Barring foreign nationals from being admitted to legal profession not unconstitutional - ConCourt

A group of foreign nationals, who were fighting to be admitted and enrolled as legal practitioners in South Africa, but lack permanent residency, lost their bid in the Constitutional Court on Tuesday.

The court dismissed the group's leave to appeal against a Free State High Court judgment.

It also declined to confirm that Section 24(2) of the Legal Practice Act 28 of 2014 (LPA) was unconstitutional and invalid to the extent that it did not allow foreigners to be admitted and authorized to enroll as non-practicing legal practitioners.

In September last year, the Free State High Court in Bloemfontein declared that section unconstitutional and invalid but found the discrimination in Section 24(2)(b) of the LPA was fair.

One of the applications was brought by Relebohile Cecilia Rafoneke and Sefoboko Phillip Tsuinyane, both Lesotho nationals, who wanted to practice in South Africa.

Another was brought by Zimbabwe nationals Bruce Chakanyuka, Nyasha James Nyamugure and Dennis Tatenda Chayda, as well as an asylum seeker refugee and migrant coalition, all facing the same issues as Rafoneke and Tsuinyane.

The respondents were the justice and correctional services minister and the Legal Practice Council. 

Rafoneke and Tsuinyane both studied at the University of the Free State, where they obtained LLB degrees.

They entered into contracts of articles of clerkship, completed vocational training, and passed the practical examination for attorneys.

When they applied to be admitted and enrolled as attorneys of the high court, their applications were dismissed because they were neither South African citizens nor lawfully admitted to this country as permanent residents.

The applicants challenged the constitutionality of sections 24(2)(b) and 115 of the LPA, arguing that the impugned provisions restricted their rights to be admitted into the legal profession.

On Tuesday, the court said: "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 the Constitution."

The court said section 24(2) of the LPA is legislation that regulates practice, legally-related occupations and professions in general.

It, however, found that the "regulatory competence exercised 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".

But it said the fact that non-citizens do not have rights that accrue under section 22 does not mean they are not entitled to enter certain categories of professions in the country.  
In addition, the Constitutional Court said the differentiation between citizens and permanent residents on one hand, and foreign nationals on the other, does not amount to unfair discrimination.

According to the judgment, the limitation created by section 24(2) is "narrowly tailored" to the admission of legal practitioners and does not operate as a blanket ban on employment in the profession.

"Therefore, the activity which the applicants sought constitutional protection for is the enjoyment to choose one's vocation and, as such, this cannot be held to amount to unfair discrimination as that right does not fall within a sphere of activity protected by a constitutional right available to foreign nationals, such as the applicants."

Justice Minister Ronald Lamola welcomed the judgment, saying it "affirmed that section 24 (2) of the Legal Practice Act is a legitimate and a rational way of regulating entry into the legal profession".

"This is a matter that has been a subject of great debate and public interest, we welcome the courts decision which has confirmed that there is no violation of section 9(3) and  9 (4) of our Constitution," Lamola said.