John Jeffrey and the Status Quo: Ironic and Unfortunate.
The challenge to transform the Bar requires diverse and radical thinking. John Jeffrey’s ironic and slavish defence of the status quo demonstrates he either cannot do it or refuses to. Unfortunately, in either case, it is the Bar’s marginalised groups and the poor who will suffer for it.
In his reply to an article I wrote, part of a series on how to transform the Bar, Deputy Minister of Justice, John Jeffrey, MP, asserts that my arguments around reforming Legal Aid are ‘‘misinformed’’.
My ‘’‘misinformed’’ proposal was to suggest that:
‘‘If half of Legal Aid’s 2013 personnel cost of R900m, so R450mil, was assigned to the roughly 860 advocates presently at the Bar with under five years of practice (calculated using the average intake of pupils over 2010 – 2014, assuming perfect retention), each advocate would be guaranteed R500 000 of income per annum. Even if one catered for tiered pricing, combined with a preferential system favouring black (female) counsel, there would be enough money. If one capped annual earnings at R250 000, the Bar could effectively double its intake and still be able to pay new entrants a decent salary. The Bar’s ‘‘transformation problem’’ would disappear, almost overnight. And, given that this system would only ever operate alongside private work – rather than replace it – this solution seems obvious.’’
This is ‘‘obvious’’ in the sense that redirecting work – and remuneration – to new black/female advocates, who acutely experience the difficulties of starting practice, provides them with income certainty. This, in turn, could act as a buffer between outright success and failure; work underwritten by State funds allows them to remain at the Bar, developing skills, building a network, and mastering practice.
In light of recent complaints of racism within the advocates’ profession, a discussion around alternative mechanisms to transform the Bar should be welcomed. Instead, the Deputy Minister not only misrepresents my proposal, he sneers at it. And, in his eagerness to discredit me, he demonstrates the limits to his thinking – mine was a radical thought experiment to address a common problem, his was an intransigent and unimaginative defence of the status quo.
Admittedly, Legal Aid is worth defending. The Deputy Minister’s self-interest in defending one of his Department’s ‘star performers’ aside, Legal Aid does important and good work. I readily acknowledge that, as National Operations Executive Brian Nair puts it:
“Legal Aid SA is a significantly transformed organization. We have grown from being a small organization that relied mostly on Judicare practitioners to one with over 2 700 employees, of which 79% are legal staff. We have 64 Justice Centres and 64 Sattelite offices in 6 regions throughout the country. In the last financial year, we provided legal representation in 448 195 cases as well as assisted 394,172 clients with general legal advice. This year, we achieved our 14th unqualified audit. We have been recognized by the Ministry of Justice as well as the Portfolio Committee on Justice as one of the shining lights within the justice cluster.”
But, the Deputy Minister does the poor (and the marginalised groups at the Bar) no favours by refusing to think any differently about transformation.
First, the Deputy Minister creates a false dichotomy between ‘‘service delivery to the poor’’ and ‘’securing the private sector’’. As a result, he either wilfully ignores, or fails to engage with, the real economic incentive for private practitioners to render the best possible service to indigent litigants. This, instead, demonstrates the Deputy Minister’s uncritical ideological opposition to market forces – ironically, even state-regulated ones.
Second, the Deputy Minister’s attitude is deeply anti-transformation, and hurts black/female practitioners the most. Considering that these marginalised groups have themselves complained about the lack of support from the Government, it gives special meaning to the Deputy Minister’s failings.
As Times Live recently reported:
‘‘Black advocates have upped the ante in the skewed briefing patterns debate, accusing the Office of the State Attorney of playing ‘God’ by giving lucrative legal work to a preferred few … black advocates are allocated few briefs from the State Attorney at irregular intervals. The work is insufficient … In addition, the quality of work … does not enhance their skills’’
Third, the Deputy Minister’s reference to the State meeting its own targets misses the point. Transformation is achieved not just when black/female advocates get any work, but, rather, when they are given an opportunity to develop a wide-skill set that allows them to compete for the best work. Reforming Legal Aid means that black/female advocates can get a sufficient amount of income to sustain their livelihoods, relieving them of immediate financial pressures, so that they can build the necessary skills to compete for other (private) work. If briefing patterns are as racist as complained, irregular State work is not good enough.
Fourth, the Deputy Minister’s reliance on Legal Aid’s own transformation is misplaced. Admittedly, Legal Aid is not responsible to address the Bar’s failings, but it is equally not responsible for providing access for graduate-entry to the legal profession. Even though its practitioners count on the roll of attorneys and advocates, positively affecting the profession’s overall demographic representivity, it does nothing to address white-domination of private practice – where transformation is needed most. It would be farcical if increased access to, and representative change of, the profession were as the result of increased State employment.
Additionally:
‘‘some – or many – of those retrenched by Legal Aid could also transition to the Bar. Given the former’s large employment numbers (especially of people of colour), the latter would only stand to benefit from creating a special dispensation that facilitates the move.
But, prospective job losses incurred by Legal Aid may not be as extensive as anticipated. First, only half of the budget in this proposal is earmarked as being redistributable. Second, Legal Aid’s present ‘practitioner-per-court’ model need not be abandoned. The remaining half of the personnel budget could go towards funding Legal Aid to act as 'collection points' for cases to be prepared before being handed to advocates. This could streamline Legal Aid’s work and, perhaps, enhance their case load management.’’
Fifth, the Deputy Minister’s arguments against the ‘‘outsourcing model’’ are meretricious. It attacks the old system where there were poor/no safeguards to police practitioners and protect litigants. These may be difficult but they are not impossible: limiting the amount of money that a practitioner can earn, client evaluations, limited earning periods, etc, all contribute towards a system that is more accountable and cost-effective. Similar management mechanisms aimed at ensuring efficiencies exist in the public and private sector around the world. No-one who values the Constitution would support a system that permits a further assault on the public purse.
Sixth, the Deputy Minister’s exhortation that ‘‘the Bar has had more than 20 years to transform’’ proves the point. Here, the State can bring about transformation in a way that enhances the Bar’s independence and achieves its own goals through less instrusive means. No-one would be surprised, however, if the Deputy Minister’s simultaneous complaint about a lack of transformation and reluctance to do anything about it was deliberate. The Government could then ‘legitimately’ respond to this transformation crisis through more drastic means, as it would be entitled to under the Legal Practice Act. Transformation could be the perfect fig-leaf. The scandal around university funding, and the subsequent Higher Education Amendment Bills, are a case in point.
The Deputy Minister frames the challenge excellently:
‘‘We need a legal profession, both attorneys and advocates, which is reflective of the race and gender composition of the country. Do we have this or are we anywhere close? The answer is no.’’
Legal Aid Reform is one option – and not the only one. Much of the Deputy Minster’s reply is irrelevant, but he is right that the Bar itself can – and must – do more. Had he read my other briefs, he would have known that I said:
‘‘A combination of historical and present issues continues to make transformation problematic. Their effect is not only to make it difficult for those who enter to the profession to succeed, but also results in many not entering in the first place.
While many of the educational issues in tertiary education are a consequence of poor primary and secondary schooling, one way the Bar could make a meaningful impact in the legal education chain is by being more honest about its role in defining academic and professional expectations. Resolving what the purpose of legal education and legal training is aimed to achieve, and who bears pedagogical responsibility for it, will go some way to dealing with the gap between legal education and practice emerging within the profession.
Another reform could be the financing of pupil advocates. In the present system, pupil members are expected to forgo paid employment in order to complete a year of vocational training. Although, in theory, pupils can start earning after six months, the significant financial burden with commencing pupillage means that only very few can afford to pursue a career at the Bar. For parents, and black professionals, especially, pupillage can represent too great a financial risk where there is little additional or generational capital that can absorb the financial hit. A lack of payment during that year is a barrier to transformation; the socio-economic conditions of South Africa means that black professionals are predisposed to seeking alternative employment where earning capacity is more guaranteed. The English Bar, for example, has a competitive payment model in place for pupils that, theoretically, means it is more likely to transform while attracting the brightest talent.’’
The Deputy Minister is also right: legal professionals should do more pro bono work. That practitioners have not eagerly signed up to do so is regrettable. But those arguments do not negate anything else that I have said.
The Constitution codifies the moral obligation we have to rectify centuries of racial oppression and victimisation, the effects of which we continue to see today. The legal profession is no exception. The challenge for all of us who are concerned with these problems is to not shut ourselves off from radical and different ideas; ‘‘finger-jabbing moral certitude’’ should give way to constructive and de-personalised discussions aimed at solutions. Maybe then, we will do society-at-large a favour by finding some of the answers.
Kameel Premhid is a Legal Researcher at the Helen Suzman Foundation
