Pretoria High Court Judge Mandlenkosi Motha has stirred controversy by demanding an explanation from an all-white group of lawyers as to why there isn't a single black lawyer among them.

The unusual move came in an email last Friday, where Motha instructed both legal teams in a black economic empowerment case to present a 10-minute argument addressing the lack of diversity in their teams.

He also boasted that he was only on the bench because of affirmative action, potentially a reference to the judicial selection process he underwent last year, in which his failure to correctly apply basic tests of evidence was overlooked because of his record in promoting the interests of the black race.

While initially scheduled for a virtual court session, Motha later cancelled the hearing but still required written arguments from both sides. He cited potential violations of section 9.2 of the Constitution, which addresses the need to correct past inequalities, as his concern.

This, as pointed out to him by the lawyers whom he was subjecting to this struggle session, was a very poor reading of the Constitution, as the Section in question only authorises the state to use policy and legislation towards redress of those facing unfair discrimination.

The case involves Periform Work Scaffolding Engineering contesting a finding by the Broad-Based Black Economic Empowerment Commission, with judgment reserved after arguments were heard in January.

Motha’s actions raise questions about whether his judgment can be relied on to be impartial, particularly on a case relating to the racial quota system, of which he is a staunch advocate.

In his opening statement in his JSC application last year, Motha failed to demonstrate a basic understanding of certain evidentiary tests quoted in his prior judgments, and was cautioned by several members of the JSC for use of careless language in judgments.

Motha's recent actions have sparked criticism and controversy. The Pretoria Bar Council called his instruction "inappropriate and indecent," while Gauteng Judge President Dunstan Mlambo, who lobbed him softball questions in the JSC, defended it.

Motha, who became a permanent judge last year, has previously expressed views on racial transformation in the legal profession, suggesting that white lawyers are favored over black counterparts. However, his recent demands have raised questions about judicial overreach and political involvement.

Critics argue that Motha's demands are outside the scope of the case and infringe on the right of litigants to choose their legal representatives. The matter has raised concerns about the judiciary's direction and the integrity of the legal system, with calls for clarity from the chief justice.

The incident comes at a sensitive time as public confidence in the judiciary is being rebuilt following the removal of judges like John Hlophe and Nkola Motata.

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