Judge Motata cleared of impeachable conduct

 

 

The Judicial Service Commission (JSC) has cleared Judge Nkola Motata of impeachable conduct, going against the recommendation of a judicial conduct tribunal.

Announcing the decision on Thursday evening, JSC member Dali Mpofu SC said the majority of the JSC had decided that, although Motata had committed misconduct, it was not gross misconduct, warranting impeachment. Instead the JSC ruled that Motata must pay a fine of over a million rand — one year’s salary — to the South African Judicial Education Institute.

Earlier, Motata had been found guilty of gross misconduct by a judicial conduct tribunal on two complaints: one laid by Afrikaaner lobby group AfriForum for allegations that he made racist utterances at the scene of his infamous car crash in 2007, when he — under the influence of alcohol — drove his car into the wall of a Hurlingham home.

The other complaint was that, during the course of his criminal trial, he relied on a defence that he knew to be untrue — which was alleged to be a breach of judicial ethics.

The tribunal — chaired by KwaZulu-Natal judge president Achmat Jappie — made its finding in April last year. But in terms of the Constitution and the JSC Act, it is the JSC, not the tribunal, that must decide whether a judge’s conduct warrants impeachment. Unless the decision is taken to court on review, that will be the end of the matter.

In a four-page statement setting out the reasons for the decision, the JSC said the majority was “disturbed” by how the second complaint had come about.

It had transpired that Izak Smuts SC, who was at the time a member of the JSC, had approached Gerrit Pretorius SC, the complainant, asking him to lodge the complaint, the JSC said in the statement. The reason for this was that “the Afriforum complaint was seemingly ‘insufficient’ to secure a guilty finding”.

Smuts had not disclosed that he was the “originator or instigator” of the complaint, the JSC said.

“Advocate Smuts SC sat in and actually chaired the deliberations of the JSC, which resolved to refer the matter to the JCT [judicial conduct tribunal] … He had a clear obligation to disclose and recuse himself,” the statement read.

The conduct breached the legal principle that protected against bias or perceived bias, said the JSC. “The Pretorius complaint can accordingly not stand.”

However, the facts that led to his conviction still needed to be taken into account, said the majority, and there was also the second complaint by AfriForum of racist utterances.

The conduct which led to his criminal trial and conviction “amounts to misconduct,” said the statement. Specifically, the “racially loaded utterances made by Judge Motata were unbecoming of a judge, notwithstanding the majority’s acceptance that his responsibility was diminished by his proven intoxication and provocation in the form of the alleged use of the K-word by the owner of the house.”

As a result he was found guilty of misconduct, but not gross misconduct.

This is a developing story and will be updated with comment from all the parties.

What the tribunal found:

The Motata JCT was the first ever tribunal established under the JSC Act. 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.”

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,” the tribunal’s report reads.

Even if Motata had been provoked — as the trial court had found — this did not justify his conduct, the tribunal said. “Restraint is an essential trait in the character of a judicial officer. His reaction far exceeded the provocation,” the tribunal noted.

On the second complaint, 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”.

These are unprecedented times, and the role of media to tell and record the story of South Africa as it develops is more important than ever. But it comes at a cost. Advertisers are cancelling campaigns, and our live events have come to an abrupt halt. Our income has been slashed.

The Mail & Guardian is a proud news publisher with roots stretching back 35 years. We’ve survived thanks to the support of our readers, we will need you to help us get through this.

To help us ensure another 35 future years of fiercely independent journalism, please subscribe.

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

Stella set to retain her perks

Communication minister will keep Cabinet perks during her two months of special leave

Not a sweet deal, Mister

Mister Sweet workers say they will not risk their health, and the lives of others, to continue producing and packaging confectionaries

Covid-19 grounds Nigeria’s medical tourists

The country’s elites, including the president, travelled abroad for treatment but now they must use the country’s neglected health system

Nehawu launches urgent court bid over protective gear for health...

The health workers’ union says the government has rebuffed its attempts to meet about mitigating risks to workers

Press Releases

Rahima Moosa Hospital nursing college introduces no-touch facial recognition access system

The new system allows the hospital to enrol people’s faces immediately, using artificial intelligence, and integrates easily with existing access control infrastructure, including card readers and biometrics

Everyone’s talking about it. Even Kentucky

Earlier this year South African fried chicken fast-food chain, Chicken Licken®, launched a campaign for their wallet-friendly EasyBucks® meals, based on the idea of ‘Everyone’s talking about it.’

New energy mix on the cards

REI4P already has and will continue to yield thousands of employment opportunities

The online value of executive education in a Covid-19 world

Executive education courses further develop the skills of leaders in the workplace

Sisa Ntshona urges everyone to stay home, and consider travelling later

Sisa Ntshona has urged everyone to limit their movements in line with government’s request

SAB Zenzele’s special AGM postponed until further notice

An arrangement has been announced for shareholders and retailers to receive a 77.5% cash payout

20th Edition of the National Teaching Awards

Teachers are seldom recognised but they are indispensable to the country's education system

Awards affirm the vital work that teachers do

Government is committed to empowering South Africa’s teachers with skills, knowledge and techniques for a changing world