The three maritime silks, the missed briefs and the lost Zimbabwean
A naval engagement of some moment is underway in the Competition Tribunal. A young Zimbabwean advocate (Simba Chitando), recently admitted to the Cape Bar, has complained that three silks and four firms of attorneys in Cape Town are engaged in anti-competitive behaviour in breach of the Competition Act because they have all overlooked him as a junior member of the Cape Bar who could be briefed in maritime matters, given his master's degree in maritime law.
The Cape Bar is a voluntary association, some would say a well organised trade union, which has its own Constitution and Rules. All members of the Bar are required, on joining (or "being called" as they used to say) to sign a register in which they "undertake to abide by ... the Constitution and Rules [of the Cape Bar]".
The applicable rules are a mixture of what are quaintly called "Old Cape Rules" and the Uniform Rules which the General Council of the Bar has imposed upon all of its constituent Bars around the country. In the "Rules and Discipline" section of the Constitution it is recorded that: "The Cape Bar may revoke or amend any of the Uniform Rules insofar as it (sic) applies to the members of the Cape Bar." For good measure it is also recorded that: "The Rules of the Cape Bar relating to Practice and Professional Conduct ... shall ... be binding on all members of the Cape Bar."
Old Cape Rule 7 has apparently been overlooked in the complaint to the Competition Commission. Insofar as it is relevant it provides, very properly for a referral profession such as the Bar, that: "Counsel shall not take instructions or fees otherwise than through the medium of an attorney..."
More importantly the replacement of Uniform Rule 4.29.1, which binds the complaining advocate and his senior colleagues, provides that: "It is not improper of Counsel to recommend other Counsel to attorneys or lay clients when asked to do so for the purpose of obtaining the services of Counsel with the expertise and experience appropriate to the matter in question, provided that such recommendation is not made for any other purpose."
This too has been overlooked, at least as regards the complaints against the three "maritime law" silks, who are bound not to recommend other counsel and then, only if asked, to do so in circumstances that would clearly not include the nomination of juniors to work with them on a matter of any nature in which they are briefed by an attorney. That is the import of the last mentioned rule when it warns that the recommendation of an advocate "is not for any other purpose".
The thrust of the complaint against the three silks is accordingly a demand that they be required to infringe the rules by which they are bound in order to satisfy the frustrated ambitions or sense of entitlement of the Zimbabwean junior who has lodged the complaint. Instead of doing so, he ought to have spent a little more time acquainting himself with the rules of his noble and long established profession and the etiquette by which he and the silks are governed.
The Competition Commission has scrutinised the rules that govern the Bars in South Africa and has caused a number of amendments to be made to them in order to eliminate any trace of anti-competitive behaviour of institutionalised nature that may be fostered by the way in which independent Bars regulate and govern the professional conduct of their members.
The rules quoted above, all of which are to be found on the website of the Cape Bar Council, have survived the scrutiny of the competition authorities and they continue to bind the members of the Bar. Whether they need to be amended in the interests of fostering affirmative action for new junior members, and if so, how they should be amended is irrelevant to the complaint at present under consideration.
The classical four A's for success at the Bar have apparently not been taken into consideration by the Zimbabwean junior. They are Ability, Affability, Availability and Attorneys. To be well endowed with ability as a junior advocate requires a working knowledge of law and procedure (including the Bar Rules) and a willingness to work hard over long hours.
Many juniors wait years before they get a junior brief. This fact seems to have passed the complainant by. Affability is a personality trait that can be cultivated, but not by making ill considered complaints against colleagues and attorneys. Biting the hand that feeds you is a poor substitute for affability.
Availability means being ready and willing to accept a brief when one comes, irrespective of the time of day, weekend family commitments and state of personal health. It requires juniors to know who is on duty over the weekend and to be contactable by phone at any time of the day or night.
Attorneys are a necessary ingredient of success as they are the only source of general work for young advocates. Alienating attorneys by complaining about their clubby characteristics is counter-productive. Attempting to extort R900,000 from your colleagues is quite beyond the pale and has very properly been brought into the public domain by the putative extortees. It is impossible to perpetrate extortion on an off the record basis.
The young Zimbabwean has cooked his goose by making the offer to have the whole catastrophe go away for the payment of R900,000. He would have been better advised to spend his time writing and publishing learned articles on maritime law, teaching students part-time, joining the maritime lawyers association and attending its functions in an affable and constructive spirit so as to make himself known to its members.
He could even devil for the silks so as to showcase his talents to them by doing the hard yards of backroom work with them. Instead he has chosen the path of confrontation with a host of seasoned litigators. Upon mature reflection he may live to regret doing so.
Paul Hoffman SC
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