In his article in the Politicsweb entitled "Why I did it: A reply to Paul Hoffman and Tony Leon" Advocate Simba Chitando, seeks to explain his decision to take three advocates and law firms to the Competition Commission due to the fact that they have consistently discriminated against him in so far as briefing relating to maritime law is concerned.

Advocate Chitando is practicing in Cape Town and is one of the few, if not only, black advocates trained and qualified in the field. He goes on, in the article, to articulate his views on matters of race, business, legal profession and transformation in general.

It is my intention in this article to show that, in addition to organized white business excluding blacks, he has other formidable institutions and instruments to contend with in his noble battle. These include the ANC government and "their" ill-advised policies including the so-called BEE policy.

Here is a short story for you Advocate Chitando: A few years ago, whilst based in Polokwane in the Limpopo Province, I penned a letter to the recently recalled Premier, Head of Departments and Chief Executive Officers of state owned companies. In the letter I posed a very basic but fundamental question: why is it that the provincial government is exclusively retaining Gauteng and local based white law firms whilst black lawyers are languishing in the periphery of the formal economy.

It is a question that applies equally across all professional disciplines.

The answer was very swift: an envoy was dispatched to my office. He is an owner of several companies doing business with the provincial government and a personal ally of the then Number 1. Arriving in my office (uncharacteristically) without prior notice or appointment, he delivered what was purported to be a chilling warning: "you should stop writing these kind of letters because as you rise you will need this government". I was not perturbed.

What is the relevance of this story? It is relevant because as you take on these established, organized and well-connected clique, you need to be wary of the fact that they have not only the resources but also the tacit support of the current political establishment.

By way of illustration, this is, amongst others how-

1. Black Economic Empowerment

It is trite argument that the policy of black economic empowerment only benefits the connected few and white capital. The so-called broad based deals are, in the main, nothing but patronizing shams. In most instances the so-called broad based groups are just used as a buffer against criticism and never get to meaningfully benefit from these deals.

The reason why BEE is going to be an obstacle in your way covers a variety of aspects. The most pertinent of which are-

Black Empowered Company - this strange and artificial concept was coined as a means of protecting white business by allowing it to co-opt blacks into their existing businesses. Every white company that does that to the required degree is said to be "black empowered" and therefore almost as good as a black one.

The fundamental challenge that the so called black empowered companies will present to you is that these white owned companies, with a sprinkle of few black faces, remains the same to the core and will never brief a darkie like you, even if they got the work from the government that preaches black empowerment.

The other damage that this co-option concept has introduced is the fact that competition and the proliferation of credible black competitors to established white companies have effectively been sanitized. Your briefing pool therefore gets smaller.

Assimilation - wanting to be whiter than whites themselves: this is the most interesting "trait" of a postcolonial black person who regard themselves as sophisticated. It cuts across all strata of society, starting with the liberation movements and politicians. It always raises the question of what post colonial society did the previously marginalized struggle for.

Was the struggle about being excluded from white privileges or for equality of opportunity? It is a question that continues to haunt all of us. For you Counsel it presents challenges at different levels.

For example state entities like SAMSA will never brief you because when the appoint firms in their panels they write the specifications to suit and qualify mainly white law firms. I should know because a few years ago I raised precisely this issue with them in a bid document. It's not only this agency but many other state owned entities.

In 2011 or so the Government Employees Medical Scheme ("GEMS") wrote a similar tender. It took us threatening them with litigation to withdraw and re-advertise.

Assimilation goes further for you: companies that would ordinarily advise their instructing attorneys to brief you will not. Why? Because they are either staffed, in their legal departments by white legal advisors or worse by black legal advisors who were "poached", deployed or transitioned from white law firms.

Consultants writing tender documents for government: to date this is the most interesting aspect of state procurement. All government tender documents are written from the perspective that only white people or companies are competent to provide the state with a service!

Pick any tender document for any service and it will make it very clear that whoever wishes to bid for business with the state must have be BEE COMPLIANT!

This works against you because, for historical reasons, there will be an expectation that a service provider will be white with a few black faces. This therefore means that, even the few black faces, that would make a company BEE compliant would not be transformative in their briefings, just like their government counterparts, who expect certain skills to continue to reside with whites.

2. Lack of confidence by senior government functionaries in their own

A few years ago we got a brief from a state owned entity to assist it in a "complex" matter regarding breach of contract concerning a multi-million project. Arriving at the meeting with the Legal Advisor, the first thing we were told to do was to get a white counsel, of which the Legal Advisor had to approve.

In not so many words we were informed that the condition for our appointment was to bring a white advocate with! Did I mention that the Legal Advisor is black! That is the situation that you will have to contend with, where black professionals have absolutely no confidence in their own.

Senior politicians and their government counterparts also prefer them white!

3. Marketing by your white counterparts

I read in your article your acknowledgement of the so-called no touting rule. My personal view is that it is the most stupid and ridiculous rule I have ever heard of. In fact it would be funny if it did not have serious implications.

This rule, which applies also to the legal profession (at least in theory), is one of the cardinal pillars of the continued exclusion of people like you from the formal economy. For historical reasons whites will continue to get the biggest slice of work because apartheid has allowed them the opportunity to experiment and perfect their trade.

It also allowed them the opportunity to amass resources for brand building exercises. That is why virtually everyone knows about the firms Webber Wentzel, Shepstone Wylie and Norton Rose.

Because these firms are developed and household names they, of course, need no touting. Work will just come their way. In any event touting is in the eyes of the beholder! All these white firms have marketing departments and of course their black counterparts can hardly afford to pay their key professional staff.

So maritime and other specialist instructions will always land on the table of these firms who will then brief their own.

So black man you are on your own.

But it is not a lost battle and there is hope. It is my dream that one day we will wake up and realize that by policies like BEE and its cousins, we are effectively destroying the foundation of black business and that the ultimate effect will be felt throughout the economy and for generations to come.

You are a victim of these policies in one sense because we (blacks) are encouraged to seek co-option into existing white companies and not to go on our own to challenge them. Ask yourself the question, how many, if any, black law firms at the level of Norton Rose, Webber Wentzel and Shepstone Wylie will be there in South Africa in the next 5- 10 years. Zero, Nada!

Then ask the ultimate question: where will my brief come from?

Dinga Nkhwashu is a member of the ANC and a professional in the business and legal consulting arena. He writes in his personal capacity.

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