Business Day

Dismissal of biased briefing case ‘a lost opportunit­y’

- COLLEEN GOKO Staff Writer gokoc@bdlive.co.za

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”.

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