Black advocates cite racism as they feel the financial pinch

10 May 2015 - 02:00 By PHILANI NOMBEMBE and AARTI NARSEE
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Adv Vincent Maleka SC.
Adv Vincent Maleka SC.
Image: Gallo Images / Foto24 / Deaan Vivier

Advocate Msingathi Mlisana is often seen arguing complex cases in the High Court in Cape Town, but he recently appeared in the same court defending an eviction order for failing to pay rent for his chambers.

Speaking this week, Mlisana said he felt humiliated at having to share his dire financial situation in an open court. He blamed his financial woes on "briefing patterns that are in favour" of his "white colleagues".

The monthly rental for his chambers is about R7000. This includes floor dues that go towards coffee, stationery and paying staff such as receptionists.

The Land and Agricultural Bank, which owns Bank Chambers on Longmarket Street, applied for a court order to evict Mlisana on March 4.

Mlisana also blamed the Cape Bar Council for not defending him.

"The reason we find ourselves in this predicament is that we don't get work and there is no support from the bar council," he said.

"Transformation is not happening, African members of the Cape Bar are discriminated against."

In his opposition to the action, Mlisana slammed the council for not helping him recover money from attorneys. He said advocates were expected to pay rent within 30 days whereas attorneys only have to pay within "three months".

Mlisana said "skewed" briefing patterns deprived black advocates of crucial legal skills.

Advocate Chumani Giyose's Cape Bar Council membership was terminated recently after he failed to pay his rent on time.

"I got expensive chambers and I didn't get work for four months, so I defaulted on floor dues and bar dues. The bar council knew who owed me but they booted me. But without a shadow of doubt, if work was shared equitably, we would not be in this situation," he said.

Mlisana's lament about the lack of transformation in the legal fraternity is a familiar one, often raised by black senior counsel.

A group of advocates protested outside parliament for 30 days last month to urge the government to "take bold steps to accelerate, among others, the gender and racial transformation of the legal profession".

The General Council of the Bar disputed claims that there was reluctance to brief black advocates.

"Many of those who are today household names were heavily briefed at the bar during their years of practice. The late president of the Supreme Court of Appeal, Ismail Mahomed, is one example. The late chief justice and head of the Constitutional Court, Pius Langa, is another. The current deputy chief justice, Dikgang Moseneke, is a third ... there are many senior and junior black counsel who are heavily briefed by a wide spectrum of briefing attorneys," the bar said.


But advocate Pearl Mathibela, who championed the April protest, said the "racial and gender composition of the Cape Bar speaks volumes".

She said more than 77% of the Cape Bar Council's 452 members were white.

"There is also a practice at the Cape Town State Attorney's office where black counsel's invoices, in particular, are challenged on some frivolous grounds, thus further delaying payments," said Mathibela.

Justice Department spokesman Mthunzi Mhaga said the work allocated to black lawyers had grown since the department launched its policy on the transformation of the state's legal services.

Advocate Vincent Maleka SC, one of the South Africa's top advocates, said unfair briefing patterns affected the whole country. He said reasons for not briefing black counsel ranged from "legitimate concerns to pretence".


"The pretence is that black lawyers don't have enough experience or skill to do complicated cases. That is a pretentious justification for not engaging black lawyers generally. I am not saying it applies across the board. The legitimate range of reasons would include the mere desire by a client not to expose his or her client to someone who they don't have trust or confidence in."

Maleka said lack of work affected black advocates financially and professionally. He said the eviction of advocates from their chambers for failure to pay rent was not unique to Cape Town.

"Because you don't have access to work, you won't be able to ... sharpen your skill. For example, if you want to become a judge, it is going to be difficult to justify your suitability."

Johannesburg attorney Peter Tshisevhe said the transformation of the attorneys profession was also "extremely slow".

He said that if a client briefed a black lawyer on a matter the black lawyer could not handle properly, all black lawyers were seen in the same light. But if a white lawyer made the same mistake, there was an "acceptable explanation for it".

The state and some politicians tended to reserve big matters for white lawyers, Tshisevhe said.

For example, President Jacob Zuma, in his travails with the law, has always kept a white senior counsel by his side.

And when former police commissioner Jackie Selebi fought his corruption case in the High Court in Johannesburg in 2010, he hired a white advocate, Jaap Cilliers SC.

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