Keynote Address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP at the Black Lawyers Association (BLA) 40th Anniversary Celebrations and Annual General Meeting, held at Ilanga Estate, Frans Kleynhans Rd, Groenvlei, Bloemfontein, 21 October 2017
Members of the judiciary
President of the Black Lawyers Association, Mr Lutendo Sigogo
Deputy President of BLA, Mr Mashudu Kutama and members of the Exco
President of the BLA Student Chapter, Ms Pearl Biyela
Members of BLA
Ladies and gentlemen
Late President Nelson Mandela famously said “Remember to celebrate milestones as you prepare for the road ahead.”
I am extremely honoured and privileged to be here and to be able to share with BLA in celebrating this remarkable milestone.
And I am equally honoured to be here as BLA prepares for the road ahead.
BLA was established in October 1977 when Godfrey Pitje became its founding president.
In reading about the illustrious history of BLA, I was struck in particular by the words of former Deputy Chief Justice Moseneke when he speaks of the formation of BLA and how it assisted him in being admitted as an attorney.
“In 1977, Mr Pitje became a founding member of the Black Lawyers Association, initially called the Black Lawyers Discussion Group. The establishment of the Discussion Group was sparked by the obstacles that black lawyers were faced with daily in the legal field during Apartheid. …
Black lawyers moved around daily with their admission certificates, much like pass books. Magistrates simply did not believe that they were attorneys. They had to prove their status. …
And it was not uncommon for black lawyers to lose a case not on performance or merit, but because of the deep racial prejudice that pervaded the judiciary of the time. …
In the same year that the Discussion Group was formed, it assisted me with my application to be admitted as an attorney, which had been opposed by the law society. We took this matter to court and prevailed, and I was enrolled as an attorney in 1978. At this point, the Discussion Group changed its name and became the Black Lawyers Association.”
The obstacles that black lawyers faced, which former Deputy Chief Justice Moseneke mentions, were plenty.
In his book about the life of Pixley ka Seme, Bongani Ngqulunga also writes about Alfred Mangena who, in 1910, was to become the first black person to be admitted as an attorney by a South African court.
Mangena was born in the Midlands of KZN and went on to study law at Lincoln's Inn in London.
Upon his return to South Africa he applied to the Transvaal Provincial Division for admission to practise as an attorney.
However, the Transvaal Law Society fiercely opposed Mangena's application and stated in its affidavit that there was no possibility that a black attorney would find legal work from members of the white population in the Transvaal.
The Court nonetheless ruled that Mr Mangena was entitled to be admitted as an attorney, arguing that where "an applicant possessed the statutory qualifications the Court would not be justified in refusing to admit him merely because he belonged to one of the native races" and, said the Court, if it was not desirable for black people to be admitted as attorneys, it was not for the courts to make that call. That responsibility fell with the legislature.
Mangena’s admission paved the way for Pixley ka Seme to apply for admission. And the Law Society did not oppose this time around, making him the second Black person to be admitted as an attorney in South Africa.
In an article that appeared in Drum in July 1953 Selope Thema writes more about Seme and the conditions he encountered when he returned to South Africa in 1910.
He writes that Seme’s “Zulu blood boiled as he saw the injustices and humiliation to which the African people were subjected.”
Describing these conditions he says:
“In those days the black man was treated as a beast of burden. He was knocked and kicked about with impunity. In the magistrate’s courts his voice was hardly heard and his evidence hardly believed.”
They were, as Mandela would later say, black men in a white man’s court.
It is from these conditions and circumstances that BLA grew.
BLA’s contribution to our transformed justice system and our transformed bench cannot be denied.
We know that there are still obstacles that black lawyers have to overcome today.
From finding the financial means to study law, to finding articles of clerkship, or finding the means to support themselves whilst doing pupillage, it is not an easy path for any law student and even more so for Black law students.
Other concerns were recently raised by members of BLA during its march to the Union Buildings on 14 July this year.
As you know, amongst the issues raised by BLA was dissatisfaction over the lack of representation of black lawyers and women legal practitioners in the State’s briefing patterns and the distribution of legal work.
I can assure you that we take the concerns raised by BLA very seriously and our Department has been tasked by the President to look into the challenges raised by the association.
A lack of transformation in the legal profession impacts on briefing patterns.
As a starting point, we need to look at the legal profession as a whole: There are 24 000 practising attorneys in the country, of which nearly 60% are white. The advocates profession is even less transformed – there are 2800 advocates and 65% are white.
We are indeed concerned about the lack of progress of transformation in the legal profession and its impact on briefing patterns.
We are encouraging all arms of state and all spheres of government to prioritise and empower black lawyers, particularly women.
The legal fraternity is one of the key sectors that we are targeting as part of government’s radical socio-economic transformation programme in order to correct the uneven and unequal racial and gender representation in key sectors of our society and in the economy.
The Law Society of South Africa hosted a summit on the distribution of work to attorneys and briefing patterns of advocates on 31 March 2016 and an Action Group on Briefing Patterns in the Legal Profession was established after the Summit.
The Action Group, which has been meeting on a monthly basis, comprises attorneys, advocates and the Department of Justice and Constitutional Development.
The Action Group has, amongst others, sought and obtained the assistance of Judges President of various divisions of the High Courts to document statistics on legal practitioners who appear in their courts in both civil and criminal matters.
At the National Efficiency Enhancement Committee meeting chaired by Chief Justice Mogoeng Mogoeng on 30 March 2017, the Chief Justice expressed his support for the initiative.
The Chief Justice said that bias must be overcome and clients must be encouraged to change briefing patterns. He added that, even small achievements must be celebrated.
That is why all efforts to change are necessary.
The Action Group has also drafted a Procurement Protocol that has been approved by the attorneys’ and advocates’ professions. The formal signing ceremony of the Procurement Protocol took place in June this year.
Other initiatives are also being taken, such as that of the Johannesburg Bar Council. The advocates of the Johannesburg Bar have adopted a resolution that will see members face charges of unprofessional conduct if a team of three or more advocates does not include a black advocate.
The resolution also seeks to advance the cause of black women, placing a responsibility on lead counsel to ‘take appropriate steps’ to ensure that black women are identified and given special preference’.
The Chairperson of the Johannesburg Bar Council rightly said the legal profession ought properly to take the lead in promoting and fulfilling the ideals of the Constitution.
In April this year, the Cape Bar Council advised that regular meetings between the Cape Bar and the legal firms would be held to meaningfully address the problem of skewed and inequitable briefing patterns.
The programme would play a key role in motivating those responsible for briefing decisions to review briefing patterns and identify and address any bias which stood in the way of equitable briefing patterns.
At the end of each financial year, attorneys’ firms would provide data on the number, nature and value of briefs according to race, gender and seniority to the bar Council.
But we must do more.
Most of government’s briefs are already going to PDI practitioners, so where are the private sector briefs going?
What are the law societies doing to compel law firms across the country to brief black counsel?
And are there perhaps other, more creative, ways in which we can open up access to the legal profession – perhaps by increased internships for law students, or finding ways to support deserving Black candidate attorneys and pupils whilst doing their articles or pupillage, or even sponsoring the winners of our annual National Schools Moot Court Competition to study law?
Government has made significant progress in respect of briefing patterns and we have met the targets set - both in the number and in the value – in respect of government briefs going to PDI practitioners.
Despite the legal profession being overwhelmingly white, 79% of the value of government briefs was paid to PDIs.1
Of the total number of 5296 government briefs given, 4872 went to the PDI practitioners – that’s 91% of the number of briefs.
We are also releasing the statistics on how many lawyers were briefed, and the racial demographics of those lawyers, on our Department of Justice and Constitutional Development website, so it’s for public knowledge.
We wanted the fees these lawyers charged to be released as well, but there is some resistance from the profession.
If one looks, for example, at the month of September, of the 12 State Attorney’s offices the State Attorney in Port Elizabeth allocated the most briefs for this particular month – a total of 106.
Of the 106 briefs, 67 briefs went to African practitioners – that’s 63%. Of the other briefs allocated, 19 went to Indian practitioners, 14 to white practitioners and 6 to Coloured practitioners, bringing the total PDI allocation 86% for the month.
This is no small feat.
We are not yet where we need to be, but significant strides have been made and we can confidently say that, even a mere five years ago, the picture would have looked vastly different.
Much of the progress made is thanks to the leadership and ongoing advocacy of BLA and others.
Writing in De Rebus earlier in the year, the Presidnet of BLA, Mr Sigogo, celebrated the founding members of BLA.
Among them, he says, were JN Madikizela, VLA Bekwa, GSS Maluleke, KS Kunene, SKS Makhambeni, WV Ngxekisa, TT Mokone, HT Netshifhefhe, WL Seriti, MA Ndlovu, D Nkadimeng, DM Finca, BP Matswiki, SJ Monyatsi, and DJSS Moshidi.
Most importantly, he says:
“The founders of the BLA came from different political backgrounds and ideologies. They were brought together by one bond, that black lawyers suffered discrimination and hardship in the hands of the Apartheid government. It made no difference to them whether one was a member of the African National Congress, Azanian People’s Organisation, Pan Africanist Congress or South African Communist Party.
They were never partisan, they stood for the interest of black lawyers and the black community. They wanted freedom for all and the respect of the rule of law. This has been the foundation of the BLA and it continues as such.”
This is the sterling legacy of BLA.
I’ve noted that the theme for the 40 year celebrations is “40 years of struggle and professional service to the marginalised – where to from here?”
From here, I believe, BLA will continue to be instrumental in building a justice system that serves all our people, especially the poor and the marginalised.
It will, no doubt, continue to build an accessible and affordable legal profession that ensures quality legal services to all in our country.
And it will continue to transform the bench and ensure that our courts are accessible, are respected and reflect the people of our country.
Greek orator and statesman, Pericles, said that - “What you leave behind is not what is engraved in stone monuments, but what is woven into the lives of others.”
This is the legacy of BLA. Let this legacy live on.
If the founding members of BLA were here, they would have reason to be proud.
On behalf of government I want to salute BLA for this incredible contribution. And we look forward in partnering with you for many more years to come.
May BLA go from strength to strength.
I thank you.