“Candidate attorney wanted. Must be in possession of a valid driver’s license and must have own vehicle. Must be fluent in Afrikaans. Salary R5 500 non-negotiable.”
Structural racism is a complex, dynamic system of conferring social benefits on some groups and imposing burdens on others, resulting in segregation, poverty, and denial of opportunity for millions of black people.
South Africa’s history of apartheid, structural racism and racial segregation negatively impacted black South Africans’ access to education and professional opportunities and impacting the socioeconomic participation of black South Africans. The transformation of a united and racism-free South Africa has been spearheaded by the legal profession, yet it is ironic that the legal profession itself seems to be some light years away from transformation.
In 2016, the Law Society of South Africa in partnership with LexisNexis conducted a survey on the ownership of law firms in South Africa and found that that white legal practitioners were still dominating the legal profession, as 60% of the participant firms were fully white-owned and only 11% were fully black-owned. These statistics are unsettling because they are not a reflection of South African demographics. Any practices that favour the employment of one race over another in some form or another perpetuate this demographic imbalance. The legal profession is yet to be transformed.
Transformation is the implementation of fundamental changes in structures, institutional arrangements, policies, modes of operation and relationships within society. Transformation requires complete change in both form and substance. Access to justice requires the active promotion of legal services, access to legal work and access to the courts. A profession grasping at straws in relation to access for its own prospective members cannot meet its role of promoting justice and equality.
The Employment Equity Act acknowledges the existence of structural racism and acknowledges that as a result of apartheid and other discriminatory laws and practices, there are disparities in employment, occupation and income within the South African labour market. It also recognises that these disparities have created pronounced disadvantages for certain categories of people that they cannot be redressed simply by repealing discriminatory laws.
In a bid to uphold the right to equality, the Employment Equity Act is aimed at eliminating unfair discrimination in employment and at ensuring the implementation of employment equity to redress the effects of discrimination.
The Legal Practice Act is aimed at removing any unnecessary or artificial barriers for entry into the legal profession in order to create a profession that is broadly representative of the Republic’s demographics. The Legal Practice Act is also aimed at ensuring accessible and sustainable training of law graduates aspiring to be admitted and enrolled as legal practitioners through the practical vocational training contract.
Most South Africans cannot sing the “Uit die blou” part of the national anthem, let alone understand Afrikaans well enough to read and draft legal documents. According to Statistics South Africa, only 1.5% of the black South African population is Afrikaans-speaking and only 4.6% of the Indian population is Afrikaans-speaking, as compared to 75.8% of the coloured population and 60.8% of the white population.
In 2019, Statistics South Africa reported that less than two out of ten black South African households own a car as compared to nine out of ten white households.
Advertisements requiring prospective applicants to be fluent in Afrikaans or to be in possession of a driver’s license and own a car are most likely to preclude black applicants from applying.
It is therefore notable that the Legal Practice Council recently amended the rules regulating the hiring practices for candidate attorneys and pupils (Government Gazette Number 44068 published on 15 January 2021). The new Rule 22.1.11 and Rule 22.2.9 of the Legal Practice Act provide that it is misconduct for an attorney (in the case of candidate attorneys) or a training supervisor (in the case of pupils) to stipulate in an advertisement that an applicant must be in possession of a driver’s license or owns or has access to the use of a vehicle for use in the course of his/her prospective employment. The Legal Practice Council also prohibits these conditions from being included in the candidate attorney’s or pupil’s practical vocational training contract.
It can be correctly argued that the new amendments have simply prevented direct and blatant racism and have amplified structural racism.
Structural racism operates invisibly and is difficult to define succinctly. In form, the new rules seem transformative, but their substantive impact is yet to be seen. There is nothing precluding unrepentant law firms and training supervisors from shortlisting only white candidates for interviews and prospective employment because it is more likely that those white candidates will be in possession of driver’s licenses than black candidates. Admittedly, these new rules can be viewed as another case of “when law is out of touch with reality”.
However, with all their flaws and implementation gaps, these new rules are small but welcomed steps in transforming the legal profession.
Dictating obligations does not always guarantee the desired results. Predominantly white-owned law firms with inherently racist hiring practices will not automatically cease and desist from hiring their preferred candidates because of these new amendments.
It can be said that law firms have been given the mandate to select prospective employees from a pool of qualified candidates when in fact such law firms already have a preferred pool of applicants with a realistic chance of being employed. To effect real change for a transformed legal profession, legislation aimed at eliminating all forms of racism and discrimination must not be an aimless parrot.
Equality can only be achieved by implementing equitable solutions. There is still more to be done and such transformative tasks are long overdue.
While one part of the main exclusion provisions has been addressed, law firms are yet to be prohibited from excluding non-Afrikaans-speaking applicants. Therefore, advertisements that stipulate that a prospective candidate must be fluent in Afrikaans still effectively exclude black graduates from the application process and from serving their articles.
The Legal Practice Council should:
- address the salaries of candidate attorneys and pupils to ensure fair and adequate compensation;
- implement measures to make it easier for candidate attorneys and pupils to purchase vehicles and for their law firms and training supervisors to assist them in such endeavours;
- Recommend that the Legal Practice Act and its rules should be amended to provide a sanction for contradicting the prohibition against requiring candidates to be in possession of a driver’s license or to own their own cars. At present, the new amendments lack adequate enforcement;
- prohibit the Afrikaans language requirement from advertisements for prospective applicants and the use of Afrikaans in the workplace to the detriment of candidate attorneys and pupils;
- set up a Candidate Attorneys Board and a Pupils of the Bar Board as a support forum for candidate attorneys and pupils.
In South African Police Service v Solidarity obo Barnard the court held that transformation enjoins us to take active steps to achieve substantive equality, particularly for those who were disadvantaged by past unfair discrimination.
Transformation within the legal profession is a commitment to the Constitution and requires equitable efforts to ensure access to all those who were previously excluded.