A legal row over the exclusion of foreigners from candidate attorney positions in favour of South Africans, is headed to the high court.

The Asylum Seeker, Refugee and Migrant Coalition (ASRM Coalition) recently instituted legal proceedings at the Pretoria High Court in an effort to overturn a decision by the Legal Practice Council (LPC) from October 2021. 

The decision, taken in response to a complaint by the ASRM Coalition, was that the law firm Webber Wentzel was justified in having a policy that restricted the consideration of applicants for candidate attorney positions to South African citizens between 2018 and 2020.

The policy excluded foreigners who are permanent residents in South Africa. However, this was declared justified as a form of “positive discrimination” that allowed Webber Wentzel to meet its Broad-Based Black Economic Empowerment (BBBEE) obligations, according to the recommendation of the LPC investigating committee. The ASRM Coalition’s complaint that the policy constituted misconduct on the part of the law firm was dismissed.

Aside from having the LPC’s decision overturned, the coalition is seeking an order from the high court that either declares Webber Wentzel guilty of misconduct with regards to the exclusionary policy, or remits the matter back to the LPC for reinvestigation. This is according to a notice of motion filed by the coalition on 19 April. 

“The ASRM Coalition has requested the high court to take disciplinary action against [Webber Wentzel]. The court is competent to order the LPC to impose disciplinary sanctions on [the law firm],” said Muchengeti Hwacha, executive director of the coalition.

At this stage, there is no definite date for the matter to be heard in the high court.

Webber Wentzel’s policy of restricting candidate attorney positions to South African citizens had the effect of denying employment opportunities to non-citizen permanent residents, according to Muchengeti Hwacha of the ASRM Coalition. (Photo: Supplied / Muchengeti Hwacha)

The original complaint

The ASRM Coalition originally filed a complaint with the LPC on 26 May 2020, in response to a note on the recruitment page of Webber Wentzel’s website that declared only South African citizens were eligible for their candidate attorney programme.

On 21 July 2020, a representative of Webber Wentzel spoke at the SAGEA Virtual Career Expo. In the talk on “The path to Webber Wentzel”, the representative said only South African citizens could apply to be candidate attorneys at the company, adding that “the problem is that it does become a bit risky”.

In a letter to the LPC from 7 October 2020, Hwacha said the ASRM Coalition was “deeply concerned” by Webber Wentzel’s implementation of a citizenship-based qualification criteria, as it was “to the detriment of non-citizens with permanent residence status”.

“On the surface, [Webber Wentzel’s] policy of restricting candidate attorney positions to citizens had the effect of denying employment opportunities to non-citizen permanent residents,” Hwacha told Maverick Citizen. 

“[Webber Wentzel] is one of the largest law firms in our industry, and employment as a candidate attorney is one of only two pathways to become a legal practitioner in South Africa.”

In the South African context, the denial of dignity, and the consequent denial of humanity to non-citizens, has historically had dangerous consequences.

The ASRM Coalition considered it important to file a complaint, continued Hwacha, as the conduct of Webber Wentzel had the potential to influence smaller, less-influential firms hoping to achieve similar success. 

“The continued proliferation of this conduct in our industry would have a devastating impact on [permanent residency] holders,” he said.

More broadly, Webber Wentzel’s policy had the effect of violating the dignity of permanent residents and non-citizens, said Hwacha, adding that the South African courts had long established that the denial of employment to persons based on “arbitrary grounds” impairs dignity and constitutes unfair discrimination.

He referred to a previous judgment by the Constitutional Court which said “the denial of equal dignity and worth all too quickly and insidiously degenerates into a denial of humanity and leads to inhuman treatment by the rest of society in many other ways”. 

“In the South African context, the denial of dignity, and the consequent denial of humanity to non-citizens, has historically had dangerous consequences,” he said.

Webber Wentzel

The citizens-only policy at Webber Wentzel ended before the company became aware that the ASRM Coalition had filed a complaint, according to Alisdair Lawson, general counsel at the firm. However, confirmation that the policy had ended took time to reach those outside the company.

“We confirm that the decision to restrict [candidate attorney] positions to SA citizens was taken around late August/early September 2018, and the decision to amend this to allow applications from permanent residents was around a similar time in 2020,” according to Lawson.

While the policy was active between 2018 and 2020, the company’s marketing material reflected that only South African citizens were eligible for candidate attorney positions, he confirmed.

In a response to the coalition’s complaint, sent to the LPC on 5 February 2021, Lawson said the complaint failed “at the level of both law and fact”.

When Webber Wentzel instituted the citizens-only policy in 2018, the company was failing to meet its BBBEE targets through the employment of historically disadvantaged South Africans, according to Lawson. A decision was therefore taken to place more focus on boosting historically disadvantaged applicants in recruitment policy.

“One way of doing so was to restrict applications for [candidate attorney] positions to South African citizens for the 2019 year onward and monitor progress with BEE compliance,” said Lawson.

White South Africans were also considered for candidate attorney positions in this time, he continued. Relatively few were appointed, with 31 out of 44 offers of candidate attorney positions going to historically disadvantaged South Africans in 2019. 

Lawson emphasised that, in an exceptional instance, one foreigner with permanent residency was appointed as a candidate attorney in January 2020. However, the policy only formally ended once there had been a “material increase” in historically disadvantaged South African candidate attorneys at the company.

“Measures which differentiate between different groups but seek to fulfil the transformational objectives of section 9(2) of the Constitution are… by definition, not discriminatory measures proscribed under the Constitution,” according to Lawson’s response to the ASRM Coalition’s complaint.

“…[A]ll the measures adopted by WW [Webber Wentzel] sought to open up additional opportunities for HDSAs [historically disadvantaged South Africans] in the corporate law firm environment, to accelerate transformation at WW and to promote the achievement of substantive equality. In seeking to achieve these objectives, all those who do not qualify as HDSAs will necessarily be affected, and may be substantially affected. This is a logical and necessary outcome of South Africa’s constitutional commitment.”

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Webber Wentzel denied that there was any “legally cognisable” discrimination due to their policy, but added that if there was discrimination, it was “not unfair” given the circumstances.

Vlad Movshovich, a partner at Webber Wentzel, told Maverick Citizen that in the context of broader recruitment practices at legal firms, measures that give preference to certain candidates above others are peremptory, and as such, Webber Wentzel’s citizens-only policy was not “precedent-setting” within the industry.

Hwacha argued that Webber Wentzel’s policy was designed to advance all citizens, and not just historically disadvantaged ones, as white candidates continued to be considered and accepted between 2018 and 2020.

“Further, any initiative designed to advance historically disadvantaged persons must still comply with the Constitution. There are parameters within which initiatives of this nature must exist, and [Webber Wentzel’s] policy breached those safeguards,” he said.

Ongoing dispute

In the ASRM Coalition’s notice of motion, they argue that the LPC and its investigating committee fell short of their statutory obligations in exercising disciplinary oversight of Webber Wentzel. The coalition further states:

• The LPC failed to exercise proper supervision of the conduct of the investigating committee;
• The investigating committee failed to properly investigate the complaint against Webber Wentzel; and
• The investigating committee’s decision was unreasonable and materially influenced by an error of law.

“The investigating committee of the LPC failed to apply what has been a long-settled precedent in our law that does not permit the type of discrimination against [permanent residency] holders perpetrated by [Webber Wentzel],” Hwacha told Maverick Citizen. “Instead of properly venerating the complaint, and taking the time to integrate the law on the subject, the investigating committee delivered an extempore judgment.”

Kabelo Letebele, senior manager for communication and engagements at the LPC, said the lawyers’ council, as a regulator for attorneys and advocates, is required to follow processes as outlined in the Legal Practice Act.

“In instances where complainants are not satisfied with the outcome at the end of our processes, they are able to refer the matter to court for a review,” said Letebele.

“With this case being subject to court proceedings, the LPC is not in a position to discuss details of the matter until the issues have been ventilated in court. Our focus is always to consider matters placed before us… in line with the stipulated process, which was also followed in this matter.” DM/MC

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