Some people who have not come to grips with the notion of substantive equality and think that equality is about the equal treatment of everyone under all circumstances, get very cross about the existence of organisations like the Black Lawyers Association (BLA). “It’s racist!” they shout. “It’s discriminatory!” “How very dare they!”
I am not one those people.
In a country where, 16 years after the advent of democracy, less than 20% of practicing advocates are black and where work are often dished out on the basis of links to the old boys network (reinforced by old school tie loyalties, language and racial affinities and prejudices and friendships forged on golf courses), it would be impossible to argue that race and sex do not play an exclusionary role in the legal profession.
Many women and many black lawyers do not do as well as they would have done had they been white men. In that context, it seems perfectly acceptable for an organisation like the BLA to look after the interests of its members and to agitate for changes to the legal profession to contribute to the real transformation of the profession and to eliminate the implicit or explicit racism and the sexism which limits the professional opportunities of (especially young) female and black lawyers.
This is a matter of principle as our Constitution prohibits unfair discrimination based on race and (as the Constitutional Court found in the Van Heerden case) places a positive duty on the State to promote the achievement of equality, by adopting legislative and other measures “designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination in the past”.
I therefore have some sympathy with the BLA who this weekend issued a statement threatening to go to court to force the Ministry of Justice to speed up the process of passing a new Legal Practice Bill. BLA general secretary Babalwa Mantame told a newspaper on the weekend that the BLA was considering launching a “class action” to persuade the courts to force the Minister to introduce the Bill. The report say the BLA has issued a newsletter to its members announcing that the BLA and its partner – the National Association for Democratic Lawyers (Nadel) – would a seek class action against the Justice Ministry over the Bill’s slow progress
The reason for the unhappiness of the BLA is that it believes the Bill – if passed – will give black lawyers more government work. Mantame told the media that Justice Minister Jeff Rabebe and his Ministry were sitting on a key piece of legislation on which work began a decade ago. She said the Legal Practice Bill would – among other things – stipulate employment equity and BEE rules for any law firm wanting government work. Mantame said Radebe had promised to speed up the Bill’s path to Parliament, but with no results.
There are two interesting questions that arise.
First, given the Constitutional Court’s articulation of the separation of powers doctrine in the Glennister case and other judgements, will the court really order the Minister to pass this piece of legislation if the BLA follows through on its threat? I suspect the Court will only consider doing so if it finds that the failure to pass the Bill constitutes a fundamental infringement of one of the rights in the Bill of Rights (in this case the right to equality and the positive duty to pass legislation designed to address the effects of past discrimination in education and in the legal profession).
The problem is that in an obscenely unequal society like South Africa in which much of the inequality is race and gender based, much still needs to be done to address the effects of past discrimination and it would be rather difficult for a court to decide that this piece of legislation is more important than, say, the taking of other measures designed to ensure that the children of poor parents get a decent education or that poor people in Khayelitsha get toilets (but this time with walls).
Why should the court prioritise the needs of middle class black lawyers above the needs of working class and poor citizens who might be far worse off than the lawyers who happen to be members of the BLA? Given this obvious problem I suspect a court challenge will not get anywhere.
Which brings us to a second question, namely whether the BLA could not have framed their concerns in a way that appeared more sensitive to the broader context of poverty and deprivation and thus appeared less selfish and blatantly self-interested. Surely most reasonable people can agree that it is important to address racial discrimination and the effects of racial discrimination in order to build a more just society.
But we can also agree that giving black lawyers more government work will be great for the few black lawyers who have made it but will not really address the systemic problems in our legal system which prevent many young black men and women (and some white women too) from becoming the successful lawyers that will eventually reap the benefits of receiving government work which will, in turn, enable them to drink Moët et Chandon and Johnny Walker Black and drive around in Porsche Cayenne’s.
It seems to me the hard work in transforming the legal profession is less about providing access for a few black lawyers to the untold riches associated with government contracts and more about breaking the stranglehold of the old boys network and opening up access to the profession to a far wider pool of young people of all races and sexes.
Not that I begrudge established black lawyers their work and that I do not think providing them with access to more government work is a good thing. But from an ethical and a public relations perspective the BLA might want to think about the ways in which to frame its concerns so it looks less elitist and self-interested and more principled and concerned about the plight of the poor and the marginalised in our society.
Professor, with respect, I think that of the roughly four criticisms you level against the BLA’s threat to press a claim against the Ministry, two strike me as reasonable whereas the other two seem unfair.
Speaking quite generally (and forgive me if I do not capture your positions accurately), I think your two submissions that I believe are reasonable can be articulated thus: first, it seems unlikely that the lawsuit will succeed given that the courts are sensitive to the plight of South African’s who are far more vulnerable than black lawyers and could thus be very reluctant to order the government to direct resources to helping black lawyers who are relatively less vulnerable than other people. The second contention here is that even if the suit was to be successful and the Bill passed, ultimately only a relatively small minority of black lawyers would benefit in that the systemic obstacles to black lawyers would not be overcome.
As I made out earlier, these arguments – on the assumption that I have construed them accurately – seem pretty fair to me.
But I have to say Professor, the other contentions do not sit well with me yet. The first is that on your logic, the BLA has shown some insensitivity to the impoverished masses in threatening to pursue this lawsuit and the second is that the BLA’s conduct here seems self-interested (which you appear frame as a criticism).
As to the first of what I think are unfair reproaches, if I am not mistaken, the BLA has a pretty narrow, focused object: protect and advance black lawyers – which, given the state of the profession which you describe in your piece, is a pretty reasonable and even somewhat necessary goal. In threatening this suit – whatever the prospects of success – the BLA seems to be trying to realise its object. And as far as I am aware (and I could well be wrong) the BLA has not specifically set out to do other things. In short, it seems a bit unfair to expect the BLA to avoid taking lawful steps to advance its stated cause on the ground that its steps (motivated, no doubt, by understandable frustration with a nonchalant Ministry) are insensitive to members of the community.
The second point here is that I think it is unfair to frame the view that the BLA’s conduct is self-interested as a criticism. And by self-interested (and elitist) I think you mean that the tactic here is geared towards helping a few black lawyers get top work. You make a fair point when you say that government work will likely only benefit a handful of black lawyers. But should one not allow the BLA to start somewhere? It is a noble ambition to want to tackle directly the systemic set up that makes the profession quite exclusionary. But that could take an age. In the interim, why not take measures so the at least a body a suitably able black lawyers can gain litigation experience in complex suits? Such a body could do much, in time, to dispell wrongheaded notions of black incompetence. Thus a possible construction of the BLA’s behaviour is that it is designed to make a start of helping black lawyers by undermining apparently popular misconceptions.
“In a country where, 16 years after the advent of democracy, less than 20% of practicing advocates are black and where work are often dished out on the basis of links to the old boys network…”
Prof, please provide evidence of this networks existence?
“…(reinforced by old school tie loyalties,”
Are you saying that members of the public should not base their decisions when choosing legal representation on any pre-existing relationships they have with members of the legal fraternity? Long-standing, tried-and-tested, loyal and trustworthy friendship plays no part in deciding which legal representative merits ones custom?
“…language”
A legal representative’s grasp of the mother tongue of the prospective client should also not be a factor when deciding who to retain for legal representation? Not to mention the de facto language of common use within the courts and legal establishment – most likely English.
“…and racial affinities and prejudices”
I agree that racial prejudice should not factor into a persons decision making process. No problem with your statement here. Listing a set of unrelated criteria and then throwing in one morally repugnant criterion does not prove the premise you are trying to argue.
“…and friendships forged on golf courses),”
As opposed to friendships forged on a tennis court, rugby field, soccer field, rifle range, disco, bar, private residence or any other of the myriad of places where friendship is a natural by-product of people socialising within an organised activity? I refer you to my first question above regarding friendship not being a valid criterion when deciding on who to retain as a legal representative.
“…it would be impossible to argue that race and sex do not play an exclusionary role in the legal profession.”
You have yet to produce one example of where the hypothetical “old boys network” pushes this agenda in an exclusionary way. Or how racial and gender discrimination relates to friendship and language above?
Leigh, as I point out, I think it is both an issue of public relations and an ethical issue. None of us are ethically pure as snow and we are implictaed in all kinds of compromises every day by the virtue of being middle class or upper middle class in a desperately poor world. But I would ask: as a matter of ethics, if one has a finite amount of time and energy to spend on social justice issues then maybe to fight for one’s own financial benefit but at the same time to pretend one is really fighting a deeply principled battle is a bit hypocritical. Surely sniffing out hypocrisy (which I am not, alas) completely free from) is part of what this Blog is all about.
Illuvatar, you answer your own question: the kind of loyalties you defend as legitimate (so I assume you agree they exist) based on old school ties, language etc will inevitably have the effect (given our long history of racial oppression) of excluding people from opportunities on the basis of race. That is why corrective measures are required: to try and break these assumptions that one should only give work to friends (and not to people who can do the job the best, given the economic, social and political context). Where a system is dominated by one race or language group and they therefore decide who hgets what work and the system forced them to be friends with members only of their own race, using friendship as a criteria for deciding who to brief is deeply discriminatory and racist (no matter how noble the intentions).
Well said, Pierre:
“It seems to me the hard work in transforming the legal profession is less about providing access for a few black lawyers to the untold riches associated with government contracts and more about breaking the stranglehold of the old boys network and opening up access to the profession to a far wider pool of young people of all races and sexes.”
PS: I, a ‘whitey’, recently retained the services of ‘a black’ counsel for my own personal civil legal matter. I had a choice of many counsel but my criteria was who was good and not who was black. Said counsel (thirty years old, three years at the bar and previously an attorney) was well prepared and ‘devastaingly good’ and paying their fee was a pleasure. This counsel is appearing again for me late in February.
We need to get to a point where counsel are retained because they are good and not becuase they are black. I have had a wonderful sense of peace with my matter being handled by said counsel … unlike the creepy feeling when ten years ago I got myself into the clutches of the inept old school tie brigade – which included a token silk.
Black lawyers need more prominence. They need to market themselves somehow. They need to offer us something that the “old school tie” brigade seem no longer to offer: a listening ear, not arrogant, hard work and good preparation.
I can see why Government work is a golden goose: you don’t have care whether you handle the matter well or even win and your fees are assured.
Indivduals who can afford to litigate generally can’t afford to lose and so it is all about the best man or woman for the job.
It is really demeaning for someone to think that they were hired because they are black. They must go home after a days work saysing, “Wow, I was good today.”
I agree entirely with the title of Kgomotso Moroka’s article posted on this blog: “Transformation of the organised advocates’ profession an urgent necessity.” I cannot, however, agree with many of her deductions in the article, such as,”Because the bar comprises specialist litigators, and judges preside over litigation matters, it makes sense that judges should be appointed largely from the ranks of specialist litigators.” Many ’specialist’ surgeons and airline pilots kill their clients all too frequently.
Black Lawyers, please transform the profession but please do so by being good at what you do. The sense of entitlement is exclusively an “old school tie” thing of the past legal dispensation – and the clients suffer because of it.
Snowman says: January 25, 2010 at 14:29 pm
Snowman, as a black attorney, I agree with you 100%. However, I think what Prof and others in the BLA are saying is that there needs to be a mind shift (from all of us really – because I know we (black attorneys) still need a lot of that shift) to actually see the potential in black advocates.
I suppose I’m losing patience in a sense. And this, coming from someone in the trenches. Prof: I would encourage you to write a post about cadre deployment with respect to the law and the Cobnstitution, and what it means to folks on the ground. I cannot believe that affirmative action trumps ability successfully, and in any way benefits the people, especially when the result are lack of effective service to their communities, corruption and fraud.
Nepotism, cadre deployment, gawd, what f****g nonsense. I see the results at ground Zero, that space where folks who are also previously disadvantaged, are working ever so hard to develop effective programs and are consistently prevented by the ANC process of BEE and Afrimative Action. Affirmative action is native African preferment; it does not include everyone who was previously disadvantaged. And I challenge anyone to say its not racist, legal or unfair. Affirmative action as it is practiced today is not just, it nothing less than, you scratch my back, I’ll scratch yours, and screw everyone else.
Enough already… unless this changes, virtually nothing will improve.
We remain caught on the horns of a dilemma; affirmative action is absolutely necessary – for all the reasons that PdV mentions.
Yet AA also undermines self-esteem, destroys incentives, and fosters a culture of entitlement.
Worst of all, human nature being what it is, the old-school tie network that dominated the old order is almost immediately reproduced in a new elite
Sirjay Jonson,
Quite ironic that Prof is complaining of a buddy system in the legal profession, yet the entire ANC cadre deployment system is exactly that, a glorified buddy system based on everything but ability.
Pierre De Vos says:
January 25, 2010 at 13:59 pm
“. . . based on old school ties, language etc will inevitably have the effect (given our long history of racial oppression) of excluding people from opportunities on the basis of race.”
Absolutely true. I have yet to come across a Black person in need of an attorney, who would not prefer a Black attorney where he has a choice.
1. Re Sirjay’s post: Can anyone here spell E-S-K-O-M ?
2. I don’t buy die Beste Professor’s line about “old school tie” loyalties. Who is government controlled by? If they are not using black lawyers but white instead it’s hardly because of “old school tie” loyalties! Similarly, I very much doubt that the various white attorneys and advocates whose services have been engaged in recent years by prominent black people were engaged on the basis of “old school tie” connections.
3. Hendrik Verwoerd is laughing in hell (or wherever he may in fact be). Never mind who is in charge, the ethos, the effects and the classification of individuals under his infamous Population Registration Act is being faithfully carried forward. We are it seems, to be forever “black”, “indian”, “coloured” and “white” instead of simply just people. A nation forever divided against itself.
4. Will someone please enlighten me as to what the *current* legal definition of “black”, “indian”, “coloured” and “white” is?
Chris writes:
“I have yet to come across a Black person in need of an attorney, who would not prefer a Black attorney where he has a choice.”
Chris is right.
Same applies to briefing counsel.
It is a travesty and an outrage that black litigants like Selebe, Hlophe and Zuma have been forced at gunpoint to brief white counsel.
I very much hope that the Legal Practice Bill will prohibit such shameless intimidation!
To those who are still wondering why we need to push the agenda of transforming the legal profession especially the Bar, go and spend the morning in the 3rd division [motion court] of the Western Cape High Court [old Cape High Court] and you will see why.
Most litigants do not instruct their attorneys on which counsel to brief, this is important choice is then left to the attorneys, thus the briefing patterns of most attorneys must also be questioned.
Ashley said: Most litigants do not instruct their attorneys on which counsel to brief, this is important choice is then left to the attorneys, thus the briefing patterns of most attorneys must also be questioned.
But most litigants DO consult with counsel together with their attorney, especially where the matter is one of any significance. If they object to or have preference for a counsel of one shade or another this is easily mentioned to the attorney who will normally try to accomodate his clients wishes, no?
Chris writes:
“I have yet to come across a Black person in need of an attorney, who would not prefer a Black attorney where he has a choice.”
Chris, are you suggesting the black lawyers skills are so crappy that any self-respecting black litigant who actually wants to win his or her cases goes for White?
This list is interesting, to name a few:
Client: Nokla MOTATA, Black
Lawyer: Danie DORFLING, White
Client: Jacob ZUMA, Black
Lawyer: Kemp J KEMP, White
Client: Schabir SHAIK, Blackish (had a white grandmother)
Lawyer: Francois van ZYL & Martin BRASSEY, White & White
Client: Allan BOESAK, Black
Lawyer: Mike MARITZ, White
and, I nearly forgot,
Client: Nelson MANDELA
Lawyers: George BIZOS and Arthur CHASKALSON
And seemingly often White Afrikaner lawyers and not White English? Oh no, they’ll never escape clutches of the (former) oppressor race if they think that white is right
Put your faith in black lawyers:
http://www.thoughtleader.co.za/traps/2009/01/18/put-your-faith-in-black-lawyers/
Mikhail Dworkin Fassbinder says:
January 26, 2010 at 8:05 am
“It is a travesty and an outrage that black litigants like Selebe, Hlophe and Zuma have been forced at gunpoint to brief white counsel”.
Shameless liar!
Judge Hlophe is even minded.
He was represented for the first half of his tribulations by Adv Dumisa Ntsebeza (http://www.iol.co.za/index.php?from=rss_Top%20Stories&set_id=1&click_id=13&art_id=vn20090405071829970C546547).
Now if everyone does that, it will resolve the skew!
Response to CD: you are clearly not a practicing attorney/advocate because if you were you would know that a litigant is not allowed to consult with counsel without the instructing attorney being present. This is not dependant on the significance of the matter at hand, but is required by the ethical rules of the Bar and any counsel found to contravene this rule can as a consequence be disciplined.
In practice you will seldom find a litigant who will express his desire to work with a certain counsel, but it does happen yes. In such circumstances I will enquire from client as to the reasons for this choice and will then make a decision with which I am comfortable with, but if the client expresses and notion of DISCRIMINATION, I will not act for such a client.
It is my experience in practice that the decision of counsel is largely left to the discretion of the instructing attorney.
@ Maggs
Maggs is right.
Yes, there were malicious reports that Ntsebeza SC was fired by Hlophe JP and replaced by two white counsel, after Ntsebeza SC abandoned his argument on behalf on Hlophe, half way through his presentation at the Supreme Ct of Appeal.
But: You should appreciate that much racist mythology is spread by the old-boy white advocates who run the Bar.
And Snowman, I demand that you desist from spreading lies that are no doubt of similar provenance. To the limited extent that black litigants may indeed have briefed white counsel, this was largely the result of the fact that they were forced to appease racist white judges!
I submit that a measure of DISCRIMINATION is needed. Attorneys need to DISCRIMINATE between those counsel that are good and bad and those that give good value for money and those that don’t.
One would hope that a benefit of having an attorney present when consulting with Counsel is to have safety in numbers … two pilots on the airliner, so to speak.
What the Black Lawyers can do – which the whitey bar has never done – is to analyse human factors in litigation with a view to excluding hazardous attitudes which may cause the litigation ‘airliner’ to crash, namely:
INVULNERABILITY: This is that attitude leading us to believe that accidents always happen to that other guy, never to us.
ANTI-AUTHORITY: “Don’t tell me what I can and can’t do!,” once said to me by my token silk on a point of law he didn’t comprehend.
IMPULSIVITY: This is the one that results in immediate action without benefit of thought. It is the urge to do something, anything. And do it quickly. Often when the lawyer acts impulsively he does the wrong thing and makes a bad situation worse.
MACHO: We all also know more than one Mr. Macho (Silvertongue S.C.). He’s the one who thinks he can do anything. He’s not only confident, he’s overconfident. He consistently takes unnecessary chances in the certain knowledge that he can get away with it. He’s probably already had several minor mishaps.
RESIGNATION: In this one, the lawyer thinks, “What’s the use?” He feels helpless and unable to cope with the situation. (He communicate this feeling to his client.) He simply gives up. Feeling that there’s nothing he can do to extricate his clientf and solve the problem, he permits the situation to control him rather than remaining in charge and controlling his client’s destiny.
Black Lawyers can take on the challenge and create an antidote for each of these attitudes. And publicise the fact that they are doing so.
One way in which attorneys can maintain control of Counsel is not to pay their fees if the work is of an unacceptable standard. Stick the Counsel, and the Bar Council concerned to stick their silly rules that run contrary to both the public interest, the achievement of justice and the Constitution.
Ashley says:
“Response to CD: you are clearly not a practicing attorney/advocate because if you were you would know that a litigant is not allowed to consult with counsel without the instructing attorney being present. This is not dependant on the significance of the matter at hand, but is required by the ethical rules of the Bar and any counsel found to contravene this rule can as a consequence be disciplined.
Ashley, I never said in the absence of the attorney, now did I? You are drawing inferences which which are neither reasonable nor necessary. How many major litigation matters have you been involved in where the client has at no time consulted with counsel (yes, indeed, with the relevant member of the side bar or his/her PA or clerk present)? Not many I venture unless they are of the “unopposed divorce” type or the collection of debts. As most litigants are not sight-challenged one assumes that they can see the shade of counsel’s pigmentation when doing so.
Finally, I may add that all the members of the side bar I know discuss the choice of counsel with their clients, at least at some level or another. One imagines that in those circumstances when the attorney says, I suggest we use Cilliers or Gauntlett or Unterhalter or similar any client with any sense who has a preference for using the services of one of the formerly disadvantaged members of the bar will then say so.
Ashley, in fact my original post reads:
“But most litigants DO consult with counsel TOGETHER WITH THEIR ATTORNEY” (my caps here for emphasis).
Do you also not read your court papers properly?
Mikhail Dworkin Fassbinder says:
January 26, 2010 at 9:46 am
So Dworky, how about the Hlophe strategy?
Half time is colour change.
CD says: Finally, I may add that all the members of the side bar I know discuss the choice of counsel with their clients, at least at some level or another.
When you act for the same client on a regular basis and who litigates on a regular basis ”yes us black attorneys do litigate in major matters in the higher courts” then they do not always discuss who they want us counsel in every matter, they trust the judgment of their attorney. Myself and many of my colleagues will push the course of briefing black counsel not only for motion proceedings but good quality trial work as well! I fully support the work of BLA and NADEL in this regard!
CD says: One imagines that in those circumstances when the attorney says, I suggest we use Cilliers or Gauntlett or Unterhalter or similar any client with any sense who has a preference for using the services of one of the formerly disadvantaged members of the bar will then say so.
You uttering those words shows the level of prejudice you have towards black lawyers and black counsel in particular. What you are saying ”and I am drawing a reasonable inference” is that white counsel has superior ability over their black colleagues, that black counsel cannot be briefed based purely on their ability and should only be given work when a litigant requests their services!
There are very many black counsel at the bar that has the ability but because of the system are not given good quality work.
Like in every sector of our society that must be transformed, the Bar and in particular the Cape Bar is long overdue!
@ Maggs
The fact that Hlophe JP took on two white counsel (having reportedly fired Ntsebeza S.C.), does nothing to excuse the RACIST black litigants who have briefed white counsel.
Ashley,
If my attorney recommends counsel based on race (both black and white) than the first I would do is fire my attorney.
I would expect my attorney to recommend the best advocate for the case, irrespective of race!
I fully agree with you George, it should not be about race but about counsels ability. I never said that counsel should appointed based on their race. Lets face the facts, there are both bad white and black counsel. The only difference here is that the good white counsel get rewarded with briefs while black counsel are not.
What I am saying is that if I have a choice between two counsel, one being white and the other being black and both in my opinion having the same ability and experience, I will brief the black counsel
This is South Africa and the issue of race cannot be avoided. We must all do our best to remedy the injustices of the past because it is as a result of those injustices that we are in this position
In reference to my words: “One imagines that in those circumstances when the attorney says, I suggest we use Cilliers or Gauntlett or Unterhalter or similar any client with any sense who has a preference for using the services of one of the formerly disadvantaged members of the bar will then say so.” Ashley says: “You uttering those words shows the level of prejudice you have towards black lawyers and black counsel in particular. What you are saying ”and I am drawing a reasonable inference” is that white counsel has superior ability over their black colleagues, that black counsel cannot be briefed based purely on their ability and should only be given work when a litigant requests their services!”
Not so Ashley. There is no evidence of prejudice there at all. I used the names I did to illustrate a point in the context of a discussion about the ability of a client to require the briefing of black counsel where an attorney had suggested white counsel. And by the way, for you to draw the inference it has to not only reasonable but also necessary….
I agree with you that transformation is required, but not at *any* cost! The Eskom debacle is an example of what happens when a transformation agenda is put ahead of all other factors.
I support the equal opportunity briefing of black counsel wherever possible, for one simple reason: people learn by doing. One day these guys (or the best of them hopefully anyway) are going to be on the bench. What sort of bench are we going to have if they haven’t been exposed to top tier work?
But black professionals in this country are not doing themselves any favours at all. What do you think a multi-national client thinks when they see the antics of a Hlope ? Or when they see the travesty of the latest JSC decision and the absolute paucity of any sound intellectual reasoning behind that (hey, and some of these people are supposed to be leading lights in the field right?)? Then, when someone raises (rightfully) an issue of principle, the race card is pulled out straight away. Like Bobby Godsell. It took NUM to knock some sense into people. Then when organisations designed to promote the interests of black professionals are the very ones that are pulling the race card out or supporting people who are plainly lacking in substance what do you think happens in the mind of the independent observer?
Then when, for example an attorney suggests the briefing of some capable young black counsel and the client says “Uuummm…..maybe we should find someone else.” it is the attorney that is at fault? The problem is that clients are wary because a handful of black professionals (if indeed the term is apposite) have done damage to everyone else in the process.
Ashley, I support fully the promotion of the interests of black legal professionals! It’s not desirable; it is essential – nay critical! – that these people all grow within the profession and reach the most senior ranks handling the most intricate and difficult work. There are lots of capable – very capable and very thorough – black lawyers out there who need exposure to gain experience. There are also lots of very good black judges. No one, no one at all – except a fool – would try to exclude capable black lawyers from getting access to the work. But people also need to act with integrity and intellectual honesty and be prepared to censure their own when the circumstances warrant it instead of simply always pulling the race card and shouting “Transformation at all costs!”
@ Ashley
Ashley is right.
The fact that one has (because of prior discrimination), no experience in high level work does nothing to make one, relatively speaking, less competent in high level work. I say the skills of an advocate derive not from experience but from INHERENT ABILITY, which every law graduate has!
CD, I assume you might be correct that some people look at Hlophe and then make a generalization about the competence of all black advocates and that is exactly one of the problems we face. When a white judge or white counsel stuffs up very few people say: “Oh there they go again, these incompetent white lawyers!” But they do when one black person stuffs up. To me that reaction is informed by racism because it equates the actions of one person with the ability of the race that person happens to belong to. Surely that is scandalous as it makes generalizations based on race against the backdrop of deeply ingrained assumptions about white competence and black incompetence. What Hlophe did or did not do says absolutely nothing about the competence about an individual lawyer who happens to be black, yet that is how some people think. Sadly, because of this some black lawyers – instead of rejecting this race-based thinking and fighting against this kind of nonsense – get defensive and thus defend Hlophe because if they accept that Hlophe is bad, using the logic of the racists, they have to accept that all black lawyers are bad. This is not nonsense. Just as the actions of Barend Strydom or Eugene de Kock says nothing about my personal commitment to non-racilism and transformation, so the actions of Hlophe says nothing about the abilities of any black lawyer.
Mikhail Dworkin Fassbinder says:
January 26, 2010 at 13:32 pm
“The fact that Hlophe JP took on two white counsel (having reportedly fired Ntsebeza S.C.)”
Do you reckon then that Ntsebeza was expected to do twice the work at half the pay?
Pierre, I think what you say is fair comment and probably true in many instances.
The thrust of the point I was trying to make though is this: you have a black judge or lawyer (or indeed any other black professional or businessman or politician) that does something untoward or makes a hash of something. Somewhere, someone calls it out.
Then in response to that you have an organisation (professional, business or political) that, instead of calling upon the black professional, businessman or politician to get into line, reacts vehemently in an over defensive manner (perhaps this is emotionally understandable given our history but it is professionally and intellectually unjustifiable), pulls the race card and supports the offender no matter what.
Outsiders look on and assume that if *this* is what is defended (and so virulently defended) by the representative organisations, well then it must be the norm that is to be expected. It may be racist. That is one way of looking at it. Other people would say it is what Ashley refers to as a “reasonable inference” (I say it is not a necessary inference by a very long chalk indeed). I say it is neither but simply a regrettable misunderstanding of the true position which dovetails with existing misperceptions about Africa and its people (which you may again argue are racist but others will say are based solidly in historical and existing current facts). Whatever the case, the perception arises and no amount of calling it racist is going to change that; indeed the effect is the opposite one of entrenching the perception rather along the lines of “the woman protests too much”.
In plain terms Pierre, when we drop the line of “transformation at all and any cost” and start to apply principles and intellectual analysis with rigour and without regard to race (while at the same time advancing transformation with all effort through mentoring, skills development and equal access to opportunities), then and only then will the system really move forward and will transformation occur in a meaningful way. Up until that point you’re always going to have the perception that “he got the job because he’s black, not because he’s the best guy for the job”. That perception, valid or not, is the kiss of death for black professionals on the global stage. And of course, it is hugely hurtful and as you and I both know, very often patently untrue. But that perception is part (and I say only part) of the reason why, nearly twenty years on, black professionals are looking to government to provide them with opportunities. Oh, the multi-nationals and the big corporations with a presence here will play the BEE game; you’ll see the race quotas, you’ll hear the lip service. But ultimately for the greater part the guy sitting in control of matters in Germany or France or the US doesn’t care about BEE; at best it’s an irrelevant annoyance in his life and at worst in his mind it creates an adverse inference about the competence of the person he is dealing with. I personally, have had the embarrassment of having to deal with such situations and trying to rectify such misperceptions. Unfortunately though there are also instances I have had to deal with where people have been promoted beyond their capabilities simply because of race and that, sadly, has simply reinforced the negative perceptions and the stereotypes that we are trying to counteract.
CD says:
January 26, 2010 at 18:14 pm
“(H)e’s the best guy for the job” is a myth.
Read chapter two/page 40 here : http://books.google.co.za/books?id=-9AUI0CJ5eIC&pg=PA40&lpg=PA40&dq=the+myth+of+the+best+person+for+the+job&source=bl&ots=p6TBVKxb4S&sig=U6L0f_FTTOBDENVax9zgHV4CM8A&hl=en&ei=d0ZfS6qOIozmM7W-ieoL&sa=X&oi=book_result&ct=result&resnum=4&ved=0CBQQ6AEwAw#v=onepage&q=the%20myth%20of%20the%20best%20person%20for%20the%20job&f=false
How we always want to sound politically correct…
Snowman says:
January 26, 2010 at 8:38 am
“Chris, are you suggesting the black lawyers skills are so crappy that any self-respecting black litigant who actually wants to win his or her cases goes for White?”
No Snowman, I’m saying the exact opposite. Sometimes the litigant does not have a choice, such as where the Legal Aid Board appoints an attorney.
Sine says:
January 27, 2010 at 7:01 am
“How we always want to sound politically correct…”
Hey Sne, I hope you’re not disputing the myth of meritocracy.
Anyways – her’s an interesting cartoon about halfway down this article http://globalsociology.com/2009/10/28/book-review-the-meritocracy-myth/
And a very interesting read, by Robert Jensen :
“Here’s what white privilege sounds like:
“I am sitting in my University of Texas office, talking to a very bright and very conservative white student about affirmative action in college admissions, which he opposes and I support.
“The student says he wants a level playing field with no unearned advantages for anyone. I ask him whether he thinks that in the United States being white has advantages. Have either of us, I ask, ever benefited from being white in a world run mostly by white people? Yes, he concedes, there is something real and tangible we could call white privilege.
“So, if we live in a world of white privilege–unearned white privilege–how does that affect your notion of a level playing field? I ask.
“He paused for a moment and said, ‘That really doesn’t matter.’
“That statement, I suggested to him, reveals the ultimate white privilege: the privilege to acknowledge you have unearned privilege but ignore what it means. ”
http://uts.cc.utexas.edu/~rjensen/freelance/whiteprivilege.htm
Something positive from our Courts (No pun intended):
http://www.saflii.org/za/cases/ZAKZPHC/2010/1.html
This is a groundbreaking case in our law. I have always advocated for a stronger stance against incidences of HIV infection of other people especially when its intentional. However, in this case it was negligent…
Below is a letter that I sent to a Daily Dispatch editor which was published on 30 March 2007 whilst I was still at varsity…
“No justice for innocent boy
THIS is a response to the case that was decided recently regarding Riot Hlatshwayo, a Mpumalanga nurse who injected her stepson with blood containing HIV. The stepson has tested positive for HIV.
What bugs me the most about the judgment is that the nurse was merely sentenced to five years’ imprisonment or R10 000 fine for attempted murder.
As a fourth-year LLB degree student I submit that matters of this nature are new in our law and should not be regulated by Common Law but by an Act of Parliament as the former has a propensity of procuring lamentable results.
I strongly maintain that “justice” – if such a thing still exists in SA – was not done to the innocent boy.
Wake up SA and smell the coffee as this will not be the last incident, and take a stronger stance against sophisticated perpetrators. – Sine”
It is interesting that everyone here looks at the apex for ‘transformation’ of the legal profession. I.o.w., whose turn it is to hoover at the trough.
No-one asks what impact the latest Matric results have on equity in the profession.
Heaven forbid the suggestion that the kid Pierre is glaring at because he keeps fidgeting, shifting in his seat, this morning had to choose between a meal for the day or taxi-fare.
So, who is hopelessly bourgeois in their world view?
May be White cricket fans need a PR makeover.
It is interesting that whilst this Botha thinks he is doing the right thing is actually digging his grave. Racism is very complex.
http://www.thoughtleader.co.za/azadessa/2010/01/26/amla-a-beer-for-your-sainthood/
@ Maggs & Gwebecimele
Guys, thanks to you both for the links you’ve posted. Very interesting indeed.
Maggs, I have forwarded a quote from the article concerned and the relevant link to my colleagues here at work. Thanks once again.
Gwebs, I have read the original letter and I believe the criticism thereof is very valid indeed. I am a huge fan of cricket, followed by football, and I was lucky to have watched the blossoming career of Hashim Ahmed Amla from the onset and I am his huge fan (after Graeme Smith of course). I agree that the so-called apology is merely a restatement of Botha’s prejudices in a covert manner. I am glad this manner has been exposed and the man behind it…
Sine says:
January 27, 2010 at 11:07 am
YW. Thanks to Pierre though – I struggled to get it posted, Pierre did some magic and resolved the techno-challenge.
Thanks Maggs. Intersting article and the quietness on this topic is too loud.
Gwebecimele says:
January 27, 2010 at 12:48 pm
“Thanks Maggs. Intersting article and the quietness on this topic is too loud”.
yw.
The quiet before the storm or wind out the sails?
Power relations at play, may be race as well.
http://www.news24.com/Content/SouthAfrica/News/1059/7048795b94ae46adb978eb0c4f811748/27-01-2010-02-41/Boss_rapes_domestic_worker
As if we didn’t have enough gabbage thrown at us. Here we go again.
http://www.timeslive.co.za/sport/article279726.ece
Gwebecimele says:
January 27, 2010 at 13:30 pm
Hoeness????
Oh well, what’s in a name or is it that the name says it all!
I hope this is not true.
http://www.mg.co.za/article/2010-01-27-top-advocate-seth-nthai-suspended
@ Gwebe.
Why not?
If he’s acted improperly then he must face the consequences!
—————————————————————————————————–
“Daily effects of white privilege:
1. I can if I wish arrange to be in the company of people of my race most of the time.
2. I can avoid spending time with people whom I was trained to mistrust and who have learned to mistrust my kind or me.
3. If I should need to move, I can be pretty sure of renting or purchasing housing in an area which I can afford and in which I would want to live.
4. I can be pretty sure that my neighbors in such a location will be neutral or pleasant to me.
5. I can go shopping alone most of the time, pretty well assured that I will not be followed or harassed.
6. I can turn on the television or open to the front page of the paper and see people of my race widely represented.
7. When I am told about our national heritage or about “civilization,” I am shown that people of my color made it what it is.
8. I can be sure that my children will be given curricular materials that testify to the existence of their race.
9. If I want to, I can be pretty sure of finding a publisher for this piece on white privilege.
10. I can be pretty sure of having my voice heard in a group in which I am the only member of my race.
11. I can be casual about whether or not to listen to another person’s voice in a group in which s/he is the only member of his/her race.
12. I can go into a music shop and count on finding the music of my race represented, into a supermarket and find the staple foods which fit with my cultural traditions, into a hairdresser’s shop and find someone who can cut my hair.
13. Whether I use checks, credit cards or cash, I can count on my skin color not to work against the appearance of financial reliability.
14. I can arrange to protect my children most of the time from people who might not like them.
15. I do not have to educate my children to be aware of systemic racism for their own daily physical protection.
16. I can be pretty sure that my children’s teachers and employers will tolerate them if they fit school and workplace norms; my chief worries about them do not concern others’ attitudes toward their race.
17. I can talk with my mouth full and not have people put this down to my color.
18. I can swear, or dress in second hand clothes, or not answer letters, without having people attribute these choices to the bad morals, the poverty or the illiteracy of my race.
19. I can speak in public to a powerful male group without putting my race on trial.
20. I can do well in a challenging situation without being called a credit to my race.
21. I am never asked to speak for all the people of my racial group.
22. I can remain oblivious of the language and customs of persons of color who constitute the world’s majority without feeling in my culture any penalty for such oblivion.
23. I can criticize our government and talk about how much I fear its policies and behavior without being seen as a cultural outsider.
24. I can be pretty sure that if I ask to talk to the “person in charge”, I will be facing a person of my race.
25. If a traffic cop pulls me over or if the IRS audits my tax return, I can be sure I haven’t been singled out because of my race.
26. I can easily buy posters, post-cards, picture books, greeting cards, dolls, toys and children’s magazines featuring people of my race.
27. I can go home from most meetings of organizations I belong to feeling somewhat tied in, rather than isolated, out-of-place, outnumbered, unheard, held at a distance or feared.
28. I can be pretty sure that an argument with a colleague of another race is more likely to jeopardize her/his chances for advancement than to jeopardize mine.
29. I can be pretty sure that if I argue for the promotion of a person of another race, or a program centering on race, this is not likely to cost me heavily within my present setting, even if my colleagues disagree with me.
30. If I declare there is a racial issue at hand, or there isn’t a racial issue at hand, my race will lend me more credibility for either position than a person of color will have.
31. I can choose to ignore developments in minority writing and minority activist programs, or disparage them, or learn from them, but in any case, I can find ways to be more or less protected from negative consequences of any of these choices.
32. My culture gives me little fear about ignoring the perspectives and powers of people of other races.
33. I am not made acutely aware that my shape, bearing or body odor will be taken as a reflection on my race.
34. I can worry about racism without being seen as self-interested or self-seeking.
35. I can take a job with an affirmative action employer without having my co-workers on the job suspect that I got it because of my race.
36. If my day, week or year is going badly, I need not ask of each negative episode or situation whether it had racial overtones.
37. I can be pretty sure of finding people who would be willing to talk with me and advise me about my next steps, professionally.
38. I can think over many options, social, political, imaginative or professional, without asking whether a person of my race would be accepted or allowed to do what I want to do.
39. I can be late to a meeting without having the lateness reflect on my race.
40. I can choose public accommodation without fearing that people of my race cannot get in or will be mistreated in the places I have chosen.
41. I can be sure that if I need legal or medical help, my race will not work against me.
42. I can arrange my activities so that I will never have to experience feelings of rejection owing to my race.
43. If I have low credibility as a leader I can be sure that my race is not the problem.
44. I can easily find academic courses and institutions which give attention only to people of my race.
45. I can expect figurative language and imagery in all of the arts to testify to experiences of my race.
46. I can chose blemish cover or bandages in “flesh” color and have them more or less match my skin.
47. I can travel alone or with my spouse without expecting embarrassment or hostility in those who deal with us.
48. I have no difficulty finding neighborhoods where people approve of our household.
49. My children are given texts and classes which implicitly support our kind of family unit and do not turn them against my choice of domestic partnership.
50. I will feel welcomed and “normal” in the usual walks of public life, institutional and social” (McIntosh, 1990).
oops – here’s the link
http://ericstoller.com/blog/2005/12/01/white-privilege-shapes-the-us/
Maggs, you can be frightfully long-winded.
Could you not just ask everyone to treat the next man as if he was created in the Lord’s image?
Brett Nortje says:
January 27, 2010 at 18:19 pm
Hey Brett,
I don’t expect you to connect with the “long-winded” comments.
Do you really believe that the next man “was created in the Lord’s image”??????
@ Maggs
This list reminds me of what I saw during my holidays in December. While viewing houses along the beach on the South Coast, I was shocked to see about 400 whites only on a beach in an area called Southbroom. It just reminded me where we come from and how far are we to reach the promised land. It felt like I was in Austria or Sweeden.
I wish some whites can just be blacks for one week and experience some of the things that they take for granted.
Gwebecimele says:
January 27, 2010 at 19:28 pm
I was fortunate to have worked in the same company with the now late Peter Kerchoff – if ever there was a mensch, Peter was it. He had all the perks a senior executive at the time (late 70s or very early 80s) could want – he gave that all up to go and work among the then white churches.
His view was that white South Africans were unaware of what was truly going on and he had decided that he had a responsibility to tell people knowing fully that most were not ready to hear the truth but he was going to do it anyway.
And he did that until his death.
Peter was truly what I consider a moral giant.
@ Maggs
“12. [A white person] can go into a music shop and count on finding the music of my race”
A “European” friend of mine complains that, whenever he goes to Musica to look for the “music of his race” (Wagner), he finds the shelves full of music by people not of his race at all.
Gwebe:
“I hope this is not true.”
http://www.mg.co.za/article/2010-01-27-top-advocate-seth-nthai-suspended
This is racism, pure and simple.
Maggs, I do not have a problem treating everybody as if they were created in the Lord’s image. That is, exactly as He meant them to look.
If only we had ONE leader who tried to inspire people to do just that…
Instead, this country chose people who promise instant wealth, and talked Newspeak, of transformation and reconciliation.
Now we have none of the above. And the pressure-cooker is boiling.
Amazing how little coverage that tribunal has received inside the country. The ANC being sued for nationalising those people’s mineral rights. 2000 of the world’s biggest mining companies boycotting mining investment in SA while investment in the mining industry across the globe is at an all time high.
Best of all is the hypocrites who joined the fray to try and ensure ‘human rights’ trump investors’ rights. They should drive to Carletonville or Klerksdorp.
You can no longer see even the foundations of the little shops that used to cater to mineworkers. Ghost=towns. All to satisfy the greed of the ANC’s elite,
And Ju-Ju has aspirations to become a mine-owner? LOL!
Brett Nortje says:
January 28, 2010 at 4:56 am
“I do not have a problem treating everybody as if they were created in the Lord’s image. That is, exactly as He meant them to look”.
Ah – people are were created to look like the Lord.
You had me confused for a while, Brett!
I thought you meant that you believe that all people were created to be like the Lord.
Mikhail Dworkin Fassbinder says:
January 27, 2010 at 20:01 pm
Ok Dworky, Prof Jansen seems to have heard you.
“Another future in our hands
This time a white student is fighting the poverty trap; should our response be any different?
Jan 27, 2010 10:01 PM | By Jonathan Jansen”
http://www.timeslive.co.za/opinion/columnists/article280596.ece
Maggs, are you being deliberately obtuse?
I said:
“I do not have a problem treating everybody as if they were created in the Lord’s image. That is, exactly as He meant them to look”.
Of course, it does tense one up a bit if people cannot behave like they were created in the Lord’s image.
Tell, us, Maggs, what do you have against treating the next man like he was created in the Lord’s image? Do you not treat people like that as a matter of course?
Brett Nortje says:
January 28, 2010 at 16:45 pm
“Tell, us, Maggs, what do you have against treating the next man like he was created in the Lord’s image? Do you not treat people like that as a matter of course?”
No, I do not treat people like that as a matter of course – I have no idea what the Lord’s image is or could be, neither do I want to know. I will settle for people should be treated like people.
Of course our points of departure are different – the atheism, big bang, evolution for me.
But this is not about what I believe.
You seem reluctant to say that definitely that you firmly believe that the next man “was created in the Lord’s image” rather settling for the grey area of ” treating the next man like he was created in the Lord’s image”.
If you were decisive about that I would have engaged you.
Ok Dworky – you turn!
“Nthai caught on tape ’soliciting bribe’
ADRIAAN BASSON | JOHANNESBURG, SOUTH AFRICA – Jan 28 2010 15:54
Top senior advocate Seth Nthai was allegedly taped soliciting a bribe from Italian investors litigating against South Africa in Washington.”
http://www.mg.co.za/article/2010-01-28-nthai-caught-on-tape-soliciting-bribe
MASFOM-FON in the making?
@ Maggs
1. A man created in the Lord’s image: would he not have very bigs ears, and a trunk, perhaps tusks etc?
2. Re Cmd. Nthai, this is a story we have seen so many times before now. My only prayer is that he does not brief a white advocate …
Hey Dworky,
January 28, 2010 at 20:53 pm
1. Not nice. Religion (and associated beliefs) is a personal thing. Leave it be.
2. “Nthai is represented by senior Pretoria advocate Eric Dunn”.
“Did one of South Africa’s top advocates try to get a multimillion-rand bribe to help his opponents in an international case?”
http://www.sevafrica.com/modules/news/article.php?storyid=308
How sad. The meaninglessness of the postChristian era and the pretentiousness of its pseudo-intellectuals….
Tapes tapes tapes. That is why Presidents give instructions while walking in the garden.
What if this is really the last way that the ANC propaganda engine could find to tell the whities that we have not forgotten about you, look at all that you have to be gratefull for. What if this is really the message that the ANC wants the whites to hear!
Why I’ve come to this conclusion is by taking all comments as facts, no one is telling any lies here and their feelings are real, so this is the situation apearantly only whites gets government work and it’s because the whites makes friends on the golf course right?
Who decides where the government’s work goes? Maybe I’ll vote ANC next time, use my great influence over people who exepts my advice as the gospel to sing the praises of the governing party because they enabled me to drive a Porche, or maybe not?
@ Maggs
1. “[T]he criticism of Heaven turns into the criticism of Earth, the criticism of religion into the criticism of law, and the criticism of theology into the criticism of politics. ” – K. Marx.
2. What a disgrace; another self-hating black man!
Dworky,
1. Woodwork – G Marks
2. No FON then?
There seems to be a correlation between “terminal illness” and arrests.
“Badul arrived at court in a wheelchair last year and was immediately admitted to hospital. Phindile Radebe, police spokesperson for KwaZulu-Natal, said the police had proceeded with disciplinary action against Badul, who was suffering from an undisclosed illness. ”
http://www.mg.co.za/article/2010-01-29-kzn-police-station-cooked-crime-stats
Maybe Mrs Cwele is gonna get seriously ill soon!
I was at the recent BLA AGM and I was quite surprised to see the newly elected leadership making this announcement, as many of the Advocates at the meeting voiced disquiet at the proposals of the Bill, one even said that the Bill could be challenged from a Constitutional angle because the term “Advocate” is mentioned in the Constitution, so without a constitutional amendment the Act would not be able to bring my elitist lot back down to earth and become plain old Mr, Ms, Mrs, although the Drs might be pleased.
The general complaint was that the BLA was addressing the issue in a factionlist way, ignoring the member of the Bar and expecting them to complain via AFT or the Bar Council.
With zero legal-training, even I know that the LAW is to ENFORCE the EXISTING legislation.
And the WHOLE BLA’s membership must be tarnished by this bird-brain scheme, of creating new
legislation, which is strictly the job of Julius Malema’s department. I.e. the legislature
must first pass the laws to nationalise the mines, before the law people can back up
the looters. Mugabe followed the proper sequence. The local clowns should consult him.