Rédaction Africa Links 24 with Dianne Hawker
Published on 2024-03-11 11:48:54
The issue of racial representation in the legal fraternity has recently been brought to light by a high court judge who questioned the absence of black lawyers in a case involving black economic empowerment (BEE). This has raised concerns among legal practitioners about the impact of racially skewed briefing patterns on the quality of the judiciary in the future.
Briefing patterns, which refer to how advocates are hired to participate in cases, either by private attorneys or the state attorney on behalf of the government, play a crucial role in shaping the legal landscape. The Pan African Bar Association of South Africa (Pabasa) and the Black Lawyers Association (BLA) have expressed their apprehension about the potential risks posed to the Bench, the third arm of government, by these skewed briefing patterns.
The public’s attention was drawn to the issue after high court Judge Mandlenkosi Motha challenged advocates in a case involving Peri Formwork Scaffolding and the head of the Broad-Based Black Economic Empowerment Commission to explain why no black lawyers were involved. Judge Motha’s call for representation raised questions about a possible violation of the Constitution’s right to equality.
Although some have criticized Judge Motha’s actions as inappropriate, others in the legal community have commended his stance. The BLA sees this case as emblematic of a broader problem of skewed briefing patterns that disproportionately impact black and female lawyers, excluding them from complex cases.
Vuyani Ngalwana SC, speaking on behalf of Pabasa, emphasizes the need to address these unequal briefing patterns before they adversely affect the judiciary’s effectiveness. Ngalwana advocates for a symposium or conference to facilitate discussions on the existence and implications of these patterns, highlighting the broader impact on the legal system’s standards and the quality of judgments.
The lack of diversity in briefing patterns also has implications for the composition of the judiciary, where judges are often selected based on their extensive experience in handling complex commercial cases, among others. This lack of diversity in briefs limits opportunities for black advocates and women, who may have more experience in criminal and family law but are underrepresented in specialized areas.
Judges Matter researcher Mbekezeli Benjamin underscores the risk that skewed briefing patterns pose to the judiciary’s functioning, particularly in interviews for potential judges. Large law firms tend to dominate certain practice areas, repeatedly briefing the same advocates and limiting opportunities for others, especially black lawyers, women, and younger advocates.
A proposed symposium aims to address these challenges and enhance representation in the legal profession. Concerns have also been raised about government briefs and the need for greater inclusivity in briefing practices. The Office of the Solicitor-General’s efforts to allocate briefs to previously disadvantaged individuals are commendable, but there is a need to ensure that diversity is maintained and that opportunities for skills transfer and mentorship are provided.
The upcoming publication of the amended Legal Sector Code of Good Practice on Broad-Based BEE is seen as a step towards promoting greater representation in the legal profession. This revised code aims to address the historical exclusion of black practitioners from economic participation and enhance diversity and inclusion in the legal sector.
In conclusion, the call for symposia, conferences, and data-driven interventions to address skewed briefing patterns underscores the urgent need for transformation in the legal profession. By fostering diversity, inclusivity, and equal opportunities, the legal fraternity can strengthen the judiciary, uphold the rule of law, and promote a fair and just legal system for all.
Read the original article on Daily Maverick
