Pretoria - For as long as Judge Nkola Motata is entitled to be called “Judge Motata”, the judiciary continues to be stained in the eyes of the public.
These were the scathing words of three judges of the Supreme Court of Appeal, who said that his conduct more than 16 years ago, when he ploughed his gold Jaguar through the wall of a house in Johannesburg North, was of such gravity as to warrant a finding that he be removed from office.
“There is no alternative measure to removal that would be sufficient to restore public confidence in the judiciary. This means that the conclusion reached by the Judicial Services Commission to ‘reject the tribunal’s recommendation’ and that ‘Judge Motata’s conduct did not constitute gross misconduct’, falls to be rejected,” said Judge Visvanathan Ponnan, who wrote the majority judgment.
He described Judge Motata’s conduct from the moment he drove through the wall in January 2007 up to the 16 years in which he fought tooth and nail to not be impeached and to lose his benefits as a judge.
“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,” he said.
Judge Ponnan added that this means that the conclusion reached by the JSC to “reject the Tribunal’s recommendation” and that Judge Motata’s conduct “did not constitute gross misconduct”, falls to be rejected. He made it clear that the Judicial Services Commission’s finding that Judge Motata was guilty of misconduct was clearly wrong, as the tribunal’s findings of gross misconduct must stand.
The Supreme Court accordingly remitted the matter to the Judicial Services Commission. The judge made it clear that it is not being remitted for the Judicial Services Commission to reconsider the report of the tribunal, but for it to be dealt with in terms of the Judicial Services Commission Act.
This means in effect that the Judicial Services Commission must follow the law and follow this judgment and act accordingly – which means that Judge Motata could lose all his benefits.
The 76-year-old has been on pension since 2017 with full benefits. Legal expert advocate Francois Botes explained that the Supreme Court’s order means that the Judicial Services Commission will have to forward all relevant documents regarding its hearings and findings following the complaints regarding Motata, including the findings of the tribunal, to the National Assembly.
The latter will then have to deal with Judge Motata accordingly, as it has the final say over judges.
“I am afraid that Judge Motata has reached the end of this road and that once the matter is referred to the National Assembly, he will be impeached and be removed from office,” Botes said.
The Supreme Court’s judgment followed after Freedom Under Law turned to it to have the JSC’s findings of misconduct against Judge Motata overturned and replaced with gross misconduct or refer the matter back to the Judicial Services Commission.
But the court said the latter is not an option, as further delay does not serve the interests of justice.
The Judicial Services Commission dismissed the Judicial Conduct Tribunal’s recommendation in October 2019 that Judge Motata’s conduct amounted to gross misconduct, which would have resulted in his impeachment.
The commission found that he was rather guilty of the offence of misconduct.
It slapped him with a R1.1 million fine, which he had to pay to the South African Judicial Education Institute.
He was earlier fined R20 000 for driving under the influence. Motata had appealed his drunken driving conviction, but this was turned down in 2010.
In also not sparing the Judicial Services Commission, the Supreme Court yesterday said: “The Judicial Services Commission should properly and lawfully deal with every complaint of gross misconduct by a judge that may threaten the independence and impartiality of the courts and may justify the removal of that judge from office. Should it shirk its duty, as it is alleged to have done in this case, it can have grave repercussions for the administration of justice.”
The court noted that at the Judicial Services Commission meeting of June 2018, it was overwhelmingly agreed and recorded that the ground of impeachment based on racial slurs could not be sustained and must fall away’.
“Why that was so, is not explained … ‘racial slurs’ and ‘racially loaded utterances’ are the epithets preferred by the majority.
“Even on the acceptance of those euphemisms, the majority was still impelled to the conclusion that the utterances were unbecoming of a judge,” the court said.
It also said: “It was of course open to Judge Motata to offer, at any time, an apology for his conduct. But, he did not. Whether an apology would have been sufficient to restore public confidence need not detain us, because none was proffered by him.
“Judge Motata’s conduct was egregious … His behaviour at the scene of the incident was characterised by racism, sexism and vulgarity.
“The public watched him conduct a dishonest defence during his trial and on appeal … They watched him lie under oath to the Tribunal about his level of intoxication, as the video of him slurring his words and stumbling went viral. His conduct is inimical to his office. For as long as he is entitled to be called ‘Judge Motata’, the judiciary continues to be stained in the eyes of the public.”
Two judges meanwhile, in a dissenting judgment, concurred with the majority judgment that the decision of the JSC should be set aside. But they did not agree with the order.
They said the appropriate remedy was to remit the matter to the Judicial Services Commission to rectify the deficiencies in its previous proceedings properly.
Pretoria News