ALERT PRO BONO & HUMAN RIGHTS - Cliffe Dekker Hofmeyr
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1 OCTOBER 2021
PRO BONO & HUMAN RIGHTS
ALERT
IN THIS So close yet so far: An analysis of
Rafoneke v Minister of Justice and the issue of
ISSUE admitting foreigners into the legal profession
The legal profession plays an important role in the maintenance
of peace and order in society, in upholding the rule of law, and
in advancing the collective aspirations of a nation, especially in a
democratic dispensation such as ours. It therefore comes as no
surprise that the criteria regarding eligibility to participate in this
profession is of heightened interest to the nation.
A victory for unmarried fathers
Previously, when a child was born in South Africa to unmarried
parents that child was automatically assigned their mother’s
surname. Such child could only take their father’s surname where
their mother and father jointly requested – in the presence of a
designated Department of Home Affairs (DHA) official – for the
child to bear their father’s surname.
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PRO BONO & HUMAN RIGHTS
So close yet so far: An analysis of
Rafoneke v Minister of Justice and
the issue of admitting foreigners into
the legal profession
The legal profession plays an important The applicants, both of whom are
role in the maintenance of peace and Kingdom of Lesotho nationals with
Section 24(2)(b) of the order in society, in upholding the rule temporary work permits that entitle them
LPA restricts the right to of law, and in advancing the collective to work in the Republic of South Africa
aspirations of a nation, especially in and who studied and qualified to
be admitted and enrolled a democratic dispensation such as become lawyers in South Africa (but
as a legal practitioner in ours. It therefore comes as no surprise who are not permanent residents),
South Africa to citizens and that the criteria regarding eligibility sought to have sections 24(2)(b) and
permanent residents. to participate in this profession is of (3) of the LPA, read with section 115,
heightened interest to the nation. declared unconstitutional.
Recently, in Rafoneke v Minister of Justice They argued that section 24(2)(b)
[2021] 3609-2020 (FB) a full bench of violates their right to equality because
the Free State Division of the High Court, it differentiates between South African
Bloemfontein was required to pronounce citizens and permanent residents on the
on the constitutionality of the provisions one hand and foreigners on the other.
of the Legal Practice Act 28 of 2014 (LPA) They contended that there is no rational
that restrict admission and enrolment relationship between the differentiation
into the profession to citizens and and a legitimate governmental purpose.
permanent residents. They further argued that even if the court
found that there is a nexus between
In a valiant attempt at balancing the
the differentiation and a legitimate
competing interests at play in the matter,
governmental purpose, it still amounts
the court held that while it constituted
to discrimination on the grounds of
unfair discrimination to prohibit locally
social origin or nationality and that the
trained and qualified foreigners from being
discrimination is unfair and does not
admitted and enrolled as (non-practising)
withstand constitutional scrutiny. It was
legal practitioners, it was fair to prohibit
also contended that section 115 of the
them from being admitted and enrolled
LPA discriminates against them because
as practising legal practitioners. This in
foreign legal practitioners from designated
deference to the Government’s policy
countries may be admitted and enrolled
objective of protecting employment
to practice in South Africa without being
opportunities for citizens and
citizens or permanent residents, whereas
permanent residents.
they, who studied and trained here,
The legal issues may not.
Section 24(2)(b) of the LPA restricts the It is important to note that both applicants
right to be admitted and enrolled as a legal had met all the requirements to be eligible
practitioner in South Africa to citizens and for admission in terms of the section
permanent residents. except for the requirement that they be
citizens or permanent residents.
2 | PRO BONO & HUMAN RIGHTS ALERT 1 October 2021
PRO BONO & HUMAN RIGHTS
So close yet so far: An analysis of
Rafoneke v Minister of Justice and
the issue of admitting foreigners into
the legal profession...continued
Due to the importance of the matter, the Despite concerns having been raised that
court requested the Free State Society of the citizenship or permanent residence
Despite concerns having Advocates to avail one of its members to requirement may be unconstitutional,
assist the court as a friend of the court. Parliament chose to retain this requirement
been raised that the
when enacting the LPA, which came into
citizenship or permanent In defence of the provisions, the three
force in November 2018. In doing so it
ministers who were joined as respondents
residence requirement seems that reliance may have been placed
(the Minister of Justice and Constitutional
may be unconstitutional, Development, the Minister of Home Affairs
on the following arguments made in favour
of its retention in a letter submitted to the
Parliament chose to and the Minister of Labour) averred that
office of the Deputy Director-General:
retain this requirement there is a rational connection between
Immigration Services by the then Law
the differentiation and a legitimate
when enacting the LPA, government purpose. Both they and the
Society of South Africa (LSSA):
which came into force in friend of the court contended that the “A ‘blanket’ provision for foreigners to
November 2018. applications should be dismissed “because qualify will have a negative impact on
the applicants want to circumvent the many graduates who find it difficult to
employment and immigration laws” secure articles or community service
of South Africa. The ministers referred for purpose of qualification.
extensively to the provisions of the
We should guard against actions
Immigration Act 13 of 2002 (IA) and the
that will limit the transformation
Employment Services Act 4 of 2014 (ESA)
of the profession, both in terms
to show the alleged rational connection
of access by law graduate and
between the impugned provisions and
professional advancement of young
the Government’s purpose. The Legal
South African practitioners.
Practice Council (LPC) made submissions
but did not take a definitive stance. A legal practitioner providing legal
services to local clients, which may
Background to section 24 (2)(b) of
affect local persons other than the
the LPC
clients, must have permanent presence
The requirement that in order to be in South Africa, in cases detrimental
admitted as an attorney a person must be or damaging consequences flow from
either a citizen or permanent resident is such legal services. The continued
not a new requirement. Section 15(1)(ii)(aa) presence of the legal practitioner is to
of the Attorneys Act 53 of 1979 (which was protect the clients and the public.
repealed by the LPA) required that in order
The permanent residence of the legal
to be admitted and enrolled by a court a
practitioner places that practitioner
person had to be a South African citizen
under the regulatory and disciplinary
or have been lawfully admitted to the
jurisdiction of the statutory Law
Republic for permanent residence and be
Societies and the High Courts.
ordinarily resident in the Republic.
Members of the public thus have
some redress in cases where the
legal practitioner defrauded them or
otherwise caused prejudice to them.”
3 | PRO BONO & HUMAN RIGHTS ALERT 1 October 2021
PRO BONO & HUMAN RIGHTS
So close yet so far: An analysis of
Rafoneke v Minister of Justice and
the issue of admitting foreigners into
the legal profession...continued
The findings of the court Going on to apply the second and third
stages of the Harksen test, it found that
In reaching its decision the court placed
On obtaining permanent particular emphasis on the wording of
although the section 24(2)(b) prohibition
on foreigners being enrolled to practice
resident status they section 24(b) of the LPA and the distinction
did discriminate on an analogous ground,
could then apply drawn between admission by a court and
the discrimination was not unfair
enrolment to practice by the LPC. In this
for conversion from seemingly because although the applicants
regard it asked the parties to address it on
non-practising to practising the question of whether a person – citizen,
could not practice as attorneys they were
still entitled to work in the country.
legal practitioners. permanent resident or non-citizen – could
be admitted as a practitioner without being However, in an apparent attempt to find
allowed to practice. an appropriate balance the court then
went on to find that there may be benefits
Relying heavily on the submission by the
derived by both citizens and non-citizens
ministers, it found that the LPA should
from a dispensation that allows applicants
not be viewed in isolation and that the
(including foreigners) who meet all
impugned provisions must be considered
the (other) criteria to be admitted as
in conjunction with the IA and the ESA.
“non-practising” legal practitioners. For
Applying the Harksen three-stage equality
example, some non-citizens may want
clause analysis, it found that it was
to be admitted as non-practising legal
“rational for the then LSSA and the LPC to
practitioners and work in South Africa as
take a stance that is in favour of catering
legal advisors or for non-governmental
for young South Africans or permanent
or community-based organisations.
residents to enter the legal profession
Alternatively, they might want to get
without competition from foreigners from
admitted as non-practising legal
the rest of the world.”
practitioners while waiting to be admitted
Apparently persuaded by the ministers’ as permanent residents. On obtaining
submission that the applicants sought permanent resident status they could then
to circumvent the employment and apply for conversion from non-practising
immigration laws of the country, it found to practising legal practitioners.
that if foreign nationals were allowed Moreover, the court found that this would
to practice in this country both the promote one of the objectives of the
Government’s objectives and these LPA – to remove unnecessary or artificial
laws “would be rendered nugatory.” barriers for entry into the legal profession.
This without considering the argument
Having considered the statistics of
put forward by the applicants that
unemployed graduates, the court found
this submission “confused the issue of
that an indiscriminate and blanket bar
admission with employment. Of course
against non-citizens who find themselves
a foreign national admitted as a legal
in similar positions to the applicants being
practitioner must still comply with the
admitted in the Republic of South Africa
relevant requirements of employment in
served no governmental purpose and
the Republic, including work visas.”
4 | PRO BONO & HUMAN RIGHTS ALERT 1 October 2021PRO BONO & HUMAN RIGHTS
So close yet so far: An analysis of
Rafoneke v Minister of Justice and
the issue of admitting foreigners into
the legal profession...continued
was irrational. This because only 2,4 % Second, we believe the court failed to
of unemployed persons were graduates. properly consider the impact of not
While we laud the It accordingly found that section 24 of the allowing those who have spent years
LPA is unconstitutional to the extent that it studying law at South African universities,
court’s attempt to assist
prohibits non-citizens from being admitted completing their articles of clerkship
foreigners by striking the and being authorized to be enrolled as or pupillage, and studying and writing
balance it did, we believe non-practising legal practitioners. their board and bar exams to practice.
there were flaws in the Comment
It also failed to properly consider the
rationality of allowing them to make use
court’s reasoning. While we laud the court’s attempt to assist of scare university resources and take up
foreigners by striking the balance it did, coveted articles of clerkship and pupillage
we believe there were flaws in the court’s positions, when they would ultimately
reasoning. We believe that the court’s not be able to practice or render much
reasoning in finding that “prohibiting needed legal services. In our experience
foreigners from being admitted and many of the people affected by this are
enrolled as practising legal practitioners foreigners who have lived in the country,
was rational and fair”, was unconvincing. sometimes for more than 10 years, on
In particular, the finding that allowing special dispensation permits and who
them to be enrolled to practice would are effectively permanent residents,
render our immigration and labour laws but who, because of the conditions of
nugatory failed to take into account the these dispensation permits, are denied
applicants’ argument that once admitted permanent resident status.
and enrolled they would still have to meet
Ultimately the matter will have to be
the immigration and ESA requirements
decided by the Constitutional Court
before being entitled to work or practice
in confirmation proceedings in terms
as attorneys.
of section 172(2)(a) of the Constitution
and we await the apex court’s final
determination of the matter with
keen interest.
Jacquie Cassette, Gift Xaba
and Shandré Smith
5 | PRO BONO & HUMAN RIGHTS ALERT 1 October 2021PRO BONO & HUMAN RIGHTS
A victory for unmarried fathers
Previously, when a child was born in and since the mother’s visitor’s visa had
South Africa to unmarried parents expired, she was considered legally absent
In the High Court the that child was automatically assigned from South Africa and unable to provide
parents, assisted by the their mother’s surname. Such child her consent to her daughter bearing the
could only take their father’s surname surname of her father (as was required by
Centre for Child Law, where their mother and father jointly section 10 of the Act). The DHA refused
sought to have the requested – in the presence of a to register their daughter’s birth until the
DHA’s refusal to register designated Department of Home mother produced a valid passport and visa
their daughter’s birth Affairs (DHA) official – for the child or permit, as per the Regulations of the Act.
to bear their father’s surname. This
reviewed and set aside, prohibited unmarried fathers (even
In the High Court the parents, assisted
by the Centre for Child Law, sought to
to compel the DHA to though they may well have been the
have the DHA’s refusal to register their
register their daughter’s primary caregivers) from passing their
daughter’s birth reviewed and set aside,
surname to their children if the mother
birth, and challenged refused her consent or was unable to
to compel the DHA to register their
the constitutionality of provide consent where she was absent.
daughter’s birth, and challenged the
constitutionality of sections 9(2) and 10
sections 9(2) and 10 of Recently the Constitutional Court
of the Act and the DHA’s interpretation of
the Act and the DHA’s declared this antiquated approach
the accompanying Regulations. The High
to the ability of unmarried fathers
interpretation of the to pass along their family names as
Court granted the parents relief regarding
accompanying Regulations. the registration of their daughter’s birth.
unconstitutional and consequently
It also found that those sections in the
struck section 10, and the related part
Act could be read to be constitutionally
of section 9(2), from the Births and
compliant, however the relevant
Registrations Act 51 of 1992 (Act).
Regulations were declared constitutionally
This was brought about by an application invalid and, in an attempt to maintain the
to the Eastern Cape High Court by a integrity of the Act, proposed to read-
South African father, and a mother who in words to cure the defects in those
is a citizen of the Democratic Republic of Regulations. An appeal was made to
Congo (DRC) - who was legally absent the full bench of the same court on the
from South Africa at the time of her basis that the reading-in proposed by the
daughter’s birth - because the father was lower court did not cure the inability of an
unable to give notice of and register his unmarried father to register his child’s birth
daughter’s birth under his own surname. under his surname in the absence of the
The parents’ customary law marriage was child’s mother. The full court then declared
not registered in the DRC which in turn section 10 of the Act constitutionally
means their marriage is not recognised invalid and as an interim remedy proposed
in South Africa. Therefore, their daughter additions to the offending section.
was treated as being “born out of wedlock”
6 | PRO BONO & HUMAN RIGHTS ALERT 1 October 2021PRO BONO & HUMAN RIGHTS
A victory for unmarried fathers...continued
Constitutional Court confirmation found that section 10 of the Act irrationally
discriminated between categories of
The Constitutional Court was requested
The Constitutional Court by the Centre for Child Law to confirm
people, and in the absence of a legitimate
was requested by the the order of constitutional invalidity of
government purpose put forward by the
DHA, it was also found to amount to unfair
Centre for Child Law section 10 on the basis that it prohibits an
discrimination because it differentiated
to confirm the order of unmarried father from giving notice of the
between people in terms of categories
birth of his child under his surname in the
constitutional invalidity of absence of the child’s mother. The Centre
prohibited in the Constitution, known as
the “listed grounds” of marital status, sex
section 10 on the basis that argued that this prohibition discriminated
and gender. Additionally, section 10 was
it prohibits an unmarried against children who are then unable
found to perpetuate stereotypical gender
to fully realise their constitutional rights
father from giving notice of roles and the assumption that childcare
as documented citizens of South Africa.
the birth of his child under The respondents were in agreement with
is inherently a mother’s duty. The court
noted that it is both parents who bear the
his surname in the absence the applicant that section 10 of the Act
primary responsibility to care for their
of the child’s mother. was unconstitutional but argued that this
child, as is provided for in the Children’s
unconstitutionally was due to the fact that
Act 38 of 2005.
it was under-inclusive insofar as it allowed
for either parent to register the birth of the The majority also found that section 10
child, but the surname was restricted to perpetuates the notion of “illegitimacy”
that of the mother. This in turn infringed by differentiating between children born
on the father’s right to equality and the in and out of wedlock. The Constitutional
child’s right to their father’s surname from Court has previously emphasised that
birth. The respondents submitted that by children must be regarded as autonomous,
removing section 10 in its entirety as well albeit vulnerable, rights-bearers who are
as the words “subject to the provisions not mere extensions of their parents.
of section 10” from section 9(2) it would Therefore, the unfair discrimination of
enable any father, irrespective of their children based on parental marital status,
marital status, to give notice and register social origin and birth is in conflict with the
the birth of their child. principle that the best interests of the child
are of paramount importance.
The majority judgment adopted a
gender-neutral and marital-neutral The majority accordingly found section
approach by confirming the order of 10 of the Act to be manifestly inconsistent
constitutional invalidity of the full bench on with the rights to equality, human dignity
the basis that section 10 of the Act unfairly and the best interests of the child and
limited the ability of an unmarried father to should summarily be severed from the
pass his surname on to his child in terms Act with immediate effect. The majority
of the Harksen test. The Harksen test was recognised that “South African society is
formulated in a previous judgment of the not homogenous, and it must be accepted
Constitutional Court to determine whether that the concept of ‘marriage’ no longer
a piece of legislation propagates unfair retains its stereotypical meanings.”
discrimination. In this matter the court
7 | PRO BONO & HUMAN RIGHTS ALERT 1 October 2021PRO BONO & HUMAN RIGHTS
A victory for unmarried fathers...continued
Minority judgment as responsible for his child born out of
wedlock as it would an unmarried mother,
The minority judgment however, penned
Our Pro Bono and Human by our Chief Justice, took a strong
who is seemingly more accountable by
Rights Practice has been opposition to this progressive stance.
virtue of being a woman.
approached on several It held that the discrimination against Our Pro Bono and Human Rights Practice
occasions by unmarried unmarried fathers based on marital status has been approached on several occasions
was reasonable, justifiable, and fair. The by unmarried fathers wanting to register
fathers wanting to register minority found that the choice of parents their child under their surname, however
their child under their to remain unmarried necessarily extended the offending provisions of sections 9(2)
surname, however the to a father’s choice not to commit to and 10 of the Act rendered this practically
parenting his child. In this way we must impossible. This majority judgment goes
offending provisions of
“entrust the welfare or protection of the a long way in enabling fathers to take
sections 9(2) and 10 of child to the mother as opposed to an responsibility for their children, and in so
the Act rendered this unmarried father whose status as such doing moves away from the notion that
practically impossible. and commitment to the child’s wellbeing women and mothers should bear the sole
is unrecorded and cannot therefore responsibility for childcare.
be presumed.” The minority would not
presume to hold an unmarried father Shannon O’Brien
and Brigitta Mangale
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8 | PRO BONO & HUMAN RIGHTS ALERT 1 October 2021OUR TEAM
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T +27 (0)11 562 1036 E tricia.erasmus@cdhlegal.com E gift.xaba@cdhlegal.com
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Partner | Kenya Senior Associate
T +254 731 086 649 Pro Bono & Human Rights
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+254 710 560 114 E brigitta.mangale@cdhlegal.com
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