/ 15 November 2015

How Spoor can lead the way to a better Bar

Courts ruled for compensation for gold miners affected by silicosis
Courts ruled for compensation for gold miners affected by silicosis

The curious case of lawyer Richard Spoor holds widespread implications for the South African legal profession.

Although Spoor should have enjoyed the credit he deserved through his tenacious promotion of a class action on behalf of miners who suffered so egregiously from the apartheid mining industry, he was justly and properly condemned for statements made about the composition of the legal representation his clients enjoyed.

Recall that Spoor’s team of counsel were all white men, save for one woman. Spoor defended his decision by claiming that he only briefed counsel who were willing to work at a reduced rate and were “borderline geniuses”.

Rightly, these statements were understood as an attack on black counsel and, in turn, it elicited a dignified but vigorous response from black counsel who are members of the Johannesburg Bar.

Thanks to Spoor’s racist outburst, the Johannesburg Bar has resolved that in any case where more than two counsel are required a black counsel must be employed.

It will be regarded as unprofessional conduct by members of the Johannesburg Bar if there is no compliance with this new rule. Bravo to the Johannesburg Bar!

But this is surely a first step. This column has already examined the nature of sexism in the legal profession, through the prism of the report on this topic by the Commission for Gender Equality.

Patriarchy is manifestly prevalent in the legal profession; hence much more is needed than a Bar resolution about the composition of legal teams.

This column should not to be misunderstood – race is a critical factor that has been ignored for far too long. But so is gender and, though black women are unquestionably doubly discriminated against, gender per se must be addressed with equal expedition. Hopefully the Johannesburg Bar, as the pre-eminent institution, will take the lead in this regard.

But a start has been made at one Bar and that alone throws the spotlight on the other Bars.

It is safe to assume that, outside of Gauteng, the work required of the remaining Bars will rarely be so complex as to necessitate the employment of three counsel. So other ways will have to be found to power the transformation initiative.

Take the Cape Bar. It remains, in essence, unreconstructed some 20 years after democracy. Sources from that institution report an even more depressing picture about race and gender transformation than is the case in Johannesburg.

It may be that part of the reason is the nature of Cape Town, a city that remains hugely scarred by our apartheid history and continues to be more in keeping, at least in large part, with a European city than a cosmopolitan African one. But this cannot be an excuse for not seeking change – and urgently.

Take the question of admission to the Bar. To what extent have the committees of the Bar, which are charged with this task, been the beneficiaries of any training on unconscious bias? Even a reading, for example, of Mahzrarin Banaji and Anthony Greenwald’s perceptive work Blindspot: Hidden Biases of Good People would assist in a more nuanced process of interview and appointment for admission and re-commendation for senior counsel. Without a serious engagement into unconscious bias, the same patterns of prejudice will ultimately be reproduced over and yet over again.

How come not one black counsel was part of the applicants’ team in the miners’ silicosis class action?

The same holds true for law firms. How many of the partners in law firms have been trained in the problems of unconscious bias?

To what extent have they made determined efforts to alter briefing patterns or transform their own workspaces to accommodate diversity? It would appear that, in many large and medium-sized firms, the white male norm remains as obstinately dominant as it did some 20 years ago. The short point is this – the process of redressing the deep-seated problems exposed by the Spoor claims cannot be solved by one institution alone.

So, apart from the formal profession, responsibility must also rest on government – the largest litigator in the country. All too often government briefs a coterie of white counsel and, more significantly, appoints some who are hardly on anyone’s top 20 list.

Why, then, would government see affirmative action as a commitment in favour of whites rather than adhere to a policy of merit that would result in a far more representative practice of appointment of counsel? Government at all levels can and must do more to ensure that briefing patterns are demonstrably changed.

The universities must also shoulder blame as they produce so many rote learners with a legal perspective located in middle Europe rather than in Africa. Hopefully, the unrest on our campuses may power the necessary changes in focus on an appropriate legal education.

The latest controversy must be seen as an opportunity for all the relevant parties to think laterally about how to produce a truly transformed legal profession that is appropriate to our indigenous conditions.