Zimbabwean lawyers challenge SA law preventing them from practicing

Three Zimbabwe-born law graduates are taking on a piece of legislation dating back to the apartheid-era, which bars them from admission as legal practitioners in South Africa because while they’ve all been legally living, working and studying in the country for several years – they don’t have permanent residency.

Between them, Bruce Chakanyuka, Nyasha Nyamugure and Dennis Chadya have a total of five law degrees – from a
range of respected institutions, including Unisa, Rhodes, Stellenbosch and KwaZulu-Natal universities. But none of them can legally practice their profession because of the offending legislation.

So now, together with the Asylum Seeker, Refugee and Migrant Coalition, they’ve turned to the High Court in Pretoria with a constitutional challenge to the Legal Practice Act.

The requirements for admission as a lawyer in SA are set out in section 24 of the Legal Practice Act and include, among others, that you must be a South African citizen or hold permanent residence.

Chakanyuka argued in the founding papers, though, that this violated their rights to dignity and equality.

“The rights of non-citizens are significantly affected by the permanent residence requirement. Their position is analogous to that of individuals denied employment opportunities on the basis of inalienable characteristics such as HIV status,” he said.

“The dignity of non-citizens is adversely affected by the permanent residence requirement in two principal respects – the impact on their self worth, recognition, and fulfilment as legal professionals and their family life given the adverse effects on family subsistence that the exclusionary provision imposes.”

Chakanyuka initially fled the economic and political unrest of his home country in 2007 and subsequently received a special permit which allowed him to live, work and study in SA in 2009.

In April 2019, he graduated from Unisa with an LLB. And last year, he passed the national bar exam. But, he said in the court papers he could not be admitted because of his status in the country – and was currently working as a waiter.

He explained how Nyamagure – who holds a Masters of Laws from Stellenbosch University – and Chadya had found themselves in the same boat and how they had tried applying for permanent residence but had been unsuccessful.

In Nyamagure’s case, he said, he had since managed to secure a high court order for the department to grant him
permanent residence but it had still not complied and he had now instituted contempt proceedings.

Chakanyuka argued the offending legislation was first introduced in 1964 as a means of barring black people from the “homelands” from the profession. He also argued that in many other countries – including Australia, the United King and Canada as well as neighbouring Botswana, Lesotho, Mozambique, Namibia, the Seychelles, Swaziland, Zambia and Zimbabwe – there were generally no permanent residence requirements for admission as a legal practitioner.