Parliament’s portfolio committee on justice on Wednesday resolved to ask for a briefing from the Judicial Service Commission as the first step in the impeachment of retired, disgraced justice Nkola Motata
Parliament’s portfolio committee on justice on Wednesday resolved to ask for a briefing from the Judicial Service Commission (JSC) as the first step in the impeachment of retired, disgraced justice Nkola Motata who was arrested for drunk driving 15 years ago.
This marks the first time since 1910, when the Union of South Africa was born, that parliament has been called to deal with the impeachment of a judge, committee chairperson Gratitude Magwanishe noted.
It made for some discussion among members as to the legislature’s role in the process set out in section 177 of the Constitution, with several members noting that it is restricted to deciding whether or not to proceed with the removal of the judge as recommended.
“Just to emphasise that in terms of section 177, parliament has a very limited role in the impeachment of judges,” Democratic Alliance MP Glynnis Breytenbach said.
“We cannot reopen an inquiry into the guilt or otherwise, the process has been finalised, it was finalised by the JSC and subsequently by the judgments in courts,” she said.
Breytenbach questioned a remark by parliamentary legal adviser Barbara Loots — who briefed the committee on the findings of the commission and the courts against Motata — that the National Assembly’s role was not to consider the merits of the factual findings made in the matter but “to make a political decision”.
“I too want to take issue of our discussion of our work going forward in this matter as giving political guidance to the National Assembly in reaching a political conclusion. I think it is incredibly dangerous to mix the two and I think it was probably just a poor choice of words,” she said.
ANC MP Qubudile Dyantyi agreed that the legislature’s remit was limited, but said he supported the description of parliament’s role as a political one, as the alternative would be to see it as being “just to rubber-stamp what is there”.
Loots said the choice of words was not hers, but borrowed from one of the high court judgments in the extensive litigation that has accompanied the JSC’s investigation into allegations of impeachable misconduct on the part of now-suspended Western Cape judge president John Hlophe.
The cases of Motata and Hlophe, going back to 2007 and 2008, respectively, have highlighted the complexity and weakness of the established system for disciplining judges who betray the ethical norms of their profession. In both instances, civil society turned to the courts to challenge the initial findings of the JSC.
Advocacy group Freedom Under Law (FUL) took on review, a decision by the commission in 2019 not to find Motata guilty of gross misconduct, but instead of simple misconduct punishable with a fine. In reaching this decision, the JSC had gone against the recommendation of the judicial conduct tribunal.
FUL prevailed in the supreme court of appeal, which held in June that he must be impeached to protect the integrity of the bench.
“The conduct that I have been at pains to describe is of such gravity as to warrant a finding that Judge Motata be removed from office. There is no alternative measure to removal that would be sufficient to restore public confidence in the judiciary,” judge Visvanathan Pannan wrote in the majority decision.
It meant that the decision of the JSC fell to be rejected. Resubmitting the matter to the JSC, with the further delays and litigation this would likely entail, would not serve the interests of justice, Pannan said.
Motata was arrested in January 2007 after reversing his car into the boundary wall of a suburban house in Hurlingham, Johannesburg. Metro officers were called to the scene by the homeowner, Richard Baird, who suspected the judge was inebriated.
The officers attempted to arrest Motata, who resisted, and Baird recorded the verbal spat that ensued. The SCA ruling noted: “Those recordings are telling. They reveal Judge Motata making racist utterances, resorting to profanities and employing derogatory language.”
Motata was convicted of driving under the influence by the Pretoria magistrates’ court. He retired in 2018 and the JSC’s decision meant that he did so with his full salary and benefits. Impeachment by parliament would see him losing these.
The portfolio committee on Wednesday resolved to ask Motata for submissions in mitigation, which Loots said senior counsel had advised would be a necessary step in the process.
There was then some discussion as to whether he would be invited to appear before the committee, which the ANC supported.
In the end, it was decided that he would be asked to make a submission in writing, and that should be request to appear before the committee, this would be considered.
At the urging of DA MPs, the committee also resolved to ask the JSC for a briefing on the Hlophe matter. FUL has also pressed the issue and on Monday received a letter from the chief parliamentary legal adviser confirming that “the matter is being considered by parliament in furtherance of the section 177 responsibilities as set out in the Constitution.
The JSC two years ago found that Hlophe made himself guilty of gross misconduct and misconduct.
The finding stemmed from a complaint filed by the constitutional court after he sought to sway justices Bess Nkabinde and Chris Jafta, in 2008, on a pending ruling relating to the corruption case against French arms manufacture Thales and a then-aspirant president, Jacob Zuma.
The JSC had initially dismissed both the complaint and counter-complaint he filed against the apex court judges.
Hlophe took the 2021 finding on review but his challenge was dismissed by the Johannesburg high court in May 2022. The court said Hlophe had failed to argue proper review grounds, instead presenting the court with “grievances” that did not warrant its attention.
It described the events and extensive litigation that unfolded over more than a decade after the complaint was lodged as “probably unique in the history of our judiciary”.
Hlophe initiated an appeal to the SCA but the matter was taken off the roll after he failed to file submissions on time. His stated reason for the lapse was that he could not afford to copy the full record of the matter. He has filed suit against the solicitor-general for full cover for his legal fees.
In a webinar on judicial accountability on Wednesday, Judges Matter research officer Mbekezeli Benjamin said this step by Hlophe should not serve as an impediment to parliament proceeding with his impeachment because it did not concern litigation directly against the JSC.
“Hlophe had previously sought an interdict to stop the proceedings going ahead against him but it was against the JSC. He now does not have any interdict, so practically speaking there is not any impediment. Maybe parliament itself might decide after learning that there is litigation going on to stop, but there is no impediment.”