Racial slurs on Motata tapes

A re-examination of an audio recording made at the scene of Judge Nkola Motata’s drunken crash into the wall of a Johannesburg house in 2007 says it loud and clear—Motata made racist remarks.

Read the transcript

On the tapes examined and translated from Sesotho by the Mail & Guardian, Motata can distinctly be heard saying to bystanders: ‘All of you, let me tell you, my brothers and sisters—these people should not catch us. Let us live, we are the majority and this is our land. It is not the land of the boers [maburu] even if they have big bodies.
South Africa is ours, we rule it.”

This new taped evidence adds weight to the charge of ‘gross racist misconduct” brought before the Judicial Service Commission (JSC) by the civil society group, Afriforum.

The tapes, described as ‘indistinct” in court transcripts at Motata’s trial, show that the judge uttered racial slurs; tried to arouse the racial sympathy of black bystanders; threw his weight around; swore repeatedly, including at police officers; and tried to get away from the scene of the accident.

The convicted Gauteng High Court judge may now struggle to stave off a JSC hearing on his possible impeachment for racism and other serious misconduct.

Motata crashed his luxury sedan into the concrete fence of a house in Hurlingham Manor, Johannesburg, in the early hours of January 6 2007.

A Johannesburg magistrate later found him guilty of drunk driving and sentenced him to a R20 000 fine or a year in jail.

Replying to the JSC in September, after Afriforum lodged the complaint, Motata denied racism. But he admitted for the first time that he had shared a bottle of wine with a friend before the accident.

Responding to the complaint that he referred to whites as maburu [boers], Motata said that the Se-sotho term was not offensive.

Yet the recordings make it clear that the term was intended as an insult and suggest that he was playing the race card to evoke the sympathy of black bystanders.

It is unclear whether the JSC complaints committee will hear the audio recordings or rely solely on the court transcript. Trial magistrate Desmond Nair ruled that the transcript was not evidence, merely ‘an aid to follow recordings”.

Glaringly absent from the court transcript, but clearly audible on the tapes, are the initial exchanges between Motata and state witness Lucky Melk, the tenant who arrived first at the crash site.

Melk is heard politely trying to pacify Motata after the latter declared in Sesotho that he was a lawyer.
‘I am caught by these boers, I do not care for them,” Motata replies. ‘I do not want to talk to them. I am saying let them give me my keys so I can go, let them give me registrations [sic] and do whatever they want to do. They must not think they have caught me with something, that will not happen.”

Melk then says that he knows Motata is a man of the law, but points out that he has driven into property owner Richard Baird’s wall.

He is later heard telling Motata: ‘But then it is not good to insult this man [Baird].”

To which the clearly inebriated judge replies: ‘Fuck him, fuck him, he must not insult me. I say fuck him, anybody who insults me, I say fuck you.”

Baird, now also on the scene, interjects: ‘Who is insulting you?” and presses Motata to answer him.

‘Hey, fuck you, please,” Motata replies. When Baird complains that Motata is being ‘disrespectful” to him, Motata answers: ‘I do not care about you.”

Later Motata mistakenly refers to the black bystanders, who all declined to testify against him, as Baird’s employees. ‘I do not care about your workers,” Motata says.

Baird then tells the judge that Melk is a senior bank manager, but Motata persists in telling him: ‘So go to hell, get to hell!”

To the amusement of bystanders, the judge claims to be referring to a security guard and not Melk, as ‘he [Melk] is too short to be a senior manager”. He adds: ‘You tell me when you are ready; I must run.”

The audio recording shows that Motata, after trying to exert his authority over a clearly impatient female police officer, loses his temper.

‘I would say to you, fuck you too, I would say to you, fuck you too!” he screams before Baird reminds him: ‘You are speaking to a police officer.”

‘Wena, hey wena, do not worry about whites, it is the truth that must prevail!” screams Motata.

Later Motata, who sounds more sober, is heard trying to find an alternative solution to his problems.
‘I am saying, listen, we are at fault if we are wrong, let us judge ourselves. If I am wrong I want to pay a person that I have wronged,” he says.

In a 40-page letter to the JSC last month, which the M&G has seen, Baird says Motata’s aggression and racially charged language prompted him to move away to cool down.

He decided to record Motata on his cellphone after his lawyer advised him to do so.

In his reply to the JSC Motata disputes Afriforum’s complaint that he was guilty of ‘crass racist remarks regarding whites” and had shown he could not ‘act in the interest of all communities without any prejudice”.

He told the JSC that he was acquitted of four other charges—reckless driving, obstructing the ends of justice, resisting arrest and driving with excessive blood alcohol levels—and was ‘anxious to have the matter finalised” so he could resume his duties.

Last week trial magistrate Nair denied Motata leave to appeal against his sentence. His lawyers have since indicated they will appeal against his conviction and sentence and will approach Gauteng Judge President Bernard Ngoepe.

The JSC indicated last month that it would allow Motata to appeal against his conviction and sentence before proceeding with the complaint against him.

Owner did not call him a ‘drunken kaffir’
A recording of exchanges after Motata’s collision with the concrete fence of a Hurlingham Manor house gives no support to claims during his trial that the owner of the affected property called him ‘a drunken kaffir”.

And it backs the testimony that would have been given by a mysterious witness, dubbed ‘Mrs X”, who was at the crash scene.

Mrs X initially refused to give evidence, but decided to testify that there were no racial slurs when she learned that the defence was trying to portray the owner of the house, Richard Baird, as a racist.

But Nair barred her testimony. During the trial Johannesburg Metro Police officer Pauline Mashilela changed her testimony under re-examination, alleging that state witness Baird had referred to Motata as a ‘drunken kaffir”.

Applying to have charges dropped during the trial, Motata’s counsel, Bantubonke Tokota, labelled Baird ‘one of the worst complainants ever”, whose ‘evidence should be ignored as he is ... biased, unreliable, dishonest, has concocted evidence, has contradicted himself and is, above all, a racist”.

Convicting Motata, the magistrate found no basis for the allegation. Audio recordings made by Baird, accepted by the court as evidence and described as ‘a concrete edifice on which all other evidence has been built”, contain no racist statements by him.

In addition, Motata himself does not complain that the word ‘kaffir” was used.

‘No, but what did you say, when I got out of my car?” Motata is heard asking.

Baird replies: ‘What did I say?” ‘You say: this drunken person,” answers Motata.

Nair, however, did find that there was ‘an element of provocation prior to the recordings”.

‘Mr Motata’s answers speak of a level of anger, the tone of his voice as is in the audio ... does not support a scenario of an unprovoked individual,” said Nair.

Baird denies that he provoked Motata or was guilty of racial slurs.

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