In a unanimous ruling, the Supreme Court of South Africa overturned the Full Bench of the High Court and declared section 24(2)(b) of the Legal Practice Act 28 of 2014 to be constitutionally valid. The judgement is a huge blow to foreign law graduates’ equal protection and right to work.
The petitioners are from the Kingdom of Lesotho and Zimbabwe, and they all hold a law degree. They all duly meet the requirements to be admitted as lawyers in South Africa as stipulated by section 24 read with section 26 of the Legal Practice Act 28 of 2014 save for the lack of permanent residency and citizenry. It is in this respect that they approached the Court for redress on grounds of equal protection. They did not seek an order for the confirmation of the court’s a quo ruling but instead prayed for a 24-month suspended declaratory judgement that will allow anyone entitled by law to live and work in South Africa to practise as a lawyer pending parliamentary redress of the surmised unconstitutionality. This was strategic and would have had far-reaching consequences for the admission of foreign law graduates to the bar and practising attorneys’ roll.
The legislature has in a number of instances such as this one abstained from remedying a constitutional defect and left the order of invalidity to take effect. This could have potentially allowed anyone with no citizenship or permanent residency to be admitted as a practising lawyer provided they are permitted to live and work in South Africa and they of course meet all other requirements laid down in the Legal Practice Act 28 of 2014.
Justice Tshiqi began by citing Section 9 of the Constitution insofar as it prohibits discrimination and gives everyone the right to be equal before the law, the right to equal protection and benefit of the law. The Justice went on to apply with approval the leading test on discrimination, the Harksen test, developed by Justice Goldstone of the Constitutional Court. Her Honour found that there is differentiation on the basis of citizenship and permanent residency and therefore had to enquire whether the differentiation bears a rational connection to a legitimate government purpose. The Justice agreed with the Supreme Court of Appeal that the legislature is entitled by section 22 of the Constitution to make a determination on how far to extend admission into the legal profession to non-South Africans and it has chosen to draw the line at permanent residents. After all, section 22 only gives citizens the right to choose their profession freely. Moreover, the Court referred to Canadian and Indian Supreme Courts’ jurisprudence with approval and concluded that ‘law may be enacted to regulate entry into a profession and that States are entitled to restrict such entry on the basis of citizenship’. In this respect, the Court found the differentiation to be rational.
The reasons for this finding include that the differentiation is, according to the Court, restrictive and protectionist and is a permissible governmental objective, it was done to protect opportunities for South Africans, section 31(2)(b) of the Immigration Act allows for a foreign national to be granted an exemption to permanent residency and the rights of foreign national lawyers to practise in South Africa arose for reasons of reciprocity under trade and foreign policy commitments. The Court turned to the equality clause and held that the differentiation amounts to discrimination but does not violate section 9 of the Constitution considering that foreign nationals are not left destitute, as they may be employed in a different capacity, for example, as legal consultants. After hearing the case on the 24th of February 2022 and deliberating on it, the unanimous panel of 8 Justices returned a verdict of constitutional validity. It pronounced section 24(2) of the Legal Practice Act 28 of 2014, for the reasons stated above, to have passed the constitutional standard.
In my respectful view, the Court misdirected itself in two respects namely, the law and facts. It erred in its interpretation of the rights. It surprisingly and erroneously omitted to refer to one of the leading Constitutional Court decisions on section 9 of the Constitution in the matter of Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others 1998 (12) BCLR 1517. It did not consider the effect section 24(2) of the Legal Practice Act 28 of 2014 had on foreign nationals. The Court failed to consider the argument made by the Pan African Bar Association of South Africa during the hearing that Section 24(2) of the Legal Practice Act 28 of 2014 fosters and perpetuates notions that non-citizens or non-permanent residents are prone to exposing clients to prejudice and fraud. Foreign nationals are vulnerable groups, they suffer from harmful stigmas and are increasingly under attack from xenophobic individuals. They are susceptible to violence and hate speech. Xenophobia threatens their lives and consequently their right to life. Section 24(2) of the Legal Practice Act 28 of 2014 and the ruling by the Constitutional Court reinforce the existing and harmful social stereotypes and prejudices against foreign nationals.
If anything, the judgment contributes to the marginalisation of foreign nationals and relegates them to subclass human beings. It violates their right to dignity. The exclusion of foreign nationals who otherwise qualify for admission especially those who are eligible for permanent residency but are prevented by the conditions of the Special Permits degrades and devalues foreign nationals in our broader society and therefore violates Section 10 of the Constitution. Their value and worth is undermined. A court should be slow to uphold the justifiability of discrimination when the right to dignity and life comes to the fore as these were identified as the most important rights by this very same Court in S v Makwanyane and Another 1995 (3) SA 391 (CC). The judgement denies foreign nationals who are already at a disadvantage in the labour market equal protection. At best, this ruling undermines their right to work and ability to earn an income and provide for themselves and their families. At worst, it threatens their lives and their right to life considering that it reinforces the negative perception against them and the violent nature of xenophobia.
The Court failed to consider article 2(2) of the International Covenant on Economic, Social and Cultural Rights which requires South Africa to ensure that foreign nationals enjoy their rights under the Convention without discrimination as to their national or social origin and section 233 of the Constitution which requires this Court to prefer any reasonable interpretation of section 24(2) of the Legal Practice Act 28 of 2014 that is consistent with international law over any alternative interpretation that is inconsistent with international law. The Convention enshrines the right of everyone to gain his living by work which he freely chooses. According to section 39(3) of the Constitution, the Constitution does deny the existence of other rights over and above the rights provided for by the Bill of Rights. South Africa duly ratified this Covenant and is bound by it. The omission of these by the Court in its judgement is a grave miscarriage of justice as the equality clause was the determining factor in the Court’s judgement. Their inability to make a living in turn violates their right to food. The Constitutional Court has held that ‘the ability of people to earn money and support themselves and their families is an important component of the right to human dignity’ in South African Informal Traders Forum and Others v City of Johannesburg and Others; South African National Traders Retail Association v City of Johannesburg and Others 014 (6) BCLR 726 (CC).
The Court in saying foreign nationals are not left destitute, as they may be employed even if they are not admitted is ignorant of the realities of the high unemployment rate when it comes to the non-standard form of legal work in this country and the low rate of pay for persons working as legal consultants. The petitioners who are currently working in such a capacity earn very less and may double and even triple their monthly salary if they get admitted to practise as lawyers. Under this Covenant, everyone including nonnationals, such as refugees, asylum-seekers, stateless persons, migrant workers and undocumented migrants enjoys the right to work. Section 24(2) of the Legal Practice Act 28 of 2014 is too far a limitation to be permissible. It is inconceivable that the Court did not consider this relevant instrument and constitutional provisions. It seems to me that the Court only considered constitutional provisions and laws which favoured its disposition.
The Court failed to take proper consideration that most foreign nationals, as is the case with the majority of petitioners before the Court, qualify in all respects for permanent residency, but for the unreasonable condition of the so-called Special Permit, which precludes them from applying for permanent residence irrespective of the number of years they have stayed in South Africa. Had the case been heard by and tried by the Supreme Court of Appeal, the outcome of the case may well have been different when the matter sat for finality before the Honourable Justices of the apex court. The granting of direct access had the effect of denying the Court the views of the Supreme Court of Appeal. However, the matter was of such a nature that it had to be resolved promptly.
All is not lost, foreign nationals aspiring to practise law in South Africa have the right to petition Parliament for the amendment of section 24(2)(b) of the Legal Practice Act 28 of 2014. They are well advised to exercise their right under section 17 of the Constitution and take it to the streets to protest. Citizens will join in solidarity. The powerful nature of demonstrations can never be undermined. Protests are an important platform for the minority to be heard and serve as an important means to instil change. It cannot be gainsaid that protests played a critical role in the achievement of democracy in this country. At every turn, I will continue to advocate for the rights of foreign nationals to equal protection and work. Moreover, they may apply for the rescission of the judgement in terms of Rule 42(1) of the High Court Rules read with Rule 29 of the Constitutional Court Rules. This may, however, prove to be very difficult. This has advantages, nonetheless, in that the case may be heard by some Justices who did not preside over the case as the matter was heard by only 8 Justices. This presents an opportunity for the Court to be persuaded otherwise.