‘Transformania’ – Judge Motha engaged in judicial overreach, says FMF Rule of Law Project

12 March 2024

“Judicial officers must always observe the constitutional imperative of non-racialism in both their judgments and their conduct in the courtroom.” – Martin van Staden, FMF Head of Policy

The Free Market Foundation (FMF) and its Rule of Law Project condemn the inappropriate use of the judicial power by Gauteng judge Mandlenkosi Motha, who in February sought to have the lawyers in a matter before him account for the racial composition of their teams.

South Africa has a history of social engineering on racial grounds, which the Constitution doubly prohibits through its commitment to non-racialism in section 1 and its prohibition on racial discrimination in section 9.

Even the most generous interpretations of section 9 of the Constitution cannot yield a requirement that legal teams appearing before our courts structure themselves racially, as Judge Motha’s instructions strongly imply. Instead, section 9 states that everyone is equal before the law and entitled to equal protection under the law.

“Judge Motha directed the counsel representing the parties to explain, in heads of argument, why there was no black African counsel on their team. This request was bizarre, seeing that there is currently no legal requirement that litigating teams be of a particular racial makeup,” says FMF Policy Officer, Zakhele Mthembu LL.B.

Brand SC’s memorandum rightfully described the overreach of the judge. Questioning the racial makeup of the counsel in the matter before Judge Motha, when it had nothing at all to do with the case, was inappropriate.

Transformania 

The FMF is furthermore disheartened by the stances taken in recent days by some legal practitioners and by entities like the Law Society of South Africa, who should be protecting the integrity of the profession but are instead supporting the judge. 

“The law society, bar councils, and other professional legal associations should be defending their peer, Johan Brand SC. Judge Motha, unfortunately, was countenancing the ‘transformania’ policy of the incumbent government, rather than giving effect to constitutional prescripts,” says FMF Head of Policy, Martin van Staden LL.M. 

“The Constitution certainly cannot be read to direct citizens and organisations in this country to choose only legal representatives of a certain skin-colour,” says Van Staden.  

“Brand SC and his fellow counsel were so directed for no reason other than the colour of their skin. Had they been born looking different, the judge would not have discriminated against them in this fashion,” added Van Staden.  

Impartial and objective

“Just 40 years ago, if an advocate responded to our courts the way Brand SC did, it would have been rightly met with cheers,” says Mthembu. “That Brand SC’s conduct would have been moral in 1984 but is regarded as contemptuous in 2024, is incoherent.”

“I don’t want the judge in a matter I may be involved in, directing the advocate who was briefed by the attorney I chose, to be questioned about their race and why I did not choose representatives of a different race. If a client wants an all-black legal team, they should have the latitude to do so, same as a client that would require an all-white legal team,” says Mthembu.

“Demographic coincidences, furthermore, like ending up with an all-black or all-white, or all-male or all-female, or all-Christian or all-Muslim, legal teams, should not become a matter of contention, especially by the ‘impartial and objective’ courts. When a legal team is voluntarily chosen by the client, it is an exercise of the client’s constitutional rights, not a violation thereof,” added Mthembu.

“The health and success of our constitutional democracy depends on the ability to criticise those in power when it is warranted, including judges. Brand SC should not be punished for doing exactly that,” concludes Mthembu.

Issued by Anneke Burns, Publicist, FMF, 12 March 2024