Banks and other JSE-listed companies should employ black lawyers to represent them in commercial matters, as transformation of the legal profession cannot only be left in the hands of the state, new justice & correctional services minister Ronald Lamola says.

Transforming the sphere of commercial law is a thorny issue in the legal fraternity, as the field is seen as dominated by white males. 

In an interview with Business Day, Lamola said that commercial law should be transformed more aggressively and that it needed to start with companies and banks. 

Lamola said that SA’s banks do not use black lawyers sufficiently and that they should do so, given the amount of commercial legal work they procure.

“They [the banks] must bring young black women and men into their space, and disabled people. Let’s see them do it. The listed companies in the JSE must also play that role,” Lamola said.

“They must bring young black lawyers and [other] black lawyers into that space. It is not only the responsibility of the state to transform the profession,” Lamola said.

The minister, an attorney by profession, said one of the challenges which resulted in the courts not dealing with “the crux” of commercial matters was that most commercial contracts included an arbitration clause, which resulted in most cases not making their way to the courts. 

“So in arbitration you can choose who you want, so it is an exclusive terrain of the white old men’s club where they bring each other to these arbitrations,” Lamola said.

He said it denied courts the opportunity to develop commercial jurisprudence.

“On the [one] hand we need arbitration, we need mediation so that it does not clog up our courts, but on the other hand we also need our courts to develop jurisprudence in this space so that we are able to have certainty in the resolution of complex commercial issues,” Lamola said.

“Those are issues we are grappling with in the department to see how do we find the balance.”

Lamola will, by virtue of being minister, hold a seat on the Judicial Service Commission (JSC), which recommends appointments to the judiciary. 

The minister said he wanted the judiciary to see its role not only in the context of law and order and upholding the rule of law, but also as an enabler of the economy.

He said if there were high levels of corruption, SA would not have investment, and the judiciary and the criminal justice cluster as a whole had to be able to “help” in this regard.

Lamola said the judiciary had to be able to interpret laws in a “progressive” way, “so that new players are able to come into the economic space”.

“I want to see people who come to the judiciary coming to play that role of transforming our society — not just as a legal professional, because they have got a very important role to play. It is not just to maintain law and order.”