/ 17 April 2018

​Judge Nkola Motata: judicial conduct tribunal recommends impeachment

A judge may only be impeached if the Judicial Service Commission has found him guilty of gross misconduct.
A judge may only be impeached if the Judicial Service Commission has found him guilty of gross misconduct.

The tribunal established to investigate gross misconduct complaints against Pretoria High Court Judge Nkola Motata has recommended that he be impeached for gross misconduct.

If the Judicial Service Commission agrees with the tribunal, it would then be up to Parliament to decide whether to impeach the Judge and would require a two-thirds majority to do so.

Motata faced two complaints, one for racist utterances he made at the scene of his car crash in 2007, when he – under the influence of alcohol – drove his car into the wall of a Hurlingham home. The other was that, during the course of his criminal trial, he relied on a defence that he knew to be untrue – a breach of judicial ethics.

The statements 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.”

In a report dated April 12, the tribunal found that he had committed gross misconduct and acted in a way “incompatible with or unbecoming of the holding of judicial office”.

“The office of a Judge is a very respectable office. So, must be those who hold it. A Judge’s conduct, in and out of court, should not dishonour that high office. Impeccable moral and ethical standing is a crucial hallmark of such public office,” said the report of the Tribunal, chaired by KwaZulu-Natal Judge President Achmat Jappie.

“We recommend to the Judicial Service Commission that the provisions of section 177(1)(a) of the Constitution be invoked,” said the report.

The report said that Motata’s utterances showed that he believed white Afrikaners were not qualified to criticise or undermine him. “In this sense he used race as a primary determinant for who he would accept criticism from.”

Judge Motata’s counsel had argued that Motata had been addressing the black metro police officers at the scene in Setswana – to identify the landlord; and that the word “leburu” was a standard term of reference for Afrikaners and not racist.

But the tribunal said this did not take his case any further. The statement must be looked at in context of the other statements made by the Judge at the scene and his general conduct, said the report. Referencing the “sensitive issue” of land ownership showed “a deliberate racially motivated strategy chosen by the Judge to get police officers on his side,” said the report.

Even if Motata had been provoked – as the trial court had found – this did not justify his conduct, said the tribunal.

“Restraint is an essential trait in the character of a judicial officer. His reaction far exceeded the provocation,” said the report.

Racist conduct on the part of a Judge “strikes at the heart of judicial integrity and impartiality, particularly against the background of South Africa’s apartheid history,” said the tribunal.

On the second complaint – made by senior counsel at the Johannesburg Bar Gerrit Pretorius – the tribunal agreed that he had knowingly conducted a defence that he knew “lacked integrity”.

During his criminal trial, Motata’s counsel had put it to a witness that Motata would say he was not drunk. The Tribunal said that all the evidence put before the court, “which the Judge had access to before he pleaded, must have made it clear that a denial of intoxication was against all prevailing evidence and could not be true”.