Cape Town - The gender and racial quotas to achieve equity within the Western Cape Legal Practice Council (LPC) are being challenged in court by a black advocate who despite receiving more votes than her male counterparts, failed to get the position because there was already a black female advocate on the council.
Advocate Ncumisa Mayosi, assisted by the Cape Bar Council, took Justice and Correctional Services Minister Justice Ronald Lamola and the LPC to the Western Cape High Court on Wednesday.
The litigation stems from a process in March when Mayosi received the third most votes in an election of the provincial LPC.
However, she was not allowed to take up her position because she fell short of the prescribed racial and gender composition set by Lamola and the national LPC. She was replaced by Andre Paries.
In terms of the quotas, 50% of LPC members must be men, 50% must be women, of which there must be four black lawyers, two white lawyers, two black and two white advocates.
This provides for only one black female advocate among the 10 positions for the province. The quotas are set out in the Legal Practice Act 28 of 2014.
The provincial LPC is a statutory body that represents all legal practitioners in the province. In the application before court, the Cape Bar seeks an order to scrap the quotas on female representation as well as declare it unconstitutional and that no maximum limitation be placed on the number of women serving on the LPC.
David Borgstrom, on behalf of the Cape Bar, said in his opening remarks on Wednesday that the regulations in their present form not only lead to this perverse result but also protected the position of white men.
Borgstrom pointed out the matter in this province could not be seen in isolation as similar incidents occurred in the Eastern Cape and elsewhere in the country.
The court heard during the Eastern Cape provincial elections that one of the two black women had received 94 votes and was displaced by a white man who had 76 votes.
Asked by Judge Taswell Papier if the purpose of the regulation was not intended to drive transformation, Borgstrom said: “For some reason the minister placed caps on black women. Black women are competing in silos against each other for a position on the LPC.”
Lobby group Sakeliga, amicus curiae (friend of the court), in its head of arguments indicated while the Cape Bar favoured the use of race quotas that would set race-based minimums they opposed the use of all race and sex quotas.
Sakeliga submitted: “The LPC election was a perverted from a democracy that disregard the will of the electorate and deprived an otherwise successful candidate of office because of her race and sex. If a non-racial approach is to be abandoned, then citizens must either be given the freedom to classify themselves without state interference.”
Sakeliga chief executive Piet le Roux in his affidavit said: “Our submission to the court that racial quotas like in this case with the LPC in this matter are unconstitutional.”