“Government’s move this month to oust black attorneys from white arears has shocked the business and professional sectors. Coming at a time of the government’s publicised new initiative on alleviating restrictions, the banning notices served on black attorneys in terms of the Group Area Act, has left a sour taste. And the belated offer to deal with each case on merit from the Secretary for Bantu Administration has done little to cool the anger of black attorneys.” African Business, October 1977.
It was due to actions such as the one mentioned above that black lawyers in South Africa came together to form one body. When they first met in 1976, it was primarily to fight the Group Areas permit system and prosecutions. At this time, summons had been issued against attorneys like the late Mr. V.L.A. Bekwe, Mr. O.Z. Tantsi and others for operating in town without permits.
There was a group of about 26 black practicing lawyers in those days and they all needed to open practices in town.
The problems that black lawyers experienced then were very peculiar to them, among others being, the influx control regulations, curfew regulations, office accommodation and administration.
Although each lawyer obtained automatic membership of the Provincial Law Society on admission to the side bar, there was a strong feeling among the lawyers that the “white” Law Society was not doing enough to address their problems. They decided to fight their own battles and formed the Black Lawyers Discussion group in 1977. The group consisted mainly of lawyers from Johannesburg and Pretoria.
Spreading the of the group was Mr. Godfrey M. Pitjie, a practicing attorney in Johannesburg who was elected first Chairman in 1977.
Among other first members of the group were Mr. J.N. Madikizela, Mr. V.L.A. Bekwa, Mr. G.S.S. Maluleke, Mr. K.S. Kunene, Mr. S.K.S. Makhambeni, Mr. W.V. Ngxekisa, Mr. T.T. Mokone, Mr. H.T. Netshifhefhe, Dr. W.L. Seriti, Mr. M.A. Ndlovu, Mr. Don Nkadimeng, Ms. D.M. Finch, Ms. B.P. Matswiki, Mr. S.J. Monyatsi and Mr. D.J.S.S. Moshidi who was elected first secretary.
The group that incidentally was formed during the Soweto student unrest in the 1976 became a close knit family. Apart from meeting socially and assisting each other in various domestic ways, it beacme imperative to fight undue obstacles that were being placed in the way of black attorneys in practicing their profession. They made attempts to pin-point areas of discrimination which were continuously reported to the Law Society authorities.
One of the discriminatory actions against black lawyers resulted in one lawyer facing charges of contempt of court when he protested against segregation in court. The of State vs. Pitjie is reported in the SA Law Reports 1960 (1) SA page 709.
The report states that on 20 March 1958, Mr. Pitje, who was then a candidate attorney for Mr Mandela and Mr Tambo, appeared in a magistrate’s court to defend a client,Mr. Stefaans Niekerk. He took his seat at a table that was provided for white practitioners.
His principal, Mr. Oliver Tambo, had appeared ten days earlier before the same magistrate to defend the same client and had withdrawn from the case when he was informed that he would not be heard unless he moved to a non-white table.
The magistrate had requested the same from Mr. Pitje who refused and enquired why he should sit at the other table. The magistrate said he was not prepared to argue with him and charged him with contempt of court. He was fined five pounds or five days in jail.
Mr. Pitje appealed against this decision.
In his affidavit, he said “I had good reason to believe that the special treatment meted out to me was because I am an African. If the magistrate had told me that that was the reason, it was my intension to tell the magistrate that neither I nor my client would feel that he had been defended in his best possible interests if he was to be defended by me and for that reason I was going to withdraw”.
The appeal court held that the magistrate’s action was a competent one as it was apparent from the above- mentioned statement that the appellant knew of the existence of the separate facilities in the court and he had purposely taken the seat provided for whites with the intention to defy an order to move to the other table one was given. The appeal was dismissed.
In 1977, Mr Dikgang Moseneke, an attorney in Pretoria, now a judge, and a staunch member of the Black Lawyers Association, approached the group for assistance when his application to the sidebar was opposed. In the same year that the Discussion Group was formally launched, one of the founder members was refused admission to the sidebar. The Group took the matter up and faced their first big matter in challenging the system. The matter, which was heard in court, is reported in the South African Law Reports.
Judge Moseneke had studied law while serving ten years imprisonment at Robben Island charged with sabotage in contravention of section 21 of Act 71 of 1962. He obtained a BA and B Proc degree and after his release obtained an LLB degree. He served as a candidate attorney until 1978.
The report states that although Judge Moseneke, a South African by birth, was found not to be a fit and proper person to be admitted as an attorney by the Law Society, his application was complicated by two factors:
That on July 2, 1963, he was found guilty of sabotage and sentenced, and That on Decembers 6, 1977, he ceased to be a South African citizen by reasons of the provision of 56 (1) of the Status of Bophuthatswana Act 89 of 1977. The Law Society had queried that Judge Moseneke belonged to a Tswana group which had been granted independence in 1976 and therefore was no longer a South African citizen when he moved for his admission as an attorney.
On making enquiries, the Group met members of the executive committee of the Law Society at a meeting held on January 25, 1978 with all the relevant documents pertaining to the refusal. After a thorough investigation was done by both sides, it was found in court that although Judge Moseneke had ceased to be a South African citizen by reason of the provisions of the Act, he did not forfeit any existing rights, privileges or benefits save as regards citizenship because of the Act.
He retained, among other things, his right of permanent residence. As he normally resided in the Republic, he qualified for admission as attorney at his place of residence. He was admitted and enrolled as an attorney in 1979.
Following this first great achievement which boosted the morale of the group, they decided to meet more regularly, draw up a constitution and adopt a new name.
The Black Lawyers Discussion Group was renamed the Black Lawyers Association (BLA).
The word lawyer was used instead of attorney as the group anticipated a wider eligibility for membership.
The aims of the group that had centered around common interests of black practitioners were spread to accommodate and address legal problems of the community.
In 1980, 22 of the 40 BLA members in the Transvaal, attended a meeting held at the Seshego Hotel in Pietersburg on September 1, where a formal constitution of the Association was adopted and members were urged to work earnestly towards achieving the objectives as stipulated in the constitution.
Several discriminatory incidents were experienced by black lawyers and fought by the BLA. Many of them were won. In 1983 the members were once again faced with a serious discriminatory matter. Mr. M.B. Mohlahledi, an attorney in Kagiso was denied the right to establish a legal practice in the Krugersdorp Town Centre by the Town Council. The Council refused on the grounds that such a practice would “attract too many Blacks to the town centre”
In anger, the BLA executive released a press statement, which received wide coverage, where they called the decision disgusting and shameless. They said as Mr. Mohlahledi had been admitted to the legal profession like any other attorney, after rigorous academic and professional training, it was inconsistent and irrational that he should be subjected to controls as to where, how or to whom he may render legal services.
They added that all black lawyers who occupied office premises in the so called white areas in South Africa (our place of birth) were in fact occupying such premises in contravention of the Group Areas Act which Act, as we know, is one of the cornerstones of the policy of apartheid.
“The Mohlahledi case is a familiar one to all black legal practitioners in that it highlights once more the cruel and inhuman effect of racist legislation such as the Group Areas Act, Urban Areas Act, and Pass Laws under which some of our colleagues had been prosecuted like ordinary criminals in the very courts where they represented clients”
BLA members approached white attorneys in the Transvaal to assist them in fighting the matter. They took up the matter with the Provincial Law Society, which was at the time trying to improve their image. After much correspondence and consideration, Mr. Mohlahledi was granted permission to practice in Krugersdorp. His case set a precedent as he was soon followed by Mr. A.S Khanyile and Mr. M.J. Kuaho.
The members had a number of priorities among which was to be recognised by the Transvaal Law Society and had a candidate nominated into its Council. An attempt to nominate their Chairman, Mr. Pitje, was unsuccessful due to lack of votes. However, he was subsequently co-opted into the Johannesburg Attorneys Association, a sub-committee of the Transvaal Law Society.
There was a vacancy at the Law Society Council soon thereafter. Seeing it proper to have a black lawyer in the Council, the then President of the Law Society, Mr. Stan Treisman, approached Mr. Moshidi, then secretary of the BLA to join the council. Mr. Moshidi discussed the matter with senior members of the Association and some members of the executive committee, who agreed to the co-option.
Mr. Moshidi was co-opted in 1986. He served for one year before some BLA members voiced their disapproval on his co-option at a General Meeting that was held in Potgietersrus. They asked him to resign or be put up as a candidate for election.
After much debate, they decided to postpone the issue until the next general elections of the Law Society where they hoped to test how genuine the white lawyers were. Being in the majority, they were to see if Mr. Moshidi would receive enough votes from the white attorneys to win the elections. The elections were held in 1987 and “every lawyer in the country was given a chance to vote”, said Mr. Moshidi. He was voted in.
However shortly thereafter, at a BLA General Meeting held in Durban in 1987, he was again asked to resign. Members said that according to policy guidelines drawn up in 1984, no black lawyer should be seen to belong to a Council of the Provincial Law Society. They added that it was unethical for a black lawyer to remain on a Council that hounded black lawyers.
He was pressurised to resign and did so in November 1989.
The relationship between the BLA and the Law Society remained almost non-existent for some time. Letters were continuously being sent to the Secretary of the Law Society of the Transvaal in Pretoria, pin-pointing problems affecting practicing black attorneys. Due to the slow response, a memorandum setting out some of the grievances was also sent. There were also several meetings held with the then executive committee of the Law Society and the BLA.
At first the Law Society firmly opposed the formation of ‘the Association” saying among other things that the BLA was announcing to the world that the Society was not dong much for black lawyers. It was also learnt that the Society had been approached by other law groups in the country who had insisted that BLA be banned.
It was after lengthy discussions that the Society began to understand the reasons for the formation of the Association and sympathised with its problems. They approved, but, however sounded a word of caution against polarisation within the profession.
It was not long before the relationship between the two groups improved. Infact history was made when for the first time Mr. Stanley Treisman, addressed members of the BLA at a general meeting held in WeIkom on June 30, 1985.
In his statement he assured members that the Society had never set out to prosecute members of the profession.
He admitted that during the Transvaal Law Society annual general meetings it had never occurred to them to cover issues that were relevant to black affairs. However, he said, this had been rectified as he had been appointed to head a section that was to deal specifically with matters that affected black lawyers in their practice of the profession.
Mr. Treisman also praised the Association’s past activities which, he said, had shown the determination that black lawyers had in achieving their objectives.
He named a few, among which are:
That as a result of continuous persistence to inform the Society of their grievances, it was going to do all in its power to assist the Association.