The Constitutional Court has reserved judgment on two applications by lawyers from neighbouring countries who argue that barring foreigners who have the right to live and work in SA, but lack permanent residency, from practising law here is unconstitutional.

Mail & Guardian legal writer Emsie Ferreira says the applicants represent a small section of foreigners resident in SA, but the case also speaks to the precarity that job reservation inflicts on refugees and other migrants. Advocate Steven Budlender – appearing for Zimbabweans Bruce Chakanyuka, Nyasha Nyamagure and Dennis Chadya – said theirs was a double challenge because the absolute prohibition, in section 24 (2) (b) of the Legal Practice Act, infringed on both the right to equality and the right to human dignity, enshrined in sections nine and 10 of the Constitution.

Ferreira notes the impugned section of the Act was declared unconstitutional by the Free State High Court (Bloemfontein) in September, in that it prohibits the admission of locally-trained and qualified foreigners as non-practising attorneys unless they have permanent residency.

But the High Court upheld the prohibition on foreigners being admitted as practising attorneys as fair because this was done in pursuit of the government’s policy objective of protecting employment opportunities for citizens.

Budlender said there was no compelling reason for this distinction. By failing to advance one, the Justice Minister was limiting two fundamental rights without meeting the standard of justification set out in section 36 of the Constitution. The Ministry said that the policy rationale for section 24 (2) (b) is to ensure that foreigners who apply to be enrolled as attorneys and advocates do so ‘after having followed the proper legal channels which permit their employment in SA’.

Budlender said this was a legitimate purpose but by logic did not require permanent residence because foreigners who were here legally but lacked this status were still allowed to work.

By way of factual justification for the limitation, the Ministry and the Legal Practice Council (LPC) argued that allowing foreigners to be admitted to practise law could worsen unemployment because it may ‘open the floodgates’ and create competition for those with SA citizenship. The Minister made an anecdotal submission on the number of candidate attorney positions available a year while the LPC referred to national employment statistics.

His counsel, Kgomotoso Moroka SC, argued that there was a shortage of attorney candidate positions, and that transformation in the legal profession would be hampered if the door were thrown open to foreigners to practise. However, the applicants pointed out that the problem is that the Act does not bar foreigners who obtained law degrees here from training as candidate attorneys.

Budlender said this and several other anomalies were so stark as to render the Act irrational. If the purpose was job reservation, he asked, why were foreigners allowed to work as legal advisers instead of not reserving those positions for South Africans? And why, furthermore, were foreigners who studied at local universities and later admitted as lawyers in other countries, allowed to practice in SA should they return, but not allowed to be admitted directly here?

The applicants face the hurdle that section 22 of the Constitution guarantees citizens the freedom to choose their trade, notes the M&G. Acting Justice Dunstan Mlambo said the language was pointed, with this right conferred on citizens, whereas the Constitution ascribes other rights to everyone.

Acting Justice David Unterhalter added: ‘Why is it then discriminatory if the authorities choose to formulate legislation in such a way that they decide that certain occupations will be reserved for citizens or primarily for citizens in the case of this legislation also for permanent residents? We may not think it is the wisest policy, we might have other ways of regulating our policies but why is it discriminatory? A foreigner has no right to choose an occupation in SA.’

However, Budlender argued that section 22 did not trump the challenge. ‘The internal limitation in section 22 to citizens does not deny to non-citizens the protection of all the rights that apply to everyone, including sections nine and 10. It cannot be correct that section 22 strips non-citizens of all their other rights in every context connected with employment.’ He added: ‘If Parliament is going to draw the line somewhere other than where section 22 does, then Parliament can’t rely on section 22 to immunise its choice against constitutional scrutiny.’

The Pan African Bar Association of SA, the International Commission of Jurists and the Scalabrini Centre were admitted as amicus curiae in the matter.

The Scalabrini Centre’s Advocate Chris McConnachie submitted it was an affront that refugees were barred from legal practice because their loyalty to the same Constitution that afforded protection of their status was in doubt, while the SCA had confirmed that their right to seek employment is unqualified. McConnachie stressed that the 1951 UN Refugees Convention conferred the right on refugees to wage-earning employment, self-employment and employment in what it termed ‘liberal’ professions, a category which has been interpreted by scholars as including law.

Advocate Thabang Pooe, for the International Commission of Jurists, argued that the Constitutional Court had a duty to consider international law and baseline universal standards in respect of equality – which prohibit discrimination on the grounds of nationality – when interpreting the country’s laws.

In this instance, she said, the Legal Practice Act fell foul of section 9(3) of the Bill of Rights by discriminating against foreigners on the basis of social origin as an analogous ground to nationality. The applicants pointed out that most countries in the SADC only require ordinary residency as a prerequisite for practising law. Ten out of 15 SADC member states do not impose the prohibition that SA does.

Full Mail & Guardian commentary