RE: "Why I Did It: A Response to Tony Leon & Adv Hoffman SC"

There are several conflicting versions and inaccurate opinions, in the media, about why I turned to the Competition authorities. I have decided to tell South Africa, and the World, in my own words, why I did it. I will start with my legal case. Second, I will explain my convictions against non-racialism, sexism, and gender discrimination in business. Thirdly, I shall discuss the public reaction to my case, and how it has driven me forward. I will close with my views on Pan Africanism in South Africa.

I've gone to the Competition authorities over what I believe to be anti-competitive practices by three silks: Fitzgerald, Mac William, and Wragge, and three firms: Webber Wentzel, Shepstone Wylie, and Norton Rose.

Without giving my strategy away, the case is premised on simple well-known and accepted facts in the profession. Advocates, at the Bar, cannot tout for business. Junior Advocates, like myself, rely upon horizontal relationships with senior counsel, who have vertical relationships with law firms, to market their business.

Call it what you want, but this arrangement, tradition, practice is not consistent with the Competition Act, and is obviously vulnerable to racial and gender-based discrimination.

The old Cape Rules that Adv Hoffman SC mentioned in his criticism of my case are antiquated, and inconsistent with both the Competition Act and principles of transformation. The government, accepts this fact, and has drafted the Legal Practice Bill to do away with the unjust system (Old Cape Rules) to which Adv Hoffman believes I should accept and endeavour to pay homage to. He would not ask white Zimbabwean farmers to be affable to black land reform, but expects black lawyers to be affable to white dominance in the legal profession.

My legal practice is not a political party; it's a business that operates as a going concern for profit. Like any other business I am entitled to a pro-competitive environment, and if unfairly restricted, to seek an order that the arrangement is anti- competitive before pursuing damages.

The Competition Act guarantees this right.  The fact that my business involves the trade of legal services, or that I am a black man from Zimbabwe, is irrelevant. Some South Africans, like Tony Leon and Advocate Hoffman, think that being an "outsider" is relevant, that says more about their prejudice than it does about me (see here and here). My colour, profession, and birthplace do not prevent me from threatening to pursue a lawful process in a Court of law unless I receive reparations.

It may come across as a culture shock to Mr Leon and Hoffman, but black Zimbabweans can go to Court for damages too. While on the subject, the mafia is not in the habit of threatening union bosses with Court action unless they are paid. There is a big difference between pay up or I bust your kneecaps, and pay up or I will go to Court and pursue a lawful process. Mr Leon and Adv Hoffman SC, believe that they mean the same thing if they come from a black man.

Race, gender, and ethnicity should be neither an advantage nor disadvantage in the success or failure of any business. The silent majority agrees with me, while the commanding minority opposes the Court order I am pursuing with the Competition authorities. The likes of Mr Leon, Advocates Hoffman, Fitzgerald and Wragge are so blinded by fear of the majority that they fail to see that what I'm looking for is an open system that is fair to all, myself included. Not a system that favours blacks over whites. The irony is that most graduates with shipping qualifications are white South Africans. If the order I seek is granted their demographic would be the single biggest beneficiary, until of course, black Africans up skill themselves.

Unfortunately far too many voices believe that this case is a referendum on the Legal Practice Bill, and transformation. These considerations are obviously pertinent in the country, but it does not mean one cannot use existing legislation, like the Competition Act, to fight the disease and seek compensation.

What western jurisprudence has shown us is that large corporations can influence social change when prompted by binding Court decisions, which are costly. Would there be a need for endless think tanks and public debates if a silk that refuses to lead a black junior is hammered in Court?

Will there be a need to hear the same lectures about transformation from the latest black judge, if a law firm got a hefty fine in the Tribunal for racial restrictions? The answer is no. They would all comply in record time. Why should a black person prove his nobility by not seeking damages for oppression?

The right to seek damages is not restricted to Von Abo and Campbell, white South African farmers who successfully sued for damages, after being forced off Zimbabwean land, and their businesses to ruin. The law is available to the black Zimbabwean law practice, and Zimbabwean torched spaza shop in South Africa as well.

I did not expect both the hostile public reaction on the one hand and the open show of support on the other. Both the hate speech and positive encouragement has given me the resolve to press on. It has taught me a lot about South Africa.

Scrolling through various threads on the internet, I got a sense, from the names behind the comments, that the hostility comes mostly from white South African men. The support has come from black men, and women, as well as pockets of women from other races. People have clearly taken my court case as either a threat to their establishment or an inspiring act of courage of an oppressed person they identify with.

I feel as though I cannot let down those that support me, or let those that oppose me succeed, by giving up. The racial slurs, believe it or not, have not affected me at all. What I cannot accept is the xenophobic slurs. Zimbabweans, like other Africans, role out the red carpet for South African businesses and tourists, only to be treated with disdain in South Africa.

If one reads the regretful manner I have been treated in South Africa, the negativity is very clear. That leads me to my closing remarks.

South Africa is at a Pan African crossroad. The continent helped South Africa acquire freedom, and will unlikely allow South Africa, in return, to benefit from the continents growth if it maintains its xenophobic attitude.

White South Africans must not believe that they alone can sue neighbours without being sued by their neighbours. South African's have sued the Zimbabwean government without being accused of extortion. If their business is protected by Zimbabwe, why is my business not protected by South Africa. South Africa comes from a prejudiced past, that is no excuse to subject its neighbours to that prejudice.

If South Africa holds Zimbabwe to account expect Zimbabwe to hold South Africa to account as well. Africans do not see white South Africans as super human, or immune to litigation, even though Adv Hoffman and Mr Leon, believe they are beyond reproach. South Africans are as African as I am, and vulnerable to lawful Court process irrespective of the delusions of grandeur and perceptions of my inferiority.

For every excluded Black South African Advocate, excluded woman, and marginalized Zimbabwean on South African soil, I will pursue my lawful process  with the Competition authorities. Mr Leon and Adv Hoffman SC, and other arrogant prejudiced South Africans, will not derail the will of the black African majority on the continent, and the principles of equality amongst persons.

Simba Chitando is an Advocate of the High Court and Member of the Cape and Johannesburg Bar

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