Making an appeal: Bruce Chakanyuka, photographed in Soshanguve, is a qualified lawyer, but works as a waiter because he holds Zimbabwean citizenship and has not been granted permanent residence. (James Puttick)
Home is nowhere but here for Bruce Chakanyuka and his Zimbabwean colleagues in law, who have taken their struggle to be allowed to practise as attorneys or advocates in South Africa to the constitutional court.
Chakanyuka, 35, fled to South Africa when he was 21. He obtained an LLB, completed his pupillage in 2020 and hoped to specialise in commercial law. He believed that the Zimbabwean special dispensation permit he had held for more than a decade would eventually translate into permanent residency, for which he first applied in 2015 and without which the Legal Practice Act bars him from admission.
Instead, he works as a waiter to support his two children, who through their mother hold South African nationality.
“That’s the truth of the matter. I got an LLB and I graduated, but without citizenship or permanent residency you cannot gain admission and you cannot practise, so you have to be doing other things like waitering.
“It is very difficult, dreams are shattered,” he says.
Fourteen of his 15 years in the country were spent in Tembisa, before he moved to Soshanguve recently, and Chakanyuka says both among the working class in the township and his peers in the legal field he has mostly been a stranger to the prejudice imposed by the section of the law he is seeking to strike down along with Dennis Chadya and Nyasha James Nyamugure in one of two challenges heard simultaneously by the court last month.
“Professional people see you as a counterpart, as a colleague. I have lived in Tembisa for most of these years, and people there understood the dynamic, they embraced it.
“There are xenophobic people, who will be sceptical of you, but as Africans we would compare our cultures, we would interact, it has not been very bad for me. The Constitution says these people are immigrants but who identify themselves as South African.
“I think I am one of those people because I have adapted very well and most of my adult life I have been in South Africa. I don’t see myself moving back to Zim, no, not at all.”
Nor does Chadya, who fled Zimbabwe in 2003. Both he and his brother followed their father, who was an active member of the Movement for Democratic Change, to South Africa because the family feared political persecution by the Robert Mugabe regime. He obtained an LLB from the University of KwaZulu-Natal, and still works for Hay & Scott attorneys, the same law firm where he subsequently completed his articles.
But he cannot appear in court and though he also qualified as a notary, his local colleagues have to sign off on documents on his behalf. It’s onerous for a law firm and consequently not many in his position are retained by the companies where they completed their training. Chadya also points out the first question anybody applying for a job in the legal field faces is for how long they’ve been an admitted attorney.
Facing a long uphill battle for admission means permanently lagging behind in terms of experience that secures not only employment but earning power in the field.
Chadya began his first attempt at securing permanent residency in 2012. He applied to the minister of home affairs to ask that he consider using a discretion conferred by section 31(2)(b) of the Immigration Act to confer permanent residence status where special circumstances dictate.
The route to permanent residence had previously been used by foreign nationals to obtain permanent residence. A famous example of this was a Thai national named Tangkuampien, who had set out to challenge the prohibition on the admission of non-permanent residents in the Attorneys Act as she argued that it was an infringement on the equality clause. However, the matter was never decided on the merits as the then-minister of home affairs granted her permanent residence in terms of section 31(2)(b). The prohibition was maintained in the 2014 Act.
“I wrote to the minister and said I had a fiancée here and things were going well, I wanted to obtain residency and be admitted,” Chadya said.
What followed was a lengthy wait that eventually saw Chadya approach the high court to compel the minister to respond to his request.
But by then it was 2014 and the home affairs minister was Malusi Gigaba, who decided no longer to use the discretion in favour of those wishing to practice law.
Chadya is now married with a child and remains in South Africa on a spousal visa. His brother, who also holds an LLB degree, remains here, though his parents returned to Zimbabwe when the Covid-19 pandemic began.
“Even they are not sure that it was the right decision.”
Nyamugure was not aware of the prohibition back in 2004 when he began his law studies at Rhodes University, but it was pointed to him by the dean of the faculty, who taught constitutional law, as he neared graduation.
She also gave his class an assignment informed by it, asking them how they would prepare a constitutional challenge
“I have had the idea since then that I have now been made to know that this is the barrier, but that barrier can be overcome because maybe a constitutional challenge can be made, so I have been sitting with the idea of challenging that provision for quite a number of years.”
He obtained a master’s degree in law 2010, passed conveyancing exams and completed his articles in 2017. Is it common knowledge that larger law firms are reluctant to invest time into training foreign law graduates, because it was unlikely they would be able to be admitted, so he applied to a relatively small firm.
“While there was this idea to challenge the constitutionality of that provision, it seemed like the government at that time had provided an avenue for foreign law graduates by simply issuing them with permanent residency.”
Like Chadya, Nyamugure was denied by the minister, but he managed to challenge the decision with some success.
“I got a court order which grants me permanent residency in terms of a particular section in the Immigration Act, section 31(2)(b). It was also the same provision that was utilised to issue the ZEP [Zimbabwean Exemption Permit] from 2010.
“That court order was subsequently challenged by the minister and that is why we are in court right now, because they are not fulfilling that court order [but] I put that on pause because otherwise I would lose my standing as an applicant to challenge the restrictive provisions in the constitutional court.”
None of the applicants feel that section 22 of the Constitution — which enshrines the right of citizens to practise the profession of their choice — poses an insurmountable hurdle to their case, because they see it as having been written to correct the reservation, under apartheid, of certain professions for white South Africans.
“So that provision was inserted to allow anybody who has citizenship in South Africa to pursue whatever career they want, and it is a very good provision in that sense. You don’t give effect to that provision by restricting access to certain professions.”
Their challenge, he says, will not undo the right of citizens to choose or pursue a career.
“If and when the restrictive provisions are removed from the current Act, it will not have a bearing on the right of citizens to choose whatever career they want to pursue … it does not take away their right to choose a career in law.”
Nyamugure’s reading of section 22 is that the bar on admission seems to have its genesis, not in migration policy, but in attempts to undo the effects of apartheid. This was also argued by Relebohile Rafoneke and Sefoboko Tsuinyane from Lesotho in their 2020 case in the Free State high court.
Former deputy chief justice Dikgang Moseneke’s application for admission as a lawyer was opposed by the Law Society, on the basis that the Status of Bophuthatswana Act 89 of 1977 had stripped him of his South African citizenship, a requirement to practise law.
With the help of the Black Lawyers Association, Moseneke went to court and eventually won admission to the profession.
The Legal Practice Council argued in court that “the presence of hundreds of thousands of temporary residents and illegal immigrants compounds the current unemployment dilemma”.
“It is a bit of an opportunistic argument to say that foreign nationals, once admitted as attorneys, have got a bearing on the rate of unemployment in South Africa for law graduates,” Nyagumere counters.
“You know from the statistics of the unemployment rate that only a minuscule proportion is actually unemployment of trained or qualified people who have received a tertiary education, the higher portion of that unemployment rate is largely unskilled people or people who have lesser qualifications.
“For skilled people, there is still an opportunity to gain employment; [foreign lawyers competing in the jobs pool] increases the competition, yes… but competition is required for the best practice.”
Chakanyuka said it was fair that the state has always sought to protect the integrity of the legal profession by requiring that those admitted are fit and proper to practise but the bar on foreigners speaks of unfairness and populism.
Opposition parties have done well on anti-foreign sentiment, and the government after all is also a political party in need of votes, he ventured.
“I think the government is feeling pressure from sections of society, especially those who are anti-immigrant, they feel like immigrants are taking their work, so I think it was reactionary.
“It was a response to pressure on social media, on Twitter, in the outcome of the elections, where voters turned to politicians who whipped up anti-foreign sentiment.”
His situation is now akin to that of intervening applicant Daphne Makombe, who remarks in her court papers: “It is not easy to change one’s status from ZEP holder to that of a permanent resident or citizen of South Africa.”
Makombe argues that the law as it stands is a bar to the transformation the profession requires, because those of foreign extraction can through its practice improve society.
“We are waiting and hoping for the best. My life is rooted here in South Africa, no family at home, both my parents are deceased. I have one brother who is also here with me. My whole immediate family, my husband, is here.”
With the one-year extension to ZEP holders to regularise their status or leave, she is trying to register her daughter to allow her to write matric in South Africa next year.
Nyamugure is cautiously confident of victory in the apex court.
“We don’t want to jeopardise it or to count chickens before they are hatched,” he said.
“We all know the sub judice rule and so forth, but as far as throwing an opinion on the likelihood, on the reasonable prospects — it is a common standard, so I have an opinion that our application has some reasonable prospects of success. I am quite happy to maintain that opinion.”
The applicants were assisted in bringing court proceedings by the Asylum Seeker, Refugee and Migrant Coalition, an organisation comprised of foreign law students and legal professionals.
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