Justice minister, Legal Practice Council oppose Zim-born law graduates’ court challenge

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Three Zimbabwean-born law graduates, who have fully qualified in South Africa, are challenging a rule that prevents them from practising law in SA.
According to the Legal Practice Act, only permanent residents and citizens may be admitted to the profession.
The Scalabrini Centre is opposing the Legal Practice Council’s stance, stating that its submissions to the court are “premised on the most vulgar of stereotypes and are simply xenophobic”.
The Legal Practice Council states that it does not believe the relevant section of the Act is unconstitutional.
A Department of Justice representative has also argued that the legal profession is not a rare or critical skill and that many South African citizens struggle to get work.

South Africa’s Legal Practice Council (LPC) and the Minister of Justice are opposing a court bid by three Zimbabwean-born graduates to change legislation which bars them from practising law in South Africa.

Bruce Chakanyuka, Nyasha James Nyamugure and Dennis Tatenda Chadya, with the assistance of the Asylum Seeker Refugee and Migrant Coalition, launched a constitutional challenge to the Legal Practice Act (LPA).

The Act provides only for the enrolment and admission of attorneys and advocates who are either citizens or have permanent residence permits. The three graduates have permits which allow them to live, study and work in South Africa. They have also completed their degrees, written board exams and done their articles and pupillage.

The matter is pending before the Gauteng High Court in Pretoria.

Three other organisations, the Scalabrini Centre of Cape Town, the Pan African Bar Association and the International Commission of Jurists, have lent support to the applicants’ plight. They have asked to be admitted as amicus curiae (friends of the court).

The Scalabrini Centre, which promotes and protects the rights of asylum seekers and refugees, has strongly opposed the LPC’s stance, stating that its submissions to the court are “premised on the most vulgar of stereotypes and are simply xenophobic”.

In an affidavit, Scalabrini Centre executive director, Giulia Treves, refers to the “extremely concerning justifications” put forward by the LPC in an attempt to justify the blanket exclusion from the legal profession of those who are not citizens or permanent residents.

These include that asylum seekers and refugees are allegedly incapable of acting as officers of the court and with high ethical standards; that they are not fully committed to attaining justice within South Africa; they do not respect the laws of South Africa; they do not have the necessary appreciation of South African institutions; and they are incapable of being regulated by the LPC. It also states that they are an unreliable drain on the country’s resources.

Treves says it’s important for the centre to get involved in the matter to ensure that the voices of this vulnerable group of people are heard.

In opposing documents, LPC chairperson Kathleen Matolo-Dlepu, says it does not believe the relevant section of the Act is unconstitutional. She points out that the LPC is not the “custodian” of the Act, but merely ensures that legal practitioners comply with provisions. She says the relief that the applicants are seeking is essentially against the Minister of Justice and Correctional Services.

Matolo-Dlepu adds:Opening the floodgates of persons who wish to practise as attorneys or advocates may lead to abuse, particularly by those who will suddenly be entitled to practise in South Africa by simply obtaining a work permit … this will prejudice legal practitioners who have been admitted to practise.

She also says the courts “should not be burdened with requests to determine policy”. Temporary residents are not prevented from working in the legal sector, but only exempt from being admitted as officers of the court, she says.

“The legal profession involves extraordinary obligations to duty and conscience and requires the highest ethical standards … in order to fulfil their role in the administration of justice and in our society, legal practitioners must be fully committed to South African society. Only citizenship and permanent residency imply such full commitment.”

On behalf of the minister, Kalayvani Pillay, a deputy director in the department of legal services, suggests that the Department of Home Affairs be included in proceedings because the case deals with immigration laws.

Pillay says the legal profession is not a rare or critical skill and many South African citizens struggle to get work.

Nasreen Rajab-Budlender, the national chairperson of the Pan African Bar Association – which set up the Pius Langa School of Advocacy – says that if admitted as a friend of the court, it will submit that the exclusion of non-citizens is akin to apartheid policies.

– Originally published on GroundUp.