The legal profession's degrading election

Mark Oppenheimer writes on the quota system imposed on voting for the new Legal Practice Council

The Republic of South Africa is one sovereign, democratic state founded on the values of non-racialism and non-sexism. Constitution of the Republic of South Africa

For the first time in our history, advocates and attorneys will be governed by the same professional body. This legal practice council (“LPC”) will play a pivotal role in defining the future of the profession and will be tasked with regulating the conduct of legal practioners. The profession is currently in the process of voting for sixteen candidates to serve on the LPC. However, the election is a dramatic departure from the democratic norms of the new South Africa.

Instead of following the principle of “one person, one vote”, where the candidates with the most votes are elected, this election will eliminate participants based on their race and sex.

Even though a large contingent of well qualified black women are contesting the election, it has already been decided that only six black female advocates and attorneys will be allowed to serve on the LPC. If the electorate choose a seventh black woman to represent them, she will be removed from the LPC on the basis that she is not white and not a man.

The electoral body, EISA is running the election on behalf of the National Forum on the Legal Profession. Each ballot that has been sent to legal practioners states that a strict racial and gender quota will determine the outcome of the election. For advocates, “two black women, two black men, one white woman and one white man with the highest number of votes in their respective categories” will be elected onto the LPC. For attorneys, the number shall be “four black women, three black men, one white woman and two white men.” Both EISA and the National Forum were given an opportunity to respond to the use of race and gender quotas in the election, but they declined to comment.

It is degrading to a candidate, who would have won a free and fair election, to be eliminated because of an accident of birth. Furthermore, it undermines the democratic will of the electorate to disregard their votes because the candidate they chose does not match a predetermined quota.

Racial quotas are at odds with the Constitution’s commitment to non-racialism. They make racial identity as important today as it was under the apartheid regime. Instead of regarding individuals simply as fellow human beings, people are encouraged to think of others in terms of their racial identity.

This hinders the vital goal of racial integration and encourages people to divide themselves into separate and distinct racial groups. Instead of creating a pluralist society where everyone can feel proud of their heritage, racial quotas make many citizens feel less worthy.

The Constitutional Court recently held that a statute which used racial quotes was invalid and unconstitutional. The Court stated: “when dealing with remedial measures, it is not sufficient that they may work to the benefit of the previously disadvantaged. They must not be arbitrary, capricious or display naked preference. If they do they can hardly be said to achieve the constitutionally authorised end. One form of arbitrariness, caprice or naked preference is the implementation of a quota system, or one so rigid as to be substantially indistinguishable from a quota.”

Instead of embracing the ideals of our constitutional democracy, this election harks back to PW Botha’s racially divisive tricameral parliament. Botha assumed that races could only be represented by members of the same group, which amounted to a rejection of the universal franchise. In 1984 South Africans showed their distaste for this illegitimate parliamentary system by boycotting the election en masse. It remains to be seen whether today’s legal practioners will have the moral fortitude to object to the LPC election.

Mark Oppenheimer is a practicing advocate at the Johannesburg Bar.