Judges are just judges, not absolute rulers

Koos Malan and Llewelyn Curlewis says that Judge Motha morphed into an applicant in his own self-initiated case

Judge Mandlenkosi Percival Motha of the Gauteng High Court was so upset about the four white counsel – a senior and a junior on each side – in a case before him that on 16 February, he ordered the two seniors to explain in written heads arguments why an African advocate did not also appear in the case. According to the learned judge, the racial profiling of the legal teams may have been contrary to section 9(2) of the Constitution, which, among other things, provides for affirmative action.

Party in its own cause and judicially absolutist

Having acted in this way, Motha morphed into an applicant in his own self-initiated case instead of sticking to his judicial duties in the case before him. Moreover, Motha and some of his supporters seem to believe that judges have absolute power and can instruct lawyers about anything, regardless of whether it is related to the case before them.

Motha's instruction was inadmissible and manifestly improper.

The controversy involved the issue of so-called briefing patterns, specifically the alleged practice of a willful preference for white advocates. This has, according to Nkosana Mvundlena of the Black Lawyers Association (BLA), assumed such extreme proportions that black lawyers are starving for opportunities.

The case

Periform Work Scaffolding Engineering (Pty) Ltd, an engineering firm, is the applicant in the case before Judge Motha, while the Commissioner of the Broad-Based Black Economic Empowerment Commission (the BEE Commission) is the respondent.

Adv. Johan Brand SC and Adv. Anna Granova of the Pretoria Bar acted for the BEE Commission and Adv. Arnie Subel SC and Adv. Johnny Klopper for the applicant.

What probably further dismayed Motha was that the state attorney, on whose behalf Mr. NR Baloyi was acting, had briefed Brand. How outrageous of the state attorney to brief a senior white male advocate who falls within the extreme category of untouchability under South Africa’s transformative caste system and then, on top of that, to act for the BEE commission, part of the high priestly order of the caste system?

Brand unequivocally replied to Motha that the racial composition of the legal teams had nothing to do with the merits of the case. For that reason, there was no obligation on him – Brand – to comply with Motha's “instruction”. However, to safeguard himself from a possible charge of contempt of court, Brand responded with a “Memorandum”, instead of heads of argument as required by Motha.

He explains that he considers Motha's instruction inappropriate for a judge. The composition of the legal teams in no way co-determines the outcome of cases. Moreover, the parties themselves have no dispute about the composition of any of the legal teams. Clients are also free to choose who represents them. Brand also argues that neither section 9 nor any other constitutional provision places any obligation on clients as to which attorney or advocate to select as their legal representative. Finally, Brand asks why Motha is only concerned about African advocates and not about any other category of PDIs (previously disadvantaged individuals) such as white women, coloured men, or Indian women.

Implicitly, of course, Motha also got the (instructing) state attorney, who had briefed Brand, in his sights. Hence, the state attorney also responded to Motha’s instruction. It did so in “Supplementary Heads of Argument” and like Brand in glaringly emphatic terms. It stated that it is “impermissible” for a judge to raise new issues, that have no bearing on the case, thus trying to compel the parties to concern themselves with irrelevant issues.

Still, there was loud outrage over Brand's response to Motha’s instruction: calls to discipline Brand, strip him of his senior status, and for him to be removed from the role of advocates.

Besides the Black Lawyers Association (BLA), the National Association of Democratic Lawyers (NADEL) also praised Motha. They claimed that Motha was obliged to question the absence of black advocates.

For Professor Pierre de Vos, it was admittedly also “odd to say the least” that Motha, in a case that had nothing to do with it, raised the racial composition of the legal teams. However, De Vos then blindly brandished his battle axe in another direction, namely against so-called skewed briefing patterns and “the incestuous practice of appointing all-male and all-white legal teams”, which moreover, according to De Vos’s strikingly idiosyncratic logic, “breeds (or perpetuates) a special kind of mediocrity.”

De Vos's livid outrage against the racist pro-white man briefing practices was truly blind – firmly anchored in his imagination and in patent ignorance.

First, Brand was not part of an exclusively white male legal team. The name of his junior colleague is Anna Granova, who is a white woman.

But De Vos missed much more than just that, because, as state attorney Baloyi explained, the office of the state attorney assigns briefs based on a tender system regulated by relevant legislation, regulations, and the Constitution.

According to that, there is no trace of favouring white men. On the contrary, out of the 83 briefs by the office of the state attorney in Pretoria during July 2021, when Brand was briefed in the present case, only five were to white men and eight to white women. During January this year (2024), the count was one white male advocate out of a total of 48. There were briefs to four white women, ten African women, 29 African men, two Indian women, one Indian man, and one Coloured man.

This pattern applies, according to a media statement of the Office of the Solicitor-General, a division of the Department of Justice, countrywide. So great is the progress with transformation, says the Solicitor-General, that the objective for briefing PDI legal practitioners for 2023-2024 has been exceeded. The target was 83% while the actual performance was 95%.

It is therefore incontrovertible that there is no favouritism to white advocates, especially men. If there are “incestuous” briefing patterns favouring white advocates, especially white males, they run rampant only in De Vos's imagination, and if black lawyers suffer from a famine of opportunities, it is evidently not because of pro-white briefing patterns.

Judges adjudicate cases; they do not initiate lawsuits

The crux of the matter regarding Motha’s instruction to the advocates in the present case is that the learned judge, with respect, labours under a grave misunderstanding of the parameters of his powers as a judge.

Litigants – plaintiffs or applicants – initiate cases (actions or applications). Defendants or respondents oppose contested cases. For this, attorneys and sometimes advocates are appointed. And of course, the clients pay for their services. Judges, on the other hand, of course, do not initiate cases. They are not litigants; they are not parties. They must adjudicate, and they must obviously do so impartially. Very basic indeed.

In the adjudication of cases, judges may require the officers of the court – advocates or attorneys – to address the court on anything that is required for the purpose of adjudicating the case, thus assisting the judge in deciding the case.

However, it falls outside the powers of judges to require advocates to prepare and file heads of argument and to address the court on matters that have not been placed before the court by the parties and which therefore do not call for adjudication.

If a judge does this, he initiates his own case and becomes a litigant and party in his self-created case, instead of sticking to his duties as a judge. This is exactly what Judge Motha did. He became an applicant in his own case and ordered the lawyers to prepare arguments for him, as party in his own case.

Obviously, every item of litigation costs money: consultations, drawing up applications and similar pleadings, affidavits, the appearance in court, and of course, preparing heads of argument, and so on. The parties pay for everything – every single item of work done – that has to do with the conduct of their cases.

Motha's instruction (which precipitated Brand's memorandum and Subel’s heads of argument) does not relate to the case. It was initiated by Motha and relates to his case, that is Motha’s case. There are therefore no grounds to hold the parties liable for related costs. The costs for that should instead be for Motha’s account. Or is the expectation that the lawyers had to do a free favour for Motha or that the parties –Periform Work Scaffolding and the SEB Commission – must bear the costs of Judge Motha’s case.

Judicial absolutism?

Judging by Motha’s instructions to the advocates, he (and some of his supporters) seem to believe that judges have the power to instruct action on anything, regardless of whether it pertains to the case before him or not.

This is, of course, totally wrong. Motha’s instruction was not only unconstitutional; it was anti-constitutional.

The very essence of constitutionalism is limited authority, which is a strictly controlled exercise of authority, thus prohibiting absolutism. According to the tenets of constitutionalism, no authority may be absolute, that is, no authority is absolved from the restrictive norms and from the weight of counter-authority. No one's authority, not that of the president, parliament, or ministers’ authority, and not the authority of a judge, is absolute.

Correspondingly, even contemporary monarchies are no longer absolute, but constitutional monarchies. Similarly, there is no place for judicial absolutism. Precisely because of this, no judge may do as he pleases or feels. His power is limited, among other things, by the subject matter of the disputed facts in the case before him.

With his improper instruction to counsel in this case, Motha left the circle of light of constitutionalism and entered the dark shadows of anti-constitutional absolutism.

Prof Koos Malan is a constitutional jurist from Pretoria.

Dr Llewelyn Curlewis is an attorney and affiliated with the University of Pretoria.

This article was first published in Afrikaans in Rapport