By Nomfundo Manyathi-Jele
The Law Society of South Africa (LSSA) held a summit on briefing patterns in the legal profession in Kempton Park on 31 March.
Speakers at the summit included Chief Justice Mogoeng Mogoeng; Justice Deputy Minister, John Jeffery; the Justice Department’s Director-General, Nonkululeko Sindane; and senior lecturer at the University of South Africa and LSSA’s independent consultant, Tsili Phooko.
The ‘legal’ panel included Chairperson of the Johannesburg Bar Council, advocate Dali Mpofu SC, advocate Samantha Martin and attorneys Max Boqwana and Baitseng Rangata. Consumers of legal services were represented by Mohale Ralebitso of the Black Business Council and the Director-General.
At the summit there was robust discussion around the equal distribution of legal work to attorneys and advocates. Delegates were also taken briefly through past and present discriminatory practices experienced by legal practitioners when it comes to the distribution of work and briefing. Delegates highlighted challenges faced by advocates and counsel in the execution of their work. The focus of the summit was to find solutions and to devise a monitoring mechanism that will ensure that the identified resolutions are implemented.
In the opening address, Chief Justice Mogoeng said that South Africa was divided because white people were seen as superior and women were looked down upon during Apartheid times. He said that this has sadly been engraved in our minds. Chief Justice Mogoeng added that the economy of the country was controlled by design during Apartheid times. ‘We recognised this was an injustice that needed to be tackled,’ he said.
Chief Justice Mogoeng said that we will never know how gifted a person is until we allow them an opportunity to show us. ‘Imagine if the late former Chief Justice Pius Langa was seen as a person instead of black from the beginning? He probably would have been appointed Chief Justice earlier. Do not write off anyone just because you have not yet seen what they are capable of doing. Do not allow us to go back to where we came from. We need a strong base at attorney and advocate levels to build a strong judiciary. If there is no change in briefing patterns soon we will not achieve what we have the capacity to achieve,’ he warned.
The Chief Justice added that a change in briefing patterns will never work if it is sought to be imposed. ‘We need to strengthen the judiciary. A weak person can be swayed this way and that way. If work is only given to whites then there is no guarantee that there will be a turnout to [judicial] positions that we deserve,’ he said.
‘Let us take care of fundamental issues that used to divide us in the past. Women were excluded by design. Let that not happen,’ Chief Justice Mogoeng warned.
Outgoing co-chairperson of the LSSA, Busani Mabunda said that some people are using exclusively white counsel and asked what message was being sent. ‘Day in and day out, they see the same faces. Skewed briefing patterns are depriving black practitioners. The opportunities need to be unlocked,’ he said. He added that most judicial applicants are being turned down because of a lack of exposure and experience among black practitioners.
A study of briefing patterns was conducted by Mr Phooko. At the summit, he spoke on the research findings.
Mr Phooko said that the research was conducted from 5 January 2015 to 12 February 2016. He said that a questionnaire had been sent to 86 government and state-owned entities, but only eight had responded by the deadline date. Mr Phooko said that responses were still being received the day before the summit and these responses had not been included in the findings. He added that three law firms stated that they could not disclose any information because of their non-disclosure clauses, but had informed him that they were in compliance with black economic empowerment and public-private partnership requirements.
Speaking on the findings, Mr Phooko said that the few entities that had responded had briefed 93 advocates collectively. Of these, 15 were white; 59 were black; 12 were Indian and seven were coloured. In terms of gender, 71 were male and 22 female.
Of the black advocates briefed, 50 % were male and 17 % female. Of the Indian advocates briefed, nine were male and three were female and only two of the seven coloured advocates that were briefed were female. None of the 15 white advocates briefed were female.
Next Mr Phooko spoke on the 32 attorneys receiving work in both the private and public sector. He said that black attorneys dominated at 21. There were six whites and five Indians.
Mr Phooko said that some of the challenges the participants spoke about included being overlooked for work if they are female, the exception to this is ‘if they are pretty’. Some said that being black comes with stereotypes such as being incompetent. He said black lawyers were sometimes excluded because they studied at a particular institution or live at a particular place. He added that this cannot be an issue solved overnight.
Mr Phooko said that the research also found that most private firms excluded disadvantaged groups and the senior practitioners instruct which advocates are to be briefed. He added that the legal profession was a referral profession and that networking was very important.
Some of the recommendations that Mr Phooko suggested were –
In conclusion Mr Phooko said that although the limited preliminary information indicates otherwise, submissions and research revealed that there is an unequal distribution of work. He added that the lack of response was a concern and said that one of the entities informed him that it does not keep records of race and gender, which was a huge concern to him. He added that monitoring and policy was also needed to address this issue.
Mr Phooko said that because of the lack of responses, his research was not conclusive. He reiterated that this was a preliminary report.
It was suggested from the floor that the research should also investigate the monetary value of briefs and that the research as a whole must be ongoing.
Justice Department statistics
Ms Sindane began her speech by explaining that state attorneys are responsible for managing litigation and including management and distribution of briefs to private practitioners. She said that state attorneys are also committed to upholding and defending the Constitution by providing comprehensive, cost effective, efficient and professional litigation and legal services to national, provincial government and other state-funded bodies.
Ms Sindane said there are 12 state attorney’s offices, situated in all the provinces except Mpumalanga. There are three offices in the Eastern Cape; two in Gauteng, two in Limpopo and one in each of the other provinces.
Ms Sindane explained that the Office of the State Attorney is created in terms of the State Attorney Act 56 of 1957 as amended and therefore, the services rendered are in line with the provisions of the said Act.
‘The function of the State Attorney is to perform, in court or in any part of the country, work on behalf of the government, that is by law practice or custom performed by attorneys, notaries or conveyancers,’ she said. ‘The strategic objective of state attorneys is to improve the management of litigation on behalf of the state, to reduce costs and transform the legal profession,’ she added.
Speaking on transformation Ms Sindane said in terms of the Justice Department’s policies on transformation, the state
attorney’s key performance indicator is that 76 % of value of briefs be allocated to previously disadvantaged individuals (PDIs).
She added that state attorneys are committed to promoting the equal distribution of briefs to PDIs taking into account qualification, skills and experience. ‘The briefing policy (still draft) will give effect to the above. The empowerment of female practitioners remains a specific focus area in order to redress the imbalances of the past. Therefore preference is to be given to female PDIs,’ she said.
Ms Sindane said that there was a need for the advancement and transfer of skills by way of exposure to all areas of legal work to PDI’s to broaden the pool of qualified legal practitioners and the judiciary. She added that the transfer of skills between skilled private practitioners and those practitioners who are still at developmental stage is not only imperative, but also beneficial to the state and the country. ‘Government is committed to exposing legal professionals to skills development programmes by acceleration of projects targeting PDIs and women in particular,’ she said.
Ms Sindane went through the briefing statistics from 2013/14 to quarters one to three of 2015/16. She noted that in 2013/14 a total of 4 115 people were briefed. Of these, 1 378 were women of which 760 were African, 164 were white, 123 were coloured and 331 were Indian. There was a total of 2 737 men who had been briefed of which 1 829 were African, 474 were white, 223 were coloured and 211 Indian. In 2014/15 the numbers had gone up with a total of 4 578 being briefed. Of these, 1 517 were female and 3 061 were male; 2 620 were African, 447 were coloured, 777 were Indian and 734 were white.
Ms Sindane also looked at counsel payments. It was noted that the total value of briefs for the 2014\15 was R 638 271 945,03. The total for females amounted to R 69 737 439,06 whereas males received R 511 494 424,36. Surprisingly, briefs to Africans had the most value worth R 347 105 978,90 whereas the value to whites was R 175 288 943,64.
Ms Sindane said currently, statistics are collected and managed manually and online through a tool created by the National Operations Centre (NOC). She added that payments of counsel and success rate reports are drafted in each office and sent to the national office for collation and verification.
Regarding payment of counsel she said that focus was on the amount paid, advocate paid, gender and race, percentage of value of briefs to females, percentage of value of payments to PDIs. She added that the success rate is also managed through the NOC tool. ‘This contains the number and percentage of finalised damages claims with savings and the percentage of money saved.
Ms Sindane concluded by saying that in the future, a reporting console will be provided where all reports can be drawn as per 2016/2017 reporting requirements. This will be the single source of information for the State Attorney’s
Ms Sindane said that what they had noticed was that some counsel are not getting any work while there are those who are getting much of the work. She said that there needed to be a transparent process which shows exactly who is getting briefed. She said another issue that makes briefing difficult is the late issue of briefs.
Comments from the floor included practitioners saying that they have seen the numbers but that they were still skeptical.
In a panel discussion Ms Martin spoke of the hurdles faced when at the Bar. She said that there is no one to mentor young female advocates and that this needed to be addressed.
Mr Mpofu said that what underlies the problem of briefing patterns is racism and gender discrimination. ‘We must first accept that we have failed dismally. This is not a problem that can be resolved overnight,’ he said.
Mr Mpofu added that the Justice Department’s statistics of 76 % of briefs going to PDIs was all a ‘waste of time’. ‘The numbers on their own are meaningless, 76 % of what? We must look at the quality. Young female advocates come to the bar and give up within a year or two because they have no work,’ he said.
Ms Rangata said ‘whiteness and white supremacy’ is at the heart of the skewed briefing patterns in the legal profession. ‘It is an open secret that for a black practitioner to be generally accepted he or she must work three or more times than his or her white counterpart in expectation of ten times less in reward. The lack of instructions or briefs to black legal practitioners is not as a result of them being of less quality – we attend the same universities using the same study materials and pass on merit – This is just prejudice and stereotypes and nothing else. It is well known that many black professional assistants and associates in white law firms are nothing more than trophies and statistics instruments for BEE compliance meant to attract or lure lucrative contracts to the offices of their masters. Once business is secured they are not exposed to the physical files to work on them. As such there is no experience gained, no skills transference, not because they are incapable to do work but because they are systematically excluded,’ she said.
Ms Rangata added that in terms of white privilege blacks are perceived as incompetent, unprofessional, inefficient, ineffective and lazy, no matter how much they prove themselves. She said that that was the reason why blacks were seen as undeserving of serious and fairly rewarding briefs and instructions. ‘This mind set prejudices blacks because it does not appreciate the fact that the system is designed to provide opportunities for white people at the expense of black people. Our legal profession in general and briefing patterns in particular will not transform itself. It will only transform in response to legislative intervention,’ she said.
Ms Rangata concluded by saying: ‘This must be addressed without any further waste of time. Twenty-two years post democracy is a period too long for the majority of this country to keep on waiting. Unequal distribution of wealth sows resentment and if resentment remains unattended it brews uprising. … These imbalances are human made; as such they will have to be reversed by human beings.’
Deputy Minister Jeffery said that an average of R 524,4 million was spent on briefs to counsel each year. He said that the value of brief targets was being met. He added that there were certain people getting a lot of the work and that was what needed to be looked at first.
Delegates convened into working groups and each group presented resolutions and a way forward.
This article was first published in De Rebus in 2016 (May) DR 6.