Constitutional: Non-citizens fight for right to practise law

Three Zimbabwe-born law graduates, who cannot practise because they are not ‘permanent residents’ or SA citizens, have launched a constitutional challenge to the Legal Practice Act (LPA), according to legal writer Tania Broughton in a GroundUp report. In litigation before the Gauteng High Court (Pretoria), Bruce Chakanyuka, Nyasha James Nyamugure, and Dennis Tatenda Chadya say they all have the relevant degrees, have written the board exams, and done their pupillage. They also all have various permits which allow them to live, study and work in SA. 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 enroll and admit citizens or permanent residents into the profession.

The men are being supported in their efforts 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 SA.

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, notes the GroundUp report. ‘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 & Correctional Services, and the Legal Practice Council have yet to file their papers.

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