- The High Court dismissed a review application challenging the Legal Practice Council’s decision to clear Webber Wentzel over its exclusion of permanent residents from its candidate attorney programme.
- The applicants argued that the policy unfairly discriminated against permanent residents and amounted to professional misconduct.
- The court found the Legal Practice Council lawfully investigated the complaint and was entitled to conclude that the policy constituted permissible affirmative action.
A legal challenge to Webber Wentzel’s policy excluding permanent residents from its candidate attorney programme has failed after the High Court in Pretoria dismissed an application brought by the Asylum Seeker Refugee and Migrant Coalition and its director, Muchengezi Hiwacha.
The applicants sought to review and set aside a decision by an investigating committee of the Legal Practice Council dated 4 October 2021, dismissing a misconduct complaint against Webber Wentzel and attorney Alisdair Lawson. They also asked the court to replace the committee’s decision with a finding that the law firm and Lawson were guilty of misconduct under the Legal Practice Act and the Code of Conduct for legal practitioners.
At the centre of the dispute was a recruitment policy introduced by Webber Wentzel in 2018, limiting applications for candidate attorney positions to South African citizens only. According to the judgment, the firm adopted the policy to recruit more historically disadvantaged South African candidate attorneys and to comply with transformation obligations under employment equity and BBBEE legislation.
The judgment identified the central question as whether an employer may lawfully exclude permanent residents, who in many respects are treated as citizens under South African law, from a vocational programme aimed at advancing historically disadvantaged South Africans.
Recruitment policy challenged
Before introducing the policy, Webber Wentzel had already attempted to increase the recruitment of historically disadvantaged South African candidate attorneys by restricting the intake of white South African citizens. However, non-citizens with permanent residence permits continued to be recruited.
The court found that the firm later experienced difficulties because some foreign national candidate attorneys without permanent residence permits could not secure work permits or admission as attorneys after completing articles.
The firm then adopted a stricter recruitment policy, limiting applications to South African citizens only. Advertisements issued by the firm stated that only South African citizens were eligible to apply for its candidate attorney programme.
The applicants argued that the policy unlawfully excluded permanent residents, who enjoy many of the same protections and rights as citizens. The judgment referred to a seminar where Webber Wentzel Graduate Recruitment Manager Phindile Hlabangane explained the policy to prospective applicants.
According to the judgment, Hlabangane said, “The problem is that it does become a bit risky. If you do understand, we are governed by the LPC and the LPC has certain requirements. And yes, I know that permanent residency does allow that, but for our firm, we have corrected it to just South African citizens.”
The applicants argued that the remarks showed the exclusion of permanent residents was based on perceived risk rather than a legitimate affirmative action purpose. The complaint was lodged with the Legal Practice Council in May 2020. The applicants alleged that the policy amounted to unfair discrimination and professional misconduct.
Legal Practice Council clears firm
The Legal Practice Council initially declined to investigate the matter because it believed the complaint could become litigious and therefore fell outside its disciplinary mandate. The council later reconsidered and accepted that it had jurisdiction to investigate.
Webber Wentzel responded through Lawson in correspondence exchanged during 2020 and 2021. According to the judgment, Lawson initially denied that the firm had adopted a discriminatory policy and suggested that the wording in the recruitment advertisement was an error.
However, in a later letter dated 5 February 2021, Lawson acknowledged that the policy had been deliberately adopted as a recruitment strategy to boost historically disadvantaged South African candidate attorney numbers.
The investigating committee convened a hearing on 4 October 2021, attended by Hiwacha and representatives of Webber Wentzel. The judgment recorded that Lawson explained the policy was intended to improve recruitment of historically disadvantaged South African candidate attorneys and align the firm with transformation obligations.
The court also recorded evidence that recruitment numbers increased significantly between 2018 and 2020 after the policy was introduced. According to the judgment, the policy was later relaxed in July 2020 once the firm believed it had achieved adequate progress in increasing recruitment numbers. The court also noted that Webber Wentzel made at least one exception to the policy by recruiting a permanent resident candidate attorney.
At the conclusion of the investigation, the Legal Practice Council dismissed the complaint. The committee found that Webber Wentzel was exercising positive discrimination in line with constitutional and legislative transformation obligations. It further concluded that the discrimination was just in the circumstances and reasonable.
Court dismisses review application
The court granted condonation for the late filing of the review application after considering delays linked to settlement discussions and attempts to resolve the matter.
In evaluating the case, the court stressed that the proceedings were not about deciding whether the recruitment policy itself was constitutionally valid. Instead, the issue was whether the Legal Practice Council acted lawfully and rationally when it dismissed the complaint. The court found that the committee properly investigated the complaint and lawfully exercised its discretion.
According to the judgment, the decision to dismiss the applicants’ complaint was taken after an adequate investigation in the exercise of the LPC’s discretionary judgment as a regulator with constitutional competence over the conduct of legal practitioners.
The court held that the applicants failed to show that the committee’s findings were irrational, procedurally unfair, unlawful or unreasonable. The applicants also sought an order replacing the committee’s decision with a finding that Webber Wentzel and Lawson were guilty of misconduct.
The court rejected that request, holding that only a disciplinary body established under the Legal Practice Act could make such a determination after a proper hearing.
The judgment stated that granting substitution relief would deprive the respondents of procedural protections, including the opportunity to present evidence and challenge allegations.
Although the application was dismissed, the court acknowledged that broader constitutional questions concerning permanent residents and affirmative action remain unresolved.
The judgment stated that this does not foreclose future litigation on the important constitutional question of the extent to which permanent residents may be excluded from employment opportunities as part of affirmative action measures by private employers. No costs order was made.
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