Judge’s racial prejudices a clear injustice – Solidarity

22 April 2024

Solidarity’s Law Network condemns the crude racial attack in the judgment of Judge Madlenkosi Motha in a case that could seriously jeopardise the integrity of the legal system in South Africa.

In Judge Motha's ruling in the case between PERI Formwork Scaffolding Engineering (Pty) Ltd and the Broad-Based Black Economic Empowerment Commission, there are more detailed comments on the race of the lawyers involved in the case than on the merits of the case, and the judge therefore fails in his role to apply the Constitution in an impartial manner – without prejudice or preference.

Solidarity’s Law Network already submitted a formal complaint to the Judicial Service Commission (JSC) earlier this year with the request that Judge Motha be investigated and removed from the judiciary.

Receipt of this complaint was also formally acknowledged by the JSC – a complaint with regard to the judge’s email to the four lawyers who appeared before him in this very case in the Gauteng High Court in Pretoria in January.

In this e-mail, Judge Motha demanded submissions from these four advocates in which they had to explain why none of them were black, as they were facing each other in a case about black empowerment score cards.

According to Riaan Visser, head of Solidarity's Legal Network, the judgment in this case was delivered on 19 April, and in this judgment, it is clear that the judge has not renounced his racial prejudices.

“It is clear that Judge Motha has exceeded the limits of judicial authority in this case, and due to his personal views, ambitions and convictions, he will not hesitate to exceed them again in future.

“Here is a judge with a personal agenda, namely the skin colour of the legal representatives of the litigating parties. It is something that is totally irrelevant to the facts of the case before him. It is already clear that he acted on the basis of his personal convictions in this matter. Then he touched on the racial element without any of the parties in the relevant case making any objections to that,” Visser said.

Visser believes it is unheard of and unacceptable that Motha should question whether white legal professionals are able to argue about matters pertaining to the cases or interests of other races or cultures, or that the judge believes that the outcome of the matter could have been different if it had been argued by a black lawyer.

“Therefore, our Law Network has a duty to file this complaint against him. Solidarity therefore is asking anew for a thorough investigation by the JSC and the Judge President to address this injustice, and thus to ensure that something like this does not happen again in future. As a network, we stand with the legal profession precisely when others are hesitant to raise their voice or express their displeasure.

“A strong message is needed to convince the public that the integrity of the legal system will indeed be preserved,” Visser said.

Issued by Riaan Visser, Head: Solidarity Law Network, 22 April 2024