Relebohile Cecilia Rafoneke and Others v Minister of Justice and Correctional Services and Others

The applicants were foreign nationals (from Lesotho and Zimbabwe) who had obtained LLB degrees from South African universities, completed articles of clerkship or pupillage, and passed all required examinations. They met all requirements for admission as legal practitioners except that they were neither South African citizens nor permanent residents as required by section 24(2)(b) of the Legal Practice Act 28 of 2014 (LPA). The applicants held various permits (study visas, special permits, spousal visas) allowing them to reside and work in South Africa. Their applications for admission as attorneys were dismissed solely on the basis of their citizenship/residence status. The applicants challenged the constitutionality of section 24(2)(b) read with section 115 of the LPA, arguing it unfairly discriminated against them. The High Court declared section 24(2) unconstitutional to the limited extent that it did not allow foreigners to be admitted as non-practising legal practitioners. The applicants appealed, seeking a broader declaration that would permit them to be admitted as practising legal practitioners.

• Whether section 24(2)(b) of the Legal Practice Act, read with section 115, is inconsistent with section 9 of the Constitution (right to equality)
• Whether the differentiation between citizens/permanent residents and other foreign nationals bears a rational connection to a legitimate government purpose
• Whether the differentiation amounts to unfair discrimination on the grounds of citizenship, nationality, or social origin
• Whether the limitation on foreign nationals' admission to the legal profession impairs their right to dignity
• Whether section 22 of the Constitution (freedom of trade, occupation and profession) extends to non-citizens
• Whether the High Court's declaration of limited invalidity (regarding non-practising legal practitioners) should be confirmed

The appeal against the High Court order was dismissed. The High Court's declaration that section 24(2) of the Legal Practice Act 28 of 2014 is unconstitutional and invalid to the extent that it does not allow foreigners to be admitted as non-practising legal practitioners was not confirmed. No costs order was made, with reference to Biowatch principles. The Constitutional Court found section 24(2)(b) read with section 115 of the LPA to be constitutional.

Section 24(2)(b) of the Legal Practice Act 28 of 2014, which restricts admission as a legal practitioner to South African citizens and permanent residents, is constitutional. The differentiation on the basis of citizenship bears a rational connection to the legitimate government purpose of protecting employment opportunities for citizens and permanent residents. Section 22 of the Constitution expressly limits the right to choose one's trade, occupation or profession to citizens, and the State has no constitutional obligation to extend this right to foreign nationals. The distinction between permanent residents (who have a permanent right to live and work in South Africa) and other foreign nationals (who have temporary or conditional status) is rational. Where differentiation on the basis of citizenship does not result in destitution, does not constitute a blanket employment ban, and where affected persons remain able to work in related capacities, such differentiation does not amount to unfair discrimination. The State's sovereign power to regulate entry into professions and to adopt protectionist policies for citizens is a legitimate exercise of legislative authority that courts should not interfere with absent arbitrariness or irrationality.

The Court noted that the accountability argument advanced by the Minister (that non-citizens pose greater risks of fraud and accountability) was fundamentally flawed and lacked substance, particularly given that foreign lawyers from designated jurisdictions were already permitted to practice in South Africa. The Court observed that section 31(2)(b) of the Immigration Act provides a mechanism for foreign nationals to apply for exemptions to permanent residency where special circumstances exist, offering a potential avenue for relief. The Court commented that while some foreign nationals may have been in South Africa for extended periods with no realistic prospect of returning home, this does not change their legal status as non-permanent residents with limited protection. The Court distinguished the case from Union of Refugee Women and Watchenuka, noting those cases involved complete bars to employment that resulted in destitution, unlike the present case where applicants could work in legal-related capacities. The Court referenced international jurisprudence from Canada (Skapinker) and India (Bar Council of India) confirming that states may restrict professional admission on the basis of citizenship. The Court noted the applicants ought to have been aware of admission requirements when commencing their legal studies and articles.

This judgment clarifies the scope of constitutional rights extended to non-citizens in South Africa. It confirms that: (1) Section 22's freedom of trade, occupation and profession is expressly limited to citizens and does not extend to foreign nationals; (2) The State has wide discretion to regulate entry into professions and to reserve such entry to citizens and permanent residents; (3) Differentiation based on citizenship/permanent residence status is rational and does not constitute unfair discrimination where it serves legitimate protectionist policy objectives; (4) Not all differentiation that may constitute discrimination amounts to unfair discrimination - the impact must be assessed, particularly whether it results in destitution or impairs dignity; (5) The Legislature's policy choices regarding immigration and professional regulation are entitled to deference provided they are rational and not arbitrary; (6) The judgment represents a significant limitation on the equality rights of foreign nationals in the context of professional regulation, prioritizing State sovereignty and protection of citizens' employment opportunities. The case also has implications for refugees, asylum seekers, and other categories of foreign nationals seeking to enter regulated professions in South Africa.