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BEE court wrangle — lawyers say racially skewed briefing patterns pose risk to judiciary

BEE court wrangle — lawyers say racially skewed briefing patterns pose risk to judiciary
Judge Mandlenkosi Motha. I Advocate Johan Brand SC. (Photo: Pretoria Bar) I Advocate Vuyani Ngalwana SC. (Photo: X)

The Black Lawyers Association says a case about black economic empowerment in which no black lawyers were involved is indicative of a broader problem of skewed briefing patterns.

A high court judge recently highlighted the issue of racial representation in the legal fraternity when he questioned why there were no black lawyers involved in a case about black economic empowerment (BEE), and legal practitioners are now expressing concern that racially skewed briefing patterns could affect the quality of the judiciary in future.

Briefing patterns refer to the way in which advocates are hired to participate in a case, either by private attorneys or by the state attorney on behalf of the government. Advocates do not engage directly with clients, but rely on attorneys to refer work to them.

The Pan African Bar Association of South Africa (Pabasa) and the Black Lawyers Association (BLA) believe the issue poses a real risk to the functioning of the Bench, which is the third arm of government.

The issue of skewed briefing patterns garnered public attention after high court Judge Mandlenkosi Motha called on advocates in a case involving Peri Formwork Scaffolding and the head of the Broad-Based Black Economic Empowerment Commission to make a 10-minute submission about why no black lawyers were involved in the case. Motha questioned whether this amounted to a violation of Section 9 of the Constitution, which deals with the right to equality.

Advocate Johan Brand called Motha’s request “totally inappropriate” and opted not to respond to it, as requested. Some in the legal community have applauded Motha’s approach, and the BLA said the case is indicative of a broader problem of skewed briefing patterns.

Pabasa agrees that the issue goes beyond a single case. Instead, it points to a larger problem in the legal community – that black and female lawyers are not brought into complex cases.

Vuyani Ngalwana SC, who has been designated to speak on transformation issues on behalf of Pabasa, says that, if not resolved, the issue of unequal briefs could negatively affect the functioning of the judiciary.

“What I have suggested is that we should have a conference or a symposium, because it seems to me we’re talking past each other. Either people don’t understand what these skewed briefing patterns are, or they are in denial [about] whether it is indeed happening,” Ngalwana said.

“I’m saying, let’s talk about whether it does exist or not. And I’m sure the evidence is going to come out that it does exist.

“Then let’s talk about how we can address these issues. What are the risks to the South African legal system, because it is broader than just briefing patterns? This thing creeps up all the way to the standard of the judiciary and the standards of the judgments that we get.”

Ngalwana says an industry-wide symposium is needed to address the concern that white lawyers are getting the bulk of work in particular areas of law. He adds that Pabasa’s national executive committee “has now formally taken the decision to approach the Legal Practice Council to arrange the industry-wide symposium”.

Context

BLA president Nkosana Francois Mvundlela expresses a similar concern about the broader impact of the issue.

“When talking about… briefing patterns, it is important to understand the context. And the context is that a strong legal profession will produce a strong judiciary. The issue of briefing patterns goes beyond the issue of incomes of lawyers,” he said.

When judges are chosen to sit on the high court Bench, they are often chosen from the ranks of senior advocates or magistrates. During interviews, they need to demonstrate wide-ranging experience, as the high court often deals with complex commercial cases, competition law, insolvency and administrative law.

Often, black advocates and women do not have sufficient experience in these areas of law, but have more experience with criminal and family law.

Judges Matter researcher Mbekezeli Benjamin, who has seen this issue play out in interviews for potential judges many times, says skewed briefing patterns pose a risk to the effective functioning of the judiciary.

“This is something that we often see in Judicial Service Commission interviews. Part of what you must show is that you have broad experiences. You must have grappled with cases of differing complexity.

“This is because, as a judge, you will be required to deal with a whole gamut of cases. One week there is criminal law, the next week family law, the next week there might be an administrative law case.”

Benjamin notes that many complex cases are handled by the same few large law firms and their lawyers tend to brief the same advocates.

“The argument has always been that they have to brief someone that they trust. But often those assessments are very subjective. Sometimes those people don’t do… well, but continue to be given work. That kind of benefit of the doubt is not given to black lawyers, women and younger advocates,” he said.

He adds that some areas, such as competition law, are “effectively a closed shop” where the same lawyers are seen over and over again.

“The Constitution requires that the judiciary looks at gender and race in its composition. That means that it must broadly represent the country.

“If we aspire to a transformed judiciary but don’t have a pipeline of practitioners who have the proper experience, it is a risk. It is a serious risk to the entire legal enterprise. If we have a weak judiciary, we will have a weak rule of law.”

Benjamin says a symposium would be a useful intervention, but it would need to be supported by proper data to show which speciality areas have the biggest problems.

Government briefs

Legal practitioners are also concerned about the role of the government in dealing with skewed briefing patterns. The Office of the Solicitor-General released statistics on how it had tackled briefs between 2019 and 2024.

The statistics indicated that, in 2019, it had an internal target to provide 83% of its briefs to previously disadvantaged individuals and reached an actual outcome of 93%. By 2024, 95% of briefs went to previously disadvantaged people.

In 2019, it aimed to brief women in 39% of cases and attained that target. By 2024, it reached 42% in briefs going to women.

However, Mvundlela says there is a need to examine these numbers further to ensure that the same people are not being briefed repeatedly.

“It is also about age, gender and a skills transfer. We are saying that the Solicitor-General’s Office must be able to go all out. Even when there are two black people, the other must be a young person who will be able to learn,” he said.

Read more in Daily Maverick: All-white, all-male legal teams are wrong on so many levels

Mvundlela says the BLA is concerned that the amended Legal Sector Code of Good Practice on Broad-Based BEE has not been published by the Department of Trade, Industry and Competition after being published for comment in July 2022.

The code, which was developed by the Legal Practice Council in conjunction with the Department of Justice and Constitutional Development, “aims to address inequities resulting from the systematic exclusion of black people from meaningful participation in the economy to access South Africa’s productive resources, economic development, employment creation and poverty eradication”.

Mvundlela says the publication of the final code will provide much-needed guidance to the legal profession on how to ensure more representation. DM

This story first appeared in our weekly Daily Maverick 168 newspaper, which is available countrywide for R29.

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  • Geoff Coles says:

    It does not excuse the Judge at all. His questions were irrelevant in the context of the case…..and inappropriate

    • Titus Khoza says:

      Are you still talking about the same case or are you just saddened by the idea of white monopoly being exposed for what it is?
      Change must come and change Will happen.
      You may want to defend the current status quo all you want.
      But believe you me, change is inevitable.

      • James Webster says:

        Change may be inevitable but change based on demographic rather than merit and competence will only further degrade South Africa’s already collapsing democracy. People who advocate for change based on their political agenda refuse to acknowledge the very real problems of incompetence, inexperience and integrity. SA already lurches towards being a banana republic because the majority care more about a black government than about an effective and honest government. Affirmative action and cadre deployment, which is what you advocate, have failed spectacularly in providing SA with the leadership it so desperately needs producing only corrupt and incompetent leaders who are indifferent to the real needs of the country in favour of their outdated sociopolitical agendas. No-one denies the need for appropriate representation but if the policy of favouring race over ability continues there will not be a country left. What do you want, a country in smoking ruins with no functioning SOEs, a moribund totally ineffective civil service, rampant crime, poverty and unemployment under an autocratic Marxist black government, or a successful functioning democracy with a sound growing economy, merit based opportunity for all, reducing unemployment and the rule of law ? To date race based policies flouting merit have only produced disaster and will only produce disaster. Do you want racially agnostic success, or racially based failure ?

        • David Peddle says:

          A sound argument and one which I fear the white lawyers/advocates in RSA are avoiding because they more into making profits than attending to the long term viability and efficiency of their profession! Who else is better positioned to take up the cudgels of an effective judiciary, than the lawyers who are spectacular in their absence, bar black activists who make all the running for the wrong reasons!!

  • Nick Miller says:

    I believe that a competent lawyer should be able to represent any client. I don’t think that only a gay lawyer can act in a case involving gay rights or that a case involving handicap issues can only be argued by a handicapped lawyer.

    At the end of the day the client is entitled to choose their own representation. In high value cases the client will want the most experienced representation they can afford. If you look at lawyers who are 20or 30 years qualified there is likely to be an over representation of whites. This will change as more black lawyers come through the system.

    If I need heart surgery, I don’t want someone who is one year qualified. I want the most experienced available.!

  • Dermot Quinn says:

    Experience is worth more than the degree. It is imperative that we offer this to our people if we even hope to separate the wheat from the chaff. By not offering exposure through experience we cannot get the best out of our people. But it’s not just a colour thing.
    Most of the older Silks are white by definition. Most of the younger Junior Advocates are black. We need a balance at judge level while still getting the best people in the role. We need a somewhat racial make up reflecting society to a degree.
    Which then highlights the racial rejection of some judges because they are white and Jewish from the CC despite being the most qualified and recognised legal minds in the country.
    Apartheid made many people angry and resentful, of course. It was one of the biggest misallocations of resources in history. How many drivers would have been capable of being brilliant CEOs…I know at least 1. I know hundreds of people who batted below their capabilities for their whole lives.
    A good article which can assist to develop a way of excluding fewer people from their potential and thereby our country.

  • Rod H MacLeod says:

    Soon we will not be able to choose our lawyers, and they won’t be able to choose the advocates as it will be determined on a roster set by a transformed panel of judges.

    Next step – we won’t get to choose our doctors or medical advisors. It will be decided on a roster set by transformed managers of the NHI.

    Compulsory bussing will soon arrive for schooling, and private schools will be nationalised.

    When the new-born SAA starts faltering, we will be required to fly 80% of our flights on SAA, and SAA will be required to employ 80% transformation pilots and crew.

    The same will be coming for architects, accountants, bricklayers, carpenters, electricians, motor mechanics, tailors …

    • Maronga Maronga says:

      This can only happen if we do not give people equal opportunities at entry level… same degrees same university but rejected in the work or market place. Eventually circumstances forces to employ someone at the highest level who was denied an opportunity at level… zero experience… crash landing obvious. Nobody was born an expert… this notion that color defines competence must come to an end if we want to silence populist polotions.

  • Peter Vlietstra says:

    You either believe in an ideology that subscribes to identity politics before competence, or you don’t. This is the point of departure. Such ideology is not sustainable.

  • Palesa Tyobeka says:

    Judge Motha must be applauded for biting the bullet. We all want to skirt around issues pertaining to race even when it is important to confront them. Advocate Ngalwana is correct in proposing an industry-wide symposium to deal with issues such as briefing patterns and their impact on the judiciary

  • John L says:

    It is ironic that the BBBEE Commission chose the services of a white legal team. It somehow defies the whole purpose for going to court. Maybe they don’t have confidence in the likes of advocates Dali Mpofu and Barnabas Xulu.

  • Hari Seldon says:

    According to the latest Brenthurst Poll – only 11% of South Africans are estimated to still blame apartheid for the three most overwhelming problems in South Africa currently (as rated in the same poll) – unemployment, corruption and loadshedding. Over half rightly blame 30 years of ANC government. The hallmarks of ANC government are cadre deployment and nepotism – both sicknesses of clan based thinking. South Africans in 2024 probably mostly don’t care whether a person in power is black or white or anything in between – they just want jobs, security, and water to run from the tap and the light to switch on, and food prices to remain stable.

  • Terril Scott says:

    Racism is racism. Get a grip.

  • David C says:

    So many issues to ponder upon in this article. Let’s start with the Office of the Solicitor-General briefing stats: so 93% of lawyers/advocates briefed were the Currently Advantaged – the fact that this is a target at all is concerning – but what would I would consider more important is to disclose what the success rate and/or outcomes were to the State to achieve that wonderful social engineering targets? In other words, did taxpayers get value for money by pursuing this “goal” or is this just another redistribution exercise?

    There is, of course, an easy solution to the problem raised by the racially exclusive BLA: when appointing a Currently Diasadvantaged legal representative, make it mandatory that a Black lawyer also be appointed for experience and training purposes – at no cost to the client. In other words, if the BLA’s intentions are pure and for the greater good of the judiciary, then there should be no problem fo their members to participate in cases as “2nd chairs” in order to gain that knowledge and experience on a pro-bono basis.

    • Maronga Maronga says:

      I do share some of your sentiments. I went to township school, staying in a shack but managed to go to University. At University I met brilliant black, white, colored, Indian students. Sadly those black learners who excelled far better than white and Indian learners cannot get placement opportunities in established organizations for whatever reason. This is the problem. In the end we don’t have competent black CAs, as we can only work for the Guptas and Bosasa and become competent in corruption. What we ask for is equal opportunities at entry level. This is the reason we end up believing the Commander In Thief… because he speaks what reasonates with our challenges although we know its destructive. Give people opportunities. White lawyers were not born competent but but got opportunities… As the elections are coming… I can’t vote ANC or EFF or MK but I can’t also vote DA… because they don’t address the issue of placement and opportunities… because captains of Industry are not willing to give a black graduate an equal chance. Result.. same destructive order

  • Matthew Quinton says:

    What really bugs me is the lack of Asian judges!!

  • Casey Ryder says:

    No matter the rights and wrongs, Pabasa and BLA are lobby groups. They have a dog in the race. Their perspectives are by definition advocacy, not objective. Interesting question: who decides that that time has arrived for racially defined advocacy groups to disband? They certainly will never do so themselves.

  • Andre Swart says:

    Judge Motha is racially biased and therefore not fit for adjudicating in South Africa and the world.

    A judge is supposed to focus on the MERITS OF THE CASE and not the skin colour of the professional functionaries in the court.

    A judge must not be distracted by ‘side shows’ and ‘filibustering’ therefore judge Motha must be kept accountable for the waste of time and money due to his lack of focus.

    Judge Motha is unfairly ‘punishing’ the messengers because he doesn’t like their skin colour … whereas a professional judge would focus on the ‘message’.

    Judge Motha is racially biased to the extend that he is not fit to adjudicate in this case. He must recuse himself from this case.

    And learn from Chinese wisdom that states ‘ whether the colour of the cat is black or white, doesn’t matter. What matters is whether the cat can catch mice!’

  • James Webster says:

    Until South Africans abandon the notions that nothing is their fault, that someone else is always to blame for their failure, that they know better than the West about everything, that their culture is adequate to the task of leading them into the 21st century, that they are supremely competent, that they are producing the leadership the country needs and that show is more important than substance, SA will continue its chaotic slide into collapse and irrelevance. It will join all the other African banana republics that have elevated ideological imperatives over merit and morality. The majority demands change and transformation, but only in so far as it extends to their desire for money and power, they ignore the urgent and desperate need for their culture to morph into one that values merit over entitlement, morality over money and accountability over arrogance.

  • Amadeus Figaro says:

    Except the writer intentionally fails to mention and engage with the State Attorney explanation that the office applies quotas and the white lawyers were a quota briefing.

    “He further pointed out that, in January 2024, 81% of the counsel it briefed to argue cases on behalf of government were “African”, with 10% being white — the majority of which were women (4), who fell under the definition of being Previously Disadvantaged. One white male advocate had been briefed to argue for the state.”

  • Peter Smith says:

    South Africa is a good case study for future generations. It will clearly show the results of focussing on transformation, BEEEEE while ignoring basic economic and management principles. Soon, the wishes of the ANC will become true – the whole economy will also be black owned. The population will be starving, there will be no jobs and the country will be bankrupt. The skills and investment would have left to greener pastures. And the infrastructure would collapse and/or stolen and sold for scrap. The politicians will look after themselves and make deals with Russia an China and sell off property and mineral rights. The Chinese curse: “may your wishes come true”.

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