The transformation debate: LSSA to host summit on briefing patterns

November 27th, 2015

Compiled by Barbara Whittle

The Law Society of South Africa (LSSA) announced last month that it, together with the Black Lawyers Association (BLA) and the National Association of Democratic Lawyers (NADEL), would call a national summit early in 2016, together with other stakeholders who are concerned about the negative impact of current briefing patterns by the state and corporate sectors, on the future of the profession. The summit will focus on identifying concrete solutions towards correcting this problem decisively.

Following controversial statements made in October by attorney Richard Spoor on social media and reports in the print media regarding the briefing of counsel, both NADEL and the BLA responded with press releases.

In a press statement on 16 October, NADEL publicity secretary, Gcina Malindi SC said NADEL noted with utter trepidation the statements made by Richard Spoor, an attorney in the class certification hearing in Silicosis and Tuberculosis case in the Gauteng High Court. In response to a statement by advocate Roshnee Mansingh, who had characterised the fact that of the 42 advocates and 100 attorneys involved in the historic class action case as an ‘arrogant display of white privilege in a black country’ because only two black advocates were in sight at court and that 98% of the attorneys were white men, Mr Spoor stated that the work he does ‘doesn’t leave much room for charity or experimentation’ in reference to briefing black counsel.

NADEL noted that Mr Spoor had also stated that his interest as an attorney ‘is winning the case and [he has] no latitude to accommodate unsuitable people’ and that colour does not qualify black people if they do not qualify. His requirements for qualification to be briefed by him were being a summa cum laude graduate and bordering on genius. In addition, the people he briefed must have an ‘avowed and sincere commitment to public interest law’.

NADEL stated: ‘We have never sought or advocated for charity and patronage from the privileged who command our country’s economic and social destiny. We shall only continue to agitate for a complete transformation of the legal profession and the socio-economic order of our country. Only such transformation will create a non-racial, non-sexist and democratic society that we have always fought for.’

As for Mr Spoor, NADEL noted that his statements and conduct were further proof that the reconciliation agenda was a mere pipe-dream if the people of South Africa did not take command of the resources, wealth and social order of their own country. NADEL said: ‘The 20 years since the advent of democracy have not brought with them the desired change in the economic power relations in the private sector. May we say also that democracy has not brought about any meaningful change in how those who control political power view the competence of blacks, and especially black women’s competence when the state and other organs of state litigate in our courts. To steal from the Deputy Chief Justice, Dikgang Moseneke’s speech in a recent memorial lecture in honour of the late Godfrey Mokgonane Pitje:

“The power relations within an economy dictate choices of who should provide legal support services. The dominant business class calls the shots on the distribution of legal services to the profession and the acquisition of the required skills. Therefore, the dominant class dishes out patronage as it wishes and chooses. Briefing patterns of commercial or corporate work will always be reflective of the class, gender and race of the dominant decision-makers. So, briefing patterns are not a function of compassion and good-heartedness or a wish list. No amount of pleading will help. They are informed by both the financial interest and prejudices of the moneyed class. Often, all this boils down to them using the legal services of those with whom they share race, class and gender. It is a jolly waste of time to call for a transformation of the profession and, in particular, of equitable distribution of work without changing the economic power relations in the private sector. Nobody will argue against the need for transformation, not even those who do not support it. But it will simply not happen at the behest of the private sector.”’ (See news ‘Founding President of the Black Lawyers Association honoured’ (2015 (Nov) DR 6).)

NADEL was not complaining that black counsel were not briefed in this and other cases. ‘We are reiterating our long-held view that until real transformation in the form of total control of both the economic and social formation of our country, the privileged will not surrender power and control of the destiny of our country,’ said Mr Malindi.

In a press release on 28 October, the BLA noted the ‘unfortunate statement’ by Mr Spoor in respect of his attitude towards the briefing of black counsel. The BLA noted that Mr Spoor was recorded to have said that: ‘Law is an elitist profession. My interest as an attorney is winning the case and I have no latitude to accommodate unsuitable people. Colour does not qualify you if you do not meet the other requirements. The work I do does not leave much room for charity or experimentation.’ He further stated that: ‘That means counsel with commitment to public interest law. Second, we only brief exceptional counsel.’

BLA pointed out Mr Spoor was one of the briefing attorneys in the case by former mine workers, in a silicosis class action, against gold mining companies. There are about 40 counsel involved in the matter and three of them are confirmed as a black counsel, while the remaining senior counsel are all white and male. The BLA said: ‘The composition of the legal teams is indeed a cause of concern. BLA finds the searing flame of racism in the statement attributed to Mr Spoor as calculated to undermine the basic humanity of black counsel in particular and black people in general, as totally and absolutely intolerable. The statement is both insulting and highly provocative. We believe that such remarks are devoid of any respect towards black legal practitioners. Under the circumstances it came as no surprise that some legal practitioners found it absolutely appropriate to voice their displeasure in these developments.’

The BLA stated its full and unequivocally support for the actions taken by Advocates for Transformation, the Johannesburg Bar Council and all members of the legal profession who staged a protest march at the Gauteng Local Division: Johannesburg on Friday, 23 October in protest of the statement by Mr Spoor and as a way of disapproval of the current briefing patterns in general. ‘We believe that it is now high time that the briefing patterns within the legal profession should be addressed at an accelerated pace. We call upon both private and public sectors to place the briefing pattern subject at the top of their agenda, with the public sector leading in the process.’

The BLA noted: ‘We have resolved that should there be no visible efforts to correct the current briefing patterns we shall mount campaigns against unfair briefing patterns in the legal profession against both the public and private sectors. Where necessary we shall bring a class action against the private sector. Further we shall mount campaigns against racism within the legal profession and society in general. We shall collaborate with all other like-minded individuals and organisations in the struggle to address the skewed briefing patterns.’

The BLA also announced that it would lay a formal complaint with the Law Society of the Northern Provinces that it should investigate whether Mr Spoor’s statements brought the legal profession into disrepute; and with the Human Rights Commission for promoting racism in South Africa.

Far-reaching new rule

At its annual general meeting held on 29 October, the Johannesburg Society of Advocates, also known as the Johannesburg Bar, by an overwhelming majority of over 90% of those in attendance, adopted a far-reaching new rule in terms of which, it shall constitute unprofessional conduct and, therefore, a disciplinary offence for lead counsel to accept or remain on brief where there is a team of three or more counsel on brief in a matter and no member of the team is a black person.

In giving effect to this rule, it shall be the responsibility of the lead counsel in question to take appropriate steps to ensure that black women are identified and given special preference.

The Transformation Committee of the Johannesburg Bar Counsel was tasked with finalising the enforcement in compliance mechanisms in respect of the rule, such as the need for reporting by senior advocates on their implementation of the rule and other transformation initiatives.

The Chairman of the Johannesburg Bar Council, Dali Mpofu SC said: ‘In its recent statement, which condemned racism in the justice sector and generally, the Bar Council identified a number of role players who should shoulder and share the blame for the lack of progress in redressing the injustices of the past in the justice sector.

These included the profession itself, the large and mainly white attorneys’ firms, state-owned enterprises and the government. It is, therefore, significant that the Bar has decided that before tackling external role players, it should begin by cleaning its own house.

The journey fundamentally to transform various sectors by peaceful, negotiated and democratic means is engulfing South African society and is irreversible. Our profession is no exception and indeed it ought properly to be the lead in promoting and fulfilling the ideals contained in the transformative Constitution of South Africa and in healing the divisions of our ugly past.’

Compiled by Barbara Whittle, communication manager, Law Society of South Africa,

This article was first published in De Rebus in 2015 (Dec) DR 22.