Rational distinction debated on the Legal Practice Act

March 1st, 2024
x
Bookmark

Picture source: Getty/iStock

The Constitution serves as the supreme source of law in the country (see s 2), it equally serves as the foundation of all other laws that end up being promulgated by Parliament. The Legal Practice Act 28 of 2014 (the Act) was promulgated to serve and protect the interests of legal practitioners within the Republic, in this context. The Act is in line with the Constitution and ought to be weighed against the supreme source of law in all instances that include questions as to the validity of same. The Act starts by enunciating the fact that it was formulated to provide a (legislative) framework for the transformation and restructuring of the legal profession ‘in line with constitutional imperatives’, this is to assist and enhance an independent legal profession that reflects the diversity and demographics of the South African Republic. Thus the Legal Practice Council (LPC) was established.

One of the important roles played by the Act and the LPC is to admit legal practitioners to practise in the Republic. Given the rules and regulations that one must comply with in their quest to receive admission into legal practice, non-compliance and legal uncertainties inevitably arise, hence the need to conduct proper research and writing on them. Rafoneke and Another v Minister of Justice and Correctional Services and Others 2022 (6) SA 27 (CC) is a significant judicial step taken by the Constitutional Court towards our legal education. The case deals with the admission of a non-South African legal practitioner to the South African legal fraternity and deals, in particular, with s 24(2) of the Act, which states:

‘(2) The High Court must admit to practise and authorise to be enrolled as a legal practitioner, conveyancer or notary or any person who, upon application, satisfies the court that he or she –

(a) is duly qualified as set out in section 26;

(b) is a –

(i) South African citizen; or

(ii) permanent resident in the Republic;

(c) is a fit and proper person to be so admitted; and

(d) has served a copy of the application on the Council, containing the information as determined in the rules within the time period determined in the rules.’

In this context, this article seeks to deal with the constitutionality of s 24(2) considering the Rafoneke case.

An assessment of admission and enrolment in terms of the Act

Section 24 starts by providing that a person may only serve as a legal practitioner in South Africa (SA) if he or she is duly admitted and enrolled to practise as such in terms of the Act (see s 24(1)). The Act basically provides that only it has the authority to regulate the admission and enrolment of a legal practitioner in the South African Republic.

Section 24(2) continues by adding that the High Court is obligated to admit and authorise the enrolment of all legal practitioners, conveyancers, notaries, or anyone who is able to satisfy the court that he or she –

  • is duly qualified in terms of s 26 of the Act;
  • is a citizen of the South African Republic or a permanent resident thereof;
  • is a fit and proper person for admission; and
  • has provided a copy of his or her admission application to the Council – containing the information required by the relevant rules and within the period determined by such rules. An assessment of s 24(2) suggests that only a citizen or permanent resident of SA qualifies to be admitted to practise as legal practitioner of the Republic. The admission occurs on compliance with other prerequisites that include the obtaining of an LLB.
A look at the factual background of Rafoneke

The main issue in the Rafoneke matter was whether s 24(2)(b) of the Act (as read with s 115) ought to be declared inconsistent with the Constitution and, therefore, invalid.

The applicants were Ms Relebohile Rafoneke and Mr Sefoboko Tsuinyane. Both are citizens of Lesotho and both studied at the University of the Free State (UFS), where they obtained their LLB) degrees (para 4). The applicants subsequently entered into their contracts of articles of clerkship with South African law firms and completed their Practical Vocational Training. They passed all of their practical examinations and proceeded to make application to be admitted as attorneys of the High Court. Their applications were, however, dismissed because they are not South African citizens and they are also not permanent residents of the Republic as provided by s 24(2)(b) of the Act. This ultimately gave rise to what the Constitutional Court (CC) had to decide on.

On 16 September 2021, the Free State Division of the High Court in Bloemfontein declared s 24(2) unconstitutional and invalid. The declaration of unconstitutionality and invalidity was only limited to the extent that the section does not allow foreigners who are not permanent residents of the SA to be admitted as non-practising legal practitioners of the Republic.

In addition to finding s 24(2) unconstitutional, the High Court also made orders suspending the declaration of invalidity, while also providing for an interim relief that will operate during the period of such suspension. In summary, the High Court found that s 24(2)(b) was unconstitutional.

Contentions of the litigants

The applicants argued that s 24(2)(b) violates their right to equality by drawing a difference between South African citizens, permanent residents, and foreigners (para 35).The applicants also argued that s 24(2)(b) unfairly discriminates against them based on their social origin and nationality. The applicants essentially argued that they ought to be admitted to practise as attorneys in SA after fulfilling the requirements in s 24(2)(a), (c) and (d) of the Act.

On the other hand, the respondents contended that there exists ‘a rational connection between the differentiation and the legitimate governmental purpose it sought to achieve’ (para 36). They further contended that it is apparent from the provisions of the Immigration Act 13 of 2002, the Employment Services Act 4 of 2014 and the Legal Practice Act that the ‘policy decision’ is to ensure that work, which does not entail a scarce or critical skill, ought to be reserved for citizens or permanent residents of the Republic. Ultimately, the respondents submitted that the application by Rafoneke and others should be dismissed because they sought ‘to circumvent employment and immigration laws of the country through their admission’ applications.

Notably, the court a quo agreed with the contentions of the respondents that the Act should not be read in isolation because it should be considered with the Constitution and in line with the Immigration Act, as well as the Employment Services Act (para 37). The court held that the differentiation made by the relevant legal provisions is rational and serves a legitimate governmental purpose for the reasons submitted by the respondents. The High Court declared s 24(2) of the Act unconstitutional in as far as it does not allow foreigners to be admitted as non-practising legal practitioners of SA (para 39). The court also ordered that its declaration of invalidity be suspended for 24 months from the date of its order to allow Parliament to rectify the defects identified in its judgment. The High Court accepted that a just and equitable remedy in the circumstances would be that during the suspension, non-citizens should be provided with interim relief (which is to operate during the suspension period). The High Court consequently ordered that the relevant provisions of the Act be read in a manner that will allow non-citizens to be enrolled as non-practising legal practitioners (once they have complied with all other requirements).

Legal findings of the CC

At para 42, the CC held that the gist of the matter before it was to determine whether discrimination had been proven and if it had, whether such discrimination was unfair. Another important finding by the CC is that no duty exists to extend the right to freedom of trade, occupation and profession to non-citizens (para 73).Moreover, the court added that the state has a right to admit foreigners only in cases and conditions that it sees fit to prescribe (as submitted in Minister of Home Affairs and Others v Watchenuka and Another 2004 (4) SA 326 (SCA)). The court also submitted that the Legislature (Parliament) is at liberty to decide on how far it wishes to extend admission into the legal profession for non-citizens and it has, unfortunately for the applicants, elected to draw the line at permanent residents (para 76). The fact that Parliament has not gone as far as including refugees and asylum seekers cannot be challenged by non-citizens under s 22 of the Constitution because they do not enjoy a right under the section. The court highlighted the point that the Legislature went as far as differentiating between permanent residents of the Republic and other kinds of residents (para 82). This was done to protect opportunities for South Africans. The court held that this type of policy is a permissible one to adopt. There is a legitimate basis for the distinction between permanent residents and other categories of residents and the line drawn in the Act is, therefore, permissible. This is a policy decision that serves a (legitimate) government purpose.

The court also held that in an instance where an applicant is granted the status of a permanent residents, he or she would qualify for admission in terms of the provisions of s 24 of the Act (para 83). This basically means that if the applicants had applied for and were granted the status of permanent residency within the Republic prior to their admission applications, they would have been entitled to proper admission and enrolment with the LPC (they, however, did not apply for same).

Importantly, the court submitted that the protection afforded to permanent residents of the South African Republic in terms of s 24(2) of the Act was not being questioned but instead, the court was asked to find that the failure of the said section to include ‘other non-citizens is inconsistent with the Constitution’ (para 84).The court acknowledged that the relevant admission laws of the country do not exclude legal practitioners who have been admitted in other countries from practising in SA but that does not in any way mean that the same laws allow foreigners to receive their admission in the country when they are not citizens or permanent residents (paras 84 and 85).

In holding that s 24 is not unconstitutional, the court referred to the Canadian case of Law Society of Upper Canada v Skapinker [1984] 1 SCR 357, where the Supreme Court of Canada refused to admit a non-citizen of the Canadian Republic into the country’s legal fraternity (para 87).Ultimately, the court held that the differentiation made by the relevant laws bears ‘a rational connection to a legitimate government purpose’ (para 91). Moreover, the court held that ‘citizenship’ may arise on the basis of birth, blood ties, naturalisation- it is a matter of national and not social origin (para 93). People of different social origins may be citizens of the same state just as much as people of the same social origin may be citizens of different states. This is because one category does not determine the other.

An important point made by the court is that s 24(2) does not create a ‘blanket ban’ on employment in the legal profession but merely restricts admission to serve as a legal practitioner in the Republic by reserving it for citizens and permanent residents of the country. The court held that: ‘The restrictions do not prevent the applicants from ever working in SA, and doing so by providing legal services that do not require admission’ (para 97).

At para 102, the court submitted that the discrimination argued by the applicants is not unfair and, therefore, there is no violation of the equality clause. The appeal was dismissed accordingly.

Conclusion

Rafoneke is a landmark judgment which equally enhances our jurisprudence. It is important to note that the differentiation (by the Act) between citizens and permanent residents on one hand and foreign nationals on the other does not amount to unfair discrimination because such distinction is rational. Citizenship does not fall under the ground of social origin as listed under s 9 of the Constitution. Moreover, the limitation created by s 24(2) is narrowly customized to the admission of legal practitioners and does not operate as a blanket ban to employment in the profession.

Mpho Titong LLB LLM (NWU) is a legal intern and Mamohapi Diseko LLB (Wits) LLM (NWU) is a Legal Officer (Professional Affairs) at the Legal Practice Council in Mahikeng. 

This article was first published in De Rebus in 2024 (March) DR 26.

X