Distant Cousins and Colonial Borders: The continuation of apartheid-era exclusions from the legal profession

Background

In August 2018, the high-profile advocate Dali Mpofu landed in Harare, Zimbabwe. He sought to bring aid to the opposition MDC in its court petition to overturn the recent election results. Lead counsel in the matter was another high-profile advocate, Zimbabwean Thabani Mpofu. Surname similarities are common among Africans in the region, due to a pre-colonial history where “ethnic boundaries were fluid enough to allow individuals or groups to move in or out of population clusters and ethnic groupings with relative ease”. Given this history, it is possible the two Mpofus are distant cousins.

Despite the possible kinship, the two Mpofus were treated very differently by the Zimbabwean authorities. Dali Mpofu was denied the necessary legal permit to represent his client, and be relegated to the public viewing gallery of the Zimbabwean Constitutional court. Recounting the event in an interview he remarked poignantly that “because of colonial borders, one Mpofu (meaning Zimbabwean Thabani Mpofu) can talk, while the other Mpofu (meaning himself) cannot”.

Dali Mpofu’s remark inspired an article I authored for the legal profession’s industry magazine titled “Two Lawyers Named Mpofu: Is the permanent residence requirement in the LPA unconstitutional?” The article outlines the arbitrary exclusion of non-permanent resident foreign nationals from the South African legal profession. Below, I expound on that article and contextualise the history of citizenship and permanent residence-based exclusions in the legal profession.

History of exclusion

The 1960s were tumultuous times in South Africa. The increasingly racialised policies of the apartheid regime attracted indignation domestically and internationally. Arguably in consonance with these racial policies, the permanent residence-based exclusion was introduced into the legislation regulating the legal profession in 1964. The then-justice minister, BJ Vorster, promoted the adoption of the exclusionary provision in a parliamentary session by stating:

“every country … regards the legal profession as a profession to be jealously guarded and preserved for its own citizens”.

The original victims of this exclusion, were black people desirous of entry into the legal profession in South Africa. In a seminar presentation to the US-based Lawyers Committee for Civil Rights Under Law in 1985, the former premier of Mpumalanga, Mathews Phosa, delivered a scathing criticism of the exclusionary practices of the South African legal profession. He presented detailed criticisms on the manner in which black people were prevented from entering the profession, including through the implementation of permanent residence and citizenship-based exclusions.

 Even in post-apartheid South Africa, exclusions of black people, based on where they are from, continued.

This is best illustrated by the 2004 case of Mabaso v Law Society of the Northern Provinces. In this matter, the Law Society sought to defend a legislative provision that placed an additional administrative hurdle on the admission of attorneys who had qualified in the former black homelands. The same legislation afforded (the mostly white) attorneys who qualified in pre-1994 South Africa, a less cumbersome admission process. The Constitutional Court indicated that

“in excluding attorneys admitted under ‘homeland’ legislation from benefiting… the Act clearly discriminates between those attorneys admitted in terms of ‘homeland’ legislation and those admitted in terms of the Act (in pre-1994 South Africa)”.

In conclusion, the court held that the burdensome legislative provision had to be evaluated in light of the “disastrous and impoverishing” history of apartheid-era policies that affected black people. The court concluded that the provision was unconstitutional, as it impaired the applicant’s right to dignity.

 The contemporary exclusion of foreign nationals

The contemporary victims of the exclusionary provisions of admission legislation are foreign nationals. As is common globally, foreign nationals live, work and study in South Africa. This is facilitated by the various visa or permit categories available within immigration and refugee legislation. These include, but are not limited to, work permits, spousal visas and refugee permits. Many of these categories allow the holder to pursue employment and resultantly, some venture into the legal profession. However, those who are non-permanent residence holders are effectively barred from fully participating in the legal profession because of the continuation of the exclusionary practices outlined above.

Several of the immigration and refugee categories allow foreign nationals to apply for permanent residence after five to 10 years. This is a significant amount of time to be excluded from fully applying oneself in one’s profession. Additionally, the permanent residence application itself is quite lengthy. The company that administers the application process on behalf of the Department of Home Affairs estimates a wait time of 10 months, but in reality it is much longer. The cumulative effect of this is that non-permanent residence holders are effectively barred from entering the legal profession.

It bears mentioning that the permanent residence requirement has a greater effect on persons who are asylum seekers, refugees or on special immigration regimes (eg Zimbabwe Exemption Permit).

In the case of asylum seekers and refugees, the well-documented delays in the asylum process translate into a potentially decades-long wait before one can be admitted as a legal practitioner. This position is exacerbated by the new Refugee Amendment Act which requires the already backlogged Standing Committee of Refugee Affairs to determine the period and conditions of an asylum seeker’s employment. In respect of special immigration regimes, the holders of special status are precluded by the conditions of their permits from applying for permanent residence. They are therefore barred from the legal profession indefinitely.

Additionally, despite not being precluded from concluding the employment training required to become a legal practitioner (pupillage for advocates and articles for attorneys), law firms are already taking the pre-emptive measure of barring non-permanent residence holders from doing so.  This is done by making a permanent residence permit a precondition to applying for said employment training (See examples here or here).

Is the permanent residence requirement unconstitutional?

A full legal exposition of the manner in which the permanent residence requirement falls short of the constitutional standard of equality can be found in the article I authored for De Rebus. I have truncated the argument into its strongest points.

Does the requirement amount to unfair discrimination?

The Constitutional Court in Harksen v Lane NO and Others held that a determining factor on whether or not a legislative provision is unconstitutional is whether it differentiates between people to the point of being unfair. The court stated that there will be discrimination where the differentiation between people is “based on attributes or characteristics, which have the potential to impair the fundamental dignity of persons as human beings, or to affect them adversely in a comparably serious manner”.

Expanding on this test in Hoffmann v South African Airways the Constitutional Court held that the following must be considered:

1)  The position of the complainant in society: The precarious position of especially African foreign nationals in South Africa is well documented. They suffer institutionalised prejudice, the threat of xenophobic violence and the residual psychological effects thereof.

2)  The purpose of the discrimination: The regulatory body of the legal profession has previously argued that the purpose of the discrimination is to protect the public from untrustworthy legal practitioners. To assume untrustworthiness on the basis of immigration status is highly prejudicial.

3)  The extent to which rights or interests are affected: The extent to which rights and interests are affected is significant. In Hoffmann the court indicated that the denial of employment has a devastating effect, and effectively amounts to “economic death”. This adequately expresses the significance of the exclusion on non-permanent residence holders.

4)  Whether the discrimination impaired the complainant’s dignity: In Hoffmann the court concluded that the denial of employment amounts to an impairment of dignity. Given the similarities in the circumstances of this case with that of the non-permanent residence holders, the same impairment of dignity can be inferred.

 Relation between the limitation and its purpose?

In order to be constitutionally compliant, a legislative provision must serve the purpose that it is designed to serve. This requires a causal connection between the law and its purpose. A marginal connection will be inadequate. In the case of the permanent residence requirement, the connection is difficult to establish. The regulatory body of the legal profession has previously argued that the purpose of the permanent residence requirement is to protect the public from untrustworthy legal practitioners. The regulatory body advanced the argument that foreigners with permanent residence have made a demonstrable commitment to South Africa and are therefore trustworthy.

This argument fails to adequately establish a connection between the permanent residence requirement and the purpose of protecting the public for untrustworthy legal practitioners. A commitment to South Africa is not necessarily established by the possession of permanent residence status. Similarly, trustworthiness is not established by the mere possession of permanent residence status.

 Less restrictive means to achieve the purpose?

In order to be constitutionally compliant, a limitation of rights must be proportionate. A limitation will not be proportionate if there are less restrictive means available to achieve the same purpose. The Constitutional Court stated in Phaahla v Minister of Justice and Correctional Services that where less restrictive means are available, “not to use those lesser means renders the differentiation unfair”.

In this matter there are a number of less restrictive means available to protect the public from unscrupulous legal practitioners. The admission process already contains a “fit and properness” requirement, which determines whether applicants for admission are individuals of good standing.  

Secondly, in the case of Union of Refugee Women and Others v Director: Private Security Industry Regulatory Authority and Others the Constitutional Court found that the permanent residence requirement in the Private Security Industry Regulation Act was only rendered constitutionally compliant when tempered by an exemption procedure that allows for non-permanent residence holders to be registered where good cause is shown. The availability of any of these less restrictive means renders the permanent residence requirement for admission into the legal profession unconstitutional.

Conclusion

In April 2002, advocate Geoff Budlender was appointed to head a team that drafted new legislation to regulate the legal profession. Budlender expressed concern that the permanent residence requirement is unconstitutional. Despite his concern, exclusion on this basis has continued.

Institutionalised prejudice originating from the apartheid era has been repurposed to perpetuate indignity upon already marginalised asylum seekers, refugees and migrants. This violates the constitutional values that all in South Africa are beholden to. The preamble of the legislation that regulates legal practitioners states that its purpose is to facilitate “an independent legal profession that broadly reflects the diversity and demographics of the Republic”. I submit that, as long as permanent residence based exclusions persist, this purpose cannot be achieved. MC 

• Muchengeti Hudson Hwacha, LLB (UKZN) Cert Intellectual Property and Banking Law (Wits) is a research intern at ALT Advisory and Power Singh Inc in Johannesburg. The full version of this article was first published in De Rebus in 2020 (March) DR 12.