How to get ahead if you’re an ‘insider-outsider’

28 May 2013 | Tony Leon | Original Publication:  BDlive

'Transformation' in South Africa has become a rent-seeking asset grab dressed up in the garb of restoration, writes Tony Leon

TRANSFORMATION" is in danger of becoming the greatest weasel word in the South African lexicon. This has nothing to with its original motive and justification: to ameliorate the wrongs of our discriminatory past and create an inclusive future. But some of the present claims and claimants under the banner of transformation are distorting the concept with results that range between the comic and the dangerous.

A "weasel word" derives from the furry animal’s habit of sucking the content out of an egg without breaking the shell. The same applies to words that become emptied of meaning or are used to hide the truth. In many instances in South Africa today, "transformation" has become a rent-seeking asset grab dressed up in the garb of restoration.

Perhaps the extreme, or absurd, example that will soon play itself out in the Competition Tribunal is the claim of advocate Simba Chitando of the Cape bar. According to reports last week, he is suing four commercial law firms and three senior counsel colleagues on novel grounds: that he remains unbriefed in the esoteric field of shipping law, his purported field of expertise, due to the fact that "he is black and Zimbabwean".

The proceedings have been spiced up with an element that could have been scripted by the creators of The Sopranos or any other drama depicting a Mafia shakedown: in their replying affidavits, the three senior counsel aver that Chitando attempted to "extort" R300,000 from each of them, in exchange for which he would withdraw his claim.

But while the drafters of the constitution might shudder at the absurdities of such an action, the claim itself merits both interest and some historic comparisons, none of which will necessarily assist the applicant.

On the merits, I have no idea whether Chitando is an unrecognised Sydney Kentridge or simply clambering aboard an overcrowded black economic empowerment bandwagon. But he is, demographically at least, a member of what can be termed the awkward group of "insider-outsider". Being black in today’s South Africa confers certain legislated advantages and preferment. However, being a Zimbabwean makes him an outsider, where racial advantage can be trumped by xenophobic prejudice. He might do well to study two interesting works relating to the occupational prejudice suffered in the 20th century by Jews in South Africa and the US.

Locally, as professors Richard Mendelsohn and Milton Shain describe in The Jews in South Africa, there was a disconnect between the apparent advantage immigrant Jews had on arrival here. On the one hand, their whiteness advantaged them into occupations and other preferments from which black South Africans were excluded. On the other, their religion and ethnic origins meant that the door to certain professions and firms were shut in their faces.

The authors quote from an occupational survey of Jews in Johannesburg in 1935, which found a significant majority of Jews in the city were self-employed or described themselves as members of an "independent class". According to the authors, "the survey accentuated the difficulty encountered by Jews in seeking employment in certain branches of the economy, especially in mining and banking. This inclined them to entrepreneurial activities where there would be fewer obstacles, real or perceived."

Closer to the matter before the tribunal, I recall several animated discussions I had with my late parliamentary colleague, Harry Schwarz, who had practised as both an attorney and advocate in Johannesburg in the 1950s. He had the advantage of being very bright, but had the perceived double disadvantage, for those times, of being both German and Jewish. He would recite to me the names of some major Johannesburg law firms that would refuse to either employ Jewish articled clerks or brief Jewish barristers.

In the US, Malcolm Gladwell’s study of success "outliers" provides a fascinating example of how rank prejudice led to the exclusion of Jews from "white-shoe" Wall Street law firms, the preserve of white Anglo-Saxon clubby lawyers. Joe Flom and Alexander Bickel, and other brilliant law students denied berths at the top-end firms, did not sue the lawyers who excluded them. They either started their own firms or specialised in "unglamorous" areas of law the mainstream lawyers deigned not to touch. One such area was proxy fights associated with hostile commercial takeovers. By the 1970s and 1980s, this was one of the most sought-after and profitable areas of legal practice, and Gladwell found it had attracted a disproportionate number of Jewish practitioners. The pioneers in this field in the 1950s were the young lawyers who had been excluded from mainstream firms 20 years before.

Litigating every slight will not restore meaning and content to transformation. But reading some history might assist.

• Leon is the author of The Accidental Ambassador (Pan Macmillan). Follow him on Twitter: @TonyLeonSA OR on Facebook: facebook.com/TonyLeonSA