Legal eagles set to clash

Cape Town 160205 Graduate Attorney, Nomampondo Nicoleen Banzi (bottom, hand up) walks away after being sworn in. Judges Siraj Desai and Gayaat Salie-Hlophe admit law graduates as advocates in the Western Cape High Court on Friday. In this picture, registrar Rhoda Patel assists those being admitted. Transformation activists hope those who end up joining the Cape Bar will include more black and female advocates. Picture: MICHAEL WALKER

Cape Town 160205 Graduate Attorney, Nomampondo Nicoleen Banzi (bottom, hand up) walks away after being sworn in. Judges Siraj Desai and Gayaat Salie-Hlophe admit law graduates as advocates in the Western Cape High Court on Friday. In this picture, registrar Rhoda Patel assists those being admitted. Transformation activists hope those who end up joining the Cape Bar will include more black and female advocates. Picture: MICHAEL WALKER

Published Feb 7, 2016

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A feeling of disquiet is brewing in the already divided advocates’ profession in the Western Cape over a draft transformation policy which compels senior counsel (silks) to brief black and female junior colleagues.

The confidential draft policy, which was leaked to Weekend Argus, was sent to members of the Cape Bar for comment this week. It states senior members of the Bar risk disciplinary action if they fail to appoint black and female junior counsel with less than five years’ standing on a fee-sharing basis. Fee-sharing guidelines were attached.

On the face of it the document seems a step towards transformation of the white male-dominated Bar. However, many members are expected to lodge fierce objections because the proposals exclude black and female advocates who have been at the Bar for more than five years.

The Bar Council said the document would be reconsidered after comments were received.

Weekend Argus spoke to advocates about the development.

They called it a slap in their faces and said the proposed policy would do more damage than good because it excluded 16 black women and 27 black men from briefs, while 73 white women stood to benefit.

“Black members who sacrificed much and who have been disadvantaged from day one will continue to be disadvantaged and will probably leave the Bar, as is already happening. There is no attempt to retain and develop existing black and female members.

“In effect, instead of retaining and then increasing the black membership, it will, in all probability, have the opposite effect because members over five years will, in all probability, remain limited in exposure to work and experience,” an advocate said.

Some spoke of how they had struggled to sustain their practices due to a lack of briefs and their inability to pay bills.

They’d watched colleagues, including black women at the Bar for more than eight years, lose their homes and cars before packing up and leaving the profession.

The advocates spoke on condition of anonymity because they were embarrassed their communities, who were proud of what they had achieved, would now view them as failures. They also wanted to protect their families.

They want transformation initiatives steered by people who understand the effects apartheid still has.

Cape Bar Council chairman John Butler said the draft policies had been prepared by the Black Lawyers Association and the Bar Council, “and thus carry the support of both”.

“By far the greatest number of black and female members fall into the 0-5 year category, in which seniority group the support is most needed,” he said.

Regarding skewed briefing patterns, Butler said, “some black counsel are well briefed and others are not”.

“The Bar is built upon a foundation of competition among colleagues for work. The fact that some attract more work than others reflects the excellence of those who succeed. The state attorney is a major supply of briefs to black and female counsel and strongly disputes the allegation of unfair briefing. If it is suggested that white male counsel are unfairly preferred to black and female counsel, you will appreciate that the Bar does not allocate briefs. What it can and does do, is promote the briefing of black and female counsel,” he said last week.

This week the draft policy headed “Expanding access to work for black and female junior counsel” was circulated.

It states: “The Cape Bar is committed to promoting equal opportunities in the advocates’ profession, increasing the race and gender representivity of the Bar, and building a pool of experienced black and female candidates for appointment to the Bench. While there has been a steady increase over the last 10 years in the numbers of black and female members and senior counsel, the statistics reflect the ongoing impact of historic disadvantage and demonstrate a critical need for transformation measures directed at advancing and achieving demographic representivity at the Cape Bar.”

The document says demographic representivity of the Cape Bar was a critical objective, requiring exceptional measures and proposed all silks brief “at least one black and one female junior member of five or less years’ standing with whom they have not previously worked” on a fee-sharing basis, each calendar year.

An explanation has to be provided for failure to comply and defaulting members may face disciplinary action.

Juniors were warned a reduction in their usual fees may be necessary, but “the arrangement is based on a fee sacrifice by initiating member/s”.

Cape Bar figures indicate there are seven black junior members who have been at the Bar for more than 15 years, while 18 members have 10 to 15 years’ standing, and 23 have five to nine years’ standing.

These members, in terms of the proposed policy, will be overlooked for briefs that could end up with any of the 73 white women who have less than five years’ standing at the Bar.

Butler said the Bar’s position was limited by the number of black and female applicants for pupillage. Of 39 applicants, only 16 were black. The figure included seven Africans. Five Africans were offered positions in the programme. Four accepted and one withdrew.

Ten coloureds were accepted into the programme and no Indians were selected.

Western Cape Advocates For Transformation (AFT) chairman Greg Papier said: “Unfortunately, it’s going to continue unless we become a part of that (Cape Bar pupillage) committee, like we asked to be.”

Papier said AFT was negotiating with landlords to set up its own chambers to prevent evictions of members and support junior advocates. Papier confirmed the Bar Council recently agreed to hold a special AGM on possible amendments to its constitution to make provision for AFT members to serve on the council.

Currently, the constitution states that half of the council must be black.

Sunday Argus

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