Rafoneke and Another v Minister of Justice and Correctional Services and Others (FB) (unreported case no 3609/2020 and 4065/2020, 16-9-2021) (Musi JP (Molitsoane J and Wright AJ))The Free State Division of the High Court in Bloemfontein, declared s 24(2) of the Legal Practice Act 28 of 2014 (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.
Applicants Relebohile Cecilia Rafoneke and Sefoboko Phillip Tsuinyane 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 both studied at the University of 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.
In 2004, Ms Rafoneke was granted a visa to study in South Africa (SA) by the Department of Home Affairs, having been accepted by the University of the Free State. In 2005 she enrolled to study a Baccalaureus Commercii Law (BCom Law), however, before completing degree, she registered for the LLB degree. On 30 July 2014, in undertaking her desire to practice law in SA, she entered into a contract of clerkship for two years with Azar and Havenga Attorneys in Bloemfontein. During this period, she attended and successfully completed the Law Society of South Africa’s (LSSA) School for Legal Practice Course. Additionally, she had the right of appearances in lower courts. Furthermore, she wrote and passed all parts of the competency-based examinations for attorneys.
On 27 July 2016, she was issued with a Lesotho Special Permit (LSP) entitling her to temporarily resides and work in SA, which expired on 31 December 2019. The LSP does not give the holder thereof a right to apply for permanent residence status in SA. On 25 September 2019, her employer applied to the Director-General of Home Affairs for a waiver of reg 18(3) certificate requirements for permanent residency. The application was rejected with reasons that, in terms of s 31(2)(c) of the Immigration Act 13 of 2002, which states ‘upon application, the Minister may under terms and conditions determined by him or her –
…
(c) for good cause, waive any prescribed requirement or form.’
When applying for a general work visa, the employer is obliged to satisfy the Director-General that the employment of a foreigner would promote economic growth would not disadvantage a South African citizen or permanent residence. On 4 February 2020, she applied for a Lesotho Exemption Permit (LEP) which has the same conditions as LSP. She was issue an LEP valid from 25 March 2020 to 31 December 2023. The conditions of the LEP are that –
Ms Rafoneke is currently employed at Fixane Attorneys as a legal consultant since March 2018. Her functions are similar of those of candidate legal practitioners although she has no right for appearance and may also not consult with clients.
Mr Tsuinyane was issued a study visa and commenced his studies at the University of the Free State. He obtained his LLB in 2013 and his LLM from the same university in 2014. On 20 May 2014 he entered a contract of clerkship for two years with Matlho Attorneys in Bloemfontein. On 11 September 2014, Mr Tsuinyane ceded the rest of his articles of clerkship to Kenosi McDonald Moroka. He attended the LSSA School for Legal Practice course, additionally, he wrote and passed all parts of the attorneys’ competency-based examinations. In December 2015, Mr Tsuinyane married a South African citizen and as a result of the marriage, he was granted permission to reside with his wife and to work in SA. They bought immovable property in Bloemfontein.
Mr Tsuinyane is currently employed at Moroka Attorneys as a legal researcher and consultant, this position was created for him, and he is apprehensive that the position might become redundant if he is not admitted as an attorney. He has lived in SA since his student days. On 11 June 2018, he applied to the Minister of Home Affairs to be granted rights of permanent residence in terms of s 31(2)(b) and (c) of the Immigration Act. The application was rejected with reasons, that he did not file a formal application and secondly because the requirement stipulated in the Immigration Act may not be waived.
The court said that it was clear that s 31(2)(c) was not applicable. The court added that Mr Tsuinyane was informed that the waiting period to apply for permanent residence status in the spouse category is five years in terms of the Immigration Act and it cannot be waived. He launched this application before the five-year period lapsed. The court looked at provision of s 24 of the LPA and s 115 of the LPA. During the hearing, the applicants jettisoned their constitutional challenge aimed at s 24(3) of the LPA. The applicants argued that s 24(2)(b) read with s 115 of the LPA violates their right to equality because it differentiates between South African citizens and permanent residence on the one hand and foreigners on the other.
They submitted that s 115 of the LPA discriminates against them because foreign legal practitioners from designated countries may be admitted and enrolled to practise in SA without being citizens or permanent residents, whereas they who studied and trained here may not. The crux of their argument is that non-citizens who are temporary residents ought to be treated like citizens. They submitted that the differentiation serves no legitimate government purpose, it is arbitrary and irrational. They contended that the impugned sections unfairly discriminate against non-citizens based on their social origin and nationality. They contended that they should be admitted and enrolled to practise as attorneys in SA, after fulfilling the requirements in s 24(2)(a), (c) and (d).
The first respondent, the Minister of Justice and Correctional Services, the fourth respondent, the Minister of Labour, and the fifth respondent the Minister of Home Affairs, argued that there is a rational connection between the differentiation and the legitimate government purpose it was designed to further achieve. They and the amicus curiae contended that the applicants should be dismissed because the applicants wanted to circumvent the employment and immigration laws of SA.
The court referred to the matter between Minister of Finance and Another v Van Heerden 2004 (6) SA 121 (CC), where Ngcobo J explained the stages as follows:
‘The proper approach to the question whether the impugned rules violate the equality clause involves three basic enquiries: first, whether the impugned rules make a differentiation that bears a rational connection to a legitimate government purpose; and if so, second, whether the differentiation amounts to unfair discrimination; and if so, third, whether the impugned rules can be justified under the limitations provision. If the differentiation bears no such rational connection, there is a violation of s 9(1) and the second enquiry does not arise. Similarly, if the differentiation does not amount to unfair discrimination, the third enquiry does not arise’.
Section 24(2)(b) differentiates between citizens and permanent residents on the one hand and non-citizens from legal practitioners who have been admitted in designated foreign countries and non-citizens from those countries, who have never been admitted but seek to be admitted and enrolled as legal practitioners in SA. The court said that the Ministers referred extensively to the provisions of the Immigration Act and the Employment Services Act 4 of 2014 (ESA) in order to show the rational connection between the impugned provisions and the governmental purpose.
The court said it agreed with the Ministers that the LPA should not be viewed in isolation. That the impugned provision must be adjudged considering the Constitution and in conjunction with the Immigration Act and the ESA. The court added that s 22 of the Constitution states:
‘Every citizen has the right to choose their trade, occupation or profession freely. The practice of a trade, occupation or profession may be regulated by law.’
The court said that the right in s 22 is granted to citizens. That it has been said that ‘under the Constitution a foreigner who is inside this country is entitled to all the fundamental rights in the Bill of Rights except those expressly limited to South Africa citizens’. The court pointed out that the LPA regulates the legal profession. In Affordable Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 (CC) the Constitutional Court held that:
‘These two constitutional constraints define the scope of the regulations of the practice of a profession which is permitted under s 22. Legislation that regulates practice will pass constitutional muster if (a) it is rationally related to the achievement of a legitimate government purpose; and (b) it does not infringe any of the rights in the Bill of Rights’. What the Constitution, therefore, requires is that the power to regulate the practice of a profession be exercised in an objectively rational manner. As long as the regulation of the practice, viewed objectively, is rationally related to the legitimate government purpose, a court cannot interfere simply because it disagrees with it or considers the legislation to be inappropriate.
The LPA was assented to on 20 September 2014 and its commencement date was 1 November 2018. On 6 March 2014, the LSSA sent a letter to the office of the Deputy Director-General: Immigration Services advising that it is in favour of the retention of citizenship or permanent residence requirement for admission as an attorney. It LSSA sustained its view by stating that:
‘A “blanket” provision for foreigners to qualify will have a negative impact on many graduates who find it difficult to secure articles of clerkship or community service for purpose of qualification. In some provinces a substantial number of students of LEAD have not found work by the end of the programme (eg, in Polokwane). In 2012, 3 300 LLB students graduated, but 2 200 contracts of articles were registered in 2012. We should guard against actions that will limit the transformation of the profession, both in terms of access by law graduate and professional advancement of young South African practitioners’.
The court said that although the statistics cited by the LSSA are outdated, they indicate that at the time many students graduated but a sizeable number could not secure contracts of articles of clerkship. The statistics also indicate that the LLB degree is conferred on many law graduates annually. It is, therefore, rational for the LSSA to take a stance that is in favour of catering for young South Africans or permanent residents to enter the profession without competition from foreigners from the rest of the world. The court added that there is a risk in allowing non-citizens to practice. Society and clients need to be protected. The court said it was of a view that these were not fatal considerations in favour of the retention of the differentiation because citizens and permanent residents can also do sometimes embezzle clients’ money. The court said that it is a fact that some, albeit very few legal practitioners commit acts of dishonestly that put clients at peril.
The court said that the LPA seeks, among others, to –
‘(a) provide a legislative framework for the transformation and restructuring of the legal profession that embraces the values underpinning the Constitution and ensures that the rule of law is upheld;
(b) broaden access to justice by putting in place –
…
(iii) measures that provide equal opportunities for all aspirant legal practitioners in order to have a legal profession that broadly reflects the demographics of the Republic.’
The court added that to have a legal profession that broadly reflects the demographics of SA it is reasonable and rational for the LPA to regulate entry into the profession in order to meet that stated objective. The court referred to s 15 of the Attorneys Act 53 of 1979 that required citizenship or permanent residency for admission as an attorney. On admission on non-citizens the court pointed out that there was an issue which was foreshadowed in the papers but not dealt with in the parties’ heads of arguments. The court said that during the hearing it had requested all the parties address on the issue, which they duly did.
The court said that the issue is, can a person – citizen, permanent resident, or non-citizen – be admitted as a practitioner without being allowed to practise? In Ms Rafoneke’s replying affidavit to the first respondent’s answering affidavit she stated the following:
‘The first respondent confuses the issue of admission with that of employment. Of course, a foreign national admitted as a legal practitioner must still comply with the relevant requirements of employment in the Republic, including work visas.’ Mr Tsuinyane’s founding affidavit alleged that the impugned provisions adversely prejudice him because:
‘It limits my competitiveness in the job market. I cannot secure any employment that requires a candidate to be an admitted attorney. With my current occupation, I do not earn a similar income to that of persons who are professionals in the same position and level of experience as I am.’
The court said that s 15 of the Attorneys Act stated that the court shall admit and enrol a person as an attorney if the stated requirements were met. Section 24(1) of the LPA states that a person may only practise as a legal practitioner if they are admitted and enrolled to practise as such. Section 24(2) states that the High Court must admit to practise and authorise to be enrolled as a legal practitioner any person who meets the requirements set out in the section. The court added that there is a deliberate and important difference between the two Acts. In terms of the Attorneys Act the court had to admit and enrol. Currently, the court only admits but authorises enrolment. The court pointed out that the enrolment of an admitted legal practitioner is now done by the Legal Practice Council (LPC). The LPA has disaggregated admission and enrolment.
Musi JP said that the court must admit to practise and authorise enrolment and pointed out that the verb ‘practise’ is not defined in the LPA. The court said the verb ‘practise’ is defined as ‘carry out or perform habitually or constantly … work at, exercise, or pursue a profession, occupation, etc’, as performing a single isolated act of practising as an attorney or legal practitioner. The court is convinced of the equivalence in the context of s 24(2) of the LPA. The words ‘admit to practise’ therefore mean that the court admits the person to work as a legal practitioner.
Musi JP pointed out that it does not make sense for the court to admit a person to practise, as defined in the dictionary and judicially when that person does not have any intention to practise. The court said it makes sense for the court to admit a person as a legal practitioner and authorise the LPC to enrol them as such. The applications were dismissed because they were neither South African citizens nor lawfully admitted to the country as permanent residents. The court added that this interpretation is consonant with the rest of the provisions of the LPA and the rules, for example, the LPA defines an attorney as a legal practitioner who is admitted and enrolled as such under this Act and legal practitioners is defined as an advocate or attorney admitted and enrolled as such in terms of ss 24 and 30 respectively.
The court said that the objections by the Ministers against admitting non-citizens are to ensure that there is compliance with immigration and employment legislation. The court asked, what about those persons who want to be admitted but do not want to practise? Put differently, the court asked what about persons who want to be admitted here but not work here? The court added that many citizens want to be admitted as legal practitioners without any intention to practise. Likewise, non-citizens may want to be admitted without any intention to practise.
The court said in terms of s 32(3) of the LPA the Council may make rules regulating the circumstances under which a legal practitioner can apply for the conversion of their enrolment and any requirements such legal practitioner must comply with r 30 read with r 31 regulate conversions. The court added that nothing in the rules proscribe the admission of a person by the High Court and that court authorising the enrolment of such person as a non-practising legal practitioner. The court pointed out that this might, at first glance, seem like a placebo. It has, as illustrated, many practical advantages for non-citizens like the applicants.
The court said that both applicants have instruments that allow them to work in SA and said that they can conceive of no reason why a person on a spousal visa or LEP cannot be admitted as a non-practicing legal practitioner. Musi JP added that s 24 of the LPA does not pass constitutional muster to the extent that it prohibits non-citizens to be admitted and authorised to be enrolled as non-practising legal practitioners.
The court pointed out that it found that the ground of citizenship or permanent residence in the impugned section of the LPA is based on attributes and characteristics which have the potential to impair the fundamental human dignity of non-citizens affected by it. Musi JP said they have established discrimination based on nationality. The court added that it accepts that the refusal to admit the applicants to practise and authorise their enrolment causes hardship. The court said that the Department of Employment and Labour has a constitutional duty to ensure that the employment of foreign nationals in SA is aligned to the economic growth of the Republic. And that this must be done in a manner that does not place citizens and permanent residents of SA at a disadvantage.
The court noted that although the LEP issued to Ms Rafoneke does not entitle her to apply for permanent resident status. She is entitled to work in SA during the validity of the permit, that her employer may also apply that a general work visa be issued to her.
The court in its findings, found that the discrimination in s 24(2)(b) of the LPA is fair. That being the case, there is therefore no need to consider s 36 of the Constitution. However, the court found that s 24(2) of the LPA is inconsistent with the Constitution and invalid to the extent that it does not allow non-citizens to be admitted and authorised to be enrolled as non-practising legal practitioners.
The court said that after considering different remedies it had decided that a just and equitable remedy would be a declaration of invalidity and a suspensive order to allow the legislature to cure the defect. Due to the hardships that non-citizens are exposed to and the immediate change in their employability, development, and financial position this judgment may bring. Musi JP decided to grant interim relief. The interim relief will benefit non-citizens but would not prejudice the government’s policy or the interest of practising legal practitioners.
The court made the following order:
‘Section 24(2) of the LPA is declared 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.
The declaration of invalidity is suspended for 24 months from the date of this order to allow parliament to rectify the defects as identified in this judgment.
During the period of suspension, the operation of the order of invalidity of section 24 of the Legal Practice Act No 28 of 2014 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.
(3) The High Court must admit a non-citizen as a legal practitioner and authorise the Council to enrol such person as a non-practising legal practitioner if he or she has satisfied the requirements in paragraphs (a), (c) and (d) of subsection (2).
(4) Subject to subsection (1), the Minister may, in consultation with the Minister of Trade and Industry and after consultation with the Council, and having regard to any relevant international commitments of the Government of the Republic, make regulations in respect of admission and enrolment to –
(a) determine the right of foreign legal practitioners to appear in courts in the Republic and to practise as legal practitioners in the Republic; or
(b) give effect to any mutual recognition agreement to which the Republic is a party, regulating –
(i) the provision of legal services by foreign legal practitioners; or
(ii) the admission and enrolment of foreign legal practitioners”.
Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.
This article was first published in De Rebus in 2021 (Nov) DR 40.
