Chakanyuka and Others v Minister of Justice and Correctional Services; Rafoneke and Another v Minister of Justice and Correctional Services (CC) (unreported case no CCT 315/21, CCT 321/321 and CCT 06/22, 2-8-2022) (Tshiqi J (Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mhlantla J, Mlambo AJ and Unterhalter AJ concurring))

The Constitutional Court (CC) of South Africa (SA) dismissed the application in the matter of Rafoneke after the applicants approached the court and submitted that the provisions of s 24 of the Legal Practice Act 28 of 2014 (the LPA) creates an absolute bar to enter the legal profession by persons who hold visas and permits that allow them to live and work in SA. Furthermore, that a court or functionary seized with an application for admission as a legal practitioner has no discretion to authorise the admission of a duly qualified person who has no citizenship.

As per Musi JP’s decision in Rafoneke v Minister of Justice and Correctional Services and Others and a related matter (Free State Association of Advocates as Amicus Curiae) [2022] 1 All SA 243 (FB), s 24 shall read as follows:

‘24. Admission and enrolment

(1) A person may only practise as a legal practitioner if he or she is admitted and enrolled to practise as such in terms of this Act.

(2) The High Court must admit [to practise] a person as a legal practitioner and authorise the Council to enrol such person as a legal practitioner, conveyancer, or notary, if the person 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’ (court’s italics).

Among the submissions the applicants made, the CC said that the applicants argued that this differentiation bears no rational connection to a legitimate governmental purpose because, irrespective of the fact that the immigration laws allow them to take up employment in the country, they are still not eligible for admission and enrolment as legal practitioners. The CC added that the applicants added that should the CC accept the proposition of the Minister of Justice and Correctional Services that the provisions are meant to optimise opportunities for law graduates who are citizens and permanent residents. It is not a legitimate governmental purpose, and it is not likely to be achieved.

The CC said that the applicants submitted that it should consider the fact that the relief sought is not designed to permit a blanket admission of foreign legal practitioners to the profession. But instead restricted only to those who hold the right to work and reside in SA but who, due to the onerous legislative requirements of the Immigration Act 13 of 2002, can never obtain permanent residency status, and those who can only qualify for permanent residence after a certain period.

The CC added that the applicants argued that the differentiation amounts to discrimination. The applicants further submitted that the discrimination is based on an analogous ground of nationality or citizenship and thus on an attribute or characteristic that has the potential to impair their dignity and severe impact on their ability to obtain employment in the legal profession. The CC pointed out that the applicants argued that consequently the discrimination amounts to unfair discrimination as their rights to equality and dignity are infringed. The applicants contend further that the limitation of their rights is not justifiable under s 36 of the Constitution.

On 16 September 2021, the Free State Division of the High Court in Bloemfontein, declared s 24(2) of the LPA unconstitutional and invalid to the extent that it does not allow foreigners to be admitted and authorised to be enrolled as non-practising legal practitioners. This was after Relebohile Cecilia Rafoneke and Sefoboko Phillip Tsuinyane (the applicants) decided to challenge the constitutionality of s 24(2) of the LPA, after their applications to be admitted as attorneys of the High Court in the Free State Division were dismissed because they were neither South African citizens nor lawfully admitted to the country as permanent residents. The applicants are both citizens of the Kingdom of Lesotho, who studied at the University of the Free State, where they respectively obtained LLB degrees. The applicants entered articles of clerkship, completed their practical vocational training, and passed the competency-based examinations for attorneys (see Kgomotso Ramotsho ‘The High Court must admit a non-citizen as a legal practitioner if they have satisfied the requirements of the Legal Practice Act’ 2021 (Nov) DR 40).

The CC said that it should be determined whether the state, in enacting s 24(2), is effectively regulating the legal profession in an arbitrary manner or manifest ‘naked preferences’ that serves no legitimate governmental purpose. The CC pointed out that if it concludes that this is so, it will have to conclude that impugned provisions are inconsistent with s 9(1) of the Constitution. The CC added that to access the rationally of the decision, the provisions of s 24(2) cannot be considered without due regard to s 22 of the Constitution, which, as already stated, empowers the state to regulate the profession and trade.

The CC said that what is significant about the provisions of s 24(2) of the LPA is that, to extend that it restricts the right to be admitted as a legal practitioner to citizens, it reflects the same restriction contained in s 22 of the Constitution. The CC added that it should, however, be highlighted that because citizens have a right of choice under s 22, the state, in enacting legislation, is required to respect this right. The CC pointed out that there is no issue that the LPA does so. The CC said that the legislature is, therefore, at liberty to decide how far to extend admission into the legal profession.

The CC said the fact that non-citizens do not have rights that accrue under  s 22, does not mean they are not entitled to enter certain categories of professions in SA. However, the CC added that there is nothing stopping the Legislature from barring such entry. The CC said that  s 24(2) is, however, more expansive that s 22 of the Constitution as it, in regulating entry into the legal profession, also permits permanent residents to be admitted. The expansive nature of the provision is not being attacked, but it has been argued that there is no rational basis for the differentiation between permanent residents and other non-citizens. The CC pointed out that counsel for the amici submitted that the protection provided by s 22 of the Constitution and s 24(2) of the LPA should be extended to foreigners who are ordinarily residents in SA with the right to work.

The CC said that the problem with the submission in this regard is that the distinction between foreigners who have been granted permanent residence in SA and those who have not, is exactly the fact that these other groups have not been granted the same status as permanent residents. The CC added that the difference in statues carries different rights and corresponding obligations. The CC pointed out that the rationale for accepting permanent residents is that they have been granted a right to live and work in SA on a permanent basis, subject to the country’s immigrations laws.

The CC said it can thus be concluded in this regard that to the extent that s 24(2) mirrors the provisions of s 22, it cannot be said to be unconstitutional, but that to the extent that it extends the protection to other non-citizens, this is a governmental policy that cannot be said to be irrational or arbitrary. The CC pointed out that the applicant’s employability in different capacities that do not require admission as a legal practitioner is not curtailed by s 24(2)(b) of the LPA as currently framed. The CC pointed out that they are, therefore, not left destitute with no alternative sources of employment to chooses one’s vocation and as such this cannot be held to amount to unfair discrimination, as this right does not fall within a sphere of activity protected by a constitutional right available to foreign nationals such as the applicants.

The CC said that the discrimination is not unfair; that there is not violation of s 9(3) or s 9(4). The CC pointed out that considering this conclusion it is not necessary to determine whether the discrimination is justified. The CC dismissed the appeal. The CC added that the application for confirmation of constitutional invalidity falls to be dismissed.

The CC made the order that the appeal against the order of the Free State Division of the High Court, Bloemfontein is dismissed.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

This article was first published in De Rebus in 2022 (Oct) DR 30.