CONSTITUTIONAL COURT OF SOUTH AFRICA
Cases CCT 315/21, CCT 321/21 and CCT 06/22
In the matter between:
Case CCT 06/22
BRUCE CHAKANYUKA First Applicant
NYASHA JAMES NYAMUGURE Second Applicant
DENNIS TATENDA CHADYA Third Applicant
ASYLUM SEEKER REFUGEE AND MIGRANT
COALITION Fourth Applicant
and
MINISTER OF JUSTICE AND CORRECTIONAL
SERVICES First Respondent
LEGAL PRACTICE COUNCIL Second Respondent
FORTUNATE KUMBIRAI DUNDURU Third Respondent
RELEBOHILE CECILIA RAFONEKE Fourth Respondent
SEFOBOKO PHILLIP TSUINYANE Fifth Respondent
In the matter between:
Cases CCT 315/21 and CCT 321/21
RELEBOHILE CECILIA RAFONEKE First Applicant
SEFOBOKO PHILIP TSUINYANE Second Applicant
and
MINISTER OF JUSTICE AND CORRECTIONAL
SERVICES First Respondent
LEGAL PRACTICE COUNCIL Second Respondent
MINISTER OF TRADE, INDUSTRY AND
COMPETITION Third Respondent
MINISTER OF LABOUR Fourth Respondent
MINISTER OF HOME AFFAIRS Fifth Respondent
and
DAPHNE MAKOMBE Intervening Party
and
SCALABRINI CENTRE OF CAPE TOWN First Amicus Curiae
THE INTERNATIONAL COMMISSION OF JURISTS Second Amicus Curiae
PAN-AFRICAN BAR ASSOCIATION OF
SOUTH AFRICA Third Amicus Curiae
Neutral citation: Rafoneke and Others v Minister of Justice and Correctional
Services and Others (Makombe Intervening) [2022] ZACC 29
Coram: Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mhlantla J,
Mlambo AJ, Tshiqi J and Unterhalter AJ
Judgment: Tshiqi J (unanimous)
Heard on: 24 February 2022
Decided on: 2 August 2022
Summary: Legal Practice Act 28 of 2014 — constitutionality of section 24(2)
— unfair discrimination — provision is not unconstitutional
TSHIQI J
ORDER
On appeal from the High Court of South Africa, Free State Division, Bloemfontein the
following order is made:
1. The appeal against the order of the High Court of South Africa, Free State
Division, Bloemfontein is dismissed.
2. The declaration made by the High Court that s ection 24(2) of the
Legal Practice Act 28 of 2014 is 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 is not confirmed.
TSHIQI J
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JUDGMENT
TSHIQI J (Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mhlantla J, Mlambo AJ and
Unterhalter AJ concurring):
Background
At issue in this application is whether the provisions of section 24(2)(b), read with
section 115, of the Legal Practice Act1 (LPA) should be declared inconsistent with the
Constitution and therefore invalid. On 16 September 2021, the High Court of
South Africa, Free State Division, Bloemfontein (High Court)2 declared the provisions
of section 24(2) unconstitutional and invalid , but only to the extent that they do not
allow foreigners who are not permanent residents in South Africa to be admitted and
authorised to be enrolled as non -practising legal practitioners. Together with the
declaration of invalidity, the High Court made consequential orders relating to the
suspension of the declaration of invalidity and the interim relief that will operate during
the period of such suspension.
[1] The declaration was sought on the basis that the provisions of section 24(2)(b),
read with section 115, of the LPA preclude persons who are neither citizens nor
permanent residents of South Africa and who are not admitted as legal practitioners in
designated foreign jurisdictions, from being admitted and enrolled as legal practitioners
in South Africa. As is evident from a reading of the declaration of invalidity, it does
not mirror in exact terms the relief sought by the applicants, as section 24(2) of the LPA
was declared unconstitutional only to the extent that it does not allow foreign nationals
to be admitted and enrolled as non-practising3 legal practitioners. The applicants are
not content with the extent of the declaration of invalidity, as ordered by the High Court,
1 28 of 2014.
2 Rafoneke v Minister of Justice and Correctional Services 2022 (1) SA 610 (FB) (High Court Judgment).
3 My emphasis; to highlight the limited extent of the declaration.
TSHIQI J
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and therefore do not seek a confirmation of the order but seek leave to appeal against it
in terms of section 172(2)(d) of the Constit ution, read with rule 16(2) of the Rules of
this Court.
[2] Although some of the applications before this Court were brought individually,
they were heard as a consolidated matter as several parties, mostly non -citizens and
parties who have an interest in the matter, sought leave to intervene on the basis that the
issues raised are similar . Additionally, a number of interested parties soug ht to assist
the Court as amici curiae and were subsequently granted leave to do so. The particulars
of all the parties concerned, together with the relevant submissions will be detailed
below. To the extent that some of the submissions are duplicated or overlap, these will
not be repeated.
[3] The first respondent, the Minister of Justice and Correctional Services
(Minister), and the second respondent, the Legal Practice Council (LPC), oppose the
application for leave to appeal in two respects. They contend that the provisions should
not be declared inconsistent with the Constitution at all as they pass constitutional
muster. They thus submit that the High Cour t erred in finding that section 24(2) is
invalid to the limited extent that it prohibi ts non-citizens and people who are not
permanent residents from being admitted and authorised to be enrolled as non-practising
legal practitioners.
Parties
CCT 315/21 and CCT 321/21
[4] The applicants in this matter are Ms Relebohile Cecilia Rafoneke and
Mr Sefoboko Philip Tsuinyane . They are both citizens of the Kingdom of Lesotho .
They studied at the University of the Free State (UFS) where they obtained their
Baccalaureus Legum (LLB) degrees. They entered into contracts of articles of clerkship
with South African law firms and completed their practical vocational training. They
passed all the practical examinations required in order to apply for admission as
TSHIQI J
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attorneys and then applied to be admitted as attorneys of the High Court. Their
applications we re dismissed because they are neither Sout h African citizens nor
permanent residents as required by section 24(2)(b) of the LPA . The relevant factual
background of each of the two applicants is the following.
Ms Rafoneke
[5] Ms Rafoneke applied for a visa to study in South Africa and upon being accepted
at the UFS, she was subsequently grante d a study visa by the Department of
Home Affairs (Home Affairs ). The university had conferred upon her a Bachelor
degree in Commerce and Law in 2011 and her LLB in 2013.
[6] Ms Rafoneke attended and successfully completed a practical full -time course
offered by the Law Society of South Africa’s School for Legal Practice in Bloemfontein
from 13 January 2014 to 24 July 2014. The Law Society is the predecessor of the LPC.
On 30 July 2014, she entered into a written contract of articles of clerkship with Azar
and Havenga Attorneys in Bloemfontein. During the subsistence of her contract,
Ms Rafoneke registered with the LPC and was issued with a certificate conferring upon
her the right of appearance in terms of section 8 of the Attorneys Act.4 She subsequently
appeared in court on behalf of her principal in various matters subject to the conditions
prescribed in the certificate of appearance. In 2015, Ms Rafoneke wrote and passed all
the practical attorneys’ admission examinations as required by the Attorneys Act.
[7] On 27 July 2016, Ms Rafoneke was issued with a Lesotho Special Permit
(Special Permit) by Home Affairs to temporarily reside and take up employm ent in
South Africa. It is important to note that the conditions of the Special Permit do not
entitle the holder thereof to apply for permanent residence irrespective of the period of
stay in South Africa. As a result of being granted the Special Permit, Ms Rafoneke was
able to take up employment with Fixane Attorneys in Bloemfontein in March 2018 and
4 53 of 1979. The Attorneys Act was repealed and replaced with the LPA. As some of the litigants commenced
with their articles of clerkship before the operation of the LPA, in 2018, the provisions of the Attorneys Act apply
to them as it pertained to their registration with the Law Society of South Africa and their admission examinations.
TSHIQI J
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is still in their employ as a consultant . Her Special Permit expired on
31 December 2019 and an application for its renewal has been filed through the new
Lesotho Exemption Permits System, which has the same conditions as the Special
Permit.5
[8] Faced with the difficulty regarding permanent residency, Ms Rafoneke enquired
from Home Affairs as to how she could qualify for a permanent residence permit. She
was advised that she needed to be in possession of a general work visa for a period of
five years before she could qualify to apply for a permanent residence permit.
Following this advice, Ms Rafoneke’s employer, Fixane Attorneys, applied to the
Director-General of Home Affairs on 25 September 2019 for a waiver of the
requirement of a certificate for the granting of a work visa as contained in
regulation 18(3) of the Immigration Act.6 The application was refused. In his response,
Mr Marhule, the Chief Director of Permits, at Home Affairs advised Ms Rafoneke of
other options open to her. He indicated that there was no good cause which warranted
the waiving of the requirement. He went on to state that in order for Ms Rafoneke to
continue her employ ment with Fixane Attorneys , she should submit an application in
terms of section 31(2)(b) of the Immigration Act. 7 This section provides that the
Minister may grant a person the rights of permanent residency for a specified or
unspecified period if specia l circumstances exist. Fixane Attorneys was advised that
alternatively they could make an application to the Department of Labour for the
certification necessary to process Ms Rafoneke’s general work visa application.
5 High Court Judgment above n 2 at paras 10-1. The conditions are:
“1.1 The holder thereof is entitled to conduct work/employment in the Republic;
1.2 The holder thereof may not apply for permanent residence irrespective of the period of stay;
1.3 The holder thereof will not be able to renew or extend the permit; and
1.4 The holder thereof may not change the conditions of the permit in the Republic.”
6 13 of 2002.
7 This section provides for exemptions to permanent residence, or waiver of certain requirements to be met to
qualify for a visa, if good cause is shown and upon application.
TSHIQI J
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[9] After Ms Rafoneke completed her articles of clerkship, she launched an
application to the High Court in terms of section 15 of the Attorneys Act to be admitted
and enrolled as an attorney of the High Court. Her application was unopposed , but it
was dismissed on the b asis that, alth ough she had complied with all the other
requirements of the Attorneys Act, she was neither a citizen nor permanent resident of
South Africa, as required by the Attorneys Act. This was based on the fact that the
LPA, in the same way as the Attorneys Act, precludes Ms Rafoneke from being
admitted as a practising or non-practising legal practitioner. Furthermore, before the
promulgation of the LPA, Ms Rafoneke, was not admitted as a legal practitioner in a
country designated by the Minister of Justice under section 17 of the Attorneys Act and
section 5 of the Admission of Advocates Act 8 which would ordinarily allow her to
practise within South Africa.9
Mr Tsuinyane
[10] In January 2010, Mr Tsuinyane was issued with a visa t o study in South Africa
by Home Affairs, after being accepted at U FS to study towards an LLB degree . The
degree was conferred upon him in 2013. He obtained his Magister Legum (LLM)
degree a year later, from the same University.
[11] On 20 May 2014, Mr Tsuinyane entered into a written contract of articles of
clerkship for a period of two years with Matlho Attorneys, Bloemfontein.
Mr Tsuinyane ceded his articles of clerkship on 11 September 2014, and for a period of
one year and six months, he served his articles with Moroka Attorneys, Bloemfontein.
8 74 of 1964.
9 Although the Attorneys Act and the Admission of Advocates Act have been repealed, section 115 of the LPA
has left the door open for persons admitted as legal practitioners in other jurisdictions to still be admitted as legal
practitioners in the Republic. Section 115 states that:
“Any person who, immediately before the date referred to in section 120(4), was entitled to be admitted
and enrolled as an advocate, attorney, conveyancer or notary is, after that date, entitled to be admitted
and enrolled as such in terms of this Act.”
TSHIQI J
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[12] Mr Tsuinyane attended and successfully completed a practical legal training
full-time course offered by the Law Society of South Africa, School for Legal Practice
in Bloemfontein in 2015. He wrote and passed the attorneys’ admission examinations
as required by the Attorneys Act.
[13] On 24 December 2015, Mr Tsuinyane married Ms Lebotsa, a South African
citizen, and was granted a spousal visa which expired on 30 June 2019. He has
continued to live in South Africa for an uninterrupted period of over 10 years. Having
completed his articles of clerkship and passed the attorneys admission examinations, on
22 February 2018, Mr Tsuinyane launched an application, which was also unopposed,
to be admitted and enrolled as an attorney of the High Court in terms of section 15 of
the Attorneys Act. M r Tsuinyane’s application was also dismissed on the same basis
as that of Ms Rafoneke. Mr Tsuinyane is currently employed as a legal researcher and
consultant at Moroka Attorneys, a position created solely to assist him.
[14] On June 2018, Mr Tsuinyane applied to Home Affairs to be granted the rights of
a permanent residence holder in terms of se ction 31(2)(b) and (c) of the
Immigration Act. His application was rejected on the following grounds. First, he was
advised that he did not file a f ormal application which had to be done via a V isa
Facilitation Services office. Second, Mr Tsuinyane was informed that , in terms of
section 31(2)(c) of the Immigration Act , he had to wait for a period o f five years after
his marriage before he could qualify to be considered for permanent residence sta tus
under the spouse category and that this requirement could not be waived. He launched
this application before the five-year period had lapsed.
CCT 06/22
[15] In this matter the applicants are three Zimbabwean nationals. Their fact ual
background is the following.
TSHIQI J
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Mr Bruce Chakanyuka
[16] Mr Chakanyuka was born in Zimbabwe and fled his country of origin as a result
of economic and political unrest . He allegedly entered South Africa about
December 2007 as an undocumented mi grant. I n 2009 the Dispensation of
Zimbabweans Project, which was designed to regulari se the immigration status of
undocumented and asylum -seeking Zimbabweans was introduced. Special permits
were issued to qualified categories of persons in terms of section 31(2)(b) of the
Immigration Act.
[17] About June 2009, Mr Chakanyuka applied for and was issued with a Zimbabwe
Special Permit , which upon periodic renewal came to be known as the Zimbabwe
Exemption Permit.10 In 2013, Mr Chakanyuka applied for and was accepted to study
towards an LLB degree at the University of South Africa. This was conferred upon him
in April 2019. He applied for and was accepted into the pupillage program me for
advocates, administered by the Gauteng Society of Advocates. He went through the
one-year training from 23 November 2019 to 4 December 2020 , and completed all the
requirements for admission as a legal practitioner in terms of the LPA. He is unable to
be admitted and enrolled as such as he is neither a citizen nor a permanent resident. He
is currently employed as a waiter.
Mr Nyasha James Nyamugure
[18] Mr Nyamugure was born in Zimbabwe. He entered South Africa on the strength
of a visa to study, after having been accepted at Rhodes University. He then completed
various degree programmes, namely a Bachelor of Arts, maj oring in Economics and
Law, an LLB degree at the same university, and a LLM degree with the University of
Stellenbosch.
10 The conditions of the Zimbabwe Exemption Permi t are identical to those of the Lesotho Exemption Permits
above n 5.
TSHIQI J
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[19] In his founding affidavit before the High Court, Mr Nyamugure stated that from
23 June 2009 to 26 November 2009 he attended and successfully completed a practical
legal training course offered by the Law Society of South Africa at the School for Legal
Practice at the University of Cape Town. This was during the period he was studying
towards his LLM. In March 2010, he commenced employment with Liquid Platinum
(Pty) Limited, a project management company , based in Pietermaritzburg , where he
worked as a legal assistant for the remainder of that year. From January 2011 to
January 2012, Mr Nyamugure served and completed his articles of clerkship with Drake
and Associates, a law firm in Pietermaritzburg. He wrote and passed all the attorneys’
admission examinations as required by the Attorneys Act. During the relevant periods,
Mr Nyamugure was legally present in South Africa on the strength of study permits, a
work permit and presently, and at the time of application to this Court a Zimbabwe
Exemption Permit.
[20] On 17 March 2013, Mr Nyamugure applied to Home Affairs for an exemption
to permanent residence in terms of section 31(2)(b) of the Immigration Act, but did not
receive any response regarding the status of his application. He instructed his attorneys
to send a formal notice of an intention to institute legal proceedings against
Home Affairs. The notice was sent on 13 May 2014, but the decision to institute legal
proceedings was held in abeyance after correspondence w as received from
Home Affairs indicating that Mr Nyamugure’s application was being attended to and
that feedback would be forthcoming.
[21] In September 2014, Mr Nyamugure received a letter from the Director-General
of Home Affairs advising him that his permanent residence application was rejected.
The letter advised that if his application we re to be granted, Home Affairs would be
circumventing the provisions of the Attorneys Act as--
“granting an exemption to a foreign national for the sole purpose of gaining admission
to practice law in South Africa will circumvent the very provisions of the Attorneys Act
which reserves the right to practice law in South Africa to South African citizens and
permanent residents”.
TSHIQI J
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[22] Dissatisfied with the outcome, Mr Nyamugure addressed several queries to
Home Affairs but received no acknowledgement or response. This prompted him to
instruct his attorneys to institute review proceedings before the High Court of
South Africa, KwaZulu -Natal Division, Pietermaritzburg. After the exc hange of
pleadings, Home Affairs agreed to settle the matter and a consent order was granted, in
terms of which Home Affairs agreed to grant Mr Nyamugure a permanent residence
permit.
[23] Following non-compliance with the order , Mr Nyamugure, on 17 March 2016,
served Home Affairs with a copy of the order and requested it to comply.
Mr Nyamugure has since instituted contempt of court proceedings before the same court
and the matter is still pending.
Mr Dennis Tatenda Chadya
[24] Mr Chadya was born and raised in Zimbabwe. In about 2003 his family migrated
to South Africa, settling in Pietermaritzburg, KwaZulu-Natal, leaving him behind in
Zimbabwe to complete his high school education. Their migration was fueled to a large
extent by political violence due to the fact that Mr Chadya’s father was a candidate elect
as a Member of Parliament for Zimbabwe’s main opposition party, the Movement for
Democratic Change. After completing his ordinary and advanced level examinations,
Mr Chadya also fled to South Africa to join his family in Pietermaritzburg and was
granted an asylum seeker permit.
[25] In 2006, Mr Chadya enrolled to study towards a Bachelor of Arts in Philosophy,
Politics and Law with the University of Kwa Zulu-Natal. A year later he switched and
enrolled to study towards an LLB degree which was conferred upon him in 2010. In
the same year, he commenced his articles of clerkship with Hay and Scott Attorneys in
Pietermaritzburg, after being granted a work visa by Home Affairs. Having completed
his articles of clerkship and having passed the attorneys admission examinations ,
TSHIQI J
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Mr Chadya complied with all the requirements for admission and enrolment as a legal
practitioner, except that he is neither a citizen nor a permanent resident.
[26] About September 2012 , Mr Chadya appl ied for a n ex emption to permanent
residence under section 31(2)(b) of the Immigration Act. He received no response from
Home Affairs, despite following up on his application. He launched an application with
the High Court of South Africa, Gauteng Division, Pretoria to compel the Minister of
Home Affairs to make a decision regarding his application. On 27 March 2014 , the
Court issued an order compell ing the Minister to make a decision. The Minister
complied with the order and by letter dated 12 September 2014, informed Mr Chadya
that his application had been declined. The Minister advised Mr Chadya that he was of
the view that there were no special circumstan ces which justified granting Mr Chadya
a permanent residence permit. Additionally, the Minister relied on t he same reasoning
expressed when rejecting Mr Nyamugure’s application, being that the granting of the
permit for the sole purpose of being granted admission to practi se law in South Africa
would circumvent the provisions of the Attorneys Act.
[27] On 16 June 2 015, Mr Chadya married his long -term partner, who is a
South African citizen , and resultantly applied for and was is sued with a temporary
spousal visa. Mr Chadya’s spousal visa allows him to live and work in South Africa
while residing with his wife. He is currently employed at Hay and Scott Attorneys in
the role of a legal advisor. Mr Chadya has filed a notice to abide by this Court’s
decision.
Ms Daphne Makombe
[28] Ms Makombe applied to this Court for direct access for her matter to be heard
together with CCT 315/21, CCT 321/21 and CCT 06/22, alternatively, to be granted
leave to intervene in terms of rule 8 of the Rules of this Court. She was the applicant
in proceedings which were instituted prior to the hearing of this matter before the
High Court of S outh Africa , Gauteng Division, Pretoria and those proceedings have
since been withdrawn. The relief she seeks is similar to that which the applicants seek,
TSHIQI J
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but goes further in that Ms Makombe seeks that the words “lawfully entitled to live and
work in South Africa” be read into section 24(2)(b) during the period of suspension.
Ms Makombe is a Zimbabwean citizen who has met all the requirements to be admitted
as a legal practitioner, conveyancer and notary except that she is not a citizen and is not
in possession of a permanent residence permit. Ms Makombe is currently in
South Africa as a holder of a Zimbabwe Exemption Permit.
[29] Apart from the applicants who are affected directly by the impugned provisions,
several civic society organisations which have an interest in the matter have participated
in this application. Some have participated as amici curiae and one of them, the
Asylum Seeker Refugee and Migrant Coalition (ASRM Coalition) is the fourth
applicant in CCT 06/22.
ASRM Coalition
[30] The ASRM Coalition is a voluntary o rganisation whose members consist of
non-citizens working at various levels in the legal services sector. The membership
consists of law students, legal academics, legal advisors, attorneys, advocates, and the
like. The ASRM Coalition’s primary objective is to co mbat discrimination against
non-citizens through advocacy, intervention and engagement initiatives.
Amici curiae
[31] The first amicus is Scalabrini Centre of Cape Town (Scalabrini), a
non-governmental organisation that aims to protect and promot e the rights of asylum
seekers and refugees. Scalabrini provides litigation services free of charge and is
involved in contributing to policy formulation on refugee and asylum issues. It has been
a party to litigation in numerous matters ranging from the constitutionality of certain
provisions of the Refugees Act 11 to the exclusi on of asylum seekers from Covid-19
relief grants.
11 130 of 1998.
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[32] The second amicus is the International Commission of Jurists ( ICJ), a
non-governmental organisation which has been operating since 1952 in defending
human rights and promoting the rule of law the world over. The ICJ works with
governments to improve the implementation of human rights through the engagement
of judges and lawyers from all parts of the world who have a deep knowledge of the
rule of law and human rights law.
[33] The third amicus is the Pan African Bar Association of South Africa (PABASA),
a voluntary national association of advocates, enrolled under the LPA. PABASA was
established by a group of advocates who sought to create an environment in which
historical issues that confront black and female practitioners could be tackled.
Respondents
[34] As stated, the first and second respondents are the Minister and the LPC ,
respectively. The Minister is cited in his capacity as the executive authority of the
Ministry of Justice and Correctional Services, with the mandate and authority to ,
inter alia, oversee the administration of justice in South Africa and, initiat e and
implement legislation, including legislation dealing with the regulation of the legal
profession. The LPC is cited in its capacity as a statutory body established in terms of
section 4 of the LPA. The LPA has the mandate and authority to, inter alia, regulate the
legal profession, its practitioners, access to the profession, the administration of justice,
as well the advancement of the rule of law. The third, fourth and fifth respondents12 are
not participating in these proceedings.
Litigation history
High Court
[35] The application brought before the High Court centred around Ms Rafoneke and
Mr Tsuinyane, who are the applicants in this Court in CCT 315/21 and CCT 321/21,
12 The third respondent is the Minister of Trade and Industry, the fourth respondent is the Minister of Labour and
the fifth respondent is the Minister of Home Affairs.
TSHIQI J
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respectively. In challenging the constitutionality of section s 24(2)(b) and 115 of the
LPA, the applicants argued that the impugned provisions violate their right to equality
because these differentiate between South African citizens and permanent residents, on
the one hand , and foreigners on the other. They further argued that the provisions
differentiate between foreigners who are already admitted as legal practitioners in their
designated countries, and those who have not been so admitted. They contended further
that there is no rational relationship between the differentiation and a legitimat e
governmental purpose, submitting that even if the Court were to find that there is a
rational relationship, it is not legitimate and the differentiation amounts to
discrimination that is unfair. They argued that the provisions unfairly discriminate
against them on the basis of their social origin and nationality. The substance of the
applicants’ arguments before the High Court was that they should be admitted and
enrolled to practi se as attorneys in South Africa after fulfill ing the requirements in
section 24(2)(a)(c) and (d) of the LPA.
[36] The respondents argued that there is a rational co nnection between the
differentiation and the legitimate governmental purpose it sought to achieve . They
contended that it is clear from the provisions of the Immigration Act, the
Employment Services Act,13 and the LPA that the policy decision is to ensure that work
which does not entail a scarce or critical skill be preserved for citizens or permanent
residents. Because the legal profession is not classified as a critic al skill, allowing
non-citizens to practi se in the country , without due regard to the em ployment and
immigration laws of the country, would render the policy decision taken in terms of the
country’s law s nugatory. The respondents therefore submitted that the applicat ion
should be dismissed because the applicants sought to circumvent employment and
immigration laws of the country through their admission as practising attorneys.
[37] The High Court agreed with the submis sions made by the respondents that the
LPA should not be viewed in isolation and that the impugned provision should be
13 4 of 2014.
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considered against the backdrop of the Constitution , and in conjunction with the
Immigration Act and Employment Services Act. It concluded that the differentiation is
indeed rational and serves a legitimate governmental purpose for the reasons advanced
by the respondents.14
[38] The High Court went further and considered the position of non-practising legal
practitioners. It concluded that section 24 of the LPA is inconsistent with the
Constitution to the extent that it prohibits non -citizens from being admitted as
non-practising legal practitioners.15 It based this conclusion on its finding that a blanket
bar against non-citizens being admitted is irrational, as it does not take into account the
unique circumstances of some non -citizens who would want to be admit ted as
non-practising legal practitioners.16
[39] The High Court declared section 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 . The Court ordered that the 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 stated that a just and
equitable remedy in the circumstances would be that durin g the period of suspension,
non-citizens should be provided with interim relief which is to operate during that
period. The High Court thus ordered that the LPA would be read i n such a manner as
to allow non -citizens to be enrolled as non-practising legal practitioners should they
comply with all the other requirements.
14 High Court Judgment above n 2 at para 64.
15 Id at para 90.
16 Id at para 88.
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This Court
Jurisdiction, leave to appeal and direct access
[40] The High Court , as indicated, declared the provisions of section 24(2) to be
unconstitutional and invalid to a limited extent. Although the applicants are not content
with the limited nature of the declaration, and consequently seek to challenge it, i t is
this Court that has the jurisdiction in terms of section 167(5) to make the final decision
on this declarati on. In addition, permitting a direct appeal to this Court and granting
direct access to Ms Daphne Makombe has the advantage of avoiding delays and
reducing costs, which i s one of the purposes of section 167(6)(b) of the Constitution .
The application also implicates the equality clause in section 9 of the Constitution .
This Court consequently has jurisdiction to deal with the application . Leave to appeal
directly to this Court is granted and so is the application for direct access by the
intervening party.
The impugned provisions
[41] Section 24(1) and (2) of the LPA, provides:
“(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 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 t he rules within the time period
determined in the rules.”
Section 115 reads:
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“Any person who, immediately before the date referred to in section 120(4), was
entitled to be admitted and enrolled as an advocate, attorney, conveyancer or notary is,
after that date, entitled to be admitted and enrolled as such in terms of this Act.”
[42] It is common cause that the impugned provisions , read together , differentiate
between citizens and permanent residents , on the one hand , and non-citizens who are
not permanent residents on the other. The differentiation between non-citizens who are
permanent residents and those who are not so classified affects other groups of migrants,
such as asylum seekers, refugees and undocumented immigrants. The provisions also
differentiate between non-citizens admitted as practitioners in designated jurisdic tions
and non-citizens who have not been so admitted. This however does not necessarily
lead one to the conclusion that they do not withstand constitutional scrutiny. The
Minister has raised two primary legislative purposes for the impugned provisions: first
the reservation of access to the profession to citizens and permanent residents and
secondly, the promotion of the administration of justice and the protection of the public
from unscrupulous and unqualified legal practitioners. It has to be determined whether
the differentiation bears a rational connection to these purposes. If it does not, then
there is a violation of section 9(1) of the Constitution. Even if it does , it might
nevertheless amount to discrimination. It will then be necessary to determine whether
discrimination has been established and if it has, whether such discrimination is unfair.17
This is the gist of the dispute in this application and I will deal with these considerations
in turn.
Submissions
[43] Although the applicants each made separate submissions, they had much in
common. As these matters were consolidated, what will be reflected is a summary of
all the submissions and, if necessary, I will highlight those that are distinctive.
17 Harksen v Lane [1997] ZACC 12; 1998 (1) SA 300 (CC); 1997 (11) BCLR 1489 (CC).
TSHIQI J
20
Applicants
[44] The applicants submit that the impugned provisions create an absolute bar to
entry into the profession by persons who hold visas and permits that allow them to live
and work in South Africa . 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 or permanent residence.
[45] The applicants argue 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 applicants argue that should this
Court accept the propositio n of the Minister 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 is not likely to be achieved. The applicants
submit that th is Court should take into account the fact that the relief sought is not
designed to permit a blanket admission of foreign lawyers to the profession. Instead, it
is restricted only to those who hold the right to work and reside in South Africa but
who, due t o the onerous legislative req uirements of the Immigration Act , can never
obtain permanent residency status , and those who can only qualify for permanent
residence after a certain period of time.
[46] The applicants further argue that the differentiation amount s to discrimination.
They contend that the discrimination is direct, on the ground of social origin and
therefore amounts to discrimination on a listed ground. Accordingly, so argue d the
applicants, unfairness should be presumed. They submit further 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 has a severe impact on
their ability to obtain employment in the legal professi on. The applicants argue that
consequently the discrimination amounts to unfair discrimination as their rights to
equality and dignity are infringed.
TSHIQI J
21
[47] The applicants contend further that the limitation of their rights is not justifiable
under section 36 of the Constitution . They submit that even if it were to be accepted
that the discrimination is aimed at the stated purposes, there are less restrictive means
to achieve those purposes . This, according to the applicants, is because the LPA has
sufficient safeguards for the protection of the public. Furthermore, the Immigration Act
as well as the E mployment Services Act both have measures in place to ensure that
citizens get preference over foreigners in the labour market.
[48] The applicants further contend that the requirements contained in the LPA should
be aligned with those in comparable jurisdictions, especially the Souther n African
Development Community. In those jurisdictions, permanent residence or citizenship is
not a requirement for admission . What is required , is that an applicant be ordinarily
resident. The status of such a person is dealt with exclusively under immigration laws,
and there is uniform treatment of citizens and non-citizens alike.
[49] Finally, the applicants have proposed that a declaration of constitutional
invalidity should be subject to a 24-month suspension, to allow Parliament to deal with
the constitutional defect and that during the period of suspension the provisions should
read:
“(b) is a—
(iv) South African citizen or;
(v) Permanent resident in the Republic or;
(vi) lawfully entitled to live and work in South Africa.”
[50] The intervening party, Ms Makombe’s submissions go further than those of the
applicants and focus on the position of attorneys who have qualified as notaries and
conveyancers. Her counsel submitted that unlike other lawyers who may well work in
other capacities even if they are not admitted, notaries and conveyancers cannot work
in those capacities unless they have been admitted and enrolled as attorneys. Their
qualifications can therefore not be utilised at all unless they have been so admitted.
TSHIQI J
22
The Minister’s submissions
[51] The Minister submits that section 24(2)(b) read with section 115 of the LPA,
does not constitute a blanket ban on all foreign nationals, it merely precludes foreign
nationals who are not permanent residents but only possess for example, study visas or
special exemption permits. The Minister contends that the provisions of the LPA should
not be read in isolation but together with other legislation designated to regulate the
employment of foreign nationals, such as the Immigration Act and the
Employment Services Act. He submits that this is because the issue of the admission
of legal practitioners is directly linked to employment and a person’s immigration
status.
[52] The Minister submits that the impugned section s are in line with governmental
obligations, which seek to ensure that foreign nationals do not circumvent immigration
and labour laws by securing a license to practise law under the auspices of student visas.
He argues that allowing the parties, who have unsuccessfully applied for permanent
residence or exemption , to be admitted as legal practitioners, amounts to such
circumvention.
[53] On the facts, the Minister submits that Ms Rafoneke and Mr Tsuinyane entered
South Africa with student visas, seeking to pursue careers in law and ought to have been
cognisant of the admission requirements in terms of the then applicable Attorneys Act,
alternatively, that they ought to have been aware of the requirements contained in
clause 24 of the Legal Practice Bill 18 at the time of commencing their articles of
clerkship. The Minister also contends that these parties therefore accepted the risk that
even if they satisfied all the other requirements of admission, they would ultimately not
be admitted as legal practitioners in the country due to the fact that they were neither
citizens nor permanent residents.
18 20 of 2012.
TSHIQI J
23
[54] The Minister submits that the differentiation is justifiable, fair and consistent
with section 9(5) of the Constitution and that to this effect, the preamble of the LPA
embraces the provisions of s ection 22 of the Constitution,19 as the LPA was
promulgated to regulate the legal profession in the public interest.
[55] The Minister avers that the applicants failed to address the considerations
outlined by this Court in Harksen, relating to the impact of the discrimination, in that
they failed to e stablish that they are a vulnerable group such as refugees, and that a
further consideration is that the applicants are gainfully employed in South Africa and
have suffered no hardships. Their right to human dignity is therefore not affected.
[56] The Minister also submits that there is no need to treat the applicants differently
and to offer them any special protection other than study visas , because the practise of
law is not listed by Home Affairs as a critical or rare skill justifying a special
dispensation for lawyers . The reason for this is that t here are numerous citizens and
permanent residents who are suitably qualified and are struggling to secure
employment.
[57] The Minister submits that the applicants incorrectly conflate the purpose of
practical voca tional training and the right to be admitted as a legal practitioner.
According to the Minister , the LPA makes no differentiation between citizens and
foreign nationals for purposes of practical vocational training as it is an extension of an
LLB. To the extent that during the training the person is permitted to perform any work
for the public, this is done under the supervision of a duly admitted practitioner , being
their principal. The Minister contends that the level of trust and accountability required
in the practi se of law cannot be achieved if persons are non -citizens or permanent
residents.
19 Section 22 states that:
“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.”
TSHIQI J
24
[58] The Minister submits that the decision to allow foreign nationals already
admitted and enrolled as lawyers in designated countries to practi se in South Africa is
due to comity or reciprocal relations between States, and is a rational decision or policy
adopted by the government. The policy decision is not in the domain of the Court.
The LPC’s submissions
[59] The LPC submits that the LPA regulates entry into the p rofession taking into
consideration the provisions of section 22 of the Constitution, and that this is one of the
grounds informing the LPA’s differentiation between citizens, permanent residents and
foreign nationals. The LPC refers to Final Certification,20 where this Court rejected the
argument that the confinement of the right to the occupational choice of citizens is
constitutionally invalid, as such right is not universally accepted as a fundamental right.
[60] The LPC further relies on Union of Refugee Women21 in contending that the right
to choose a vocation does not fall within a sphere of activity protected by a
constitutional right that is available to refugees and other foreigners. It argues that it is
a well-established principle that no right in the Bill of Rights is superior to others and
that the impugned provisions should be considered with this legal principle in mind.
[61] The LPC referred this Court to Affordable Medicines Trust,22 where it held that
the Constitution requires that the power to regulate the practice of a profession should
be exercised in an objectively rational manner that is related to a legitimate government
purpose. It submitted that once the Court finds that this requirement has been satisfied,
it should not interfere simply because it disagrees with such regulation or considers it
to be inappropriate.
20 Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Amended Text of the
Constitution of the Republic of South Africa, 1996 [1996] ZACC 24; 1997 (2) SA 97 (CC); 1997 (1) BCLR 1
(CC).
21 Union of Refugee Women v Director: Private Security Industry Regulatory Authority [2006] ZACC 23; 2007
(4) SA 395 (CC); 2007 (4) BCLR 339 (CC).
22 Affordable Medicines Trust v Minister of Health [2005] ZACC 3; 2006 (3) SA 247 (CC); 2005 (6) BCLR 529
(CC).
TSHIQI J
25
[62] The LPC contends that the impugned provisions recognise the principles laid
down by this Court in Larbi-Odam.23 This Court held that in extending the right to be
admitted to the legal profession to permanent residence permit holders, it would make
little sense to bar a person who has satisfied immigration laws for permanent residence
and is suitably qualified from entering into the profession.
The amici
[63] All the amici support the case for the applicants. Their submissions also overlap
with those of the applicants and to that extent, will not be repeated.
Scalabrini
[64] Scalabrini’s submissions are aimed at addressing the discriminatory impact of
the impugned provisions on asylum seekers and refugees specifically. It submits that
the provisions undermine the dignity of this vulnerable group, perpetuate xenophobia
against them and contribute to their marginalisation.
[65] Scalabrini urges this Court to tak e into account that sections 22 and 27 of the
Refugees Act entitle refugees to live, study and work in South Africa, without any
restrictions, and to consider the challenged provisions in a manner consistent with the
rights conferred on refuge es in terms o f these provisions . It further su bmits that the
Court should not close its eyes to the reality that asylum seekers and refugees face
insurmountable difficulties in attempting to secure permanent residency , which is
further exacerbated by inadequate administrative support.
23 Larbi-Odam v Member of the Executive Council for Education ( North-West Province) [1997] ZACC 16; 1998
(1) SA 745 (CC); 1997 (12) BCLR 1655 (CC).
TSHIQI J
26
ICJ
[66] The gist of the submissions made by the ICJ is that the International Covenant
on Economic, Social and Cultural Rights (ICESCR),24 the International Covenant on
Civil and Political Rights (ICCPR),25 and the African Charter on Human and Peoples’
Rights (African Charter)26 all impose a duty on State Parties to ensure that all people ,
irrespective of citizenship or whether their status is documented under domestic law or
not, enjoy the right to work.
[67] The ICJ brings the Court’s attention to the UN Draft Universal Declaration on
the Independence of Justice also known as the Singvhi Declaration.27 This Draft affirms
the right of all persons to “effective access to legal services provided by an independent
lawyer of their choice ”28 and should be considered against the backdrop of the
protection of the right of non-citizens to work. Referencing sections 34, 35(3)(f) and
35(2)(b) of the Constitution, the ICJ submits that similar rights are provided for under
international law as per Article 14(3)(d) of the ICCPR and Article 7(1)(c) of the African
Charter. It submits that the prohibition on discrimination on “ethnic or social origin” in
the Constitution should be read to encompass the same prohibitions as international law
prohibitions on “national and social origin”. The ICJ argues further that the LPA places
the app licants in a comparable position to that of the asylum seekers in Somali
Association of South Africa29 and Union of Refugee Women, as the applicants are barred
from admission and practi se due to the absence of permanent residency or
South African citizenship.
24 International Covenant on Economic, Social and Cultural Rights, 16 December 1966.
25 International Covenant on Civil and Political Rights, 16 December 1966.
26 African Charter on Human and Peoples’ Rights, 27 June 1981.
27 UN Draft Universal Declaration on the Independence of Justice by the Special Rapporteur, L.M. Singhvi,
24 August 1987.
28 Id at General Principle 76.
29 Somali Association of South Africa v Limpopo Department of Economic Development Environment and Tourism
[2014] ZASCA 143; 2015 (1) SA 151 (SCA).
TSHIQI J
27
PABASA
[68] PABASA aligns itself with the applicants’ submissions that the bar to admission
to the profession of law graduates qualified in South Africa infringes the right to
equality and human dignity. It further submits that this bar frustrates diversity in
nationality in the legal profession in the context of the increasingly cross-border and
globalised nature of the commercial, public and human rights practice. PABASA avers
that the Minister has submitted no evidence to prove that the proportion of foreign
graduates with South African law degrees is so great so as to open the floodgates and
that foreign nationals lack the requisite commitment t o the country. PABASA further
submits that the impugned provisions foster and perpetuate notions that non-citizens or
non-permanent residents are prone to exposing clients to prejudice and fraud . This
according to PABASA perpetuates xenophobia against non-citizens or non-permanent
residents.
Analysis
Are the impugned provisions consistent with section 9 of the Constitution?
[69] Section 9(1) of the Constitution provides that “everyone is equal before the law
and has the right to equal protection and benefit of the law”. Section 9(3) prohibits
direct and indirect discrimination by the State against anyone on any of the grounds
listed therein. It provides:
“The state may not unfairly discriminate directly or indirectly against anyone on one
or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social
origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture,
language and birth.”
Section 9(5) provides that “discrimination on one or more of t he grounds lis ted in
subsection (3) is unfair unless it is established that the discrimination is fair.”
[70] In Harksen, this Court laid down the following helpful test for assessing whether
differentiation amounts to discrimination and whether the discrimination is unfair:
TSHIQI J
28
“(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? If it does not , then there is a violation of [section 9(1)]. Even if it
does bear a rational connection, it might nevertheless amount to discrimination.
(b) Does the differentiation amount to unfair discrimination? This requires a
two-stage analysis:
(i) Firstly, does the differentiation amount to ‘discrimination’? If it is on
a specified ground, then discrimination will have been established. If
it is not on a specified ground, then whether or not there is
discrimination will depend upon whether, objectively, the ground is
based on attributes and characteristics which have the p otential to
impair the fundamental human dignity of persons as human beings or
to affect them adversely in a comparably serious manner.
(ii) If the differentiation amounts to ‘discrimination’, does it amount to
‘unfair discrimination’? If it has been foun d to have been on a
specified ground, then unfairness will be presumed. If on an
unspecified ground, unfairness will have to be established by the
complainant. The test of unfairness focuses primarily on the impact of
the discrimination on the complainant and others in his or her situation.
If, at the end of this stage of the enquiry, the differentiation is found
not to be unfair, then there will be no violation of [section 9(3) or
section 9(4)].
(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.”30
[71] The first question as to whether there is differentiation on the basis of citizenship
and permanent residency is not controversial and has been readily conceded by the
respondents. It thus has to be answered in the affirmative. The next question is whether
the differentiation bears a rational connection to a legitimate government purpose? If
the differentiation does not bear a rational connection to a legi timate government
30 Harksen above n 17 at para 54.
TSHIQI J
29
purpose, there i s a violation of section 9(1). However, even if it does, it might
nevertheless amount to discrimination. The Minister has proffered several grounds
which he submits render the differentiation rational and collectively serve a legitimate
governmental purpose for the differentiation. I deal with these in sequence.
(a) Government’s obligations to protect the interests of citizens and permanent
residents
[72] South Africa, as a sovereign State, has an obligation to protect the interests of its
citizens. It has entrenched the rights of its citizens to choose their trade, occupation or
profession freely through section 22 of t he Constitution. This section also empowers
the State to enact legislation to regulate freedom of trade, occupation and profession. It
provides:
“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.”
[73] Section 22 is silent re garding non-citizens and, consequently, does not afford
that right to them . Section 24(2) of the LPA is legislation that regulates the legal
practice, legally related occupations and the pr ofession in general . We know that
internationally the practice of reserving the right of occupational choice to citizen s is
not uncommon in democracies . The second part of section 22 indicates that the right
of every citizen to choose their occupation is subject to the recognition of the regulatory
competence of the state. The regulatory competence of the state is thus to be exercised
in a manner that is consistent with a citizen’s right to choose their profession. This
regulatory competence cannot be said to extend to non -citizens and their choice of
profession as section 22 is a right in the Constitution, that does not extend to them. This
was made clear by this Court, in Final Certification, where it held that there is no duty
to extend the right to freedom of trade, occupation and profession to non -citizens.
TSHIQI J
30
Relying on the jurisprudence of the United States Supreme Court,31 our Supreme Court
of Appeal in Watchenuka,32 stated that it is accepted in international law that every
sovereign nation has the power to admit foreigners only in such cases and upon such
conditions as it may see fit to prescribe , recognising that there are duties that are
attached to the State in respect of refugees and asylum seekers. 33 The Supreme Court
of Appeal concluded that there is no doubt that the right to choose a trade or occupation
is restricted to citizens by section 22 of the Constitution.
[74] I did not understand the complaint to be that a sove reign state has no power to
pass laws regulating a certain profession or trade. The complaint seems to be rather
focused on whether, in doing so, the State has acted in an objectively rational manner
that is related to a legitimate governmental purpose as stated i n
Affordable Medicines Trust.34 Therefore, as long as the power to regulate is exercised
in an objectively rational manner related to a legitimate governmental purpose, a court’s
interference would not be warranted. It is also helpful to highlight that i n Prinsloo35
this Court further stated that
“[the state] should not regulate in an arbitrary manner or manifest ‘naked preferences’
that serve no legitimate governmental purpose, for that would be inconsistent with the
rule of law and the fundamental premises of the constitutional State. The purpose of
this aspect of equality is, therefore, to ensure that the State is bound to function in a
rational manner. This has been said to promote the need for governmental action to
relate to a defensible vision of the public good, as well as to enhance the coherence and
integrity of legislation.”36
31 Nishimura Ekiu v. United States 142 U.S. 651, 12 S. Ct. 336 (1892) at 659. Reference to the United States
Supreme Court’s jurisprudence was referred to with approval in the Final Certification above n 20 at para 21
footnote 31.
32 Minister of Home Affairs v Watchenuka [2003] ZASCA 142; 2004 (4) SA 326 (SCA).
33 Id at paras 29 and 36.
34 Affordable Medicines Trust above n 22 at para 73.
35 Prinsloo v Van der Linde [1997] ZACC 5; 1997 (3) SA 1012 (CC); 1997 (6) BCLR 759 (CC).
36 Id at para 25.
TSHIQI J
31
[75] It should thus be determined whether the State, in enacting section 24(2), is
effectively regulating the legal profession in an arbitra ry manner or manifests “naked
preferences” that serve no legitimate governmental purpose. If I conclude that this is
so, I would have to conclude that the impugned provisions are inconsistent with
section 9(1). I proceed to deal with this question.
[76] In order to assess the rationality of the decision, the provisions of section 24(2)
cannot be considered without due regard to s ection 22 of the Constitution , which, as
already stated, empowers the state to regulate the pro fession and trade. This Court, in
Grootboom37 held that no right in the Constitution should be elevated above other rights
and that the rights contained in the Bill of Rights are mutually reinforcing. What is
significant about the provisions of section 24(2) of the LPA is that, to the extent that it
restricts the right to be admitted as a legal practitioner to citizens, it reflects the same
restriction contained in section 22 of the Constitution. It should however be highlighted
that because citizens have a right of choice under section 22, the State, in enacting
legislation, is required to respect this right. There is no issue that the LPA does so. The
Legislature is therefore at liberty to decide how far to extend admission into the legal
profession to non -citizens and it has chosen to draw the line at permanent residents.
That the Legislature has not gone further to include refugees and asylum seekers cannot
be challenged by non-citizens under section 22. They do not enjoy a section 22 right.
[77] Quite axiomatically, however, the fact that non -citizens do not have rights that
accrue under section 22, does not mean they are not entitled to enter into certain
categories of professions in South Africa. But nothing stops the Legislature from
barring such entry. That does not mean that in doing so, the Legislature is at liberty to
act in any way it chooses. If, for example, the Legislature allowed all non-citizens to
be admitted as legal practitioners, save for Japanese citizens, that would be prima facie
arbitrary and unlikely to serve any legitimate governmental purpose.
37 Government of the Republic of South Africa v Grootboom [2000] ZACC 19; 2001 (1) SA 46 (CC); 2000 (11)
BCLR 1169 (CC) at para 23.
TSHIQI J
32
[78] For purposes of section 9(1), the question is whether, whilst permitting some
non-citizens to be admitted (in this instance, permanent residents) and not others ,
section 24(2) of the LPA serves a legitimate government purpose . It must be accepted
that the State has a right, as stated in Watchenuka, to admit foreigners only in such cases
and upon such conditions as it may see fit to prescribe. And once it is also accepted as
stated in Final Certification, that the country has no duty to extend the right to freedom
of trade, occupation and profession to non-citizens, it cannot be gainsaid that it may be
rational for the State to adopt legislation which has, as its legitimate object, the
restriction of access to a profession. And section 24(2) is such legislation.
[79] Section 24(2) is however more expansive than section 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. Counsel for the amici submitted that the protection provided by
section 22 of the Constitution and section 24(2) of the LPA should be extended to
foreigners who are ordinarily resident in South Africa with the right to work. This group
of persons, according to the amici, has the same fixity of connection to South Africa as
permanent residents, as the persons in this group regard South Africa as their home and
have no hope of ever returning to their countries. This group would include refugees
and asylum seekers.
[80] The problem with the submissions in this regard is that the distinction between
foreigners who have been granted permanent residence in th is country and those who
have not, is exactly the fact that these other groups have not been granted the same
status as permanent residents . The differen ce in status carries different rights and
corresponding obligations. The rationale for accepting permanent residents is that they
have been granted a right to live and work in the country on a permanent basis, subject
to the country’s immigration laws . The same cannot be said for non-citizens who are
refugees, or who are on study or work visas.
TSHIQI J
33
[81] Although t here may well be some merit to the submission that some of the
foreign nationals in these latter categories have been in the country for a long time and
have no hope of re turning to their home countries, they are offered limited protection
that requires them to return to their countries of birth if circumstances change. Some
of them may still be eager to go back home, once there is a change in the circumstances
that compelled them to flee. Those permitted to study or are given residential status in
order to work are permitted to do so for a limited time and purpose. Hence they do not
have the fixity of connection to the country and the right to work on a more permanent
basis that makes their admission desirable . 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. The parameters
of what would be referred to as “ordinarily resident” is not clear, and it is equally unclear
how this test would be used by a court to determine whether a particular applicant
qualifies as such.
[82] As the facts in several of the applications show, the circumstances of the
respective foreigners are different and their rights to remain in the country legally are
located in different permits. Importantly, in Mr Nyamugure’s situation, Home Affairs
settled the matter and undertook to grant him permanent residenc e. For reasons not
apparent to this Court, it appeared to renege on this under taking. The simple point is
that the Legislature has differentiated between permanent residents and other kind s 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. This is primarily a policy decision that serves a legitimate
government purpose.
[83] It is also important to highlight that section 31(2)(b) of the I mmigration Act
allows for a foreign national to be granted an exemption to permanent residency where
special circumstances exist. This option, as illustrated by the facts in Mr Nyamugure’s
case, is available . It is uncontroverted that if an applicant is granted the status of
TSHIQI J
34
permanent residency, he or she would then qualify for admission in terms of the
impugned provision.
[84] As stated above, the expansive nature of the protection offered to permanent
residents in terms of section 24(2) of the LPA is not being attacked. Instead we are
being asked to hold that the section’s failure to encompass other non -citizens is
inconsistent with the Constitution . To the extent that the differentiation is challenged
on the basis that foreign nationals who have been admitted as legal practitioners in
foreign designated jurisdictions are permitted to retain the right to continue practising
in the country, it is import ant to understand that the provision in this regard simply
preserves the rights of those practitioners. It does not require that they should be
admitted as such in the country. It is a saving provision from prior enactments and thus
preserves vested righ ts but does not accord these rights going forward. These rights
arose for reasons of reciprocity under trade and foreign policy commitments.
[85] It is also helpful to consider the obligations of South Africa in terms of the
General Agreement on Trade in Serv ices (GATS).38 It seems that o ne of the ways in
which South Africa undertakes services reciprocally is that it permits admitted legal
practitioners from designated countries to practise law in South Africa. It is the foreign
admission that qualifies the legal practitioners and it is founded on the basis of the
reciprocal duties between the States.
[86] 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. As said in Affordable Medicines Trust, whether this Court views this stance
as appropriate is not for the Court to consider, but rather whether objectively viewed, it
is rational. It can thus be concluded in this regard that to the extent t hat section 24(2)
mirrors the provisions of section 22, it cannot be said to be unconstitutional, but that to
38 General Agreement on Trade in Services , 15 April 1994 ; Particula rly Arti cle II which addresses the
Most-Favoured Nation principle which states that Member States each ‘accord unconditionally to services and
service suppliers of any other Member treatment no less favourable than that it accords to like services and service
suppliers of any other country.’
TSHIQI J
35
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.
[87] A comparison of the South African law with Canadian and Indian jurisprudence
on this aspect is helpful. In Skapinker,39 a Canadian case, at issue was a requirement of
Ontario's Law Society that members of the bar of Ontario ought to be citizens of
Canada. Mr Skapinker, a permanent resident of Canada, who qualified for admission
to the Ontario bar in all other respects, was not a citizen of Canada and was, thus,
precluded from practising as a lawyer in Ontario. On being refused admission to the
bar purely on the basis that he was not a citizen of Canada, Mr Skapinker approached
the Canadian courts for a declaration that the citizenship requirement was invalid on the
grounds that it violated section 6(2)(b) of the Canadian Charter of Rights and Freedoms
by denying him, a permanent resident of Canada, the right to pursue the gaining of a
livelihood in Ontario.40 This argument was accepted by the Ontario Court of Appeal.
However, the Supreme Court, in a unanimous decision, rejected it and held that
section 6(2)(b) of the Charter did not confer an unqualified right to pursue the gaining
of a livelihood in the province.
[88] In India, the Supreme Court in Bar Council of India41 grappled with the question
whether foreign law firms or lawyers were permitted to practi se i n India without
fulfilling the requirements of the Advocates Act42 and the Bar Council of India Rules.43
The parties who had taken exception to being barred from practicing in India included
a number of parties who were both law firms and individual lawyers from the United
Kingdom, the United States, France and Australia . To practise law in India, a person
has to be an Indian citizen and should possess a degree in law from a recogni sed
university in India. Nationals of other countries could be admitted as advocates in India
39 Law society of Upper Canada v Skapinker [1984] 1 SCR 357.
40 Part 1 of the Constitution Act, 1982, Canadian Charter of Rights and Freedoms.
41 Bar Council of India v A.K. Balaji C.A. No. – 007875-007879 / 2015.
42 The Advocates Act, 1961.
43 Rules made by the Bar Council of India in exercise of its rule-making powers under the Advocates Act, 1961.
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only if citizens of India are permitted to practi se as such in their countries. An
individual who possesses a f oreign degree of law from a university outside India
requires recognition by the Bar Council of India; this is in line with sections 24 and 29
of the Indian Advocates Act.
[89] The argument advanced by the foreign law firms was, inter alia, that there was
no bar to a company carrying on consultancy or support services in the field of
protection and management of intellectual, business and industrial proprietary rights or
carrying out market service and market research, publication of reports, journals and
more. Additionally, a person not appearing before courts or tribunals and not g iving
legal advice cannot be said to be practi sing law. Another foreign law firm submitted
that there was no violation of the law in giving advice on foreign law even if based in
India because even Indian lawyers are permitted to practise outside India. It highlighted
that it did not have a law office in India and did not give advice on Indian laws. The
High Court of India upheld the arguments advanced by the foreign law firms and
lawyers in that the services they offered could not be treated as the practise of law in
India. On appeal to the Supreme Court of India, that Court held that the practise of the
profession of law includes litigation as well as non-litigious work.44 The Supreme Court
of India cautioned that-
“[the] S cheme in Chapter -IV of t he Advocates Act makes it clear that advocates
enrolled with the Bar Council alone are entitled to practice law, except as otherwise
provided in any other law. All others can appear only with the permission of the court,
authority or person before whom the proceedings are pending. Regulatory mechanism
for conduct of advocates applies to non-litigation work also. The prohibition applicable
to any person in India, other than [an] advocate enrolled under the Advocates Act,
certainly applies to any foreigner also.”45
The Supreme Court held that as a result foreign lawyers could not practise law in India
without observing the principle of reciprocity. Both these cases fortify the reasoning
44 Bar Council of India above n 41 at para 39.
45 Id at para 40.
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that law may be enacted to regulate entry into a profession and States are entitled to
restrict such entry on the basis of citizenship.
(b) Optimisation of opportunities for law graduates
[90] The Minister further submitted, as one of the purposes of the provisions, the
optimisation of opportunities for law graduates. It is to this that I now turn. The
weakness with th is proffered purpose is that the very South African State allow s
non-citizens and non -permanent residents to study law and graduate in universities
across the country. They are also permitted to serve articles of clerkship and to undergo
pupillage. Although the policy may be attacked on this basis, the counter argument in
its favour is that when students who are neither citizens nor permanent residents make
the choice to study in the country and then proceed to d o vocational training such as
articles and pupillage, they make this choice fully conversant with the fact that they are
not eligible for admission; or at the very least, they ought to be conversant . This is all
the more, given the fact that their respect ive study visas only allow them to undergo
training in their field of study, practical vocational training being one such type of
training, and does not grant them the entitlement to be admitted as practising legal
professionals. Furthermore, the fact tha t they are not eligible for admission does not
deprive them of the right to be employed in other capacities, provided they are in
possession of the necessary documentation that permits them to do so legally.
(c) Inherent risks of fraud and accountability
[91] The Minister has also argued that there are inherent risks of accountability in
allowing persons who are neither citizens nor permanent residents to be admitted and
practise as lawyers in the country. This argument is fundamentally fl awed. 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. My conclusion on the accountability argument
by the Minister is that it lacks substance. But that does not affect my main conclusion
that the differentiation bears a rational connection to a legitimate government purpose.
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[92] This is not the end of the enquiry. As stated in Harksen, even if the
differentiation bears a rational connection to a legitimate government purpose, it might
nonetheless amount to discrimination.
Does the differentiation amount to discrimination?
[93] The first question here is whether the differentiation is on a specified ground.
Citizenship is not one of the listed grounds in section 9(3) of the Constitution. This
Court said as much in Larbi-Odam.46 The applicants submit that the differentiation on
the basis of citizenship is on the listed ground of social origin. I am not persuaded that
citizenship may be classified as falling under social origin as the applicants contend.
Currie and De Waal47 suggest that social origin refers to concepts such as class, clan or
family membership. Citizenship, on the other hand , defines a relationship between a
person and a state. Citizenship may occur by reason of birth, ties of blood,
naturalisation and the like. But it is not a matter of social origin but national origin.
People of diverse social origins may be citizens of the same state. Just as people of the
same social origin may be citizen s of different S tates. The one category does no t
determine the other. As citizenship is not one of the specified grounds, a further enquiry
is required in order to determine whether discrimination has been established.
[94] As stated in Larbi-Odam, the further enquiry is whether objectively, the ground
is based on attributes and characteristics which have the potential to impair the
fundamental human dignity of persons as human beings or to affect them adversely in
a seriously comparable manner.48 In Larbi-Odam, this Court concluded that it did. It
based its reasoning on the fact that foreign citizens are a minority in all countries, and
have little political muscle. It will be remembered that Larbi-Odam dealt with the rights
46 Larbi-Odam above n 23 at paras 19 – 20.
47 Currie and De Waal The Bill of Rights Handbook 6 ed, (Juta & Co Ltd, Cape Town 2013) at 236, n 129.
48 Larbi-Odam above n 23 at para 19.
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of permanent residents in comparison with citizens. The Court associated itself with
the views expressed in the Canadian Supreme Court in Andrews,49 which stated:
“Relative to citizens, non-citizens are a group lacking in political power and as such
vulnerable to having their interests overlooked and their rights to equal concern and
respect violated. They are among ‘those groups in society to whose needs and wishes
elected officials have no apparent interest in attending.”50
[95] This Court also went on to say that the second factor is that citizenship is a
personal attribute which is difficult to change. In this regard, it referred to the views
expressed in Andrews to the effect that the characteristic of citizenship is one typically
not within the control of the individual, which is not alterable by conscious action, and
in some cases not alterable , except on the basis of unacceptable costs. Based on the
above sentiments expressed by this Court in Larbi-Odam about the constraints
non-citizens suffer in a f oreign country, I conclude that differentiation on the basis of
citizenship is based on attributes and characteristics that can in certain circumstances
impair the fundamental human dignity of persons as human beings or affect them
adversely in a seriously comparable manner. I will assume without deciding that the
differentiation amounts to discrimination.
Is the discrimination unfair?
[96] As stated in Harksen, the test of unfairness primarily focuses on the impact of
the discrimination on the complainant and others in his or her situation. If, at the end
of this stage of the enquiry, the differentiation is found not to be unfair, then there will
be no violation of section 9(3) or section 9(4).
[97] Counsel for the applicants submitted that the discrimination impa irs the human
dignity of the applicants. According to counsel, this is because the impugned provisions
restrict the rights of the applicants to be admitted into the legal profession. However,
49 Andrews v Law Society of British Columbia (1989) 56 DLR (4th) 1.
50 Id at 32.
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even if we assume that the right to dignity is engaged, this submission overlooks the
fact that the restrictions do not prevent the applic ants from ever working in
South Africa, and doing so by providing legal services that do not require admission.
Section 24(2) of the LPA is narrowly tailored to the admission of l egal practitioners.
The limitation only restricts them fr om being admitted as legal practitioners in
South Africa. It therefore only reserves the competency or qualification to be an
admitted legal practitioner and to practi se in that capacity to citizens and permanent
residents and does not operate as a blanket ban to employment in the profession as a
whole.
[98] In Watchenuka, the Supreme Court of Appeal also addressed a different scenario.
There every asylum seeker was prevented, by the conditions contained in their permit,
from taking up any employment or studying, pending the outcome of their application
for asylum. The Supreme Court of Appeal found this to be unacceptable in that the total
exclusion from employment rendered an asylum seeker destitute thereby rendering such
a person to turn to crime, begging or foraging. 51 In this instance, the impugned
provisions do not have that effect.
[99] In Union of Refugee Women, this Court in assessing wh ether the provisions of
section 23(1) of the Private Security Industry Regulation Act52 (Security Act) amounted
to unfair discrimination, took into account as some of the relevant factors, the fact that
the restriction is not a blanket ban on employment in general but is tailored for the
purpose of screening entrants to the industry. Also, this matter is distinguishable from
Union of Refugee Women in the following respects: Some of the applicants in the
present matter are in possession of student visas, are gainfully employed in
South Africa, being desirous of pursuing careers in law and have suffered no hardship.
On the other hand, the second to thirteenth applicants in Union of Refugee Women were
all refugees. Secondly, and unlike the applicants in the present matter who were never
51 Watchenuka above n 32 at para 32.
52 56 of 2001.
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admitted as legal practitioners, the second to sixth applicants in the Union of Refugee
Women case were initially registered by the Authority as security service providers in
terms of section 23 of the Security Act. However, they all received notice of intention
to withdraw their registration on the basis that it was granted in error, inasmuch as they
were neither citizens nor permanent residents of South Africa, as required by
section 23(1)(a) of the Security Act, and they were further asked to file submissions as
to why the Authority should not withdraw their registration. The applicants’
submissions in that matter stated that, a person who is neither a citizen nor a permanent
resident of South Africa may be registered as a security service provider in l ight of the
wording of section 23(6) of the Security Act. Their submissions were unsuccessful and
the Authority withdrew the registration accordingly.
[100] Another distinguishing factor is that the Security Act had a provision
encapsulated in section 23(6) that despite the requirement of, inter alia, being a citizen
of or permanent resident in South Africa, the Authority may on good cause shown and
on grounds on which are not in conflict with the purpose of the Security Act and the
objects of the Authority, re gister any applicant a s a security service provider. This
appears to be a n exemption clause in that legislation as the power conferred upon the
Authority does not refer specifically to foreign nationals, nor does it refer to it being
required to engage wi th another department or body on the matter - it appears to be a
wide discretion. On the other hand, in terms of section 24(3) of the LPA, the power
afforded to the Minister to make regulations in respect of admission and enrolment of
foreign legal practitioners is not so generous.
[101] As previously indicated, the applicants’ employability in different capacities that
do not require admission as a legal practitioner is not curtailed by section 24(2)(b) of
the LPA as currently framed. They are therefore not left destitute with no alternative
source of employment. The activity which the applicants seek constitutional protection
for is the enjoyment to choose 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.
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[102] It follows that as t he 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. I would thus dismiss the appeal.
Confirmation of the order of invalidity
[101] In light of the above, the application for confirmation of constitutional invalidity
falls to be dismissed. I do not see the point in declaring the provisions inconsistent with
the Constitution to the extent that non-practising lawyers are not eligible for admission.
Costs
[103] The principles laid down in Biowatch are apposite in this matter.
[104] I make the following order:
1. The appeal against the order of the High Court of South Africa, Free State
Division, Bloemfontein is dismissed.
2. The declaration made by the High Court that s ection 24(2) of the
Legal Practice Act 28 of 2014 is 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 is not confirmed.
For the Applicants in CCT 315/21
and CCT 321/21:
M S Mazibuko and P G Chaka
instructed by Mazibuko and Wesi
Incorporated.
For the Applicants in CCT 06/22:
S Budlender SC, J Brickhill and
T Mafukidze instructed by Tshikosi
Attorneys Incorporated.
For the First, Third, Fourth and Fifth
Respondents in CCT 315/21 and
CCT 321/21:
K Moroka SC and T Ntoane instructed
by State Attorney, Bloemfontein.
For the Second Respondent in
CCT 315/21 and CCT 321/21:
N Snellenburg SC, I Macakati and
N Phakama instructed by Symington De
Kok Attorneys.
For the First Respondent in CCT 06/22: K Moroka SC, M Lekoane, A Kessery
and T Ntoane instructed by
State Attorney, Pretoria.
For Second Respondent in CCT 06/22: N Snellenburg SC, I Macakati and
N Phakama instructed by Rooth and
Wessels Attorneys.
For the Fourth and Fifth Respondents in
CCT 06/22:
M S Mazibuko and P G Chaka
instructed by Mazibuko and Wesi
Incorporated.
For the Intervening Party in
CCT 315/21, CCT 321/21 and
CCT 06/22:
R Richards instructed by Coetzee
Attorneys.
For the First Amicus Curiae in
CCT 315/21, CCT 32 1/21 and
CCT 06/22:
G Marcus SC, C McConnachie and
A Cachalia instructed by Norton Rose
Fulbright South Africa Incorporated.
For the Second Amicus Curiae in
CCT 315/21, CCT 321/21 and
CCT 06/22:
T Pooe instructed by Lawyers for
Human Rights.
For the Third Amicus Curiae in
CCT 315/21, CCT 321/21 and
CCT 06/22:
M Sikhakhane SC and S Mbeki
instructed by Harris Nupen
Molebatsi Incorporated.