The Gauteng High Court (Pretoria) found that the candidate recruitment policy of one of the country’s biggest law firms to restrict applications to citizens of the country amounted to permissible affirmative action.

The court dismissed a review application by the Asylum Seeker Refugee and Migrant Coalition and its director Muchengezi Hiwacha (applicants) who challenged law firm Webber Wentzel’s earlier policy of excluding permanent residents from its candidate attorney programme. 

The Star reports that the application was aimed against the LPC who earlier investigated a complaint by the applicant in this regard against the law firm and attorney Alisdair Lawson.

The LPC dismissed the professional misconduct complaint, and the applicant took the matter on review.

The court found SA’s transformative duties under the Constitution are at the heart of the matter.

The question under the spotlight was whether an employer in pursuit of addressing historical inequality may lawfully exclude permanent residents (who are treated as citizens under the law) in a vocational programme as part of affirmative action.

The complaint before the LPC arose when Webber Wentzel changed its candidate attorney recruitment policy to exclude permanent residents.

This was to comply with the B-BBEE Act and the Employment Equity Act.

The applicants argued this constituted unfair discrimination.

In the years preceding its later recruitment policy, the law firm restricted the intake of white SA citizens, while it continued to recruit non-citizens with permanent residence.

According to The Star, the applicants contended the LPC’s dismissal of the complaint against Webber Wentzel and Lawson was irrational and procedurally unfair. The court found the investigating committee adequately investigated the complaint and came to a rational decision.

The court also rejected the argument that the LPC committed an error in law because it failed to appreciate the protected status of permanent residents under SA law.

In support of the LPC’s conclusion, the court pointed out the recruitment policy was time-limited (from 2018 to 2020) and it was narrowly tailored to a single recruitment programme at one law firm.

Permanent residents were not excluded from the legal profession as such, the court said.

The court dismissed the review application but acknowledged broader constitutional questions concerning permanent residents and affirmative action remain unresolved.

Full report in The Star