It has been almost 10 years since Judge Nkola Motata drunkenly crashed his car into the wall of a home in Hurlingham, Johannesburg. But two complaints of gross misconduct arising from the crash remain unresolved. Instead he was at home on special leave — at a cost of R14-million to taxpayers — until he retired last year.
Motata is one of seven judges who face impeachment inquiries but whose cases have languished unresolved for years. Another is Western Cape Judge President John Hlophe. The complaint against him, made by all the justices of the Constitutional Court at the time, was made in 2008.
Impeachment inquiries, part of the judicial disciplinary process, are considered a critical part of how judges are held to account but have been, up to now, gridlocked by litigation.
Yet, next week the complaints against Motata will finally be heard by a Judicial Conduct Tribunal. There is also a meeting scheduled for February 1 to decide the way forward in Hlophe’s tribunal.
Pretoria high court judge Motata was found guilty of drunken driving after he crashed his car into a house in 2007. He was fined and lost his appeal to the high court in Johannesburg.
In 2011, two complaints were laid against him, one relating to comments he was said to have made at the scene of the crash — which right-wing civil rights organisation AfriForum says were racist — a claim he has steadfastly denied. AfriForum says that, in a recording made at the scene of the accident shortly after the crash, Motata is heard saying to Richard Baird, the owner of the house, that “no boer is going to undermine me. This used to be the white man’s land but it isn’t anymore.”
The second relates to his conduct during his criminal trial. A senior counsel at the Johannesburg Bar, Gerrit Pretorius, complained that Motata had used a defence that he knew to be untrue — a breach of judicial ethics.
During the trial, Motata’s counsel suggested to a state witness that the judge was not drunk. Although an accused person may conduct his defence on the basis that it is the state’s job to prove the case beyond a reasonable doubt, he may not allow his counsel to put an untrue version to a witness.
Along with Motata, two of the other judges facing impeachment inquiries have also since retired and two have been medically boarded because of bad health. But judges are appointed for life. So, retired or not, there is much to lose if they are impeached. Justice Bess Nkabinde — not facing a complaint, but one of the key witnesses in the Hlophe tribunal — was at the time of the complaint the most junior justice on the Bench of the highest court but has since also retired.
Justice Chris Jafta, the second crucial witness in the Hlophe tribunal, was only acting on the Constitutional Court at the time of the complaint and is now one of its more senior members.
The complaints against Motata and Hlophe were made so long ago that a new regime was introduced on how to deal with complaints of judicial misconduct when amendments to the Judicial Service Commission Act came into force in 2010.
Before, complaints of impeachable conduct were dealt with by the entire Judicial Service Commission (JSC), not subcommittees, and there was no mechanism to hold judges to account for misconduct that was serious but did not warrant impeachment.
The amended Act introduced the Judicial Conduct Committee (which receives complaints), set out different procedures depending on how serious the misconduct allegations were and provided for Judicial Conduct Tribunals, which investigate and hear cases that the JSC thinks would, if proved, amount to impeachable conduct.
The fact that some complaints straddled the two regimes was part of the reason for the delay. The JSC had to decide how to approach them. When it decided that they would be dealt with under the new dispensation, the decision was challenged.
At Hlophe’s Judicial Conduct Tribunal, Nkabinde and Jafta raised several concerns about the new process under the JSC Amendment Act. They said the case should be decided under the old system, that the new system was unconstitutional and breached the separation of powers because it provides that a member of the prosecuting authority be appointed as a pro forma prosecutor and other, technical objections.
When the tribunal rejected their concerns, they went to the high court. When a three-member panel of the high court rejected their concerns, they went to the Supreme Court of Appeal. When they were rejected by the appeal court, they approached their own court, the Constitutional Court. But the highest court refused to entertain their appeal, saying its judges were conflicted. In a staggering move, the two then asked the Constitutional Court to reverse its own decision.
This pursuit of an apparently hopeless case — not one judge on any of the courts agreed with any of their points — took approximately three years. Then, on the day the Constitutional Court sent Jafta and Nkabinde packing, finally clearing the way for tribunals to get under way, a new court case was lodged — by Motata.
He approached the high court, challenging almost the entire procedure under the JSC Amendment Act. His case was rejected by the high court, as was his application to appeal to the Constitutional Court. This process added a year.
Unlike Motata, Hlophe got fed up with being on special leave and returned to work in 2009. But there were often mini-dramas when he attended JSC interviews, when the commission was looking to fill vacancies on the Western Cape Bench. Last year, he was appointed as the representative of the heads of court on the JSC.
The other judges who are facing judicial conduct tribunals include four judges of the high court in Pretoria — judges Ferdi Preller (retired), Ntsikelelo Poswa (medically boarded), George Webster (retired) and Moses Mavundla (still at work) for long-outstanding judgments. Free State Judge Shamin Ebrahim (medically boarded) faces a complaint for failing to disclose her interests as required under the JSC Act regulations.
Only the racism complaint against Judge Mabel Jansen has been resolved because she resigned once it was decided that she should face a tribunal.