Procurement Protocols for lawyers: transformation charter of a special kind

5 Jun 2017


The South African legal fraternity is preparing to rollout what looks like a black economic empowerment (BEE) or transformation programme of a special kind which goes by the title of Procurement Protocols.

The Procurement Protocols are styled as a transformation charter of sort that needs to be formally adopted by legal firms through a signature. Its not clear why the industry chose a different path than the one legislated under Broad Based BEE Act. Under that  act sectors are guided to establish fully fleshed sector codes or transformation charters as adapted from the BBBEE codes of good practice.

The legal fraternity chose to come up with a one pager which must be endorsed through signature by legal firms.

A formal signing ceremony of the Procurement Protocols will be held at Emperors Palace Convention Centre on 21 June 2017. This is after legal firms were invited to “align themselves” with the Procurement Protocols by completing the “Expression of Interest” form before 31 May 2017.

The initiative seeks to transform the legal briefing patterns from one that favours mainly white lawyers. It is a product of key stakeholders: the Law Society of South Africa (LSSA), the General Council of the Bar, Advocates for Transformation and the Department of Justice and Constitutional Development.

These parties established the Action Group on Briefing Patterns in the Legal Profession which produced the Procurement Protocols.

In its recent update the Action Group said “We view this (the Procurement Protocols) as an important milestone”.

The statement noted that the initiative was promoted by “the continued outcry from various members of the legal profession and other stakeholders regarding the uneven distribution of legal work among advocates and attorneys.”

It added that “members of the legal profession and other stakeholders came together to discuss the lack of progress in addressing the persistent exclusion and marginalisation of certain legal practitioners in the attorneys’ and advocates’ professions.”

The main objective of this work was to “find solutions” to the discriminatory practices. The focus was on coming up with solutions as members of the legal profession, especially those who suffer from various forms of exclusion, have become weary of endless ‘talk shops’ on transformation of the legal profession.

And so the Action Group amongst other things collated information on how national Government departments and state-owned entities distribute their legal work to legal practitioners. It also consulted Judges President of various divisions of the High Courts and the Chief Justice to document statistics on legal practitioners who appear in their courts in both civil and criminal matters.

The information received indicated that:

·  lucrative work goes mainly to a select pool of black male advocates and thus excludes many other advocates;

·  other lucrative work goes to an identifiable pool of a few white male advocates thus also excluding other advocates;

·  to a limited extent, other lucrative work goes to a classifiable group of black female advocates; and

·  the majority of advocates, regardless of gender and race, receive little and/or no work.

The update adds that there are government departments and state-owned entities that only make use of the services from big law firms, a few black advocates and a limited group of white advocates.

The update noted that the Chief Justice, Mogoeng Mogoeng, has expressed his support for the initiative. “He sees the fact that black and women practitioners do not get the opportunity to develop their skills, as a huge problem. At the Constitutional Court, high level work did not appear to be going to black and women practitioners.”

The update said “the challenges confronting the Action Group concern a lack of cooperation from certain Government departments, state-owned entities and the business sector. The Action Group is exploring alternatives including the use of the Promotion of Access to Information Act 2 of 2000 to have access to the information required.”


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