Free Market Foundation

It is not uncommon for a fledgling domestic industry to lobby its government to legislate in its favor and shield it from competition with other foreign industries which trade in similar or the same goods. In international trade, this constitutes protectionism and the measures introduced thereof are referred to as safeguard measures.

In terms of Article 2 of the General Agreement on Trade and Tariff (GATT) 1994, this is a universally acceptable practice often invoked by elected governments across the globe to protect local industries from “increased imports” that threaten to “seriously injure” said industries. The consequences of this practice can be dire on consumer preferences when applied to not only goods, but services offered by documented foreign nationals and thereby enforced by the apex court of any given country. This is especially the case if such a court is entrusted with a mandate to not only uphold and defend the Constitution but to rule without fear, favor or prejudice.

Anyone not abreast with legal developments in South Africa would hasten to dismiss this as a wishful hypothetical. Alas, it is not! It came to pass that Constitutional Court of South Africa handed down a unanimous judgement on the 02 August 2022 in the case of Relebohile Cecilia Rafoneke and Others v Minister of Justice and Correctional Services and Others. In this case the Court effectively barred foreign nationals from none-designated countries from practicing law in the country. The facts of this case should be common cause by now. I shall therefore not venture to traverse them save to say that the judgment was lauded as having vindicated the now exclusive freedom of trade in s. 22 of the Constitution by some South Africans on social media.

Be that as it may, as Professor Ziyad Motala opined, it is the task of jurists and by extension, legal commentators to look not only to the result of a court decision, but more importantly the quality and depth of reasoning even as they disagree with the result. In defense of this blanket ban of foreign nationals from practicing law, the Minister of Justice contended that the practice of law is not listed by Home Affairs as a critical or rare skill justifying a special dispensation for lawyers (paragraph 56). A closer reading of the judgement would reveal that the court accepted this argument without any difficulty which then begs the question: shouldn’t we allow the South African consumer the freedom to subjectively determine the value of a given skills-set and decided whether it is in abundant supply or scarce?

For instance, accused X may prefer to solicit the legal services of a duly qualified foreign legal practitioner Y over the services of a similarly qualified South African legal practitioner Z because he believes South African lawyers are terrible. Does this give the state any legitimate right to legislate the services of Y (a foreign national) out of existence so that Z (who is a South African citizen) is not rendered without a job? This hypothetical notwithstanding, the judgment of the Constitutional Court has far reaching unintended consequences which go beyond perpetuating xenophobic sentiments as some legal commentators have argued.

It has the potential to interfere with what would have been voluntary exchanges between adult contracting parties who could establish mutually beneficial market transactions. This is very concerning, especially considering the fact that all parties to any voluntary trade must necessarily expect to be better off after conducting the trade, otherwise the trade would never have occurred. There can never be any justifiable state intervention in such transactions unless it can be shown that one party to the transaction was coerced.

However, by a stroke of a pen, the South African legal services consumer now has limited choices because the state has elected to legislate free market competition out of existence. How a court that has on many occasions extended the so-called socio-economic rights to uncommented immigrants could deny the right to make an honest income to foreign nations who are in the country legally should appall any ordinary South African taxpayer.

It should be remembered that the vast majority of those denied this freedom of trade on the basis of nationality are nevertheless trained in institutions of higher learning across the country. It was reasoned in the judgement that they should have foreseen this possibility at the time of applying for study visas. What this argument negates is the significant contribution that those foreign nationals who are now permanently banned from practicing law would make – not only towards expanding the revenue base (a primary concern of any protectionist government) but also to our legal jurisprudence.

Protectionism has now hit the legal profession – gatekeeping is slowly but surely becoming the new normal!

Lehumo Sejaphala, a contributing author for the Free Market Foundation, holds a BA Law and LLB degree from Wits University and is currently studying for an LLM


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