Friday, January 20, 2017

A considered reply to a ‘Plight of a Black Law Graduate’ who spent unlucky years seeking after articles of clerkship.

A considered reply to a ‘Plight of a Black Law Graduate’ who spent unlucky years seeking after articles of clerkship.

Law is a difficult profession. It requires an excellent memory, near perfect comprehension skills, an ability to deal with clients and opponents, and a good knowledge of several languages, and at the very least, a passing knowledge of English and Afrikaans, the languages most cases are written in, and in which the courts conduct their business.

South Africa has 11 official languages, practically speaking, this means that anyone can go to court and have their testimony translated into English or Afrikaans from these languages. However, the languages of the courts in South Africa are only the two aforementioned tongues.

In Britain, court was conducted in Norman French for many years. It is where the term attorney (appointed) comes from, and it also largely limited the profession to the upper classes who could speak Norman. You might have heard the classic ‘ey’ sound with which the British pronounce French words. This comes from Norman French. While conducting trials in French, the British courts would use Latin as the language of record. Most legal concepts have thus been rendered in multiple languages: Peace and quiet; Breaking and Entering; and so forth.

In South Africa, Latin, Dutch, Afrikaans and English, are the essential languages of legal discourse. While I write, I have a trilingual legal dictionary sitting next to me. It is that important to be prepared.

A misplaced comma can and has cost millions of dollars in legal cases, and contract work. A misspelling in a will or legal letter can be catastrophic. Law is a profession which takes no prisoners, and which vastly favours suitors from the upper class, and with elite private school education and accents. I, like many in my profession, speak Cultivated South African English, or Received South African English, a dialect almost identical to the Received English spoken by the British nobility. It is a widely-understood accent, and research shows that speaking clearly and being easy to understand, makes people believe you are more likely to be telling the truth.

I spend tens of thousands of Rands a year on up to date legal literature, precedents and so forth, and I have a wardrobe including bespoke suits of the required type for court, and robes which are quite literally the funeral wear of the semi-wealthy of the Holy Roman Empire. If I make an error, I have sworn an oath, and thus can be sued for my negligence, as can my firm. Law takes no prisoners as a profession. It has to be so.

As LAWSA puts it:

'The Emperors Leo and Anthemius in their advice to Callicrates, praetorian prefect of Illyria, stated in the year 469 AD: “Advocates who explain ambiguous questions which arise in the course of litigation, and who, by the ability of their defence, frequently, in both private and public matters, restore the fortunes of those who have been ruined, are not less useful to the human race than if they had preserved their country and their relatives by taking part in battles and receiving wounds. For We, do not think that those who are equipped as soldiers with swords, shields and cuirasses should be considered the only ones who protect our Empire, but that the advocates, also, who have charge of cases contend as soldiers and, trusting in the glorious power of eloquence, protect the hopes, the lives, and the children of those who are distressed.”' (Law of South Africa, Volume 14(2) - Second Edition Volume, Legal Practitioners, Advocates, General, paragraph 112).

In South Africa, there are two education systems, one which some White South Africans, and many Black South Africans, have for years slaved to keep their children in, that of the IEB private schools, and the other provided by the government. Despite not speaking English or Afrikaans at home, if a student wants to pass matric, it must be in English or Afrikaans, no matter which government school they attend. There are arguments about whether the local languages are developed enough to accommodate advanced English and Afrikaans concepts, however, loan words would likely suffice in that area, the diktat is more policy than anything else.

Even if students were not learning in languages not their own, they still receive vastly inferior education in most government schools, where educators likewise are hired to fulfil quotas rather than on merit, and where teachers are vastly underpaid as is. Students are taught in English by teachers who themselves struggle to articulate in the language, and standards of learning are also affected by a void in resources, and underinvestment in the future of students, never mind a lack of nutrition, and the fact many students miss out on early learning prior to school, which is shown to bridge the recorded IQ gap between rich and poor (which can also be bridged by better nutrient intake and by reducing stress levels by either exercise prior to classes, or by enhanced policing to create a safe environment).

Universities are instructed by the government to essentially engage in practises akin to usury. They accept students by the droves into university, who they know cannot afford to pay fees, and won’t afford annual increases. These students often have to work part-time, affecting academic performance, and also have the struggle that comes with the added stress of not being able to afford their fees. Universities have introduced tutorials, and have continuously dumbed down the teaching of law as a result, but even then, the students able to access the law as it really is are often those able to afford textbooks, again those from the upper classes.

I often found that many of my lecturers at the University of the Witwatersrand Oliver Schreiner Law School themselves did not understand their subjects, and struggled with the English language. I would tend in those classes to take typed notes from other students, with different lecturers, with the money to buy laptops, and exchange my own typed notes in barter. Plagiarism and misunderstanding of English continued to be a mainstay for many students, right through to final year. Students were unable to do basic referencing, which IEB students were taught in school.

A famous law graduate and one who also gained a postgraduate degree in Oxford, is Ntokozo Qwabe, who worked as a checkout clerk at Checkers while making his way through law school. Besides the racist, anti-British, anti-French and anti-White rants which made him an international laughing stock at Oriel College and beyond, he struggles with basic spelling and grammar. He still cannot spell the word ‘Africa’, which he spells as ‘Afrika’. I tended to be someone other students let read their essays after we’d submitted them. I remember one Constitutional law lecturer giving me a something like a 0% for a well-researched essay, while one which was poorly reasoned and full of spelling, grammar and other mistakes but written by a student of the right colour, was given high marks. Because I got such high marks on multiple choice and in the final exam, I still passed the subject with high marks, but it shocked me that my fellow student also passed. Their level of argument would have gained them a failure even at high school level in the tougher syllabus of the IEB. Yet, that was enough for them to pass, in a profession based on argument and language.

As I have shown before, one of the reasons that Black advocates are often not briefed has nothing to do with their merit and ability, and everything to do with the universities’ policy of pushing through law graduates who cannot write or speak effectively in either of the languages of the courts, and the BEE program which prioritises race, not ability. White students who get into university, achieve this despite their skin colour, and those who graduate are sure to experience discrimination against them by lecturers, and to still succeed.

This also applies to pupillage, if you are not Black, then you had better prove why you deserve it or you are out. Having very lax standards for people of one race, and extremely high standards for those of another, can force those of the other to try harder.

The best chefs are often male, precisely because the system opposes them, as with many fashion designers. When Rome put unliveable demands on the Phoenicians, they upped their game and tried harder. While the Black lawyers and advocates I know are top notch, those who are there purely due to their skin colour have poisoned the well for everyone.

I have often had to defend fellow lawyers who happen to be Black, for instance, on Facebook, where their fellow Black South African friends say they would not hire them because Black lawyers are not as good. I tend to respond and say ‘so-and-so’ is just as good as any White lawyer.

Jacob Bongani Hlongwane, writing in golegal.co.za airs a letter (namely 'Plight Of A Black Law Graduate' [Which should properly be titled: 'Plight of a Black Law Graduate'], 5 April 2016) which he received from a reader of that publication, a nameless Black law graduate who had been attempting to gain articles of clerkship for two years at the time of writing. I think it is important, as it expresses incorrect and career limiting views which are often silently held.

Nameless, as we shall name him, has had it rough. He has been out of law school for two years and he hasn’t been afforded articles of clerkship. He cannot speak any Afrikaans, does not own a car, and says he cannot live on a R 3 000.00 a month intern salary. He sees all of these as structural obstacles designed to keep Black graduates out of the system.

My Afrikaans is far from perfect, but many important cases have been in Afrikaans, and I have often dealt with matters where everything important was written and communicated in Afrikaans. Asking that prospective attorneys be able to speak the two main languages of the legal profession, is not much to ask, and is logical.

Nameless specifically writes: ‘I stand corrected, but legal practice [sic, though I will not note his mistakes from here-on-out as there are many] is mostly concluded in English and thus it begs answers as to why the requirement to be able to speak Afrikaans, if a law firm’s clientele comprises of Afrikaans speaking individuals, I doubt it follows that they cannot speak English, thus rendering the Afrikaans requirement suspect and exclusionary.'

Yes, most Afrikaans people can speak English, but if a significant portion of clientele of a firm is Afrikaans, it makes sense for the firm to want their candidate attorneys to communicate with clients, to be able to read case notes and emails from clients, and to be able to conduct business as such. Also, pleadings and case matters are allowed to be in Afrikaans, and that candidate attorney would thus likely receive both correspondence from opponents in the language, and pleadings in it.

He goes on to say, again showing a very poor understanding of English: ‘The meagre salaries offered to candidate attorneys can be deemed exploitative at best and downright tantamount to slavery at worst. With a candidate attorney earning as less as three thousand rands per month.’

Which tells me that he has either not gained many responses, or has not looked at jobs websites, or has not sent his CV to many firms. In some parts of the country, candidate attorneys are paid low amounts like that, and sometimes attorneys can only afford that, but generally speaking, candidate attorneys are paid between R 5 000.00 and R 30 000.00 for their services.

In Johannesburg, candidate attorney positions are hardly ever advertised, that’s more of a Pretoria thing. If you want a position as a candidate attorney, it is best to get a copy of Horters, or download the contact details for attorneys in your area on the website of the local law society, and start mass mailing or e-mailing out your CV and letter of introduction. Such should be in PDF format, entirely free from any spelling or grammar errors, and should flow and read easily. Any spelling or grammar error, and firms tend to toss your CV in the trash. In the current competitive environment a candidate attorney aspirant should probably send their CV to at least 300 firms, which should get a good candidate an interview for every few dozen firms sent to.

Nameless has been without articles for two years and is working elsewhere in a non-legal position. In fact, he says: ‘An LLB degree without admission is worthless, legally impotent.’ This not only shows his poor understanding of words such as ‘legally’, but also shows his deep misunderstanding of the legal profession.

His misconception is unsurprising, as Nameless, despite his poor grammar and incorrect interpretation of what a lawyer is, and of articles, says quite clearly: ‘'When one studies towards an LLB the aim is mostly to become a lawyer. Either through articles to get admitted as an attorney two years later or serve pupillage and get admitted as an advocate a year later.'’

A lawyer is not just an attorney or an advocate. There are many legal jobs, from that of a compliance officer, to that of a legal adviser in a big company, to that of paralegal or legal secretary, to that of any number of positions. Most of these positions are filled by Black candidates, given companies’ needs to comply with BEE legislation which mandates discrimination. However, many of my White colleagues have gone that route with success. An LLB is also a shoe in to many non-legal jobs given the prestige associated with it, and can stead one well in management and upper level positions.

Many students, myself included, way back when I was a student, got out of university, and instantly signed up for practical legal training at the School for Legal Practice, which took a year off of our articles and better prepared us for the profession, as compared to those who went straight to applying for articles of clerkship. From there, we applied for positions and quickly got offers.

Nameless, in his despair, adds: ‘Here is the deal breaker, most law firms, whom I apply to on a daily basis, require an LLB Graduate to have own transport. Now, this is a deal breaker with a potential employer but then how do you begin to expect someone, a Black child, straight out of University to own a car? One can barely make ends meet and you are expected to own a car to be even considered for a shortlist.’

Own transport does not necessarily need to be a car, it can be a motorcycle, etc. The fact is, many candidate attorneys are required to act as messengers, serve, file, arrive at courts timeously and predictably, and to even be involved in evictions, etc. Without reliable, efficient, transport you cannot do the job of the average candidate attorney. It is of course possible to be a candidate attorney and not own or rent a vehicle, I know many who are in just that predicament. They use public transport to get by, and take the bus or taxi to and from courts etc. It is possible, but it is a whole lot more difficult.

Nameless further notes: ‘Then there is an issue of serving pupillage, which mind you is far more difficult to secure than articles. The paralyzing prospect of doing pupillage for a year without any monetary compensation during the course of training is a deterrent for Black graduates to even apply, given our harsh economic conditions compared to our White counterparts, who can make do without a salary for that period owing to a secure financial background.’

Nameless seems unaware that he can apply for financial assistance during pupillage, and also seems unaware of the fact that pupillage is for people who have already been admitted as an advocate by the courts of law, and is really about joining the bar and then hopefully getting admission to a group of advocates. He also seems to be unaware that not all White people are wealthy. I know of enough impoverished Whites who worked their way through law school and are now admitted attorneys or advocates, or working in corporates. This sort of skewed logic does not bode well for someone attempting to enter a field based upon logical argument.

One of Nameless’s final remarks is: ‘The reality with Black and White graduates is that we are not the same and are treated equal in recruitment. Equal treatment of unequal people heightens inequality.’ I disagree with him, I believe many Black South Africans are as much a catch in the job market as many White South Africans. Many have faced his similar challenges and succeeded. No one owes him a handout, where they should be forced to take what he sees as an inferior candidate instead of someone capable of doing the job. Inequality is solved not by treating lesser candidates as greater simply because of their race. It is solved by making them equal through better education, and poverty ameliorating programs.

Then again nameless begins his letter by writing: ‘I bemoan the lack of transformation in the judiciary. We constantly read about the White and male dominated industry and skewed briefing patterns to the exclusion of Black Counsel. At the root cause of this is the inherent structural inequality that exists from day one of entering law School.’

Another use of an LLB besides becoming an attorney or advocate or assuming countless other roles, is to apply to become a judge or magistrate. Many of Nameless’s colleagues have, and they sit in various courts around the country. Granted, it used to be attorneys or advocates who became judges, and these had to be top professionals; this is no longer the case. If nameless wants to become a judge, there is very little standing in his way.

My experience when I stand or sit in court, is that most of the attorneys and advocates present aren’t White. Yes, the few White students who got top marks in school, allowing them into university despite their skin colour, and who either made a plan, or had family money to get them through varsity, despite every obstacle thrown in their way by government, often tend to get jobs. However, this is not due to unjust discrimination, though the skewing of the statistics tends to be. If White matriculants had an equal playing field, in getting into university, in being allowed to pass, in so much else, then you would likely see just as many drop out, etc. As it is, just getting to the level of graduate as a White South African, is a mountain to climb. Lesser White students, those in poverty, those who might not make it, are mostly weeded out long before first year of university, and if not, they struggle to make it through, given a system designed to exclude them and to make them fail.

My advice to Nameless is to look into what he is sending to law firms, into what his CV says, and then to send out his CV to hundreds of firms. He is sure to find something, the law itself demands discrimination against the White graduates he dislikes so much, and persistence will do him well. If his letter is anything to judge by, he might want to have someone proficient in English write his CV for him. His letter is full of inaccuracies and mistakes, and his misuse of idiom clearly marks him out as lacking proficiency.

Whether he is of a standard to ‘restore the fortunes of those who have been ruined, [as a member of a class of champions that] are not less useful to the human race than if they had preserved their country and their relatives by taking part in battles and receiving wounds’ or not, however, is a different story. Far harder than getting articles of clerkship, or into pupillage, is completing such, and passing the four board exams, and passing muster for a court to actually order that you be made an attorney etc. Even then, many attorneys struggle to find employment. They are after all in a profession where they have to compete against others in court and elsewhere, and which is not kind to the weak stomached, or incapable. Attorneys who make it in practice tend to be even matched warriors of a high calibre. He could gain that ability on the job or through further education, but if he cannot be his own champion, he will struggle to find it in himself to fight for others. Many candidate attorneys never become attorneys.

There are many highly able Black professionals who enter the attorney’s profession and flourish. However, those are not the ones who were pushed through school and university without being able to spell the word ‘Afrika’ correctly. They are the ones who really deserve their positions, and given that lawyers are the buffer which preserves our democracy, it is important that they be up to standard.

The profession of attorney, after all, has its origin in the profession of champion, of those who physically fought on behalf of others. Nameless needs to abandon his comfortable safe space, and get into the fray. The meek may inherit the earth, but they don’t become attorneys. And until he puts his best foot forward, Nameless will remain a nameless figure among the meek. And yes, it is acceptable English grammar to start a sentence with ‘and’, I blame South Africa’s education system if you weren’t aware of that, just as I blame it for the predicaments of Nameless, who genuinely seems to believe a law degree should be a ticket to success, rather than a weapon to be wielded to gain a much sort after prize.

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