Judge Motha questions legal practitioners on equality

March 19th, 2024

Section 9(2) of the Constitution of South Africa states that:

‘Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories, disadvantaged by unfair discrimination may be taken.’

One of the aims of the Legal Practice Act 28 of 2014 (LPA), as amended by Legal Practice Amendment Act 16 of 2017, is to –

‘provide a legislative framework for the transformation and restructuring of the legal profession … which is broadly representative of the Republic’s demographics.’

Statements made by Gauteng Division of the High Court, Pretoria, Judge Mandlenkosi Motha, who asked the legal team in a black economic empowerment matter why there was no black lawyer in the legal team, opened a debate on equality and transformation of the legal profession. The ongoing debate was sparked by a report in City Press that stated that Judge Mandlenkosi Motha requested that both legal teams submit written arguments ‘which address the court’s concern, namely [on] the possible violation of section 9(2) of the Constitution, due to the failure to have a black advocate in this case’ (J Eybers ‘Judge questions all-white legal team: Why is there not a single black lawyer?’ (www.news24.com, accessed 6-3-2024)). According to the City Press, Judge Motha sent an e-mail to all four advocates in the case, which deals with black economic empowerment, and in the letter Judge Motha requested that both legal teams in the case make a 10-minute presentation about the ‘failure to have even a single black lawyer in this matter’.

This sparked a debate in the legal profession, with some legal bodies supporting Judge Motha and others disagreeing with him.

The Law Society of South Africa (LSSA) released a statement stating that it deplores the recent furore around the comments of Judge Motha. In the statement, the LSSA’s President Eunice Masipa noted: ‘The wilful and mischievous misinterpretation of the honourable Judge’s comments and attacks on his integrity has 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 than reporting why was the legal team all-white.’

The statement further stated that: ‘The LSSA has always viewed the transformation of the profession and laws as driven by the benefits to society, and therefore the LSSA have cautioned against the use of transactional lawyers who do not see value and benefits of transformation but merely the fee. This attitude goes against the ethos of transformation. The rule of law in all its facets is what directs the LSSA and the LSSA notes white lawyers are an integral part of the profession and part of the transformational journey of all lawyers.’

The National Association of Democratic Lawyers (NADEL) said that it firmly stands in support of Judge Motha’s decision to question the racial makeup of the counsels involved in the Periform Work Scaffolding Engineering (Pty) Ltd v the Commissioner of Broad-Based Black Economic Empowerment Commission matter in light of the fact that the legal profession remains highly untransformed. The statement further added that the transformation of the legal profession, particularly regarding briefing patterns, has always been a contentious and controversial issue in the South African legal profession.

The statement said that NADEL recognises that a judge is entitled, if not obligated, to question the lack of black counsel in the courts and that the state and judiciary plays a pivotal role in advancing transformation, otherwise transformation will remain stagnant and sluggish. In the statement, NADEL added that it has participated at various levels towards the Draft Legal Sector Code, which has, as its objective, facilitating the transformation of the legal sector to ensure that it is representative of the demographics of South Africa and to ensure that a body of well-trained and component providers of legal services are developed. NADEL highlighted that the Draft Legal Sector Code is aimed to set out a new framework for determining Broad-Based Black Economic Empowerment (B-BBEE) compliance in the legal sector, which reflects the unique characteristics of the legal industry.

The Black Lawyers Association (BLA) released a statement supporting Judge Motha in which the organisation said that the preamble read with ss 1 and 9 of the Constitution, considered together with s 217, clearly declares our Constitution as a transformative document. The statement added that in the context of Judge Motha’s directive, the Constitution should be understood to enjoin the legal profession to empower, in particular, African legal practitioners. ‘Whilst the Constitution calls upon society, it is our understanding that a purposive interpretation would call upon each sector of society to transform within its realm,’ the statement read.

The BLA pointed out that the Broad-Based Black Economic Empowerment Act 53 of 2003 (B-BBEE Act) demands economic unity. The organisation added that Judge Motha’s directive should be understood in that context and within the prism of the Constitution, as set out above. ‘It is a fact that 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. The question should be, after all is said and done, should the current inequality remain?’ the statement read.

The statement further stated that the BLA acknowledges that a client has a right to be represented by a team of their own choice. The BLA added that in practice, however, the appointment of counsel is largely informed by the attorney of record and/or the legal division of the client company. ‘In the context of the matter which served before Judge Motha (Commission matter), the instructing attorneys and the Commission would not have any sound reason why its team did not include black lawyers,’ the statement read.

The BLA in the statement said: ‘It is our considered view that the law should not be further developed in the absence of Africans. Jurisprudential development would, in the context of the case in question, have been grounded in the submissions of the legal teams. Absent an input from African practitioners, law which affects Africans, would have been developed without them. As the BLA we should hold true to the saying: “Nothing about us without us”’.

The Pan African Bar Association of South Africa (PABSA) also released a statement that the organisation sees Judge Motha’s directive that counsel address him on the composition of their legal teams in an opposed motion case involving B-BBEE as an extension of the Judges President’s effort in gathering statistics on briefing patterns in the province furthermore, it should also be seen against the background of the preamble of the Legal Practice Act 28 of 2014. PABASA added that the concern of Judge Motha is indicative of his concern for the lack of transformation in the legal profession and it should not be frowned upon, instead it should have been welcomed as an opportunity to debate this subject.

In that statement, PABASA said Judge Motha’s directive is not ‘judicial overreach’. The organisation pointed out that without independent statics on briefing patterns in court, the public will forever be in the dark regarding the factors that go into the appointment of judges as suitable for appointment. ‘It is unfortunate that counsel in the case before Justice Motha flatly refused to comply with the judge’s directive. This sets an undesirable precedent that legal practitioners can now comply with judicial directives they agree with and refuse to comply with those they do not like,’ the statement read. PABASA pointed out that it is not only in the interests of achieving a competent, independent, and diverse judiciary that such independent statistics are collated, but it is in the public interest also to do so.

City Press also reported that legal practitioner Francois Botes SC, a member of the Pretoria Bar Council, said that Judge Motha’s orders had already been brought to its attention. The council had appointed three advocates to investigate the possibility of legal action.

The Professionals Unity of South Africa (PROFSA) in their press release said that the demand by Judge Motha for an all-white group of lawyers to explain why there is not a single black lawyer among them is well placed and finds its expression in the Minister of Health and Another NO v New Clicks South Africa (Pty) Ltd and Others (Treatment Action Campaign and Another as Amici Curiae) 2006 (2) SA 311 (CC) case where the Constitutional Court gave powers to the courts to advance a united and democratic society based on the values set out in the Constitution. PROFSA added that the comments made by certain institutions and individuals, which appears in the print media article in the City Press, seems to be an unwarranted attack directed to Judge Motha and has no place in a democratic South Africa and is an attack not only on the judge but on the whole judiciary. PROFSA said that it cannot allow the advantage of commercial opportunities to be reserved only for all-whites. ‘We fully support Judge Mandlenkosi Motha for doing what is good and just in the development of our jurisprudence in line with ethos, values, spirit, purport, and objects of the Constitution. We further call upon the Minister responsible for the administration of justice to intervene and establish an inquiry in consultation with the Chief Justice and State President to curb these tendencies in defence of our democracy and our Constitution,’ the statement read.

The Office of the Solicitor-General released a statement that it acknowledges the concerns raised by Judge Motha regarding the representation of previously disadvantaged individuals within the legal profession. The statement further stated that Justice Motha’s directive, urging an examination of the absence of diversity among legal practitioners, underscores a critical need for transformation within our legal system. The statement added that in responding to these concerns, the Office of the Solicitor-General is committed to fostering a legal profession that reflects the principles of diversity, inclusion, and equity.

The Office of the Solicitor-General outlined the key integration of benefits as follows:

  • Inclusivity and diversity: The Legal Sector Code and the Briefing and Outsourcing Policy are designed to foster inclusivity by providing opportunities for previously disadvantaged individuals and firms in state legal work, thus cultivating a diverse legal community.
  • Addressing historical imbalances: These transformative policies actively address historical imbalances within the legal profession, acknowledging past injustices and committing to rectify systemic disparities.
  • Empowerment of the legal profession: Both frameworks aim to empower the legal profession by creating opportunities for a diverse range of practitioners. Empowerment contributes to a more dynamic, skilled, and representative legal workforce.
  • Social cohesion and unity: The Legal Sector Code and the Briefing and Outsourcing Policy contribute significantly to social cohesion by ensuring legal opportunities are accessible to individuals across diverse demographic groups. This promotes unity within our society.
  • Transparent and accountable practices: Both policies uphold the principles of good governance by fostering transparency, accountability, and prudent resource use. This contributes to ethical practices within government departments and legal entities.
  • Effective functioning of the legal system: The shared objectives of these frameworks contribute to the effective functioning of the legal system, ensuring fair treatment, access to justice, and overall efficiency in legal processes.

The statement also outlined key observations by the Office of the Solicitor-General as follows:

  • There is a commendable increase in the percentage of briefs issued to previously disadvantaged individual (PDI) legal practitioners and female legal practitioners over the years, indicating a positive trend towards diversity and inclusion.
  • The State Attorney Pretoria has shown improvements in both the number and value of briefs issued to PDI practitioners, showcasing a commitment to addressing historical imbalances.
  • Efforts should be directed towards achieving and surpassing the target percentage for briefs issued to female legal practitioners, ensuring sustained progress in gender diversity.

The statistics reflect a proactive approach in addressing historical imbalances and fostering diversity within the legal profession, although continued efforts are required to enhance gender inclusivity.

The statement further provided transformative strides and statistical insights for 2019-2024.

The Office of the Solicitor-General stated that the statistical information from 2019 to 2024 reflects the Office of the Solicitor-General’s substantial strides towards transformation. Notably, the percentage of briefs issued to PDI legal practitioners consistently exceed targets, reaching 95% in 2023/2024, surpassing the 83% target. The statement added that similarly, the value of briefs to PDI practitioners has consistently surpassed targets, reaching 87% in 2023/2024.

The statement also provided the following statistics:

Percentage of briefs to PDI legal practitioners –
  • 2019/2020: Actual – 93%, target – 83%;
  • 2020/2021: Actual – 89%, target – 83%;
  • 2021/2022: Actual – 92%, target – 83%;
  • 2022/2023: Actual – 94%, target – 83%; and
  • 2023/2024: Actual – 95%, target – 83%.
Percentage of briefs to female legal practitioners –
  • 2019/2020: Actual – 39%, target – 39%;
  • 2020/2021: Actual – 36%, Target – N/A;
  • 2021/2022: Actual – 40%, Target – 40%;
  • 2022/2023: Actual – 42%, Target – 40%; and
  • 2023/2024: Actual – 42%, Target – 41%.
Total value of briefs to PDI legal practitioners –
  • 2019/2020: Actual – 83%, target – 82%;
  • 2020/2021: Actual – 80%, target – 80%;
  • 2021/2022: Actual – 83%, target – 83%;
  • 2022/2023: Actual – 86%, target – 83%; and
  • 2023/2024: Actual – 87%, target – 83%.
Total value of briefs to female legal practitioners –
  • 2019/2020: Actual – 26%, target – 27%;
  • 2020/2021: Actual – 29%, target – 29%;
  • 2021/2022: Actual – 29%, target – 29%;
  • 2022/2023: Actual – 30%, target – 28%; and
  • 2023/2024: Actual – 29%, target – 30%.

The statement pointed out that: ‘The Office of the Solicitor-General recognises the transformative imperatives and affirms its dedication to transformative actions that align with the virtues and objectives of the Briefing and Outsourcing Policy. The commitment to promoting diversity, addressing historical imbalances, and enriching the legal profession is evident in the implemented policies and the tangible progress demonstrated in the statistical data.

The strides made thus far underscore the unwavering dedication to substantive changes in briefing and outsourcing practices, fostering an inclusive legal landscape.’

The statement said that the Office of Solicitor-General remains steadfast in its commitment to a legal profession that mirrors the diversity of our nation. ‘We recognise the imperatives set forth by the social discourses triggered by Justice Motha’s inquiry and affirm our dedication to taking concrete actions that align with the benefits and objectives of the Briefing and Outsourcing of State Legal Work Policy. This commitment is central to our vision of a legal system that upholds the principles of diversity, inclusion, and equity,’ the statement read.

The issue of briefing patterns in the legal profession has been over the years a topical and controversial debate. Black legal practitioners have raised concerns that they were not being briefed by state entities. There have been many engagements around the issue, which led organisations, such as the BLA to march in 2017 to the Union Building, demanding that former President Jacob Zuma give direct orders to government departments, government entities and municipalities to issue briefs and distribute legal work to black lawyers and female lawyers (see K Ramotsho ‘BLA marches to voice dissatisfaction on legal work distributed by government’ 2017 (Sept) DR 9).

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

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