This week, South Africa’s Constitutional Court declined to invalidate legislation that prohibits non-citizens who are not permanent residents from being admitted as legal practitioners in South Africa – even when they are legally entitled to work in the country, are asylum seekers or refugees, or are married to South African citizens and have lived in the country for many years. Regrettably, the judgment misdescribed and misapplied the test for unfair discrimination and indulged in a spot of magical thinking in order to minimise the severity of the harm the legislation is likely to cause in the context of South Africa’s xenophobic epidemic. 

As it is likely that many of those who blame foreigners from the rest of our continent for many of the economic and social ills in this country (and/or demand that such foreigners be expelled from the country or even killed), will misrepresent the argument I am making (and may not read further than this paragraph, if they read more than the headline of this article at all), it is important to note at the outset what the case was not about. 

The case (Relebohile Cecilia Rafoneke and Others v Minister of Justice and Correctional Services) was not about the right of the government to regulate immigration and its right to repatriate undocumented immigrants. Nor was it about the right of the government to regulate who may and who may not legally work in South Africa, or the right to refuse some foreign nationals who are not permanent residents from working in South Africa. Instead, the case dealt with the narrow question of whether section 24(2)(b) of the Legal Practice Act (LPA) was unconstitutional because it restricted all foreign nationals who have not been granted permanent resident status from being admitted as legal practitioners, regardless of their circumstances. 

The applicants – who had obtained LLB degrees at South African universities, had completed their practical vocational training at South African law firms, were legally residing in the country, and were in possession of valid work permits – argued that the legislation infringed on their general right to equality (guaranteed in section 9(1) of the Constitution), as well as on their right not to be unfairly discriminated against (guaranteed in section 9(3) of the Constitution) on the basis of social origin or citizenship. They suggested that section 24(2)(b) of the LPA could be fixed by also allowing qualified law graduates who are “lawfully entitled to live and work in South Africa” to be admitted as legal practitioners.

It is not possible in the space available here to discuss all the technical problems with the reasoning in the judgment, or to explain why the court’s failure to take account of the dysfunction of the Department of Home Affairs was so problematic. I will focus on only two significant aspects of the case that must raise eyebrows, even for those who agree with the outcome of the judgment. 

Bigoted

First, the quality of some of the arguments advanced by the minister of justice to justify the ban is – to say the least – extremely poor, and in one case, bigoted. For example, the minister argued that the purpose of the impugned sections was to ensure “that foreign nationals do not circumvent immigration and labour laws by securing a licence to practise law under the auspices of student visas”. 

But none of the litigants has attempted to circumvent the immigration and labour laws of South Africa. The litigants merely sought to have the section amended to allow those qualified individuals who “are lawfully entitled to live and work in South Africa” to be admitted as legal practitioners here. The minister’s argument seems to be based on the premise that the Department of Home Affairs has no control over the decisions the department makes on who should be legally permitted to stay and work in South Africa and that the applicants were demanding to be exempted from the applicable immigration and labour laws. I find this bizarre, but not surprising, given the  tendency of ANC ministers to pretend not to be in government to avoid having to take responsibility for the failures of government. 

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More troubling is the argument advanced by the minister that the ban was necessary as there were inherent risks of fraud (bizarrely mentioned in a subheading of the judgment but not in the subsequent text) and accountability in allowing persons who are neither citizens nor permanent residents to be admitted and to practise as lawyers in the country. 

It is unclear if the court misrepresented the minister’s argument, as the heads of argument submitted on behalf of the minister do not mention fraud. Instead, the heads state that “the level of trust and accountability that is demanded from the legal profession, would be difficult to achieve if legal practitioners are not citizens or permanent residents of this country”. In this version, the bigoted assumptions of the public about the inherent untrustworthiness and honesty of foreigners who may presumably flee the country when exposed, not the bigotry of the government per se, is advanced as a justification for the ban. (As several deeply corrupt lawyers who are South African citizens have fled the country – the Bobroffs being a prime example – this argument only makes sense if one accepts that the stereotypes about foreigners being dishonest are true or are at least a valid prejudice that the government is entitled to pander to.)

This argument should therefore have been considered as a major reason to invalidate the ban, because – as the Pan African Bar Association of South Africa (Pabasa) argued in its submissions – the impugned provisions would impact negatively, not only on the litigants and similarly situated qualified foreign lawyers, but potentially on all foreigners who are already at risk of xenophobic prejudice and even violence. This is, argued Pabasa, because the provisions “foster and perpetuate notions that non-citizens or non-permanent residents are prone to exposing clients to prejudice and fraud”, thus perpetuating “xenophobia against non-citizens or non-permanent residents”.

Legal reasoning

The second troubling aspect of the case directly relates to the quality of the legal reasoning in the Constitutional Court judgment. The way in which the judgment dealt with the claim that the legislation unfairly discriminated against foreign nationals in terms of section 9(3) of the Constitution is woeful. As some of my first- and second-year LLB students sometimes do in the Constitutional Law exam, the court provided a truncated summary of the test for unfair discrimination provided in the seminal case of Harksen v Lane, but failed to describe or apply the list of relevant factors (some of these mentioned in Harksen and some in subsequent Constitutional Court judgments) that should have been considered when assessing whether the discrimination was unfair or not. 

The court thus failed to mention and then consider relevant factors explicitly required to be considered by the Harksen judgment. Specifically, the court was required to consider the position of the group the complainants belong to and whether the group is particularly vulnerable or suffered from patterns of prejudice or harm. The more vulnerable the group, the less likely that the “discrimination” would be found to be fair and thus constitutionally compliant. This is one reason “discrimination” against black people, men, heterosexuals (or citizens) would be more difficult to defend than discrimination against white people, women, LGBTQ people or, so one would have thought, foreign nationals. 

The court is required to assess (or “weigh”) the various interests involved to determine whether the ban was proportional and thus fair, given the importance of the purpose of the ban, on the one hand, and given the harmful impact this would have on the group being discriminated against (given its vulnerability), on the other. It is therefore relevant that an absolute ban was imposed on non-permanent residents to enter the profession, and that no provision was made for exemptions. This should also have weighed heavily against a finding that the discrimination in this case was justified. Moreover, the fact that the government advanced a justification for the ban clearly rooted in xenophobia, should have weighed heavily against the finding of constitutionality ultimately made by the court.

Because it did not apply the correct and detailed test, the court ultimately held that the ban did not unfairly discriminate, first, because there was not a significant harmful impact on foreign nationals as the ban did not impose a “blanket ban to employment in the profession as a whole”. What the court failed to consider was that the government defended the ban by invoking xenophobic beliefs (either their own or those of the population) about foreign nationals, and that the ban may indirectly exacerbate or perpetuate the bigotry, hatred and (ultimately) violence that foreign nationals from the rest of our continent often face in South Africa.  

In a passage that seems to make the opposite argument than the one intended by the court, the court distinguishes between its earlier judgment in Union of Refugee Women v Director: Private Security Industry Regulatory Authority and the present case, where the court held that legislation that limited the ability of refugees to work in the security industry did not constitute unfair discrimination, partly because the legislation provided a wide discretion nevertheless to allow such refugees to work in the sector. 

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In the present case, the court pointed out that the power of the minister “to make regulations in respect of admission and enrolment of foreign legal practitioners is not so generous”, as if this bolsters the argument that section 24(2)(b) of the LPA does not unfairly discriminate against the litigants. To be fair, it is unclear from this paragraph of the judgment what the actual argument was that the court attempted to make – as if the passage was at some point inserted in a draft of the judgment by a clerk or by the judge, but then never integrated into the overall argument the court intended to make. As it stands, it looks as if the court was wrongly arguing that the more rigid ban in section 24(2)(b) of the LPA renders the section less open to constitutional attack than the section in the Union of Refugee Women case. Clearly a daft proposition.

Regrettable failure

The judgment was handed down in the same week it came to light that the Socio-Economic Rights Institute of South Africa (Seri) had to temporarily close its office after it received online threats to burn down its offices and to harm its staff (including threats of kidnapping, lynching and rape), after ActionSA councillor Nkululeko Mbundu, MMC for economic development in the City of Johannesburg, criticised Seri on Twitter for assisting its clients to reverse the illegal eviction of 400 informal traders from the De Villiers trading precinct, and suggesting that the informal traders were all foreigners from elsewhere on the continent. 

Read more in Daily Maverick: “Proposed legal and policy reform will entrench SA discrimination and xenophobia”

I have no doubt that all the justices of the Constitutional Court will be appalled by this development. But it is regrettable that the justices failed to consider the fact that vicious xenophobia (fanned by populist politicians) is sweeping across South Africa, and did not pause to think how the impugned legislation might be read as (or may in fact amount to) an endorsement of the view that foreigners don’t have any loyalty or close links to the country and are inherently untrustworthy and dishonest – the kind of prejudices that underlie the dangerous threats made to Seri staff in the past week. DM

Pierre de Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he is head of the Department of Public Law. He writes a blog, “Constitutionally Speaking”, in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about constitutional and other legal developments related to democracy.