Adv Johan Brand's memo in response to Judge Motha's race directive

SC says judge's complaint over having four white counsel before him totally unbecoming


Advokaat van die Hooggeregshof van Suid-Afrika / Advocate of the High Court of South-Africa Lid van die Pretoria Vereniging van Advokate Member of the Pretoria Society of Advocates

Datum / Date 23 February 2024

Dear Judge Motha,



1. You will note from the heading of this document that I do not intend submitting heads of argument as ordered requested by yourselves but, instead, will deal with the matter in this memorandum.

2. As a background I think the following should be mentioned:

2.1. The Applicant in this matter was represented by Advocate Subel SC and Advocate Klepper.

2.2. The Respondents were represented by Advocate Brand SC and Advocate Granova.

2.3. The matter was heard by you on 23 January this year and judgment was reserved.

3. The issues during the hearing were very crisp, namely, whether the finding by the Respondents was a preliminary finding, or a final finding. Should it be found that the finding was preliminary the Applicant accepted that it would be non-suited for prematurely bringing the application. Conversely, should you. find that the finding was indeed a final finding, the Respondents conceded that the application as far as the methods are concerned should succeed because certain errors of law were committed when coming to that finding.

4. On 16 February 2024 your secretary addressed an email to all counsel involved as well as their attorneys. The email reached me on 19 February 2024. However, in the email the following was said:

"The Court requires counsel to make 10 minutes submission on the failure to have gone brief, even, a single African counsel in this matter. Did that not amount to the violahon of Section 9 of the Constitution?"

5. The submissions by counsel had to be made in a virtual hearing by means of Microsoft Teams on Friday, 23 February at 09h00.

6. However, on Tuesday, 20 February 2024 an email was sent by your secretary, containing the following remark:

"Following the response, it is no longer necessary for parties to attend the virtual court on (sic) scheduled for Friday 23 February 2024 at 09h00. However, both counsel are still required and expected to file short heads of argument, addressing the Court's concern, namely the possible violation of Section 9(2) of the Constitution due to failure to have an African counsel on brief in this matter. The short heads of argument are expected on or about 28 February 2024."

7. After receipt of the first email, I immediately telephonically brought the matter to the attention of the Chairman of the Pretoria Society of Advocates - A society of which I am a member. I did this for a few reasons, one being that, to my mind, the instruction/ order/ request by yourselves involved a principle that affects not only the counsel that are involved in the case, but also eachand every legal practitioner in South Africa.

8. I also discussed the matter with Subel SC and I venture to say that we.broadly, have the same view on this matter. However, he will speak for himself. I .went further and discussed my predicament with two senior attorneys who have been in practice for more than 40 years each.

9. After the aforesaid discussions and after deep reflection, I have decided on the course that I am now following.

10. I started my career in law as a junior prosecutor in the Magistrate's Court of Johannesburg during July 1971. During my years as a prosecutor, having regard to the political era then, I. never encountered any political remarks by any presiding officer during trials. Even though Magistrates were then fully under the control of the Minister of Justice, the Magistrates did not let themselves be intimidated by either political circumstances or political pressure. That was my experience throughout. Later - as a Magistrate and also Regional Magistrate, the same principle prevailed, namely politics were not part of jurisprudence and was not practised on a bench.

11. As an Advocate since 1988 and even as a Senior Advocate, I likewise never experienced a political slant in any judgement that I read nor did I experience a political preconceived notion in a debate or judgement by a Judge or Magistrate.Cases were, rightly or wrongly decided, on merits and merits only. I must add that I experienced this whilst appearing in front of Magistrates from different sexes, religions, and colour. Judges likewise kept their judgements contstrained to the disputes they had to adjudicate and not the politics or policies.behind the disputes .Obviously -if a political point was the issue between parties, it was adjudicated as such-being relevant, not as an irrelevant side issue.

12. With this background, I unhesitatingly and without exaggeration state that I was deeply shocked and saddened by the contents of the two emails addressed to me and others on behalf of you. Let me make it clear - I do, as I have throughout the decades, hold the office of a Judge in very high esteem.

I have never been criticised or taken to task for any demeanour that impacted

badly on the office of any Judicial Officer. To me, the law is the only buffer

between civilisation and barbarism.

13. Your remark and order/ request, I, regretfully find totally inappropriate and unbecoming 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 a court of law. Section 9(2) guarantees that right. Fourthly- surely an attorney/client privilege exists as far as the choice of counsel is concerned. Fifthly - I could 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.

I respectfully submit, neither does Section 9 of the Constitution compel an attorney or a client to appoint certain specific counsel against his or its wishes. Lastly, as far as counsel are concerned, by and large the advocacy is a referral profession. Counsel are briefed by attorneys (except legal practitioners with trust accounts) Must counsel now refuse to accept a brief because there is no "African" counsel briefed to appear with him, or for that matter against him? It also begs the question, why curtail your concern to only "African?". White females are also classified as previously disadvantaged. Why do you not mention Indian females, coloured males etc?

14. It is ironic that the statistics for the Office of the State Attorney, Pretoria reflects that in January of this year, 39 "African" counsel were appointed as against 5 white, 3 Indian and 1 coloured. Of this number 10 were African

female, 29 African male, 4 white female, and only 1 white male, 2 Indian

females and 1 Indian male as well as 1 coloured male.

15. This, however, with respect ,is totally irrelevant as you, as a Judicial Officer, may not and should not descend into the arena of politics. To turn the question around: What does it matter if the appointment of 4 White counsel (including a female) in this case is in fact a violation of Section 9 of the Constitution? Is it going to impact on the merits of your judgement? Has it got anything to do with the credibility of any party? With respect, I again regretfully submit that you have committed proverbial "judicial overreaching" and 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.

16. I am therefore, with the greatest respect, not prepared to heed your order to file heads of argument. Again, I do this with the full knowledge of the high office you occupy, and I do this reluctantly but out of conviction. In so far as it was not in order but a request, I respectfully decline your request to file heads of argument.

17. To sum up - as an independent counsel who has to uphold the law of the land, I am not prepared to enter into a debate about a totally irrelevant political point in a court of law. This is the main reason why I respectfully write this memorandum and not submit heads of argument. I have submitted this memorandum to my junior, advocate Granova, as well as Advocate Suber SC and Advocate Klepper. I will also submit this memorandum to the Chairman of the Pretoria Bar, the Chairman of the GCB and, insofar, as I have been requested to do so, to the Rapport Newspaper, Pretoria FM and Afriforum. I do this because justice must be seen to be done. This memorandum is a public document, open to scrutiny by any member of the public and I am of the deep conviction that this matter should be made public and should be ventilated so that public will still have some respect and confidence in the judiciary.

18. I, as a courtesy to you, will also refer you to the following dicta of the Supreme Court of Appeal in the case of Mucavele and Another v MEC for Health, Mpumalanga Province 2023 (ZASCA) 129, a judgement delivered on 11 October 2023, where the Court, after quoting from the case of Fisher and Another v Ramahlele and Others (2014) ZASCA) 88, held as follows at paragraph 15 of the judgement:

"In Fisher and Another v Ramahlele and Others this court cautioned that it was for the parties to define the nature of their dispute and it is for the court to adjudicate upon those issues"

The Court went on and said:

"Fisher, emphasised that a court may mero moto to raise a question of law if it emerges fully from the evidence and is necessary for the decision in the case.(my emphasis)

Lastly, in the case of RAF v Taylor (2023) ZASCA 64 (8/5/2023) Saldulker JA, in a unanimous judgment held as follows at par 31: (B)ut a court has no general duty or power to exercise oversight over the spending of public funds. This is so for three reasons. The first is the constitutional principle of the separation of powers. The second is

that the exercise of a duty or power will infringe the constitutional rights of ordinary citizens to equality and to a fair public hearing. The third is the principle that the law constrains a court to decide ONLY the issues the parties have raised for decision."