Transformation of legal fraternity the key challenge – Blade Nzimande

SACP GS says young black lawyers being discriminated against in allocation of articles

South African Communist Party

The role and challenges of young legal professionals in defending our democracy and fighting poverty

Address by SACP General Secretary Cde Blade Nzimande, National Association of Democratic Lawyers , NADEL, Young Lawyers Conference, 26 January 2016

The challenge of transformation in the legal practice fraternity

The key challenge facing young legal practitioners in South Africa is to ensure successful transformation in, and of, the legal fraternity. The formation of the South African state was underpinned and driven, fundamentally, by the class interests of the White bourgeoisie of South Africa and their counterparts from British imperialism. This included the strategy of divide and rule comprising of, on the one hand White privileges and, on the other hand discrimination against the oppressed African majority in particular, and Black people in general.

Under the colonial apartheid regime, Black women suffered triple oppression in the form of class exploitation, national oppression and gender discrimination. These realities defined the law and the composition of both the judiciary and various legal bodies such as law societies. South Africa is yet to achieve full transformation of the legal practice landscape. Many old order practices, including discrimination, overt or covert, along the lines of race and gender, remain.

The Legal Practice Amendment Act 16 of 2017 that was gazetted on Thursday, 18 January, contains important steps that need to be taken seriously towards realising a transformed legal practice fraternity. In this regard, the role of young lawyers is to ensure that old order practices associated with the landscape of old order law societies are not carried forward to the new legal practice councils, both at national and provincial levels. In particular, all forms of racial and gender discrimination, mistreatment and victimisation, or any unfair discrimination, must be stopped and prevented from occurring again.

Let us highlight some of the worrying practices that continued to prevail even after the apartheid regime was dislodged in 1994. Firstly, it is worrying that discrimination against black lawyers continues in a number of respects. Many of the reported cases in this regard remain unresolved. In some instances the complainants reportedly face victimisation within their respective law societies. Most law societies remain white and male dominated without transformation post-1994. The negative influence this old order reality has had on new entrants is devastating and requires urgent attention and correction.

Black candidate attorneys still find it difficult to enrol in various law societies because of prevailing old order racial preferences. Some of the Black lawyers who experience the problem contend that it took them on average four months to register articles compared to two weeks for their White counterparts in what essentially remain white legal firms. This inequality has a massive impact in the training and development of young lawyers seeking to join the profession.

Reality has it that, statistically, white candidate attorneys are more likely to be admitted as attorneys much quicker and efficiently than their black counterparts. This translates into racialised patterns of employment and appointments in the legal practice. The fact that there are directors in untransformed law societies who have been there without any significant changes since 1994 is a serious cause for concern. This and other governance problems that prevailed must not be transferred to the new legal practice councils. There must be a full disclosure of all existing racial and discriminatory cases and their outcomes.

What we need is an enabling environment for the admission and registration of new legal practice entrants, and of whom the majority are young lawyers. This must be completely guided by the principles of non-racialism and non-sexism, and must correct the historical injustices of racial and gender discrimination, related exclusion and other imbalances. 

All outstanding articles registration applications must be attended to as a matter of urgency, and the time it takes for black and White, male and female candidates must be equalised. A list of outstanding registrations, categorised by race and gender must be provided for progress review on a quarterly basis, including by the Minister responsible for justice and constitutional development.

It is also important that candidate attorneys are not only restricted to private law firms for their training. Government departments and other state entities must open opportunities on this score.

Defending our democracy and fighting poverty

In 2017 the SACP put forward three important and interrelated organisational renewal theses in our transformation effort to achieve a fully non-racial and non-sexist democratic South Africa.

The first thesis calls for the reconfiguration of our Alliance to function in accordance with the principles of collective leadership and democratic consensus-seeking consultation on all major policy, deployment and accountability decisions.

The second thesis calls for work to build a popular left front to drive a second radical phase of our democratic transition towards complete liberation and social emancipation.

The third thesis calls for work to forge the widest possible patriotic front to defend our democracy and combat corporate state capture and all other manifestations of corruption. This thesis includes the necessity to pioneer the development and execution of a minimum programme to tackle, among others, the persisting problems of class, race and gender inequality, unemployment, poverty and social insecurity. 

Depending on where you stand, young lawyers have an important role to play in all of these three organisational renewal theses. In this regard young lawyers have their cue to take from lawyers such as Joe Slovo, Oliver Tambo, Nelson Mandela and others who dedicated their lives to selflessly serving the people exceptionally. Rather than compartmentalise themselves as career lawyers interested in money than the people, Slovo, Tambo and Mandela played an active role in the struggles of the oppressed, the exploited and the poor. They played an important role in the struggle for democracy and shared prosperity.

A patriotic layer of professional and public sector managers

Every successful revolution requires the fostering and development of a patriotic, and often progressive and/or revolutionary, layer of professionals and public sector managers, capable of driving a progressive agenda to realise its objectives. In the same vein, every class society requires its own professional and managerial cadre to advance its collective interests.

It is therefore in our deepest interest as the SACP and our country that much as we seek to advance the revolutionary interests of the workers and poor, we must simultaneously pay close attention to the struggle for the production of a patriotic cadre of professionals that are loyal to, and advance the interests of the working class as a whole. This is not a task for some distant future. It is a struggle that must be waged in the here and now.

It is precisely because every society, capitalist or socialist, and whatever its phase of development, requires such a professional cadre. But professional or managerial cadres are a contested terrain. In every class and/or national liberation struggle, there is always a simultaneous struggle for the loyalty of, and for winning over the middle strata. In our own struggle against the apartheid regime, there was a serious contest over, especially, the loyalties of the black middle strata, including its managerial and professional components.

The defeat of the apartheid regime in 1994 did not mark an end to the class contestations in South African society, including contestations over the emergent middle strata. This struggle, in essence, has now evolved into what is now a struggle for the loyalties of the black middle and professional strata between principally the capitalist class and the working class. It is a struggle that has simultaneously been fought between the emergent class forces in control of the post-1994 state.

One of the most important developments since 1994 is that there has arisen anew, an old class force – that of a parasitic bourgeoisie that is largely dependent on its hold over the state in order to pursue its accumulation interests. The parasitic bourgeoisie, though not exclusively, are an active driver of corruption and its manifestation in the form of corporate state capture. These are elements who use their positions in the state to loot and accumulate for themselves. Think about the governance decay at Eskom, the SABC and other public entities. Think about the looting associated with this decay. All the money that was unduly paid out must be recovered. It must be paid back. All those who were involved in the rot; all those who were complicit must be held to account.

The parasitic bourgeoisie derives its power from access to strategic levers of state power with key decision makers as an entry point. Also contested in this regard are the professional and managerial strata located in the state, its agencies and entities. Part of the contest for the professional and managerial strata of the public service is that of luring it into shareholding in BEE type transactions, if not outright bribery by the parasitic bourgeoisie. Young lawyers, as with all other professional strata, must reject this agenda. The parasitic bourgeoisie is not an alternative to established private monopoly capital. What the parasites do is to deepen inequality in society.

And the parasites do all these these in the name of bettering the lives of African poor people. What the parasites seek to achieve is self-enrichment with the quest of either becoming a new, dominant section of private monopoly capital, or of securing accommodation from the already dominant, old order domestic and foreign (imperialist) private monopoly capital. It is important that as black professionals you refuse to be co-opted onto agendas that undermine the development of our country.

What are some of the critical tasks that you face as young (legal) professionals?

Firstly, it is absolutely important that you organise yourselves as you have done and are doing under the umbrella of NADEL.

Secondly, support and network amongst yourselves and resist temptations for easy money that may end up destroying your future.

Thirdly, in organising yourselves work towards the development of progressive jurisprudence that must be underpinned by fighting inequality, unemployment and poverty, and especially to advance the interests of the most marginalised in South African society.

Fourthly, the transformation of the legal profession in South Africa cannot be separated from the overall transformation of South African society such that black lawyers have access to legal opportunities in the entire legal profession and its various specialisations. Apartheid restricted black lawyers largely to being criminal justice lawyers. The task is to radically change this through expanded opportunities into all fields of law. Therefore lawyers cannot separate themselves from the broader transformation struggles of South African society, and neither can the rest of South African society separate itself from the struggles of progressive lawyers and the building of progressive jurisprudence 

Fifthly, as young legal professionals please join the struggle against corporate capture of the state and our society. You cannot afford to be on the sidelines or be neutral in these struggles.

Last but not least, and in the true traditions of NADEL you have to become both legal and community activists found in all key sites of struggle.

Issued by the SACP, 26 January 2018