Guest Column

#BarBrawl: GCB playing victim of being racially slurred

2018-07-26 11:25
Vuyani Ngalwana. (Supplied)

Vuyani Ngalwana. (Supplied)

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Vuyani Ngalwana

I read the current chair of the General Council of the Bar of South Africa's (GCB) riposte with interest – and dismay.

One of the most disturbing strategies of latter-year advocacy is the recasting of an argument into one that is perceptively easier to meet. But the trouble with that strategy is that when it bombs, it does so spectacularly as it creates a parallel discourse and fails to meet the original case it purports to answer. 

Such is the GCB chair's riposte. It answers a case that neither Advocates for Transformation (AFT) nor I make. More than that, it advances legal argument that is, with respect, mistaken in defence of the decision not to approach the Constitutional Court in 2013 on the Geach matter.

Our argument is not about prospects of success on appeal to the Constitutional Court. It is about where the role of the GCB as custodian of advocates' morals (custos morum) begins and ends. The riposte does not address this. Instead it elects to advance an argument for appeal.

We did not accuse the GCB of racism. Pointing to a political party's more-than-passing interest in achieving a result that the GCB's appeal will, if successful, most certainly deliver, we cautioned the GCB of descending into the political arena and making a decision that is fraught with political flavour.

But playing victim of being racially slurred plays more sensationally in the media to an ostensibly racism-sensitive country for its past (and current) sins of racism than being accused of playing politics; so, the GCB chair runs with "racism" claims instead, and the media seizes upon that sensational headline.

The GCB chair says doing nothing would smack of politics. Wrong. The GCB's role as custos morum is at an end. The appeal court considered the facts and the law placed before it by the GCB and decided they do not sustain a case for a striking. That is a decision of the appeal court, not three judges of the appeal court. The GCB chair's bean counting exercise in this respect is surprising. The GCB's ego is bruised by that decision. Turning itself into a conduit for political ends smacks more of politics than recognising the limits of one's role in law.  

With reference to four examples of actual cases, I charged that politics and race loom larger than the GCB cares to acknowledge in its approach to the disciplining of advocates. The suggestion that this is an accusation of racism is incorrect and seeks to divert attention from the real issue: the GCB's politically fraught decision and its inconsistency. I chaired the GCB for 21 months. AFT, which has white members in its ranks, comprises half of the GCB executive committee of ten. If the accusation sticks, then I am effectively accusing myself and AFT of racism. Absurd.

Defending the GCB decision not to approach the Constitutional Court in the Geach matter where, as here, the majority in the SCA had refused to strike off senior white advocates for, effectively, dishonesty, the GCB chair says that option was not open to it because the case did not "implicate the bill of rights". 

Perhaps the GCB chair is not aware that before the 2013 amendment of the Constitution turning the Constitutional Court into an apex court, that court had jurisdiction to hear "constitutional matters". There is a line of Constitutional Court cases [beginning with Nehawu v UCT 2003 (3) SA 1 (CC)] that says the proper interpretation of legislation constitutes a "constitutional matter" and the Constitutional Court has jurisdiction to hear such matters. 

A striking off application is brought under section 7 of the Admission of Advocates Act. How far the concept of "fit and proper" extends is clearly a matter of interpretation of that provision. That makes it a "constitutional matter" over which the Constitutional Court had jurisdiction, even in 2012. The Geach matter could have been taken on appeal by the GCB to the Constitutional Court on that basis. The suggestion that this was not done because the case did not implicate the Bill of Rights is farcical.

The GCB chair also says AFT did not suggest that the Geach matter be taken on appeal to the Constitutional Court, and that we discount our own role in that decision. He points out that the GCB chair at the time was an AFT member. 

Lost in this argument of expedience are at least two factors. First, the GCB chair has no veto power over decisions of the GCB. He cannot single-handedly decide what should or should not be done. Second, it has always been AFT's principle to have matters decided by consensus than a vote in order to avoid division. Consensus does not mean unanimity. 

The GCB chair says the GCB has always reached decisions by consensus "until recently". When I took over as GCB chair in October 2016 I made it absolutely clear to the GCB that I am all for consensus, but that on matters of substantive transformation at the Bar I shall brook no prevarication masquerading as pursuit of consensus. That set us on a collision course when we pushed through amendments of the GCB Constitution and Rules at executive committee level in December 2017. Those amendments sought to level the playing fields. The old guard baulked. The matter is now in mediation. I have no regrets for having pushed those amendments through.

The GCB chair goes out of his way to point out that black members of the GCB Council voted in favour of this decision to approach the Constitutional Court. It is a point rooted in race politics. Neither I nor AFT suggested that the vote was along race lines. AFT itself is not a racially exclusive organisation. Again, the GCB chair advances an argument to "rebut" an argument we never made.

The impression created by the GCB chair that there is effective co-governance of the Bar between AFT and non-AFT members is not correct. He knows it. Those of us in leadership structures of the Bar know it. I leave it to him to correct this. If not, I am happy publicly to remind him, beginning by pointing him to a clause in the GCB Constitution. 

The GCB chair makes much of the fact that the GCB intervened in the Geach matter when it considered that the Pretoria Bar Council had been lenient on its members in the Road Accident Fund scandal. But that is not the point. The point is that the GCB did not appeal to the Constitutional Court when the SCA, as in the Jiba matter, refused to strike off those seven members. I have already explained that it could have done so, assuming that its custos morum role extends that far. It elected not to.

At the GCB AGM, the reason advanced by the GCB chair was that the GCB had not on that occasion obtained advice from Counsel on prospects of success on appeal, whereas in this Jiba matter it has. He now appears to have thought better of that point. If he had persisted in it I'd remind him that advice is precisely that; it is not a decree. In any event, if the GCB acts as custos morum, that role cannot depend on whether or not advice was to hand to act as such. Either you're pregnant (with responsibility) or you're not.

The GCB chair says I skirt around the facts in my account of the GCB's role in matters such as this. I hope I have ironed out the factual and legal wrinkles in his account. 

Since his account seems aimed at "rebut[ting] any imputation of racial bias" by the Bar in matters of discipline, and in my view fails spectacularly to deal with the examples I have already provided, I shall be happy (despite myself) to engage with him in a live public debate not only on this very issue but also on the dismal failure of the Bar on the transformation front over these past 24 years. I say "despite myself" because I'm tired of debating transformation. I'm now in action mode.

- Ngalwana SC is a senior barrister at the Johannesburg Society of Advocates with the Duma Nokwe Group of Advocates and former chair of the GCB.

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Read more on:    constitution  |  constitutional court


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