Prof Pierre de Vos is among legal experts speaking out against racial discrimination by judges. Picture: Jeffrey Abrahams
IN WHAT appears to be racial discrimination and judicial onslaught on the Sekunjalo Group, court records show that of all the Supreme Court of Appeal (SCA) matters ruled on during December 2023, the Sekunjalo matter was the only one adjudicated by an all-white Bench.
While various scholars and advocates of the law continue to raise their concerns and in many ways demand certainty to the law with regard to a principled approach to the quest for racial diversity in the judiciary, the SCA has been dealt a blow in its allocation of judges on matters about racial discrimination.
In a glaring case of racial discrimination against Sekunjalo, a black-owned company, the SCA appointed an all-white panel of five white judges, namely judges Trevor Gorven, Pieter Meyer, Sharise Weiner, Ashley Binns-Ward, and Raylene Keightley, to preside over the racial discrimination case and ruled in favour of Nedbank which the Sekunjalo group had accused of racial discrimination.
Sekunjalo brought the case of unfair racial discrimination against Nedbank after the bank issued a notice of intention to close the group’s bank accounts.
The black-owned conglomerate argued that Nedbank’s conduct constituted unfair discrimination based on race, pointing to “white-owned” companies Steinhoff Group, EOH, and Tongaat Hulett, which had all been found to have been involved in fraudulent conduct but whose accounts Nedbank had opted not to close.
Sekunjalo initially won the case in the equality court when Judge Mokgoatji Dolamo, twice, ruled in their favour.
However, Nedbank approached the SCA, which then appointed a panel of five white judges who ruled in favour of Nedbank.
The SCA decision to appoint an all-white panel of judges sent shock waves not only to the public but also the legal fraternity, where many felt that the court had failed in its mandate to correct past inequalities so that disputes could be resolved cleanly, objectively, and fairly or at least with the appearance of fairness to all.
The demographics of SCA Judges during November 2023 have revealed that in matters ruled on during December 2023, it is only the Sekunjalo matter that was adjudicated by an all-white bench.
In other matters during the same period where banks were litigants, the panel of judges reflected racial diversity, whereas in some cases, the judges allocated were predominantly black.
This has left many wondering why the SCA was not concerned about the demographics in the matter between Sekunjalo and Nedbank.
Two weeks after the publication sought answers and despite promises to comment, Judicial Service Commission spokesperson Lusanda Ntuli has not responded.
Justice Thurgood Marshall, in an article titled A Principled Approach to The Quest for Racial Diversity in The Judiciary, said: “African people don’t have a chance at justice across the boards when all the judges are white.”
Similarly, American Judge Jerome Frank, also quoted in the same article, said: “Much harm is done by the myth that merely by putting on a black robe and taking the oath of office as a judge, a man ceases to be human and strips himself of all predilections (and) becomes a passionless thinking machine.”
Last week, legal expert Pierre de Vos said: “All-white, all male legal teams are wrong on so many levels.” De Vos was responding to the conspicuous lack of racial diversity in the legal profession where North Gauteng High Court Judge Mandlenkosi Motha demanded answers from an all-white legal team in a black economic empowerment case about why there were no black lawyers in the team.
Motha instructed both legal teams to address him regarding the lack of diversity in their teams in the case that he had presided over.
It was a matter brought by Periform Work Scaffolding Engineering vs the Commissioner of the Broad-Based Black Economic Empowerment Commission.
Judge Motha cited potential violations of Section 9.2 of the Constitution, which addresses the need to correct past inequalities as his concern. He ordered the legal teams to submit heads of argument to him regarding the matter.
De Vos said Section 9(2) of the Constitution made it clear that it was permissible to implement redress measures “designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination to promote the achievement of equality”.
He said: “Section 174(2) of the Constitution rightly states that the ‘need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed’. The effective implementation of this section requires members of the legal profession to play their part in transforming the legal profession.
“It is true that the Judicial Service Commission has not always covered itself in glory with its appointment of judges, not least because it has sometimes appointed timid, mediocre, and rather conservative judges – both black and white, both male and female – while declining to appoint or promote some competent, strong-willed judges. But their task has been made more difficult by members of the legal profession who deny that the profession has a race and gender problem and bristle and get defensive when they are called on to account for being complicit.
“What they do not understand or - perhaps - care about (is this what happens when one keeps to the white Afrikaner laager?) is how nihilistic and counter-productive their self-serving denialism is.”
thabo.makwakwa@inl.co.za