Quota blow to black woman advocate challenged by bar

● The appointment of a black man instead of a black woman to the new legal profession body, the Legal Practice Council (LPC), has pitted the Cape Bar Council against justice minister Ronald Lamola.

The saga is playing out in the Equality Court, sitting in the high court in Cape Town, where the Cape Bar is suing for unfair discrimination and wants advocate Andre Paries to be replaced by advocate Ncumisa Mayosi.

Lamola, the LPC and its provincial structure are opposing the application.

According to the complaint lodged by advocate Andrew Breitenbach, the chair of the Cape Bar, it wants to “urgently address a serious irregularity” that arose from the LPC election process in March.

“It relates to the failure to declare elected … [Mayosi], an esteemed advocate and a black woman, due to the unlawful capping of the number of black women advocates who may serve on the provincial council,” Breitenbach said in an affidavit.

“She received far more votes than … [Paries], who was declared elected in her stead.

“[The Cape Bar] seeks to have that irregularity corrected by the court.”

In his court papers, Breitenbach said the Cape Bar wanted the “provisions of the rules and regulations which led to the non-election of Ms Mayosi declared unlawful and invalid”.

He said Mayosi was excluded because of the “LPC’s application of the inflexible racial and gender quotas in the regulations and rules”.

“The LPC considered that together these quota provisions dictate that, regardless of the number of votes for black or female candidates, the contingent of advocates on the provincial council [which is made up of attorneys and advocates] has to consist in all cases of one black female, one black male, one white female and one white male.”

The bar council has also lodged a high court application under the Promotion of Administration of Justice Act.

Breitenbach said both cases were based on law rather than “personal consideration or preferences”.

“The Cape Bar brings this matter in its own name and interest, as well as in the interest of its members and in the public interest, given the implications of the impugned rules and regulations for the composition of the provincial council and consequently for the regulation of the legal profession in the Western Cape,” he said.

The LPC “exercises jurisdiction over all legal practitioners” and is responsible for the establishment of the provincial structures.

“This matter requires resolution on an expedited basis,” Breitenbach said.

“The provincial council is an important body with wide-ranging powers. Its decisions have profound impact for all of the Cape Bar’s members, and all legal practitioners.”

Lamola’s replying affidavit urged the court to dismiss the application.

“Inclusion in the leadership structures of the legal profession is the beginning, not the end, of real and sustainable transformation of the legal profession,” he said.

“It is the means that I hope will mark the end of the deeply upsetting and uprooting entrenched racism and undue prejudices against women and black people.”

Paries’s attorney, Cesare Baartman, said he was lawfully elected under the rules and regulations set out in the Legal Practice Act, which were “aimed at transforming the legal profession”.

Sthembiso Mnisi, the LPC’s communications manager, said: “We are … awaiting the court’s decision on the matter.”