Motata probe could make history

For something that has taken 10 years to get off the ground, Judge Nkola Motata’s judicial conduct tribunal unfolded very quickly and with little drama once it began.

The tribunal will make findings that — depending on what it decides — could see post-1994 South Africa’s first impeachment of a judge.

Established in 2013, the tribunal was bogged down by litigation, which had judiciary watchers questioning whether the country’s judges would ever be held accountable when they are accused of seriously transgressing their ethical duties.

There are a number of tribunals that should follow closely on the heels of the Motata hearing, the most contentious one being the complaint against Western Cape Judge President John Hlophe made in 2008 by all the then justices of the Constitutional Court.

Motata’s tribunal was set up to look into two complaints of gross misconduct arising from his 2007 car crash and the drunken driving trial that followed. It was set to run for three days. But by the end of day one, all the witnesses had been called, including the judge himself, and had been cross-examined. All that was left to be done — on Friday January 19 — was to hear closing arguments.

The tribunal’s panel, chaired by KwaZulu-Natal Judge President Achmat Jappie, began by clearly setting the limits of what was to be traversed: the tribunal was bound by its terms of reference and would not consider charges that did not relate to them, it ruled. This meant it needed to answer three questions:

• Could the statements Motata made at the scene of the car crash “be classified as racist”?

• If so, did they “render him guilty of gross misconduct”? and

• Was the way he conducted his defence at his criminal trial “inconsistent with the ethics of judicial office”, rendering him guilty of gross misconduct?

The tribunal was therefore not looking into whether his conviction was impeachable, whether the fact that he drove drunk was impeachable, or whether his alleged repeated use of “fuck him” in referring to the owner of the house whose wall he had smashed into was impeachable.

By the time a complaint gets to a tribunal, a judicial conduct committee must have found a prima facie case already — that, if everything the complainant said was true, it would indeed amount to gross misconduct. But the tribunal’s job is then to test the complaint by hearing both sides and deciding which one is most probably true. Wednesday was the first time Motata had verbally responded to the complaints.

The first complaint was made by right-wing civil rights group AfriForum about statements made at the scene, after Motata drove his Jaguar into the wall of a house in Hurlingham, Johannesburg, and had an altercation with the owner of the home, Richard Baird.

The statements that are specifically quoted in the tribunal’s terms of reference record Motata as having said: “No boer is going to undermine me … this used to be a white man’s land, even if they have more land … South Africa belongs to us. We are ruling South Africa.”

Another statement referred to by AfriForum’s Kallie Kriel was when Motata was recorded to have said: “Yes, but you know all of you, let me just tell you, most of us this is our world, it is not the world of the boers. Even if they can have big bodies, South Africa is ours.

“Even if I can drive into it, I will pay it. It is not a problem that I can pay for the wall but he must not criticise me. There is no boer who will criticise me.”

Kriel said the context in which the statements were made perpetuated racist stereotypes of white people as “inherently racist, bullyish, of a specific physical appearance, [with] no regard for any other person, unsophisticated, unrepentant, the ever-oppressor and … unethical and immoral”.

But Motata said that the statements were “not at all” racist. He said he was speaking Setswana and that, when he said “leburu le”, he was talking to the Sesotho-speaking metro police officers and was identifying Baird specifically — the only white and “thickset” person at the scene.

“The traffic officers had wanted us to leave. I said I could not leave because my keys had been taken by that leburu, the thickset one,” the judge said.

He had also been extremely provoked, he said, and the trial court had agreed. He said that he felt disparaged by Baird because, after waiting for more than an hour for Baird to arrive so that he could make amends for the damaged wall, Baird had immediately, “without introducing himself to me”, taken his car keys out of the car.

“If you take my keys when I have waited for you, what are you saying about me? Am I a flight risk when I have waited for somebody? I waited; I did not run away from the scene.”

He added that, when he said South Africa was “ours”, he meant that the country now belonged to all South Africans as opposed to only white people, as had previously been the case.

He had been “extremely provoked” because Baird had called him a “drunk k****r”, said Motata. The “k” word was not recorded at the scene and the allegation was not part of the record, said Jappie. But Motata said Baird did use those words.

Tribunal panellist Ilan Lax asked why Motata’s counsel, Themba Skosana, had not put this to Kriel when Kriel was giving evidence, adding that context was important in trying to establish racism.

Motata replied that he had tried to send a note to his counsel. But Skosana had responded that Kriel was just giving his opinion, and because the AfriForum chief executive had not been present at the trial court, there was little value in his opinion.

The second complaint was made by Gerrit Pretorius, senior counsel at the Johannesburg Bar, about how Motata had conducted his defence in his drunken driving trial, at which he was convicted.

Pretorius said that when Motata’s counsel, Danie Dorfling SC, had put it to Baird that “the accused will deny being drunk”, this was stating a version that Motata knew to be false — a grave breach of judicial ethics.

Pretorius said that putting a false version of events to a witness was misleading a court — something for which advocates could be disciplined by their professional bodies. “A judge bears an even higher duty,” he said.

He said it was Motata’s right, like any other accused, to choose not to testify and to say nothing, and instead have the state prove the charges. But when his counsel made that statement, he had made a “positive case” and it was a different matter. “It’s unprofessional conduct for a counsel. And for a judge, it’s worse,” he said.

Pretorius was asked by Jappie how much of what Motata’s counsel had said could be attributed to instructions and how much was just the advocate “running with the case”. Pretorius said there was “no other possible interpretation” other than that this false version had emanated from the judge.

But Motata said what he had said to his counsel was that he did not “consider” himself drunk because he had only had two glasses of wine — “and that’s below the limit”.

“If I’ve got my counsel there, I have got no control of what words are going to be used … If what counsel puts forward is something different, it’s something out of my control,” he said. He added that he could not correct his lawyer during the trial proceedings because, when he had earlier tried to “nudge” his counsel, he had been given a dressing-down by the magistrate.

Once closing arguments have been made, the panel will have to conclude its work within three months and then it has another month to submit its report to the Judicial Service Commission. The JSC will then have to decide whether the judge is guilty of gross misconduct. Ultimately, it is for Parliament to decide whether Motata should be impeached.

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Franny Rabkin
Franny Rabkin
Franny is the legal reporter at the Mail & Guardian

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