Dismissal of biased briefing case ‘a lost opportunity’
THE decision by the Competition Tribunal to dismiss his case in which he claimed racial bias in briefing patterns, was a “missed opportunity” to correct historical imbalances, Cape Town-based advocate Simba Chitando said yesterday. Such imbalances exclude black people from practising law without prejudice, he said.
But the judgment brought a triumph of sorts to the junior advocate as the tribunal noted in its ruling that the “skewed” briefing patterns “require remedial action”.
Mr Chitando last month lodged an application with the tribunal seeking an order to include him in the pool of junior advocates being briefed on maritime matters. He accused three silks, Michael Fitzgerald, Russel MacWilliam and Michael Wragge, all white — of using their influence in the Maritime Law Association and the market for shipping law briefs to keep a small group of “privileged, predominantly white junior advocates” in practice, while excluding black members.
Mr Chitando also lodged a complaint with the tribunal against law firms Shepstone Wylie and Norton Rose, asking that the firms be restrained from excluding him from briefs in shipping law matters.
In its ruling, the tribunal said a notable feature of the pattern of briefing was the absence of “African lawyers, in particular African advocates”, as recipients of such instruc- tions. “It would appear from the evidence in this case that at least at the Cape bar no African advocate has been briefed in such matters at the time this application was brought. That this is an unhealthy state of affairs that requires remedial action is self-evident.
“Unfortunately it is not an issue that can be remedied through the act. In our view the applicant stands a better chance in the Equality Court, which has jurisdiction over such issues,” the tribunal said.
The case was the latest concerning an apparent lack of transformation in the legal field. In July, Chief Justice Mogoeng Mogoeng called for instructions and brief allocations to be seriously considered with regard to race and gender. Justice Mogoeng bemoaned the lack of debate concerning “conservative apartheidstyle instruction-giving and briefing patterns” and warned against the protection of white male privilege at the expense of transformation.
Mr Chitando said he was concerned with the ruling as the relief he sought would have a harmless effect on the profession. “I applied for an order that created a procompetitive environment for all lawyers with shipping skills, irrespective of their race and or nationality. Nobody believes that these firms do not make agreements between them on who is getting shipping briefs,” he said.
He said he was one of the few black advocate members of the Maritime Law Association who has not been briefed on a shipping matter despite having a postgraduate diploma in Maritime Law. “The struggle I endure is clearly not my own but a national crisis in the South African legal system.”
He said he would consider all his options, including an appeal.
Black Lawyers Association president Busani Mabunda said the issues Mr Chitando highlighted in his case were not exclusive to maritime law. “It’s a sad state of affairs which sees white companies being reluctant to change. The problems he spoke about are encountered by black practitioners across the spectrum…” Mr Mabunda said the three senior counsel “should be feeling shameful for having defended the matter itself”.