Maybe all this goodwill, peace, love and happiness generated by the World Cup in South Africa have finally turned my brian into a mushy pulp. (Miss World contestants must be horrified by the World Cup: with all this love and peace going around they must have nothing left to do but look pretty and sniff listlessly at the salad leaves on their lunch plates.) How else to explain the sudden thought, which popped into my head this morning, that I am missing Judge President John Hlophe and his ethically challenged sidekick, Paul Ngobeni?
It has been several months since the Judge President has done anything controversial, reactionary, ethically dubious or even newsworthy. Meanwhile, Ngobeni has seemingly been too busy giving the Minister of Defense bad legal advice to call me a racist and a pervert or to utter spluttering denials about ever having been disbarred as a lawyer in the USA.
Oh, how I miss our very own Tweedledum and Tweedledee!
Of course, several legal challenges are in the pipeline to try and overturn the absurd and illogical decision on Hlophe by the Judicial Service Commission (JSC) last year, so we might still hear from Tweedledum and Tweedledee in the next few months. The JSC, as you might recall, decided to avoid any investigation of the complaint lodged by the judges of the Constitutional Court against the Judge President, because such an investigation would have forced the JSC to decide whether Hlophe or the judges of the Constitutional Court were lying through his/their teeth. If there was one thing the JSC wanted to avoid at all cost, it was discovering the truth.
Nevertheless, now that the dust has settled somewhat, it might be appropriate to reflect on why the JSC made their patently absurd and indefensible decision and why the case seemed to have split the legal community, largely along racial lines.
The first question seems the easiest to answer. A political decision was taken by the Zuma administration to protect Judge President Hlophe – perhaps because he was accused of trying to protect Zuma and he was being rewarded for his zeal and initiative in protecting the Dear Leader from criminal prosecution. (Not that it was necessary, what with the National Prosecuting Authority doing the protection.) The JSC was thus loaded with pro-Hlophe supporters by President Zuma, which enabled a majority of its members to avoid making a finding that either Hlophe or the judges of the Constitutional Court were liars.
The second question is more perplexing. Why did seemingly good people (I am not including the opportunists, charlatans and crooks who came out to bat for the Judge President) keep quiet or offered support for the Judge President? Why were they almost exclusively black, while those who insisted that the truth be determined were almost exclusively white? Why did the tactic deployed by Hlophe and his storm troops to racialise the issue (despite the fact that the overwhelming majority of accusers were black themselves) succeed so brilliantly?
I suspect the answer to this question has much to do with the lack of racial transformation of the legal profession and the consequences of a particular legal culture that exacerbate racial divisions. More than 80% of practicing advocates and attorneys are still white (and in Cape Town this percentage must surely be much higher). Moreover, lawyers (of all races – Seth Nthai hi there!) are notoriously egotistical and arrogant and ready to gossip about, and belittle, their fellow lawyers. They love to snigger about the stupidity and ignorance of colleagues and of judges and often do so in a sneering and sarcastic manner.
In the absence of a fundamental change in briefing patterns, many white attorneys still only brief white advocates with whom they grew up, went to university with or drink and play golf with. Some of these advocates are brilliant and some are rather mediocre but in a kind of reverse affirmative action the mediocrity is overlooked while the potential brilliance of young black advocates are sneered at or dismissed. This is unjust and scandalous, but because of the way in which the legal profession is structured it is not easy to change.
Let’s face it, if you are a brilliant young black lawyer starting at the Cape Bar, your chances of being briefed by anyone but the state lawyers is rather slim – unless you have demonstrated that you are a good coconut and is white in all but skin colour. Judge President Hlophe did not create the racial divisions in the legal profession – he merely skillfully exploited it for his own selfish gain.
In this kind of atmosphere, it was very easy for Judge President Hlophe and his cronies to appeal to racial solidarity or to silence some black members of the legal profession, who feared they might be associated with the racists and the anti-transformationists in the legal profession or might alienate their potentially biggest client – the state. Support for a full investigation of Hlophe was seen as support for the sneering and arrogant white lawyers who make cynical jokes about the intellect and ability of even the brightest and most brilliant black advocates and judges.
One therefore had to be exceedingly brave and strong (or perhaps foolhardy) to be a black lawyer supporting a full investigation of the serious allegations against Hlophe.
So, while I have been a sometimes harsh critic of Judge President Hlophe and his cronies, I would argue that the disastrous turn of events, which led to the failure of the JSC to investigate the various allegations at all, can at least partly be blamed on white lawyers who have not always shown the necessary understanding for the urgent need to transform the legal profession. Is the legal profession doing enough to change briefing patterns and to transform the legal profession? Surely not. And if they do not take drastic action on this front, the legitimacy of the legal system and of the judiciary will be further imperiled.
When a white judge makes scandalously patronizing statements about black judges or lawyers, white lawyers and judges must speak out. And when a black judge acts in a way that suggests he or she is a crook, black lawyers must insist that he or she should be fully investigated.
But at the moment this does not seem to happen as racial solidarity seems to trump everything. The more transformed the legal profession becomes, the easier it would become for the good men and women of all races to stand up and insist on the upholding of high ethical standards in the profession and in the judiciary.
When this happens, a lawyer or a judge who is accused of taking a bribe, of drinking one cup of “tea” too many, or of scandalously overcharging clients will not be able to garner support from a block of lawyers merely because he or she belongs to the same race.
Until then we will have to cope with the antics of the Tweedledums and Tweedledees of this world.
Let me be the first to say, Pierre is correct.
Thank you.
Well, when I read the heading I thought today’s post was about Maggs and Brett. I see I’m wrong, but knowing well its totally off topic I’m still giving this link: http://www.businessday.co.za/Articles/Content.aspx?id=113136
I object to the inference that Maggs is dum!
Close your eyes and recall that advert where she told 2 friends about her new shampoo and they told two friends.
Now imagine she is telling two friends about the excellent job the young black prosecutor did convicting the two kids who mugged her.
Then tell me about transformation of the legal profession and the national obsession with race. Solutions can be as simple as you want to make them or as complex.
@ Pierre
“Let’s face it, if you are a brilliant young black lawyer starting at the Cape Bar, your chances of being briefed by anyone but the state lawyers is rather slim – unless you have demonstrated that you are a good coconut…”
Pierre, exactly how confident are you of this claim?
What a principled missive! Objectivity seems to stand out on this one.
Excellent. A disturbing take on the legal fraternity.
Very worrying to think that if the well educated members of the professional classes are unable to overcome their racial prejudices, then there is little hope of achieving harmony within the rest of the population.
Hi Prof De Vos
I do not know whether you have already looked at or discussed Police and Prison Rights Union and Others v Department of Correctional Services and Another. The matter relates to unfair discrimination of employees in correctional services because of their dreadlocks.
I would like to know your thoughts on the judgement.
Heres the link.
http://www.saflii.org/za/cases/ZALC/2010/68.html
Regards
@ Michael
Try and extend this beyod the legal fraternity and the Cape and you will realise that Black Professionals are swimming against a big tide. Engineers, Accountants, Consultants, Architectures etc who are running their own practices or employed by white firms will battle to close their R20 mill target revenues especially when the clients/buyers are majority white.
@ Bantu Bayamzonda
nice name
Chris says:
June 29, 2010 at 14:10 pm
hahahaha.
I owe you one, Chris.
As Brett said elsewhere, a kid is a baby goat.
Brett is not a kid – he’s grown up.
Gwebe, I of course agree with you. I was responding specifically to Pierre. So I challenge you, Pierre: Will you come to Keerom Street and call junior black counsel who do frequently get non-State briefs “coconuts,” to their faces?
Does anyone have an idea of who the judge was in the case of the 16-year old girl who “divorced” her parents in the Cape High Court?
Nobody seems to know…
http://www.iol.co.za/index.php?set_id=1&click_id=2934&art_id=vn20100628044800953C688953
Michael, you have not read the sentence I wrote with sufficient care. I said: “….your chances of being briefed by anyone but the state lawyers is RATHER SLIM….” I never said only people perceived as “coconuts” ever get work from white law firms. Of course some black lawyers are briefed regularly by white firms. Others – I contend the majority – are not. Maybe you would dispute this and claim that there has been a dramaticx change in briefing patterns at the Cape Bar? It would be interesting to hear such an argument but everyone I speak to seem to think otherwise.
No, Pierre, I did read you sentence very carefully. If, as you say, young black counsel have only a “very slim” chance of being briefed by attorneys other than the State attorney, the consequence, on the ordinary meaning of the phrase, would be that very few ever get such briefs. Yet I know numerous young black counsel who are regularly briefed for clients other than the state. (I trust you would not say that those who do get such briefs are, ipso facto, “coconuts.”)
If you had been more measured in your language, and stated rather that, statistically speaking speaking, young black counsel get LESS non-state briefs than their white colleagues, that may have been defensible. But you chose to use more fear-reaching language, the result of which is that you are plainly, demonstrably, wrong.
There is of course serious racism in all legal institutions, including the Bar But sweeping language, of the sort you have used, makes it harder, not easier, to deal with it.
BTW: How do you define a “coconut”?
Michael, Pierre clearly defines a ‘good coconut’ as ‘white in all but skin colour.’
His racism is as disgusting as is the hypocrisy in his finger-pointing.
Pierre:
I’d like to pick up on Michael Osborne’s comment: is it wrong for a law firm to brief the counsel he/she wishes to? The tenor (if not allegation) of what you are saying is that there is clear or patent racism at the Cape Bar (and let’s for argument sake also assume at the SA Bar). But what is the substance of such an allegation? Can the substance be a mere supposition on your part: that few black counsel receive briefs from white law firms? This is indeed a most one-dimensional way of looking at this “problem”. So what if so-called white firms tend not to brief so-called black counsel – does this make them racist? It sounds as if you’re saying that white law firms should be obliged to brief black counsel. In as much as I can choose the dentist I go to, I can also choose the counsel I brief. And if I chose not to brief black counsel, would that make me a racist? Put differently, if black law firms only tended to brief black counsel (as is common practise in BLA circles) – doesn’t this tendency make them “reversed” racist too? I think the substance of your allegation holds no ethical, moral and legal ground; it is rather spurious, probably made in the hope of creating mere clamour.
Pierre,
A second comment: what do you mean by “…I suspect the answer to this question has much to do with the lack of racial transformation of the legal profession…“? How can this be? Isn’t the legal profession already beleaguered enough by “racial transformation” and shouldn’t there be a paradigm shift precisely in the opposite direction to what you’re purporting? Reading your sentence on face value would suggest that you’d be in favour of a transformation based along racial lines! But then again, it seems that reading the remainder of the same sentence completes or confirms this line of argumentation.
Andy, if Pierre were right that the chances of young black counsel getting briefs from private attorneys were, to use his words, “very slim,” this would be very problematic. Such a pattern may or may not not reflect personal racism – but it might certainly be said to be a form of institutional racism.
The problem is that Pierre has his facts wrong; it is quite common for attorneys other than the State Attorney to brief young black counsel; in fact, the more progressive attorneys go out of their way to do so.
All of that being said, more black counsel should indeed be briefed by more private firms. This is one of those instances where I think vigorous affirmative action is justified.
@ Andy
Blacks must only buy from other blacks and there will be absolutely nothing wrong with that. As Maggs would say , ” I catch you drift”
Andy and Belle have more-or-less encapsulated my feelings on this subject. I can’t comment on the veracity of Pierre’s claims here, but I do think that as a law academic, it is reasonable for us to expect objectivity and truth from him, not assumption or thumb-suck. I do hope that Pierre can eventually rise above what seems to be a race preoccupation and deal with constitutional issues on a more reasoned and dispassionate basis.
This is probably, in my less than humble opinion, one of your best blog posts, double edged like a sword, but succinct to a point truly sharp.
“If there was one thing the JSC wanted to avoid at all cost, it was discovering the truth”.
This statement in my view summarizes with exquisite insight, and perhaps on your part, an Eureka experience, the virus infecting, or having infected the entire so called ‘service delivery’, ‘together we can do more…’ elite.
O note: hree disadvantaged individuals I know well, and on my advice, submitted desperately earned funds, they being unusually disciplined, to Broad Based Empowerment offerings on the JSE, info and dividends handled by a black economic empowerment company; you may recall some of these deals, Media 24 being one of them.
Today I was presented with a letter by my domestic from a company contracted to distribute dividends, stating quite clearly that dividend cheques had been criminally stolen, and would the owners of said BBEE stocks please give authorization for dividend funds to be deposited directly via internet banking into their accounts. Meanwhile, for 3 to 4 years, these dividends have been side swiped into cadre criminal’ hands. Naturally, no comprehensive information or details, or for that matter, any indication of correcting the ‘wrong’.
I call it ‘scamming the poor’. How else would you describe it. I have the official letter and info, if anyone wants it.
michael,
pierre, being an academic, would have based his “…chances of being briefed by anyone but the state lawyers is rather slim…” comment on thorough research, which i’m sure he’ll share with us in due course
ok, maybe not
pierre,
other than for basing a part of the article on shaky “facts”, the concept and core idea of your article is spot-on
it is unfortunate, then, that you have given the real “counter-revolutionaries” (on this site) so much more ammunition
maybe there’s a lesson here
etienne marais says:
June 30, 2010 at 21:33 pm
No need to go to far for that.
Just read Andy above.
Here is a perfect example of the unintended consequences of social engineering (although that might be giving it a a veneer of respectability it does not deserve – the leaking of the draft mining charter was the strong-arm part of a protection racket….)
http://www.businessday.co.za/articles/Content.aspx?id=113383
But the vagueness of that commitment means it is “not worth the paper it’s written on”, says Duma Gqubule, a director of KIO Advisory Services. “Nothing is defined.”
He says the ownership targets are of little use if they are not accompanied by a target for the net value of mining stocks owned by empowerment partners.
Ms Shabangu was at pains to emphasise her tough approach: the department would not be a “Mickey Mouse” outfit on her watch, and she intended to table urgent amendments to the sector’s regulatory framework, whose punitive measures were “mundanely benevolent”.
She declared the end of the principle of “once empowered, always empowered”. If a mining company’s empowerment shareholder sold its stake to a nonempowered party, she said, the company would have to line up a new empowerment deal.
This statement took Peter Leon, a legal expert at Webber Wentzel, by surprise. “I’ve never understood the mining charter that way: if the partner sells out, it’s not the company’s fault.”
TWO STEPS FORWARD ONE STEP BACK
It always helps in situations like this to revert to the facts.
What are the facts, wrt the mining industry, everyone? Want to help with some facts?
Facts is the ANC has nationalised mineral rights. That helped destroy SA’s mining sector.
Juju seems to have expectations of becoming a mine-owner and is pushing to have the ANC nationalise the mining sector. (Hopefully, after he is a mine-owner?)
The Reserve Bank has just noted another fall in mining output.
All over the world, mining boomed over the last decade. Gold is it a record high. Gold shares are not.
The ANC leaked a draft mining charter that sent mining stocks tumbling and pushed Anglo offshore.
Several ANC buddies are now in the mining business.
Several BEE mining deals have other things in common: large debt, with shares that are under water.
The ANC is pressing ahead with ownership quotas. With few takers.
More facts? Anyone want to connect the dots?
Pierre, I’d also like to see the research on which you base your conclusions. Funny how at the end of the day, the JSC’s reprehensible conduct is the white legal fraternities fault! I am willing to bet there are several black advocates who do very well out of state attorney work (and there’s a lot of that going around these days) and are briefed over the heads of more experienced white counsel. I suspect that no matter how many white firms briefed black counsel the tweedledums and ‘dees would carry on just the same because they are basically immoral diengenuous individuals who are not too concerned with the facts or the truth
On Hlope: he admitted taking a retainer and finding in favour of his paymaster. He alleged getting verbal permission from the Minister 2 years before the now deceased minister could have done so as he was in the worng portfolio at the time.
Hlope must go as he has demonstrated he cannot fulfil what is expected of a judge.
On black advocates. Easy to become an advocate, just get an LLB and apply. perhaps the Bar exams must be made compulsory before admission is possible.
Secondly, so what if the attorneys brief in a certain way. Attorneys brief in the manner that will win their client’s case. Currently whites have the most experience so that’s the way it goes. For a black advocate to do well he just has to do what every single other advocate has to do and thats PROVE he can do the job. Great drafting, great argument. Nothing wins briefs like performance.
The State Attorney can brief how he likes and if the advocates getting those briefs perform well, they will be in line for briefs.
‘
Simple. Performance equals results because there’s no time to waste on giving your brief to a mate who’ll mess it up and cost you a client.
let the market take over and let the black advocates step up and PROVE they are good enough.
Respect is earned.
Zoo Keeper, that is the hole in Pierre’s argument. The naam-gat-maak-faktor that goes hand-in-glove with putting a poor team together.
Zoo Keeper, what is the market? Is it a machine run by computers? An invisible hand? No, it is a bunch of individuals with money who makes decisions based on what they think is good or bad and, because they are human, inevitably influenced by their own perceptions, ideological commitments, emotional ties, fears and hopes. The market is not neutral – just as human beings are not neutral. The market you talk about is dominated by white men. Human nature what it is, they will have a tendency to select other white men and will assume those white men to be the best men for the job (even if they are not).
Geez! Catching up on my CS reading after a bit of mushy-brained SWC fever, and thought the good Prof’s delights on customary law ended a little bit in the extreme, with a good old nudge at any self-righteousness Contralesa might have engaged in.
Might not get such a tasty morsel for a while again. WRONG! Tweedledum and Tweedledee!
“If there was one thing the JSC wanted to avoid at all cost, it was discovering the truth.”
“Moreover, lawyers … are notoriously egotistical and arrogant and ready to gossip about, and belittle, their fellow lawyers. They love to snigger about the stupidity and ignorance of colleagues and of judges and often do so in a sneering and sarcastic manner.”
“Some of these (white) advocates … are rather mediocre but in a kind of reverse affirmative action the mediocrity is overlooked while the potential brilliance of young black advocates are sneered at or dismissed.”
” … the disastrous turn of events … can at least partly be blamed on white lawyers who have not always shown the necessary understanding for the urgent need to transform the legal profession.”
Ouch! Seem to have stirred even the – legal – academics! C’mon Prof! Let’s go! Do you play soccer?
Yes Prof
Humans are not neutral, and you are perfectly right that perception plays an important role.
Perception is where it falls apart for black advocates and makes their job of breaking into white-dominated practice-areas much harder. The perception is that when you given a leg-up you haven’t really earned your stripes and actually aren’t good enough. It doesn’t matter if it is because you’re black or because your daddy’s on the board.
If I cast my mind back, white English-speaking lawyers viewed their Afrikaans-speaking colleagues as being nearly capable – just like what’s happening right now. Nothing has changed except a role-reversal.
Many highly capable black advocates and attorneys are victims of this perception and wrongfully so. I will not disagree that this is a less than ideal situation.
Black advocates are sometimes viewed as having received an “easier” degree because universities want to make sure they produce enough blacks so they force them through – this is the market’s perception, like it or not.
So its typical of human nature, those that are believed to have worked harder and had more obstacles in their way will get more respect, those who are perceived as having had an easier ride are not respected as much – they have to prove themselves more capable to earn the same respect because of the doubts.
That is a very real rule of unintended consequence from all this social engineering and there is absolutley nothing you can do to cure this very human condition.
Except take away all affirmative action and let everyone meet on the same level. Blacks can get extra training in English and drafting, practice skills to ensure that they meet their white counter parts as equals and no-one quibbles the quality.
Very un-PC I know and counter to a lot of “conventional wisdom”. But it is the only way for true equality, as well as mutual and very real respect.
Zoo Keeper says:
July 1, 2010 at 16:03 pm
“Except take away all affirmative action and let everyone meet on the same level.”
Let everyone meet on the same level is precisely what our transformation policies aim to achieve by correcting for the imbalances that have distorted and skewed our economic landscape in the favour of some and the disadvantage of many.
Taking away all affirmative action will have the opposite effect.
Pierre,
If the market Zoo is talking about is run by white men and therefore not neutral, then I assume the market you’re talking about is black, and therefore neutral – is this the conclusion one is forced to come to or is this just the quality of logic of university professors (!)
That’s fine Maggs
Contextualise what I said – extra training for black students to eliminate all discrepancies in educational background should they choose such a course. That’s where the intervention is needed.
Advocates, except the lucky few or those who were attorneys and have a network for briefs, have to start their careers from scratch. Many white advocates I know spent years living virtually from hand-to-mouth until they got going. Why should it be any different for a black advocate?
Its nature of the game, same rules should apply across the board.
@ Pierre et Zoo Keeper
Pierre is right that the market is not neutral. But what he fails to factor is the engine that drives the market: Greed. If indeed black lawyers are under-valued in the market (as they surely are), their fees will be driven down. They will be hired by white lawyers whose lust for profit overwhelms their racism. (Or, perhaps, they will be briefed by those rare white attorneys who are not prejudiced .) The latter will prosper, having the advantage of hiring good quality lawyers at lower rates. Eventually, the fees for black lawyers will be bid up to the norm.
OK, only a rabid free-market fundamentalist (or Richard Epstein), believes that it always works out like this. But it sometimes does. Interventionist solutions that attempt to harness the power of rapacious self-interest are likely to be more effective than strategies that deny its existence.
Michael Osborne says:
July 1, 2010 at 16:44 pm
“Interventionist solutions that attempt to harness the power of rapacious self-interest are likely to be more effective than strategies that deny its existence.”
Greenspan came to that conclusion too, I think.
Only 40 years too late.
Zoo Keeper says:
July 1, 2010 at 16:42 pm
“Its nature of the game, same rules should apply across the board.”
But the same rules do not apply across the board – that is the nature of the game and it’s why government needs to up the stakes.
Education as you correctly point out, is perhaps the most important and for now in areas that are in most need, it’s a mess. Be that as it may, good education is but one facet of the long term solution.
Up the stakes how?
How can you force someone to take on an attorney or advocate against their will? What will happen if (and when) as part of the “learning curve” (which is interminable) clients lose vast amounts of money?
Is the State going to stand in as the professional indemnity insurer for the black “trainee”?
That is a very real problem. If I’m litigating I want the best I can afford to represent me so I win. I certainly will not be in the business of funding “university of life” fees for a previously disadvantaged lawyer.
Litigation has high stakes and its wrong end of the spectrum to play god with people’s lives and fortunes. Address educational imbalances and use State resources to brief blacks, but leave the private sector alone.
You cannot expect those who have the most to lose (the clients) to fund this by placing their very futures at risk. That is wrong and must be rejected out of hand unless the State agrees to repay the losses out of every PDI appointment.
Andy, I am not sure what you have bend drinking (or smoking) but I am at a loss to follow the “logic” of your last post. Are you saying the market is not run by human beings? Are you saying it is run by human beings but that these human beings are absolutely neutral, have no beliefs, prejudices, opinions, they hold no assumptions, have no cultural biases, have no race or gender, are in fact absolutely perfect machines? All I said was that the market is run by human beings and that this means it will never be neutral. If you – contra developments in Western philosophy over the past 150 years – claim otherwise, I would be interested to hear why.
Zoo Keeper says:
July 1, 2010 at 17:39 pm
If there was a simple solution it probably have been implemented by now.
It does sound like you are pursing the line that no extraordinary interventions are required in our society which is consistent with your unwillingness to “fund” the growth curve of specifically the “previously disadvantaged lawyer”.
It’s all the more reason for government to intervene in a more determined way.
Pierre, you can drop your attempt at corny sarcasm by making unnecessary assumptions as to what I may or may not have been drinking or smoking. I can also let my claws come out – if that’s what you wish; however, this is a level I wish not to stoop down to.
The fact is: I referred to YOUR strange logic and YOUR assertion that the market Zoo was talking about was not neutral vis-à-vis YOUR fact that the market was “dominated by white men”. This is neither a fact nor is it true. I guess you’ve decided to state this as fact based on the number of personal conversations you have had. My counter-argument simply is: look at the BLA. Isn’t this a “market” which is also dominated by “black men” who in principal only brief black lawyers? And shouldn’t one also brand this as racist? So much for kindergarten logic (!)
the legal profession is (of course) not the only “industry” where these vexed questions are raised
an interesting industry is that of the airline professional (pilots and air traffic controllers in particular)
the strategy there has been to invest massively in phased training and individual development as a foundation for maintaining the merit matrix, whilst simultaneously broadening the funnel for candidate input
the numbers are still low (and off a very low base), but there is steady growth
(no doubt that the “relative merit” argument is more onerous in this industry)
Typical Maggs logic: No intervention is required so it is all the more reason for government to intervene in a more determined way….
What is the Hindi word for ‘bemoeisiek’?
Andy, so you say its untrue that “the market” is dominated by white men. Any facts or figures to back this up? I must say it is news to me as it is a demonstrably false statement. Whether one talks about international bond markets or the market for legal services in South Africa, it is pretty obvious that such markets are dominated by white men. (last time a checked the vast majority of bond traders in New York and London were not black. And as less than 20% of practicing lawyers in SA are black and companies who generate economic activity – which generates much of the legal work – is still about 80% in white hands I am at a loss how you can make the claim you make without being laughed at.
Brett Nortje says:
July 1, 2010 at 21:06 pm
Hey Dunce,
I have no idea what the Hindi word for ‘bemoeisiek’ is.
But Brett Nortje in any language is really, really stupid.
Maggs
Imagine this then: your company is placed into provisional liquidation. Together with all the sureties you’ve signed it means the financial end of you. You will be left with nothing if the creditor succeeds.
Now the State says: “You will use attorney XYZ and Adv ABC because they are black and need some experience”
Your future now hangs in the balance and, because they are too inexperienced to do the job properly, however intelligent they may be, your case is lost and you go down the tubes and have to live in a cardboard box under a bridge.
Are you prepared to do that “for the greater good”?
Zuma didn’t hire a black advocate, he hired the best he could find who happened to be white. The point is, when you get to the stage of litigation the stakes are too high for the individual or comapny to be concerned with transformation. Its basic survival and that’s why your ideas for “intervention” to force the public to use persons not of their choice to prize fight for them must be rejected.
The State is a massive source of litigation. It is THE BIGGEST CLIENT IN THE COUNTRY PROFESSOR. NO OTHER ENTITY LITIGATES OR IS THE SOURCE OF MORE LEGAL WORK THAN THE STATE.
If the State is prepared to back emerging lawyers then that’s fine, its the State’s choice. But do not expect those of limited resources to do the same i.e. Joe Public.
Pierre,
You’re either detracting heavily here or you’re running out of plausible explanations respectively you’re losing the overview of what you’re possibly saying. Just to return to the context (yet again!): your response to Zoo Keeper, that the market (and I assume you must also have meant the “legal market” at the Cape Bar because this was the real context of your assertion!) was not only partial but that it was also dominated by “white men” – the inferrence being that the Cape Bar seems to be racist (presumably towards black counsel). The presumptuous basis for this assertion of yours was that white law firms do not brief black counsel. A “fact” which I have maintained was unfounded and not true. Now, your ranting about the stock markets being dominated by white men has absolutely nothing to do with the original assertion that the Cape Bar appears to be “racist”. Your analogous argument of stock markets therefore does not take your principal argument of “racism at the Cape Bar” any further. My simple question was: what is the substance for your assertion that the Cape Bar seems to be racist? To this question you’ve not provided any substantive argument or evidence, save a spurious statement and analogy of “stock markets in New York being dominated by white men”. So what if the stock market in New York or elsewhere is dominated by white men – is this the answer to the assertion that the Cape Bar seems to racist because presumably white firms do not brief black counsel respectively that the chances were very slim that black counsel would be briefed by a white law firm? Why not cite clear cases of victimization of black counsel by white law firms or white counsel, why not provide evidence that black counsel are intentionally disregarded when being briefed purely based on the fact that they’re black (this always being a criteria for racism!), why not address the patently one-sided behaviour of the BLA when it comes to briefing only black counsel, – and so we can go with why not, why not, why not! Surely all of these aspects would lend credence to your spurious assertion. The point I’m making Pierre to this end simply is: your statements, more often than not, lack proper and thorough substantiation – this statement is no exception.
Zoo Keeper says:
July 2, 2010 at 9:33 am
It’s agreed that the State cannot tell people which professionals to use.
That is not the level of intervention that is suggested.
As you infer, the state is the largest procurer of goods and services – it must up its act.
It can use its purchasing muscle to “encourage” private sector entities to do better too.
It already does that Maggs.
In which case, just let the show go on as presently the case. No need to change.
Maggs is right.
The state should insist on black counsel — even if they are less “experienced.”
First, so-called “experience” of course counts for little in law.
Second, even if the state does end up losing its lawsuits against criminals, environmental offenders, greedy drug cartels — who cares? As long as young black lawyers are getting work; that’s the main thing!
But third, Maggs we should demand an ANC directive to its all of its cadres having trouble with the law (Zuma, Selebi, etc.): STOP USING WHITE LAWYERS FOR GOD’s SAKE!
Mikhail Dworkin Fassbinder says:
July 2, 2010 at 10:45 am
Hey Dworky,
If you had your way Black people will continue to be “hewers of wood and drawers of water” in perpetuity.
@ Dworky
It looks like a White Lawyer might not be enough to save Selebi.
@ Maggs
I say white people must get preference in state wood-hewing and water-drawing tenders.
Admittedly, they have little experience in these fields.
But everyone has to start somewhere!
@ Gwebe,
He needs the good Professor Obari who operates from behind the BP garage and specialises in changing bad fortunes to good – or so the pamphlet handed out at traffic intersections says.
@Pierre
You present a very good moral and itellectual argument, but Zoo keeper’s point and even Fass’s point is very well made – what to make of ANC government leaders who preach transformation in the judiciary, but practice something else, when it is their own ass on the line (even if the taxpayer is footing the bill).
Our own President has routinely selected White Senior counsel to head up his defence in his many brushes with the law, following in the footsteps of Schabir Shaik, Alan Boesack and presently Jackie Selebi.
The same argument applies in the case of brain or heart surgery for a loved one – in such a case, we would all want – no, DEMAND the best person for the job, irrespective of their colour.
I agree with your conclusion, though, Pierre – let’s drop the racial solidarity and rather base our solidarity on common values such as respect for the rule of law, honesty, integrity, hard work, respect for our fellow citizens etc.
Selebi guilty on corruption but not on deafeating ends of justice.
Mikhail Dworkin Fassbinder says:
July 2, 2010 at 11:26 am
“Admittedly, they have little experience in these fields.”
Since when has experience been a barrier to the best things in life for “some among us”??????
Peter L says:
July 2, 2010 at 12:31 pm
“what to make of ANC government leaders who preach transformation in the judiciary, but practice something else, when it is their own ass on the line (even if the taxpayer is footing the bill)”.
There was the attempt to sully the good name of our Min of Health when he had his child treated at a public hospital.
Fortunately that attempt fizzled out.
Let’s hope his colleagues follow that example.
I believe that the Prof’s original assertion (self-perpetuating old boy networks) has a substantial element of truth to it. It seems that Zoo Keeper and Andy are not disbelieving it – merely arguing against a specific type of intervention. I.e. that the client has to bear the risk for inexperience and is unlikely to do so. Uncertainty carries a (substantial) premium in any market and in the case of advocates I would imagine this premium is only reduced through demonstrated ability to succeed in cases. Given that black advocates do not have the historic base for this, nor the large pool of old boy repeat clients, this is a market that will not correct itself without intervention.
Could you not intervene in a more intelligent way? I’m not in the legal profession so stand to be corrected here. If the issue is experience, then offer a fund (state funded or otherwise) which allows a black advocate to jointly handle a case with a white advocate. Or specify that 20% of the briefings should have a joint advocate and let the law firms bear the cost. This would be like a fast track internship and the black advocates fees would have to be reduced to reflect this (and to make it financially viable). The experience gained would either lead to more fully paid work from the white lawyers (once working trust was established) or experience which is what the market wants. Clearly the approach is open to accusations of paternalism and ‘baas’ comments but if the real issue is experience and trust this seems to be a way to build both more quickly without putting the client “at risk”.
Considering that 75% of advocates are white no lawyers (black or white) can possibly achieve demographic representivity in their referral profiles.
http://www.politicsweb.co.za/politicsweb/view/politicsweb5/en/page71619?oid=153124&sn=Detail
Pierre … your cowardly habit of posting dubious opinion and then ducking out from debating your challengers is becoming legendary.
http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71639?oid=153472&sn=Detail
A whole debate goes by and no-one mentions juniors learning the ropes assisting silks.
At what age would you guys say the average attorney starts making a decent living? 50?
Maggs Naidu – maggsnaidu@hotmail.com says:
July 2, 2010 at 9:30 am
In Hundi the word “busybodies” is used for bemoeisiek, taken from English. Just in case you need it, this is Chinese for bemoeisiek: 好管閒事
Hi Prof, just a short message of support.
Your blog elegantly fills a space otherwise starkly bare considering the legal practitioners and academics in SA. You make a profound mark by being willing to stand up and call a spade a spade.
I am grateful for the time you take to put your thoughts out here, and for allowing us a regular opportunity to reevaluate our positions in and contributions to this unique society.
Keep it real, Prof,
SupportER
Umqombothi
The “old boys” networks will exist as long as there are humans.
But if the State is backing black lawyers and they are in turn backing black advocates then they are establishing a network of their own.
It will all take care of itself.
You can’t look at the top 5 or 10 law firms, or top publicly known advocates and extrapolate that to the entire legal profession. The reality is most attorneys are small practices across the board and do what they can to get by, race is irrelevant.
What you’re actually seeing is simple human nature – black lawyers have an advantage in demographics. So interest groups like the BLA push for more and more because they’ll earn more and more…
This is such a nice theoretical discussion!
I’m not in the legal profession, merely an interested bystander. In fact, I’m facing a charge which I believe is without foundation.
In order to brief anyone to defend me, I will have to sell my house and live in poverty. (I’m 60 with no prospect of earning enough to buy again.) I don’t care about the theory; if I have to go to that extreme, I want the best I can pay for, be he/she yellow,pink or purple! It stands to reason that I expect to be able to communicate with my legal representatives in my home language, with some assurance that the persons concerned will understand the culture that lead me to do what I did.
So my decision will be logical to me, regardless of the need for black advocates to earn well or at all.
(By the way, it is now nearly to years since the charge was laid, and the Prosecuting Authority has not yet decided whether to pursue the matter!)
Mikhail Dworkin Fassbinder says:
July 2, 2010 at 11:26 am
Hey Dworky,
What you say about this?
“A ‘white girls only’ decree in a multimillion-rand education trust administered by the University of KwaZulu-Natal will come under the scrutiny of judges of the Supreme Court of Appeal in a potentially precedent-setting case which could impact on all charitable bequests.”
http://www.iol.co.za/index.php?set_id=1&click_id=13&art_id=vn20100705044611739C792616&singlepage=1
@ Maggs
Thank you for your query.
This legal challenge comes at an opportune time. Will you and your friends help finance my fund to purchase second-hand hockey sticks for young white girls in Bryanston who are desparate to begin training to represent their country for the 2020 Olympics?
Thanks again.
Pierre asks:
“[Why were those] who insisted that the truth be determined [about Hlophe] were almost exclusively white?”
Pierre, I am staggered by your epistemological naivete. You know very well that “truth” is a social construct. This is a case in point. Whites were determined to construct a narrative consistent with the racist depiction of blacks as dishonest and generally corrupt. Blacks (aside from a few “native assistant” types), naturally deployed a counter-narrative showing the JP to be a victim of a racist conspiracy. No suprise.
Read the brilliant analysis of our deposed poet-President for the full picture!