I HAVE practised as an advocate of the high court for 43 years. I have been a senior advocate for 33 years. I have been privileged to appear in all the provincial divisions of the high court.
I was shocked and surprised to read at the weekend about the events in the Pretoria high court, where Judge Mandlenkosi Motha not only objected to the fact that there was not a black lawyer in the legal teams before him but went further and ordered the lawyers to present legal arguments to him on why this is not a violation of the constitution.
Unfortunately, the judge was not only guilty of improper behaviour by raising a matter that did not serve for judgment before him, but the reference to the constitution is unclear.
The situation was significantly worsened when the judge president of the Gauteng division, according to the report, supported the judge in his actions and when the predominantly black organisation for advocates, the Pan African Bar Association of South Africa, among others, also supported the judge.
In a News24 report, the state attorney agreed that the judge's actions were wrong and emphasised that the advocates were instructed to act in the case because of their experience and competence. It also appears the statistics regarding appointments by the state attorney do not support the request of the judge.
In a memorandum addressed to Motha, Johan Brand SC pointed out that his actions were inappropriate/wrong and said he would not present any arguments to him. He pointed out pertinently that he was not prepared to get involved in a debate about an irrelevant political argument in a court of law. The memorandum appeared in the media and I advise readers to read the excellently motivated position of my colleague.
The result of the ill-considered actions of the judge and the support he received is that a polarisation has now arisen among certain white and black advocates that must be nipped in the bud as soon as possible. Hopefully, the chief justice will show the necessary leadership to defuse the situation.
What must be clearly understood is that advocates receive instructions from attorneys (there is a limited exception) and neither the courts nor advocates can prescribe to attorneys who to appoint.
The debate about the insufficient exposure and assignment of black advocates is relevant and must be supported. It will also be relevant to find out what the General Council of the Bar and the Legal Practice Council's position is regarding this.
The forum for this debate is not the court.
The constitutional law expert Prof Pierre de Vos writes the following in his blog about the matter:
“The decision by the judge to order the lawyers to submit written arguments to him on an issue that was not before the court was odd, to say the least. However, this does not mean the judge was wrong to question the fact that two all-white legal teams appeared before him.
“Quite frankly, I find it bizarre that no one involved in the matter paused for a moment to ask how this could be justified, or to consider whether it was in the best interest of the clients to brief all-white legal teams to argue the matter.
“The problem was compounded by the response of one of the implicated white lawyers, Johan Brand SC, who refused to make a submission to the court as directed by the judge. Instead, he addressed a contemptuous memorandum to the judge (which has since been widely circulated), seemingly premised on the assumption that there was nothing wrong with racially discriminatory briefing practices, or at the very least, that it was outrageous to expect Brand or any other lawyer to be concerned about such matters, let alone to do something about them.
“Among the many claims made by Brand in the memorandum is that section 9(2) of the constitution guarantees all clients the right to choose whomever they desire to represent them in a court of law. Brand also claimed that he ‘could find nothing in section 9 or, for that matter, the whole of the constitution of South Africa, that compels any attorney and/or client to appoint counsel of a certain race, creed, religion or sex'.
“The reasoning here is an embarrassment, suggesting that the poor clients in this case may not necessarily have had the benefit of the best available counsel (possibly not even the best available white male counsel).
“The problem is not only that the first claim by Brand quoted above is obviously wrong in law — if section 9(2) guarantees any right, it is a right to affirmative action measures.
“The larger problem is that the overall argument is overly simplistic and based on a misconception: the issue is not whether there is a specific provision in the constitution that compels an attorney to appoint counsel of a certain race or sex, but whether the constitution has anything to say about skewed briefing patterns in terms of race and sex, or about the need for the profession to take active steps to address them."
♦ VWB ♦
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