The recent remarks by Judge Mandlenkosi Motha in a matter between a private company and the B-BBEE Commission have ignited a significant debate within South Africa’s legal community and beyond. In a case concerning black economic empowerment, Judge Motha reportedly expressed concerns about the racial composition of legal representation in the B-BBEE Commission.
While some have criticised his comments as undermining the principles of equality and non-racialism, others have defended his right to raise questions about racial representation in legal proceedings. The incident has highlighted that South Africa still has a way to go to achieve the lofty ideals of non-racialism that our Constitution espouses.
Non-racialism is a fundamental constitutional value in South Africa, explicitly outlined in the country’s founding document. Unlike the term “transformation,” which does not appear anywhere in the entire text of the Constitution, non-racialism is enshrined as a core principle in Section 1. Additionally, Section 9 guarantees equality before the law, irrespective of race, gender, or other characteristics.
Despite this clear constitutional imperative, there is an unfortunate trend of interpreting the Constitution through the lens of “transformative constitutionalism,” leading to debates about racialisation and the creation of racial imperatives that do not exist in the Constitution.
Institutionalised racism
Given South Africa’s history of institutionalised racism under apartheid, the principle of non-racialism holds immense significance. It represents a departure from the divisive policies of the past and embodies the nation’s aspirations for unity and equality. The commitment to non-racialism is essential for building a just and inclusive society, where individuals are judged based on their merits rather than their race or ethnicity.
It is disheartening to witness a member of the judiciary seemingly disregarding non-racialism as a foundational value. Judge Motha’s apparent contention that the four white advocates briefed by the state attorney were “too white” to represent the B-BBEE Commission raises serious concerns about his perspective on legal representation. Such a viewpoint not only undermines the principles of non-discrimination and non-racialism but also perpetuates harmful racial stereotypes. It suggests that legal professionals should be judged by the colour of their skin rather than their competence, experience, or dedication to the case at hand.
Equality before the law
By implying that the racial composition of legal teams determines their suitability for specific cases, Judge Motha’s stance undermines the very essence of non-racialism and equality before the law. In a society striving to move beyond its racially divided past, such remarks serve only to entrench divisions and hinder progress towards a truly inclusive and just legal system.
Moreover, South Africa continues to grapple with racialised legislation, with over 115 pieces of racially categorised laws still in existence. Of the 313 pieces of racialised legislation passed since 1910, 37% have been enacted post-1994.
Furthermore, statistics from the state attorney regarding the racial composition of briefed advocates highlights that Judge Motha’s concern is wholly misplaced. In January 2024, 39 advocates briefed by the state attorney were black, while only four were white, three were Indian, and one was coloured. It seems that for Judge Motha the four white counsel briefed by the state attorney were simply too many, and the thought of four white counsel acting for the B-BBEE Commission was outrageous.
South Africans of all colours, creeds and backgrounds must firmly oppose any attempts to racialise our society or legal system. Thirty years into our constitutional dispensation, it is imperative that we reaffirm our commitment to non-racialism and strive towards a truly inclusive and equal society. Any deviation from these principles undermines the progress made since the dawn of democracy and threatens to erode the fabric of our constitutional democracy.
Underlying issues
Attempting to address the racialised problems of South Africa through further racialisation is akin to trying to extinguish a fire with gasoline. It not only fails to address the underlying issues but also risks exacerbating the divisions and injustices that plague our society.
As we navigate the complexities of our post-apartheid reality, it is paramount that we recognise the inherent dangers of racial essentialism and instead reaffirm our dedication to the principles of non-racialism. Only through embracing our shared humanity and promoting equality for all can we hope to build a future where all South Africans can thrive, regardless of the colour of their skin.
[Image: Edward Lich from Pixabay]
The views of the writer are not necessarily the views of the Daily Friend or the IRR
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