Picture source: Gallo Images/Getty
In August 2018 the world’s attention was on Zimbabwe. The landmark elections and ensuing Constitutional Court challenge made quite a spectacle for the international media. One of the sideshows that accompanied the complex narrative, was that of an international team of legal practitioners, who brought aid to the Zimbabwean opposition, in its court challenge to set aside the election results. The legal practitioners – among them – South African advocate, Dali Mpofu, found it difficult to obtain the immigration permits necessary to represent his client in court. Ultimately, Mr Mpofu and others were denied permits and relegated to the public viewing gallery of the court.
Recounting the event, Mr Mpofu remarked poignantly: ‘Because of colonial borders, one Mpofu (meaning Zimbabwean Thabani Mpofu, the lead advocate for the opposition) can talk, while the other Mpofu (meaning himself) cannot’. This remark made me think of a similar situation that plagues foreign candidate legal practitioners, desirous of admission, to practise as legal practitioners in South Africa. Section 24(2)(b)(ii) of the Legal Practice Act 28 of 2014 (LPA) requires foreign candidate legal practitioners to have a permanent residence permit to be admitted. I will argue that the permanent residence permit requirement, unconstitutionally encumbers foreign candidate legal practitioners in the admission process.
The legislative framework
Section 24(2) of the LPA stipulates:
‘The High Court must admit to practise and authorise to be enrolled as a legal practitioner … 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 …’.
The argument is confined to persons who have satisfied all requirements for admission under the LPA, save the permanent residence permit requirement and do not meet the definition of ‘foreign legal practitioner’ envisaged by s 24(3)(a) of the LPA.
Section 24(2)(b) of the LPA, limits entrants into the profession to those who are either citizens or permanent residence permit holders. The purport of this provision is that holders of other permits and visas, that allow work are excluded from the legal profession. These include, but are not limited to, holders of –
Constitutionality of the permanent residence permit requirement
Section 9(1) (the Equality clause) of the Constitution stipulates: ‘Everyone is equal before the law and has the right to equal protection and benefit of the law’.
The purport of the equality clause is clear from its wording. It is intended to stand as a shield against discrimination. In President of the Republic of South Africa and Another v Hugo 1997 (4) SA 1 (CC), Goldstone J highlighted the importance of the clause when he stated that: ‘At the heart of the prohibition of unfair discrimination lay a recognition that the purpose of our new constitutional and democratic order was the establishment of a society in which all human beings would be accorded equal dignity and respect regardless of their membership of particular groups’.
In Harksen v Lane NO and Others 1998 (1) SA 300 (CC) the court set out this test to determine whether legislative provisions fall short of the constitutional standard in the equality clause:
‘(a) Does the provision differentiate between people or categories of people? If so, does the differentiation bear a rational connection to a legitimate government purpose? …
(b) Does the differentiation amount to unfair discrimination?
…
(c) If the discrimination is found to be unfair then a determination will have to be made as to whether the provision can be justified under the limitations clause’.
Does the provision differentiate between people?
The first stage of this inquiry is twofold. First, it asks whether the provision in question differentiates between people? In Union of Refugee Women and Others v Director: Private Security Industry Regulatory Authority and Others 2007 (4) SA 395 (CC), the court decided this very question, in relation to the permanent residence permit requirement in s 23(1)(a) of the Private Security Industry Regulation Act 56 of 2001. The court concluded that indeed the permanent residence permit requirement differentiated between people. I submit that the permanent residence permit requirement in the LPA, similarly, differentiates between people. The first question is, therefore, answered in the affirmative.
Second, the test asks whether said differentiation bears a rational connection to a legitimate government purpose. Judicial interpretation of the purview of ‘legitimate government purpose’ has been wide. In determining the purpose of the permanent residence permit requirement, I turned to affidavits filed by the respondents in the matter of Tangkuampien v Law Society of South Africa (CPD) (unreported case no 897/07). The applicant in this matter, sought a determination on the constitutionality of the permanent residence permit requirement, in the repealed, Attorneys Act 53 of 1979. The respondents argued that the requirement was intended for the ‘protection of the South African public and advancing the administration of justice’. In the Union of Refugee Women case the respondents made similar arguments, noting that a need to protect the public necessitated a permanent residence permit requirement. In the Union of Refugee Women case the court held that considering s 12 of the Constitution, which guarantees everyone the right to freedom and security, the permanent residence permit requirement bears a rational connection to a legitimate government purpose. I submit that the significant public trust that the private security industry holds are comparable to that of the legal profession. Consequently, I submit that the permanent residence permit requirement does indeed bear a rational connection to a legitimate government purpose.
Is the discrimination unfair?
Testing then moves onto a second stage of the inquiry, which asks whether the differentiation amounts to unfair discrimination. The equality clause contemplates discrimination as either differentiation based on one of the listed grounds in s 9(3) of the Constitution or differentiation based on an unlisted ground, that is sufficiently analogous to those listed. The distinction between listed and unlisted, is that the former enjoys the presumption of unfairness, whereas the unfairness of the latter must be established. In the Harksen case the court held ‘[t]here will be discrimination on an unspecified ground if it is based on attributes or characteristics, which have the potential to impair the fundamental dignity of persons as human beings, or to affect them adversely in a comparably serious manner’. Therefore, establishing unfair discrimination hinges on the effect that it has on the victim. Reworded, the test asks: Does it impair dignity or negatively affect the complainant in a similar way? The court reaffirmed this jurisprudential thinking in Hoffmann v South African Airways 2001 (1) SA 1 (CC) where it held that: ‘The determining factor regarding the unfairness of the discrimination is its impact on the person …’. In analysing the impact on the complainant in the Hoffmann case, the following was considered –
The application of these considerations reveals the following: First, the position of the complaints in society is precarious. Foreign nationals are a minority with no political power. They are described by several court decisions (including in the Union of Refugee Women case), as being a vulnerable segment of society. They endure –
Referencing the societal position of HIV positive persons, Ngcobo J in the Hoffmann case remarked: ‘Society has responded to their plight with intense prejudice. They have been subjected to systematic disadvantage and discrimination. They have been stigmatised and marginalised. … [t]hey have been denied employment because of their HIV positive status’. I submit that these same remarks reflect the plight of foreign nationals.
Second, in determining the purpose sought to be achieved by the discrimination, I turn to the arguments by the respondents in the Tangkuampien case. These arguments establish that the purpose of the discrimination is to protect the public from untrustworthy legal practitioners.
In addressing the third consideration, I submit that the extent to which the rights and interests of foreign candidate legal practitioners are prejudiced is significant. I refer to the conclusions in the Hoffmann case, where the court held that the denial of employment has a devastating impact. The court elaborated, pointing out that, the denial of equal access to employment effectively condemned the complainant to ‘economic death’.
In respect to the final consideration regarding impairment of dignity, the court held in the Hoffmann case that: ‘[T]he denial of employment to the appellant because he was living with HIV impaired his dignity and constituted unfair discrimination’. Consequently, it is established precedent that one’s dignity is impacted significantly when equal access to employment is withheld. Having regard to the above four relevant considerations, I submit that unfair discrimination is established.
Justification in terms of the limitations clause?
The final stage of inquiry relates to s 36 of the Constitution (‘limitations clause’). The right to equality is not absolute. Infringement may be constitutionally permissible in terms of the limitation’s clause. The clause stipulates that the limitation of rights can only be permitted if it is –
‘in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including –
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.’
In regard to the equality clause, authors I Currie and J De Waal in The Bill of Rights Handbook 6ed (Cape Town: Juta 2013) question whether the limitations clause can be meaningfully applied. They conclude that because the criteria of the clauses are couched in the same or a similar manner, application would be largely superfluous. Expounding, they note that it would be: ‘Difficult to see how discrimination that has already been characterised as “unfair” because it is based on attributes and characteristics which have the potential to impair the fundamental human dignity of persons as human beings can ever be acceptable in an open and democratic society based on human dignity, freedom and equality’.
I agree with the authors, but I would like to add the following: Subsection (d) considers the relationship between the limitation and its purpose. I submit that the relationship is difficult to establish. The purpose of the permanent residence permit requirement is to safeguard the public from untrustworthy legal practitioners. When given the opportunity to argue the connection between the limitation and the objective in the Tangkuampien case, the respondents failed to present the court with a convincing argument. They only argue that foreigners with permanent residence permit status have a demonstrably serious commitment to South Africa. This argument is dismissive of persons who by way of – marriage; education; refugee status; and employment commitments, etcetera, have demonstrated a significant commitment to South Africa. Additionally, the historical record of the introduction of the permanent residence permit requirement speaks more to manifesting naked preference than protecting of the public. Experts of the April 1964 Hansard quote the then Minister of Justice, BJ Vorster, saying ‘Every country … regards the legal profession as a profession to be jealously guarded and preserved for its own citizens’.
Subsection (e) speaks to considerations of less restrictive means to achieve the purpose of the legislative provision. In this respect it is important to note that s 24(c) of the Act creates a ‘fit and proper[ness]’ requirement for admission. This requirement gives the court a broad scope in which to determine the trustworthiness of the persons desirous of admission. I submit that the proper application of this section is a less restrictive means of achieving the purpose. Additionally, I turn to the ratio of the court in the Union of Refugee Women case. The court held that the permanent residence permit requirement in the Private Security Regulation Act was only rendered constitutionally compliant when tempered by s 23(6) of the same Act. An exemption of this nature would save the LPA’s permanent residence permit requirement from constitutional criticism.
Conclusion
In 2002, the chairperson of the task team, appointed by the Justice Minister to draft the LPA had concerns about the constitutionality of the permanent residence permit requirement. Resultantly, early versions of the Legal Practice Bill excluded it. I conclude that the chairperson’s concerns were valid, the permanent residence permit requirement cannot stand up to constitutional scrutiny. The right to equality is foundational to our constitutional democracy and a violation of this nature should not be continued.
Muchengeti Hudson Hwacha LLB (UKZN) Cert Intellectual Property and Banking law (Wits) is a research intern at ALT Advisory and Power Singh Inc in Johannesburg.
This article was first published in De Rebus in 2020 (March) DR 12.
