Hope is slowly being restored as black women lead the courts

June 23rd, 2022

The Black Lawyers Association (BLA) held its National General Meeting (NGM) on 21 May 2022 in Kimberley, under the theme ‘45 years later: Walking in the footsteps of Ms Desiree Finca: Reclaiming the legacy of the BLA’. At the NGM, Chief Executive Officer of the Legal Practitioners’ Fidelity Fund (LPFF), Motlatsi Molefe said that the LPFF has seen a spiral in claims. He added during the insurance period of 2021 to 2022 the LPFF received over 600 claims, that went slightly over R 300 million. He pointed out that ten years ago the LPFF paid R 92 million for claims, which shows that each year claims rise. He further pointed out that for the first time in the history of the LPFF, they have exceeded R 1 billion in claims.

Mr Molefe said that legal practitioners are supposed to practise with honour, dignity, protection, and value for members of the public, but some legal practitioners do not find it strange to steal from widows and orphans and yet try to remain honourable. He said senior legal practitioners should be exemplary and be transparent, so that young practitioners can discuss their issues with seniors for them to provide guidance.

Mr Molefe pointed out that when he receives reports, he looks at how long the person has been in practice, and it is always the younger generation of legal practitioners who are in trouble. He told attendees at the NGM that if they want to reclaim the legacy of the BLA, they should start by advising young legal practitioners. He challenged the BLA to send out a message to the legal profession that misappropriation of funds will not be tolerated.

Chief Executive Officer of the Legal Practitioners Fidelity Fund, Motlatsi Molefe; Deputy Judge President of the Free State Division of the High Court, Nobulawo Martha Mbhele; with Deputy President of the Black Lawyers Association (BLA), Mabaeng Lenyai; and the President of the BLA, Bayethe Maswazi at the National General Meeting of the BLA held in Kimberly.

In the form of a letter as a message of support read in his absence, Acting Executive Director of the Law Society of South Africa (LSSA), Anthony Pillay, extended best wishes to the BLA and ensured the LSSA’s continued cooperation and social solidarity with its constituent members in these times of uncertainty. He stated that the BLA is a constituent body of the LSSA and has a vital role in both representation and transformation of the profession. He added that the LSSA awaits the developments of the NGM to inform it on the pursuit of its mission.

The letter further stated that, during these challenging times, the LSSA is convinced that its shared values, respect, and principles with the BLA, which are captured in the LSSA’s constitution can guide the transition toward not only a new normal but a better normal, not only for the profession but for the country, its people and institutions via democratic values and the rule of law.

Deputy Judge President of the Free State Division of the High Court, Nobulawo Martha Mbhele, spoke at the NGM. She said the countless milestones that the BLA has reached since its inception in 1977 are both majestic and impactful. She added that it was the BLA that successfully led the campaign for equal representation in provincial law society structures in 1997, with the walkout that started in the Free State culminating into the formation of the LSSA, which today has its first all-female presidency structure.

Deputy Judge President Mbhele said that it is encouraging to see a woman serving as Deputy President of the BLA. However, she pointed out that a question to ask is whether the BLA has managed to live through its founding values and principles of building a society that is devoid of racial and gender discrimination. Furthermore, to achieve a profession that is reflective of all races, the battle must continue beyond the representation on law society structures and to extend to the sustainability of practices of black and women lawyers.

Deputy Judge President Mbhele added: ‘We know that the road to gain entry into the South African legal fraternity has not been an easy one for black people, more especially women. Sustaining a legal practice proves to be the most challenging task for black and female lawyers in an environment that does not acknowledge their strengths and capabilities. One does not have to look far to notice that black and women practitioners are [becoming] extinct by the day. They are not visible in higher courts of this country.’

Deputy Judge President Mbhele said this year’s theme is tailored around the celebration of 45 years of the BLA and it marks an auspicious occasion by honouring one of the pioneers of the legal fraternity, Ms Desiree Finca. ‘We all ought to know women such as Ms Desiree Finca and her contribution to the legal profession but not much has been documented about her. Like many others she was denied the right to be recorded in the history books. This is the consequence of a history detailed with racial prejudice and systematic segregation that we all know of. We remember, not to open old wounds, but to commemorate and honour those who were before us, how we became and how we will carry on to be,’ Deputy Judge President Mbhele said.

Deputy Judge President Mbhele said although there is little recorded information on this extraordinaire as dictated by history, her name and influence has not fallen through the cracks. ‘We will honour her legacy today and beyond to ensure that future generations know about the impact she has made in shaping the legal fraternity, especially for women. We commend the BLA NEC for taking an initiative to visit Ms Finca and her family to get their blessing to pay tribute to her and celebrate her legacy,’ said Deputy Judge President Mbhele.

Deputy Judge President Mbhele said that Ms Finca is a former domestic worker, from the Transkei who became the first African woman to be admitted as an attorney. She added that she joined Godfrey Mokgonane Pitje’s (a founding member of the BLA) practice as a partner. Appearing before a magistrate in Vereeniging, Ms Finca struggled to be heard (given an audience) as the magistrate claimed he had never heard of a black female attorney.

Deputy Judge President Mbhele pointed out that it was only after he confirmed her status with another attorney that the magistrate allowed her to continue representing her client before him. ‘I am imagining the damage to her brand and confidence when a magistrate doubted her credentials in front of her client. This is the level of prejudice that most women are confronted with. They first have to prove to their peers and colleagues that they are just as capable before convincing potential clients out there that their matters will land in safe hands. None of that has changed. It was only in 1967, 44 years after the admission of the first white female attorney that Desiree, was admitted. Shortly thereafter, there was a relative flourish as a number of African practitioners were admitted within the old Transvaal during the 1960s through to mid-1970s’, Deputy Judge President Mbhele added.

Deputy Judge President Mbhele said that Ms Finca is a symbol of transformation, resilience, and determination. She added that in the constitutional dispensation, although there has been progress made, black people still face challenges of access to equal opportunities in the legal sphere. She pointed out that institutions especially those in the private sector are still reluctant to embrace transformation, that statistics from the Judicial Service Commission (JSC) have shown also that there is a disproportionate scale in the representation of black women in key positions, this is apparent from the number of women leaders in the Judiciary.

Deputy Judge President Mbhele, however, said that hope is slowly restored when one sees black women, such as Justice Mandisa Maya who is the first black female President of the Supreme Court of Appeal and Judge President of the North West Division of the High Court, Mashangu Monica Leeuw, successfully lead their courts. ‘We are also encouraged by the recent nomination of Justice Maya for the position of Deputy Chief Justice. Appointments of Justice Ketanji Brown Jackson, the first black woman to the Supreme Court of the United States, Justice Martha Koome, Chief Justice of Kenya and many others in Africa and beyond, continue to inspire women and people of colour,’ Deputy Judge President Mbhele added.

Deputy Judge President Mbhele concluded by saying although significant progress in the legal fraternity has been made, practice indicates a significant gap between law, policy, and practice. She added that strategic objectives need to be developed and implemented by proficient and well-informed legal scholars and practitioners so that the gaps can be filled. She pointed out that in addition to advocating for transformation and access to opportunities, the BLA must through research and collaborations continue to raise awareness and the need for government to acknowledge that South Africa has a crisis of transformation in the legal fraternity and that more efforts need to be made to ensure equal access to opportunities more particularly for black women practitioners.

Front row: Deputy President of the Black Lawyers Association (BLA), Mabaeng Lenyai and Deputy Judge President of the Free State Division of the High Court, Nobulawo Martha Mbhele with the President of the BLA, Bayethe Maswazi, and BLA members of the Kimberly branch.

The President of the BLA, Bayethe Maswazi in his speech said that the BLA chose a theme inspired by one of the illustrious daughters of the organisation, who have paved the way for many to find a conducive space in the legal profession. He added that the BLA NGM seeks to reconnect with Ms Finca’s illustrious legacy, to walk the path that the BLA forebears walked and to imagine their pain and to feel their sorrows and tribulations.

Mr Maswazi pointed out that the BLA acknowledges the victories the organisation scored in the arduous journey for the transformation of the legal profession and judiciary. ‘We meet to draw lessons from our glorious and equally painful experiences of the past 45 years. We meet to acknowledge the journey we have travelled and accept we exist in a different environment than the one Ms Finca and her generation practiced her professional craft under,’ Mr Maswazi said.

Mr Maswazi said that it was this BLA that ensured that many had access to the legal profession including paying salaries for candidate legal practitioners. He added that at the dawn of democracy it was this BLA that called for Apartheid judges to go and face the JSC and be assessed as to whether they have the sufficient and correct mindset to guarantee and protect the value system brought about by the new Constitution. He further pointed out that it was this BLA that called for the Apartheid judges to go to the Truth and Reconciliation Commission to tell the truth about the role of the judiciary and preserving and sustaining the evil Apartheid system. ‘The BLA made this call because it could not forget that it was that judiciary that legitimised the torture of Stephen Bantu Biko and said there was no one to blame. It was that judiciary that even killed Solomon Mahlangu through the wrong application of the doctrine of common purpose. It was that judiciary that justified the killing of Ahmed Timol and said there was no one to blame. The Cradock Four suffered the same fate at the hands of a judiciary that was forever prepared to preserve white supremacy and state lawlessness,’ Mr Maswazi said.

Mr Maswazi said that history will write this legacy in the natural monuments of time, and it will never fade in our minds, and we will tell it to the coming generations. ‘We will always speak fearlessly and tell it like it is. We will enter the discourse of debate unafraid because history is on our side. We will enter the battle of ideas fortified by this legacy and if you stand it our way, we are ready, bring it on,’ Mr Maswazi said.

Mr Maswazi touched on a sustainable and transformative legal profession. He pointed out that this depends on the funding support the Legal Practice Council (LPC) can organise from whatever source. He added that the Legal Practice Act 28 of 2014, unlike the Attorneys Act 53 of 1979, contains a positive provision for the funding of the LPC by the LPFF. He said this is a positive duty and it is not a discretion. He further added that the LPA also provides for the LPC to have a representative of the LPFF. ‘This is a clear indication that the relationship between the LPC and the LPFF is an ecosystem. What this means is that issues of funding must be discussed in a manner that is mutually reinforcing, as opposed to sustained fashion of antagonism. The LPC must be sensitive to the self-sustainability concerns of the LPFF whilst the latter must be genuinely attentive to the financial needs of the LPC. A permanent state of tension between the two key structures in the profession does not bode well for the future of the legal profession,’ Mr Maswazi said.

President of the Free State Division of the High Court, Nobulawo Martha Mbhele, with BLA President, Bayethe Maswazi and the National Executive Committee of the BLA, with the Chief Executive Officer of the Legal Practitioners’ Fidelity Fund, Motlatsi Molefe, at the National General Meeting held in Kimberly.

Mr Maswazi said that the legal profession has a key task of producing the judicial offers for every level of judiciary. He added that the quality of the legal education has a direct impact on the quality of our judiciary. He pointed out that for a better judiciary, there must be an effective process and tool of judicial selection. He said that the JSC must be shaped to assert its independence and impartiality better, that it must strengthen its research and orientate its commissioners to the moral demands of our Constitution.

Mr Maswazi added: ‘It must thus be composed of intellectuals because those it must select to the judiciary must be intellectuals too. By intellectuals I do not mean judges must be professors and PhD holders, I mean they must have an intelligent understanding of the human condition. They must orientate towards the abiding ethical vision represented in our Constitution by the words “recognise the injustices of our past” and to “heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights”’.

‘Our judges must unequivocally pursue a jurisprudential vision that seeks to establish a humanist jurisprudence,’ Mr Maswazi said. 

Mr Maswazi pointed out that in honour of Ms Finca, the BLA must continue to build a decent and conducive space for women to live and make life in our profession. He added that young girls must enter the legal profession knowing that their road has already been paved for them with the sweat and tears of Ms Finca and her generation. ‘We must march in the next 45 years carrying Ms Finca’s legacy, the legacy of the BLA, fortified in the realisation that she is with us and continues to urge us on. She will smile and rejoice as she walks into here destiny holding in her a memory an image of her young colleagues completing the walk she started many years ago. Let us pick the gauntlet and never let it fall and march in the footprint of these heroes for the next 45 years. Let us build the legacy of the next 45 years now,’ Mr Maswazi said.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

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