The SA Social Security Agency (Sassa) crisis has brought into focus the lack of transformation in the legal fraternity once again.
Of all the legal minds gathered at the Constitutional Court this week, there wasn’t a single black advocate representing any of the parties involved.
Nearly 23 years into our democracy, we still find ourselves in a situation where white senior counsels and even their junior counterparts are the first choice of corporate South Africa, NGOs and the government when it comes to representing them in big cases.
Most disappointing is how the government is failing to take the opportunity to transform the legal landscape by leading by example.
“There was a time when there were five government entities in court, all of them were represented by white counsel; all of them were represented by white junior counsel to the white senior counsel,” Ntsebeza said in an interview with Talk Radio 702 on Thursday. “You search in vain for black counsel, whether it’s juniors or as seniors representing five departments of state, in a post-apartheid democratic South Africa, and you realise there’s something wrong.”
While data released by the Law Society of South Africa last year shows that of the 23 217 practising lawyers in the country, only 8 871 were black – representing just 38% of the industry – there’s a significant pool of talented black advocates, yet they’re overlooked on a regular basis.
“Unfortunately there’s been a perpetuation in the minds on the reading and listening public, and those who observe of a view that only our white compatriots are able and capable of delivering the cases for which they have been instructed,” said Ntsebeza.
For Michael Motsoeneng, a leading IT, media and labour lawyer, and founding director of Motsoeneng Bill Attorneys, the issue goes far beyond competency and comes down to a lack of opportunity.
“The people who own the companies in the JSE are more than 97% white,” Motsoeneng said in a previous interview with DESTINY. “They brief white firms, who in turn brief white advocates. That is the cycle. Change in the legal fraternity will not happen at a different rate than change in corporate South Africa.”
It’s clear that briefing patterns need to change, but how can we go about effecting that change?
Motsoeneng believes real change needs to start with black people and black-owned businesses briefing black law firms over white ones.
“It begins with us,” he said. “When you’re asking other races to be concerned about our plight, you’re asking a little too much. Change begins with the person who seeks change. You can’t expect someone who’s enjoying the fruits of an untransformed society to give half his stake to you.”
Ntsebeza, who’s also the chairman of the Advocates for Transformation, believes a meeting of minds is required between those who brief out jobs – the private sector, the state and NGOs – in order for transformation in the legal profession to begin. They need to explain and debate the issues that are holding them back from briefing black advocates.
“White practitioners have no say in this thing,” Ntsebeza says. “I can’t blame them. If work comes their way, they must take it … You need an indaba where you can bring everyone from all these sections who are briefing counsel. Let’s have a debate.”
Do you agree with Ntsebeza? Could an indaba be the way forward?