The Gauteng High Court dismisses a bid to overturn the LPC's decision to clear a major law firm over its citizen-only candidate attorney recruitment policy.
Image: Legal Practice Council/Facebook
The Gauteng High Court, Pretoria found that the candidate recruitment policy of one of the country’s biggest law firms to restrict these applications to citizens of the country amounted to permissible affirmative action.
The court dismissed a review application by the Asylum Seeker Refugee and Migrant Coalition and its director Muchengezi Hiwacha (applicants) who challenged law firm Webber Wentzel’s earlier policy of excluding permanent residents from its candidate attorney programme.
The application was aimed against the Legal Practice Council (LPC) who earlier investigated a complaint by the applicant in this regard against the law firm and attorney Alisdair Lawson. The LPC dismissed the professional misconduct complaint, which in turn caused the applicant to take this decision on review.
The court noted that at the core of this application that goes to the heart of South Africa’s transformative duties under the Constitution. The question which came under the spotlight was whether an employer in pursuit of addressing historical inequality may lawfully exclude permanent residents (who are treated as citizens under the law) in a vocational programme as part of affirmative action.
The complaint before the LPC arose when Webber Wentzel changed its candidate attorney recruitment policy to exclude permanent residents. This was done to comply with the Broad Based Black Economic Empowerment Act and the Employment Equity Act.
The applicants, however, argued that this constituted unfair discrimination.
In the years preceding its later recruitment policy, the law firm restricted the intake of white South African citizens, while it continued to recruit non-citizens with permanent residence. This yielded positive outcomes, but not swiftly enough to meet the BBBEE targets.
By 2015, the firm encountered difficulties in retaining non-citizens who did not hold permanent residence due to the issue of obtaining work permits. It subsequently changed its policy in 2018 that only South African citizens could apply for the candidate attorney programme. The programme was later relaxed in 2020 once the law firm believed it had achieved its objectives.
The applicants argued that the policy was changed due to risk factors rather than a legitimate affirmative action purpose. According to them, it amounted to unfair discrimination.
They contended that the LPC’s dismissal of the complaint against Webber Wentzel and Lawson was irrational and procedurally unfair.
The court meanwhile commented that these review proceedings were not about deciding whether the recruitment policy itself was constitutionally valid, but rather whether the LPC acted lawfully when it dismissed the complaint. The court found the investigating committee adequately investigated the complaint and came to a rational decision.
The court also rejected the argument by the applicants that the LPC committed an error in law because it failed to appreciate the protected status of permanent residents under South African law. The court said it is not in dispute that permanent residents enjoy, in the main, the same rights as South African citizens.
In support of the LPC’s conclusion, the court pointed out the recruitment policy was time-limited (from 2018 to 2020) and it was narrowly tailored to a single recruitment programme at one law firm. Permanent residents were not excluded from the legal profession as such, the court said.
Although the court dismissed the review application, it acknowledged that broader constitutional questions concerning permanent residents and affirmative action remain unresolved. It said this judgment does not foreclose future litigation on the important constitutional question of the extent to which permanent residents may be excluded from employment opportunities under affirmative action measures by private employers.
zelda.venter@inl.co.za