Raising the bar for senior women advocates

While the briefing of Advocates Tembeka Ngcukaitobi SC, Wim Trengove SC, Ngwako Maenetje SC and Geoff Budlender SC to help with the investigation and prosecution of state capture crimes is to be welcomed, the University of Limpopo’s Professor Omphemetse S Sibanda has questioned why no female advocates were chosen to work alongside their male counterparts. ‘The issue of gender parity and diversity in respect of the legal profession is an ongoing concern, and has been so for decades. More concerning is when female legal practitioners are not considered worthy of high profile cases by the state,’ he says, in an analysis on the Daily Maverick site. ‘I am not against the appointment of the four advocates in question; my concern is the impression created that high profile cases in SA are reserved for men and characterised by the recycling of a few top-notch legal practitioners.’ Sibanda suggests the likes of Lindi Nkosi-Thomas SC, Beverley Fourie SC, Adelé de Wet SC, Lesego Matlhodi Montsho SC and Kgomotso Moroka SC would be perfectly suited to represent the demographic profile of the SA legal profession. Accepting that sexism at the Bar and inequitable briefing patterns are broader than the appointments in connection with state capture, Sibanda notes the Bar has been trying very hard to self-regulate on this matter. The Johannesburg Bar in 2016 took a resolution that it would ‘henceforth constitute unprofessional conduct and therefore a disciplinary offence for lead counsel to accept or remain on brief where there is a team of three or more counsel on brief in a matter and no member of the team is a black person’. Unfortunately, he says, this resolution did not particularly foster the briefing of women.

Sibanda looks at what needs to be done to address the issue ‘holistically and comprehensively’. He suggests the Minister of Justice and the Legal Practice Council may have to think along the lines of the Law Council of Australia, which in 2016 reformulated the regulatory initiative called the Equitable Briefing Policy (EBP). This aims to deal with the disadvantages experienced by female practitioners at the Australian Bar, and seeks to debunk the myth that in terms of the ‘trickle-up’ approach – which assumes that ‘the historical predominance of men in the field of law will simply resolve itself over time’ – no corrective action is needed. Sibanda notes the EBP was based on an investigation report that found women were not ‘receiving access to the number or the kind of briefs compared to their male counterparts’. Adds Sibanda: ‘The same can be said without hesitation about women legal practitioners in SA.’