As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
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.BACK TO TOP