Judging the judges a priority

The court appearance of Pretoria High Court Judge Nkola Motata on drunk driving charges recently has turned a spotlight on the absence of procedures for disciplining errant judicial officers.

Motata, released on R1 000 bail earlier this week after driving his Jaguar through a Sandton resident’s concrete fence last weekend, had his case remanded until February 27 in the Randburg Magistrate’s Court. He was put on leave until the end of February by Judge President of the Transvaal provincial division, Bernard Ngoepe, who said the matter would be reviewed then.

The Judicial Service Commission (JSC), the statutory judicial watchdog, has said it will look into the Motata matter only if it receives a complaint. Advocate Marumo Moerane of the JSC would not speak to the Mail & Guardian.

Even if a complaint is lodged, it is doubtful whether the JSC can impose sanctions on Motata, as existing law only provides for removal from office.

Under section 177 of the Constitution, a judge may be removed from office only if the JSC finds that he or she suffers from incapacity, is grossly incompetent or is guilty of gross misconduct. But even then, the National Assembly can fire the judge only by means of a resolution adopted by at least two-thirds of its members. No judge has been removed in this manner since 1897.

Explained constitutional law expert Gilbert Marcus: ‘The JSC is empowered to investigate gross misconduct of such a nature that it justifies removal of the judge from office. But it is only the most serious cases of misconduct that warrant the judge’s removal.”

Marcus added: ‘There are a range of acts of misconduct worthy of censure but not necessarily removal from office. The current law doesn’t cater for that.”

Marcus added that policing gross misconduct was ‘a matter of degree”, with every case requiring careful investigation. ‘You can’t adopt a checklist mentality in dealing with these issues,” he said.

‘To make an extreme example, one would think that a judge guilty of murder might be removed from office. But a judge found guilty of assisted euthanasia might just walk. Broadly speaking, acts of dishonesty are generally regarded as grounds for dismissal.”

The Judicial Conduct Tribunal Bill, which aims to provide for the establishment of a formal complaints and disciplinary mechanism for judicial officers, has yet to be introduced to Parliament.

Rejected by many judges as an infringement of their independence, and as open to abuse by the executive and disgruntled litigants eager to influence court decisions, it has been the subject of heated discussions between the judiciary and the Department of Justice. The department began developing draft legislation as long ago as 2000.

The Bill proposes a complaints procedure and a set of institutions to review complaints, as well as broadening the categories of conduct subject to potential disciplinary action.

But according to Idasa legislation analyst Shameela Seedat, the Bill prohibits disciplinary bodies from entertaining complaints that ‘relate solely to the merits of a judgment, or are frivolous or hypothetical”.

A judge speaking on condition of anonymity viewed Motata’s offence as serious enough to warrant removal from the bench. ‘What is shocking about his conduct is not the act of drunk driving per se, but his general conduct — the language he used and the threats to abuse power,” the judge said.

‘That transcript [recorded on a bystander’s cellphone] was shocking. These are the very things that a judge shouldn’t do. The combination of all these things may be serious enough to warrant his removal.”

Another judge added: ‘Judges should scrupulously obey the law. They are examples to their communities and they sit in judgement of drunk drivers. I think his ability to deal with cases of drunken driving has been severely compromised.”