Johannesburg - Justice and Correctional Services Minister Ronald Lamola has asked the Constitutional Court to overturn a high court ruling allowing foreign nationals to be admitted and authorised to enrol as non-practising legal practitioners.
In September, the full bench of the Free State High Court – Judge President Cagney Musi, Judge Pitso Molitsoane and Acting Judge Germa Wright – declared the Legal Practice Act (LPA) unconstitutional and invalid to the extent that it does not allow foreigners to be admitted and authorised to enrol as non-practising legal practitioners.
Lesotho nationals Relebohile Rafoneke and Sefoboko Tsiunyane, who completed the law studies at the University of the Free State, separately applied to the high court to be allowed to practise as lawyers in South Africa.
Their application was only partly successful with the court finding that authorising the LPC to enrol a person as a practising legal practitioner means that the court effectively entitles the person, without more, to work in the country.
”Admitting and authorising the enrolment of such a person would be tantamount to changing such person’s status from student to worker without the intervention of the Department of Home Affairs. The court would then be part of a process that short-circuits a legal process. That cannot be right,” the high court judges found.
In his written submissions, Lamola said the law was clear that foreign nationals who were non-citizens should be employed after a diligent search had been done by an employer and where that foreign national has qualifications, skills and experience that no citizen or permanent resident has in the country.
”The legal profession is not a rare or critical skill. There are many law graduates in South Africa, who are citizens and permanent residents. These law graduates struggle to secure employment,” he explained.
Lamola warned that if foreign nationals were allowed to practise without following proper labour and immigration laws, it was likely to have an adverse effect on those law graduates who were South African citizens or permanent residents.
According to Lamola, the section of the LPA declared unconstitutional and invalid by the Free State High Court passed the constitutional muster.
He also wants the apex court to dismiss Rafoneke and Tsiunyane’s appeal of the high court judgment and that the section of the LPA declared unconstitutional and invalid, is constitutionally valid, insofar as it prevents foreigners from being admitted and authorised to be enrolled as non-practising legal practitioners, should be set aside.
Rafoneke and Tsiunyane fear that they may lose their jobs as consultant and researcher, respectively, if they are not admitted as attorneys.
The Legal Practice Council (LPC) said the differentiation between citizens and permanent residents has been found to constitute unfair discrimination but differentiation between citizens and permanent residents on the one hand, and foreign nationals being who are temporary residents on the other, has been countenanced and found not to constitute unfair discrimination.
The LPC has told the apex court that it would abide by its ultimate determination.
Zimbabweans Bruce Chakanyuka, Nyasha Nyamugure, Dennis Chadya, Daphne Makombe and Fortunate Dunduru have also asked to intervene in the matter.
They have indicated that they are all people who are lawfully entitled to live and work in South Africa and meet all the legal requirements for admission as legal practitioners, save that they are neither citizens nor permanent residents.
A similar matter brought by Chakanyuka, Nyamugure and Chadya is pending before the North Gauteng High Court action to determine whether they meet the requirements for admission as legal practitioners except that they are neither citizens nor permanent residents.
The Constitutional Court will hear the matter next Thursday.
loyiso.sidimba@inl.co.za
Political Bureau