The recent Constitutional Court judgment in the case of Relebohile Cecilia Rafoneke and Others v Minister of Justice and Correctional Services and Others [2022], in confirmation proceedings in terms of section 172(2)(a) of the Constitution, declining to confirm the declaration of unconstitutionality of section 24(2) of the Legal Practice Act 28 of 2014 made by the Free State High Court in 2021, is a subject of great debate and public interest.  

Two of the applicants in this case, Relebohile Cecilia Rafoneke and Sefoboko Philip Tsuinyane, are both citizens of the Kingdom of Lesotho. They both received LLB degrees in 2013, having entered South Africa on a study visa by the Department of Home Affairs and being accepted at the University of the Free State.

Zimbabwean nationals Bruce Chakanyuka, Nyasha James Nyamugure and Dennis Tatenda Chayda are facing similar challenges as Tsuinyane and Rafokone and made a similar application.

According to the Constitutional Court, only South African citizens and permanent residents can be admitted as lawyers and be allowed to practice law in South Africa. As the law now stands, all the effort put in by foreign law graduates who studied at South African law faculties and completed articles and pupillage in South Africa has come to zero.

The Asylum Seeker Refugee and Migrant Coalition (a voluntary organisation whose members consist of non-citizens working at various levels in the legal services sector — law students, legal academics, legal advisors, attorneys, advocates, and the like — considers the judgment a disappointment.

Where do we stand?

On the face of it, the law in question appears discriminatory. However, the court did not sustain the argument that the law amounted to discriminatory practice or discrimination prohibited by the Constitution of 1996. “The rationale for accepting permanent residents is that they have been granted a right to live and work in the country on a permanent basis subject to the country’s immigration laws. The same cannot be said for non-citizens who are refugees or who are on study or work visas,” said Judge Zukisa Tshiqi. 

According to Judge Tshiqi, foreign nationals who chose to study and do vocational training in South Africa “made this choice fully conversant with the fact that they are not eligible for admission, or at the very least, they ought to be conversant”. The court, however, did indicate that the affected foreign nationals are not completely thrown out of employment in the legal profession as they can still be employed “in different capacities that do not require admission as a legal practitioner… They are therefore not left destitute.”

The judgment is a bitter pill to swallow if you are a foreign national without permanent residency status in terms of the conditions and requirements of the Immigration Act. Cliff Dekker Hofmeyr Attorneys in its analysis of the Rafoneke v Minister of Justice case lauded “the court’s attempt to assist foreigners by striking the balance it did”, but believed that “there were flaws in the court’s reasoning”.

The harshest criticism of the judgment has been penned by Prof Pierre de Vos writing in Daily Maverick: “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,” said De Vos.

In his view, one of the troubling aspects of this ruling is that the legal reasoning of the Constitutional Court is “woeful” in the same way first- and second-year LLB students sometimes fare in their Constitutional Law exam. It would seem the justices would have failed dismally were they responding to a law faculty Constitutional Law question requiring analysis of the test for unfair discrimination.

Let me not delve much into critical issues relating to the competency of our Constitutional Court to correctly interpret and apply the provision of the Constitution. But, there is some serious food for thought arising from the criticism of the ruling by De Vos.

The question now is: are we dealing here with a bigoted and xenophobic judgment by the court that should be the highest authority and upper guardian of constitutional rights and freedom? Or was this just another case where those representing the applicants failed to make a good case to convince the Constitutional Court to rule otherwise?

Framing the discussion

Media headlines reporting on this ruling may be misleading, particularly a headline that states that “Constitutional Court upholds the ban on foreigners practising law in South Africa”.

My questions notwithstanding, it is always worrying when an important issue such as this, and the Constitutional Court judgment, is argued along lines of xenophobic entrenchment. Sometimes bigotry and xenophobic practices are sustained and fuelled by how we frame our discussions.

I wonder though if in the case of refugees, framing the discussion of the Constitutional Court judgment from the lens of Standard of Treatment will serve better public discourse. In particular, arguing that the Constitutional Court should have considered the flexibility accorded refugee law graduates with respect to a special dispensation from the restrictions on employment, and granting them in principle, the same professional practice rights as permanent residents or citizens.

As observed in research on behalf of the United Nations Commissioner for Refugees by Rosa Da Costa, Rights of Refugees in the Context of Integration: Legal Standards and Recommendations, refugees are deserving of more protection because of “lack of effective citizenship, State protection, and the corresponding rights in another country and the obstacles which they frequently already face with regard to employment”.

Anyway, scholars and analysts should be allowed to express their angle on this judgment including determining its relationship to the increasing number of African nations enacting laws to benefit local economies and promote local participation. 

From the outset, it must be noted that prohibiting the licensing of foreign nationals wanting to be admitted and enrolled as legal practitioners in South Africa is not something novel. It has been practised in many jurisdictions.

As noted by Judge Tshiqi, “internationally the practice of reserving the right of occupational choice to citizens is not uncommon in democracies” [at para 74]. Indeed, other countries limit the right of occupational choice and in arriving at its ruling, the Constitutional Court made subject-specific reference to Canada and India to demonstrate as valid the “reasoning that law may be enacted to regulate entry into a profession and States are entitled to restrict such entry on the basis of citizenship”. 

In the 1984 case of Law Society of Upper Canada v. Skapinker the argument that the requirement of Ontario’s Law Society that members of the bar of Ontario ought to be citizens of Canada was a violation of the mobility section of the Canadian Charter of Rights and Freedoms (section 6(2)(b)) was rejected by the Supreme Court. The court found that the mobility section of the Charter did not affect the Law Society’s requirement that its members be Canadian citizens or British subjects.

It was accepted that section 6 gives both citizens and permanent residents the right to move into any province and pursue an economic livelihood and that the rights may be reduced according to certain types of provincial laws and programmes.   

The Indian Supreme Court in the case of Bar Council of India v. A.K. Balaji C.A, decided in 2018, upheld the view of the Bombay high court and Madras high court judgments “to the effect that foreign law firms/companies or foreign lawyers cannot practice the profession of law in India either in the litigation or in non-litigation side”. The main issue arising in the Bombay HC Judgment was whether foreign law firms can open liaison offices in India to carry on the practice in non-litigious matters without being enrolled as advocates under the Advocates Act of 1961.

The main issue arising in the Madras HC judgment was whether foreign lawyers and law firms can practise law in India in case of litigation and commercial transactions. The Supreme Court also ruled that “companies providing wide range of customised and integrated services and functions to its customers like word processing, secretarial support, transcription services, proofreading services, travel desk support services, etc do not come within the purview of the Advocates Act, 1961 or the Bar Council of India Rules” unless if  “in pith and substance the services amount to practice of law, the provisions of the Advocates Act will apply and foreign law firms or foreign lawyers will not be allowed to do so”.

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In some jurisdictions such as those in the Organisation for Economic Co-operation and Development (OECD) the nationality requirements in legal services may be required for certain sectors of the legal profession based on the public “function requirement” to be performed by such a lawyer. The notarial practice may be preserved for citizens in countries where notaries are also considered public officials. 

Notable also is that the national character of the law and the national character of legal education are obstacles to trade in legal services. A law student who studied in South Africa may find challenges in using his or her qualification outright in their home country.

Legal family issues

There are many legal families with different characteristics that would complicate the problem further. The main legal families include Romano-Germanic Law, Common Law, Socialist Law, Hindu Law, Muslim Law, Laws of the Far East, African Customary Law, and Malagasy Law. 

With the above-said experiences in other jurisdictions noted, one hopes that the Constitutional Court judgment as it relates to the law profession does not open the floodgates for other professional bodies such as the South African Institute for Chartered Accountants to put more strictures in place.

The Prince Edward Island Court of Appeal in 1993, for instance, held to be valid those provisions in the Public Accounting and Auditing Act that restrict the practice of that profession to members of the Institute of Chartered Accountants of Prince Edward Island. This was after the trial judge had struck down the limitations as violating freedom of expression and the rights to life, liberty and security of the person under the Canadian Charter. The Court of Appeal decision was approved by the Supreme Court of Canada in 1995 in the case of Walker v. Prince Edward Island (1993), aff’s [1995].

The case for universities

Many students across the globe, and in Africa specifically, still choose to pursue their law studies in South Africa. The Constitutional Court judgment does not change the current state of affairs for universities regarding enrolling foreign students in law faculties. South Africa still allows non-citizens and non-permanent residents to study law and graduate from law faculties across the country.

However, the judgment may negatively impact universities’ foreign law student marketing and recruitment strategies and any internationalisation effort. It is incumbent on universities to improve and align their marketing strategies, including information and enrolment contracts, to the Constitutional Court’s judgment.

In my view, the admission division of universities must advise prospective law students from foreign countries that they may not be licensed to practise law in South Africa if they are here on a study visa only and/or are not permanent residents of the Republic. Failure to unambiguously inform such students may be contracting in bad faith because the Constitutional Court judgment is clear as daylight.  

A South African law faculty that ventures into a foreign country to recruit law students must be completely open about the regulatory regime for legal services in South Africa to prospective students.

Under normal circumstances, this forewarning step by universities is not necessary because it is a reasonable assumption that an LLB student on a study visa should be aware of the conditions of the visa, including that he or she may not seek employment in South Africa after completion of the study unless a new visa status is granted.

The Faculty of Law at the University of Pretoria, for example, issues a clear statement that will align with the import of the Constitutional Court ruling by giving notice to prospective LLB students that “being a faculty at a South African university, preference should be given to the higher education of South African citizens or those with permanent residence”.  

Universities must also update their internationalisation policies and strategies making sure that they speak directly to sector-specific restrictions, and also to laws such as the Constitutional Court ruling in question.

General Agreement on Trade in Services

Another dimension to this judgment is in the bigger scheme of things not only about foreign nationals with South African law qualifications. The judgment will be felt in other service areas in the context of employment mobility and intra-Africa services liberalisation.

Interestingly, the court pointed to the obligations of South Africa in terms of the General Agreement on Trade in Services (Gats). Legal services are one of the services classified as professional services under Gats, and the business services sector covered by Gats.

Article II of Gats addresses the Most-Favoured Nation principle and states that the Member States each “accord unconditionally to services and service suppliers of any other Member treatment no less favourable than that it accords to like services and service suppliers of any other country”.

Gats obligations are not violated in the context of the liberalisation of trade in legal services among World Trade Organization (WTO) member countries because South Africa allows foreign legal practitioners to establish a commercial presence or be transferred to South Africa. Gats Members are in terms of Article VII free to introduce discipline qualification requirements through bilateral or plurilateral mutual recognition agreements. 

Impact on trade

With the advent of the African Continental Free Trade Area (AfCFTA) and the movement toward creating a single African market on trade in services, African countries need to reconsider how they handle the issue of foreign-trained and admitted legal practitioners.

AfCFTA is meant to drive integration, production and industrialisation, employment creation, income generation and poverty reduction. To this end, restrictions in service professions such as the legal profession must be mindful of this idealistic African renaissance journey.

The services sector is critical to AfCTA and transforming Africa into an integrated economy. Any unjustifiable and unfair discrimination approach may negatively impact the already below-par intra-African services trade and diversification.

Rules and conditions regarding the legal profession must take into account the Protocol on Trade in Services as far as the services trade liberalisation among State Parties is concerned. It would be folly, however, to argue for an open sesame approach. A country’s liberalisation of sectors and sub-sectors must be on a reciprocal basis. Country A should not expect its citizens and companies to practise law in Country B when it denies the same opportunities to citizens of Country B in its jurisdiction. There is thus some element of international relation and comity at a broader level.

Linked to my above views on Gats and the AfCFTA Protocol on Trade and Services is the need for an effective regional framework to coordinate the provision of legal services in the SADC region. The SADC’s efforts to progressively eliminate barriers to movement across its member countries should not be seen as undermined or stunted by decisions such as the Constitutional Court ruling.

If anything the decision must provide the SADC members with the opportunity to relook at their services sector’s liberalisation trajectory, and the establishment of a forward-thinking regional migration plan.

Communities of states have different approaches to this issue. European Community directives have dealt with qualification requirements within the EU. For instance, Directive 77/249/EEC requires each member state to recognise lawyers from another member state to provide occasional services. Directive 89/48/EEC, on the mutual recognition of qualifications, required member states to recognise foreign qualifications through an aptitude test or a waiting period of practice before a lawyer can become a fully qualified member of the host state’s legal profession.  

Directive 95/5/EC allows a foreign lawyer from one EU member state to practice host country law immediately after simply proving registration as a lawyer in another member state, with no limitations on the scope of practice and without supervision by locally qualified lawyers. A caveat to this directive is that for the first three years such lawyers can only practice host country law under their home professional titles, and thereafter be entitled to gain admission to the host profession and use host country professional titles.

On the other hand, the North American Free-trade Agreement (Nafta), on which AfCFTA is modelled, contains no binding provisions on the mutual recognition of qualifications among its members. However, Nafta members have also undertaken to eliminate any citizenship or permanent residency requirement for the licensing and certification of professional services providers.

In conclusion, South Africa is still the region’s top immigration destination because of “its middle-income status, stable democratic institutions, and comparatively industrialised economy”. The country must leverage the benefits that come with this distinction. DM