The Rafoneke Judgement & Alternatives for Foreign Nationals

Mitchel Muza UCT Law Student

One of the best moments of my life was getting into law school especially at one of the best universities in Africa. I cannot say that I did not know the difficulties for a foreign national to practice law in South Africa The UCT-law website made it explicitly clear that admission into the university does not guarantee admission to practice in South Africa In first year, we also went through the requirements for the practicing law in South Africa and this is when it became clearer to me that I met all the requirements except the requirement that you have to be a citizen or a permanent resident to be admitted into practice and there is no way to get around this requirement Some of the people that I spoke with seemed to know about this requirement whilst some seemed to have only realized late. I tried not to worry about this too much because the fact that we were even admitted studying law meant that there must be an alternative root and something you can do with your law degree.

When we heard that a group of foreign nationals were challenging s24(2) of the legal practice Act which excludes foreign nationals from practicing law in South Africa it gave some hope. Finally! Someone was doing something, but we still kept our fingers crossed we didn’t want to get too excited When the high court delivered judgement in 2021 ruling that the section was inconsistent with the Constitution as it did not allow non-citizens to be admitted and enrolled as non-practicing legal practitioners, we were left both disappointed and hopeful We were disappointed because this still meant that foreign nationals could still not practice law in South Africa, but hopeful because this was a high court decision which was still subject to the confirmation of the constitutional court and also the high court decision was somewhat positive in a sense that it realized there was something amiss in allowing foreign nationals to study law in South Africa and be denied any sort of right to admission and practice.

We all expected the constitutional court to be somewhat kind in light of the high court decision, but the court would have none of it In August of this year the constitutional court in the Rofoneke and Others v Minister of Justice and Correctional Services and others held that the differentiation between citizens and permanent residents on one hand and foreign nationals on the other does not amount to discrimination which is unfair. It therefore upheld the limitation created by section 24(2) of the LPA.

What were the arguments of the applicants?

The applicants argued that s24(2) and section 115 of the LPA violated an individual of foreign nationality’s right to equality because the provisions differentiate between South African citizens and permanent residents, and foreigners. They contended that there was no rational relationship between the differentiation and legitimate governmental purpose and that the differentiation amounts to unfair discrimination.

They essentially argued that the provisions of the Act create an absolute bar to entry into the profession by persons who hold visas and permits that allow them to work in South Africa. They averred that the differentiation had no rational connection with a legitimate purpose because irrespective of the fact that immigration laws allow them to take up employment in the country, they are still not eligible for admission and enrolment as a legal practitioner.

Arguments of the respondents

The respondents on the other hand argued that the provisions were in line with the governmental obligations to ensure that foreign nationals do not circumvent the immigration and labour laws by securing a license to practice law under the auspices of student visa’s They further argued that the law does not require a critical or rare skill as there are numerous citizens and permanent residents who are suitably qualified and are already struggling to secure employment They also stated that the right to choose one ’ s vocation does not fall within a sphere of activity protected by a constitutional right that is available to refugees and other categories of foreign nationals.

Constitutional Court Ruling

The court held that the citizenship is a matter of nationality and not social origin contrary to what was argued by the applicants. As a result, the differential rational by the respondents served a legitimate purpose in that the government has an obligation to protect the interests of its citizens in terms of s22 of the Constitution which allows for citizens to choose their trade and profession freely. Thus, the state could enact legislation to regulate freedom of trade, occupation and profession which was silent with regards to foreign nationals. The court also held that the differentiation in status between permanent residents and nonpermanent residents carried different obligations and corresponding rights. The rationale for accepting permanent residents was because they have been granted the right to live and work in the country on a permanent basis subject to immigration laws which could not be said of non-citizens

Analysis

The first thing to note is it may be difficult to challenge the constitutional court decision as it is the apex court. It is true that law is not a rare skill in South Africa but allowing qualified foreign nationals to practice in South Africa may contribute to intellectual cross-pollination and enrichment of the jurisprudence. Allowing foreign nationals to practice may also lead to legal innovation which is vital in light of the rapid changes in the tech, social and economic climate Further, the fact that the argument on discrimination cannot be sustained does not mean that it is in the best interest of South Africa to continue to implement the permanent residence requirement. It has also been rightly argued that South Africa should open its doors to foreign legal professionals as has been opened by other African countries in the past for example in the S v Tsangirai case where George Bizos represented foreign nationals outside of South Africa.

Further, the judgement means that the only way as it stands for foreign nationals to practice law in South Africa is if they acquire permanent residency which is often an onerous process Some students who studied and obtained their degrees in South Africa are forced to divert from the legal profession and the resources spent in this regard could be utilized for other things. As an additional point, some foreign nationals are not allowed to practice law in their own countries after studying in South Africa. South Africa should take cognizance of its economic position in Africa and how many of its trading partners have their citizens come to South Africa to get all the relevant legal qualifications only to be denied a chance to enter the legal profession in South Africa. Rather, South Africa should take the lead considering its position and open up to legal professionals who are relevantly qualified.

Below I have listed some alternative options for foreign students who are likely to be impacted by this judgement:

Applying for articles and getting admission in your home country.

Becoming an academic although this is also still subject to you meeting certain work permit requirements

Becoming a consultant

Advising. Copywriting. Marketing. Legal tech.

Work with international firms; For example: Linklaters, BakerMackenzie, etc.

Clerk of the Constitutional court. Legal Researcher.

Work with non-governmental organizations.