/ 18 October 2018

New Act, new council, new Bar

Muzi Sikhakhane
Muzi Sikhakhane (left), Nasreen Rajab-Budlender (centre) and Tembeka Ngcukaitobi are among the founders of the Pan-African Bar Association of South Africa, which will offer full-time training and a salary to pupils. (Delwyn Verasamy/M&G)

As the Legal Practice Act is about to come into effect, a new advocates’ association is being formed, which its founders say will be “unapologetically black and women-oriented”.

The Legal Practice Act has been in the works for over 10 years and, in earlier iterations, has been the subject of fierce resistance from both the advocates, and the attorneys, professions — mostly because it initially sought to do away with the division between advocates and attorneys. Some advocates also objected to their profession, previously self-regulated, being regulated by statute.

After years of wrangling and compromises, the new Legal Practice Council is due to begin its work on November 1.

The new Bar — the Pan-African Bar Association of South Africa (Pabasa) — will be the first advocates’ association formed under the auspices of the new Act, and will exist alongside the already established Bars. More details and timeframes will be announced by the full leadership on October 30. It will not — as other Bars across South Africa do — fall under the national body the General Council of the Bar.

Advocates’ societies or Bars developed over the years as advocates grouped together to promote their professional interests — like building libraries and buying chambers — and to set professional standards. An organised profession also built trust with clients, by guaranteeing ethics, standards and training.

The traditions of Bars and governance structures have evolved slowly over many years. But their pace on transformation has been criticised. So the Act and the new Bar could — depending on how things pan out with the new council — be a big break with the past.

Meeting some of Pabasa’s founders at chambers in Sandton, Muzi Sikhakhane SC, Nasreen Rajab-Budlender and Tembeka Ngcukaitobi are unfazed, cheerful even, about the stir they are causing among their colleagues at the Johannesburg Bar.

They have been “disparagingly” called “this black Bar”, they joke.

“But we don’t mind. In fact, we are unapologetic about being a majority black Bar and becoming a majority women Bar — we want to reflect the demographics of South Africa,” says Rajab-Budlender.

Pabasa will have white members, including Matthew Chaskalson SC, Steven Budlender and Isabel Goodman. But these white members subscribe to the values of an “African Bar, where blackness is the norm”, says Sikhakhane.

Other well-known advocates who have committed to joining Pabasa are Dali Mpofu SC, Gcina Malindi SC, Dumisa Ntsebeza SC and the former chairperson of the General Council of the Bar, Vuyani Ngalwana SC.

In Pabasa’s philosophical framework document, Sikhakhane says: “The theory that seeks to take over white institutions and turn them into anti-colonial and free environments is painful, emotionally draining, degrading, slow, tiring and ill-fated.”

In many instances these experiences have the potential “to subject black advocates to the indignity of begging for work”.

The idea is to “create something new; instead of trying to change something that was originally built to further colonialism and which is resistant to changing”, says Sikhakhane.

But Sikhakhane, Rajab-Budlender and Ngcukaitobi emphasise that they are “not fighting with anyone”. The formation of the new Bar is not a judgment on the successes or failures of the old ones.

Chairperson of the General Council of the Bar (GCB), Craig Watt-Pringle SC, is equally diplomatic. He says it is the right of every advocate to form voluntary associations, as did those who formed the Bars that now exist. “We look forward to co-operating and sharing ideas with the new society.”

He says the GCB had not been formally informed about the details or membership of the new Bar, but “we are not antagonistic to our colleagues seeking to improve on what’s already in place”.

Watt-Pringle adds that, in his personal view, the current model of governance at the Bars and the GCB — where the organisation Advocates for Transformation has an equal number of votes as the general members — was not supposed to last forever.

It was a “pragmatic” way to address the legacy of the past, which saw a white- and male-dominated profession. “It will be interesting to see whether the new Bar will impact on that model,” he says.

Rajab-Budlender says Pabasa members respect the existing Bars but do not want to be defined by them.

Sikhakhane adds: “A lot of colleagues were quite negative. But it’s not about them. We are indifferent to them. It’s about us, about creating an environment of excellence and recognition of black people and women as human beings.

“We want a space where young black and women advocates can flourish, can be excellent, a place that is geared towards making them excel.”

They plan that their pupils will draw a salary from day one — a big barrier to entry in the advocate profession is that it requires pupils to go for about a year without being paid. There will also be full-time advocacy training, which will focus on areas of the law that are not currently specifically provided for, such as constitutional law, labour law and competition law.

They want the firms of big attorneys to help with training their juniors in the areas of law that have historically been largely closed to black and women advocates — the big commercial cases, tax law, maritime law and competition law, says Ngcukaitobi.

They are also pulling in judges to help with training — so that training is in line with the expectation of judges. Ngcukaitobi says that Constitutional Court Judge Edwin Cameron and the South Gauteng High Court deputy judge president, Phineas Mojapelo, have already offered to be involved.

Pro bono work will be a professional requirement, they say. And their public interest litigation will focus on the needs of the poor, black working class.

In recent years, public interest litigation has focused on the rule of law, says Ngcukaitobi. “But the rule of law is an empty concept without equality,” he says.

Franny Rabkin, news editor of the Mail & Guardian, is also the editor of Advocate, the publication of the General Council of the Bar, which is published three times a year