[EXTREMELY URGENT] Request for AFT JHB Exco Intervention - Brand SC's Response to Judge Motha's Directives

Kameel Premhid Tue, 27 Feb 2024 at 11:32

To: Tembeka Ngcukaitobi, SC, Ngcukaitobi T N SC, Tembeka Ngcukaitobi, SC, Tembeka Ngcukaitobi, SC, Morris B A , Byron Anthony Morris , Byron Anthony Morris, Karabo Van Heerden, Van Heerden K, Tshidiso Ramogale, Tshidiso Ramogale, Tshidiso Ramogale, , Sangoni F Boodhoo V

PLEASE NOTE: I have attempted to include all AFT JHB Exco members in this communication but it has been impossible to find a single list with all relevant names. I apologise to anyone inadvetently excluded from this correspondence and give permission for it to be shared with them.

Dear AFT JHB Exco,

1. As a Member in good standing, I am requesting AFT JHB Exco to consider the below and take the steps outlined in para ? hereunder.

2. I am sure that by now, you are all aware of Motha J's directives to both teams of white counsel appearing in a matter before him to explain the absence of black counsel. A news report to this effect, outlining the background to the matter, appears here:

https://www.businesslive.co.za/bd/national/2024-02-26-judges-order-over-all-white-legal-team-inappropriate-senior- advocate-says/#google_vignette

3. I am not asking AFT JHB Exco to opine on the appropriateness of Motha J's Directive. For the sake of completeness, I think there was nothing offensive nor inappropriate about Motha J's Directive.

3.1. Judges regulate their Court proceedings all the time, including the conduct of counsel and laypeople to the extent that it is an issue before them. Motha J, therefore, did nothing out of the ordinary.

3.2. International practice is developing to support rather than undermine transformation. For example,towards the end of last year, the Courts of England & Wales at the direction of the Lady Chief Justice (and all other Heads of Courts), have adopted a new practice whereby (mostly white male Silks) are now expected to advise the Court whether juniors and/or women counsel were considered for oral advocacy roles in matters and not simply as second-chairs. See

here: https://www.judiciary.uk/encouraging-greater-participation-of-junior-counsel-in-courts-and-tribunals-hearings/

4. The appropriateness of Motha J's intervention, and the briefing patterns and practices applicable to counsel is a related but different subject to what I focus on in this email. I would be glad if a more thoughtful debate about those topics is conducted at some point, but my fear is that the specific conduct complained of further below is at risk of being lost in the wash in a general debate about transformation in the profession rather than us holding particular individuals accountable for their behaviour, regardless of that wider discussion

5. Instead, I am bringing to your attention the memorandum (mentioned in the linked article above) of Brand, SC. I will not dignify that document with a summation here but encourage you to read it for yourself.

6. Rather, I wish to point out the following:

6.1. First, it admits contempt of Court. Brand, SC, openly defies Motha J's directive that heads of argument be filed. Whatever the reason for that defiance (addressed below), the point remains that this is a deliberate and wilful refusal by an advocate of the High Court to comply with a lawful instruction of a Judge in current/live proceedings. Without more, and regardless of the subject-matter at issue, this is contemptuous behaviour and, if permitted without sanction, threatens to undermine the role of the Judiciary and the administration of justice in the Republic.

Indeed, had Brand, SC, or any other counsel or party to the proceedings been aggrieved by Motha J's conduct, they would have recourse to, for example: (a) make the conduct of the hearing an issue in the appeal (see annexure from Legalbrief - attached), (b) seek the recusal of Motha J, (c) lay a complaint against Motha J with the Judicial Services Commission, and/or (d) seek the professional advice of the Bar Council regarding what to do.

All of these alternative remedies are often engaged by counsel when issues arise in the conduct of hearings. Brand SC's resort to open defiance (because of what he perceives to be legitimate grounds for said defiance) is an attack on the rule of law as upheld and enforced by the judiciary. It cannot be tolerated.

6.2. Second, it is further contemptuous by reducing the Judge's concern to being one of "political point scoring".

Related to what is said above, if the binding nature of a Judge's Directives, no matter how egregious, were subject to the assessment of counsel or third persons as to whether they ought to be complied with, then the essential role the Judiciary plays in the Republic would be at an end. We have already seen a concerning attack upon the Judiciary's independence, particularly when Judges make politically uncomfortable but legally sustainable decisions.

If Brand, SC's attack on the judiciary - which is even more egregious considering that he is not a layperson but, in fact, a Senior Counsel and Officer of the Court - is not remedied, then we may as well give up any pretense that this country is founded on the rule of law. Brand SC's conduct is no better than counsel having called a press conference on the steps of the Court to engage in a political debate about the issues in the proceedings. This kind of behaviour is already prohibited by the GCB Rules and the LPC Code of Conduct. Brand, SC's behaviour is unbecoming and unprofessional and he should be disciplined accordingly.

6.3. Third, it is an open attack on the Constitution. I have no doubt that someone of Brand, SC's seniority and eminence can advance various counter-arguments as to why a transformation imperative such as the one implicit in Motha J's Directive undermines the choice of clients to determine who their counsel is. However, you will note that rather than engage the substance of Motha J's point, Brand, SC has resorted to a nakedly political assault on the Judge's conduct. This is itself disgraceful, but undermined by the fact that:

6.3.1. Sections 8(2) read with 9(1), (2), (4), and (5) make it abundantly clear that non-discrimination and transformation applies vertically and horizontally. Whatever Brand, SC, may believe, the reality is that transformation (including of the legal profession, with its well-known history of institutionalised racism) is obliged to change to better reflect the reality of South Africa. It is no accident that the legal profession (which is the pipeline and primary recruiting ground to the Judiciary) should culminate in a Judiciary that, according to section 174(2) of the Constitution, "reflect[s] broadly the racial and gender composition of South Africa".

The Judiciary will never look like South Africa if work and economic opportunities are deliberately kept only in white hands and when questions are asked about why that is the case, is met with this kind of malicious political opportunism. Brand, SC's views, if given any credence or legitimacy, will invite an open season on the legal and ethical transformation-oriented objectives for the legal profession and Judiciary, upon which constitutional supremacy depends.

6.3.2. The fact that Brand, SC, saw it fit to prefer a copy of his memorandum to rightwing organisations Afriforum is instructive. Not only has Brand, SC, sought to undermine and denigrate Motha J by his contemptuous response (evident in his document), but he has actively sought to weaponise this issue by involving organisations (Afriforum) with rightwing agendas that actively seek to undermine democracy and our transformation of the racist Apartheid and colonial state inherited in 1994.

That alone should constitute professional misconduct. Brand, SC's cute statement that he is doing so on the basis that justice must be seen to be done is a perversity of the highest order: instead of the lack of transformation among the legal teams in front of Motha J being the issue, it is now Motha J's own conduct that is in the eye of the storm.

This is, I suspect, a deliberate deflection tactic and is aimed to undermine the role of the Courts. Our Courts have openly rebuked President Zuma and his acolytes when they have engaged in similar tactics to undermine our justice system, and I see no reason why Brand, SC's behaviour, functioning as a handmaiden to the enemies of progress, should receive any favourable response.

6.4. Fourth, we must now have an open a debate about whether there is any real purpose in the Johannesburg Society of Advocates being part of the General Council of the Bar. Recalling that there is nothing unusual in Motha J's request, beyond international practice already cited above, the Johannesburg Society of Advocates imposes this kind of obligation on our Members all the time. For example, the JSA has a well-known 3 counsel rule, and also imposes further obligations for Membership such as the filing of pro bono certificates and Rule 7 compliance.

These are not accidental: whilst anyone can now become an advocate if they comply with the Legal Practice Act, the Bar retains the right to add further requirements to Membership. Brand, SC's conduct not only places in issue what must be the acceptable standard of conduct within the Pretoria Society of Advocates (which is well known for its racism - see here), but whether the Johannesburg Society of Advocates maintaining membership of the General Council of the Bar is now worth it.

This is not the first time that affiliated Bars (notably Cape Town - see here, for example - and Pretoria) have openly conducted themselves in a racist and anti-transformation pattern. The General Council of the Bar is either too weak to discipline them or too feeble to ensure that they all commit to transformation.

Regardless of its explanation for its failings, the question now arises whether we, as AFT JHB, and by extension, the JSA, can continue to belong to an organisation (the GCB) that either lacks the powers or potency to bring other racist Bars to order. It is a real professional embarrassment to me to belong to an organisation who is seen to condone this kind of behavior through a deplorable mixture of ineptitude and inaction.

If no meaningful action is taken now, then we must be brave enough to tell the truth and walk away from such an organisation that says the right things and does very little to follow through. The reality is that whilst the JSA has its own problems, it is the most willing constituent Bar to tackle them. But whatever progress we make domestically will amount to nought if the umbrella body which we belong to has neither the principles nor the pragmatism to stamp out this kind of conduct within its ranks.

6.5. Fifth, Brand, SC, must be made an example. We have increasingly seen the conduct of black counsel being made an issue as a matter of public discourse. Too often, the overlap between the identity of the counsel and the identity / cause of their client is enough to let mostly white commentators denigrate black counsel with ease. The best example I can think of is the recent fracas over Dali Mpofu, SC's conduct in various fora.

Regardless of whether one agrees with Dali, the point remains that Dali is often the subject of egregious attacks (founded on double standards) that dovetail with the client he represents. I have personally experienced this myself when I acted for the Guptas and now when I act for the EFF. Other counsel of colour have experienced similar - to my mind, A. Rafik Bhana, SC, Muzi Sikhakhane, SC, and others.

Yet the conduct of our mostly white colleagues - even when they act for State Capturers or silicosis deniers, for example -

is treated on a different footing and as being in the finest traditions of the Cab Rank Rule. The weight of this hypocrisy has too often fallen on the shoulders of black counsel and black baby junior counsel in particular. I am certain that if a black Senior/junior counsel behaved in a similar way to Brand, SC, every single white advocate with a public persona and other organisations who publicly portray themselves to care about rule of law issues (HSF, CASAC, FUL, OUTA, to name a few) would have been quick off the mark to condemn such behaviour.

That they remain eerily silent when it is someone like Brand, SC, who engages in this kind of attack is telling. It is therefore imperative that AFT JHB intervene to highlight this double standard and, moreover, by enforcing it against the likes of Brand, SC, and his ilk, that more be done to protect (often) black junior counsel who are in more vulnerable a position.

7. In light of the aforesaid, I hereby request that AFT Johannesburg:

7.1. In its own name and right, publicly condemn Brand, SC, for his conduct.

7.2. Use its good offices to seek suitable public condemnation of Brand, SC's conduct by:

7.2.1. AFT National;

7.2.2. The Johannesburg Society of Advocates; and

7.2.3. The General Council of the Bar.

7.3. Relatedly, and to the extent necessary and appropriate, undertake the following steps, whether alone and/or in coordination with the organisations listed in para 7.2. above, take the following steps:

7.3.1. Prefer unprofessional conduct charges against Brand, SC, whether such charges are made before the Pretoria Society of Advocates and/or the General Council of the Bar and/or the Legal Practice Council (Gauteng or National);

7.3.2. Institute proceedings against Brand, SC, to have him removed from the roll of advocates; and/or

7.3.4. Write to the Minister of Justice and/or the President of the Republic of South Africa, to strip Brand, SC, of his rank of Senior Counsel.

7.4. To the extent necessary, also take appropriate and suitable conduct against Brand, SC's junior counsel who signed onto the memorandum and the firm of attorneys.

7.4.1. I note that Subel, SC, and Klopper and their attorneys did not sign onto this memorandum but were preferred with a copy. I do not know Klopper but know Subel, SC, and am fond of him. My personal fondness for him aside, and given Brand, SC's conduct, it is necessary that they (the legal team on the other side to Brand, SC) be asked to take a stand, and deal with the consequences pursuant to their choice.

7.4.2. They should be asked to publicly distance themselves from such behaviour, failing which, they, too, should be subject to some or all of the steps I have identified above.

7.4.3. I notice that the Pretoria Society of Advocates have already distanced themselves from Brand, SC's comments, but I have seen nothing from Subel, SC, Klopper, their attorneys, or the JSA.

7.4.4. I understand the JSA Chair is going to imminently have a meeting with Judge President Mlambo and both Deputy Judge Presidents about this issue, but that does not account for the silence about what Brand, SC, has done even making accommodations for the fact that this matter is "sub judice" .

8. I hope that this note is treated with appropriate confidentiality not least because of the potential secondary victimisation that I may be subject to by Brand, SC, and his supporters. In the event that this note does leak, I hope that I can count on AFT's support for taking the decision to trigger this process in this way.

9. AFT has done well in the last few months to reinvigorate the structure and make it relevant to the lived experiences of our Members. This is clearly an issue on which AFT JHB Exco must intervene and ensure it is seen through to its completion. Transformation will mean nothing if we do not act against Brand, SC, and his supporters and let them know that their anti- transformational agenda will not be tolerated.

10. I am currently on sick leave but should be able to speak with anyone if needed from tomorrow onward. Thanks,

KP

Kameel Premhid
GROUP ONE ADVOCATES