‘Transformania’ – Judge Motha engaged in judicial overreach, says FMF Rule of Law Project
12 March 2024
“Judicial officers must always observe the constitutional imperative of non-racialism in both their judgments and their conduct in the courtroom.” – Martin van Staden, FMF Head of Policy
The Free Market Foundation (FMF) and its Rule of Law Project condemn the inappropriate use of the judicial power by Gauteng judge Mandlenkosi Motha, who in February sought to have the lawyers in a matter before him account for the racial composition of their teams.
South Africa has a history of social engineering on racial grounds, which the Constitution doubly prohibits through its commitment to non-racialism in section 1 and its prohibition on racial discrimination in section 9.
Even the most generous interpretations of section 9 of the Constitution cannot yield a requirement that legal teams appearing before our courts structure themselves racially, as Judge Motha’s instructions strongly imply. Instead, section 9 states that everyone is equal before the law and entitled to equal protection under the law.