Transformation has always been what some people call a ‘suitcase’ word. I like suitcases – they carry many things at once, in a convenient way. But every now and then it is as well to have a look inside your suitcase, and see if the contents are suitable for the journey you are on.
Transformation is a constitutional imperative, but is often understood as meaning a numbers game, in terms of race and gender diversity. The numbers are important, don’t get me wrong. We have seen recently in a potentially landmark case around compensation for silicosis, concerns expressed about the fact that out of nearly 40 counsel involved only three were black, while every single senior counsel was white and male. Numbers matter.
The answer to the concern was framed, and I put it crudely, as “we need the best, and the best are white men”. Well, if by “the best” you mean that there are a small group of men who are considered exceptional counsel, the ‘go to guys’ when your client is guilty, or has a lot of money on the line, who are consistently briefed in the biggest cases, and have a huge amount of experience at the bar, that is undoubtedly true.
The Bar is also the traditional pool of talent for judges, and is itself made up mostly of men. (White men??) So the best of this pool will probably, even just statistically, be (white?) men.
But how this comes to be so is worth more analysis. Why is it that so many advocates are men, and men from at least middle-class backgrounds?
In recent months, women judges have talked in Judicial Service Commission (JSC ) hearings about the difficulties they face, and faced as lawyers, with their role as primary caregivers forcing them to make hard parenting decisions like putting children in boarding school. Women have talked about how difficult it is when they have a judge president (the leader of the judges in that division, known as the JP) who doesn’t accommodate their need for flexibility, and how much easier it is when they have a JP who does. They have also talked about briefing patterns, and the perception that when it really counts, you need the best, and the best is a white man.
In a speech unrelated to the representation in the silicosis case, Deputy Chief Justice Dikgang Moseneke had harsh words for the state, saying although this “massive consumer of legal services” could heavily influence the distribution of legal work and thus “spawn highly skilled and competent practitioners”, it chose not to.
“All I hear is the state’s monotonous demand for transformation of the profession and the judiciary. Where would the race, class and gender diversity of the profession and the Bench come from when the state behaves as it does?”
He echoes calls from the JSC broadly for deeper thinking about transformation, which is certainly about briefing patterns. It is axiomatic that the more you do something, the better you get at it.
But there has also been a new thread in the discussion about transformation in the profession, which concerns money. Not in the sense of briefing patterns, and fees, but in the sense of family money. Advocates do a year of what is called pupillage, which basically means working under a senior advocate for no pay for a year. After that, they set up their own ‘chambers’, which is pretty much an office, but they often rent that from the Bar, and also pay Bar Council fees.
Then they spend a while waiting for work and building a practice. That’s all time when they are not earning an income. On top of a law degree that lasts five or six years, that is another year with no income, money needed for chambers, and a year or more of not earning much. If you left law school with debt, and no income, where does all that money come from?
And then what happens when you can’t afford your office rent? Sometimes you colleagues at the bar will cut you some slack, and let you not pay rent or fees. This is correctly understood as contributing to transformation, as the advocates with less money will often be historically disadvantaged. For many this does not make that much difference – with no financial backing and the urgent need to bring in a steady income, many people go into practice as attorneys, where they at least get paid in the training period, or work for the National Prosecuting Authority as prosecutors, and become magistrates.
While you can do your pupillage while you are being paid a salary by the state, as it seems at least one judge did, most members of the bar who are what are quaintly knows a ‘pupil masters’ would not see it as part of their role to train up advocates who are not part of their Bar. Remember, pupil masters are not paid. Their interest in training up juniors is having clever young lawyers work with them for a year for free, and then have juniors whom they can trust with work when they need a team on a case. They also do this is in service of their profession, and many do so mindful of the need to ensure transformation. But this is not dealing with the systemic issues. So, for all these reasons, historically disadvantaged lawyers tend not to become advocates.
And it is then also difficult to transition from being a magistrate to being a judge. As an advocate, you are in and out of courts, and your JP will be aware of you, or at least hear about you as a candidate for acting judge, which is your ticket into a JSC hearing, and becoming a judge. If you are a magistrate how do you move into the inner circle? There is no agreed publicly available process for this. The JSC have had it on their agenda for some time, but nothing has yet emerged from this rather costive process.
So as with all transformation, one change begets another. Yes, you can go and get a degree, with little family money. Many have, and we rightly recognise them as having overcome a huge obstacle. But then, when you practice as a lawyer with little family money, all sorts of other submerged barriers become clear. These structural issues cannot be ignored with a mindless mantra of ‘transformation’, or “where are the women?”, as the chief justice says.
“Where would the race, class and gender diversity of the profession and the Bench come from when the state behaves as it does?” asks Moseneke. The same analysis may well be applied to academia. When the state does not fund poor students adequately, they do not become academics. They get out, and earn money, just as soon as they can. When those poor students make it through and become lawyers, precisely the same forces range against them in making it into the elite. It of no use whatsoever to stare at the product at end of the pipeline and wonder why it is so white, while the pipeline itself is designed so that it replicates privilege.
I am not at all disconcerted by the level of student protest about fees. It means that poor students are making it to university in sufficient numbers to create a proper discussion about how to manage the fact of poor students at university. In the same way, the level of debate and protest about how the legal profession is structured is due to the fact that sufficient numbers of lawyers from disadvantaged backgrounds are in the profession, and now speaking about how the system really works. It is a sign of change, and a sign of change to come. DM