It's women vs the State in the legal profession

Women candidate judges and senior counsel are being left to twist in the wind by the justice ministry, the Judicial Service Commission and the bar, despite the professed commitment of these bodies to transform the bench.

Nineteen years into our democracy, only nine out of South Africa's 473 senior counsel - from whose ranks candidate judges are selected - are black women. Moreover, only four of these are African. This is less than 1% of the total.

White women have not fared much better, with only 20 practising as senior counsel in South Africa.

This shocking failure by the judicial authorities has been overshadowed by a furious row in the JSC over its apparent failure to appoint talented white males to the bench.

The current crop of African women are:

• Kgomotso Moroka, who described the statistic as "utterly depressing";
• Lesego Matlhodi Montsho, who was conferred senior counsel status two years ago;
• Lindi Nkosi-Thomas of the Johannesburg bar; and
• Judge Letty Molopa-Sethosa, who this month was passed over for the post of deputy judge president of the high courts of Johannesburg and Pretoria - in favour of her male colleague, Judge Aubrey Ledwaba.

Asked this week about the continued lack of gender transformation in the legal profession, the JSC blamed the government for its lack of support for women.

The Justice Department, in turn, accused "exclusive clubs" that made it difficult for black and female advocates to move up the ladder.

A stinging paper prepared last month by the University of Cape Town's democratic governance and rights unit lambastes the JSC and the government for what it terms the "slow pace of gender transformation of the judiciary".

It further laments that "only 28% of judicial officers nationwide were women" by October 2012.

"In 1994, there was only one woman on the bench and though the number has risen to 69 women, it still means that, on average, only three to four women have been appointed yearly to the bench."

The paper further accuses the JSC of overlooking "fit and proper women candidates" for appointment.

When asked about the lack of upward mobility for women, Dumisa Ntsebeza, spokesman for the JSC, said this week that the government was failing black and female advocates by not giving them enough work to allow them to get experience and be considered for appointment as silks, or senior counsel.

"It's a scandal that we should have only four black female silks in this day and age.

"There is no political will on the part of our government. You can't ask private industry to start briefing us, but you can insist [that] the state law adviser briefs black advocates," he said.

Recent high-profile cases involving black clients show an inevitable preference for white male senior counsel.

• When President Jacob Zuma was charged with rape, he sought the services of Kemp J Kemp to defend him in court. Kemp also stood by him during his corruption charges;
• Former national police commissioner Jackie Selebi, charged with corruption, retained the services of Jaap Cilliers;
• Anti-apartheid cleric Allan Boesak used Mike Maritz to defend him against fraud charges; and

In the e-toll legal challenge, Sanral sought the services of David Unterhalter and the National Treasury used Jeremy Gauntlett in its Constitutional Court battle with the Opposition to Urban Tolling Alliance.

The justice department's head of policy, Jacob Skosana, said the Legal Practice Bill - which proposes a radical overhaul of the governance of the legal profession - would address this problem by creating one council for lawyers.

"Access to the profession is controlled by those who are within the club and whether you pass exams or not, there are people who decide who gets admitted [as an SC].

"So those things are going to be revised completely through the bill ... the training, the pupilage, the articleship so that we open up access," said Skosana.

He said Justice Minister Jeff Radebe had also instructed the state law adviser and government departments to give at least 65% of the government's legal work to lawyers from previously disadvantaged backgrounds.

Said Moroka, one of the four African women senior counsel: "There are very talented young women on the bar but they don't have work; they leave and join big firms. It is absolutely and utterly depressing."

She said young, female advocates were leaving private practice and joining multinational firms because they were not receiving work from law firms or from the government.

Moroka, who has been a senior counsel since 2004, said her clients were "100% black" - either private individuals or black-owned companies.

Legal expert Pierre de Vos said the status quo would remain until the legal profession was radically overhauled.

"The way in which the profession is structured, requiring advocates to be briefed by attorneys and requiring advocates to first do a pupilage for a year when they don't even get paid - all these things make it very difficult for people to get ahead in the profession unless they are supported by some sort of network, an old boys' network. So unless you radically address this, it's going to perpetuate the racial composition of the advocates' profession at every level, but especially at a senior level," said De Vos.

Retired Constitutional Court Justice Johann Kriegler, whose advocacy group Freedom Under Law has threatened to take the JSC to court to challenge its recommendation of candidates for judicial appointments, said the statistics on silks reflected the racial and gender imbalances prevalent in South Africa as a result of the oppression of blacks and women.

"Lawyers across the world are elite. They normally come from the upper middle-class. Our commerce, mining and agriculture are still dominated by white males. So when white males want legal representation, they go to other white males," he said.

Kriegler urged experienced silks to take young black and female advocates under their wings and pay them from their own pockets to help them get the exposure and experience needed to stand on their own.