While North Gauteng High Court Judge Mandlenkosi Motha may have stirred a hornet’s nest in his order to get clarity on the composition of legal counsel pertaining to the lack of racial diversity, the judge has brought the issue of transformation in the judiciary slap bang into the spotlight.
The matter of transformation within the judiciary is not limited to the legal counsel but goes beyond this to the appointment of judges even in the highest courts.
In 2021, then-Western Cape Judge President John Hlophe accused the judiciary of being soaked in politics, battling to deal with transformation, and allowing apartheid-era judges to dominate the narrative.
Judge Hlophe described the country’s law as a “white man’s law” imposed by colonialists and an infusion of English heritage and Roman-Dutch law, which rendered it incapable of delivering justice for the common man.
The former judge president, recently impeached, has said that his problems began when he ran out of favour after he revealed that there were deep-rooted patterns of racism in the judiciary.
Most recently, black-owned conglomerate Sekunjalo Group cried foul as the group was made to face an all-white panel of judges at the Supreme Court of Appeal (SCA) in an equality matter.
In what is a landmark case to prove discrimination in how South Africa’s banks treat customers differently according to their racial classification, this sensitive case was judged by a panel of five white judges at the SCA.
It is highly unusual, and especially so given that every other case at the SCA on the day this matter was heard had been presided over by a bench fully representative of South Africa.
Why not this matter? Did the Supreme Court of Appeal violate section 174(2) of the Constitution?
Section 174(2) underscores the principle of judicial independence, which is fundamental to a democratic society. This independence ensures that judges are free from undue influence or interference, allowing them to adjudicate cases impartially and fairly.
The provision also emphasises the importance of ensuring that the judiciary is broadly representative of the diverse demographics of South Africa. This inclusivity aims to promote fairness, equality, and public trust in the legal system by reflecting the country’s diversity in its judiciary.
Furthermore, section 174(2) highlights the significance of considering gender and race in judicial appointments. This acknowledges historical imbalances and aims to address them by actively promoting diversity and inclusivity within the judiciary. These constitutional provisions deal with the criteria for the appointment of judicial officers. Of late, these requirements, or more specifically the application of these requirements, has come under scrutiny.
The Sekunjalo matter was a matter of unfair or discriminatory treatment of a black-owned company compared with white-owned companies. The panel of white judges ruled against the black-owned Sekunjalo.
Post-judgment, Sekunjalo said: “The judgment contains some obtuse observations, one, for example, claiming that Sekunjalo had not conclusively proven that EOH, Tongaat Hulett and Steinhoff, whom it cited of being treated differently, were in fact white-owned. Sekunjalo contends that the judges did not apply their minds to this point at all.” Who has ever heard of an equality matter being heard by a bench of white judges?
* Sizwe Dlamini.
* The views expressed do not necessarily reflect the views of IOL or Independent Media.
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