South African Law is White and Male.

I write this piece on Reconciliation Day. I don’t intend to open up healed wounds, nor incite racial tensions. The truth, just like a mosquito-bite, irritates our ego. It is the truth that irritates me. Iam a black and peaceful law graduate who has a white problem with the South African Legal system.

It is white and male!

Anyone black, female or in-between has to sweat to get to the lower rungs of the legal ladder. Equality is imaginary. It is utopia.

The future is pitch-black!

The paucity of black attorneys in the upper ranks of the country’s elite commercial law firms is disturbing. This is a discouraging sight to a black law graduate still learning the trade’s tricks. Entrance into the profession, after attaining the LLB degree, is hindered by a lot of hurdles which disadvantage the black students. This is not a racial slur, nor do I advocate an entitlement attitude premised on transformation or black empowerment.

No!!!!!

To begin with, it is quite difficult for a black student to get articles as opposed to a white student. A white friend of mine told me that he got his Candidate Attorney vacancy whilst he was still at university. He never applied, nor was he interviewed. He just got connected. EASY! It has become fashionable these days that a Candidate Attorney should have “own car” and must be “bilingual”. The “own car” requirement mostly favours the white law graduate. It is a fact that most if not all whites own the factors of production in South Africa and their kith and kin are favourably stationed when it comes to such assets as cars. This positions them well and they won’t even mind the R3000 mock salary given to articled clerks. Bilingual refer to the ability to read, speak, listen and write in Afrikaans……a dying language yet the core requirement for a “fit and proper” attorney.

Some Law firms have created a tradition to employ only white law graduates. This has been creatively done so as to keep the “firm’s culture” and cut on integration costs. This smacks of institutional racism, an affront to the spirit and purport of the South African Constitution. Integration costs are associated with diminished morale of white workers who resent the presence of black attorneys whom whites see as undeserving. In an effort of creating a façade of “togetherness” law firms have gone for a colourful collage of pictures were blacks and whites smile to the click of the camera. Yet when they return to their workstations the reality sinks in….whites will never accept them as equal colleagues and partners.

Equality is imaginary. It is utopia!

One experienced white jurist supports this notion. He blames the lack of black law graduates in pristine white law firms on an exhaustive list which includes….black shortcomings, including intellectual inferiority and deficits of human capital, interest, loyalty, and perseverance. I have a problem with a blanket statement on “black shortcomings”. Does this include honesty? Or is aligned to competence? There is an unwritten law in the corridors of established law firms that blacks require more training than their white counterparts. I firmly believe that this perception has its wings in negative mind-set of blacks being thick skinned. Is it not true ladies and gentlemen, that if all resources are channelled towards proper training of ALL, great strides will be made to reduce this gap? The answer has to be affirmative.

The South African legal system is an establishment built on white privilege and institutional racism. No doubt the apartheid legacy cemented this perception that blacks can never be on the same par with their white counterparts. But things change and should change! More can be done by those who benefited out of apartheid. These institutions have the financial muscle to train the novice and instil into them practical knowledge required to survive in this industry. Yes the economic climate might be harsh, and I understand some firms are struggling to settle overheard costs, but efforts to integrate all into the profession should not be aligned to racial colours and gender.

The Constitution enjoins us to heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights. This progressive Constitution read together with the recently promulgated Legal Practice Act, has an institutional and statutory framework to address this racial divide .The Act create the Legal Council which is tasked with finding solutions to the availability of quality legal training and education, quality workplace learnership opportunities, provision of pro bono services as well as the community based paralegal services. This might be slow during its teething days, but the long term result should work towards in harmonising racial and gender imbalances in the legal profession.

Certainly the numbers are not pleasing and do not add up.

A recent survey by the Ministry of Legal Affairs and Constitutional Affairs revealed shocking figures. Years after the demise of apartheid, of the 2384 advocates (as at April 2013) who fell under the umbrella of the general council of the bar, 1367 were white men,366 white women,295 African men,89 African women,47 coloured men,37 coloured women,114 Indian men and 69 Indian women. The picture is, of the 473 senior advocates or silks, 382 are white men, 29 black men, 20 white females, 4 black women, 9 coloured men, 1 coloured woman, 24 Indian men, and 4 Indian women.

Certainly these figures cannot be attributed to blacks own failings or choices. Professor Lisa Pruitt argues that despite a range of economic and political incentives to hire black attorneys, the lack of integration is also the result of discriminatory actions of white individuals and the institutions they run. They cannot just stand a black lawyer’s name on the letterhead of a pristine white law firm.

The truth hurts!

The 1994 elections ushered in “another country”, with a progressive and embracing Constitution, but certainly did not usher in “another legal profession”. The truth is ….the legal profession remains white and male.

Shepherd Mutsvara 
(LLB Unisa) (LL.M  UoL)