Call a ‘spade a spade’, insists judge

In stressing yet again the need for black lawyers to be briefed in matters before South African courts, especially in cases involving broad-based black economic empowerment, Judge Mandlenkosi Motha asked: “Where are future judges of a high calibre to come from, if they are not briefed?”

“For love of country, let’s call a spade a spade,” he said when delivering judgment in a matter between Periform Work Scaffolding Engineering (Pty) Ltd v the Commissioner of Broad-Based Black Economic Empowerment Commission.

Judge Motha, sitting in the Gauteng High Court, Pretoria, in January expressed concern at the fact that all the parties concerned were represented by all-white counsel.

He cited potential violations of Section 9.2 of the Constitution, which addressed the need to correct past inequalities, as his concern. He ordered the legal teams to submit heads of arguments to him regarding the matter.

Advocate Johan Brand SC, who appeared on behalf of the respondent in the matter, instead issued a memorandum to the judge’s secretary to express his “shock” at the request.

Undeterred, Judge Motha, while delivering judgment on Friday on the merits of the case, which he had reserved in January, devoted a large part of his judgment to discussing the lack of black counsel in the matter.

In his opening remarks, the judge said: “For fear of reprisal, most people prefer to call a spade a gardening tool.

Hence, and sadly, 30 years into democracy courts are still seized with matters of Ubandlululo, kgethollo, diskriminasie and fronting.”

Judge Motha said the irony was not lost on the court when, in a matter dealing with the Broad-Based Black Economic Empowerment Act and fronting, seven litigants, the legal firm, the Office of the State Attorney and four counsel, failed to perceive the importance of the presence of, at the very least, a single African counsel.

He added that in view of the persistent, obstinate and deep racial divisions still prevalent in South Africa and the right to choose one’s own legal representatives, one would excuse the applicant.

“But it is disconcerting and inexcusable for organs of state, largely populated by black professionals who were empowered to occupy positions of power in the Office of State Attorney and commission (as vanguards of black economic empowerment), to display such a staggering lack of appreciation of the imperative to have on brief African counsel.” Judge Motha said this was especially so, in a matter involving the Broad-Based Black Economic Empowerment Act as amended, which called for economic transformation.

In addressing the “betrayal” in this case to achieve this, the judge said: “This court finds itself at a crossroads, like most South African courts sometimes do, of either shutting its eyes to this patent and palpable iniquity (or) to do something at its great expense.

“I chose the latter,” the judge said, in referring to the fact that he had asked counsel to address him on the matter.

“What ensued was tantamount to a hornet’s nest.”

He said, especially in B-BBEE matters, involving organs of the state, it was surely in the interests of justice for presiding officers to insist on the involvement of, at the bare minimum, one African counsel.

Judge Motha said the input of African counsel in matters such as this was vital, otherwise a judgment would be monochromatic. In these matters, he added, the presence of an African counsel was not a favour, but an imperative for justice to be done.

“An all-white team making submissions on fronting by a white-owned company is not in the interest of justice because it is bound to miss nuances involved in cases of black people’s struggle for empowerment and against racism, resulting in the miscarriage of justice.” He said the same was true of an all-male team dealing with issues of gender equality.

Judge Motha said he should not be misunderstood – he was not advocating for an all black legal team but, to achieve justice in B-BBEE matters, he was asking that there should be African representatives.

He said when he asked counsel in this matter to discuss the fact that an all-white team was briefed, his request was treated with disdain.

This, he said, should be nipped in the bud before it took root.

Judge Motha also observed that he had noticed the whirlwind generated by his views on the matter. But he insisted that the courts should not abdicate their responsibilities as they had done before the dawn of democracy, under the pretext that this was a political or policy issue.

“Nothing could be further from the truth. It is about the future of our constitutional democracy.”

He questioned how African lawyers would garner the requisite knowledge and skills if courts baulked at their constitutional responsibilities, while the system largely advantaged one race group.

Cape Times