maroelamedia.co.za Original Article translated from Afrikaans:
A judge in the Pretoria High Court wants the group of legal practitioners appearing before him to explain why there wasn’t a single black advocate present.
Judge Mandlenkosi Percival Motha sent an email to the group of legal practitioners on February 16, requesting that the advocates deliver a 10-minute presentation explaining why not a single black advocate was involved in the case. “Doesn’t this amount to a violation of article 9 of the Constitution?” Motha wanted to know.
Article 9 of the Constitution relates to achieving equality and states that “legislative and other measures may be taken to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination.”
The group of legal practitioners appeared before Motha on January 23 in a case between PERI Formwork Scaffolding Engineering and the Broad-Based Black Economic Empowerment Commission. Adv. Arnold Subel SC and adv. Johnny Klopper represented PERI Formwork, while adv. Johan Brand SC and adv. Anna Granova represented the commission. Judgment is reserved.
The presentations, as requested by Motha in his email on February 16, would be heard during a virtual court session on February 23.
In a subsequent email on February 20, Motha again sent an email to cancel the virtual hearing. He requested that both legal teams “still submit brief arguments to address the court’s concern, namely the possible violation of article 9(2) of the Constitution due to the failure to have a black advocate in the case.” He wants these arguments by February 28, 2024.
Adv. Brand, in a memorandum to Judge Motha, said that as a member of the Pretoria Bar Association, he immediately contacted the chairman of that organization by phone after receiving the first email to inform him of the matter.
“The directive/order/request by you relates to a principle that affects not only the relevant legal teams in the case but also every legal practitioner in South Africa,” he writes in the memorandum to Motha.
Although he “holds the office of a judge in very high esteem,” he finds Motha’s request “wholly inappropriate and unfitting for the office of a judge.”
Brand says it has nothing to do with the merits of the case. “Secondly, there is no dispute between the legal teams regarding the composition of the legal teams, and thirdly, clients are free to choose whomever they wish to represent them in court.” Brand says article 9(2) guarantees this right.
He also couldn’t find anything in article 9 or the entire Constitution that forces any attorney and/or client to appoint any attorney of a certain race, belief, religion, or gender.
“Do legal teams now refuse to accept a case because there are no black attorneys who can appear with or against them? This also raises the question: Why are you only concerned about ‘black’? White women are also classified as previously disadvantaged. Why don’t you mention anything about Indian women, colored men, etc.?”
Brand also asked Judge Motha whether it would impact his ruling if the appointment of four white attorneys (including a woman) in the case in question still amounts to a violation of article 9 of the Constitution. “Does it have anything to do with the credibility of any party?”
He believes the judge moved into the arena of politics by asking a question that has nothing to do with the merits of the case he has to rule on.
He confirms in the letter to Judge Motha that he is not willing to comply with the request to submit brief arguments. “I do this with full knowledge of the high office you hold, and I do it reluctantly, but convincingly. Insofar as it was not an order but a request, I respectfully decline your request for brief arguments.”
Racial prejudice
Dirk Hermann, managing director of Solidarity, says a judge should speak correctly about the case before him and not about the race before him. “Judge Motha has found himself guilty of racial prejudice and is no longer worthy to act as a judge. If racial judges become the norm, it will be to the great disadvantage of legal practitioners, ordinary South Africans, and the legal system. This power cannot be left unchecked.”
Hermann says the Solidarity Legal Network will further investigate.
Adv. Willie Spies, AfriForum’s legal representative, also believes the judge acted improperly. “A judge should not interfere with clients’ choices about their legal teams.”
According to him, what happens in this case is important for the legal profession as a whole.
“We will wait for the judge’s ruling.”
View Original Article Here…(maroelamedia.co.za)
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