Transformation in legal sector under scrutiny

Lawyers face off in fight over representation

TRANSFORMATION in the country’s legal profession has come under the spotlight with the Cape Bar, the Justice and Correctional Services Minister, the Western Cape Legal Practice Council and the Black Lawyers Association squaring off in the Western Cape High Court.

It relates to arguments on having a fair number of black representatives and women on the Provincial Legal Practice Council (LPC).

The provincial LPC is a statutory body that regulates and exercises jurisdiction over all legal practitioners and candidate legal practitioners.

The Cape Bar has brought an application against Justice and Correctional Services Minister Ronald Lamola for him “to address a serious irregularity which has arisen in the recent election of the members of the provincial council”.

They argue that a black male advocate was elected for the provincial LPC, over one of their members, a black female advocate.

“She received far more votes than Mr Paries, who was declared elected instead.

“The applicant (Cape Bar) seeks to have the irregularity corrected by the court. The applicant also seeks to have the provisions of the rules and regulations, which led to the non-election of Ms Mayosi, declared unlawful and invalid,” their papers say.

The LPC has 10 members, and the quota provision dictates that regardless of the number of votes for black or female candidates, the contingent of advocates on the LPC has to consist in all cases of one black female, one black male, one white female and a white male.

In his responding affidavit, Lamola agreed that transformation of the legal profession remained a massive challenge.

“In a 2017/18 study conducted by the Law Society, it is clear that the legal profession does not represent the diversity of the South African society,” he said.

He also noted that there were 28 120 attorneys and only 10 309 were women.

The 6 729 attorneys in the Western Cape, they were predominantly white, with only 2 498 attorneys of colour, Lamola said.

“As the statistics have shown, the legal profession remains the preserve of white men.

“Black people in general are a minority and black women in particular are an even smaller minority. The regulations seek to assure representation of a minority group in the legal profession’s governing structures,” his affidavit read.

He said the regulations were a deliberate attempt to “fundamentally change an untransformed profession”.

“If left unregulated and without intervention of legislation, white legal practitioners will continue to choose each other and the governance of the Provincial Council and legal practitioners will continue to remain in the hands of a dominant group.”

He said it was “regrettable” that advocate Mayosi fell within the “hard case”.

“The fact that the regulations have created disadvantage in the exceptional case does not undermine the constitutionality of the entire scheme. The reality is a black woman was elected on to the provincial council and that black woman had the highest number of votes.

“Similarly, a black man was elected on to the provincial council and that black man had the highest votes. The regulation must be measured by whether an overwhelming majority of black legal professionals will benefit, not whether an exceptional case is disadvantaged,” Lamola said.

He said the relief sought by the Cape Bar was not merited as their preferred candidate did not acquire the requisite votes and another equally deserving, disadvantaged male received a seat.

The Black Lawyers Association has intervened in the court case.

It argues that the Legal Practice Act stated that the demographics of the country should be reflected in the number of legal professionals that practice law and be represented on the legal practice council.

They charged that 75% of the Cape Bar was white and the number enabled them to take three out of four seats on the LPC already, which meant adding Mayosi would give them total autonomy.

The association has thrown its weight behind the appointment of advocate Mayosi.

However, they said: “The exclusion of Paries, the only elected black male advocate, is both irrational and discriminatory.

“The fact that he is not a member of the historic power structure aligns his appointment with the transformation purpose of the Act.

“The purpose of the Act could only be rationally achieved if the representation by advocates in schedule 1b was constituted by three black advocates and one white advocate, subject only to the requirement that at least two of the four advocates should be women,” argued the association.

The matter continues today.