Law societies behind Judge Motha in BEE furore

Judge Mandlenkosi Motha of the Gauteng High Court, Pretoria.

Judge Mandlenkosi Motha of the Gauteng High Court, Pretoria.

Published Mar 11, 2024


Following the furore in some circles over the remarks by a Gauteng High Court, Pretoria judge, who questioned an all white legal representation in a case before him, both the Black Lawyers Association and the Law Society of South Africa applauded his move.

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 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.

One of the senior advocates appearing in the matter, Johan Brand, sparked controversy over his refusal to adhere to the instructions by the judge.

President of the Black Lawyers Association, Nkosana Mvundlela said Judge Motha’s remarks should be seen as against the constitution, which advances transformation.

“It is a fact that a majority of African lawyers are starved of opportunities. Empowerment is not just law but one which affects human beings, their development and improvement of their skills and knowledge… Should the current inequality remain,” Mvundlela questioned.

He added that the Black Lawyers Association acknowledges that clients have a right to be represented by a team of their own choice. In practice, however, the appointment of counsel is largely informed by the attorney of record and/or the legal division of the client company.

“In the context of the matter which served before Judge Motha, the instructing attorneys and the commission would not have any sound reason why its team did not include black lawyers.”

Mvundlela said it is their view that the law should not be further developed in the absence of Africans.

“Jurisprudential development would, in the context of the case in question, have been grounded in the submissions of the legal teams. Absent input from African practitioners, law which affects Africans, would have been developed without them. As the Black Lawyers Association we should hold true to the saying ‘nothing about us without us’”.

Mvundlela added that it does not end with the commission, as the company involved in the litigation, too, is bound to contribute to transformation in so far as briefing patterns are concerned.

“Even if they were to say they had a right to choose who should represent them, we believe that they could have identified black legal practitioners to be in their team.”

Mvundlela said the composition of the legal teams clearly indicates the skewed briefing patterns.

“In our country, given the constitutional transformative mandate, our trajectory should result in a society based on the achievement of equality. We should heed the position of the Constitutional Court, in the street name matter, between Tshwane Municipal Council and Afri-forum, in which it was held that all of us are enjoined to actualise the spirit, purport and object of the Constitution.”

The Constitution seeks to redress the injustice of the past and to serve as a foundation for the briefing patterns to ground the achievement of equality in the legal profession. The Black Lawyers Association is of the opinion that this cannot be achieved if the current briefing patterns are to be retained.

“All legal representatives who appear in these kinds of matters, acquire skills and knowledge as is required in the development of the jurisprudence of this country. Therefore, it is imperative that in briefing the legal teams, we must appreciate the bigger role we are playing.”

The Black Lawyers Association said it is disheartening and disappointing that the very entity that is supposed to be at the forefront of redress acts in a manner which contributes to entrench skewed briefing patterns.

“In essence, Judge Motha must be hailed as a transformation activist who depicts a judiciary that is alive to its responsibility. The Black Lawyers Association applauds him for having the courage to deal with the issue as he did.”

On matters of transformation, judges must not fold their arms and play spectator roles, Mvundlela said.

Adding its voice, the Law Society of South Africa said it deplores the recent furore around the comments of Judge Mandlenkosi Motha.

It’s president, Eunice Masipa, said the wilful and mischievous misinterpretation of the judge’s comments and attacks on his integrity has no place in our country.

“Judge Motha correctly and pointedly asked the legal team in a black economic empowerment matter why there was no black lawyer in the legal team. This is different from reporting why the legal team is all white.”

She too, said the judiciary has a responsibility to encourage and support that the briefing patterns must strive to reflect the demographics of the country.

Pretoria News

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