Cape Times

Law society throws weight behind Judge Motha’s ‘all-white counsel’ query in BEE matter

AMID the furore in some circles over the remarks by a Gauteng High Court, Pretoria, judge, who questioned an all-white legal representa­tion in a case before him, both the Black Lawyers Associatio­n and the Law Society of South Africa applauded his move.

Judge Mandlenkos­i Motha recently instructed both legal teams to address him regarding the lack of diversity in their teams in the case he had presided over.

It was a matter brought by Periform Work Scaffoldin­g Engineerin­g (Pty) Ltd v the Commission­er of the Broad-Based Black Economic Empowermen­t Commission.

Judge Motha cited potential violations of the Constituti­on, which addresses the need to correct past inequaliti­es, as his concern. He ordered the legal teams to submit head of arguments to him regarding the matter.

One of the senior advocates appearing in the matter, Johan Brand, sparked controvers­y when he penned a memorandum regarding the mattter.

President of the Black Lawyers Associatio­n, Nkosana Mvundlela said Judge Motha’s remarks should be seen in the context of the Constituti­on, which advances transforma­tion.

“A majority of African lawyers are starved of opportunit­ies. Empowermen­t is not just law but one which affects human beings, their developmen­t and improvemen­t of their skills and knowledge … should the current inequality remain,” Mvundlela said.

The Black Lawyers Associatio­n acknowledg­ed that clients had a right to be represente­d by a team of their own choice. In practice, however, the appointmen­t of counsel was largely informed by the attorney of record and/ or the legal division of the client company, he said.

“In the context of the matter which served before Judge Motha, the instructin­g attorneys and the commission would not have any sound reason why its team did not include black lawyers.”

Mvundlela said the compositio­n of the legal teams clearly indicated the skewed briefing patterns.

“In our country, given the

constituti­onal transforma­tive mandate, our trajectory should result in a society based on the achievemen­t of equality. We should heed the position of the Constituti­onal Court, in the street name matter, between the Tshwane Municipal Council and AfriForum, in which it was held that all of us are enjoined to actualise the spirit, purport and object of the Constituti­on.

“The Constituti­on seeks to redress the injustice of the past and to serve as a foundation for the briefing patterns to ground the achievemen­t of equality in the legal profession. The Black Lawyers Associatio­n is of the opinion that this cannot be achieved if the current briefing patterns are to be retained.

“All legal representa­tives who appear in these kinds of matters, acquire skills and knowledge as is required in the developmen­t of the jurisprude­nce of this country … ”

The Black Lawyers Associatio­n praised Judge Motha for having the courage to deal with the issue as he did.

On matters of transforma­tion, judges must not fold their arms and play spectator roles, Mvundlela said.

Adding its voice, the Law Society of South Africa said it deplored the recent furore around the comments of Judge Motha.

Its president, Eunice Masipa, said the wilful and mischievou­s misinterpr­etation of the judge's comments and attacks on his integrity have no place in our country.

“Judge Motha correctly and pointedly asked the legal team in a black economic empowermen­t matter why there was no black lawyer in the legal team.

“This is different from reporting why the legal team is all-white.”

She too, said the judiciary has a responsibi­lity to encourage and support that briefing patterns must strive to reflect the demographi­cs of the country.