Lesotho law students who studied in SA take fight to practise to ConCourt

The Constitutional Court is set to kick the new year off with an important case for South Africa’s legal profession, centred on whether foreign nationals should be allowed to practise as lawyers here.

In September, the Free State High Court in Bloemfontein declared as unconstitutional and invalid Section 24(2) of the Legal Practice Act (LPA) – which states that “a person may only practise as a legal practitioner if he or she is admitted and enrolled to practise as such in terms of this Act”; and that “the high court must admit to practise and authorise to be enrolled as a legal practitioner, conveyancer or notary or any person who, upon application, satisfies the court that he or she [among others] is a South African citizen or permanent resident in the republic”.

This on the back of two initially separate applications from Lesotho citizens Relebohile Rafoneke and Sefoboko Tsuinyane – who, despite having successfully completed their law degrees and their articles in SA, could not be admitted because of the relevant legislation – which were ultimately heard together.

The section was only declared unconstitutional and invalid in so far as it did not allow foreigners to be admitted and authorised to be enrolled as non-practicing legal practitioners, though.

The high court stopped short of throwing out the legislation in its entirety and ruling that foreigners should be allowed to practise in SA unless they had citizenship or permanent residency, finding that differentiating between the different categories served a legitimate government purpose.

Rafoneke and Tsuinyane have now approached the ConCourt in the hope of overturning this decision, with their application set down to be heard on 24 February – making it one of the first on the apex court’s roll in 2022.

Among the high court’s findings was that differentiating between foreign and SA citizens or permanent residents was justified by an objective to cater “for young South Africans or permanent residents to enter the profession without competition from foreigners…”.

This, argued Rafoneke and Tsuinyane in their papers, was a material error as the LPA allowed foreign nationals to do their clerkships here in any case.

They argued the high court “confused the issue of admission and enrolment with that of employment”.

bernadettew@citizen.co.za