The devil in the data

September 1st, 2014

The phrase ‘lies, damn lies and statistics’ has often been used to bolster weak arguments. I make this disclaimer upfront for readers who may have this reaction when scanning the statistics providing an overview of the attorneys’ profession on page 20 of this issue. The profession has, like other institutions, veered from not capturing race and gender statistics for various reasons, to providing tentative information since 2008. It has been only in the past few years that concrete figures have begun to emerge on the attorneys’ profession.

These statistics show a profession that is changing slowly year on year. This year, of the 22 400 practising attorneys, 36% are black and 37% are women. If we compare ourselves to other professions – such as the chartered accountants and engineers – we appear to be doing reasonably well. The South African Institute of Chartered Accountants indicates that of the 36 113 chartered accountants, 21% are black and 32% are female, and the Engineering Council of South Africa records that of the 14 800 registered professional engineers, 12% are black and 3% women.

Numbers, percentages as well as real or perceived prejudices aside, change is slow for a number of reasons, the most obvious being that it take at least four years of academic study – and university law faculties have told us that most law graduates take five years – to complete an LLB degree, and then generally two years’ articles before candidates can join the profession as attorneys. So it takes five to seven years to produce an attorney.

The vital importance of data and statistics comes into play when tracking trends and developments in the profession; without them it will be difficult to identify interventions needed for various reasons, from transformation to education. It is imperative that the profession has an efficient national database and a good knowledge bank of empirical data to carry it into the transitional discussions under the National Forum that will debate, negotiate and implement the framework for the legal profession under the future Legal Practice Council. Both the Forum and the Council will require proper, solid and reliable information in order to make informed decisions and set achievable, realistic targets.

In addition to the statistics relating to attorneys, the Forum and Council will also have to add to those the statistics and trends for the advocates’ profession. On the one hand, the General Council of the Bar has data for its members, which number some 2 500. On the other, the Justice Department will need to provide the data from the roll of advocates which numbers several thousand, many of whom are not members of the GCB and who may be working in government, at parastatals or may be members of the National Bar Association (formerly the Independent Advocates Association). In recent press reports the Department has acknowledged that the roll in its possession is not complete. This needs to be addressed as a matter of urgency in the interests of the National Forum discussions, but particularly for the public — who have the right to know whether the counsel engaged on their behalf is. in fact, an advocate admitted by the High Court.

The Legal Practice Council has, among its objects, to facilitate the realisation of the goal of a transformed and restructured legal profession that is accountable, efficient and independent. It must also achieve the purposes of the Bill, which include, among others, providing 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.

The Council must put in place measures that provide equal opportunities for all aspirant legal practitioners in order to have a legal profession that broadly reflects the demographics of the country. It must develop programmes in order to empower historically disadvantaged practitioners, as well as candidate practitioners.

In carrying out the above, it must also report annually to the Minister on —

  • the number of new candidate legal practitioners registered … and the number of new legal practitioners enrolled with the Council …;
  • the effectiveness of the training requirements for entry into the profession;
  • measures adopted to enhance entry into the profession, …; and
  • progress made on the implementation of the above developmental programmes to empower historically disadvantaged legal practitioners and candidate legal practitioners.

To carry out these aspects of its mandate, the Legal Practice Council will require a reliable national database and a knowledge bank of statistics, trends and other relevant data, current and historical, in order to make, measure and report proper progress.

This article was first published in De Rebus in 2014 (Sept) DR 3.

De Rebus