The Black Lawyers Association has “welcomed and accepted” the outcome of the elections for the new Legal Practice Council. Its press release reads:
“To BLA this election represents a total break from the past and the beginning of a new dawn as envisioned by the Constitution.”
The National Association of Democratic Lawyers (Nadel) was less enthusiastic, expressing well-founded concern about the low turn-out.
The BLA seems to think that the legal professions are somehow part of the apartheid legal order. Actually, the legal professions, and the manner in which they are carefully and independently organised, ante-date apartheid by centuries. During apartheid the legal professions were a bastion of freedom and justice – they stoutly and pertinaciously resisted all attempts at fusion of the professions and interference in their professional affairs which were attempted by the apartheid authorities. The professions supplied the justices for the new Constitutional Court at the dawn of democracy and advised on the constitutional compact which is now the basis of the new order in SA.
The “new dawn” (interesting phrase, not first used by the BLA) really envisioned in the Constitution is one in which human dignity is respected, the achievement of equality is promoted and the various freedoms guaranteed to all are enjoyed in a new non-racial, non-sexist order under the rule of law.
What the Constitution does not envisage is hegemonic control of the levers of power in a new revolutionary order. It does not prescribe political control of independent professions – on the contrary, it requires an independent and impartial judiciary. It is from the legal professions that judges are drawn. The professions own independence is internationally regarded as an element of the rule of law. Professional independence is not part of the “new dawn” of the revolution espoused by the BLA.
What, pray tell, is “welcome and acceptable” about organising an election along arbitrarily determined “racial” and “gender” lines in a quota system? One with pre-determined male/female (those of transgender and intersex persuasion are not catered for) and black/white categories in which so-called “African, Indian and Coloured” candidates are lumped together in two gender groups?
More than three quarters of the attorneys and advocates eligible to vote for the quotas of their choice did not participate in the election at all. A sizeable proportion of those who voted spoilt their ballots, reducing the countable voters to fewer than one in five legal practitioners. These facts, gleaned from the published election results, suggest that most lawyers neither welcomed nor accepted the quota format and the whole idea of having the department of justice nosing into their affairs. The implicit vote of no confidence does not seem to bother the BLA.
The professions’ rejection of the LPC is hardly surprising: a fundamentally non-racial and non-sexist order does not countenance quotas along racial and gender lines. Proper lawyers will have no truck with such nonsense. Nor does the Constitutional Court, the home of some very proper lawyers, regard quotas as part of the “new dawn” – it has ruled on the notion of quotas both in the Insolvency Practitioners case and in the Correctional Services case. Quotas are not permitted, constitutionally speaking. The BLA is silent on these findings in its press release which is tellingly headed “Consolidating Power and advancing a Revolution.” No secrets there then. Given the “new dawn” phraseology, it is plain that the revolution to which the BLA refers is the National Democratic Revolution of the tripartite alliance which governs at national level in a manner that continuously requires correction by the courts. The aim is achieving a form of hegemony that is certainly not envisioned in any way, shape or form in the Constitution.
In a non-racial and non-sexist order, race and gender are irrelevant in the choice of candidates for elections. Freedom of association permits the human race to vote as it sees fit for whatever gender or “race”.
It is so that the Bill of Rights says that “to promote the achievement of equality, legislative and other measures, designed to protect or advance persons or categories of persons, disadvantaged by unfair discrimination may be taken”. This form of affirmation has not occurred in the LPC elections.
The structuring of the LPC elections has thrown up a strange anomaly in the voting: a white male candidate made it on to the council in spite of receiving fewer votes that three black male candidates and one white female candidate. That is how the quotas worked. As the white male in question is a partner in a large and powerful Johannesburg-based firm of attorneys, it is a bit of a stretch to fit him into the “persons disadvantaged by unfair discrimination” mould.
Far from promoting the achievement of equality, the measures taken to arrange the election have had the opposite effect on the four more popular candidates squeezed out by the operation of the quota on the votes cast. How positively undignified for the unlucky losers.
This anomaly does not bother the BLA: with scant regard for the meaning of disadvantage and the purpose of promoting equality, its spokesman blithely remarked on Jane Dutton’s show on eNCA that the constitutional idea is that the previously disadvantaged should become the currently advantaged. He is apparently well pleased with the racial social engineering involved in the election and is unabashed that the architects of apartheid are gleefully pointing to the fact that one of the elected representatives was out-scored by spoilt ballots and that a white male is the only unpopular beneficiary of the quotas illegally used. How a credible and legitimate body can be established in this way is unfathomable.
Multi-racialism is practised in some countries around the world. SA is not one of them. Our non-racial foundational value can be perplexing. Everyone knows that Martin Luther King wanted his children to be judged by the quality of their character and not the colour of their skin. His salutary approach to racism has passed the architects of the LPC by; they remain stuck in apartheid-thinking.
Some years ago Dumisa Ntsebeza SC, appearing on Judge Dennis Davis’ show, explained carefully that SA would have a non-racial and non-sexist bench when the judges in harness were able to reflect the race and gender demographics of the country at any given time.
Actually, the happy state sought will be achieved when judges are selected, appointed and respected for their skill, experience, probity, humanity, impartiality and independence. They will be drawn from professions in which these qualities count more than “consolidating power and advancing a revolution”, to repeat the sentiments of the BLA.
It is difficult to divine what exactly those who organised the fiasco that the election became were really trying to achieve. They have been asked privately to account for their activities and the outcome achieved. They may be well advised to return to the drawing board and to refashion what they have done. The legality and constitutionality of the LPC elections are more than highly questionable: their outcome is farcical. The LPC’s credibility and legitimacy are open to huge doubt. There would appear to be no basis for distinguishing the social engineering in its provenance from the basis upon which quotas were frowned upon by the highest court in the land in the two cases already mentioned above.
A climb-down, as gracefully as possible, is surely better than a forensic defeat. Whether the LPC sponsors and their advisers will have the nous to see it that way remains to be seen. What is certain is that unless this abomination is corrected voluntarily, it will have to be corrected in litigation.
The only light note in the saga is that a candidate who, quite correctly, described himself as “human” when asked to give his “race” was classified by the organisers as a “black male”. He is a descendant of Jan Smuts and came in a creditable sixth among the 49 advocates in the race. Viva non-racialism. DM