The issue of admission of foreign nationals into the legal profession has long been a contentious issue in South Africa. For example, a recent De Rebus article outlines the manner in which women were excluded from the profession in the 1900s on the grounds that ‘the law of nature destines and qualifies the female sex for the bearing and nurture of children”. Similarly, the emergence of radical Black lawyers like Oliver Tambo and Nelson Mandela in the 1950s was confronted by a profession that constructed ways in which to exclude them. The modalities of these exclusions of Black people is captured well by former Premier of Mpumalanga, Mathews Phosa, in a seminar presentation he conducted for the Lawyers Committee for Civil Rights Under Law in 1985. Unfortunately, in modern South Africa the profession continues to proffer these patterns of exclusion, affecting the most marginalised people: non-citizens.

It is important to note at the outset that the legal profession is still largely dominated by older White men, mirroring the inequities in society at large. However, this article seeks to focus on the arguably unconstitutional, and morally reprehensible manner in which the profession excludes non-citizens.

Admission into the legal profession is regulated by the Legal Practice Act 28 of 2014 (“Act”). Section 24(2) of the Act stipulates that:

“The High Court must admit to practise and authorise to be enrolled as a legal practitioner … 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 …”.

Section 24(2)(b) restricts admission into the profession to those who are citizens or permanent residents. As a result, non-citizens who are lawfully in South Africa through permits and visas which allow them to work, are restricted from admission into the profession. The question that arises is whether such restrictions are constitutional.

What is Permanent Residence?

Permanent residence is a type of immigration status that non-citizens can hold. Section 25 of the Immigration Act 13 of 2002 stipulates that the “holder of permanent residence status has all the rights, privileges and obligations of a citizen, save for those rights, privileges, duties and obligations which a law or the Constitution explicitly ascribes to citizenship”. Non-citizens can also hold other types of immigration status, such as work permits, spousal visas or refugee permits among others. Each visa type is rigidly regulated requiring that:

• only a limited number of visa and permits are approved annually, 

• visa and permit applicants submit detailed personal information relating to their financial position, health status, criminal history among other things.

What Role Does Permanent Residence Status Play in the Legal Profession?

As noted above, the 1950s saw the emergence of Black lawyers who used the law as a means of defending the rights of the majority Black population against the machinery of apartheid. As the resistance against apartheid intensified, the regime would enact laws that stripped Black people of their South African citizenship, making them citizens of the various homelands. The then Minister of Justice BJ Vorster introduced legislation requiring non-citizens to hold permanent residence status in order to be admitted as lawyers. He justified this by stating that “Every country … regards the legal profession as a profession to be jealously guarded and preserved for its own citizens”. 

The effect of the loss of citizenship and the requirement to prove one’s right to permanent residence effectively barred non-citizens from the legal profession. This is best illustrated by the admission application of former Deputy Chief Justice Dikgang Moseneke. The Law Society opposed his admission as a lawyer on the basis that the homeland legislation stripped him of his citizenship. Moseneke was forced to take the issue to court, assisted by the Black Lawyers Association (BLA). In what it describes as its “first great achievement” the BLA was able to successfully argue that because Moseneke normally resided in South Africa, he qualified for admission as a lawyer.

As noted above, permanent residence status continues to be used as a tool to exclude non-citizens from the legal profession.

Constitutionality of the permanent residence requirement

Given its roots in the divisive history of apartheid, the question that arises is whether the permanent residence requirement is consistent with our constitutional democracy. The Constitution is the supreme authority in South Africa, any law, practice, custom or conduct inconsistent with it, is invalid. One of the fundamental rights protected by the Constitution is the right to equality. In order to determine whether a law infringes the right to equality, the Constitutional Court established a test in the case of Harksen v Lane 1998 (1) SA 300 (CC). The test critically asks whether there is a rational reason for infringing on the right.

It is difficult to make the argument that the permanent residence requirement is rational. The requirement is irrational for the following reasons:

Its History: – the requirement is borne out of a divisive time in South Africa’s history. It was designed to perpetuate discrimination against Black people, effectively weakening their ability to access justice through the court system. It is therefore questionable why the legal profession would continue to implement this apartheid legacy law.

Non-citizen candidate attorneys appear in court: – there is no restriction on non-citizens appearing in various courts in South Africa as candidate attorneys. It is therefore questionable why non-citizens would be excluded from being admitted as lawyers, when in their capacity as candidate attorneys they effectively do the work of lawyers.

Other professions are not restricted: – the legal profession is the only one that implements strict restrictions based on permanent residence status. All other professions, including those that are important to a functional society, such as doctors, chartered accountants, and engineers, do not implement restrictions based on permanent residence status. 

It does not serve any legitimate purpose: – the proponents of the requirement have argued that its purpose is to protect the South African public from untrustworthy lawyers. It is questionable how permanent residence status can be used as a determinate of trustworthiness.

It is inconsistent with international law: – the requirement is inconsistent with a number of international treaties that South Africa is party to. These include the Universal Declaration of Human Rights, the Covenant on Economic, Social and Cultural Rights, the African Charter on Human and People’s Rights and even World Trade Organisation treaty. 

Conclusion

The exclusion of non-citizens from the legal profession on the basis of permanent residence remains a blemish on the legal profession’s stated goal of fostering diversity in its ranks. The upholding of these apartheid legacy exclusions from the profession are morally reprehensible and incongruent with our constitutional dispensation. 

For more resources on this issue, read here:

• De Rebus
• Daily Maverick
• Oxford Human Rights Hub

 

 

Author: Muchengeti Hwacha

 

Muchengeti is the Executive Director of the Asylum Seeker, Refugee and Migrant (A.S.R.M) Coalition. The Coalition is an assemblage of migrants working within various levels of the legal industry value chain. Its core objectives are to combat discrimination against non-citizens within the legal profession and to improve access to justice for the broader migrant community. Contact the Coalition on email at ASRMCoalition@gmail.com or Twitter @ASRMCoalition.