Like gender and racial minorities before them, non-citizens fight a culture of exclusion in the legal profession

28 Jul 2021

On 20 July 2021, the Asylum Seeker, Refugee and Migrant Coalition and three other individuals initiated high court litigation against the justice minister and the Legal Practice Council, challenging the provisions of the Legal Practice Act that bar certain categories of non-citizens from practising as lawyers.

Muchengeti Hudson Hwacha, LLB (UKZN) Cert Intellectual Property and Banking Law (Wits), is a candidate legal practitioner at Lebea Inc Attorneys and is the executive director of the Asylum Seeker, Refugee and Migrant Coalition (ASRM Coalition).

At present, the legislation unjustifiably prevents various categories of non-citizens, to whom the state has granted the right to work, from being licensed to practise as lawyers. I and others have written critically about this exclusion, highlighting that it does not accord with the values underpinning our Constitution.

This article does not seek to recount the various legal arguments that expose the exclusion as irrational at best and xenophobic at worst. Instead, it seeks to examine the prevalence of a culture of exclusion within the legal profession and highlight how this problematic tradition has historically targeted the most marginalised segments of our society.

Where are we now?

In the podcast series How to be an Antiracist with Ibram X Kendi, Dr Robin DG Kelly, professor of history at UCLA, says: “Race, and gender and citizenship status, determines wages, it determines employment opportunities, it determines the kind of labour you do.”

In a similar vein, in a 2019 interview, activist and lawyer Christine Qunta made the poignant observation that “the legal profession is really a microcosm of South Africa”. What that meant “is that those who have benefited from the past, and benefited from the exclusion of black people, particularly African people, it is very difficult for them to adjust to change”.

Beyond the race discrimination described by Qunta lies the all-too-prevalent and lamentable reality of gender discrimination in the profession. The extent of race and gender discrimination was confirmed by a comprehensive study of transformation in the legal profession, conducted by the Centre for Applied Legal Studies in collaboration with the Foundation for Human Rights in 2014. Importantly, the research shed light on the intersection of gender and race-based discrimination experienced by black women in the profession.

The study found that black women in the legal profession experienced the same gender discrimination as their white female colleagues, but also suffered the double jeopardy of race-based discrimination. The cumulative effect of this othering has had dire consequences for the career prospects of black women. Research published by Rudo Chitapi in the same year recorded that less than 10% of the country’s advocates were black women.

Though useful, the research by the Centre for Applied Legal Studies and the Foundation for Human Rights overlooks the position of non-citizens in the legal profession. The researchers did not consider the effects of citizenship and immigration status on the experiences of entrants into the legal profession. Had these facets been taken into account, the study most certainly would have uncovered the unique challenges of persons at the intersection of race, gender, and citizenship status.

It is important to highlight that citizenship and immigration status are but two of the minority identities that may be underrepresented in the profession. Greater introspection may uncover that prejudice on the basis of disability or sexual orientation has similar adverse effects on the experiences of those entering the legal profession.

Where have we come from?

In an article for the legal profession’s industry magazine, De Rebus, Patrick Bracher, a director at the law firm Norton Rose, chronicles the history of gender discrimination in the legal profession.

Bracher highlights the contemptuous manner in which women who sought to pursue careers in the industry were treated. He particularly highlights the case of Incorporated Law Society v Wookey 1912 AD 623, where the Appellant Division (now Supreme Court of Appeal) found that women did not meet the definition of “person” as set out in the Cape Charter of Justice of 1883. The court went as far as to entertain legal authorities that espoused the notion that “womankind by reason of an inborn weakness is less suited for matters requiring knowledge and judgement than men”.

It was not until 1923 and the introduction of the Women Legal Practitioners Act that women won the right to practise as lawyers. Despite the victory, it would still take a further three years for the first women, Constance Mary Hall and Gladys Steyn, to be admitted into the profession.

The history of race-based exclusion from the legal profession is well documented. Many law students have been regaled with stories of the likes of fabled advocate Duma Nokwe, who was refused accommodation in chambers (the offices advocates are required to keep) because of the racist segregation of the Group Areas Act 41 of 1950. Stories of this nature illustrate how, despite some black people being able to overcome the hurdles of Bantu education, the financial burden of university admission, and racial prejudice in securing training contracts to qualify as lawyers, they would often still be barred from the profession.

In the 1960s an emergent tool of such exclusion was the introduction of citizenship and immigration requirements to the licensing criteria for lawyers, which notably affected former deputy chief justice Dikgang Moseneke. Moseneke’s application for admission as a lawyer was opposed by the Law Society, on the basis that the Bantu Homelands Citizenship Act 26 of 1970 had stripped him of his South African citizenship, a requirement to practise law. It was only through litigation, wherein he was represented by the Black Lawyers Association, did he manage to gain admission.

However, lawyer and former premier of Mpumalanga, Mathews Phosa, lamented in a 1985 seminar presentation that “(despite Moseneke’s victory) it was clear that all those other people who live in independent homelands will find it difficult, if not impossible, to gain admission as attorneys”.

Where should we be?

In the same manner that the gender and racial minorities described above used the courts to assert their rights, the ASRM Coalition’s case seeks to assert the rights of non-citizens. The coalition looks to build on our already rich constitutional jurisprudence on the right to equality. We are asking the court to reaffirm the fact that non-citizens are entitled to use the law as a shield against arbitrary and capricious government conduct.

A recently concluded Netflix docuseries on the history of the 14th Amendment of the US constitution (the right to equality) does an incredible job of weaving together stories of minority groups using equality rights jurisprudence to attain justice and dignity. Host Will Smith concludes the programme by highlighting how the right to equality is a fundamental tenet of democracy that confirms personhood, and imbues everyone with certain inalienable rights. Our Constitution shares this aspirational objective of equality, and the ASRM Coalition’s case attempts to make that objective a reality for non-citizens in South Africa. DM/MC

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