In not giving up the fight, former judge Nkola Motata, who was impeached earlier, turned to the Constitutional Court for direct access to have the National Assembly resolution to axe him, set aside.
“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,” three judges of the Supreme Court of Appeal last year said when they found 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.
But Motata, 77 and retired now, is taking his plight to the apex court where he also wants the decision taken by President Cyril Ramaphosa to remove him, declared invalid.
He will, however, have to cross the first hurdle – for the Concourt to grant his direct access to this court.
He was discharged from active service as a judge in 2017, but he was placed on special leave following the incident in 2007.
Motata said in an affidavit filed at the Concourt that the National Assembly lacked jurisdiction to pass a resolution to remove him from office and that the resolution was motivated and obtained by misrepresentation.
“I was subjected to double jeopardy having complied and served my punishment as imposed by the JSC (Judicial Service Commission),” Motata stated.
He cited three grounds for the application, which included that the Judicial Conduct Tribunal earlier found him guilty of misconduct not amounting to gross misconduct and imposed a fine of R1.1 million, which he did pay to an institution called the South Africa Judicial Education Institute.
The SCA, however, following an appeal by Freedom Under Law, found him guilty of gross misconduct and instructed the JSC to submit this finding to the National Assembly for a resolution in terms of the Constitution.
Motata said that the parliamentary committee recommended his removal from office to the National Assembly notwithstanding that no finding of gross misconduct had been made by the JSC.
He added that the parliamentary committee, through its chairperson, misled and misrepresented to Parliament that a finding of gross misconduct had been made against him.
Another objection raised by Motata is the rejection of his argument of double jeopardy (double punishment for the same crime) in relation to the fine imposed and already paid by him.
“The issue, though placed before the SCA, was not considered and dealt with by it when it substituted the initial finding of the JSC.”
Motata said he had been punished and he had paid his dues – his fine – and he cannot be punished twice. According to him the parliamentary committee failed to take this into account.
“I was punished by paying the hefty fine out of my pension payout. l may not be able to recover the sum from the JSC or South African Judicial Education Institute, yet l would still be removed from office as a punishment.”
Motata argued that the double jeopardy rule was introduced to prevent such unjust eventuality.
In motivating his direct access application to the Concourt, Motata said it is in the interest of justice that he be heard.
“The impeachment of a judge is a matter of national importance and general public interest. lt also involves constitutional issues. Since the inception of the constitutional democracy in South Africa I am the first alongside Judge President (John) Hlophe to undergo such a process as a judge.”
The SCA meanwhile last year said in its judgment regarding Motata: “His conduct 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.”
While Motata has not sat on the bench for nearly 17 years, he received his full monthly salary and when he retired in 2018, he did so with his full benefits, which he lost when he was impeached in February.
Pretoria News