‘Transformation’ is a farce in law

2018-04-08 06:02
Members of Advocates for Transformation and concerned advocates of the Johannesburg Bar Council at the Johannesburg High Court. The author writes that, without legal compulsion, the reversal of centuries of exclusion, repression, oppression and miseducation is not achievable. Picture: Lucky Nxumalo

Members of Advocates for Transformation and concerned advocates of the Johannesburg Bar Council at the Johannesburg High Court. The author writes that, without legal compulsion, the reversal of centuries of exclusion, repression, oppression and miseducation is not achievable. Picture: Lucky Nxumalo

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For the purposes of our short discussion on this vexed topic, I have elected to use the Johannesburg Bar as a representative group, as well as the members of the Bench nationally to derive two simple ideas germane to this topic. I explain these later.

I also focus only on the female members of the Bar and the Bench (the so-called historically disadvantaged group) to foster a conclusion that, without legal compulsion, the reversal of centuries of exclusion, repression, oppression and miseducation is not achievable.

As they say, numbers don’t lie. Of the 250 justices across the country last month, 26% were black women (African, coloured and Indian) and 10% were white. Of the 1 181 members of the Johannesburg Bar, 182 are black women – 10 of whom are Silks. The white women number 191 – 17 of whom are Silks.

This paints the gloomy picture that, after 24-odd years since so-called democracy, lamentably, black women outnumber their white counterparts by only 16% on the Bench, but trail them at the Bar.

Black women have done better on the Bench than at the Bar – no surprise.

The first supreme fallacy

To make black and white women a single category distorts the history and is a lame attempt at analysing our present. White women have enjoyed historical privilege and continue to do so. They still have male attorneys as husbands, brothers and cousins, and share religious and other social interactions. They had access to better education in the past – secondary and tertiary – and continue to enjoy this access. Their story is radically different to the majority of black women.

Most black women come from societies characterised by poverty, unemployment, inferior education, under-resourced schools and single-parent homes. Then there is the added burden of looking after members of an extended family – at times, under a single roof. Equal treatment of the two classes as one is an aberration. So, if black women have made embarrassingly little progress, it is still largely explained by what follows.

Transformation is merely a buzzword. It is a word that does not appear in our Constitution, nor does it appear in any statutory instruments other than in the foreword of those statutes and some codes of good practice.

Transformation is neither an enforceable right nor a legal obligation. It is something that we speak about in forums such as this one and in our professional governance structures. It helps us decry our abominable past, intellectualise the need for remediation and romanticise the future. No self-respecting lawyer would want to justify the atrocities of racial exclusion. Those who engage in discussions about how to correct those continuing ills challenge any idea that gets considered with what could be veiled as intellectual dishonesty (disguised as rationality and the rule of law).

I have in mind as an example the amendment of the constitution of the General Council of the Bar of SA, which seeks to remove the right of veto by white-dominated constituent Bars regarding matters of transformation.

So, our topic: Is it all a gender battle for political correctness, or a necessary assault on male privilege?

To answer those questions, I give only one example. Regarding the appointment of judges in the country, the Constitution requires the Judicial Service Commission (JSC), which is responsible for recommending fit and proper men and women to the Bench, to recognise the need for the judiciary to broadly reflect the racial and gender composition of South Africa. This is a constitutional imperative, which, to the chagrin of some, has been vociferously defended by the JSC.

The only explanation for why black women appear gradually to claim their rightful space on the Bench, apart from their intellectual acumen, has been the religious adherence to this constitutional injunction by the JSC.

Assault on male privilege?

Assault must be a choice word for those who have achieved that pole position not through any distinctive industry or intellectual prowess (what gender for a noun!), but through chauvinism, misogyny, exclusion and, yes, the law.

In this country, by law, women could not be admitted as lawyers until the late 20th century and even then, it took many years before black women were admitted as lawyers. There is still an embedded, pernicious and distorted perception that women, though qualified, are inept at the practice of other disciplines of the law – they must largely be doing family law, and certainly not construction law. Our constitutional jurisprudence has exposed this lie, with some of the most erudite judgments of the court penned by female judges.

I therefore hazard, as part of the correction of our shameful history, we, by law, enact a legally enforceable instrument such as the State Attorney Act that will prioritise black women for procurement of legal services by the state and for those private legal service providers who also do business with the state. So, finally, black women are a distinct group not to be lumped together on the grounds of gender alone and that legal compulsion is not only morally, ethically and legally indicated, but the very minimum we can do.

With time and opportunity, I can explain myself further.

Semenya SC is a member of the Johannesburg Bar. These are edited remarks he delivered at the World Bar Conference held in Cape Town last week

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