ground to nationality.
The applicants pointed out that most countries in the Southern African Development Community (SADC), including Zimbabwe and Lesotho, only require ordinary residency as a prerequisite for practising law, which also applies in Australia, Canada, New Zealand and the United Kingdom. Ten out of 15 SADC member states do not impose the prohibition that South Africa does.
“The heavens have not fallen as a result,” Budlender commented.
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