HISTORY OF THE BLA
"Government’s move this month to oust black attorneys from white trading areas 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 fro
m the Secretary for Bantu Administration has done little to cool the anger of black attorneys." It was due to actions such as the one mentioned above that black lawyers in South Africa came together to form one body. At the 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 black 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. Spearheading the birth 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, now a judge, 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, now a judge, Mr. M.A. Ndlovu, Mr. Don Nkadimeng, Miss 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 1976 became a close knit family. Apart from meeting socially and assisting each other in various domestic ways, it became 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 case of State vs. Pitje 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:
(1) That on July 2, 1963, he was found guilty of sabotage and sentenced, and (2) That on December 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. 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 the Provincial Law Society, which was at the time trying to improve their image. After much correspondence and consideration, Mr. Motlahledi 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. Moshidi discussed the matter with senior members of the Association and some members of the executive committee, who agreed to the co-option. 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. 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:
(a) 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. (b) That after complaints received from the BLA, the Law Society now recognises law degrees obtained from universities in the homelands and that citizens of these homelands could now be admitted as attorneys in the Republic of South Attica. (c) He quoted the case of Mr. Nelson Mandela, then a black practicing attorney, who successfully defended an application to be removed from the roll on the basis that he was motivated by the sole desire to serve his people. This opposed a court ruling in the case of HASSEM (1978) where it was held that the offense was so severe that it amounted to treason and justified the removal of the attorney from the roll. (d) That on being made aware of the problems that black lawyers faced, the Law Society had made several attempts to obtain blanket permission for black lawyers and candidate attorneys to alleviate problems experienced under section 10 of the Black (Urban) Areas Act. This attempt had been unsuccessful, he said, and the Society could do nothing to change the Group Areas Act or have the law repealed. Treisman said he was for black lawyers being vehicles for social change. He encouraged them to be seen in the forefront of the process of change, but warned them against becoming too political. Although the Law Society cannot effect change in the South African political community, it will ensure the dignity of all lawyers irrespective of race or colour, he said. Another goal that members were geared to reach was to increase the number of qualified black lawyers in the country. They were to find placements for candidate attorneys. In 1985, of the 6000 attorneys in South Africa, only 600 of them were black. The number of candidate attorneys increased when all universities in the country introduced a law department for blacks and received increasing student enrollment. The few black law firms could not accommodate the rising numbers. It was then suggested at one of the meetings to try and get white firms, which have always been in the majority, to take in black candidate attorneys. This has however not been successful. The Association, established a Centre for Continuing Legal Education which included a programme for placement and training of candidate attorneys. Members were also asked to regard it as part of their profession to sponsor law students. Some members sponsored students at various local universities. The BLA was moving ahead and the members were pleased with what had been achieved. Another objective was to give birth to a national lawyers organisation that would incorporate all lawyer groups in the country. In 1985 Mr. Keith Kunene was Chairman of BLA. He was mandated by members at a meeting in Bisho to head a steering committee that was to travel all over the country and sell the idea to become national. They were also to recruit new members as at the time, membership was concentrated in the Transvaal and the Orange Free State. The idea to go national was well taken by most lawyers, although some objected that the name of the Association should remain the same. They objected to the name ’Black’. It was decided to call the new organisation the National Association for Democratic Lawyers (NADEL). NADEL was launched in Durban in 1987. Present at the launch were members from various associations; the Eastern Cape Democratic Lawyers Association, the Democratic Lawyers Association based in Durban, Democratic Lawyers Congress, Lawyers for Human Rights, Independents from Natal, Democratic Lawyers organisation and Lawyers for Democracy from Pietermarizburg. BLA members dominated in numbers at the first meeting. A draft constitution was drawn and certain resolutions made. Mr Nelson Mandela, who was then serving a life sentence at Robbern Island, was made an honorary member but a suggestion to make him a patron was rejected as the organization was to remain non-sectarian. NADEL’s organizational structure was made up of an Executive Committee, the General Council and the General Membership. It was at the first General Council meeting of NADEL held in Port Elizabeth in January 1988 that there were disagreements that led to the BLA breaking away from NADEL. A decision had to be made as to which one of the three groups would have the final say. BLA members felt that it should be the General Membership if NADEL was to be viewed as a democratic organisation. The other groups felt that the General Council should have the final say. There was also a move for a higher subscription which BLA members protested against. They said they needed to get a mandate at their next general meeting before accepting it. BLA members were dissatisfied with the turn of events and opted to pull out from NADEL, which they did. It was sad that they would not be able to take part in assisting in the growth of the organisation that they had given birth to. However, besides all that happened to cause the spilt, the organisations have kept a cordial relationship. In its 13 years of existence since the Discussion Group, the BLA prides itself of the following achievements:
(i) Representing masses of people in pass courts of Johannesburg by manning the courts daily. (ii) In 1983 met with the Law Society of Zimbabwe in Harare and had consolidation with the black lawyers in Harare including the retired Chief Justice of the Supreme Court in Harare, Judge Dumbutshena,
(iii) At a time when the BLA was accused of refusing to take political cases, a delegation traveled to Lusaka, Zambia and met ANC executives to dispute the statements and explain the position of the Association. (iv) The organisation takes credit for the flood of lawyers that have entered the profession since the year 1978,
(v) The birth of the Johannesburg Attorneys Education Scheme was an idea initiated by the BLA. (vi) Financially assisting families of black lawyers, by carrying the expenses after a member had died. Some of the late attorneys that the Association has assisted in burying are, among others, Sobukwe, Mxenge. Mashilwane and Maelane. The Association also made widows aware of a benevolent fund that they were entitled to from the Law Society. A lot of families are said to have benefited from the fund. (vii) Adopted students as individual firms to study law at local universities. (viii) Took up cases with the Law Society to expose board exam papers when a lawyer from Namibia, Mr. Ephraim Katatu Kasutu - who was a candidate attorney, approached the BLA complaining that he had repeatedly failed the exam without due cause. The lawyer was subsequently admitted as an advocate in Namibia. (ix) Assisted towards making homeland law degrees recognisable in South Africa
