Judge Motha: Don Quixote of the Bench

In Miguel de Cervantes’ epic novel, Don Quixote, a member of the lower Spanish nobility reads so many chivalric romances that he descends into delusion. He no longer sees reality for what it is but enters a fantasy world where he acts as a gallant knight, selflessly striving to free the world from evil.

Similarly, Judge Mandlenkosi Motha emerges as the hero in his own story in his ruling in Peri Formwork Scaffolding Engineering v. Broad-Based Black Economic Empowerment Commissioner et al. Judge Motha states that he chooses “not to shut his eyes” and “at great expense” to himself to “take the bull by the horns” to correct what he imagines to be a “patent and palpable iniquity.”

In Judge Motha's case, he has apparently immersed himself in the destructive and paranoid ideology of Critical Race Theory (CRT), a toxic form of “wokeness.” The point of departure of CRT is that the fundamental organising principle of society is “systemic racism,” created by white people for the sole purpose of discriminating against, disenfranchising, and dehumanising black people.

CRT believes that racism is the “normal state of affairs” in society and that it is permanent, endemic, and pervasive. It, therefore, lurks everywhere and is always just below the surface. Robin DiAngelo, the “Critical Whiteness Studies educator” (as she describes herself), writes that the question can never be whether racism is present in a particular situation, but only how racism manifests in that situation.

That Judge Motha shares this belief is evident in his description of “persistent, obstinate and deep racial divisions still prevalent in South Africa.” It is typical of CRT disciples to cynically discount any progress in race relations. For them, the South Africa of 1970 and that of 2024 are one and the same place.

Perhaps the most bizarre statement in Judge Motha’s judgement is that it is “axiomatic” that in B-BBEE litigation, the “inputs, insight and perspectives” of African counsel are “indispensable to arrive at a just decision.” Without them, the court's judgement would be “impoverished and monochromatic.” This is again indicative of CRT, which proclaims that black people have a “unique voice of colour” that enables them to apply the necessary “critical awareness of race” to expose the invisible racism that lurks in all social phenomena, institutions, relationships, and interactions. According to CRT, white people simply do not possess this ability.

This also involves one of the other key dogmas of CRT, namely identity politics – the belief that the most outstanding characteristic of any person is the racial group to which she belongs. CRT entirely denies the reality that every person is a unique individual with her own premises and worldviews.

What this mysterious “insight” is that a black advocate supposedly would have in the case, Judge Motha does not specify. The reason for this omission is simple: He cannot, because there is no such thing. Even a relatively small random sample among a group of black advocates would show a wide variety of individual views on the issues in this litigation.

It begs the question: Why did Judge Motha need a black advocate in the case at all to provide this supposed indispensable insight? Isn't the judge himself a black jurist? Should he not also be endowed with this enigmatic insight? Moreover, if the absence of a black advocate would lead to a “miscarriage of justice,” as Judge Motha claims, why did he nevertheless proceed to deliver a judgement instead of striking the case from the roll (due to the lack of an input necessary for justice to be done) as he threatened?

Also right out of the CRT playbook, Judge Motha then proceeds to label everyone who disagrees with him as racist. The respondents’ heads of argument, drafted by a black advocate, are “disappointing,” “ahistorical,” and “antithetical” to the B-BBEE Act, because they amounted to “saying they [the respondents] don’t see race” in the appointment of advocates.

One of the high priests of CRT, Ibrahim X. Kendi, states that non-racism (or colour blindness) is impossible. White people cunningly entrenches racism in ideas such as “colour blindness” and other cornerstones of classic Western liberalism, such as meritocracy, individualism, neutrality, and objectivity. According to Judge Motha, Advocate Brand SC’s decision to submit a memorandum to the court instead of complying with Motha's (illegitimate) order to prepare heads of argument about the appointment of advocates in the case is the “perfect display of the deep-seated racial divisions still prevalent” in South Africa. In short, according to Judge Motha, Advocate Brand SC is a racist. This again aligns with CRT ideology, which insists that all white people are inherently afflicted with the scourge of so-called “white racism.”

Supporters of CRT embrace this dark and pessimistic ideology as a basic presupposition (a priori); as the only way to interpret the world before any evidence is brought to bear on a situation. Therefore, CRT summarily rejects any empirical evidence that contradicts this totalising belief system. Similarly, Judge Motha simply dismisses the overwhelming evidence from the State Attorney that significant progress has been made with transformation and that the Office has far exceeded its objective in the appointment of advocates from previously disadvantaged groups for 2023–’24, as just a “box-ticking exercise.” Judge Motha also makes the astonishing statement, contrary to all empirical evidence, that the current legal system is “designed to largely benefit one racial group.”

Unlike the endearing Don Quixote, Judge Motha has not read works on chivalrous virtues, and what will ultimately suffer is more than a few worn-out windmills.

Litigants have the constitutional right to appoint legal representatives of their choice. Given the astronomical costs of litigation, it surely stands to reason that litigants are free to appoint the most experienced legal practitioners that they can afford, as the State Attorney indeed did in this case. However, not if Judge Motha has anything to say about the matter.

CRT is much more than a quixotic theory. It has been, from the outset, an activist movement. Let there be no doubt: Judge Motha is on a mission to force all litigants to appoint black advocates. How else, in his words, are “African lawyers going to garner the requisite knowledge, skill and experience”?

And why stop at B-BBEE litigation? The logical consequence of Judge Motha's position is that black advocates must be appointed in all cases where “black people’s struggle for empowerment and against racism” is at issue. According to Motha, white advocates are apparently incapable of anything more than an “impoverished and monochromatic” perspective.

It goes without saying that if you look at the world exclusively through the lens of race, racism is all you will see. The blindfolding of Lady Justice serves a valid purpose. A judge should not consider race when listening to an advocate making submissions in court or reading heads of argument. Indeed, judges are expected to be “colour blind.” How can any white advocate who appears before Judge Motha in the future have confidence that she will be treated fairly? Racial obsession has no place on the bench. A more suitable outlet for Judge Motha's anti-white activism would be as a spokesperson for the EFF.

Dr. Willem Gravett is a law lecturer at Akademia.