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18 Oct 2019 00:00
Close call: Judge Nkola Motata, who infamously drove into a wall after he had been drinking, was not impeached, but has to pay a fine of more than R1-million. (Paul Botes/M&G)
Nkola Motata’s case is the closest democratic South Africa has come to impeaching a judge, testing the as-yet unused provisions in the Constitution and the Act that regulate how judges are held accountable for misconduct
One of the reasons the Judicial Service Commission (JSC) took so long to clear Judge Nkola — “as sober as a judge” — Motata of impeachable conduct was because the decision was so intensely debated and contested within the commission. In the end, there was a very close margin between the majority and the minority view, sources said this week.
The JSC announced last Thursday that it had decided not to trigger an impeachment process against the retired high court judge.
Although he was guilty of misconduct, the JSC said, it was not gross misconduct that warranted impeachment.
The decision came 18 months after a judicial conduct tribunal — the body tasked with investigating the misconduct complaints against him and reporting to the JSC — recommended impeachment.
Motata’s case is the closest democratic South Africa has come to impeaching a judge, testing the as-yet unused provisions in the Constitution and the JSC Act that regulate how judges are held accountable for misconduct.
Because judges are unelected, and are appointed for life (with a salary), it is crucial to the constitutional balance that these provisions work. They ensure that judges are protected when unwarranted misconduct allegations are made, but that they are held accountable when warranted allegations are made.
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.
Motata is infamous for his drunken car-crash into the wall of a Hurlingham home in 2007, and the criminal trial that followed.
But, the JSC disciplinary process that followed his drunken driving conviction was not about whether a drunk judge or a convicted judge should be allowed to stay on as a judge.
The complaints against him were related to the incident, but different. The first was about what he had said at the scene in an altercation with the owner of the house — Richard Baird. AfriForum had complained that the judge had been racist because, during the back and forth with Baird, Motata made a number of angry comments that AfriForum complained were racist. These included him saying: “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 second complaint was made by senior counsel Gerrit Pretorius SC, and was about the judge’s conduct during his criminal trial. Pretorius had said Motata relied on a defence he knew to be untrue — a breach of judicial ethics — when, during the trial, his counsel put it to a witness that Motata would be telling the court that he was not drunk.
The majority decision was announced by way of a four-page statement by JSC chair and chief justice Mogoeng Mogoeng. A full record of the majority’s decision — pulling together written reasons from members of the majority — was finalised on Thursday. There is also a 75-page minority decision, detailing why the minority supported the recommendation of the Tribunal.
The majority report reveals how after “prolonged deliberations” in June the JSC remained divided. An ad-hoc committee was then set up to consolidate various submissions received by its members.
The majority report is therefore made up of the various submissions all agreeing with the ultimate outcome not to impeach, but with different reasoning. The authors of the majority submissions are not named. Similarly the authors of the minority view are not named.
Mail & Guardian has dug into the main points of JSC’s majority — based on the statement — and its minority view .
On Pretorius’ complaint about a breach of judicial ethics, the JSC’s statement said Pretorius’s complaint could not stand. This was because it had transpired that Izak Smuts SC, who was at the time a member of the JSC, had approached Pretorius asking him to lodge the complaint as “the Afriforum complaint was seemingly ‘insufficient’ to secure a guilty finding,” said the statement.
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.
In its view, the minority said that Smuts had not acted on behalf of the JSC when he requested Pretorius to lodge a complaint. Though he was part of the JSC meeting that decided the complaint warranted a tribunal, he was not a member of the judicial conduct committee or the tribunal. “Smuts SC therefore played a limited role … it is unlikely that this tainted the fairness of the entire decision-making process.”
The minority said that advocates and judges, where they are accused persons in a criminal trial, enjoy the fair-trial rights of ordinary citizens. “It is therefore arguable that Judge Motata’s conduct in this regard was improper but did not rise to the level of gross misconduct.”
Ultimately, however, the minority’s view that the judge was guilty of gross misconduct was based on both complaints.
On AfriForum’s complaint, the majority found that the conduct that led to his criminal trial and conviction “amounts to misconduct”.
Specifically, the statement said: “[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.”
The minority said that, though the trial court found there may have been provocation by Baird, the record did not reflect what was actually said. Motata had also not raised provocation at any stage prior to his testimony at the tribunal, said the minority.
In looking into “the severity of Judge Motata’s remarks,’’ the minority said the JSC should not be “mechanical” and had to be guided by context — in particular South Africa’s history when alleged racist statements were made by a black person towards a white person.
“This is not to say that, in principle or necessarily, there cannot be instances of discrimination or racism directed against a white person by a black person. The point is more nuanced: South Africa’s history and the prevailing race dynamics and power imbalances mean that it would be too simplistic and insensitive to treat all incidents of alleged racism alike,” said the minority.
It found, however: “The reasonable inference is that Judge Motata tried to use his position as a judge and racial issues to obtain more favourable treatment.
“Judges are required to be better than this and to refrain from this kind of behaviour given their unique role and responsibilities in South Africa’s constitutional democracy.”
Read more from Franny Rabkin
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