Lack of transformation in the legal system

I bemoan the lack of transformation in the legal system. The legal profession is full of reports of skewed briefing patterns to the exclusion of black lawyers. The root cause of this is the inherent structural inequality that exists from day one of law school, and the paralyzing requirements to serve articles. With the difficulties faced by an average black student pertaining to economic difficulties, among other things, which candidates are often at the receiving end.

Studying towards an LLB degree is always accompanied by a vision of being admitted as a lawyer (through articles with the aim of securing admission as an attorney) or as an advocate (by serving  pupillage).

I will first touch on the issue of securing articles. It is a nightmare. Statistics provided by the Law Society of South Africa (LSSA) indicate that there has been a notable surge in black lawyers over the years, however, briefing patterns paint a different picture. An LLB degree without admission is worthless and legally impotent. Most law firms to whom I used to apply to on a daily basis, require an LLB graduate to have their own transport. Most graduates are just out of law school and can barely make ends meet with a study loan they are working to pay off.

I once secured an interview with a firm in Bryanston and the first thing the director asked me was whether I had a car. My answer was a demotivating ‘no’. The disinterest from the director was visible and the interview was only academic, reduced to a few minutes. I submit this is not feasible for disadvantaged graduates and only applies to their detriment. All law firms do not enjoy the same financial power, but an investment in a second hand vehicle for candidate attorneys (CAs) for purposes of court appearances and related activities should be worth considering. If a law firm can afford a vehicle for a driver doing deliveries, the same can be afforded for use by aspiring CAs and thus curb the requirement for a car.

There is also an issue regarding language. Some firms require you to be bilingual (speak both English and Afrikaans fluently). Though I welcome a firm’s prerogative to set their own recruitment criteria, the issue with Afrikaans, serves as a means of exclusion to black applicants. I stand corrected, but court practice is now officially conducted in English and thus it raises the question as to why the requirement for Afrikaans? If a law firm’s clientele comprises of a majority of Afrikaans speaking individuals, I doubt that it follows that they cannot speak English. The Afrikaans requirement may well be genuine, but it is exclusionary and it effectively throws a vast majority of black applicants off balance.

The meagre salaries offered to CAs can be deemed exploitative at best, with some CAs earning as little as R 3 000 per month. Most CAs can contend with this. I took a massive salary cut myself to serve articles, because the end goal is more compelling than temporary financial gain. The paralyzing prospect of doing pupillage for a year without any monetary compensation during the course of training is a deterrent for disadvantaged graduates to even apply, given the harsh economic conditions compared to our well off counterparts, who can make do without a salary for that period, owing to a secure financial background.

While CAs wait for articles the clock ticks. CAs come across jobs outside the legal profession and fade into obscurity and all that studying towards an LLB degree, becomes worthless. Now, in the field where black graduates hardly get the nod, it becomes impossible to have a large pool of practicing black lawyers excelling in quality legal work. Thus it will always be dominated by white lawyers if the status quo remains. As it stands, it is a slippery slope for black graduates as not enough black law graduates secure articles. Never mind the skewed briefing patterns. That is just jumping the gun, the crisis is bigger. Start at the bottom. The roots are unstable for the tree to even bear fruit. The reality with black and white graduates is that we are not the same and are not treated equally in the recruitment process. Equal treatment of unequal people heightens inequality. Bemoaning skewed briefing patterns while black graduates can hardly get a foot in the door is barking up the wrong tree. Start at the bottom.

Jacob Hlongwane, candidate attorney, Kempton Park

This article was first published in De Rebus in 2017 (Sept) DR 4.