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THE BIG READ: Tipped scales persist

Siyabonga Mahlangu | 2013-05-06 00:12:29.0
The potential of the state attorney to transform the legal profession should not be ignored

As South Africa approaches 20 years of freedom from formal apartheid and colonial repression, three reports - one from a statutory body and two from non-governmental agencies - have given us a sober reminder of how much more has to be done to achieve true freedom.

The Commission for Employment Equity reminds us, in its latest annual report, how difficult blacks, especially women, still find it to climb the corporate ladder and own meaningful stakes in listed companies two decades after the end of statutory apartheid.

Most recently, the Institute of Directors showed that those South Africans who serve as directors of state-owned companies, by far the most transformed tier of our economy, are under-performing compared with their peers in the private sector.

And, as a trained lawyer, I was depressed to read the shockingly low number of female counsels, especially black ones, who have attained the status of silk.

My humble input is about ways in which the government could intervene positively to increase the pool of black and female counsels.

I'm not exonerating commerce and private capital as they, too, play a major role in maintaining the skewed patterns of development in the legal profession.

Having graduated from the ranks of private commercial practice myself, I have watched, for years, as large corporates, mining houses and banks instruct, almost exclusively, white lawyers in established law firms for their mainstream requirements in corporate law, mergers and acquisitions, project and structured finance, among other things.

In turn, the white established law firms would predominantly brief white counsels in litigation matters. Although there might be exceptions, this generally holds true.

It is also true that the government is a major consumer of legal services. It does so through the office of the state attorney, arguably the largest and busiest litigation law firm in the country. The matters dealt with by this office are complex and challenging. They are the sort you need to produce the finest lawyers.

However, interacting with attorneys from this office both as an opposition attorney or client, one is left with the distinct impression that their challenges are immense.

The impression is that the office is not adequately staffed in relation to its case load, resulting in the attorneys concerned being unable to discharge their functions competently compared with those in private practice.

One gets the impression that the office of the state attorney does not have the technology and resources, such as a library, legal forms, ICT systems and superior administrative support, that you would find in a large commercial law firm. Under such circumstances, training must be one of the first casualties.

The overall impression of the office of the state attorney is that it is no more than an address or a post box by client departments to pass briefs to counsel.

The transformation of the legal profession cannot ignore the potential of the office of the state attorney. If it is overhauled into a high-calibre state litigation machinery, it can attract, train and house some of the much-needed female and black lawyers who can, in time, be elevated to the bench. In any case, the transformation of this office is necessary if the state is to be adequately represented.

The state attorney, with its monopoly of briefs from government litigation, remains crucial in the transformation of the bar.

A methodical and deliberate approach to briefs might help in cultivating advocates who may in due course be eligible for judicial consideration and appointment.

If press reports are correct that there are only four black female silks and fewer than 30 female silks, there should be no reason why these advocates are not extremely busy and involved in cutting-edge matters.

The state attorney's office should be deliberate in its efforts to create experts in areas of law in which we have fewer experts. In doing so, the state attorney will ensure that women and black counsels have an opportunity to compete.

The regulatory state agencies and parastatals command massive budgets for legal expenses. This was shown by the bold measures that advocate Menzi Simelane took in empowering black attorneys and counsels in competition law during his tenure as head of the Competition Commission.

There is a tendency among parastatals and regulatory bodies to ignore black-owned firms, and even black attorneys in traditionally white law firms, and reinforce the skewed patterns of distribution in their briefs. In extreme displays of anti-transformation, these entities would go so far as to ignore South African law firms and brief international ones, claiming that there is a paucity of skills in a particular area of law. Though that may be so, attempts are not made to localise the skills.

There are sufficient parastatals and regulatory agencies to promote the development of female and black lawyers. However, this will happen only when parastatals fully embrace their developmental mandate and are not preoccupied solely with their commercial demands.

It is precisely for reasons such as transformation and democratisation of our economy that you would not leave everything to the dictates of the market in a mixed economy. Boards of parastatals should cascade the requirement for transformation into the performance indicators of the CEOs and those dispensing briefs.

In this way empowerment of a black and female lawyer would be at the top of the agenda and not the after-thought that it currently is.

  • Mahlangu, an attorney and special adviser to the minister of public enterprises, writes in his personal capacity

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