What are the transformational challenges facing the country and more specifically, the legal profession as we enter the second decade of democracy?
You can argue that lawyers need to understand transformation (and all its constituent laws) so that they can draft, interpret, evaluate and adjudicate related issues for the benefit of others. But does this mean that there is a need for the legal profession to be subjected to a transformation charter?
In my view the answer should be affirmative. The Broad-Based Black Economic Empowerment Act provides a framework for the roll-out of government policy on black economic empowerment (BEE). But, being only eight pages long, it does not pretend to provide anything but a framework. It is envisaged that the meat of the roll-out be provided in codes of good practice, strategy documents and enterprise and industry charters.
The objectives of the Act are set out in seven pillars of the model scorecard produced by the Department of Trade and Industry in March last year. These are:
ownership (of shares in an enterprise);
management and control;
empowerment equity;
skills development;
preferential procurement;
enterprise development; and
a residual category left to the discretion of the sector in question.
It is important that these components aren’t viewed as separate, but are seen as constituent parts of a single objective — namely, addressing the socio-economic impact of apartheid racism, sexism, colonialism and other pre-1994 ghosts.
Unless a sector of the economy can justly claim to be unaffected by, or to have overcome the effects of past injustices, then it qualifies as a candidate to take corrective measures by adopting a transformation strategy.
In my view, no branch of the legal profession is immune from the effects of racism and sexism. This applies to the judiciary, the Bar, the side-Bar, the academic sphere and even to the administrative support services to these sub-sectors.
But to get the relevant organisations under one roof and to get them to agree on a process, leadership, time-frames, deadlock- breaking mechanisms and so on is no easy task.
The next hurdle is to negotiate the vested interests represented by powerful lobbies such as the large, historically white law firms as well as black firms and individuals who are prepared to sell their souls for short-term financial gain. Large customer or client classes, such as banks that control conveyancing or collections, may also club together and present obstacles to strategy implementation.
Then comes the important step of commissioning research into the status quo of transformation indicators. For example, how many black women are represented at various levels of the profession? What are the feeder systems? And, given these findings, what targets can realistically be set?
Be careful not to overemphasise numbers over substantive transformational questions. For example, what does it matter if the number of black attorneys are on the increase if they are still systematically excluded from complex commercial work? If women attorneys and advocates are confined to unopposed divorces and motion court work, do the numbers count?
It is only after this kind of in-depth analysis that you can begin to set compliance targets for the sector.
The exclusion of black people from meaningful participation in the legal profession will never be addressed without an element of gentle compulsion on the existing power blocs.
One of the issues that will need to be addressed is whether ”twinning” of large established black firms with small struggling black firms serves the intended purpose or, more specifically, whose purpose it serves.
A key target should be the intake of black candidate attorneys, particularly of black women.
The targets must not be unreasonable, but they should also not be comfortable and should aspire to the level we would like to see the profession attain by, say, 2015.
The key to the proper working of this is a tightly monitored system of preferential procurement. Unless other sectors, which make up the client base of law firms, exert sufficient pressure and give their work only to entities that comply with the charter, the strategy will collapse. If you consider this then you will appreciate what a creative piece of legislation the BEE Act is. It gives the facade of suggesting a voluntary regime but nothing could be further from the truth.
Apartheid withheld skills and opportunities from black people to deny them economic benefits. If this truth is accepted then corrective measures should address the academic and vocational training received by black people. There is, however, no point in receiving quality training if the opportunity to use it productively is unfairly denied.
At the other end of the scale, there is no point denying the lack of commercial expertise of black appointees to the Bench. There can be no holy cows or untouchable issues if we are serious about attaining permanent solutions and aspiring to that day when race, gender and age are no longer reference points in South Africa.
The longer we dilly-dally and prevaricate on the issue of transforming our firms, our Bars, our law schools and even our student bodies, the longer we will have to talk about race and the legacy of the past.
Dali Mpofu is the chairperson of the ICT black economic empowerment charter’s working group. This is an edited version of a speech he made at the Wits Law School’s annual dinner