A GROUP of foreign lawyers have hauled Justice Minister Ronald Lamola and the Legal Practice Council to the Constitutional Court over not being allowed to practise in South Africa.
Lesotho nationals Relebohile Rafoneke, Sefoboko Tsiunyane, Zimbabweans Bruce Chakanyuka, Nyasha Nyamugure, Dennis Chadya, Daphne Makombe and Fortunate Dunduru are heading to the apex court to challenge the decision of the full bench of the Free State High Court in September 2021 declaring the Legal Practice Act unconstitutional and invalid to the extent that it does not allow foreigners to be admitted and authorised to enrol as non-practising legal practitioners.
They all either hold Lesotho or Zimbabwe exemption permits or are on spousal permits and insist that they meet the requirements for admission as legal practitioners, barring permanent residence/citizenship requirements.
Rafoneke and Tsiunyane had approached the high court to be allowed to practise as legal practitioners and want to appeal at the Constitutional Court the extent of the constitutional invalidity.
”The appellants (Rafoneke and Tsiunyane) will contend that the high court ought to have found and ordered that section 24(2)(b) of the Legal Practice Act (LPA) is unconstitutional and invalid to the extent that it does not permit foreign nationals to be admitted and authorised to be enrolled as legal practitioners (be it practising or non-practising,” they argue at the apex court.
The high court 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.
”The flaw in the high court’s finding is that admitting a foreign national to practise will permit such foreign national, without the need to comply with immigration and employment laws, to undertake employment in the republic,” Rafoneke and Tsiunyane told the apex court.
They also state that the high court ought to have found that the differentiation amounted to unfair discrimination, which is not justifiable in terms of Section 36 of the Constitution on the limitation of rights.
Chakanyuka and Makombe, who are intervening parties in the matter, wants the Constitutional Court to declare section 24(2)(b) of the LPA inconsistent with the Constitution and invalid to the extent that it excludes persons who are lawfully entitled to live and work in South Africa but are not South African citizens or permanent residents from being admitted to practice and authorised to be enrolled as legal practitioners.
According to Chakanyuka, Nyamugure, Chadya and the Asylum Seeker Refugee and Migrant Coalition’s written submissions, they are concerned only with the constitutionality of the legislative bar to the admission as legal practitioners of non-permanent residents who meet all of the other requirements for admission under the LPA and who already have the legal right to live and work in South Africa.
”The applicants (Chakanyuka, Nyamugure and Chadya) are all people who are lawfully entitled to live and work in South Africa, and who meet all the legal requirements for admission as legal practitioners save that they are neither citizens nor permanent residents. They are personally affected by the statutory bar on admission of non-citizens other than permanent residents,” read their application to intervene in the matter.
They also have a similar pending North Gauteng High Court action to determine whether they meet the requirements for admission as legal practitioners except that they are neither citizens nor permanent residents.
The Constitutional Court will hear the matter next Thursday.
Political Bureau