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07 Sep 2012 16:20
Judge Nkola Motata. (Gallo)
Eastern Cape Judge Jean Nepgen, sitting in the North Gauteng High Court, dismissed Motata's application.
He wanted the court to declare unconstitutional a decision by the Judicial Service Commission (JSC) that a judicial conduct tribunal (JTC) be appointed to investigate a hate speech complaint against him.
Nepgen also dismissed Motata's application to stop the misconduct investigation, and declare Justice Minister Jeff Radebe's decision to place him on special leave unconstitutional.
In September 2009, Motata was convicted of drunk driving and fined R20 000 after he crashed his Jaguar into the property wall of Hurlingham, Johannesburg, resident Richard Baird in 2007.
His appeal against his conviction was dismissed in 2010.
Civil rights group AfriForum laid a hate speech charge against him with the JSC following the alleged racist remarks he made at the accident scene.
Motata allegedly said: "No boer is going to undermine me. This used to be the white man's land, but it isn't any more."
He told metro police officers not to support a white man.
Removal from the bench
Senior Johannesburg advocate Gerrit Pretorius asked for Motata's removal from the bench, saying he was not fit to be a judge.
Motata has been on special leave, with full pay and benefits, since 2007.
The special leave was extended pending the finalisation of misconduct complaints against him.
In May last year, a judicial conduct committee decided AfriForum's complaint against Motata indicated gross misconduct and recommended that the complaint should be investigated by a JCT.
The chief justice was asked to appoint the tribunal.
Motata maintained the JSC's conduct was unconstitutional, unlawful and aimed at removing him from office.
Motata contended the continued investigation against him was unlawful. He said putting him on special leave pending the finalisation of the complaint was not permissible, as it prevented him from pursuing his occupation as a judge.
Nepgen said the preamble to the Judicial Service Act specifically refers to the provisions of section 177(1) of the Constitution. This section provides that a judge may be removed from office if the JSC finds he suffers from an incapacity, is grossly incompetent or guilty of gross misconduct, and the National Assembly calls for his removal through a resolution supported by two-thirds of its members.
The power to determine if a judge's conduct amounted to gross misconduct was a value judgment and one of the powers and functions assigned to the JSC by the Constitution.
Nepgen said if Motata's argument that he could not be charged with misconduct in the absence of a Code of Judicial Conduct was correct, it would mean the JSC did not yet have, and never had, the power to consider any complaints in connection with the conduct of judges.
"This contention is so contrary to the express provisions of section 177(1) of the Constitution that it cannot be upheld," he said.
"If it was to be upheld it would mean that no judge can ever be found guilty of misconduct until a code of judicial conduct exists." – Sapa
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