Johannesburg - One of the most widely publicised images of modern-day South Africa is without any doubt the wood-panelled courtroom in Pretoria where Oscar Pistorius is being tried for murder. Footage of court GD is beamed around the world for hours on end every day of this very high-profile trial, and the images rarely change.
There is always the sombre looking Pistorius languishing in the dock, with his legal team in front of him and his family behind him.
To his right are the family and friends of Reeva Steenkamp, the woman whose life he took. Camped in front of them is the tenacious Gerrie Nel and his crew. Behind is the public gallery, largely occupied by the media, while presiding over the court is the inscrutable Judge Thokozile Masipa.
Sure, it has made for excellent television, but there is something very wrong with the picture: it is incredibly pale and white for the year that it is in, when the country is celebrating 20 years of democracy, two decades of freedom during which South Africa embarked on one of history’s most promising projects of transformation.
And yet the Pistorius trial is painting a portrait of a legal system lost in the past.
His entire defence team is white, but so too is the bulk of the state’s team and it has left many international observers wondering if this is not the exception to South Africa’s rule.
Regrettably, what they are watching is very much the norm. According to the Law Society of South Africa, there are more than 22 000 practising attorneys, of which 37 percent are black, a figure that has improved only marginally from 2008 when 32 percent of all attorneys were black. Yet, during the past decade, more than two thirds of all law graduates have come from the previously disadvantaged groups.
“The rhetoric has been that there was room for all of us, but it created too high an expectation. The idea that you are a black lawyer and therefore your fate is sealed is wrong,” says attorney Michael Motsoeneng Bill who, despite his own successes, is aware of how difficult it is for his black peers to break through the rigid glass ceiling.
“Out of ten, I would give transformation (of the legal system) a three, a well-considered three. And that’s being generous.”
It is not a matter of whites being the fittest or most able to survive, but instead that the largest firms are white owned and are getting the bulk of the work from a corporate world that is still white dominated.
Every firm hankers after corporate clients, the most lucrative part of any practice, “but white companies give instructions to white people. It’s as simple as that” and it offers few concessions to real change. It’s a problem that comes into sharper focus when the miserably scant black ownership of stock on the JSE is taken into account.
Though black ownership is bleak, a growing crop of black management in the corporate world could make a significant difference when it comes to selecting business lawyers. Instead they have opted to step into the mould rather than break it.
“They often don’t have the courage to change the status quo and diversify briefing patterns” away from white-owned law firms, says 34-year-old Bill.
Out of necessity, black lawyers are then left “servicing the poor” and trading in less lucrative areas of law, such as conveyancing, deceased estates, family law and perhaps civil litigation. It is the kind of work that may pay for a decent address and the children’s school fees, “but it does little in terms of the bigger project of legacy”.
Part of the problem is a lack of experience in chasing commercial clients, but that can be overcome through a fostering type of approach, Bill believes, through which attorneys who have served a company for most of their working years would be asked to help train young black lawyers if they want to keep their place on the panel.
“But it must be done in a way that they are not just getting paid but are actually producing the work.”
Over the past few years, government and parastatals have been a generous sponsor of black lawyers and their plight “and it is only by their grace that some of us exist”, Bill argues. But even there the picture is not wholesome.
Many government departments can safely say that of a panel of 10 law firms that they have on their books, seven or so are black owned.
“But the problem is they might be giving 95 percent of the work to 5 percent of the firms, the white firms, so we are asking the wrong questions. If we ask how much of the rand spend is going to black firms, then the true picture emerges.”
It’s a flaw in the design of BEE, which can successfully monitor management and ownership ratios, but fails in the area of monitoring procurement, which is complex to measure.
“The bigger problem is that we as black people grow up believing white is right and that’s an unfortunate fact that many of us are reluctant to admit.
“You look at the politicians who are not using the black lawyer; they are making the statement that we are not around, or that the problem to hand is too big for us.”
That’s not Bill’s case, however. He is respected among the legal fraternity – black and white – and is considered one of the more successful attorneys of the black population.
Since graduating from the University of Johannesburg he has carved out his niche in IT, media and labour law from his Johannesburg firm Motsoeneng Bill Attorneys (Motsoeneng is his second name and Bill is his surname, though he is known in many circles as Michael Motsoeneng).
“I do the kind of work I want to do and the kind of volumes I can handle,” he says.
Over the past few years Bill has taken on some big cases and early in 2012 he brought a successful interdict against TOP TV and their plans to broadcast pornography.
Later that year he acted on behalf of the Films and Publications Board in the classification of The Spear painting.
This week, he won a significant case on behalf of Icasa against iBurst parent Wireless Business Solutions (WBS), which had not paid its spectrum licence for several years. Acting on behalf of WBS was Webber Wentzel, one of the country’s top firms.
He lists Neotel, Pep Stores, Broadband Infraco and the Gauteng Enterprise Propeller among his corporate clients and though he can’t complain, Bill believes his firm would have been in a different league by now if he were white.
The Law Society carried out a comprehensive piece of research in 2008, the cost of which was apparently so high they have not carried out anything on its scale ever since.
Although the information is somewhat outdated, it is still regarded as representative of the attorney’s profession.
According to its findings, only 15 percent of money spent on advocates’ briefs was spent on black advocates, which cuts to the heart of the problem.
The survey also found that 80 percent of all law firms were white owned, and only 6.5 percent were fully African-owned, of which none had more than 10 partners. This suggests that the emergence of large, predominantly black-owned firms is still a long way off.
In Bill’s opinion, it will take another 100 years before a black-owned firm will rank among the country’s top five law firms. Some of the black firms that showed promise post-1994 became the subject of mergers with white firms, such as Nalane Manaka that merged with Werksmans Attorneys in 2006.
The examples of black-and-black mergers are still few, however, which perpetuates the unwanted cycle.
Though the legal system is an unregulated private giant, “what I’m also saying is that it begins and ends with us”, says Bill.
“When you are asking other races to be concerned about our plight you are asking a little too much. Change begins with the person who seeks change. You can’t expect someone who is enjoying the fruits of an untransformed society to give half his stake to you.
“The black business people who have succeeded will have understood the difficulties of doing business and one would hope they would not perpetuate the mistakes that were visited on them when they were choosing their business lawyers. We can’t blame white people for our patterns of consumption.”
In Bill’s view, blacks are often the least patriotic of all groups, in spite of all their talk of transformation and empowerment.
“A Jew will eat at a Jew’s restaurant. A Muslim will eat at the restaurant owned by a fellow Muslim. But you won’t find us dining out in Soweto. Instead we (blacks) think we have made it if we are going to the best restaurants in Sandton that are frequented by whites.
“We are the only racial group that is so unpatriotic.”