Tuesday, November 12, 2013

ANC threatens 'Black Tax' for law firms?

I strongly believe that all South Africans are capable of real greatness. I strongly believe that black and white South Africans have great inner potential. Both can achieve the height of their profession with the right environment and preparatory steps. The problem with the current ANC perspective, is that rather than focussing on improving the education and cultural understanding of those who were disadvantaged by Apartheid, or whose parents might have been: the ANC treats a job, or a share in a company, or spot in education, much like an extension of government welfare programs. Employment should be the exchange of real use for real use: not an extension of government policy and politics. Unfortunately, a job seems to be not a service but a right and possession to the ANC, perhaps this is what scares many global businesses away from doing business in South Africa. They find suddenly that they are unwillingly part of the welfare state, they are not there to gain, but to give: the weary companies quickly bolt as fast as they can elsewhere. This ANC practice makes no business sense: forcing companies to act to their disadvantage when our neighbours allow conditions efficacious to economic growth.

Whether or not someone can do a job they are given by force and heavy taxes on those who don't give them it, this occurs. Those who govern industry are appointed by skin colour and not because they will govern the nation's industries best. Rather than improve on literacy and education and make black graduates as well prepared for the workplace as many white graduates, the approach has been to let them pass when they shouldn't be allowed to pass. Failing a course and redoing that course is a gift; it means you are actually competent to work in such a field and to work to make money in it. White and other graduates who failed a course and re-did it, are advantaged by this.

 In ADR we were taught that big businesses increasingly are turning to white advocates in private courts to resolve disputes. Why? The curriculum informed us that this is because businesses are losing trust in the courts: because the grand design of skin colour appointments has been viewed as making a trial a gamble: will the judge hearing a case decide it correctly, or has he merely been appointed for his skin colour without adequate knowledge of law?

There are many deeply competent black professionals, unfortunately BEE makes people who have a lot to lose prefer to go with someone who has been put through a harder test. Special forces personnel are only allowed in after they take rigorous punishment. That high quality standard for entry is why they are cherished. The logic goes that a white professional must be very good to get a job despite government disincentives to hiring them. A child who inherits a family business while never running it, might likewise not actually have the skills required.

The government is once again shooting itself in the foot:

'"In 2011, the majority of LLB graduates were African [at] 1784, 355 were coloured, 404 were Indian and 1268 white," Jeffery said in a speech prepared for delivery at a general meeting of the Law Society of the Northern Provinces, at Sun City, on Saturday.
'The majority of graduates were also female, at 1954, compared to 1622 males, he said. '"However, what is more startling is the fact that, despite the majority of LLB graduates being African, it is still the white graduates who are getting articles. '"The Law Society of SA's figures show that the Law Society of the Northern Provinces has just over 12 000 practising attorneys. Of those the overwhelming majority of 8207 are white, with 3165 African." 'The LSNP serves Gauteng, Mpumalanga, Limpopo and North West. ''Disheartening picture' 'Jeffery said that in all the provinces, 1104 articles of clerkship were registered 2012. Of these, 587 candidate attorneys were white, 412 were African, 89 were Indian and 16 were coloured. '"If one looks at the profiles of our law firms, it paints a rather disheartening picture," he said. '"For example, if one looks at some of the firms who constitute the so-called 'big five' of our firms, there is cause for concern about the lack of representivity, especially on the level of directors or partners. '"My office found that in one of the 'big five' firms there are 123 partners, of whom 93 are white and only 30 are black. Of the 30 black practitioners, only 17 are African."'Jeffery asked why, if it was possible for smaller law firms to have majority black ownership, it not possible for the bigger firms.'
(SAPA 'SA law firms still pale and male' Mail and Guardian at 10 NOV 2013 12:50)

Note, he does not look at the marks the graduates achieved. The statistics are clearly not based on efficacy but merely a focus on skin colour. Pigmentation. Ethnicity. Race.

What is the real difference? Usually marks, usually ability. Law firms are not racist, they like money too much to be.

Articles go to graduates with high marks who impress in interviews. As a law student who just recently passed my final exams, I have been shocked in the past by the standard of work a black or non-white student can hand in and still pass when a white student writes perfect English and cites correct authority, but fails: the same seems to go for matric This is no favour to the black student involved in it, nor is it a favour that plagiarism is passed over: in fact it means they cannot learn and grow to become better as a legal practitioner. Failing is an important part of passing, where necessary. 

Foundations of Law, Latin and so much have been scrapped because students have come from a schooling system, ill prepared to function in higher tertiary education. These people are accepted not because they can handle tertiary education which they must pay for and take out loans for, but due to quotas. Often they drop out in the first year. For LLB, every year: half the students drop out. 

Rather than have basic English and accounting taught, literature and film are studied. Many black South Africans are not first language English, but this is not remedied: putting them at a deep disadvantage in attempting to fulfil a job based almost entirely on language and comprehension, communicative art. Law is all about language, and independent thought, but largely it has been reduced to something like a trade, where exact repetition is required for marking rubrics rather than creative intelligence. Often lecturers are hired to fulfil quotas rather than for their abilities, and often students are admitted for skin colour not ability to handle varsity level work. This false equality hurts the recipients of it, who otherwise could have received real equality: top notch education, and training to make them equal to what the government wants them to be treated as.

If white students still excel, it is because they were taught to do so in their schools prior university, and because they try much harder to gain a job: due to the insurmountable obstacles government attempts to lay in their way. A job is not then a possession, but a service, to which they are not entitled to, but earn. That is particularly a pertinently, very, extremely different mind-set: a realism which forces striving.

Many large businesses now turn to arbitration with white advocates and the rules of court to settle disputes. Why? Transformation. The same curse the ANC continues to spell upon all black South Africans whether they deserve to be associated with it or not. No one wants to lose 1 00 Million Rands, because the judge appointed was appointed out of a government design, and not because he is competent. No, instead: if a black judge is appointed, it should be a black judge who knows the law. Let us not pretend that it is not possible to have black judges at the same calibre as white judges. Let us also not pretend that those judges who are incompetent in every meaningful way should have been appointed. Instead, let us realise that judges must be appointed for ability and not for skin colour.

BEE de facto says a company must hire someone even if they are not as competent for the job. Doing so practically risks loss of revenues for a company. Big firms must give away large parts of ownership to black people merely for skin colour or be fined. Demanding charity to someone: making a job their possession rather than: their service in exchange for fair or proper remuneration: terribly makes such job a government tax on a company, as does redistribution via BEE and BBBEE. This is government forcing business to act a way to fulfil government mandates. Do people like tax collectors? Do they want someone to do a job in: the nightmare scenario: where they possibly were pushed through school and varsity, and into a firm due to their skin colour: due to government designs that are false equality? If BEE did not exist, a black employee might be viewed as superior: they got there, they made it. With BEE, a question mark is forced over black professionals: are they there because of government using companies as a means of welfare, or are they the person who knows their job best or adequately?
People by in large statistically don't hire black attorneys or black advocates because they are perceived as incompetent. This includes the ruling party. Why are they perceived as incompetent? Because the government demands they are given jobs whether they are competent or not. A black professional might be very competent, but anyone hiring one has the realisation that they might have got there through competence or they might have got there because of a grand design of government: a forced hand-out to someone who cannot do the job they are assigned.

I believe in real equality: don't treat unequal as equal. Don't equate a graduate who will make a firm millions or billions with one who will cause it trouble time and again. These are not equals: because one is efficacious while certainly and without doubt the other is not. I am not saying one is white and the other is black: no: an incompetent white person is as much a disaster as an incompetent person from any race. Even then there are levels of incompetence: but a person from any race can be deeply incompetent.

So how can real equality be achieved?

1.     Ditch BEE for a start: it creates an impression that whites have to work for their job while blacks have it handed to them. It creates the impression that a job is a right not a privilege for a black, and a privilege not a right for a white. Like the Phoenicians, white South Africans work their hardest despite being discriminated against, and strive: they know they have to fight for anything or they will be destroyed. Entitlement however makes people less likely to try hard, they are more likely to demand a job than earn it. And those who try less hard give others who try a bad name.
2.     Allow salaries to be more determined by work put in, than by union demands. BMW is the tip of the iceberg, ANC policy is destroying South Africa's chances.
3.     Introduce proper English language and grammar courses as mandatory. The reasoning goes without saying: law is about language. So, is business.
4.     Introduce Latin courses. Much of law is in Latin, or based thereto.
5.     Make Afrikaans mandatory: much of law is in Afrikaans.
6.     Introduce logic courses. Law is principle, but often students are taught ideology. This hurts them in the field. Ditch Marxist, socialist rhetoric for principle.
7.     Make ethics courses a mandatory part of law. Not just the sort of courses which might teach what a lawyer can get away with: proper courses on why ethics are important, on why being morally upstanding is important.
8.     Introduce mandatory courses on financial management and sound budget processes.
9.     Introduce basic mathematical and English learning.
10. Stop pushing people through the system because of their skin colour. Giving someone a certificate does not give them an opportunity. Fail those who should fail: they would benefit from redoing a course and actually knowing the work.

I strongly believe that a black attorney can be just as good as a white attorney. Either the government believes all whites are racist, or that blacks need a hand-out, charity, welfare to succeed. Either way, the real way to achieve good work for black South Africans is to prepare them to be good at the work they elect to do. Can we stop having this stupidity, that is BEE: that destroys the economy and the reputation of blacks in law and elsewhere?

 Can we instead focus on the good of all South Africans by improving on our people as other nations do: be it education, good policing, and an environment for all-round improvement. Without the right environment, and preparatory work, who, if any, can succeed? We need to create equality, which in some spaces exists. We need to create real opportunities by adequate, world class preparatory work.


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