Advocate under fire over response in ‘all-white’ legal team quarrel

Published Feb 28, 2024


Professionals Unity of South Africa (Profsa) has submitted a complaint letter to the Legal Practice Council (LPC) against advocate Johan Brand SC.

The letter alleges that he did not respond to a directive from Pretoria High Court Judge Mandlenkosi Motha, who asked for heads of argument from the four white advocates regarding the lack of black counsel in legal teams arguing a Black Economic Empowerment matter.

Advocate Brand did not file heads of argument but wrote a memorandum instead.

Advocate Mashudu Tshivhase, president of Profsa, said they had sent a letter of complaint to the LPC to investigate Brand’s “misconduct”.

“When you look at the memorandum, the senior counsel is clearly stating that he is not going to comply with the court order and he decided to go against the directive issued by the judge,” Tshivhase said.

He said Brand’s behaviour was “seriously disrespectful” coming from a senior counsel as he did not take Chapter 8, 165.5 of the Constitution into consideration which states that ’an order or decision issued by a court binds all persons and organs of state to which it applies’.

“Whether you agree with it or not there is recourse to any party who is not satisfied with an order, ruling or directive.”

Approached by Independent Media on Tuesday, Brand said the matter was still sub judice. “It would be improper of me to discuss the merits of the case.

“This complaint was brought to my notice this morning. I must tell you I am not losing two minutes of sleep about it because their complaint is that, instead of filing heads of argument I wrote a memorandum.”

Brand added: “I have written a memorandum and just as well could have termed it heads of argument but I chose not to use that term. They must make of it what they want.”

He said he had acted out of “conscience”.

Both Freedom Under Law (FUL) and Judges Matter said Judge Motha should not have brought up the lack of racial diversity while dealing with the matter, but the Pan African Bar Association of SA (Pabasa) said it saw the judge’s directive as an extension of the 2016 directive by the Gauteng High Court Judge President for data to be gathered on briefing patterns.

Pabasa said the concern raised by the judge was indicative of the lack of transformation in the legal profession.

“It should not be frowned upon, instead it should have been welcomed as an opportunity to debate this subject, it is not judicial overreach.”

The National Association of Democratic Lawyers (Nadel) has since thrown its weight behind Judge Motha’s decision to question the racial make up of the counsels, saying a judge was entitled, if not obliged, to question the lack of black counsel in courts.

Nadel president Mvuzo Notyesi said: “South Africa has always aimed to address inequities resulting from the systemic exclusion of black people from meaningful participation in the economy to access South Africa’s productive resources, economic development, employment creation and poverty eradication. Transformation remains a serious concern in South Africa, and within the legal fraternity and past and present discriminatory practices experienced by black legal practitioners when it comes to distribution of work and briefing has been top of Nadel’s agenda.

“In keeping with the aims and objectives of the Draft Legal Sector Code, it is an indictment on the B-BBEE Commission that in 2024, it briefs an all-white legal team. Consequently, it is important for the promotion and advancement of transformation to call the B-BBEE Commission to account.”

The Mercury

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