By Pinky Khoabane
Transformation of the judiciary including racist counsel briefings come under scrutiny in the Western Cape High Court later this month when Advocate Fairuz Seria takes on the Cape Bar Council and three others. Hers is a case that started with the decision by a group of advocates calling itself Group 10 to increase what is called floor dues. Seria shares office space with Group 10. Floor dues include salaries of a shared reception, secretarial staff, cleaning services, et cetera. In a meeting to vote on the fee increase, Seria voted against because she couldn’t afford it.
The R500 by which this fee was being increased may seem trivial but it isn’t for Black advocates who struggle to meet the financial burden that comes with setting up practice; this against a background of instructing attorneys who choose only white advocates to represent their clients in court. If you think of any high profile case, it is evident that most of the counsel comprises white men.
The legal profession, like much of South African industries, operates like a cartel. After being admitted as an advocate and completing pupillage, they must then sign a register to become a member of the Bar. There’s a monthly levy which they pay towards the Bar. In the case of the Cape Bar, over-and-above the levy, there are chambers selected by the Bar from which the advocates must choose. There’s the rent, the floor dues and day-to-day expenses which the advocates have to pay while still waiting to be briefed. For the white, largely male advocates, the network of over 350 years of colonisation and apartheid gives them a head-start in their legal profession. The legal business is ring-fenced to the advantage of a few.
In the case of the Cape Bar, it dominates the buildings in the vicinity of the court and makes it compulsory, by virtue of being a member of the Bar, to set-up practice only in those buildings. In terms of Seria’s affidavit, the Cape Bar precludes the landlords in the buildings they have allocated for their members, to allow non-members of the Cape Bar. These landlords cannot go against the will of the Cape Bar Council, they are beholden to it for the sustainability of their business. This in my view is anti-competitive behaviour which probably warrants an investigation by the Competition Commission. The advocates are also beholden to the prestige that comes with being a member of the Bar. There are also numerous conditions attached to being a member of the Bar and failure to comply leads to expulsion.
And so in the case of Seria, who couldn’t afford to pay the R500 and decided not to as she questioned the justification of the increase, the cartel simply closes in on the tenant, makes life difficult as in withholding services like the telephone and before long, what could be a lease dispute between tenant and landlord ends up at the head of the cartel, the Cape Bar Council in this case, and the advocate is expelled from the Bar. Seria is challenging the decision by Group 10 to increase the floor dues and subsequent decisions taken including expelling her from the Bar.
Her case, which on the surface seems like a lease dispute goes to the heart of the debate on the transformation of the judiciary. Universities can produce as many black and women advocates as they want, it is useless if they cannot work. Courts must begin to audit the race and gender of counsel appearing in the courts in order to judge briefing patterns. The question is what the judiciary will do when they confirm what is plain for all to see.