A STORM has erupted about the lack of black counsel in the landmark silicosis class action case against gold mining companies, with the most vociferous criticism coming from black advocates at the Johannesburg Bar.
As the case got under way on Monday there were already mutterings about the fact that out of nearly 40 counsel involved, only three were black while every single senior counsel was white and male. The three teams representing the mineworkers in the case raised eyebrows as they do not have a single black advocate among them. This prompted remarks about the irony of lawyers who fight for the poor and for black people but do not replicate this commitment when hiring in their own practices.
This hit home when well-known public interest attorney Richard Spoor, representing the former mineworkers, on Wednesday responded to criticism by saying his team of advocates was all-white because his firm briefed counsel willing to work for a reduced rate and it was an “exceptional” team. But his response drew criticism and raised the ire of some in the legal community.
The silicosis case could go on for years and give the junior counsel involved an opportunity to work closely with some of the best silks in the country. But the fact that it is dominated by mostly white and male counsel is seen as a microcosm of the on-going problem of discriminatory briefing patterns, wherein white male advocates tend to get the big cases. This reinforces patterns of privilege and disadvantage in the legal profession.
This also has a knock-on effect on the appointment of judges. In most instances white male candidates vying for bench appointments tend to be on a better legal footing in terms of experience compared with black and women candidates, who struggle with access to opportunities.
Mr Spoor responded to the criticism in a Facebook post and admitted that white men dominated in the silicosis case, adding he had in the past briefed black advocates. But he said his team was all white in this case because his firm used counsel willing to work for a reduced fee.
“That means counsel with an avowed and sincere commitment to public interest law. Second, we only brief exceptional counsel,” he said. This meant juniors who had graduated “summa cum laude” (with an average of over 80%) and “who quite frankly border on genius”.
“The number of black counsel who meet both these criteria are really small. Those who fit the bill were otherwise engaged when we needed them,” he said. He added that the kind of work he did “doesn’t leave much room for charity or experimentation”.
But his remarks infuriated some black advocates, who said Mr Spoor was implying they were greedy, not committed to the public interest and unexceptional.
In a statement, 12 black advocates said Mr Spoor’s “insulting statements” were the product of “whiteness — something much deeper than skin colour. Whiteness is an ideology, a world view, as well as a way of being and seeing”.
The advocates — including highly respected senior counsel Dumisa Ntsebeza, Vincent Maleka, Azhar Bham, Gcina Malindi, Muzi Sikhakhane, Vuyani Ngalwana and chairman of the Johannesburg Bar Council, Dali Mpofu — said this type of thinking “extends at times to even those among our white colleagues who consider themselves, and are considered by others to be, progressive”.
“One’s history in the struggle is no licence to spew this sort of unbridled and unmitigated racism against colleagues simply because they are black,” read the statement.
The National Association of Democratic Lawyers said its members “have never sought or advocated for charity and patronage from the privileged who command our country’s economic and social destiny”.
“We shall only continue to agitate for a complete transformation of the legal profession and the socio-economic order of our country. Only such transformation will create a non-racial, non-sexist and democratic society that we have always fought for.”
Speaking to BDlive Mr Ntsebeza, national chairman of Advocates for Transformation, said Mr Spoor had articulated what many white lawyers were unwilling to say publicly, and what many “so-called human rights lawyers” were practising.
The comments were offensive, he said. Referring to Mr Spoor’s “summa cum laude” remark, he said: “Some of us were lucky to even get to university. Some of us studied by candlelight, because there was no electricity.”
Mr Spoor said the pool of advocates from which he briefed was small, “the cream of the bar”, but it included both black and white advocates.
“I am acutely aware of the sensitivity around race issues and I consciously and deliberately sought out black advocates who could participate as members of my team. Those that I approached were not available and I am not going to embarrass them by naming who I think is exceptional,” said Mr Spoor.
He added that, in the recent Mankayi case — also about silicosis — his firm had been blacklisted by the bar for not paying counsel. As the case was appealed through the courts, finances had dried up and he had been forced to argue the case, which he won, before the Constitutional Court himself.
The mineworkers in the silicosis case are represented by three legal teams, with four senior counsel among them: Wim Trengove, Gilbert Marcus, Geoff Budlender and Alan Dodson.
On Friday the advocates briefed by Mr Spoor wrote to their bar council, distancing themselves from his comments and apologised.
“The three initial members of our team (Geoff, Alan and Steven [Budlender]) must, and do, shoulder responsibility for not ensuring that black advocates formed part of the team,” read their letter.
Mr Trengove said the silicosis case did reflect badly on the profession. “We have failed to do enough to promote our black and women colleagues; and we should all do more to do so.”
Theoretically, attorneys choose their advocates and Mr Spoor said the advocates on his team should not be blamed for the attorneys’ choices.
But in practice the seniors often have a say on which juniors are brought on board. Mr Trengove said silks do play a large part in determining the composition of a legal team and probably did not do enough (in this case to ensure there was more diversity).
Mr Trengove also said there were sometimes good explanations for the composition of particular legal teams with this case being a good example, as he was the last member brought on board. In this case, he, as the silk in his team, did not choose his juniors. “But that is the exception,” he said.
Mr Marcus, briefed with one in-house legal counsel by the Legal Resources Centre (LRC) and paid for by Legal Aid SA, said he endorsed Mr Trengove’s views.
In a statement the LRC also distanced itself from Mr Spoor’s comments, adding that it had been involved in litigation over silicosis for over ten years and had, at different stages, briefed black and women counsel.
“If the class action proceeds to trial, the LRC will inevitably engage other lawyers to take the case forward,” said the statement.
There are six legal teams representing the 32 gold mining companies fighting against the certification of the class action.
Hogan Lovell’s team, representing Harmony, had one black junior counsel, Lwandile Sisilana, on brief; and Goldfields, represented by Norton Rose, had baby junior Realeboga Tshetlo.
The friends of the court, represented by public interest firm Section27, had the only black woman advocate on brief in the entire case, Adila Hassim. The other teams representing the mining companies do not have any black counsel. There are six white women advocates in the case.