Old troubles haunt the new South Africa

In post apartheid South Africa, the man hired to kill you yesterday could be your client today.

Senior advocate Eberhard Bergelsmann stood on the pavement outside the Pretoria Supreme Court buildings with a group of jubilant clients – former members of the apartheid government's military intelligence group.

Bergelsmann had just won the shadowy operatives a favourable ruling in their severance pay dispute with the then FW de Klerk government. There was a pause in the conversation and the group's leader turned to Bergelsmann and asked: “Would you like to meet your assassin, Mr Bergelsmann?”

Bergelsmann took several seconds to respond. “Yes, of course I'd like to meet him,” he replied.

The former officer pointed to one of his clients, who blushed and said: “It was nothing personal.”

Bergelsmann had gained a reputation for standing up to the apartheid government after acting for the families and victims who came before in the Harms Commission in 1990. The commission was investigating claims that government-funded hit squads were active in South Africa.

“It was a unique experience,” he recalls. “I haven't inquired why the hit was never carried out. I'm just glad that it wasn't.”

Bergelsmann says the man appointed to assassinate him has since visited his home twice – to sell electrical appliances though, not on death duties. This is the new South Africa. As Bergelsmann puts it: “So full of beautiful ironies.”

During the apartheid era, the law and lawyers were geared up to service white South Africa. This is now evolving to reflect the true multiracial make-up of the country. But the transformation is not without its problems. Three particular sticking points stand out above the rest.

The first is the judiciary accused by the government of impeding progress. The second is the professional regulatory bodies, which are having to agree how a multiracial profession is to be best served. And the third is private practice – firms are adopting empowerment policies to recruit black trainees, but are then finding it difficult to keep them.

Popular support for the liberal constitution and bill of rights gave the African National Congress (ANC) the impetus to drive through wide-ranging legislation on areas such as gender equality and abortion. But the constitutional interpretation of these laws by the regional courts and new constitutional court has, in some cases, caused consternation within the government and fuelled allegations that the bench maintains the mindset of the apartheid era.

One of the most notorious of these rulings was handed down by Judge William de Villiers of the Pretoria High Court. In his judgment on 17 April this year, he set aside President Mandela's appointment of a judicial committee to inquire into allegations of nepotism and mismanagement by the South African Rugby Football Union (Sarfu) – seen by many as the “sacred cow of the old order”.

In the 1,159-page judgment, de Villiers accused the President of being a “less than satisfactory” witness and described sports minister, Steve Tshwete, and a senior sports ministry official as a “demonstrably unsatisfactory and unreliable witnesses”. In contrast, Dr Luis Luyt, then president of Sarfu and a hugely controversial rugby figure, was described as a “truthful and satisfactory witness in all material aspects”.

Justice minister Dullah Omar said that in the wake of the de Villiers decision, the policy of guaranteeing the jobs of the old order judges would be re-examined. He also called for the judicial service commission to safeguard the independence of the judiciary and to restore confidence in the courts.

While the judiciary may have been slow off the mark, the professional regulatory bodies have been aware of the need to adopt the spirit of the ANC's reforms and make their organisations more accessible to black lawyers.

In March, the four provincial law societies and one national association merged with the Black Lawyers Association and the National Association of Democratic Lawyers to create the 11,000-member Law Society of South Africa.

Executive director Andre van Vuuren says the Law Society has already set about addressing the profession's most pressing problems. One of these is the glut in numbers of students training to become commercial lawyers and the lack of those willing to work for the third world component of the country. Van Vuuren has instructed the Human Sciences Research Council to examine the issue. Meanwhile, law firms are having to filter through the huge numbers of applicants with an eye as much on the racial mix as the quality of the individuals.

Johannesburg-based Webber Wentzel Bowens gets an average of 500 to 600 applications for the 20 places on its two-year training programme. Partners David Lancaster and Venessa Dennett, who both sit on the firm's professional staff committee, say they try to recruit a group of people who are more representative of the South African population.

“No one really believes in quotas,” says Lancaster. “But we will be excluding stronger white candidates in favour of weaker black ones.” Last year, over half of the 42 recruits were women and 25 per cent were black.

This pattern is mirrored by other firms. Charles Butler, executive director at Johannesburg-based Werksmans, says half of the 10 article clerks that his firm has taken on this year are black. And as a whole, 20 per cent of the firm's fee earners are black.

The government actively encourages firms to bring black lawyers through the ranks and expose them to the top grade commercial work. When bidding for government legal work, firms have to reveal the racial make-up of their fee earners and even then the government will often only instruct black law firms.

Leading commercial firms like Werksmans and Webber Wentzel have teamed up with black firms on joint bidding exercises. Other white firms like Hofmeyr Herbstein (now Hofmeyr Herbstein Gihwala & Cluver) have merged with black firms to create multiracial national firms.

On the whole this policy meets with support, but some partners talk of the link with black firms as a mere “window dressing exercise”. The white firms win the work and the black firms see little transfer of skills or work, just a share in the fees.

And there still exists a vacuum of senior black and female lawyers in firms across the country. Firms like 53-partner Webber Wentzel have only one black and three female partners. According to Lancaster, firms have suffered a dearth of talented black or female lawyers who are choosing to go into government or industry.

This problem is exacerbated by the exodus of lawyers abroad. Some go purely for career reasons, but the increasing concern for personal safety due to soaring crime is often the determining factor.

Johannesburg-based firms are having to move out to suburban Sandton in order to keep existing staff and recruit top lawyers who see the central location as a downside to joining the firm. Butler says his firm is one of the last big commercial firms based in downtown Johannesburg. Werksmans plans to move its headquarters to Sandton within the next two years.

White & Case is the only foreign law firm in South Africa. London-based partner Peter Finlay says that despite the crime his firm has less difficulty recruiting for its 11-lawyer Sandton office than for its Moscow office.

But even then, unease over personal safety does not diminish the sense of optimism that South African lawyers' have for the future. “People do see South Africa as a country of opportunity and the quality of life is still good,” says Michael Meyer, head of the commercial department at Hofmeyr. “If you have the skills and are willing to work hard it is still a very unique country to live in.”