Controversy over judge’s remarks on all white counsel

Controversy over judge’s remarks on all white counsel. Picture: EKATERINA BOLOVTSOVA/Pexels

Controversy over judge’s remarks on all white counsel. Picture: EKATERINA BOLOVTSOVA/Pexels

Published Feb 28, 2024


While a Gauteng High Court, Pretoria, judge has sparked controversy for demanding answers from an all white legal team in a black economic empowerment case as to why there were no black lawyers in the team, the Pan African Bar Association of South Africa (Pabasa) says his concerns should not be seen in a negative light.

Judge Mandlenkosi Motha recently instructed both legal teams to address him regarding the lack of diversity in their teams in the case which he had presided over.

It was a matter brought by Periform Work Scaffolding Engineering (Pty) Ltd v the Commissioner of Broad-Based Black Economic Empowerment Commission.

Judge Motha cited potential violations of section 9.2 of the Constitution, which addresses the need to correct past inequalities, as his concern. He ordered the legal teams to submit head of arguments to him regarding the matter.

The matter was heard in January and the judge had reserved judgment in the case.

The judge, through his secretary, sent an email to the legal teams on February 19, in which he said “the court requires counsel to make a 10 minute submission on the failure to have gone brief, even a single African counsel in this matter.”

The submission had to be made in a virtual hearing on Friday (February 23).

A few days later, another email was sent in which the judge said they were now required to make written submissions which were to reach him by today (February 28).

Advocate CFJ Brand SC, who appeared on behalf of the respondent in the matter, issued a memorandum to the judge’s secretary to express his “shock” at the request.

Brand stated that during his decades in the legal profession, he had never encountered any political remarks by any presiding officer during trial. Thus, he was deeply “shocked” and “saddened” by Judge Motha’s emails.

“Your remark and order/request, I regretfully find totally inappropriate and unbecoming the office of a judge,” he wrote in his memorandum.

Brand said the issues the judge wanted comments on, had nothing to do with the merits of the case. He also said that he could not find anything in the Constitution which compels an attorney to appoint “certain specific counsel”.

He also questioned why the judge had limited his concern to only “African” and not to other ethnic groups and to women.

Brand said in the memorandum that he was not prepared to enter into a debate about “ a totally irrelevant political point” and would thus not issue heads of argument as ordered by the judge.

The Bar Council of the Pretoria Society of Advocates, meanwhile, in a statement issued yesterday (Tues) clarified its position, saying it had never referred to Judge Motha’s directive being “inappropriate and indecent”, as quoted in the media.

Neither did it express any opinion on the matter. It said the comments made to the media by one of its members, Advocate Francois Botes SC, were not authorised by the Bar Council of the PSA.

It distanced itself from Botes’ comments and said the matter was under “consideration” by the Bar.

“The PSA reaffirms its commitment to the principles of non-racialism, non-sexism, and non-discrimination as enshrined in the Constitution,” it said.

Pabasa meanwhile said the issue raised by Judge Motha was indicative of his concern for the lack of transformation in the legal profession. It should be welcomed as an opportunity to debate this subject and did not constitute judicial overreach.

The organisation said it saw Judge Motha’s directive as an extension of Judge President Dunstan Mlambo’s effort in gathering statistics on briefing patterns with the aim of transformation in the legal profession.

Pretoria News

[email protected]