None of the four candidates for a vacancy at the apex court were in favour of merging it with the supreme court of appeal
The constitutional court has upheld a prohibition that bars locally trained foreign lawyers who are legally resident in South Africa, but do not hold citizenship or permanent residency, from being enrolled to practise law here.
In a unanimous judgment written by justice Zukisa Tshiqi, the court dismissed an appeal against a ruling by the Free State high court in September 2021 that found that section 24(2)(b) of the Legal Practice Act (LPA) was neither unconstitutional nor invalid.
The high court found that the prohibition was fair because it was imposed in pursuit of the government’s policy objective of protecting employment opportunities for South African citizens.
However, it declared the law unconstitutional to the narrow extent that it prohibits foreign lawyers who fall into the same category from being admitted as non-practising attorneys, unless they have obtained permanent residency.
The constitutional court elected not to confirm this order of unconstitutionality.
Its judgment held that the law may be protectionist, in that it seeks to reserve opportunities in the field for South Africans, but that this was a legitimate governmental objective and in line with section 22 of the Constitution.
“While this policy may be open to debate, the fact that the legislature has adopted it is not arbitrary or illegitimate. It is restrictive and protectionist, and those are permissible governmental objectives,” Tshiqi wrote.
“An evaluation of whether the impugned provisions, in reality, translate to the
furtherance of the policy stance taken by government must be answered in the
affirmative.”
The law was challenged by two groups of applicants, Lesotho citizens Relebohile Rafoneke and Sefoboko Tsuinyane and Zimbabwean nationals Bruce Chakanyuka, James Nyamugere and Dennis Chadya — the latter having all been in South Africa for more than 15 years and obtained their law degrees here.
Rafoneke and Tsuinyane brought the original challenge in the Free State high court. Chakanyuka and his co-applicants were launching a separate challenge to the Act, and the apex court decided to hear the cases on a consolidated basis.
Advocate Steven Budlender, for the Zimbabwean applicants, argued that the absolute prohibition in the Act infringed on both the right to equality and the right to human dignity, enshrined in sections 9 and 10 of the Constitution.
He submitted that nationality was a characteristic that could impair the intrinsic dignity of people and said 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 said.
The ministry of justice, which opposed the application along with the Legal Practice Council (LPC), countered that the applicants were not refugees, were gainfully employed and had suffered no hardship, hence their right to dignity was not affected.
Both the ministry and the LPC contended that allowing foreigners to be admitted to practise law could worsen unemployment because there was a risk it would “open the floodgates” and create competition for those with South African citizenship.
Budlender submitted that the ministry and the council had failed to field a proper justification for the limitation, as demanded by section 36 of the Constitution, but instead relied on xenophobic tropes that risked, in the event that they were accepted by the court, entrenching prejudice against foreigners.
He said there was no compelling rationale for the distinction drawn by allowing foreigners with permanent residency, but not those who are ordinarily resident, to practise law.
“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,” said Budlender.
But the constitutional court found that the discrimination was not unfair.
“It follows that as the discrimination is not unfair; there is no violation of section 9(3) or section 9(4). In light of this conclusion it is not necessary to determine whether the discrimination is justified,” it said.
Section 9(3) does not list citizenship as one of the grounds on which discrimination is prohibited, but the applicants had argued that it falls under discrimination on the listed ground of social origin.
The court was not convinced, saying that it was not a matter of social origin but of national origin. It accepted that differentiation on citizenship could impair the fundamental human dignity of people in some instances, but found that this was not the case here, as the applicants had the right to work, including as legal advisers, even though they were not allowed to practise law.
“The limitation only restricts them from being admitted as legal practitioners in South Africa … and does not operate as a blanket ban to be employed in the profession as a whole.”
Turning to section 22 of the Constitution, which accords South Africans the right to practice the trade of their choice, the court said it did not afford rights to non-citizens, but that this did not per se mean that they were excluded from certain professions.
However, nothing stopped the legislature from barring entry, provided it did not do so in an arbitrary fashion. The question that had to be answered was whether a legitimate purpose was served by allowing foreigners who were permanent residents to practice law but excluding those who were ordinarily resident.
It has been accepted in case law, the court said, that the state had a right to admit foreigners to professions as it saw fit to prescribe.
And once it was accepted that the country bore no duty to extend the right to freedom of trade, occupation and profession to non-citizens, it could be rational to pass laws that restricted entry to certain professions.
“And section 24(2) is such legislation.”
It accepted the argument that those who acquired permanent residency have a fixity of connection to South Africa that the applicants lacked.
“The simple point is that the legislature has differentiated between permanent residents and other kinds of residents. It has done so to protect opportunities for South Africans. That is a permissible policy to adopt. There is a proper basis to distinguish the position of permanent residents and other categories of residents.
“Therefore, the line drawn in the LPA is similarly permissible.”
The Scalabrini Centre, an amicus curiae in the matter, had argued that the exclusion was an affront to non-citizens because it questioned their loyalty to the very Constitution under which their rights were protected.
“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,” counsel for the Centre, Chris McConnachie, had argued.
He added that the eventual eligibility of the applicants for citizenship afforded no succour, because the system was so mired in backlogs that in reality it took nearly two decades to obtain.
Nyamugure, who began his legal studies at Rhodes University in 2004, took the department of home affairs to court and secured a settlement that he would be granted citizenship. However the department has reneged on the agreement, prompting him to file for contempt of court. A ruling in that case is still pending.
The constitutional court did not engage with the argument raised by counsel for Rafoneke and Tsuinyane, Mosioa Mazibuko, that the historical genesis of the provision in the LPA was rooted in apartheid, when black South Africans who lived in Venda, Transkei, Ciskei and Bophuthatswana were, by law, stripped of their nationality.
It served to exclude black lawyers from the profession at the time, and was carried over into the current incarnation of the Act.
Similarly, he said the origin and the purpose of section 22 was not one of exclusion and protectionism, but that the drafters of the Constitution had aimed to ensure that in the democratic era, no South African was barred from the profession of his or her choice.
The judgment did however fault the ministry’s argument that the exclusion in section 24(2) of the Act served to protect the public from the inherent risk that foreign lawyers may lack accountability. It found it anomalous since foreigners who were admitted as lawyers in certain other jurisdictions are allowed to practise here.
“This argument is fundamentally flawed. The restriction is not applicable to non-citizens from designated countries who already enjoy the right to practise in South Africa. There is no basis to conclude that in respect to them, the risk of accountability is less.”
This ministry’s stance was strongly opposed by the Pan African Bar Association of South Africa, another amicus curiae in the case.
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