The Admission and Enrolment of Foreign Legal Practitioners in South Africa under the Legal Practice Act: International Trade Law and Constitutional Perspectives

Keywords: Affirmative action, Minority group, Multi layered disadvantage, Situation sensitive, Designated groups, Equality, Employment equity


Globalisation requires ever closer co-operation between legal professionals hailing from different national jurisdictions. This interactive global environment has fostered growing international training and mobility among legal practitioners and the internationalisation of legal education. Increasing numbers of law students get trained in other countries as part of their undergraduate degrees or even come to foreign shores to obtain law degrees. Many students hailing from other African countries study towardsLLBdegrees at South African universities. Major commercial law firms ensure that they can offer in-house expertise on major foreign legal systems and co-operate with partner firms in other parts of the globe.

The General Agreement on Trade in Services (GATS), to which South Africa is a party, is a multilateral agreement focusing on the liberalisation of trade in services amongst member countries. Services under the GATS system include legal services. The commitments made by South Africa under this agreement require that South Africa allows foreign legal practitioners to establish a commercial presence or be transferred to South Africa. The Bill of Rights entrenched in Chapter 2 of the South African Constitution guarantees fundamental rights including the right to equality and freedom of trade, occupation and profession. With the coming into force of the new Legal Practice Act 28 of 2014, which provides a legislative framework for regulating the affairs of legal practitioners, including their admission and enrolment, it is necessary to assess the extent to which the Act complies with the GATS rules and the South African Constitution.

This paper examines the new Legal Practice Act 28 of 2014, and examines whether the Act addresses the conflicts that have always existed between the regulation of the legal profession and the admission of legal practitioners in South Africa with South Africa's commitments under the GATS system. Using the doctrinal legal method, it analyses and evaluates the rules governing the admission of foreign attorneys in South Africa from two perspectives. First, it considers them in the light of the international law obligations of the country and second it evaluates whether or not they comply with the South African Constitution, and more specifically with the Bill of Rights entrenched in the South African Constitution. While the new legislation may assist in ensuring the compliance of South Africa with the relevant GATS rules, it will depend on the regulations which still have to be promulgated to what extent the new legal framework will achieve the full compliance of South Africa with all relevant GATS rules.

The paper concludes with recommendations for the reform of the Legal Practice Act. It argues that while the requirement to be a South African permanent resident in order to qualify for admission as an attorney may be justifiable in terms of GATS and in terms of South African constitutional law, it is not in South Africa's best interest to retain it. Consequently, the paper calls for the repeal of the permanent residence requirement for admission as an attorney in the county.


Author Biographies

Cornelius Hagenmeier, University of Venda
Assessor Juris (Germany); LLB (UNISA); LLM (UCT); Director: International  Relations, University of Venda. Email:
Tapiwa Shumba, University of Fort Hare

Tapiwa Shumba, LLB (cum laude) (UFH); LLM (UCT); LLD (Stellenbosch); Post-doctoral Research Fellow, Law, Science and Justice RNA, Nelson R Mandela School of Law, University of Fort Hare. Email:

Obeng Mireku, University of Fort Hare

Obeng Mireku, LLB Hons; LLM (Wits); Dr Jur (Germany); Dean of Law, University of Fort Hare. Email:



Dillon 1995 Mich J Int'l L
Dillon TJ "The World Trade Organization: A New Legal Order for World Trade?" 1995 Mich J Int'l L 349-402

Fazio Harmonisation of International Commercial Law
Fazio S The Harmonisation of International Commercial Law (Kluwer Law International Alphen aan den Rijn 2007)

Friedman Lexus and the Olive Tree
Friedman T The Lexus and the Olive Tree: Understanding Globalization (Anchor New York 2000)

Gupta and Sengupta 2011 Korea U L Rev
Gupta A and Sengupta S "Impact of Globalization on Legal Profession in India: A Critical Analysis" 2011 Korea U L Rev 71-96

Hoekman and Mattoo International Trade
Hoekman B and Mattoo A International Trade: Trade in Services in Guzman AT and Sykes AO (eds) Research Handbook in International Economic Law (Edward Elgar Cheltenham 2007) 113-150

Shumba Harmonising Regional Trade Law
Shumba T Harmonising Regional Trade Law in the Southern African Development (SADC): A Critical Analysis of the CISH, OHADA and CESL (Nomos Baden-Baden 2015)

Stiglitz Globalization and its Discontents
Stiglitz JE Globalization and its Discontents (Penguin London 2002)

Van den Bossche Law and Policy of the World Trade Organisation
Van den Bossche P The Law and Policy of the World Trade Organisation: Text, Cases and Materials 2nd ed (Cambridge University Press New York 2008)

Case law

South Africa

Harksen v Lane 1998 1 SA 300 (CC)

Khosa v Minister of Social Development; Malaule v Minister of Social Development 2004 6 SA 505 (CC)

Larbi-Ordam v Member of the Executive Council for Education (North-West Province) 1998 1 SA 745 (CC)

Pattaya Tangkuampien v Law Society of South Africa (CPD) (unreported) case number 897/07
Progress Office Machines CC v South African Revenue Services 2007 4 All SA 1358 (SCA)

Union of Refugee Women v Director: Private Security Industry Authority 2007 4 SA 395 (CC)

United States of America
Andrews v Law Society of British Columbia 1989 1 SCR 143

S v Tsvangirai 2004 ZWHHC 169 (15 October 2004)


Singapore Legal Profession Act (Chapter 161)

South Africa
Attorneys Act 53 of 1979
Constitution of the Republic of South Africa, 1996
Legal Practice Act 28 of 2014
National Qualifications Framework Act 67 of 2008
Private Security Industry Regulation Act 56 of 2001
Recognition of Foreign Legal Qualifications and Practice Act 114 of 1993
Government publications
Singapore Legal Profession (Qualified Persons) Rules R 15

South Africa
GN 1410 in GG 21927 of 22 December 2000
GN R588 in GG 14719 of 2 April 1993
GN R334 in GG 24991 of 28 February 2003 (Designation of Nigeria and the Kingdom of Swaziland in terms of the Attorneys Act, 1979 (Act No 53 of 1979))
GN R1350 in GG 11979 of 30 June 1989
GN R1813 of 1 October 1993
GN 1743 in GG 16814 of 13 November 1995
United States of America
Rules of the Court of Appeals for the Admission of Attorneys and Counsellors at Law 22 NYCRR 520.6

International instruments

European Community
Council Directive 89/48/EEC (1988)

General Agreement on Tariffs and Trade
Minutes of Meeting GATT Doc C/M/194 (1985)

International Bar Association

General Principles for the Establishment and Regulation of Foreign Lawyers (1998)
Standards and Criteria for Recognition of the Professional Qualifications of Lawyers (2001)
United Nations

Central Product Classification (CPC) 861 of the UNCPC (1991)
World Trade Organisation

General Agreement on Trade in Services (1995)
Marrakesh Agreement Establishing the World Trade Organization (1994)

Services Sectoral Classification List (1991)

Internet sources

Cronjé 2013
Cronjé JB 2013 The Admission of Foreign Legal Practitioners in South Africa: A GATS Perspective accessed 30 September 2015
Krishna 2012
Krishna V 2012 It's Time to Open Legal Doors accessed 30 September 2015
LSSA date unknown
Law Society of South Africa date unknown Qualification of Foreigners as Attorneys in South Africa accessed 30 September 2015
New York State Board of Law Examiners date unknown
New York State Board of Law Examiners date unknown Foreign Legal Education accessed 30 September 2015

SADC 2005
Southern African Development Community 2005 Resolution of the 2005 Conference of the Southern African Development Community (SADC) Lawyers Association Conference accessed 30 September 2015

WTO 2014
World Trade Organisation 2014 International Trade Statistics accessed 30 September 2015
WTO 2014

World Trade Organisation 2014 Modest Trade Growth Anticipated for 2014 and 2015 Following Two Year Slump accessed 30 September 2015

WTO 2015
World Trade Organisation 2015 The General Agreement on Trade in Services (GATS): Objectives, Coverage and Disciplines accessed 30 September 2015
WTO 2015
World Trade Organisation 2015 Trade in Services: South Africa - Schedule of Specific Commitments accessed 30 September 2015
  • Abstract 739
  • PDF 114
  • XML 21
Views and downloads are with effect from 11 January 2018