Black Advocates – Equal Opportunity or Government Racism

 

The law and the policy of South Africa is designed to ensure that Black people are given equal opportunity to act in the economy of the country.  There is no profession more committed to that ideal tan the legal profession.  The lawyers were in the forefront of the fight for equality, both Black and White lawyers.  However, it is a concern that there is now a discussion about the preponderance of White advocates in the people used by Government and large corporations in their legal battles.  The Black lawyers are calling for the use of Black advocates to a much greater extent, and for a binding policy to enforce this.

The simple reason for the use of White advocates is that those advocates offer the best opportunity to win the Court action, which is the purpose of the litigation.  This simple reason introduces a range of other considerations.

First and foremost, the Constitution calls for equal opportunities to be available to all qualified persons, regardless of race.  Any Government policy that goes contrary to that intention is contrary to the Constitution.  The Government has progressed a long way towards negating that principle of the ‘Rainbow Nation’ in its BBEEE legislation, which clearly denies White males the opportunity to realise their potential, regardless of the superiority of their qualifications or their capabilities.  It is very clear that the Government is exercising racial discrimination on a broad base, to the prejudice of the economy and of its general population.

The standard of Government education in South Africa is too poor to provide the minimum requirements for an effective advocate.  Unfortunately the fact is that a majority of the people who obtain a good education are Whites, partly because the White population recognises the need for an adequate education and are willing to pay for it.  The Law Society issued a report several years ago that a large proportion of newly-graduated lawyers were not functionally capable of using language, an essential element of legal training and education, adequately.  Many of the university students entering universities need to undergo corrective education in language, mathematics and science.  What chance do these people have of becoming effective legal professionals?

Another important factor is that the home background of the Whites is often more modern and aligned to the needs of the modern society and its legal thinking.  A ‘herd boy, growing up in the rural areas’, as Jacob Zuma proudly claims to have been, is exposed to the tribal systems of ‘law’ and thinking, which are very far from the modern society of the cities, and adapting to a modern system of laws is a big jump in his mental structure. 

A further factor is that the White advocates have gathered experience that enables them to be more effective in the task, experience which can only be gained from years of doing the job, taking on increasingly responsible and complex tasks and learning on the job and from peers.  It is very seldom that an advocate who graduated ten years ago will be as effective in a legal dispute as one who graduated forty years ago and has practiced his profession since then.  A quota system cannot impose that experience or replace it.

The imposition of a formal quota system in the use of legal professionals, reinforcing the informal quota (or even exclusive use of Black professionals) will be another step in the imposition of a new Apartheid, and will be even more damaging to the effectiveness of Government in its work.  Government has an obligation to use only the best legal services available for the job.  That is part of the requirement that Government use its financial resources most efficiently, and that obligation cannot be satisfied if the obligatory use of a less competent Black advocate results in the Government losing a Court battle, with the result that it has to pay legal costs as well as losing the ‘meat’ of the action which, almost by definition, has a value in excess of R100 000 per case.  This is clearly shown by the annual awards by the Courts of damages for wrongful arrest of over R100 million per year against the Minister of Police.

All of this is not to say that there are no excellent Black advocates.  There are, and they should be retained in exactly the same way as the excellent White advocates.  However, the requirement that Black advocates should be used because of a quota system, rather than their legal and Court excellence, can only result in the standard of legal representation of the State declining even further.  Before the advent of the ‘Rainbow Nation’, an advocate had to earn his or her place in the legal profession the hard way, by achieving good results in all of the courses leading to the law degree, including examinations in English, Afrikaans, Dutch and Latin as background knowledge essential to an understanding of the law and the legal precedent cases, and by doing excellent work over a long period of time and so gaining a reputation that would attract further and more responsible briefs.  There can be no reason why a Black skin should be a reason to sort-circuit this process.