With a new front in the battle over transformation opening up, the General Council of the Bar (GBC) is moving to limit the damage from civil action launched by a young black woman who alleges that her attempts to become an advocate are threatened by unjust treatment.
Judges Dennis Davis and Basheer Wagley this week heard an application in the Cape High Court to review a decision by the National Bar Examination Board to refuse Makhosazana Mngomezulu an oral exam. According to argument led by Mngomezulu’s counsel, Michael Osborne, candidates who fail the legal writing component of bar exams either marginally or under “exceptional circumstances”, are entitled by exam rules to an oral, following which examiners may elect to pass them.
Mngomezulu’s founding affidavit certainly paints a picture of exceptional circumstances. She had been prescribed potent anti-depressant and anti-anxiety drugs after the death of her mother, for whose care she was primarily responsible. Nevertheless, over the next six weeks she wrote, and solidly passed, the first five of six papers that comprise the bar exams. But in the week ahead of the demanding eight-hour writing paper, her uncle and a particularly close cousin died.
Writing two days after her uncle’s funeral she found the combined effects of fluoxetine, zopiclone, grief, and the stress too much, and she failed.
Despite a series of letters to examination board convenor Archie Findlay outlining these circumstances, and evaluations from a number of advocates attesting to her drafting skills, the board decided to deny her an oral. The consequence, if the decision is upheld, is that she must repeat her yearlong pupilage.
Many in the legal community see this as a clear example of the way that the GCB and its affiliates fail the test of transformation. Several black and white advocates to whom the M&G has spoken to said they had the impression, that the board was treating Mngomezulu’s harrowing account as a series of excuses, and that her race played into their decision.
But compromise appears to be in the air after Davis concluded Tuesday’s hearing by urging the respondents, to find grounds for a settlement, rather than compelling him to issue a judgement reflecting on the conduct of senior members of the profession.
GCB chairperson Norman Arendse said the executive committee of the GCB had already discussed the high-failure rate among black pupil advocates this year before Mngomezulu launched her case, and had reached a near unanimous decision to recommend to the exam board, that those who had failed should get a chance to write supplementary exams.
Arendse said that reasons for the high failure rate were complex, and transformation was just one of the reasons for the recommendation to provide supplementary exam: “The reasons for the high failure rate are many,varied,and complex … the GCB executive commitee was of the view that special circumstances dictate that a special dispensation ought to be granted to those who failed — without setting a precedent. Transformation is only one of a number of reasons”.
Findlay, said the case was on the agenda at this weekends meeting of the examination board in Johannesburg, and while he did not want to pre-empt its outcome, the possibility of a settlement would be discussed.