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Exclusion of foreign nationals from legal profession goes to Constitutional Court

- Anesu Dera

Today, the Constitutional Court hears argument on section 24 of the Legal Practice Act which bars foreign nationals from admission as legal practitioners

[UPDATE: Watch the full hearing on the Constitutional Court's YouTube channel here

The Constitutional Court is today set to hear argument in Rafoneke and Others v Minister of Justice and Correctional Services and Others. The matter challenges the constitutionality of section 24(2) of the Legal Practice Act as it effectively prohibits foreign nationals from being admitted as legal practitioners in South Africa. As it stands, the Act only provides for South African citizens or permanent residents to be enrolled as a legal practitioner, conveyancer or notary. 

The Centre for Applied Legal Studies represents the International Law Students Association (ILSA) and intended to seek the Court's permission to intervene as a friend of the court in this matter. We sought to argue that section 24 of the Legal Practice Act, allowing foreign nationals to study law but barring them from being admitted as legal practitioners, is irrational and discriminatory. Further, we contend that admission as a legal practitioner does not equate with employment, and the bar to admission for foreign internationals infringes on fundamental freedoms of choice and academic freedom and the Constitution's promise of dignity and equality for all. 

In the main application, ILSA intended to show the disconnect and injustice in allowing South African institutions to accept and/or enroll foreign nationals who are then informed that they will be prohibited from practising the skills transferred in that very country. ILSA also sought to argue against the Xenophobic undertones which lie in some of the parties' arguments against foreign nationals being admitted as this goes to the core of CALS values in defending human rights.

We have not proceeded with our application for admission as amicus curiae as we believe these arguments have been well canvased by the another amicus in the matter, namely the Pan African Bar Association of South Africa. While we have made written submissions we hope the Court will consider, we will not be participating in oral argument. It is our hope that the Court will arrive at a sensible and justified conclusion which does not perpetuate xenophobia or discrimination. 

"We strongly believe that the Act disregards the immense financial contributions of foreign internationals into the higher education sector in Universities," says Anesu Dera, attorney at CALS. "The wealth of knowledge invested by institutions of higher learning ought to translate into an investment for students’ broader contribution in society." 

Read more in our written submissions here

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