Sipho Matshie
Introduction
Lesotho is a country that is completely landlocked by South Africa. These two nations enjoy political, economic and cultural ties. However, there is currently a lacuna between these countries of an agreement that regulates practice within the legal profession. This has been made apparent by the High Court judgment in Molapo v Minister of Justice and Correctional Services and Others [2024] ZAGPPHC (the judgment). Below are the facts of this matter, which proved that the absence of a mutual agreement that oversees legal practice could be detrimental to the citizens of these countries.
Facts of the case
Ms Lihaelo Bridgett Molapo (the Applicant) is a Lesotho national who has been admitted as a legal practitioner in her country in 20 March 2023. She initially approached the court seeking a relief to be admitted as a legal practitioner, but withdrew that application when the Legal Practice Council (the LPC) raised objections (para 5). She then filed another application in which she sought a comprehensive relief which challenged the constitutional validity of section 24(3) of the Legal Practice Act 28 of 2014 (the LPA), the failure of the Minister of Justice and Correctional Services (the Minister) to enact regulations permitting the admission of foreign legal practitioners pursuant to the aforesaid section and the failure of the Minister of Trade, Industry and Competition and the LPC in ensuring that the Minister enact such regulations (para 6).
The Applicant also requested the court to direct Parliament to amend section 24(3) of the LPA in order to make way for foreign legal practitioners ‘to be admitted and enrolled as foreign legal practitioners in the Republic of South Africa’. Pending such amendment, the court was implored to also direct that ‘section 5 of the Admission of Advocates Act as read with section 119(2) of the LPA shall be a transitional arrangement’ and that foreign legal practitioners and that foreign legal practitioners admitted in other jurisdictions be found to be competent to practice in South Africa. The rest of the relief was focused on timelines and compliance with the court order, if it was to be granted in the affirmative.
Discussion
It is common cause that the South African law precludes foreign legal practitioners to practice law in South Africa. Section 24(2) of the LPA explicitly states that only the citizens of South Africa or those with permanent residence may practice as legal practitioners. The Applicant, as things stand, is neither a citizen of South Africa nor a permanent resident. She sought refuge in the provisions of the Admission of Advocates Act 74 of 1964 (the AAC), an Act which has been wholly repealed by the LPA. She relied on the provisions of section 5 the AAC which had allowed for a foreign legal practitioner of a designated country to be admitted as an Advocate in South Africa, provided that he or she meets the standard requirements such as being fit and proper without convictions or pending proceedings. She therefore took umbrage with the fact that this provision was not carried into the LPA and by so doing, so she argued, herself and everyone in her position had been stripped off their rights (para 18) to be admitted as legal practitioners in South Africa. She contended that section 119(2) of the LPA could rekindle section 5 of the AAC and thereby revive her rights (para 18).
Court findings
The court, per Davis J, dismissed all the relief the Applicant sought. The court relied on the judgment of Ex pate: Goosen and Others 2019 (3) SA 489 (GJ) (the Goosen judgment) and held that those who acquired rights in terms of the AAC and then lost the same when the Act was repealed had recourse from section 115 of the LPA to exercise or enforce such rights (para 23). Since the acquisition of the right of admission in terms of section 5 of the AAC was based on the fact that a person must have been admitted on or prior 1 November 2018, as per the Goosen judgment and section 115 of the LPA, the court found that the Applicant was ineligible to invoke this right as she only got admitted in March 2023 (para 25). Relying on the doctrine of separation of powers, the court declined to direct Parliament to make any amendments to the legislation as requested by the Applicant (para 64). On the Applicant’s constitutional challenges, the court held that the word ‘may’ in section 24(3) of the LPA is not peremptory and the failure or decision by the minister to enact the regulations is constitutionally valid (para 68).
Gaps in South Africa and Lesotho’s legal cooperation framework
What this case delineates is the absence of a proper international agreement that regulates the practice of the law in South Africa by the Lesotho based legal practitioners. The legislation is clear that the minister, in making regulations that provides for foreign legal practitioners to appear and practice in South African courts, may have ‘regard to any relevant international commitments of the Government of the Republic’ (Section 24(3) of the LPA). Moreover, the statute calls upon the minister to give effect to an international instrument that South Africa has acceded to for the purposes of admitting and enrolling foreign legal practitioners (Section 24(3)(ii) of the LPA).
Although the judgment is faultless and sound in law, the matter has inadvertently exposed lack of cooperation between these two countries within the spectrum of international law. At this stage, both countries do not have any legal cooperative agreement in so far as admission and/or practice of the law in South Africa is concerned. The court, in passing, appeared to have searched for any bilateral agreement that could be binding upon these two states (para 50).
Conversely, it can equally be argued that South Africa ought to protect its sovereignty and thus prioritize its citizens in professions that are not in demand of critical skills. For instance, the Constitutional Court has previously found that demarcating the admission and practice of the law in South Africa to only the citizens and permanent residents is constitutionally permissible (Rafoneke and Ano v Minister of Justice and Correctional Services and Others 2022 (6) SA 27 (CC)). It would seem that in the absence of deliberations at the political level, aimed at forging a responsive bilateral agreement, the admission of foreign advocates to practice law in South Africa will remain a pipe dream as the Republic seeks to protect its citizens.