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Non-citizen law graduates not permitted to be admitted as legal practitioners in SA, court rules

The Constitutional Court has ruled that non-citizens are not permitted to be admitted as legal practitioners in SA. Picture: File

The Constitutional Court has ruled that non-citizens are not permitted to be admitted as legal practitioners in SA. Picture: File

Published Aug 4, 2022

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Pretoria - The Constitutional Court has ruled that non-citizens of this country are not permitted to be admitted as legal practitioners in South Africa.

The court overturned an earlier ruling that had declared the Legal Practice Act unconstitutional where it only allowed South African citizens or permanent residents to be admitted as lawyers.

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The legal battle by foreign nationals who wanted to be admitted to the legal profession in South Africa was among others sparked by Lesotho nationals Relebohile Rafoneke and Sefoboko Tsiunyane.

They had obtained their LLB degrees in South Africa and also completed their articles and vocational training.

Their applications to be admitted as attorneys of the high court were dismissed because they are neither South African citizens nor permanent residents, as required by section 24(2)(b) of the Legal Practice Act 28.

The high court in Bloemfontein earlier declared the provisions of section 24(2) unconstitutional and invalid, but only to the extent that they did not allow foreigners who were not permanent residents to be admitted and authorised to be enrolled as non-practising legal practitioners.

Three Zimbabwean nationals who found themselves in a similar position, had also earlier turned to the court, and their application was heard together with that of the Lesotho nationals.

One of them stated that he had applied for, and was issued with, a Zimbabwe special permit, which upon periodic renewal came to be known as the Zimbabwe Exemption Permit.

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In 2019 he obtained his LLB degree at Unisa and was accepted into the pupillage programme for advocates, administered by the Gauteng Society of Advocates.

He went through the one-year training and completed all the requirements for admission as a legal practitioner. He is, however, 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.

The applicants argued that the impugned provisions violated their right to equality because these differentiated between South African citizens and permanent residents, on the one hand, and foreigners, on the other.

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They further argued that the provisions differentiated between foreigners who were already admitted as legal practitioners in their designated countries, and those who had not been admitted.

They contended further that there was no rational relationship between the differentiation and a legitimate governmental purpose.

In their submission, they said that even if the court was to find that there was a rational relationship, it was not legitimate and the differentiation amounted to unfair discrimination.

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They argued that the provisions unfairly discriminated against them on the basis of their social origin and nationality.

The court, however, found that the applicants’ employability in different capacities that did not require admission as a legal practitioner was not curtailed by section 24(2)(b) of the act.

They were therefore not left destitute with no alternative source of employment.

The court also found that the discrimination was not unfair, and there was no violation of their constitutional rights.

Justice Zukisa Tshiqi, who wrote the judgment, said that while the right to choose your trade, occupation or profession freely was enshrined in Section 22 of the Constitution, this section was silent regarding non-citizens and consequently did not afford that right to them.

“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,” she said.

The court subsequently did not confirm the order of invalidity made earlier by the Free State High Court.

The chairperson of the Legal Practice Council, Kathleen Matolo-Dlepu, told the Pretoria News that they had acknowledged, noted and appreciated the ruling of this important matter by the Constitutional Court.

“We will continue to advance and maintain the standard of the profession in terms of the Legal Practice Act, and most importantly the country’s Constitution,” she said.

Pretoria News

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