Punch-up at the Bar

The cut-and-thrust of courtroom argument has spilled over into the corridors of power manned by South Africa’s legal fraternity.

The fall out around the Judicial Service Commission’s (JSC) decision not to impeach Cape Judge President John Hlophe has exposed simmering racial tensions and other divisions among lawyers, advocates and judges.

Black lawyers have started speaking out against the racism they say is still prevalent in the profession. Some have even called on the government to intervene if the legal sector cannot regulate itself.

The most visible breakdown of relationships is at the Johannesburg Bar, the largest society of advocates in the country. The majority of black advocates are boycotting meetings and reconsidering their membership after two white advocates tabled a resolution asking for Hlophe to step down.

In Cape Town, the majority of black advocates and judges did not support the moves against Hlophe. A senior advocate at the Cape Bar says that the issues of race and racism in Cape Town were not caused by Hlophe ‘but exacerbated by him”.

Two judges and three advocates told the Mail & Guardian this week that in the Cape High Court the weekly Friday judges’ meeting no longer take place and that some judges are boycotting the judges’ tearoom because of the tensions around Hlophe.

The Johannesburg Bar saw a walkout of the majority of black advocates after the resolution on Hlophe was circulated to members. The resolution came after the Johannesburg Bar Council (JBC) took a decision not to pronounce on the JSC’s decision on Hlophe.

The Bar’s annual general meeting (AGM), however, has the power to overturn decisions taken by the 16-member JBC. The AGM has since voted to wait for the outcome of advocate Peter Hazell’s actions against the JSC before discussing the Hlophe matter.

Tension at the Bar has been fuelled further by a decision of Advocates for Transformation (AFT), a body to which the majority of the country’s black advocates belong, to boycott the election of a new JBC.

The JBC’s constitution makes provision for eight members to be elected by the AGM and eight to be nominated by AFT’s Witwatersrand branch. The Bar consists of 548 white and 171 black members.

Despite the boycott, the AGM elected eight white male advocates to the JBC. In the AFT’s absence, the Bar council’s constitution was also amended to provide for co-opting additional members. Six other members, including two black junior advocates, have since been co-opted.

Advocate Khotso Ramolefe, one of the two black counsel co-opted on to the JBC, criticised the AFT’s boycott, saying it should have discussed its grievances at Bar level rather than ‘run away”.

AFT is now considering what the Bar council chair Gerrit Pretorius SC calls ‘an all embracing boycott of the Bar Council and everything it does”.

The M&G is in possession of a letter sent by AFT Witwatersrand chairperson Patric Mtshaulana SC to its members on November 14 in which he sets out questions to be asked after the JBC boycott. It includes addressing Judge President Pius Langa on the ‘serious constitutional crisis” in Johannesburg and asking Justice Minister Brigitte Mabandla to refuse recommendations for ‘silks” coming from ‘an all-white Bar Council”.

Mtshaulana says that an AFT subcommittee has been appointed to draw up a document that will be presented to the JBC early next year.

‘It’s a shame that 13 years down the line, members still allowed an all-white Bar Council to be formed,” Mtshaulana says. ‘We are back to the days of a President’s Council and a Native Representative Council. What a pity.”

He accuses white members of the Bar of ‘abusing their majority” in trying to overrule a decision of the JBC not to act on the Hlophe matter. At the time Mtshaulana was the JBC’s deputy chair and voted against pronouncing on Hlophe. A lack of transformation is, however, the underlying issue for Mtshaulana.

Currently, black advocates do not get nearly as much work as their white colleagues, particularly in the civil courts. Western Cape chairperson of the Black Lawyers’ Association Dumisa Ntsebeza SC and chairperson of the KwaZulu-Natal Bar Tayob Aboobaker SC support this view.

‘As long as black people are not doing commercial work, we are facing a crisis. If they are appointed as judges, how will they decide over commercial cases?” Mtshaulana asks.

Ntsebeza, who has criticised retired Constitutional Court judge Johann Kriegler’s negative comments about Hlophe, says he can ‘hardly count any white firm that has given me work and I’ve been at the Cape Town Bar since 2000. There’s an acceptance that if you’re black, you are less competent. The organs of the state are perpetuating this perception — there’s still a lot of work going to whites in a disproportionate way.

‘Complex legal issues such as intellectual property, shares and company law are seen as the domain of the white advocates. That’s why in Cape Town you find six Africans who are members of the Bar of more than 300 advocates. It’s a scandal.”

According to Aboobaker, speaking in his capacity as deputy national chair of the AFT: ‘We are stuck in a time warp. There is no real desire to change. I know many senior counsel who have never seen a brief from a white law firm for years.”

But, founder member of the AFT and senior counsel Norman Arendse says things are changing for the better. ‘I do believe that the profession is in trouble around issues of transformation, but ever since the founding of the AFT, we’ve been lobbying the big law firms and tried to persuade the Bar councils and the General Council of the Bar to seriously address skewed briefing patterns.”

Pretorius says black silks who do not get work are not good enough. ‘We want black advocates who can stand up in any court — the majority of black advocates that leave the Bar leave because they are not good enough.”

He agrees that there is still a ‘minority” of advocates who are not ‘sensitive to the difficulties black counsel have”, but says there are also other factors hindering transformation at the Bar such as higher payment in the private sector and ‘useless” LLB degrees.

A white Cape judge says: ‘The Cape Bar and Bench are still the domain of the white man and they desperately need to change because it has an exclusionary effect. It’s crucial for justice because all people tend to trust a thing that looks and feels familiar and not foreign — the public need to see other faces than the white male on the Bench.”