Advocate in judge’s ‘all-white counsel’ query remains defiant despite probe

High Court Judge Mandlenkosi Motha cited potential violations of the Constitution, which addresses the need to correct past inequalities, as his concern.

High Court Judge Mandlenkosi Motha cited potential violations of the Constitution, which addresses the need to correct past inequalities, as his concern.

Published Mar 14, 2024

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Advocate Johan Brand has maintained that High Court Judge Mandlenkosi Motha’s instruction that legal counsel in a case before him must file heads of argument regarding the lack of diversity in their team had nothing whatsoever to do with the merits of the case, among others.

Judge Motha’s instruction related to a case about black economic scorecards, but the advocates in the matter were all white.

The case in question concerned Periform Work Scaffolding Engineering against the Commissioner of the Broad-Based Black Economic Empowerment Commission.

Judge Motha cited potential violations of the Constitution, which addresses the need to correct past inequalities, as his concern. He then ordered the legal team to submit heads of argument to him regarding the matter.

However Brand, one of the senior advocates appearing in the matter, sparked controversy when he refused to adhere to the judge’s instruction.

Instead, he wrote a memorandum on why four white advocates were justified, charging that Judge Motha’s remarks in his view were “inappropriate”.

“It has, firstly, got nothing whatsoever to do with the merits of the case.

“Secondly, the parties have no quarrel with each other about the composition of the legal teams.

“Thirdly, clients are at liberty to choose whomever they desire to represent them in the court of law. Section 9(2) guarantees that right,” Brand said.

Aggrieved by this, Professionals Unity of South Africa (Profsa) lodged a complaint with the Legal Practice Council (LPC) of South Africa concerning Brand not adhering to the judge’s request.

The LPC confirmed they were looking into the matter.

“A complaint was received on or about 1 March 2024 by the LPC.

“In line with our processes, a file was opened and the initial steps of the investigation are already under way.

In the initial stages, the complaint is referred to the practitioner and this took place on 7 March 2024.

“With each complaint, the respondent practitioner is given the opportunity to respond to the complaint or allegation. The practitioner’s response is due on 8 April 2024. The next steps after receiving all submissions and initial responses, we refer a matter to an independent investigating committee for the committee to consider and recommend whether the complaint will be subject to further processes or whether the complaint will be dismissed,” the LPC said.

Brand said he had submitted a document to the LPC wherein he set out his view but would reserve further comments, “as the whole saga is sub judice”.

“However, my junior colleague and I stand by the contents of our memo and are comfortable that the contents are correct in law and in fact,” said Brand.

Profsa president, advocate Mashudu Tshivhase, said they were happy the LPC had actioned their complaint, “because we do believe the decorum of the court must be respected whether we agree (with a judge) or not”.

“This matter is not personal. We are of the view that a certain conduct requires attention ensuring the values (of the legal system) are upheld at all material times or our legal system will gradually erode. Those sitting on the Bench must forever be respected. We have to respect the position,” he said.

Meanwhile, trade union Solidarity, through its law network, has called for Judge Motha to be investigated and removed from the Bench, citing “overreach”.

Cape Times