This is the question faced by the Constitutional Court in Relebohile Cecilia Rafoneke and Others v Minister of Justice and Correctional Services and Others  ZACC 29. In this article, we briefly unpack the issues, the enquiry conducted by the Constitutional Court, and its findings.
For persons pursuing an Application for their Admission and Enrolment as a Legal Practitioner, a base level requirement in such pursuit is to satisfy the Court that he or she is a South African citizen or permanent resident in the Republic. This is required in terms of Section 24(2)(b) of the Legal Practice Act (“the LPA”). The erstwhile Attorneys Act and Admission of Advocates Act had the same requirement, which will still apply in the case of Section 115 of the LPA being invoked.
An Application was brought in the Free State Division of the High Court, seeking an order declaring Section 24(2) and Section 115 of the LPA unconstitutional and invalid (Rafoneke v Minister of Justice and Correctional Services and Others 2021 JDR 2476 (FB)). The issue was that non-citizens and non-permanent residents cannot be admitted and enrolled as Legal Practitioners and are therefore unfairly discriminated against. On 16 September 2021, the High Court declared the provisions of Section 24(2) unconstitutional and invalid, but only to the extent that they do not allow foreigners in South Africa to be admitted and enrolled as non-practising Legal Practitioners.
The Applicants, unsatisfied with the limited nature of the Declaration of the High Court, brought an Application for Leave to Appeal to the Constitutional Court. The Application was opposed by the Minister of Justice and Correctional Services and the South African Legal Practice Council, who both submitted that the High Court erred in finding that Section 24(2) of the LPA is unconstitutional and invalid to any extent.
The Constitutional Court’s enquiry entailed first determining whether there is differentiation between people or categories of people and, if so, whether the differentiation bears a rational connection to its stated purposes. In this instance, the answer to the former was common cause and in the affirmative. There is clear differentiation between persons. However, the Court held that there is a proper basis to distinguish the position of permanent residents and other categories of residents. Section 22 of the Constitution provides that only citizens embody the right to choose their trade, occupation or profession freely. The legislature, in drafting the LPA, had therefore gone further than what is required in terms of Section 22 by allowing permanent residents to be admitted as Legal Practitioners. 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 could not be said for non-citizens who are refugees, or who are on study or work visas. Therefore, the line drawn in the LPA is permissible and serves a legitimate Government purpose.
Having found that there is a legitimate Government purpose served by the policy, the final steps of the enquiry entailed determining whether the differentiation amounts to discrimination and, if so, whether such discrimination is unfair. The Constitutional Court proceeded on the assumption that the differentiation does amount to discrimination, without making a finding in this regard. In determining whether it was unfair, the Court held that the restriction for purposes of admission does not operate as a blanket ban to entry into the legal profession i.e. employability is not curtailed in different capacities that do not require admission as a Legal Practitioner. The activity which the applicants sought constitutional protection for is the enjoyment to choose one’s vocation. As already discussed, the Constitutional Court found that this right does not fall within a sphere of activity protected by a constitutional right available to foreign nationals such as the Applicants. As such the Court held that the differentiation cannot be held to amount to unfair discrimination.
The Constitutional Court did not confirm the High Court’s declaration of constitutional invalidity and dismissed the Application for Leave to Appeal.