While the Judicial Service Commission (JSC) debate continues to rage, Chief Justice Mogoeng Mogoeng said the country needs to prevent the “pool out of which transformation can happen” from drying up because good briefs do not get given to black lawyers.
Female and black students should be encouraged to study law and, once they qualified, “we need to find a way to give them work to do” because many dropped out of the profession because quality work was not forthcoming, he told delegates at the 18th Commonwealth Law Conference in Cape Town last week.
Justice Mogoeng said it was human nature to support those you knew and, “naturally, because our white compatriots are really in the commanding heights of the economy, they brief or give instructions to white attorneys who, in turn, brief white advocates”.
“The limited work that some, or rather most, of the black practitioners have to share, is simply not good enough to allow them, one, to survive and, two, even if they survive, to develop their skills to the point where most of them are, no doubt, suitably qualified for any assignment however high it may be,” he said.
Justice Mogoeng suggested that the consciences of those who had the resources to help must be pricked into supporting black and female lawyers so that a “pool out of which transformation can happen can be developed properly”.
Law Society of South Africa chief executive Nic Swart agreed, saying that the mindset of large corporate companies needed to change so they were more willing to brief the small law firms, which accounted for most of the legal profession in the country.
Swart said big corporate companies and banks often briefed larger law firms because “that is where the expertise is”.
He said in order to give smaller firms more exposure, the law society had been encouraging so-called “twinning”, where large firms linked with smaller ones to “capacitate them”.
About 10 of South Africa’s bigger firms had committed to this. The law society had also been in meetings with large corporate firms to encourage them to brief small firms, black lawyers and women.
However, Swart said the root of the problem needed to be tackled so that law graduates of a higher quality entered the profession and ultimately excelled.
He said most law graduates were black and female and the law society’s intake into its post-graduate training programmes was similar.
“So, the point I am trying to make is that the availability and the numbers at the entry point are what we would ideally want, not that it can’t improve or that it shouldn’t improve. But it is what we believe is a good figure. But the problems emerge after that,” he said.
According to Swart, retaining female and black graduates was difficult. “We are quite concerned about the fact that we do not retain women, and that obviously affects the entry of women to the judiciary because the pool is simply not big enough. The same applies to black students.”
He said this was due to, among others, the quality of graduates.
In February and March the law society tested the reading ability of graduates in Cape Town and found there was no benchmark for reading ability for LLB students.
“In other words, they go in and they come out and nobody is concerned about how well they can read. That is a primary skill (for a lawyer),” he said.
The tests would be conducted in other parts of the country later this year. The universities had told Swart the problem stemmed from the schooling students received.
Swart said he was confident the profession could change, but that it would take time.
Speaking at the conference, Professor David McQuoid-Mason, the president of the Commonwealth Legal Education Association, said school systems were not delivering students who were ready for university study. McQuoid-Mason suggested that teaching methods and curricula needed to be updated.
“The law is changing all the time so we need to look at those changes,” he said.
He said lectures were the most popular teaching method used.
However, citing research by the University of Maryland, McQuoid-Mason pointed out that students only remembered 5 percent of what they are taught through lectures.
He said teachers needed to move away from traditional lectures and look at other, more creative methods. “Bring it alive. Don’t have this theoretical dichotomy about everything,” he said. - Sunday Independent