Becoming a lawyer is no easy task. The path is riddled with land mines at every turn.
Whether it be getting a law degree, finding articles of clerkship, writing board exams or
building a portfolio as an attorney/advocate, there are many challenges that one faces when
embarking on this journey. There is however no greater obstacle to entry into this noble
profession for non-South Africans in particular than the requirements for admission laid
down in section 24 of the Legal Practice Act. In terms of this section, one can only be
enrolled as a legal practitioner in South Africa if they are either a South African citizen or
permanent resident. In other words, if you do not fall into either of those categories, you
cannot enroll or practice as a lawyer in South Africa. An important case dealing with the
constitutionality of such requirements recently graced the steps of the South African
Constitutional Court. This case was TM obo MM v Member of the Executive Council for
Health and Social Development CCT 270/21. While we wait for the outcome of what would
potentially be a landmark judgment, I felt it necessary to share why, in my opinion, the
obstacles put before non-South Africans who seek to become and practice as lawyers in
South Africa are overly-burdensome and unjustifiable. Further, to canvass possible solutions
to the problem.
THE BURDEN OF ADMISSION
The primary reason why the requirement that aspiring legal practitioners must be a South
African citizen or permanent resident is unjustifiable is because, simply put, it is
unnecessary. It effectively functions as a straw that breaks the camel’s back. It provides the
icing on a cake that is already a burdensome, nearly impossible process for non-South
Africans to be able to practice law in South Africa.
To understand why, let’s assume we lived in a world where such a requirement did not
exist. This would mean that, in theory, any foreigner would be able to come to South Africa,
get a law degree, do their articles of clerkship, and apply for admission as a legal practitioner in South Africa. They would be able to become an associate at a law firm, or join a chambers of their choice as an advocate. Some may argue that this would effectively mean that South Africans would now be competing with foreigners in a saturated market. As a result, this may add to and compound the unemployment issues plaguing South Africa. Further, this may make the lives of clients difficult if said foreign lawyer suddenly lost their right to live and work in South Africa or ran off back to their home country. At first blush, this kind of reasoning may seem sensible and logical. Not so.
We need to differentiate between the admission/enrollment of foreign legal practitioners
and the employment of said foreign legal practitioners. It may well be the case that if the
citizenship/permanent residency requirement were to be removed, South Africa may see an
influx of newly admitted legal practitioners who are non-South Africans. However, what is
unlikely is South Africa also then receiving an influx of newly employed non-South African
legal practitioners. The reason for this is simple: work permits.
The requirements for a foreigner to obtain a work permit in South Africa are onerous.
Equally so are the corresponding requirements imposed on South African employers seeking
to employ a foreigner. Law is not a critical skill. Therefore, aspirant lawyers must take the
dreaded work permit route to obtaining employment in South Africa. The Immigration Act
sets out the requirements for obtaining a work permit. Among them is the requirement that
the employer must prove to the Department of Labour that “despite diligent search he or
she has been unable to employ a person in the Republic with qualifications equivalent to
those of the applicant”. In other words, a law firm cannot employ a foreigner when there
are other equally deserving South Africans vying for the job. For example, imagine a non-
South African law student who graduated with an LLB cum laude, had done vacation work
for a prestigious law firm, did a semester at the law clinic, won several moot court
competitions, and was an editor for a law review journal. In the most likely of
circumstances, they would not be able to get employed by a law firm because of the work
permit requirements. Even if they added a masters degree on top of that they would
probably not get the job either. The legal market is a fiercely competitive market, and there
are numerous South Africans graduating from law school with similar, if not better,
qualifications.
Statistics published by the Law Society indicate that in 2018, there were 5,185 graduates
from the class of 2017, and there were 6,585 final year students enrolled in South African
universities. Despite there being 5,185 graduates from the class of 2017, only 2,863 articles
of clerkship were registered. Further, only 280 pupils were registered. Let’s not forget that it
is not only LLB graduates from 2017 vying for those jobs, but also graduates from 2016 and
below, masters students, and people who did not go directly into practice after graduating
and went to go work elsewhere. What this means is that of those students who graduated
in 2017, it is likely that less than 55% of them went on to become candidate attorneys, and
less than 5% of them went on to do pupillage at an advocate’s chambers. Now that number
may vary given that not all law graduates desire to go into practice after graduating, but
nevertheless, it is statistically sufficient enough to prove the point that the legal sector is
fiercely competitive. Aspirant lawyers need to do much more than the bare minimum in
order to get a job.
Consequently, if it is the case that the legal market is fiercely competitive, and further that
thousands of South Africans are struggling to get articles of clerkship and pupillage, then
how much more difficult would it be for non-South Africans? Probably close to impossible.
The work permit requirements are clear. The obligations placed on employers before
employing a foreigner are clear. In addition to this, the waiting period for a work permit can
vary depending on several circumstances. What is the likelihood that, when faced with a
non-South African who may very well be better qualified than all of their counterparts, an
employer would be willing to push through all the obstacles they would face in employing
said foreigner?
Further, if it is the case that very few non-South Africans would get the candidate attorney
position or pupillage, the logical conclusion would be that fewer foreigners would be
admitted as legal practitioners in South Africa nevertheless. One of the requirements of
admission in terms of s26 of the Legal Practice Act is that the aspirant lawyer must undergo
practical vocational training. This translates into the 2 year candidate attorney program and
the 1 year pupillage program offered by law firms and advocates’ chambers respectively.
They must also write certain exams during this period. If a non-South African cannot do that, then they cannot be admitted. They may perhaps be able to return to their home country
and do it, but even then they are met with various obstacles in getting their training validly
recognized for the purposes of admission. Further, even if they are one of the lucky few who
get admitted, they then meet the final boss: the work permit. Even those non-South
Africans who become candidate attorneys and pupils are not fully out of the clear yet,
because they still have to get a job afterwards. These clerkship and pupillage positions do
not guarantee that they will get a job as an associate at the firm or be accepted into that
chambers as an advocate afterwards. If not, they will then have to look for a job again, and
go through the work permit process again. The end result is that the number of foreigners
practicing law in South Africa will only dwindle over the years.
What I have shown above is that even without the citizenship/permanent residency
requirement, it is very much unlikely that non-South Africans will have a major effect on
unemployment rates of South Africans, particularly in the legal sector. Very little will be
achieved in keeping the requirement when compared to removing it. The requirement
should be removed to make the lives of those foreigners who somehow manage to leap
over all of the obstacles I have explained much easier. Very few would be negatively
impacted by that move, if any.
THE EXCLUSION OF IMPORTANT CATEGORIES OF NON-CITIZENS
There is however another reason to remove the citizenship/permanent residency
requirement. This requirement negatively affects those whose status in South Africa closely
resembles permanent residency. Their stay in South Africa may well be described as
permanent, barring the actual title of “permanent resident” and the visa that accompanies
it. This includes refugees and asylum seekers, and people who are on a spousal visa. It also
includes people who have been on a work visa for more than 5 years, but their applications
for permanent residency are taking much longer than expected. It has been reported that an
application for permanent residency can actually take years to get a decision. The same can
be said for persons on a spousal visa trying to get permanent residency as well.
The effect on this group of persons is clear. If one flees their country because of an ever
existent dangerous threat on their lives or because of war, they would need to make a
livelihood in the countries they have fled to. Imagine that person was a prominent civil
rights lawyer in their country of origin who had to deal with several assassination attempts
on their life. They would have no choice but to flee to a safe location. If they fled to South
Africa and were granted asylum seeker status, how would they make a living in South
Africa? It may be possible that they would find non-legal jobs or a job at an NGO that may
be able to sustain their lifestyle and that of their family, but there is no valid reason to deny
them the opportunity to do what they have been doing for years to the benefit of ordinary
South Africans.
The same would apply to someone who fell in love with a South African and moved to South
Africa with them, or met them during their studies in South Africa. It’s not always the case
that their significant other would be able to leave their home in South Africa and follow
them to their country of origin and be able to find a sustainable job. Spousal visa processes
might take a long time. Permanent residency processes might take a long time. If a South
African’s spouse has the skills and qualifications to be admitted as a legal practitioner in
South Africa and be able to practice, then there is no valid reason to deny them that
opportunity.
THE WAY FORWARD
Various suggestions for how to remedy the citizenship/permanent residency requirement
were made during the Constitutional Court hearing. One particularly interesting suggestion
involved replacing the requirement with a new one that required aspirant lawyers to “have
a right to live and work in South Africa”. There are potential issues with this approach. For
example, one can imagine a situation where someone graduates with a law degree, gets
accepted for articles of clerkship, writes the board exams and passes, but at the end of the
program fails to be retained in the same firm where he worked as a candidate attorney.
That person, under this suggested rule, is unable to be admitted as a legal practitioner
because they no longer have a right to live and work in South Africa since their work permit expired. Work permits are only valid for the duration of the employment they were offered.
What then becomes of this person? Life would be much easier for them if they could get
admitted while on any other visa that allows them to be able to live in South Africa for a
specified period of time, get admitted as a legal practitioner, and then be able to look for a
job afterwards. Even if they fail, at least they can go elsewhere and follow a path trodden by
those who are qualified lawyers in other jurisdictions. There are countries that have
provided such pathways.
My point is this: there should be no residency requirement at all for admission as a legal
practitioner. This would not open the floodgates to foreigners practicing and being
employed as such in South Africa for the reasons I have outlined above. This is arguably an
extreme position, so it would be understandable if the Constitutional Court took the
position that the person must have a right to live and work in South Africa. My only concern
is what this requirement would do to the outliers who find themselves without such a right
due to circumstances beyond their control.
Nevertheless, what is beyond a doubt is that the citizenship/permanent residency
requirement is unduly onerous and unnecessary. Whatever aims are behind it may easily be
accomplished by the already existing framework of immigration requirements for foreigners
to be able to work in South Africa. Furthermore, the requirement excludes persons whose
status in South Africa very closely resembles permanent residency.
Conclusively, many injustices will be committed by the continued existence of this
requirement. It must be removed.