Law graduates to challenge legal profession’s discrimination against immigrants

Illustration: Lisa Nelson

• Three Zimbabwean-born law graduates, who have fully qualified in South Africa, are challenging a rule that does not allow them to professionally practice law in the country.
• All three are legally entitled to live, study and ordinarily work in South Africa.
• But according to the Legal Practice Act only permanent residents and SA citizens may be admitted to the profession.

Three Zimbabwean-born law graduates, who cannot practice their trade because they are not “permanent residents” or citizens of South Africa, have launched a constitutional challenge to the Legal Practice Act (LPA).

In pending litigation before the Pretoria High Court, Bruce Chakanyuka, Nyasha James Nyamugure and Dennis Tatenda Chadya say they have all got the relevant degrees, have written the board exams and done their pupilage.

They also all have various permits which allow them to live, study and work in South Africa.

But Chakanyuka, for example, is still working as a waiter because he has been barred from practising as an advocate by the Legal Practice Council which insists that it can only enrol and admit citizens or permanent residents into the profession.

The men are being supported in their court bid to overturn the contentious section in the LPA by the Asylum Seeker Refugee and Migrant Coalition, which aims to combat discrimination against non citizens within the legal profession.

They are seeking an order declaring the “discriminatory” provisions of the Act to be unconstitutional, that the order of invalidity be suspended for 24 months to enable Parliament to remedy the law and, that in the interim, the Act be interpreted to allow for enrolment and admission to all who are lawfully entitled to live and work in the Republic.

In his affidavit, Chakanyuka said the permanent resident requirement was an “absolute and inflexible barrier”. It was “unreasonable, irrational and unjustifiable” and was unique to the legal profession.

Chakanyuka says he fled the political and economic unrest in Zimbabwe and came here in December 2007 as an undocumented migrant.

In 2009, under the Dispensation of Zimbabweans Project designed to regularise the immigration status of undocumented and asylum-seeking Zimbabweans, he obtained a Zimbabwe Special Permit, giving him the right to live, work and study in South Africa.

In 2013, he started studying his LLB at UNISA. He graduated in April 2019 and did his pupillage to become an advocate. He passed his bar exams in 2020.

But he was denied admission by the Legal Practice Council and he is presently working as a waiter to support his family.

Nyamugure has a Masters in Law from the University of Stellenbosch, has written all his exams and completed his articles – all the requirements needed to be admitted as an attorney if he were South African.

He applied for permanent residence but was turned down by the Department of Home Affairs which cited that it would “circumvent the provisions of the (then) Attorneys Act, which reserves the right to practice law to South African citizens and permanent residents”.

He took legal action and the department settled, agreeing to grant him permanent residence status. But, he says, the department is now in contempt of that order and further court proceedings were pending.

Chadya came to South Africa in 2005, following his family who had been forced to flee two years earlier because his father was a candidate Member of Parliament for the opposition party, the Movement for Democratic Change. He was granted an asylum seeker permit.

He completed his LLB degree in 2009 and did his articles at a law firm in Pietermaritzburg. In January this year, he had completed all the requirements for admission as an attorney.

His application for permanent residence was also turned down. He has since married a South African and now has a spousal visa. But he still cannot be admitted to the profession and is presently employed as a “legal advisor”.

In his affidavit, Chakanyuka said the permanent residence requirement had survived various amendments to the legislative framework governing legal practitioners over many years, the latest of which was the LPA.

He said there had been disagreement on the issue in the task team put together to draft the initial bill “with the majority proposing that the draft LPA would require only ordinary residence.” The chairperson, Geoff Budlender SC, was on record as saying that the permanent residence requirement would not pass constitutional muster.

“There are no other professionals that implement such strict requirements. Doctors, engineers, accountants, auditors, quantity surveyors, nurses and teachers do not require permanent residence status,” Chakanyuka said.

“The only one is the private security industry but the regulating legislative framework provides a simple exemption,” he said.

The respondents, the Minister of Justice and Correctional Services and the Legal Practice Council, have yet to file their papers.

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