---

Letters to the Editor

• PO Box 36626, Menlo Park 0102

• Docex 82, Pretoria

• E-mail: derebus@derebus.org.za

• Fax (012) 362 0969

Letters are not published under noms de plume. However, letters from practising attorneys who make their identities and addresses known to the editor may be considered for publication anonymously.

Is everyone equal before the law?

I have noted the comments of Vuyo Tshiki in the letters column of the June issue of De Rebus (2013 (June) DR 4) concerning the failure of the Judicial Service Commission (JSC) to appoint white male candidates, save in exceptional circumstances. I submit that such conduct flies in the face of s 9 of the Constitution that states unequivocally that everyone is equal before the law.

Although the Constitution states that adequate measures must be taken to advance persons disadvantaged by unfair legislation, sight must not be lost of the fact that, according to the Constitutional Court, such measures must be fair and not over-hasty and arbitrary. They must ensure equitable representation.

The reality is, due to our troubled past, measures must be taken to empower certain groups and thereby fulfil a laudable social objective. There are two concepts of equality, namely substantive and formal equality. The latter entails merely providing the previously marginalised with the same rights as the previously advantaged. Substantive equality, on the other hand, entails taking positive measures to empower certain groups (C Albertyn and B Goldblatt ‘Facing the challenges of transformation of an indigenous of equality’ vol 14 part 2 (1998) SAJHR at 248 – 276).

The trouble with affirmative action in this country is that, unlike its application in other countries, South Africa is the only country where it works in the favour of the majority. Affirmative action is not always applied fairly in this country. For such measures to be fair, they must not discriminate against the minority by barring them from employment.

It is also disconcerting that black economic empowerment is often exploited by certain white businessmen in order to secure lucrative business deals.

Another sad reality is that, due to the turbulent history of South Africa, racism is sometimes classified as racism when it discriminates against black people only. Should the JSC have opted not to hire black candidates, such conduct would be condemned. In this country there is, furthermore, no such thing as an over-representation of black employees in an organisation.

On the contrary, we continuously hear that an organisation is 100% black owned without any eyebrows being raised. Even an organisation named the Black Lawyers’ Association is acceptable. However, I doubt whether anyone would approve of a ‘White Lawyers’ Association’.

However, on the other hand there are many competent black attorneys who are deemed incompetent solely on the basis of their skin colour. This is because apartheid instilled a false sense of superiority in the minds of some. Many young candidate attorneys from previously disadvantaged backgrounds struggle to secure meaningful work because they do not own a car or have sufficient computer skills.

I was also on the aspirant prosecutors’ programme where it was alleged that my accent was a ‘limiting factor to my presentation and oration skills’ and that it ‘limited understanding in court’, despite the fact that no magistrate or attorney ever seemed to have an issue with my ‘accent problem’. On the programme there was a young black man who had to be given a book by the tutor to improve his English. I thought we lived in a multi-cultural society in which even our elected officials have accents.

The passing over of competent white judicial candidates certainly is prejudicial to the candidates but foremost to the employer and the public, since these candidates could have provided much needed skills imperative to the administration of justice.

In 2009 I was informed by an administrative manager of a certain institution that I would not be accepted as a professional assistant because I was white.

It will take a long time before South Africa becomes a country that will, according to the preamble of the Constitution, truly ‘belong to all who live in it both black and white’. We must all change our mindset.

Constantinos Constantinides,
attorney, Durban

A poor man’s perspective on the LLB degree

The rich and educated often talk and think for the poor and uneducated. This mandate is often self-imposed. This is an ancient practice harbouring back to when riches were measured by the number of wives, ploughing fields, children and stock one had and the social standing these possessions afforded.

Those who had no access to, or possession or ownership of these things were not even allowed to speak. This resulted in decisions being taken (without a mandate) on their behalf by those who were regarded as rich or who had a certain social standing.

The talk about the LLB degree is no different. None or very few people who are directly affected by the degree have spoken up. The decision to change the curricula in consideration of the poor was taken without having heard their views. They do not have access to these discussion forums.

I am not speaking on their behalf, or as an observer, or as an unaffected commentator, but as a poor man for whom the four-year LLB degree was intended. The aim of introducing the new LLB was to improve access to the legal profession. This was done having considered that financial constraints often frustrate the poor’s ambitions if the studies would take too long. In South Africa, the majority of the poor is, and have been black.

We are still faced with the same difficulties. Black people are still poor and they are still the minority in the profession. If the study is prolonged, the poor man’s desire to join the profession will obviously be thwarted. The noble aim of balancing the historical imbalances will remain a dream for years to come.

The proposition that new LLB graduates are of poor quality is an assumption by the observers, unaffected commentators, the rich and the privileged. It is also an assumption that the poor performance of new LLB graduates is as a result of the length of the programme.

In South Africa, we have always had the BProc degree and I hold a BProc degree only. It is a four-year course and there had never been an outcry about the quality of the graduates. In fact, some holders of BProc degrees are judges in the highest courts in South Africa. I appear in lower and superior courts with no difficulty at all.

Critics of the LLB degree come up with no scientific measures of quality. I know a number of new LLB graduates who perform very well. There are also issues with regard to the attitudes of the presiding officers, especially towards black practitioners. Their approach is so negative that one may even feel unwelcome. This attitude is rare in superior courts, but rife in lower courts.

The problem may be broader than we think. Let us think out of the box.

I have not exhausted my views but felt I must open the debate by offering a different perspective.

Senzo Lawrence Buthelezi,

attorney, Grahamstown

---