MIKE SILUMA | Lawyers’ BEE fight is the sharp end of the transformation struggle

It is telling that 30 years after the arrival of democracy the country is still arguing about not just whether economic transformation is necessary, but what it should look like.

This week the standoff played out in the high court in Pretoria as four of the country’s big legal firms — Norton Rose Fulbright, Bowmans, Webber Wentzel and Werksmans Attorneys— challenged the introduction of a new legal sector broad-based BEE code. They are backed by trade union Solidarity.

The policy change, aimed at increasing black ownership and influencing briefing patterns in favour of black advocates, among other things, is supported by legal bodies such as the Legal Practice Council, the Pan African Bar Association of South Africa, the National Association of Democratic Lawyers and the Black Lawyers Association.

In the august confines of the high court, the showdown between supporters of the new policy and its opponents might have looked like a closed-shop tussle about matters exclusive to the legal sector, perhaps best left to them to resolve. In reality it is the sharp end of a broader, stuttering struggle to transform South Africa into an economically fairer, more representative society after the supposed demise of apartheid three decades ago.

The delay is odd because B-BBEE legislation derives from the very constitution our democracy is founded on, which all sections of South African society are presumed to have signed up to in the heady days post Codesa. The constitution that is claimed to be “the best in the world”. Even those on the right wing of the political spectrum don’t hesitate — when it suits them — to lean on it to advance their political objectives.

Part of the resentment stems from a belief that B-BBEE is, in fact, a freestanding fetish of a rapacious black elite

Drawing from the spirit of the constitution, B-BBEE legislation states as among its objectives “the achievement of the constitutional right to equality”, increasing the “broad-based and effective participation of black people in the economy” and advancing “a higher growth rate”. It also seeks to increase employment and foster a “more equitable income distribution” in the country. Aims which all progressive and fair-minded people should have little difficulty supporting.

The question, then, is why has B-BBEE remained a national sticking point when its potential benefits to nation-building and economic growth should be self-evident? And why should it still require legislative compulsion and punitive sanction?

Could it be because, instead of treating it as a critical part of a national quest to make South Africa a place of equal economic opportunity for all, we made it private and optional — meaning only companies afraid of negative economic consequences bothered to transform themselves? Those who didn’t need government business, for instance, were left free to stay racially exclusive.

In the legal field, central to this week’s hearing, a lack of transformation has in many cases not even served as a hindrance to getting government business.

Tensions over B-BBEE have been simmering for a long time between those who feel short-changed by the post-1994 dispensation and those who resent sharing opportunities they believe are their entitlement. Part of the resentment stems from a belief that B-BBEE is, in fact, a freestanding fetish of a rapacious black elite, unconnected to the constitutional obligation to make society more egalitarian.

Of course, B-BBEE is not a perfect equalising instrument. It has, therefore, engendered both justified and unjustified criticism, the latter often used as a barely veiled excuse to avoid, or oppose, transformation. Disingenuously, opponents have called it “reverse racism”. But that’s the subject of a whole different column.

This week, B-BBEE moved to centre stage in public discourse because it affects, and is being defended by, a section of the black middle class who, having been co-opted into the privileged ranks of our deeply unequal society, dare to demand more opportunities and a greater share of the fat of the land. Unlike the majority of black people, the black middle class does have a voice. It can speak for itself and even tussle with the mainly white economic establishment for a share of the country’s spoils.

But keep in mind that the case only scratches the surface of the broader inequality question. We have not started to speak of the millions of black people who are still excluded from economic activity. The ones who form the vast majority of the jobless. The youth, crushed by a 40% unemployment rate, who will become adults without ever having seen a pay cheque or being able to meet the human needs we all consider basic to our wellbeing.

So if we stand against economic transformation, what are we to say to them? That they must just grin and bear it? And wait for crumbs to trickle down from the main table of the rich of all races? It would be helpful to remember that apartheid and its lingering effects had, and continue to have, an impact on not only the minority who have joined the ranks of the black middle class but the majority of black people as well.

At its heart transformation must seek to end economic inequality and poverty and have meaning beyond those fortunate enough to have a job, ownership or high positions in business or government.

As Nelson Mandela famously stated: “Poverty is not an accident. Like slavery and apartheid, it is man-made and can be removed by the actions of human beings.”