The new news that there were no black African advocates on the list of those appointed senior counsel (silk) at the Cape Bar has reignited the debate on the transformation of the legal industry, with rights organisations campaigning to have skewed briefing patterns addressed as a matter of urgency.
They say the situation will not change unless black and female advocates are briefed.
It appears the issue of skewed briefing patterns is also high on the Cape Bar Council’s (CBC) agenda.
Earlier this month President Jacob Zuma awarded silk status to 17 advocates at the Cape Bar, one of whom was coloured and three Indians. Four women were appointed.
Their appointments increased the number of silks at the Cape Bar to 95, one of whom is black African, seven coloured, and three Indian. Seventy-eight of the 95 silks are white men.
In its transformation report this year, the CBC noted a limited pool from which to choose black and female applicants for senior counsel.
It also reported difficulties in influencing private law firms to change briefing patterns, where the choice of counsel was the prerogative of attorneys’ clients.
Other challenges cited were a low number of black law graduates from the three main tertiary institutions in the Western Cape, overheads which advocates incurred, such as the rental of chambers and floor dues and the fact private and public sectors were attractive options for law graduates, particularly in light of a one-year unpaid pupillage at the Bar and the time and costs of establishing a practice at the Bar.
Kameel Premhid, a legal researcher at the Helen Suzman Foundation, said this week silk was largely determined by seniority.
If black advocates were not getting enough work to survive, then no or few black silks would be appointed because they would have been weeded out before they qualified on experience criteria.
“Briefing patterns make or break a practice. Where they are racially skewed or overtly racist, or both, the practitioner on the receiving end would be hard-pressed to stay in practice, let alone be (professionally/financially) successful.
“The fact that no black advocates were nominated/appointed brings the Cape’s briefing patterns into focus as not many black advocates seem to be attracted to practise there or, if they choose to, are not retained for very long or, if they are, are not as successful as white counterparts. This is the real issue,” he said.
He described the lack of black and female silk appointments this year as a symptom, saying “silk is not the cause”.
Tabeth Masengu, of UCT’s Democratic Governance and Rights Unit, agreed it was essential skewed briefing patterns be addressed. “Government, as a large user of legal services, needs to go beyond just using the state attorney’s office to brief black advocates and look at who they brief in their ‘big cases’ - the ones where they have the most to lose. Be it Parliament, most departments or even parastatals, it’s still mostly white men (who are briefed). Unless there is a concerted effort there and in law firms, things will remain the same,” she warned.
Sunday Argus