The Legal Practice Act (LPA) does not permit foreign nationals to be admitted and authorised to be enrolled as legal practitioners (be it practising or non-practising). Lesotho nationals and University of the Free State law graduates Relebohile Rafoneke and Sefoboko Tsiunyane first challenged the LPA before a full bench of the Free State High Court, which declared in September last year that the act was unconstitutional and invalid to the extent that it does not allow foreigners to be admitted and authorised to enrol as non-practising legal practitioners.
The high court also found that the differentiation served a legitimate government purpose by precluding foreign nationals who are not permanent residents from being admitted as practising legal practitioners and therefore did not violate the Constitution’s equality clause, which states that everyone is equal before the law and has the right to equal protection and benefit of the law. In its judgment, the high court ordered non-citizens to be admitted as legal practitioners but authorised the Legal Practice Council (LPC) to admit foreign nationals as non-practising legal practitioners if they are duly qualified, are fit and proper persons to be admitted and have submitted to the LPC the required information within the stipulated period of time.
Aggrieved, Rafoneke and Tsiunyane approached the Constitutional Court to appeal the high court ruling and were joined by Zimbabwean lawyers Bruce Chakanyuka, Nyasha Nyamugure, Dennis Chadya and Daphne Makombe. However, the apex court dismissed their appeal on Tuesday. ”The declaration made by the high court that section 24(2) of the LPA 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,” wrote Justice Zukisa Tshiqi in a unanimous judgment. Section 24(2) of the LPA makes provision for the high court to only enrol as legal practitioners, conveyancers or notaries who are South African citizens or permanent residents.
In addition, the act allows Justice and Correctional Services Minister Ronald Lamola after consultation with his trade, industry and competition counterpart Ebrahim Patel and the LPC to make regulations determining the right of foreign legal practitioners to appear in South African courts as well as regulate the provision of legal services by foreign legal practitioners and their admission and enrolment. Lamola told the apex court that there was no need to treat the group of legal practitioners differently and offer them any special protection other than study visas because the practice of law is not listed by the Department of Home Affairs as a critical or rare skill justifying a special dispensation for lawyers.
Justice Tshiqi found that the foreign legal practitioners’ employability in different capacities that do not require admission as legal practitioners is not curtailed by the LPA as it is currently framed. ”They are therefore not left destitute with no alternative source of employment. The activity which the applicants (Rafoneke, Tsiunyane, Chakanyuka, Nyamugure, Chadya and Makombe) 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,” the judge explained.
Justice Tshiqi found that as the discrimination is not unfair; there is no violation of the Constitution. She continued: “In light of this conclusion it is not necessary to determine whether the discrimination is justified. I would thus dismiss the appeal.”
SOURCE: The Saturday Star