The Bar Cannot Deny That Race is Part of its Admissions Policy

The Bar should select pupils on merit, aptitude, and integrity. It should support junior advocates who lack resources. But it should not use race as a blunt instrument.

Photo by Wesley Tingey on Unsplash

The Johannesburg Society of Advocates has accused me of spreading misinformation. The chair Don Mahon SC says that my description, on Case In Point, of the pupillage admissions process as “highly racially charged” is false. The JSA says that it does not operate a quota system or impose a cap on the number of white male pupils admitted to the Bar. But the same statement then confirms the central point: applicants are scored through a structured assessment model in which “points are allocated in recognition of historical disadvantage and the constitutional imperative of transformation.” It also says the JSA “does not apologise for placing significant value on transformation.”

Whether the mechanism is called a quota, a cap, a transformation score, a holistic assessment, or a point allocation, the substantive question remains the same: is race being used to influence who is admitted to pupillage? The JSA’s own answer is yes.

In 2019, the General Council of the Bar said that its selection of pupils has enabled the GCB bars to “transform more aggressively.” It says that 75% to 80% of new pupils countrywide are black and 50% are female. Most revealingly, it says that “without selection” the Bar would not be able to “fast-track transformation” because there are proportionately more white male applicants than others. If selection is used to prevent too many white men from joining the profession, then the policy is racially discriminatory.

The JSA’s own published statistics make this clear. In an April 2021 article in Advocate, the JSA described pupillage as “integral to the transformation of the Bar” and said that the racial and gender composition of each year’s pupillage group has a “profound and lasting effect” on the legal landscape. In 2020, 80 pupils wrote the final exams. Of those, only one was a white man. Eight were white women. The remaining 71 pupils were classified as African, Indian or Coloured.

The pattern was not isolated. Between 2016 and 2021, the average pupillage intake was 79 and the cohort was classified as 27 African women, 24 African men, 5 Indian women, 3 Indian men, 1 coloured woman, 2 coloured men, 11 white women, and 6 white men.

The JSA says this should not be attributed to an exclusionary quota or cap. It says that white male applications have declined and that misinformation may play a role in that decline. But if the profession’s own representative body says selection is used to fast-track transformation because there are proportionately more white male applicants, white male applicants do not need misinformation to draw the obvious conclusion that they are less welcome than others.

The JSA relies on the fact that white men remain dominant among senior counsel. It says that 148 of its 238 silks are white men, approximately 62.2%. But that is a different question. Senior counsel status reflects the composition of the profession as it existed over decades. It tells us little about whether entry-level admission policies today are fair, lawful or consistent with non-racialism.

A lagging indicator cannot justify present discrimination at the point of entry. If the concern is that black junior advocates are not receiving briefs, are not being mentored, or are being excluded from commercial work, then those issues should be addressed. It does not follow that the Bar may ration entry opportunities by race.

Race classification and membership selection is also entertained by Groups at the Bar. In 2017 the Bridge Group of Advocates considered adopting an overtly racial preference system for admitting new members. Those deemed White or Indian would be heavily discriminated against under this system.

South Africa’s Constitution was drafted against the background of a repugnant racial classification system and established non-racialism as a founding value. South Africa has no legitimate machinery for deciding who “really” belongs to which racial category. Under apartheid, the state used grotesque tests to classify people. A constitutional democracy should not recreate that mindset by making access to professional opportunity turn on racial boxes.

If the Bar wants to rectify past discrimination it should focus on individuals. Was an applicant denied opportunity by the wrongs of the past? Did they attend a failing school? Was the family poor? Those questions can be asked without pretending that every person with the same skin colour has the same life story.

The danger of race-based professional policy is that it often assists the already advantaged. A person applying for pupillage is not among the most marginalised people in South Africa. They have a law degree and are seeking entry into an elite profession. The people most in need of transformation are poor South Africans who cannot afford lawyers at all.

During Apartheid, those classified by the State as Black were marginalised from the legal practice. However, a profession committed to the rule of law cannot defend racial selection by invoking past racial exclusion. The lesson of apartheid is not that racial classification must be used by better people for better ends. The lesson is that we must not attach burdens and benefits to racial identity.

There is an easy way for the JSA to resolve the dispute about its conduct. It should publish the admission policies, scoring matrices, and demographic data for applicants and admitted pupils. It should disclose how race is determined, how points are allocated, and how those points affect outcomes. If race is not decisive, the documents will show that. If race is decisive, the public should know.

The Bar should select pupils on merit, aptitude, and integrity. It should support junior advocates who lack resources. It should mentor and train its members. But it should not use race as a blunt instrument to decide who gets through the gate.

The JSA says it values diversity and does not intend to leave any race or gender behind. That is a worthy sentiment. But it is not enough. In a constitutional democracy founded on non-racialism, the legal profession should be able to say something simpler and stronger: no applicant will be discriminated against because of their race.

Mark Oppenheimer has been a practicing advocate at the Johannesburg Bar for 16 years.