New Act may scuttle Motata

Timing is the key for Judge Nkola Motata. Although the judge, found guilty of drunk driving in the Johannesburg Magistrate’s Court on Wednesday, could well keep his job, the looming Judicial Service Commission (JSC) Amendment Act could put a damper on his prospects.

In the current JSC Act the definition of what legally constitutes “gross misconduct” could save Motata, as it did Western Cape Judge President John Hlophe a week ago.

The Constitution states only that incapacity, gross incompetence or gross misconduct can lead to impeachment. A legal source pointed out that the JSC had previously appointed to the Bench an applicant with a criminal record for drunk driving.

But advocate Marumo Moerane of the JSC said the new Amendment Act defines various degrees of misconduct.
“It deals with lesser forms of misconduct that are not ‘gross’ and provides sanctions for an errant judge,” Moerane said.

The Act also provides for the development of a code of conduct for judges, which, if breached, could lead to impeachment. The disciplinary committee enforcing it would comprise only judges.

A reply by Justice Minister Jeff Radebe to a Democratic Alliance question in Parliament indicated that the amendment could become law in October or November this year.

The justice department’s Tlali Tlali said yesterday that the JSC would deal with the Motata matter before its forthcoming October session.

Other commentators argue that Motata’s conduct at the scene of the accident in Sandton in 2007, when he drove into the wall of a house, went beyond drunk driving, to constitute “gross misconduct”.

AfriForum lodged a complaint with the JSC in 2008, citing the judge’s “gross racist conduct” in his interaction with white residents after the accident. The complaint was shelved pending the outcome of the criminal case.

A senior counsel said the fact that the magistrate had rejected Motata’s version of the incident implied deception. The lawyer said the judge had manipulated the legal system by refusing to testify and by avoiding cross-examination.

But others think this was a smart move. “By not testifying, Motata avoided a serious adverse-credibility finding against him,” said Stephen Tuson of the Wits law school.

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