An analysis of the Constitutional Court ruling in Relebohile Cecilia Rafoneke and Others v Minister of Justice and Correctional Services and Others

As many already know, on 16 September 2021, a highly contentious matter was brought before the High Court of South Africa, Free State Division, Bloemfontein for an order declaring the provisions of section 24(2) of the Legal Practice Act 28 of 2014 (“Legal Practice Act”) unconstitutional and invalid, but only to the extent that they do not allow foreigners who are not permanent residents in South Africa to be admitted and authorised to be enrolled as non-practising legal practitioners.

The applicants in the matter argued that section 24(2) and section 115 of the Legal Practice Act, as they currently read, violate an individual of foreign nationality’s right to equality because the provisions differentiate between South African citizens and permanent residents, on the one hand, and foreigners on the other. They alleged there is no rational relationship between the differentiation and legitimate governmental purpose, and that the differentiation amounts to discrimination that is unfair.

On 2 August 2022, the constitutional court of South Africa dismissed the appeal of the High Court of South Africa, Free State Division, Bloemfontein decision in the case of Rafoneke v Minister of Justice [2021] 3609-2020 (FB) which had declared that section 24(2)(b), read with section 115, of the Legal Practice Act 28 of 2014 inconsistent with the Constitution of the Republic of South Africa, Act 108 of 1996, and therefore invalid (“Constitutional Court Judgment”).

The crux of the Applicants arguments before the Constitutional Court were, inter alia, that the provisions within the Legal Practice Act create an absolute bar to entry into the profession by persons who hold visas and permits that allow them to live and work in South Africa, and that a court or functionary seized with an application for admission as a legal practitioner has no discretion to authorise the admission of a duly qualified person who has no citizenship or permanent residence. The Applicants put forth that differentiation had no rational connection to a legitimate governmental purpose because, irrespective of the fact that the immigration laws allow them to take up employment in the country, they are still not eligible for admission and enrolment as legal practitioner. Other arguments included the court should take into account sections 22 and 27 of the Refugees Act 130 of 1998, and that a declaration of constitutional invalidity should be subject to a suspension, to allow Parliament to deal with the constitutional defect and that during the period of suspension the provisions should be read to include “lawfully entitled to live and work in South Africa”.

The Respondents on the other hand, argued that the provisions of the Legal Practice Act do not constitute a blanket ban on all foreign nationals, it instead merely precludes foreign nationals who are not permanent residents but only possess for example, study visas or special exemption permits. The Respondents further contended that were in fact in line with governmental obligations, which seek to ensure that foreign nationals do not circumvent immigration and labour laws by securing a license to practise law under the auspices of student visas the sections are in line with governmental obligations, which seek to ensure that foreign nationals do not circumvent immigration and labour laws by securing a license to practise law under the auspices of student visas. The further argued the differentiation is justifiable, fair and consistent with section 9(5) of the Constitution of South Africa 108 of 1996 (“the Constitution”) and that to this effect, the preamble of the Legal Practice Act embraces the provisions of section 22 of the Constitution, as the Legal Practice Act was promulgated to regulate the legal profession in the public interest.

Despite the applicant’s submissions that the differentiation based on citizenship is on the listed ground of social origin, the court held that citizenship is not a matter of social origin but rather national origin. Therefore, the grounds submitted by the Respondents on the differentiation rational, collectively serve a legitimate governmental purpose for the differentiation, in that South Africa has an obligation to protect the interests of its citizens in terms of section 22 of the Constitution which allows for citizens to choose their trade, occupation or profession freely. The court further held that section 22 of the Constitution empowers the State to enact legislation to regulate freedom of trade, occupation and profession, and is silent regarding non-citizens and therefore consequently, does not afford that right encompassed in section 22 of the Constitution to them.

The court reasoned that the distinction between foreigners who have been granted permanent residence in South Africa and those who have not, is exactly the fact that those individuals who are not permanent residents have not been granted the same status as permanent residents with regards to the admission status. According to the court, the difference in status carries different rights and corresponding obligations. In other words, 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

In conclusion, the court held that section 24(2) of the Legal Practice Act mirrors the provisions of section 22 of the Constitution, therefore it cannot be said to be unconstitutional. Therefore, the activity which the Applicants sought constitutional protection for was the enjoyment to choose one’s vocation and as such, according to the Court, cannot be held to amount to unfair discrimination, as this right does not fall within a sphere of activity protected by a constitutional right available to foreign nationals such as the applicants. Therefore, it cannot be said that such provisions amount to unfair discrimination, as this right does not fall within a sphere of activity protected by a constitutional right available to foreign nationals such as the applicants.

The impact of this judgment, albeit recent, will have far reaching implications for all foreign nationals who wish to study and work in South Africa.