Prejudiced private sector holds no brief for black counsel

Richard Spoor, the lead attorney representing victims of silicosis who worked for the mining industry (and who are likely exclusively black), responded to a concern that the legal teams representing these miners are overwhelmingly white, thus:

  • he uses counsel who are willing to work for a reduced fee;
  • who have an avowed and sincere commitment to public-interest law;
  • who are committed to the cause;
  • who are exceptional counsel; and
  • who are junior advocates who have graduated summa cum laude.

The seniors on this case all rank among the top 20 advocates in the country. As an attorney, Spoor says his interest is winning the case and there is no latitude to accommodate unsuitable people; that colour doesn’t qualify you if you do not meet the other requirements. He purrs that the work does not leave room for charity or experiments.

It is important to locate the often misplaced public debate on this issue. The call for equality and human dignity has nothing to do with race or gender. It has everything to do with the abuse by one group of their dominant position, often arising out of the systemic subjugation of the other.

The substance of the complaint is the abuse of often ill-gotten power. The fact that those who are dominant and who are guilty of abuse are white or male is a consequence; the fact that the victims of this abuse are black or female is an irrelevance.

It would be no less of a travesty were black men abusing a dominant position of power over victims who are white and female. A call for equality and respect for human dignity seeks to correct the historical inequities – mischaracterised as battles of race or gender.

To imply that black counsel and attorneys are not willing to do the work at a reduced fee, have no sincere commitment to public interest law, are not committed to the cause, have not graduated summa cum laude and are not among the top 20 silks in the country is frankly puerile and a function of vulgar amnesia.

If the above were true, it would be the result of centuries of systemic oppressive, exclusionary practices of the past (ostensibly still present), not because you are male and white.

The battle for gender equality and human dignity has nothing to do with testosterone versus oestrogen and everything to do with the patriarchal structure of society. That is the debate.

Insulting as Spoor’s “explanation” is to me and those like me, I take heart from the message of Deputy Chief Justice Dikgang Moseneke in the recent Godfrey Mokgonane Pitje Inaugural Memorial Lecture on transformation: “Another lesson from the Pitje legacy is how we should approach issues of transformation. Pitje practised at a time when there was no democratic and empathetic government to look up to. There was no burgeoning business and middle class who could possibly brief him and other black lawyers. Even if he had screamed about unfair briefing patterns, no one would have listened.

“Thanks to that, he had no wild expectations that the government of that day might brief him. It would not and did not. He knew that his earnings were likely to be depressed because he served … poor people living on the edges of society.”

The kind and quality of professional tasks practising lawyers and related professionals attract is a function of the socioeconomic structure of a country. The power relations in an economy dictate choices about who provides legal support services.

The dominant business class calls the shots on the distribution of legal services to the profession and the acquisition of the required skills, dishing out patronage as it wishes. Briefing patterns of commercial or corporate work will always reflect the class, gender and race of the dominant decision-makers.

So briefing patterns are not a function of compassion and good–heartedness – or a wish list. No amount of pleading will help. They are informed by both the financial interests and the prejudices of the moneyed class. Often this boils down to their using the legal services of those with whom they share their race, class and gender.

It is a waste of time to call for a transformation of the profession and for equitable distribution of work without changing the economic power relations in the private sector. Nobody will argue against the need for transformation – not even those who do not support it.

But it will simply not happen at the behest of the private sector. Again, as when the Black Lawyers Association was formed, and as Steve Bantu Biko observed, we are on our own.

Spoor’s reference to having briefed Ismael (sic) Mohamed, Dikgang Moseneke, Phil (sic) Coppin, Sean Naidoo and Thembeka Ngcukaitobi reminds me of the tired retort of those accused of racism, who say: “Some of my best friends are black.”

Thank you, Mr Spoor, for reminding us that it is a waste of time to call on you for the transformation of the profession. In fact, 21 years into our democracy, we are on our own.

Advocate Ishmael Semenya is the chairperson of the General Council of the Bar

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