One way of looking at the alarming chasm that has opened up between South Africa’s black and white advocates is that Western Cape Judge President John Hlophe is entirely to blame. If he had stepped down quietly over the payments he received from Oasis Asset Management, the argument goes, members of the Bar in Johannesburg and Cape Town would not be at one another’s throats.
This would be a shallow reading. Pressed on the specifics of Hlophe’s conduct, black lawyers would surely not approve of a judge ruling in favour of a disputant who had greased his palm?
Hlophe is a symbolic figure; black advocates identify with him not because they think he is right, but because they see him as a victim of an entrenched white establishment that continues to sideline and frustrate them. The Hlophe saga has brought to the surface their simmering anger over perceived white domination of the Bar Council and legal business.
There is particular bitterness about whites continuing to monopolise the juiciest briefs, particularly in commercial cases. This has a viciously circular effect: the less of a track record an advocate has, the less likely he or she is to get work.
One side effect, Lawyers for Transformation (LTF) points out, is that black advocates risk being elevated to the judiciary without the broad juristic exposure they need to serve at that level.
In some ways this is a reflection of South African society over which the profession does not have full control. If clients or their attorneys believe a particular advocate is best suited to fight a case, not a lot can be done.
That said, white practitioners in a trade notorious for its arrogant, dog-eat-dog individualism do not seem to care much about their black colleagues and the cause of racial change.
What, for example, is one to make of the decision to install a virtually all-white Bar Council in Johannesburg after LTF members boycotted the elections in protest at the council’s stand on Hlophe? The argument is that life goes on and the profession cannot be left rudderless. But the move infuriated blacks, who saw it as high-handed racial provocation. It would surely have been better to postpone a decision pending talks between the antagonists?
Similarly, more could be done to give black advocates the exposure they so desperately want — in particular by the more extensive use of black juniors.
Mistakes have been made on all sides in this sorry saga. Given that new legislation banning outside paid work by judges was still in the works, the Judicial Service Commission might have had some justification for not acting against Hlophe — but it could have been more transparent about its reasoning.
Black lawyers’ attacks on Johann Kriegler as an apartheid judge are dirty politics: as advocate George Bizos has pointed out, Kriegler and other liberal judges played a key role in opposing apartheid and laying the foundations of our constitutional order.
But white advocates need to be more conscious of the society in which they operate. Unlike other sectors, they do not seem to have confronted the race issue or to have engaged in thorough introspection. Ultimately, open racial war in their profession also threatens their credibility and interests.
ANC Inc hits the big time
A year ago, when we first exposed Chancellor House as an ANC front, we showed the party was getting into business big time. Now the award of one of the biggest, single-item tenders in the country’s history has demonstrated the massive scale of the party’s involvement in deals with the state.
Earlier this month the parastatal, Eskom, announced the award of a R20-billion contract to buy six boilers for its new Medupi power station.
By comparison, the most expensive item in the arms deal — Gripen fighters — cost about $2-billion, or roughly R14-billion.
The Eskom contract went to a consortium of Hitachi Power Europe and Hitachi Power Africa (HPA). It commits the consortium to give 60% of business to the multinational’s African arm.
Chancellor House owns 25% of HPA, which means the ruling party has a R3-billion stake in the project.
If the pattern of exposés of ruling party front companies is followed, the response to our story will probably be “so what”.
Here’s why you should be worried.
As our Oilgate exposés showed, the rules of competition, payment and fair pricing tend to go down the tubes when an ANC-aligned company is involved. The public purse was suckered by millions of rands in the ÂOilgate saga and, while Imvume, the conduit company, was fined, it has still not repaid the entire amount.
It skews the playing field because it reinforces the view in business circles that a joint venture with a party-linked company is an easy way to win state tenders.
As our investigative work has consistently shown, this pattern is corrupting the provincial and national spheres of government. Until the Oilgate and Chancellor House investigations developed, the concern was about politicians’ private interests. Now the public purse is being used to fund the ruling party.
This does nothing for the integrity of the public supply chain and makes it a plaything of cronies. In the end we will evolve the types of corrupt patterns that have detracted from development in countries like Brazil, Zimbabwe, Nigeria, and the United States occupation of Iraq.