South Africa: Regulatory authority’s bar on properly qualified non-citizen lawyers practising, merely because of citizenship, is an unjustifiable human rights violation
The International Commission of Jurists (ICJ) and Lawyers for Human Rights (LHR) are disappointed by the 2 August judgment of the South African Constitutional Court in the Relebohile Cecilia Rafoneke v Minister of Justice and Correctional Services (Rafoneke) case, which the Court heard together with the Bruce Chakanyuka & Others v Minister of Justice and Correctional Services & Others (Chakanyuka) case. Rafoneke concerns the constitutionality of Section 24(2)(b) of the Legal Practice Act 28 of 2014 (LPA), which prohibits otherwise qualified lawyers from practising law in South Africa solely on the basis of their citizenship.
The applicants in this case are two Lesotho and three Zimbabwean nationals who all reside lawfully in South Africa and are appropriately qualified to practise as lawyers in the country. Nonetheless, they are prevented from being admitted to practice solely because they hold neither South African citizenship nor permanent residence status, which the Legal Practice Act requires. In the Rafoneke case, the applicants were partially successful in a challenge before the Free State High Court, which found that Section 24(2)(b) was unconstitutional and invalid to the extent that it does not allow non-citizens to be admitted and authorized to be enrolled as non-practising legal practitioners. The Constitutional Court, however, did not confirm this declaration, finding, instead, that the provision is not unconstitutional to the extent that it prevents those who are neither South African citizens nor permanent residents from being enrolled as legal practitioners.
Earlier this year, ICJ appeared as a friend of the court in the Rafoneke case before the Constitutional Court of South Africa, submitting written arguments through representation from LHR. Advocate Thabang Pooe presented ICJ’s oral arguments to the Court. Alongside Rafoneke, the Court was also asked to hear Chakanyuka, which involved a similar legal challenge to Section 24(2)(b) brought by the Asylum Seeker, Refugee & Migrant Coalition.
The ICJ’s submissions emphasized South Africa’s numerous legal obligations, under domestic and international law, to protect and promote the right to work for citizens and non-citizens alike. ICJ’s arguments also highlighted continual warnings from various South African courts and international human rights bodies about inadvertently fueling discrimination against non-citizens through law and policy that restrict their ability to work.
“The right to work, as enshrined in various international human rights instruments to which South Africa is a party, is afforded to all regardless of citizenship, nationality or immigration status. Not only does the offending provision of the LPA constitute an unjustifiable limitation of human rights, but also contributes to already rampant xenophobic sentiments depicting non-citizens as a “threat” to South African society.” said ICJ Africa Director, Kaajal Ramjathan-Keogh.
While restrictions or limitations of the right to work are permissible, restricting or denying equal access to work opportunities, purely on the basis of citizenship, nationality or immigration status may violate international human rights law and standards, and thus will always require justification. Section 24(2)(b) of the LPA is a particularly inflexible provision barring a large group of non-citizens from being admitted as legal practitioners. The Constitutional Court, however, held that this is an acceptable line to draw, stating that, “the Legislature has differentiated between permanent residents and other kinds of residents. It has done so to protect opportunities for South Africans. That is a permissible policy to adopt.” It further held that the section does not impose a blanket ban on non-citizens entering the legal profession generally.
“While empathizing with the plight of citizens in the midst of high rates of unemployment, we must be wary of limiting the right to work in a discriminatory manner that goes against South Africa’s legal obligations to protect this right for all,” added Sharon Ekambaram, Head of Refugee & Migrant Rights Programme at LHR.
The ICJ will continue studying the judgment and may make more detailed comments at a later stage.
Read the Constitutional Court judgment here.
Listen to ICJ’s oral arguments, presented to the Constitutional Court by Advocate Thabang Pooe here.
Read the ICJ’s heads of arguments, here.
Find more information about the case, here.
Mulesa Lumina, Communications and Legal Officer – ICJ Africa Programme, e: Mulesa.Lumina@icj.org.
Sharon Ekambaram, Head of Refugee & Migrant Rights Programme – Lawyers for Human Rights, email@example.com.Press releases