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Wake-up call for black lawyers

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Deputy Chief Justice Dikgang Moseneke
Deputy Chief Justice Dikgang Moseneke

Calling for transformation in the legal profession without changing the power relations in the private sector could turn out to be “a jolly waste of time”, according to Deputy Chief Justice Dikgang Moseneke.

Delivering the inaugural Godfrey Mokgonane Pitje Memorial Lecture at Constitution Hill, Moseneke said the transformation of the legal profession would not happen at the behest of the private sector, which continued to brief according to its interests and prejudices.

The lecture, organised by the Black Lawyers’ Association, was in honour of one of South Africa’s most distinguished lawyers. A founder member and third president of the ANC Youth League, Pitje practised law alongside Nelson Mandela, Oliver Tambo and Walter Sisulu. During the apartheid years he represented many liberation movement stalwarts. He also represented 15-year-old Moseneke when he stood trial for conspiracy to overthrow the state in 1963.

Speaking just days before a row broke out in the legal profession over the virtual absence of blacks among the more than 40 lawyers in the landmark silicosis case, Moseneke said briefing patterns would always be dictated by “socioeconomic structure of a country” and “power relations within an economy”.

The row was sparked by the fact that not only have the mining companies retained white lawyers but the law firm representing the mine workers has also decided to brief only white advocates.

Moseneke’s utterances echo those of legal organisations who have been agitating for a change in briefing patterns by both the private sector and the government.

“The dominant class dishes out patronage as it wishes and chooses. Briefing patterns of corporate work will always be reflective of class, gender and race of the dominant decision makers ... They are informed by both the financial interest and prejudices of the moneyed class. Often all this boils down to the use of legal services of those with whom they share race, class and gender.”

Moseneke had harsh words for the state, saying though this “massive consumer of legal services” could heavily influence the distribution of legal work and thus “spawn highly skilled and competent practitioners”, it chose not to.

“All I hear is the state’s monotonous demand for transformation of the profession and the judiciary. Where would the race, class and gender diversity of the profession and the Bench come from when the state behaves as it does?”

He said he could count the appearances of black counsel in the Constitutional Court on one hand. “Why is this so? Where is the benevolent, caring state?”

He said the different spheres of government always “opt for expediency” when they chose lawyers to brief.

“They allow their historical complex to get the better of them and opt for practitioners who appear accomplished and do not seemingly need to be affirmed.”

What made matters worse was that social movements and activist groupings fell into the same trap, he said.

Quoting late black consciousness leader Steve Biko’s famous “black man you are on your own” statement, Moseneke suggested it may be time “to go back to the professional trenches” to achieve the needed change.

. Meanwhile some of the country’s top black advocates launched an attack on Richard Spoor, the lawyer handling the mine workers’ lawsuit, for saying there were no black advocates who fitted the bill for this case.

In a joint statement, the 13 advocates accuse Spoor of insulting black lawyers by making “disparaging references and unfounded suggestions of incompetence and other such generalisations about us”.

“To suggest, as Mr Spoor does, that black advocates do not generally possess the skills, the commitment, the intelligence or ability of his white colleagues smacks of the Verwoerdian philosophy that most South Africans have long rejected,” they said.

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