Judge Mandlenkosi Motha sent an email to all four advocates in a case which deals with black economic empowerment.(Photo: Judges Matter) 
Over the weekend, the conservative Afrikaans Sunday newspaper Rapport carried an indignant front-page report about the request made by a judge of the Western Cape High Court to the all-white legal teams who appeared before him in a case dealing with Broad-Based Black Economic Empowerment to explain the “failure to have even a single black lawyer in this matter”.
In a subsequent email, the judge asked the lawyers to submit written arguments to him “which address the court’s concern, namely the possible violation of section 9.2 of the Constitution, due to the failure to have a black advocate in this case”.
Rapport’s indignation was not entirely misplaced. 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.
A misconception
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.
In any event, section 9(2) of the Constitution makes clear that it is 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.”
This includes measures aimed at addressing skewed briefing patterns. As the Constitutional Court has held in Minister of Finance v Van Heerden and other judgments, such measures may often be required to work towards the achievement of equality. One could quibble about how this should be done to ensure compliance with section 9(2), but it is daft to suggest that the legal profession is exempt from the obligation imposed by section 9(2).
Even if this had not been the case, there are other compelling legal, ethical and pragmatic reasons why it would be wrong for members of the legal profession to take the view that there is nothing wrong with fielding an all-male and all-white legal team, or that it has nothing to do with them if a briefing attorney or client selects an all-male and all-white team of lawyers to represent them.
The most obvious point is that it is inherently unfair, as it unjustly disadvantages lawyers for no other reason than the fact that they happen not to be white and male. Of course, some will argue that this is not so, presumably based on the racist and sexist assumption that when an all-white and all-male team is briefed, it is always done purely on “merit”.
But what constitutes “merit” is contested. Obviously, some lawyers are much better at their job than others and obviously, this matters quite a bit (as is well illustrated by the legal travails of the former Public Protector), but when “merit” is defined by and with reference to white men, it will inevitably set a standard which would judge those who are not white men more harshly and look kindlier on white male mediocrity.
(A similar problem arises when an ANC deployment committee defines merit purely in terms of loyalty to a specific politician or factions within the party.)
This is one of the reasons why the Equality Act — binding on all persons, which for purposes of the Act include attorneys and their clients, law firms, and advocates — prohibits unfair discrimination. This means that a client or an attorney who consistently briefs only white men will be presumed to be discriminating unfairly (and thus unlawfully) on the grounds of race and/or sex.
It is difficult to understand how any white male advocate who benefits from such unfair discrimination could then turn around and claim that this has nothing to do with them, and then act as if a great wrong was done to them when they are called out.
Pragmatism
There is also a pragmatic, even self-serving, reason why lawyers and their clients should be worried about appointing or serving in all-white and all-male legal teams. I am thinking here about the likelihood that such a legal team will not be the best possible team to handle the case, or at least not the team that would best serve the interests of the client.
The problem is not only that an attorney or a client who favours white and male lawyers has a smaller and less competent pool of people to pick from; it is also that a racially and gender-diverse team of lawyers would be less likely to have blind spots about life and the law or deficits in skills and knowledge, and thus less likely to be brought low by groupthink.
In short, the (at the very least) incestuous practice of appointing all-male and all-white legal teams breeds (or perpetuates) a special kind of elite mediocrity. The only people who seem to be oblivious to this problem are those who benefit from it.
The failure of attorneys and their clients, as well as advocates, to take active steps to address briefing patterns skewed by race and gender is also bad for the legal system in general and the judiciary more specifically. It deprives many talented black and women lawyers of the opportunities and experience that would better prepare them for a judicial role, thus either making it more difficult for them to be appointed in the first place, or setting them up for possible failure if they were lucky enough to be appointed.
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. As the response by Brand SC quoted above illustrates, not all members of the legal profession understand or accept this fact.
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. DM