Rafoneke v Minister of Justice and Correctional Services | |
---|---|
Court | Constitutional Court of South Africa |
Full case name | Rafoneke and Others v Minister of Justice and Correctional Services and Others |
Decided | 2 August 2022 |
Docket nos. | CCT 315/21, CCT 321/21, CCT 06/22 |
Citation(s) | [2022] ZACC 29; 2022 (6) SA 27 (CC); 2022 (12) BCLR 1489 (CC) |
Case history | |
Prior action(s) | Rafoneke v Minister of Justice and Correctional Services and Others [2021] ZAFSHC 229 [2022] 1 All SA 243 (FB); 2022 (1) SA 610 (FB) in the High Court of South Africa, Free State Division |
Court membership | |
Judges sitting | Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mhlantla J, Tshiqi J, Mlambo AJ and Unterhalter AJ |
Case opinions | |
It is constitutionally permissible for the Legal Practice Act, 2014 to restrict admission and enrolment into the legal profession to South African citizens and permanent residents. | |
Decision by | Tshiqi J (unanimous) |
Keywords | |
|
Rafoneke and Others v Minister of Justice and Correctional Services and Others is a 2022 decision of the Constitutional Court of South Africa concerning the right of foreign citizens to be admitted and enrolled as legal practitioners in South Africa. The court dismissed a challenge to the constitutionality of section 24(2) of the Legal Practice Act, 2014, which the applicants contended was unconstitutional insofar as it restricted that right to South African citizens and permanent residents. It held unanimously that section 24(2) did not meet the test for unfair discrimination. [1] [2]
The matter was heard on 24 February 2022 and decided on 2 August 2022. The judgment was written by Justice Zukisa Tshiqi. [3] [4]
Section 24(2) of the Legal Practice Act, 2014 restricts the right to be admitted and enrolled as a legal practitioner in South Africa to South African citizens and permanent residents.
In September 2021, the Free State Division of the High Court of South Africa issued a declaratory order finding that section 24(2) was unconstitutional and invalid to the extent that it does not allow foreigners to be admitted and authorised to be enrolled as non-practising legal practitioners. With Judge President Cagney Musi writing for a unanimous bench, the High Court held that it constitutes unfair discrimination for the state to bar foreign citizens from being admitted as legal practitioners, though it is not unfair to prohibit them from practicing law in South Africa.
The International Commission of Jurists and Lawyers for Human Rights expressed disappointment in the judgment, [5] and Pierre de Vos criticised it for misapplying the test for unfair discrimination and for ignoring the xenophobic overtones of the legislation and of the state's argument. [6]
A solicitor is a legal practitioner who traditionally deals with most of the legal matters in some jurisdictions. A person must have legally-defined qualifications, which vary from one jurisdiction to another, to be described as a solicitor and enabled to practise there as such. For example, in England and Wales a solicitor is admitted to practise under the provisions of the Solicitors Act 1974. With some exceptions, practising solicitors must possess a practising certificate. There are many more solicitors than barristers in England; they undertake the general aspects of giving legal advice and conducting legal proceedings.
The call to the bar is a legal term of art in most common law jurisdictions where persons must be qualified to be allowed to argue in court on behalf of another party and are then said to have been "called to the bar" or to have received "call to the bar". "The bar" is now used as a collective noun for barristers, but literally referred to the wooden barrier in old courtrooms, which separated the often crowded public area at the rear from the space near the judges reserved for those having business with the court. Barristers would sit or stand immediately behind it, facing the judge, and could use it as a table for their briefs.
LourensWepener Hugo "Laurie" Ackermann is a South African retired judge who served on the Constitutional Court of South Africa from 1994 to 2004. Appointed to the inaugural court by Nelson Mandela, he is best known for his jurisprudence on dignity. He was formerly an academic, a practising advocate, and a judge of the Supreme Court of South Africa.
An admission to practice law is acquired when a lawyer receives a license to practice law. In jurisdictions with two types of lawyer, as with barristers and solicitors, barristers must gain admission to the bar whereas for solicitors there are distinct practising certificates.
National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others is a decision of the Constitutional Court of South Africa which struck down the laws prohibiting consensual sexual activities between men. Basing its decision on the Bill of Rights in the Constitution – and in particular its explicit prohibition of discrimination based on sexual orientation – the court unanimously ruled that the crime of sodomy, as well as various other related provisions of the criminal law, were unconstitutional and therefore invalid.
Sandile Ngcobo is a retired South African judge who was the Chief Justice of South Africa from October 2009 to August 2011. He served in the Constitutional Court of South Africa from August 1999 until his retirement in August 2011. Before that, he was a judge of the Cape Provincial Division and the Labour Appeal Court.
Johann Vincent van der Westhuizen is a South African who served on the Constitutional Court of South Africa from February 2004 to January 2016. He was a professor of law at the University of Pretoria from 1980 to 1999, when he joined the bench as a judge of the High Court of South Africa.
Pierre Francois de Vos is a South African constitutional law scholar.
Dikgang Ernest Moseneke OLG is a South African jurist and former Deputy Chief Justice of South Africa.
Narandran "Jody" Kollapen is a Judge of the Constitutional Court of South Africa. He was appointed by President of South Africa Cyril Ramaphosa on 24 December 2021, and began his service on 1 January 2022. He had previously served as an acting justice of the Constitutional Court for a six-month period during 2017.
National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others, [1999] ZACC 17, is a 1999 decision of the Constitutional Court of South Africa which extended to same-sex partners the same benefits granted to spouses in the issuing of immigration permits. It was the first Constitutional Court case to deal with the recognition of same-sex partnerships, and also the first case in which a South African court adopted the remedy of "reading in" to correct an unconstitutional law. The case is of particular importance in the areas of civil procedure, immigration, and constitutional law and litigation.
Geldenhuys v National Director of Public Prosecutions and Others is a decision of the Constitutional Court of South Africa which struck down as unconstitutional a law which set the age of consent at 19 for homosexual sex but only 16 for heterosexual sex.
Hassam v Jacobs NO and Others, an important case in South African family law and law of succession, was heard in the Constitutional Court of South Africa on 19 February 2009 and decided on 15 July 2009. It concerned the proprietary consequences of polygynous Muslim marriage in the context of intestate succession.
South Africa is a secular state, with freedom of religion enshrined in the Constitution.
Hoffmann v South African Airways is a decision of the Constitutional Court of South Africa in the area of South African labour law and constitutional law. It concerned employment discrimination on the basis of HIV status and was decided on 28 September 2000.
Mandisa Muriel Lindelwa Maya is the Deputy Chief Justice of South Africa. She was formerly the President of the Supreme Court of Appeal from 2017 to 2022. She joined the bench in May 2000 as a judge of the Transkei Division of the High Court of South Africa and was elevated to the Supreme Court of Appeal in 2006.
Tembeka Nicholas Ngcukaitobi is a South African lawyer and legal scholar. An advocate of the Johannesburg Bar since August 2010, he gained silk status in February 2020. He is currently a member of the Judicial Service Commission and a part-time member of the Competition Commission's Competition Tribunal.
Qwelane v South African Human Rights Commission and Another is a 2021 decision of the Constitutional Court of South Africa on the constitutionality of a statutory prohibition on hate speech. The court found that section 10(1) of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 was unconstitutional insofar as it included the vague term "hurtful" as part of the definition of prohibited hate speech.
Khosa and Others v Minister of Social Development and Others, Mahlaule and Another v Minister of Social Development and Others is a decision of the Constitutional Court of South Africa which established that it is unconstitutional to exclude permanent residents from the social welfare system on the grounds that they lack South African citizenship. The court found that provisions of the Social Assistance Act, 1992 were unconstitutional on that basis.
Jacob Zuma, the former President of South Africa, was imprisoned on 7 July 2021 following a finding by the Constitutional Court of South Africa that he was guilty of contempt of court. The charges originated in Zuma's refusal to provide testimony to Deputy Chief Justice Raymond Zondo's judicial commission of inquiry into alleged state capture. During 2021, the Constitutional Court handed down three related decisions.