A senior advocate said he was “shocked” at an order from Pretoria high court judge Mandlenkosi Motha to respond to his concerns that no African counsel were briefed in a matter argued before him. The order was “inappropriate and unbecoming the office of a judge”, the senior advocate said in a recent memorandum.
The racial makeup of the legal team “has got nothing whatsoever to do with the merits of the case”, the advocate wrote.
However, Gauteng judge president Dunstan Mlambo, Motha’s boss, said he saw nothing wrong with Motha’s order, according to News24.
The office of the chief justice did not respond to enquiries.
Four advocates argued a matter involving the Broad-Based BEE Commission and a company called Periform Work Scaffolding in January. They were advocates Johan Brand and Anna Granova for the commission and Arnie Subel and Johnny Klopper for Periform.
The case involving disputes regarding the finality of a BBBEE scorecard decision was argued in late January before Motha, who reserved judgment. However, according to Brand, a senior advocate, the main issue was whether a finding by the commission was final or preliminary: if it were a preliminary finding, the commission would win; if final, Periform.
Just less than a month after Motha reserved judgment and the advocates had argued and closed their case, Brand received an email from Motha’s secretary, he said.
“The court requires counsel,” the email said, “to make a 10 minutes [oral] submission on the failure to have gone brief [sic], even, a single African counsel in this matter. Did that not amount to the violation of section 9 of the constitution?”
Section 9 of the constitution deals broadly with the right to equality.
After the email, Motha’s secretary then indicated oral submissions by the advocates were no longer necessary and they would simply need “to file short heads of argument addressing the court’s concern” by the end of February.
Concerns regarding representation in the legal profession, particularly in the advocates’ profession, had been raised for years but came to a head in 2023 when advocates around the country celebrated 100 years since women in SA were admitted to the legal profession.
According to the Bridge Group of Advocates in Johannesburg, in 2019, of the 3,083 advocates in the entire general council of the bar (GCB) of SA, only 28% were women. And, of the 537 senior advocates (known colloquially as “silks”), only 50 were women.
The Johannesburg Society of Advocates (JSA), a constituent group of the GCB, in an article for Advocate magazine in 2023, noted “of the [JSA’s] 434 women advocates, only about 33 have acquired silk status”. And of those 33 in the JSA only seven are black African women.
However, as Brand noted, most advocates operate in terms of a “referral” practice. This means they do not solicit clients but must be briefed by an attorney. It is therefore not the advocates who choose a case, but receive it. “Must counsel now refuse to accept a brief because there is no 'African' counsel briefed?” Brand wrote.
He also noted “clients are at liberty to choose whomever they desire to represent them in a court of law”.
Racial makeup of legal teams “is totally irrelevant to you”, he wrote to Motha. “I ... regretfully submit that you have committed proverbial ‘judicial overreaching’,” Brand wrote, “and [you] have descended into the arena of politics by posing a question which has got absolutely nothing to do with the merits of the case you have still to decide.”
He noted his “deep conviction” that “this matter ... be made public and should be ventilated so that the public will still have some respect and confidence in the judiciary.”
Motha had not indicated a response at the time of writing. The Pan African Bar Association, a recently launched national bar focusing on black and female advocates, said it had noted the matter but had no comment at the moment.
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