The BLA is aware of the wide spread criticism directed at the election process of the LPC conducted under the auspices of the National Forum on the Legal Profession (NF). BLA is deeply embarrassed by people like Mark Oppenheimer who champion, in the name of constitutionality, the perpetual exclusion of women and black legal practitioners in the governing structures of the legal profession. BLA would like to inform the public of the context which informed the rationale of the election procedure of the LPC. It must be recorded on the onset that the said election procedure of the LPC was approved by the National Assembly.
The legal profession is the only sector in the Republic of South Africa still to undergo a systematic process of transformation informed by an Act of Parliament underpinning the values of our Constitution. The Provincial Law Societies and the General Council of the Bar (GCB), the bodies which are currently regulating the legal profession, are all symbols of apartheid. These symbols are governed by the pre democratic era Acts, being the Admission of Advocates Act 74 of 1964 and the Attorneys Act 53 of 1979. The intention of the Legal Practice Act 28 of 2014 (LPA) is to repeal these Acts and abolish all structures associated them. On this point alone it must be understood that the apartheid beneficiaries will not allow the transformation process to proceed unhindered.
Until 1998 when the BLA, the National Association of Democratic Lawyers (NADEL) and the Advocates for Transformation (AFT) entered the legal profession’s regulation space, its governance was in the hands of white males, hence it was once called the “white boys club”. The coming in of BLA, NADEL and AFT guaranteed equal representation of black and white in the governing structures of the profession. The LPA is here to develop on the gains of 1998, not to undo them. For instance, in 1997, a Council of 15 members of Association of Law Societies (ALS), the predecessor of the LSSA only had one woman and two black men when 12 were white males. Today the Council of the LSSA consists of 24 members made up of 17 men and 3 women (10 white men, 3 black women and 7 black men). White women are not represented in this Council. Council of the Law Society of the Northern Provinces (LSNP) – the biggest provincial law society with more than 15 000 attorneys – in 1997 consisted of 12 members being 11 men and one woman (9 white men, 2 black men and 1 white woman). In 2018 this Council is made up of 24 members. Its composition is 5 women and 19 men (2 white women, 3 black women, 9 white men and 10 black men). The picture is the same in the Attorneys Fidelity Fund as its board of 16 members is made up of 2 black women when black and white men are represented by 7 members apiece. This sorry state of affairs permeates throughout all the provincial law societies in the country. Majority of women in the governing structures of the profession are representatives of the BLA.
The legislature was aware of the bleak picture in the governance of the legal profession when it enacted the LPA that, when constituting the Council, one of the factors to be considered was the racial and gender composition of South Africa. It legislated as such because it knew that the demographic representation in the profession is about 60% white, 40% black, 67% men and 33% women. Black and women legal practitioners are in the minority not out of their own making. This is the design of apartheid which the LPA aims to redress. Transformation of the legal profession will only happen at the required pace if it is driven by the previously marginalised members of the society. If the statistics of the legal practitioners is anything to go by the “one man one vote” approach proposed by Mark Oppenheimer will perpetuate domination of the governance of the profession by white males for a number of years to come.
The constitutional argument by people like Oppenheimer and Paul Hoffmann is not raised in order to advance the interest of black and women legal practitioners. Oppenheimer sounds as if he is on the side of black women and all women in general. He is not. He is not comfortable with 50% of women to serve in the LPC. He and other people of the same thinking as him want to use the LPC elections as a vehicle to deliver us to the pre 1998 legal profession governance state in terms of which the presence of black and women practitioners will be negligible.
Oppenheimer must know that the representation threshold (which he unfortunately calls “rigid quotas”) was included as a compromise and to protect the interests of white males and no one else. If the demographics of South Africa were to be strictly applied, blacks and women were to constitute more than 90% and 51% respectively of the elected members of the LPC. At the NF discussions BLA was of the view that composition of the 16 elected councillors of the LPC must be couched as follows, “at least 50% of the members must be women and at least 70% members must be black”, this proposition met fierce opposition from white males who cared much for their preservation than transforming the governance of the legal profession. We believe this is what Oppenheimer would want to be done in next elections.
People like Oppenheimer and Hoffmann must tell the South African public what they did when the Councils of the law societies and GCB were “white boys clubs”. They must stop acting like prophets of doom. They chose not to comment on the proposed regulations when they were still under construction. It is opportunistic of them to try to sound intelligent in the ears of the public when they shied away from engaging their peers when the regulations were being made. BLA notes that it is easy to be an “armchair critic” than to offer workable and sustainable solutions.
BLA is unashamed and unapologetic of the prescribed composition of the LPC and will pull its full support behind the elected members of the LPC. The LPC needs support of all legal practitioners and public at large in order for it to transform the legal profession for the benefit of all, including the benefactors and beneficiaries of the apartheid order.
President of the Black Lawyers Association
Cell: 082 369 2017
04 October 2018