Transformation of the Legal Profession: Briefing Patterns in the Spotlight (Independence)

The recent criticism of the advocates’ profession for a lack of transformation has prompted the Minister of Justice, Michael Masutha, MP, to say that he will launch radical plans to make the Cape Bar, in particular, more demographically reflective of South Africa. This brief analyses the Minister’s comments. 

Background

In response to the recent announcement that, of 18 newly-appointed Senior Counsel (‘SC’) from the Cape Bar, only 4 were people of colour and none were black [1], the Minister of Justice, Michael Masutha, MP, is set to introduce radical plans to shake-up this status quo [2]. 

As IOL reports [3]:
 

‘‘The situation has been described as “shameful’’ … Now Justice Minister Michael Masutha has stepped in to make sure that the Cape Bar – said to be one of the most untransformed bars in the country – gets its house in order. The minister flew to Cape Town to meet the Cape Bar Council, and the Black Lawyers Association and the Advocates for Transformation were brought on board to address the skewed racial and gender representivity. The entire process has put the white male-dominated Cape Bar under tremendous pressure.’’

Demographic Composition 

Representation of racial groups at the Cape Bar as at April 2014 (LSSA)
















Racial demographics of the Western Cape (Stats SA, 2011)

Although strict racial representivity is not in and of itself an indication of transformation’s success, the disparity in statistics of the Cape Bar’s membership and the province’s racial composition demonstrates the problem. White males, and white people generally, are overrepresented whereas Coloured and African people are grossly underrepresented.

Professional Racism

Historically, the Apartheid regime’s racial differentiation of access to education at all levels kept most people of colour away from the Bar [4].

The LLB was a postgraduate degree, pursued after a generalist degree, such as a Bachelor of Art (‘BA’). Thus, the LLB was perceived as an elite degree.  Postgraduate status aside, which came at an extra cost, it also created better career opportunities. One could only become an advocate with an LLB [5]. And, given that the judiciary was overwhelmingly selected from the Bar, an LLB was essential for judicial advancement. Similarly, elite (white) universities preferred prospective academics to hold an LLB degree.

Other degrees and career options existed. The LLB operated alongside the undergraduate B.Proc and B.Juris. Even though they were, technically, open to students of all races; they were, mostly, obtained by ‘‘non-whites’’. This is particularly true of the B.Proc. Legal academic Mwende explains, they were effectively reserved for non-whites because, they were cheaper and took less time to complete [6]. These degrees were not as thorough in their training, and only entitled graduates to practice in lesser roles – as paralegals, prosecutors, and magistrates. Typically, even when these graduates became legal academics, they were constrained to non-elite (non-white) universities.

Further, ‘‘non-white’’ students would have found it near impossible to obtain an LLB as a second degree. The state differentiated education spending per student based on race – with non-whites receiving less than their white counterparts. This occurred at school and university level. This created an educational ‘deficit’ where ‘‘non-white’’ school-leavers were underprepared for university, and those who went on to university were similarly underprepared them for the working world. 

White dominance of the profession, then, was inevitable. Although the previous degree system has changed, many of the racialised effects continue. 

The majority of black students in South Africa are dependent on a largely dysfunctional state education system. This explains high levels of attrition among black students, in particular, during the first year of university; they are woefully underprepared but pushed through into the university system, seemingly so that ‘‘transformation targets’’ can be met. Black students who graduate then face further difficulties – including the need for dependable and immediate income (to settle student and household debt). The consequence is that there is a limited pool of black talent that the Bar can attract which is made less likely by unpaid pupillages and ‘racist’ briefing patterns.

It is important to note that this racism may take two different, yet equally pernicious, forms. Both need to be addressed.

Overt racism refers to the direct discrimination on the basis of race. It is intentional. For example, a white attorney refusing to brief a black advocate. Covert racism has the effect of being racist but is not directly intended to be. For example, a white attorney choosing to brief white advocates because they ‘‘speak English well’’ and not briefing black advocates because they do not. It is unnecessary to delve into the differences (in intention, method, and consequence) here. Suffice it to say that black advocates have said they experience both forms and it is good that the Cape Bar has now decided to act – however late.  

As the Cape Times reported [7]:
 

The Cape Bar has admitted it has delayed tackling slow transformation because briefing patterns “continue to favour white male counsel”. Cape Bar Council chair John Butler said ensuring that black junior advocates had access to non-State work was a major challenge and admitted there had been delays in addressing the problem.

Independence of the Profession

While these radical plans have yet to be announced, the Minister’s intention is clear – the Bar has had an opportunity to change itself and failed. As such, his office will now actively step in.

This intervention is not without substance. While the Bar, generally, and the Cape Bar, specifically, have undertaken various initiatives to transform themselves, they have all failed to bring about substantial institutional change. 

The danger here, especially after the promulgation of the Legal Practice Act, is that the Minister may use his extensive powers to undercut the Bar’s independence to impose his political will upon it. 

As Patrick Wainwright of BMK Attorneys has written:

‘‘In the drafting and comments stages of this Act, much was made of the encroachment by the executive on the independence of the legal profession. Certain safeguards have been put into place to ensure this independence. This appears to be aiming in the right direction. However, there are still a few concerning provisions in the Act which may infringe on the independence of the profession. The most concerning provision is Section 14 which allows the Minister to dissolve the Council and appoint her own interim Council if she loses confidence in the Council’s ability to perform its functions. It must (also) be noted that the Minister has the power to make regulations concerning, amongst other things, the election procedure of the Council. However, such a regulation would require the approval of Parliament before coming into force’’ [8]
 

Transformation has been cited as a major reason for the Act being promulgated. Undoubtedly, this particular incidence adds further legitimate impetus for transformation. But, exclusively focusing on Silk – which comes in the latter part of a career at the Bar – would be remiss. The Government should, rather, focus its radical attention to addressing underlying causes which limits the availability of black talent.

Conclusion 

The dearth of Black Silks is, undoubtedly, an indication of the challenges which the Bar faces in its role in the delivery of justice. But, we should all be wary when the Minister of Justice – a member of the Executive arm of Government – declares his intention to intervene in the Bar’s affairs. This is especially when the Bar is one of the key the means through which the Government itself is held accountable. Transformation must be given effect to, but it should not come at the cost of the Bar’s independence. The Bar continues to do itself no favours by not being more radical in its own approach to change.

Kameel Premhid
Legal Researcher
kameel@hsf.org.za

References
[1] http://www.bdlive.co.za/national/law/2015/10/30/advocate-teams-must-in-future-include-black-counsel
[2] http://www.iol.co.za/news/crime-courts/masutha-tackles-untransformed-cape-bar-1.1949418#.VlcNM3YrKUl 
[3] http://www.iol.co.za/news/crime-courts/minister-fumes-over-cape-bar-s-new-silks-1.1948933#.VlcSiHYrKUk 
[4] Premhid, K. 2015. ‘The impact of the organised legal profession’s role on legal education in South Africa since 1994’: Examining the changing support for the 4-year undergraduate LLB. Master’s Dissertation (Unpublished). Oxford.
[5] Qualification of Legal Practitioners Amendment Act 78 of 1997
[6] Mwende, K. K. 2007. Comparing American and British Legal Systems: Lessons for Commonwealth African Law Schools. New York. Cambria Press. P 16.
[7] http://www.iol.co.za/capetimes/cape-bar-patterns-favour-white-males-1.1950347#.VlW3gXYrKUk
[8] http://www.polity.org.za/article/the-legal-practice-act-28-of-2014-in-force-but-not-effect-2014-10-21