Legal expert and former professor of law at Unisa, Advocate Isaac Shai, has raised concern over the composition of the judiciary, where a panel of five white judges presided over a racial discrimination case.
Shai’s comments were triggered by roaring public concerns over the Supreme Court of Appeal (SCA) ruling setting aside an interim interdict preventing Nedbank from closing the Sekunjalo Investments group’s bank accounts, and reopening those that had been already been closed.
The case arose from a complaint by Sekunjalo of unfair racial discrimination against Nedbank. The black-owned group 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.
In October last year, this interim interdict was appealed, but Judge Mokgoatji Dolamo still ruled in favour of Sekunjalo.
Nedbank approached the SCA which then appointed a panel of five white judges, namely Judges Trevor Gorven, Pieter Meyer, Sharise Weiner, Ashley Binns-Ward, and Raylene Keightley who ruled in favour of Nedbank
Shai, an Independent legal expert and current practising attorney, said: “White judges have no moral authority to make judgments and pronounce on issues of racial discrimination.”
He said that allowing this would mean that whites were now defining to society what racism was.
“People who were part of the problem cannot liberate us. It is an abomination to have an all-white panel of judges presiding over a racial discrimination matter and pronouncing on a matter about systemic oppression subjected to blacks.
“The society is under siege, and the siege is called legal positivism. This theory will not liberate the African people. We need to ask if the law is separate from politics because the law is objective.
“As members of society, we have particular beliefs, and the same applies to judges. Systemic racism should be understood very well, quite often people believe that racism is just about referring to a black person as a monkey. They often don’t look at systemic racism.”
He felt that those who believed that the judiciary was being attacked whenever their court decisions were brought into question, were simply saying that judges should be left alone forgetting that they too were humans and they too cannot easily be separated from politics.
“Critical race and legal theorists argue that law is politics. They pronounce that law objectivity is a fallacy and that law is not independent of politics. Judges are human beings who can easily be influenced and manipulated because politics influences our behaviour. Law is politics by other means.”
Shai criticised the Constitution and said that it stated that there was no analysis of the role of law perpetuating apartheid.
“We went to a statute and said this and that statute is racist and reformed. We went on a very cosmetic project that was not sufficiently analytical regarding how we needed to move.
“We continued with the apartheid laws. There’s more continuity of apartheid laws in our courts. The legal culture has not changed and in between all these things, is the notion that is called legal positivism which tells how we should interpret the law. We need to ask ourselves why we have accepted this. We have done so because that’s how we are taught in law”.
Approached for comment, the spokesperson of the Judicial Services Commission, Lusanda Ntuli, said on Wednesday last week that she would not be able to comment.
Asked when she would be able to respond, she said: “I do not have a timeline but expect it next week.”
In yet another concern over the conspicuous lack of racial diversity in the legal profession, North Gauteng High Court judge Mandlenkosi Motha demanded answers from an all-white legal team in a black economic empowerment case as to 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 v 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 head of arguments to him regarding the matter.
Advocate CFJ Brand SC, who appeared on behalf of the respondent in the matter, issued a memorandum to the judge’s secretary to express his “shock” at the request.
Brand stated that during his decades in the legal profession, he had never encountered any political remarks by any presiding officer during the trial. Thus, he was deeply “shocked” and “saddened” by Judge Motha’s emails.
However, the Bar Council of the Pretoria Society of Advocates, in a statement issued Tuesday, clarified its position, saying it had never referred to Judge Motha’s directive being “inappropriate and indecent”, as quoted in the media.
Neither did it express any opinion on the matter. It said the comments made to the media by one of its members, Advocate Francois Botes SC, were not authorised by the Bar Council of the PSA.
It distanced itself from Botes’ comments and said the matter was under “consideration” by the Bar.
thabo.makwakwa@inl.co.za