By Clement Marumoagae

The South African government, South African universities, the legal profession, as well as various sectors of our society continuously engage the debate relating to the transformation of the judiciary generally and practice of law to some extent. While the face of the judiciary has changed to such an extent that it is now viewed as broadly representative of the demographics of the country, transformation of the practice of law remains a point of contention. Various factors relating to briefing patterns, conflict of interest, racism, sexism, perceptions of competency or lack thereof, barriers to entry and other factors have been outlined as the major bar towards the transformation of the legal profession in particular. In this article, I do not intend to discuss the transformation of the legal profession generally, but rather to look at one of the most ignored barriers of entry to the profession, which ultimately defeats the purpose of transforming the legal profession. In recent times, some law firms in their recruitment drives to attract candidate attorneys (CAs), use seemingly objective criteria, which when looked at closely is both exclusionary and discriminatory. It is even more disturbing when such tactics are used by public interest law firms. In this article, I will be arguing that the requirement that CAs should possess a driver’s licence and in some instances, a car, is both exclusionary and unconstitutional and thus against the ideals of social justice.

Transformation of the legal profession

I agree with Judge Mojapelo that ‘[a]n independent legal profession is essential for an independent judiciary – just as a transformed legal profession is a sine qua non for a transformed judiciary’ (Judge Phineas Mojapelo ‘Transformation, independence and poor “products” of the LLB’ 2012 (Dec) DR 54). In order to transform both the judiciary and the legal practice, there is a need for honest reflection on how those within the profession behave and for the government and the provincial law societies to intervene. In its discussion paper, Transformation of the Legal Profession: Discussion Paper, the South African government has recognised that:

‘The legal profession does not represent the diversity of South African society. The number of black lawyers in private practice and in the public service sector is comparatively low, as is the number of women. Black people and women are almost entirely absent from the ranks of senior partners in large firms of attorneys and senior counsel at the Bar’ (Transformation of the Legal Profession: Discussion Paper (www.gov.za, accessed 28-9-2017)).

Most importantly, government observed that:

‘Each year the law graduates being produced by the universities become more representative of South African society, but many of these graduates are unable to gain access to the profession, or to their chosen branch of the profession. If they do gain access, many find themselves practising in circumstances which set them up for failure. This applies particularly to graduates from disadvantaged groups and, more particularly, to graduates of the historically black universities (HBUs), which were a product of the apartheid regime’ (op cit).

While I concede that there has been much improvement in ensuring access for black graduates into the law profession, I am nonetheless, convinced that the government’s admission that black law graduates are unable to gain access to the legal profession merits attention. Hugh Corder has also correctly observed that ‘[a]lthough there has never been a formal exclusion of black South Africans from legal professional or educational ranks, and although there have been prominent examples of black lawyers who have assumed a leading role in professional and political circles, access to professional qualification for black South Africans has always been much harder than for whites’ (Hugh Corder ‘Establishing Legitimacy for the Administration of Justice in South Africa’ (1995) 6 Stellenbosch Law Review 202 at 206). On the basis of this observation, there is a need to access seemingly objective criteria, which is used to recruit CAs and evaluate its hidden exclusionary and discriminatory character. This is important because such criteria make it difficult for black law graduates, in particular, to attain articles.

Barriers to entry

Private attorneys’ have a right to conduct their businesses in a manner that will render such businesses successful. This includes assembling a team, which will enable them to render effective services to their clients. As such, they have a right to develop criteria, which is designed specifically for their firms in so far as the recruitment of CAs is concerned. For instance, they may desire to attract the so called ‘best students’ from universities, which according to them produce such students. They may look at the overall academic performance of such students and also evaluate them on extra curricula activities, which these students were involved in at university or their respective communities, in order to assess whether these students are ‘well rounded’ candidates. While an argument can be made that there is no empirical evidence that directly links academic performance or involvement in extra curricula activities to excellence in the practice of law, nonetheless, it is a common criterion to some extent. It is a pity that over and above the ‘artificial criteria’, there is an emergence of law firms that require CAs to also possess driver’s licences and in certain instances also a car. On the face of it, this strengthens a perception that certain law firms hire candidate attorneys solely to advance their administrative work. I have argued before that –

‘even though administrative work is part of the candidate attorney’s learning process, it should nonetheless not be seen as the most decisive part of it. This perpetuates a stereotype that there are law firms that are not particularly interested in adequately training candidate attorneys, but rather use them as part of their administration work system. Candidate attorneys at these law firms become masters of photocopying machines. They run around serving and collecting documents without any real practical legal training. Further, these candidate attorneys are employed to boost these law firms’ BEE ratings’ (Clement Marumoagae ‘The role of candidate attorneys in the legal profession’ 2014 (July) DR 54).

Requiring a driver’s licence from a law graduate indicates a total ignorance of the socio-economic climate of South Africa (SA). Indeed, there are law students from different backgrounds who are able to attain their driver’s licences while pursuing their LLB degree, but such graduates are those who are not confronted with a decision between paying for their fees or accommodation and doing their driver’s licences. Most of the graduates who complete an LLB without a drivers’ licence are hoping to secure employment in order to be able to pay for lessons, which will enable them to attain drivers’ licences. However, these graduates find themselves unable to secure articles because they do not have a driver’s licence. This practice is unfortunate and the provincial law societies have a moral and legal duty to bring it to an end. In my view, this practice violates these law graduates’ right to freedom of trade, occupation and profession. In terms of s 22 of the Constitution any law graduate who is a citizen of SA ‘has the right to choose their trade, occupation or profession freely’. Some of these graduates are unable to be admitted as attorneys and thus choose their profession because they are not able to secure articles only and merely on the basis that they do not have a drivers’ licence. This practice further offends against these graduates right to be treated equally as provided for in s 9 of the Constitution, in the sense that they are being discriminated against on the basis that they do not possess a driver’s licence, which in itself is unconstitutional.

It is even more unfortunate, if not disappointing that some University Law Clinics are also specifying drivers’ licences as a requirement for CA positions (see https://irec.wits.ac.za, accessed 5-10-2017). This, in my view, cannot be justified on the basis of the inherent requirements of the job. Some of these University Law Clinics are located in urban areas in walking distances of the courts, and on appointment CAs will not be delivering documents either at the sheriff’s office or corresponding attorneys on a daily basis.

Conclusion

It is important that all attorneys who are recruiting CAs should be reminded of one of the purposes of our trade, which is captured in s 3 of the Legal Practice Act 28 of 2014, which provides among others that the purpose of this Act is –

‘(a) provide a legislative framework for the transformation and restructuring of the legal profession that embraces the values underpinning the Constitution and ensures that the rule of law is upheld;

…

(b) …

(iii) measures that provide equal opportunities for all aspirant legal practitioners in order to have a legal  profession that broadly reflects the demographics of the Republic; [and]

…

(g) create a framework for the –

(iii) development of adequate training programmes for legal practitioners and candidate legal practitioners’.

Candidate attorneys are not employed in the true sense of the word, but they are part of practical training, which should be aimed at capacitating them with the necessary skills that will enable them to become competent attorneys. The provincial law societies should intervene in the process of training of CAs and assess progress (if any) that various firms are making in capacitating CAs. If CAs are hired because of their ability to drive without being provided the substantive legal training, the profession will inherit half cooked professionals who cannot effectively practice law.

Clement Marumoagae LLB LLM (Wits) LLM (NWU) Diploma in Insolvency (UP) is an attorney at Marumoagae Attorneys in Johannesburg and a senior lecturer at Wits.

This article was first published in De Rebus in 2017 (Nov) DR 42.