Transformation discussed at JAA AGM

September 30th, 2015
x
Bookmark

By Kathleen Kriel

The Johannesburg Attorneys Association (JAA) held their 73rd annual general meeting at Sunnyside Park Hotel in Johannesburg on 9 September.

Guest speakers at the AGM included Wayne Duvenhage of Opposition to Urban Tolling Alliance, who discussed civil disobedience; Justice Thokozile Masipa who spoke about the role of the legal profession in effectively transforming the legal environment; and advocate Michael Kuper SC, who discussed the newly established China-Africa Joint Arbitration Centre.

Addressing the delegates, Judge Masipa said lawyers are the gatekeepers of our justice system and without them, there can be no justice system worth talking about. ‘Without good solid lawyers, who have their hearts in the right place, whatever justice system may exist, can be of no use to anyone. We are fortunate to have a good Constitution in this country. That Constitution, however, will not avail us unless we have the right people to make that Constitution work for everyone in this country,’ she said.

Transformation

Judge Thokozile Masipa discussed the role of the legal profession in effectively transforming the legal environment at the Johannesburg Attorneys Association Annual General Meeting in September.

Judge Thokozile Masipa discussed the role of the legal profession in effectively transforming the legal environment at the Johannesburg Attorneys Association Annual General Meeting in September.

Judge Masipa said there were numerous forums that dealt with the issue of ‘transformation’ and many initiatives have been tried with varied results. She said that since the start of democracy, the words ‘transformation’ and ‘empowerment’ had been bandied about in various circles, with different understanding of what the words really entail. Judge Masipa added that: ‘Depending on the meaning attached to transformation, some people might think we have transformed the legal profession to an extent that we can now pat ourselves on the back and relax, while others think that we still have a long way to go. I belong to the latter group.’

Judge Masipa said the large amount of university graduates may look impressive, but she asked where black graduates and women graduates go? ‘We do not see enough of them in motion court, for example, and there are hardly any in commercial matters. Even though there may be a great number of previously disadvantaged individuals entering the legal profession these figures should be viewed with caution as they may easily deceive us into thinking that we are doing the right thing and that we need do nothing more. While doing the right thing is important, we should also be doing things right by looking not only at numbers but at the quality of the people in the legal profession,’ she noted.

Judge Masipa added that there had been a concern about the lowering of standards on the Bench. ‘Whether we agree with the sentiment or not this is the kind of thing that should keep all of us awake at night because, if it is true it is an indictment on the legal profession. The very fact that someone has expressed such a concern should trigger an introspection and should motivate us to do something about it. If there is any truth in the concern above then, for the cause and the solution we need look no further than the legal profession, especially the Side Bar and the Bar, because that is where most members of the Bench come from. The quality of the Bench is merely a reflection of the quality one finds among practitioners. After all practitioners of today are the judiciary of tomorrow,’ she said.

Judge Masipa said she was of the view that transformation and empowerment were inextricably linked. Transformation without empowerment is of no value to anyone and real transformation had to be coupled with a motivation and the willingness to empower. Judge Masipa referred to three examples aimed at transformation:

  • Mergers as vehicles of transformation

Judge Masipa said South Africa had seen a number of mergers across the colour line and there were many reasons why law firms wanted to merge and compared mergers to a marriage where there is a sense of give and take. She said if one party felt that he or she was short changed, the marriage will not last. Lack of trust, meaningful communication and common vision is a deadly combination. Judge Masipa said that when it came to mergers, there was lack in the willingness to embrace change and the willingness to take risks.

  • Intake of candidate attorneys

In her speech, Judge Masipa said more and more white law firms were selecting candidate attorneys from previous disadvantaged groups, which was a good thing. She said that competition between candidates was very high and newly qualified law graduates, irrespective of race or gender, would have to stand out when seeking articles at a good law firm.

Judge Masipa compared two young black fellows seeking articles, namely –

  • the one whose parents sacrifice their time and money to ensure that he or she attend good private schools. He or she speaks impeccable English, with excellent grades and comes across as confident and obviously stands a better chance of competing with other similarly qualified youngsters from other race groups; and
  • the other stays in Diepsloot in a shack with a single mother and four other siblings, the fellow who funded his or her education through distance education by washing cars and pushing trolleys for customers at a supermarket. This fellow speaks with a heavy African accent, his or her grammar is all wrong and he or she does not come across as confident.

‘In many cases such a youngster does not stand a chance simply because he does not conform to the world view of what an attorney should look like. Now let us get back to the fellow who has been to a good private school, a good law school and obtained good grades. He manages to get articles in a good law firm. … He does extremely well and is an asset to the firm. Eventually he is made one of the directors.  …  Is the transformation initiative successful? Not necessarily. Whether there has been real transformation will depend on what this fellow does with his knowledge and his success. If what he has gained from his firm only benefits him and his firm real transformation has not taken place. For real transformation to take place he would have to persuade his firm to empower more people from “previously disadvantaged backgrounds” or quit the firm and do the work of empowerment with or without his firm. Sadly this rarely happens. In fact there are numerous examples of blacks who refuse to brief black practitioners and women who refuse to brief other women. We have a serious challenge in that regard,’ Judge Masipa said.

  • Briefing patterns

Judge Masipa referred to The Cape Bar’s Model Policy on Fair and Equitable Briefing Patterns, dated 8 March 2006 (www.capebar.co.za) where the Cape Bar recognised the existence of discriminatory briefing patterns and their negative effect on the profession and propose to do something to remedy the situation.

The Cape Bar aims: ‘To facilitate the realisation of the full potential of black and women advocates, and by so doing, increase the race and gender composition of the Bar and the building up of a pool of experienced black and women candidates for appointment to the Bench’ (at para 4).

Judge Masipa referred to para 5 in the document where the Bar intended to implement the policy, which states:

‘In selecting counsel, all reasonable endeavours should be made to:

(a) identify black and female counsel in specific practice and interest areas;

(b) ensure that black counsel receive a fair and equitable share of briefs, having due regard to the number of briefs delivered to counsel in any one year, the nature and complexity of the work involved and the free value of such briefs;

(c) regularly monitor and review the engagement of black and female counsel; and

(d) regularly report internally on the extent to which the said measures have been implemented.’

Judge Masipa said she was encouraged about the information and that the Cape Bar recognised the problem and sought to do something about it. ‘I do not know the current situation as I did not get the opportunity to research this, but, what is clear is that if the Cape Bar followed up on its intention a lot would have been done to make transformation a reality’.

With regard to the skewed briefing patterns, Judge Masipa said that they are shared by other advocates elsewhere and added that Advocates for Transformation (AFT), recently, raised concerns about the reluctance of the state, parastatals, state owned enterprises and private attorneys to give work to black counsel and to women. ‘A senior member of the AFT bemoans the fact that big law firms, parastatals and some government departments do not brief women at all, especially black women. This, among other things, has forced a number of women to abandon their chosen profession,’ she said.

Judge Masipa added that the Bar may assist in transformation but the Bar has a limited role in this regard as it is not a briefing entity. The power to make the Policy on Fair and Equitable Briefing Patterns workable rests mainly in the hands of attorneys.

‘Quite often one hears the excuse that black advocates and women advocates are not being briefed in meaningful work because they are lazy, they have no experience or they are just not capable of doing complex work. These are unfortunate misconceptions, which have no place in the modern South Africa. My question is: How are you going to know whether a person is lazy or incapable of doing work, if you do not give that person work? Similarly how is inexperienced counsel going to garner experience if no one will give him an opportunity to do so? What people seem to forget is that those lawyers, who today are in great demand because of their expertise, are where they are today because some time ago, someone dared to take a risk and give them work when they had no experience at all. No one was born with experience and there is no subject at school called experience … . Someone has to take a chance and a risk. For a risk it is. But it is a risk worth taking,’ she said.

Ignorance and resistance to change

Judge Masipa said in her view resistance to change was stronger where there was ignorance. She said that a little explanation or reassurance to a client is often all that is needed to remove discomfort and fear of the unknown. Judge Masipa added that ‘a party rarely loses a case because counsel is inexperienced. Yes, as a new practitioner, you will fumble and stumble (maybe to the irritation of the judge), but the next time you will do better and better until you get it right. That is how it is in life and that is how it is in every profession or trade. And that is how it is in law.’

In conclusion, Judge Masipa said the transferring of skills is needed for real transformation. ‘We have the law on our side. In fact we are obliged by the Constitution to transform. We have adequate resources in this country but we must be willing to share them wisely. It does not matter how much we spend on the education and training of lawyers, if we do not follow this up with transfer of skills we are wasting our precious resources. We need a change of heart, we need to change our mind set and, we need commitment. We owe it to ourselves, to transform the legal profession and we also owe it to those who will come after us. If we do not, the coming generations will rightly accuse us of dereliction of duty and cowardice,’ Judge Masipa said.

 

Kathleen Kriel  BTech (Journ) (TUT) is the production editor at De Rebus.

This article was first published in De Rebus in 2015 (Oct) DR 19.

Loading...