Judge Nkola Motata’s statements at the scene of his infamous 2007 car crash were provoked, said his counsel on Friday, and it was the owner of the house he crashed into, Richard Baird, who brought race into the picture.
Motata’s counsel, Themba Skosana, was making his closing argument at the judicial conduct tribunal looking into two complaints of gross misconduct that arose from the night when Motata crashed his car into the wall of a Hurlingham house and the drunken driving trial that followed.
The first complaint was made by AfriForum, which said that the statements he made at the scene of the accident were racist. Evidence leader Ivy Thenga argued that, when people came before a judge, they expected him to deal with their case by looking at the issues before him and not be prejudiced by their race.
One of the statements specifically mentioned was: “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.”
But the tribunal panel, chaired by KwaZulu-Natal judge president Achmat Jappie, suggested that its mandate was to look at all of Motata’s remarks; and the overall context. Skosana said that the context was that Motata had been provoked; because after waiting over an hour for Baird in order to discuss how he could pay for the damage, the first thing Baird did was to take away his car keys.
When he was asked by the panel how race came into the picture at all, Skosana said that it was how Baird had conducted himself that was racist, thus provoking the response from Motata.
Skosana said that while the words used by Motata could be considered “vulgar”, they were not racist.
But Skosana was challenged on Motata’s statement on Wednesday that Baird had called him a “drunken k****r”. Jappie asked why this had been raised for the first time by Motata when he was being cross-examined. Skosana said that it had been raised in the criminal trial briefly, but that, for purposes of the tribunal, they would stick to the version that the provocation was the result of the car keys.
Thenga said that during the hearing, Motata had given “two versions” of what had provoked him, showing that “once more, we did not get the truth”.
However, Thenga said that while Motata’s conduct on the racism complaint was misconduct, she was uncertain whether this amounted to “gross” misconduct. On the other hand, she was firm that on the second complaint, his conduct would amount to gross misconduct.
The second complaint was made by senior counsel Gerrit Pretorius about the way Motata conducted his defence in his drunken driving trial. Pretorius said that, when his counsel put it to a witness that Motata would say he was not drunk, this was putting a version that he knew to be false – a grave breach of judicial ethics.
A judge may only be impeached if the Judicial Service Commission has found him guilty of gross misconduct.
One of the questions that was raised by the panel was whether there was a higher standard for Motata’s conduct at the trial because he was a judge or whether he should be treated as an ordinary accused person. Skosana said he should be treated as an ordinary accused because – in that position he would not be able to exercise the same objectivity and rationality as he would on the bench.
But appeal court judge Nambitha Dambuza – also on the tribunal’s panel – said that the very reason everyone was at this tribunal was because Motata was a judge. “If he had been an engineer… we would not be here”.