Of hippies and law: the macrobiotic theory of BEE

History has almost forgotten the hippies – and some would argue this is no bad thing. Hippies introduced the world to some complete outrages, including bell-bottomed jeans, the idea that every meal needs lentils, hugely long guitar solos, drum circles and long, unwashed hair. And that’s just the men we are talking about.

Many of the achievements of hippies are now disguised by their ubiquity. We have taken some of these ideas into our lives over the years, and they have become generic rather than rooted in the 1960s. Perhaps the best example is the personal computer, which was, in a way, a consequence of the hippie suspicion of the large corporation and authority in general, and its endorsement of doing things for yourself.

One of the least remembered low points of hippiedom was the wild attraction of gurus. There were gurus everywhere for everything. The idealisation of spiritual enlightenment helped nurture an odd faith-based belief in some or other particularly informed, aware, learned individual who had some exclusive and mystical bond with the truth.

For some, the sense of learning from an expert and someone particularly knowledgeable was a boon. To others, it was a disaster, particularly when it was idiotic, which was often. There is one example that always stood out for me, and that was the first and possibly only person to die from a diet of grain and tea.

Diet fads have been fashionable for all ages, but in the hippie era they were enhanced by guruism. As recorded in Tom Wolfe’s anthology of the time, The New Journalism, one poor young woman, Beth Ann Simon, died essentially from scurvy after being on an extreme macrobiotic diet for months. A story by Robert Christgau pictured the woman’s last moments as her nutter husband leant over her bed, feeding her a teaspoon of emulsified carrot which drooled down her cheek. Christgau’s piece, “Beth Ann and Microbioticism”, was written for New York Magazine and Wolfe included it in The New Journalism.

But this moment, for all its tragedy, was not actually the key. The true moment in which fate hung in the balance was earlier, after the young woman had been on the extreme diet for a few months, and, get this, she started feeling awful. So she and her husband went back to the guru, George Ohsawa, for advice. And he said obviously the problem was not the diet, but the fact that she had misunderstood the diet entirely. And she should start again.

And they believed him!

Has BEE failed?

This story has been ringing in my brain as I have been reading the papers to the court case which began this week between four of South Africa’s biggest and arguably most prominent law firms against the new BEE Legal Sector Code. The sequence in BEE affairs is now pretty well known to South Africans. Legislative BEE has been in place in some form or another for the past 20 years or so, and the results have been fabulously varied; some great successes have been recorded along with a whole bunch of enormous failures. Whatever success BEE has achieved, it seems to me it’s been balanced out by opening a door to corruption on an industrial scale.

Like Beth Ann Simon, the proponents of BEE are convinced that the real reason for its failure is not BEE itself, it’s that BEE has not been implemented with sufficient vigour! So now in various fields but notably in this case, BEE in the legal fraternity is being amped up, and not just a little. But there is a difference. This time, those at the pinnacle of the legal fraternity are not having it.

But has BEE in the legal fraternity actually been a failure? Well, it depends a bit on what you expected. The aim was that legal firms would be at about 25% black ownership at this point, and lots of firms are way beyond this level. There has been substantial progress; the level of black ownership at the top six firms now stands at about 25%, which is more or less what the current code requires. That is, of course, way out of kilter with the proportional breakdown of the population. On the other hand, it’s way better than it was when the process started.

For the department of trade, industry and competition, and for the organisations supporting the code, the issue is not merely practical but symbolic. The point is to force movement at the top of a profession that has always been close to power.

Critics of the code would put it less generously: this is the government being seen to push the boundaries, take on the elite, and worry about the plumbing later. But plumbing matters, especially in law firms, because partnership is not an HR badge; it is capital, clients, judgment, risk, reputation and the slow accumulation of trust.

The department also wants to accelerate the speed because from its perspective, the current system has “failed”. The new code is looking for 50% black ownership over five years and 25% ownership by black women.

The argument of the legal firms – Webber Wentzel, Werksmans, Bowmans and Deneys – is not that they are against BEE in principle; it’s that achieving this target is just impossible.

Their strongest point here (among many) is essentially practical. Equity partnership in large law firms is not like buying shares on the JSE. It is bound up with years of training, client confidence, professional development, practice-building, internal promotion systems, partner capital, risk and reputation. A target can be constitutionally legitimate but still irrational if it cannot realistically be met without distortions: artificial promotions, fronting, debt-funded nominal ownership or destabilising lateral hiring.

Several black lawyers’ organisations have come out on the side of the department. But forgive me, isn’t this just incredibly self-serving? If someone promoted an idea that old, grizzled male journalists should be at the front of the queue for promotions and should be paid much more than they are worth, well, personally, I would be fully supportive of that idea.

But you can see what has happened here: a generation of black lawyers have managed to get into the highest ranks, assisted by BEE quotas, but the following generation are in danger of being excluded because the current quota has been achieved. So the only way for them to score quick and easy promotions is to lobby the government to increase the quotas again. Totally understandable.

But then what about the next generation, and the next generation, and the next? Surely, the severity of BEE should be decreasing over time, not increasing, as the notional cause of the problem fades from view.

Unintended consequences

Of course, like all government interventionism, what you have to be on the lookout for is the unintended consequences. Just to take one example: one of the applicants’ most rhetorically and legally attractive points is that the code purports to transform “the legal sector” while, on their own version, exempting more than 95% of attorneys’ firms from its substantive requirements. They say the code itself records that firms with one to three partners make up 95.07% of legal practices, and that these are exempted legal entities because of the revenue threshold.

But if the purpose is sector-wide transformation, a measure that leaves most of the sector substantially untouched invites the obvious question: what sector, precisely, is being transformed?

It all comes back to the macrobiotic diet question: does BEE legislation actually help solve the problem of the underrepresentation of black South Africans in this very specific subset of society? Or does it mean that every black lawyer is tarnished with the brush of being perceived as having been generously promoted to achieve some arbitrary quota, which inadvertently means white lawyers will keep on getting the most lucrative jobs?

As we all know, the constitution permits remedial measures to advance those disadvantaged by past racial discrimination. But as people tend to forget, it also rejects racism very emphatically and specifically. It does not require perfect racial arithmetic in all institutions at all times. Nor does it license any measure merely because it travels under the banner of transformation.

The question is whether this particular remedial tool is rational, proportionate and properly designed for the circumstances.

In my opinion, in this particular case, it is not – but it’s not my decision. And in this battle of legal giants, large egos and consequential politics, I’m rather thankful for that fact.

This story was first published by the Financial Mail. Currency and the Financial Mail are part of the Financial Mail Group.

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