Transformation of the legal profession: To betray, or fulfil the mission?
- Wandisa Phama & Ayabonga Nase
- 05 Nov 2015 (South Africa)
“Each generation must, out of relative obscurity, discover its mission, fulfil, or betray it.” These words by Frantz Fanon many generations ago have never been so relevant, especially relating to the current discourse on transformation in South Africa.
Black youth have an opportunity to endorse the mission identified by black movements that have recently emerged in universities. The mission is to attain, substantively, what was achieved formalistically in 1994 – the transformation of South Africa across all spheres, and all sectors. This is by no means an easy task. The #RhodesMustFall campaign, Open Stellenbosch and the recent #WitsFeesMustFall movement, in advocating for change, all reveal that the prevailing university system is unjust towards blacks. Interestingly, in advocating for that change all these movements are essentially challenging different manifestations of white supremacy in our society.
We write as young black legal professionals working within a social justice law clinic. Due to the nature of our work, we are very much alive to the many issues in our society, and are dedicated to achieving social justice. In the past three weeks, for instance, we found ourselves supporting the Wits students’ protest. Our support does not stem only from the premise that the South African Constitution guarantees the right to peaceful, robust and unarmed protest. It is also demanded by our understanding of the hardships innate in being a poor black person trying to get an education. This demand is heavily placed on our consciences because we have, ourselves, lived through these struggles.
For ourselves, the recurring questions we have been dealing with are: Why have we, as young black professionals, not made the transformation of the legal profession our struggle? And, why are we not protesting for transformation? Surely, as indicated above, our Constitution guarantees this right.
We have, with others similarly situated, discussed the lack of black counsel in the landmark silicosis case. We have also read the views expressed by others regarding the lack of transformation in the legal profession such as in Franny Rabkin’s article here. In our discussions we have also raised concerns about the parading of black miners on social media, including the hundreds of black activists outside courts on hearing days. All these discussions, however, have taken place in our small black corners where our employers and everyone else will not hear them. Sometimes we share these concerns with some of our liberal white friends.
What bothers us in working in the legal civil society sector is the inability to reconcile, on the one hand, the wonderful work we do for our black clients in these organisations and, on the other hand, the lack of transformation inside the very organisations in which we do our work. We have observed the bold steps civil society organisations are prepared to take in guaranteeing the realisation of the rights of the most poor and vulnerable. These steps are usually in the form of challenges against the state and private institutions where human rights have been violated. As we routinely witness how bold such steps actually are behind the scenes, it is difficult to believe it possible that in South Africa today civil society could sit back and do nothing in the face of perpetuating injustice inside its own ranks. This injustice, in our view, is the lack of transformation in the legal profession.
Everybody who works in the legal profession knows how the sector is dominated by white professionals. This is a fact. Almost everybody knows this; even our black clients seem to be labouring under the misapprehension that the best legal representation is one where the team is white or at least majority white. Thus, as young black professionals, one is engrained with this knowledge starting at university level, and proceeding into practice. Just walk into the University of Witwatersrand or University of Cape Town law faculties on any day of the week, or simply set foot in the South Gauteng High Court during the silicosis case hearing, and you too will also see what we mean.
The sustained lack of transformation in the legal profession has less to do with a lack of awareness, and more to do with the fact that no one is willing to take bold enough steps to do anything about it. Here, there is a disconnect between the commitment of civil society to social justice work, and the actual realisation of transformation.
In the silicosis case, of the approximately 40 advocates involved, only two are black, and there is not a single black senior counsel. A conciliatory argument from black professionals regarding transformation would perhaps be that counsel is unrepresentative of the demographics of our society. This however, is not the point. The real question from our point of view is: who created a situation where the legal teams in that case are almost “whites only”? In our view, the responsibility must be borne by the leadership of, and briefing attorneys in, public interest law clinics and firms since democracy.
This is not intended as blanket blame on all the leaders since ’94 or all the briefing attorneys, for we know there are others who have not only been conscious of transformation, but practiced it. We are concerned, however, that despite the endless discussions civil society organisations have had regarding transformation, they often see it fit to have legal teams which differ drastically from the “transformation gospel” they preach. Of course, the silicosis case is a prime example.
Richard Spoor’s comments quoted in the Business Day articulate what seems to be the thinking in these white-led civil society organisations. Though he is not a spokesperson for civil society organisations, he is quoted as having said that the teams had to be made up of “counsel with an avowed and sincere commitment to public interest law” and further went to say he briefed “exceptional counsel” only. He proceeded to say that “the numbers of black counsel who meet both these criteria are really small”. As a young black professional, we then wonder, could Spoor’s views mean that all the brilliant black advocates we know are not exceptional enough to be briefed on “sexy” matters, or is it possible that they are all busy? Or could it be that most black advocates in the Johannesburg Bar, despite the number of public interest matters they have litigated, have no avowed commitment to public interest lawyering unlike white advocates?
Over and above the silicosis case, there is a continuing trend in public interest law organisations. In this year alone, two public interest law clinics appointed inhouse counsel. From a gender perspective, this is commendable as both appointees are women – white women. In addition, earlier this year two other civil society organisations appointed attorneys around the same time. And yes, both attorneys are also white women. This is not to say that black attorneys and black in-house counsel are not being hired, because they are – albeit in small doses. Our concern pertains to the proliferation of these spaces, which are already white dominated, with more white professionals in senior positions or white professionals being the persons of first choice in appointments of in-house counsels or attorneys. This is astonishing because one is exposed to the rhetoric that more black attorneys should be appointed.
Confusion will continue to prevail in our black minds as we occupy spaces where public interest lawyering is interpreted narrowly as taking a moral high ground on what constitutes justice and fairness in society without seeing it materialise within our own profession.
Our point, in this piece, is not to inspire another talk or conference. We want to see actual transformation. So long as those who wield power in this profession take the view that black professionals will perpetually be in need of more “grooming”, the progression of black people in these spaces will always be brief and short-lived. In the meantime, we will keep asking ourselves whether in all these years that these organisations have been in existence, no blacks were exceptional enough to lead the organisations. We will also ask whether there were no blacks that demonstrated an avowed commitment to human rights to the level necessary to be able to lead a landmark cases.
One of the most interesting developments in the talks regarding transformation in the legal profession has been the resolution of the Johannesburg Bar Council, which deems not briefing Black as unprofessional in teams of more than 3 counsel. It would be interesting to see whether the public interest law sector will respond to that call or dismiss it. In our opinion it is time for public interest law organisations to practice the fairness and justice they preach in appointments and briefing patterns.
Wandisa Phama and Ayabonga Nase are Candidate Attorneys at the Centre for Applied Legal Studies. This article is written in their personal capacities and the opinions expressed herein are their personal views.