Race put at the centre of Joburg Bar Council dispute

The Duma Nokwe Group of Advocates — one of the biggest black advocates groups at the Johannesburg Bar — has demanded that the bar council retract a recent resolution on chambers, saying it had racially stigmatised the group and perpetuated the notion that black people were not professional.

In a letter from the group leader, Wisani Sibuyi SC, the group said the bar council’s resolution — that members of the Johannesburg Bar could not share chambers with advocates who were not members — had an indirect discriminatory impact that could be “considered as racial discrimination in breach of section 9 of the constitution”.

The advocates profession, particularly the traditional bars that fall under the General Council of the Bar (GCB), has long been criticised for its slow pace of transformation. The latest GCB statistics still put most advocates as white. The bar is also still finding its feet in the sea change brought about by the Legal Practice Act, which has fundamentally altered the regulation of the legal profession.

With the blow from the Covid-19 pandemic to people’s practices, which — says Sibuyi — has caused particular financial hardship for black advocates, this fight among the counsel at SA’s biggest bar may be the last thing the profession needs.

The resolution has already led to the resignation of former bar leader Ishmael Semenya SC. Semenya is also the leader of Pitje Chambers, which “together with Duma Nokwe represents the largest number of black advocates practising in the same building”, said Sibuyi.

The chair of the council, Sesi Baloyi SC, said a new bar council had only recently been elected and that the letter and the “potential impact” of the resolution would be considered as a matter of urgency when it met on Tuesday.

“I can’t pre-empt anything before the meeting,” said Baloyi. She said it was clear that members had different views, but that this was something that could require “a conversation that brings both sides of the debate together to address the concerns”.

Pitje Chambers has 74 advocates, 15 of whom are not members of the Johannesburg Bar. In Duma Nokwe’s case, it is only five of 90 who are not members. The five had previously been members, but their membership was terminated after they failed to pay bar dues because of financial pressures, Sibuyi told the Sunday Times.

The resolution ‘caused panic, anxiety, and fear among  members ... particularly among  the juniors’ 

—  Wisani Sibuyi SC, leader of the Duma Nokwe Group of Advocates

He said the bar council did not give them an opportunity to appeal or negotiate. “The Johannesburg Bar Council does not stand for transformation. The Johannesburg Bar Council stands for rules, and they stand for money.”

Baloyi said this was unfair. She said before anyone’s membership was terminated for non-payment of bar fees they were given a chance to make payment arrangements, “and many do make arrangements”. Termination was a last resort and juniors who had fewer than eight years at the bar were treated less strictly. She said that since the lockdown, some financial relief was granted on the payment of bar subscriptions and it “remains available on a need basis”.

In his letter, Sibuyi said the resolution had “caused panic, anxiety, and fear among the members of the Duma Nokwe Group, particularly among the juniors”. Juniors had started making inquiries at other groups, some had left and prospective applicants had opted for other groups, creating instability.

The resolution specifically named Pitje Chambers and the Duma Nokwe Group, giving them some time to get their affairs in order. But by doing so — “whether intended or not” — the group had been stigmatised, said Sibuyi. “The perception … is that the Duma Nokwe Group has not been conducting itself in terms of the professional rules.”

Baloyi said she understood Sibuyi’s concern on stigmatisation because the resolution “on its face” did not show the story behind it. The two groups were named to provide clarity and certainty to their members that they would not be held as unprofessional for sharing chambers with non-members.

Sibuyi told the Sunday Times that the Duma Nokwe Group was already at a disadvantage as a predominantly black group because its members did not often get briefs from the big white law firms as often. When the profession came under financial strain — as it did during the pandemic — it was the black advocates, particularly the juniors and women, who would have felt it more.

Baloyi said a dedicated team of council members had been assigned to consider the consequence of the resolution “in order to guide discussion” since the resolution that had caused all the trouble would come into effect on a date still to be decided. The bar council was already engaging with the five members of Duma Nokwe to reinstate their membership. Asked whether there was a way for the two sides to find each other, she said: “I have to believe there is. Anything else is too ghastly to contemplate.”

• Rabkin, Sunday Times legal correspondent, is also the editor of Advocate, the thrice-annual journal of the General Council of the Bar.