Eradicating the barriers for young lawyers to enter the profession

August 1st, 2022

By Seetswadi Theo Mapheto

In commemoration of Youth Day, the Gauteng Executive Committee of the Black Lawyers Association (BLA) held an event in Sandton, Johannesburg on 18 June 2022 under the theme ‘Eradicating Barriers to Entry in the Profession for Young Lawyers’.

The event was opened by the Minister of Justice and Correctional Services, Ronald Lamola. National leaders of the BLA; Treasurer, Noveni Kubayi, and the Head of Events and Campaigns, Maboku Mangena were also in attendance. The keynote speaker of the day was advocate Tembeka Ngcukaitobi SC.

The choice of both the venue and the timing for the hosting of the event was to honour the historic moment in Soweto, Johannesburg on 16 June 1976, to preserve the memory of the horrific acts committed by the Apartheid regime on defenceless school children, and to ensure successive generations take time to consciously reflect on its significance.

Young lawyers present on the day, observed that it could not have been a mere accident of history that the Black Lawyers Discussion Group, later to be formalised as the BLA, was established in 1977, barely months after the uprisings in Soweto. It is an important historical account to record that the pervasive wave of the philosophy of the Black Consciousness Movement was a necessary catalyst to the birth of the BLA.

Despite the advent of democracy in 1994, today’s young black lawyers continue to face a myriad of structural barriers, which confronted preceding generations, be it Desiree Finca, the first female black African attorney who was admitted in 1967 or Alfred Mangena, the very first African attorney who got admitted in 1910. Both Mangena and Finca faced a ‘hostile political and legal system’, said Mr Ngcukaitobi SC. In fact, so unflinchingly hostile was the political and legal system that neither practised law for a long time. Ms Finca was pushed out of the profession ten years after her admission and Mr Mangena was no longer a lawyer by the time of his death in 1924.

New entrants to the legal profession bemoan how difficult it is to get a position as a candidate attorney or to be accepted as a pupil. Being lucky enough to be admitted for articles or pupillage marks the beginning of an arduous journey of little or no pay at all. Many would-be candidate legal practitioners are, however, never quite lucky given the many anti-transformative and exclusionary requirements by some prospective employers. It is against this background that in 2020 the Legal Practice Council (LPC) amended the Rules made under the authority of ss 95(1), 95(3) and 109(2) of the Legal Practice Act 28 of 2014 (LPA), prohibiting prospective employers from requiring that applicants be in possession of driver’s licences, or own or have access to the use of a vehicle for use in the course of their prospective employment as candidate attorneys. It is undeniable that African female practitioners’ challenges increase manifold by virtue of the intersectionality of their race and gender. At times they suffer sexual harassment and exploitation at the hands of their employers.

Even where one manages to navigate through the maze of structural barriers, this still does not mark an end to the arduous journey of exclusion. Take for example, the continued differentiation between attorneys and advocates. Section 25(3) of the LPA provides that:

‘(3) An attorney who wishes to appear in the High Court, the Supreme Court of Appeal or the Constitutional Court must apply to the registrar of the Division of the High Court in which he or she was admitted and enrolled as an attorney for a prescribed certificate to the effect that the applicant has the right to appear in the High Court, the Supreme Court of Appeal or the Constitutional Court and which the registrar must issue if he or she is satisfied that the attorney –

(a)(i) has been practising as an attorney for a continuous period of not less than three years: Provided that this period may be reduced in accordance with rules made by the Council if the attorney has undergone a trial advocacy training programme approved by the Council as set out in the Rules;

(ii) is in possession of an LLB degree; and

(iii) has not had his or her name struck off the Roll or has not been suspended from practice or that there are no proceedings pending to strike the applicant’s name from the Roll or to suspend him or her; or

(b) has gained appropriate relevant experience, as may be prescribed by the Minister in consultation with the Council, if the attorney complies with paragraph (a)(iii).

(4)(a) An attorney wishing to apply for a certificate contemplated in subsection (3) must serve a copy of the application on the Council, containing the information as determined in the rules within the time period determined in the rules.

(b) A registrar of a Division of the High Court who issues a certificate referred to in subsection (3) must immediately submit a certified copy thereof to the Council.’

The stark absurdity of this institutionalised differentiation is that an advocate of two days’ standing and who has not undergone any pupillage training is able to appear in the High Courts while an attorney of two years’ standing and who has undergone a rigorous vocational training and passed a competency-based examination is not able to do so. It seems that this differentiation is not only arbitrary, but it also flies in the face of the self-proclaimed purpose of the Act, which is to, inter alia, ‘create a single unified statutory body to regulate the affairs of all legal practitioners and all candidate legal practitioners in pursuit of the goal of an accountable, efficient and independent legal profession’.

The event presented young lawyers with an opportunity to question old practices and to reimagine a new future; to be bold and daring; to disrupt the status quo. Though no consensus was reached, young legal practitioners questioned the need for competency-based examinations or assessments to qualify for admission as legal practitioners. What use, if any, do competency-based examinations or assessments have particularly in the light of the fact that other professions such as the medical profession have no use for them?

The event was the first of many to come. Issues such as mental health of practitioners, the struggles of the LGBTQIA+ community and the standardisation of legal training are issues that will no doubt be foremost and uppermost in future discussions.

Unlike their predecessors, today’s young lawyers are free to dream, and to question the status quo. As a starting point, they have resolved to do all that is necessary to eradicate barriers to entry into the legal profession. To do so would be to honour Mr Mangena and Ms Finca and all those giants on whose shoulders this generation stands.

Seetswadi Theo Mapheto LLB (UL) LLM (Unisa) PG Dip in Compliance (UJ) is the Chairperson of the Black Lawyers Association in Gauteng, a member of the Provincial Legal Practice Council in Gauteng and a legal practitioner at Mapheto Attorneys Inc in Johannesburg.