/ 28 September 2007

Motata’s troubles just beginning?

The racial and sexist slurs allegedly uttered by Pretoria Judge Nkola Motata may return to haunt him even if the charges against him are dismissed.

The Johannesburg Magistrate’s Court this week heard how Motata allegedly crashed into a wall in the residential area of Hurlingham in Johannesburg while under the influence of alcohol.

Motata was driving back from a party on January 6 when he, according to witness Richard Baird, reversed through the wall of Baird’s property and fell asleep behind the steering wheel of his Jaguar.

When confronted by Baird and two metro police officers, Motata allegedly swore at the female officers and said ‘females can’t arrest me” and referred to them as ‘stupid ladies”. His blood alcohol level was four times the legal limit and he ‘had to lean against his vehicle to remain upright”, Baird claimed.

According to the state, Motata repeatedly referred to Baird as a ‘fucking white guy”. ‘There were a lot of expletives … particularly directed at me,” Baird told the court.

Baird captured Motata’s utterings on his cellphone, but on Thursday Motata’s lawyer asked magistrate Desmond Nair to refuse permission for the recording to be used as evidence.

Motata is denying guilt on the charges of drunk driving and defeating the ends of justice.

Although there are no laws dealing with the conduct of judges, the Judicial Service Commission (JSC) Amendment Bill, currently before Parliament’s justice portfolio committee, seeks to enforce a code of conduct to regulate their behaviour.

The JSC has limited powers when dealing with judges’ conduct and can only recommend to Parliament that a judge be impeached. This, as prescribed in the Constitution, is only to be done in cases of ‘gross negligence, incapacity or misconduct”. This option has never been exercised by the JSC and no judge has been impeached since the democratic Parliament was instituted in 1994.

The recommended code of conduct will be included in the regulations attached to the Bill, but it is unclear when the Bill will become an Act of Parliament.

According to the Bill, a code of conduct will be drafted by Chief Justice Pius Langa with some level of consultation from Justice Minister Brigitte Mabandla. The Bill will also allow for a peer review system where the chief justice will, together with his deputy and three judges, form a tribunal that will have powers to subpoena witnesses and gain access to court records and other documents.

This tribunal will act as the disciplinary arm of the JSC and cases of misconduct by judges will be dealt with. It will have the power to recommend disciplinary action against the judges if they are found to have diminished the public’s trust in the judiciary.

Initially judges resisted the notion of having any disciplinary action imposed on them, stating that such regulation would undermine the independence of the judiciary.

Cases such as Motata’s demonstrate that a disciplinary option may be necessary to keep the reputation of the judiciary intact, a source close to the process told the M&G.

Once the Bill is passed, the JSC will be able to hear complaints of any kind from individuals and organisations involving the conduct of judges and the tribunal can recommend appropriate action.

‘The complainant will have to show that, in one way or another, the judge is not a fit and proper person and therefore should be subjected to disciplinary measures,” the source said.

In Motata’s case the witness can lodge a complaint with the JSC even if the judge is acquitted by the courts, quoting the alleged racial and sexist slurs as a basis for the need for disciplinary action.