TRADE Union Solidarity has called for North Gauteng High Court Judge Mandlenkosi Motha to be investigated and removed from the judiciary.
The trade union, through its Solidarity Law Network, has written to the Judicial Service Commission (JSC) following Motha's recent request for an explanation from four advocates opposing each other in a case about black economic scorecards and why none of them were black.
Motha also asked if that did not amount to a violation of Section 9 of the Constitution, which addressed the need to correct past inequalities, as his concern.
This was a matter brought by Periform Work Scaffolding Engineering against the Commissioner of Broad-Based Black Economic Empowerment Commission.
The matter was heard on January 23 and Motha reserved judgment in the case and ordered the legal teams to submit head of arguments to him regarding the matter.
Solidarity Law Network said this was a serious violation of the principles of fairness and impartiality “our” judicial system and constitutional democracy vest on.
Network head Riaan Visser said the role of a judge was to let justice prevail and to apply the Constitution impartially, without any prejudice or preference. He said it was clear that Motha exceeded the limits of judicial authority.
“This is a judge with a personal agenda which is totally irrelevant to the case serving before him. He acted based on his personal conviction. Moreover, he did so without any of the parties involved in the relevant case having objected about the issue themselves,” said Visser.
“This is unheard of and unacceptable,” he said.
Visser also added that this was not the first time Motha’s judgment had been influenced by political or racial issues.
He said Motha also raised similar views during his interview for appointment as a full-time judge in the Gauteng North High Court, when he campaigned for the “Africanisation of law”.
“Solidarity is requesting a thorough inquiry by the JSC and the Judge President to address this injustice and to see to it that something similar does not repeat itself in the future,” Visser said.
“By removing Judge Motha from the bench, the independence of our judiciary and the rights of all citizens of our country will be protected from such bias. A strong message is necessary to convince the public that the integrity of the judicial system will indeed be preserved,” Visser said.
This came after Advocate Johan Brand, who appeared on behalf of the respondent in the matter, expressed “disappointment, shock and sadness”.
Brand, who has been in the field for more than 40 years, said he has never encountered any political remarks by any presiding officer during trials during his years as a prosecutor, even though Magistrates were under the control of the Minister of Justice.
He said Magistrates did not let themselves be intimidated by either political circumstances or political pressure.
“As an advocate since 1988 and even as a senior advocate, I likewise never experienced a political slant in any judgment that I read nor did I experience a political preconceived notion in a debate or judgment by a Judge or Magistrate. Cases were, rightly or wrongly decided, on merits and merits only,” Brand said.
He further said that Motha’s remarks were inappropriate and unbecoming of the office of a Judge.
“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.
“Fourthly, surely an attorney and client privilege exists as far as the choice of counsel is concerned. Fifthly, I could not find nothing in Section 9 or, for that matter, the whole of the Constitution of South Africa, that compels any attorney and/or client to appoint counsel of a certain race, creed, religion or sex,” Brand said.
However, the Pan African Bar Association of SA (Pabasa) said Motha’s concern was indicative of his concern for the lack of transformation in the legal profession and it should not be frowned upon.
The association further said that this should instead be welcomed as an opportunity to debate this subject. “It is not judicial overreach.”
The association said that without independent statistics on briefing patterns in the courts, the public will forever be in the dark regarding factors that go into the appointment of a Judge as suitable for appointment.
“It is unfortunate that counsel in the case before Justice Motha flatly refused to comply with the Judge’s directive. This sets an undesirable precedent that legal practitioners can now comply with judicial directives they agree with and refuse to comply with those they do not like,” Pabasa said.