Freedom Under Law (FUL) has mounted a legal battle to overturn the Judicial Services Commission’s (JSC) decision not to impeach retired judge Nkola Motata.
In the papers filed in the Joburg High Court last week, FUL executive officer Nicole Fritz said that in 2007 Motata drove his vehicle while intoxicated, resulting in damage to a Hurlingham property owned by Richard Baird.
She said after that, he made various remarks that were not merely gratuitous and offensive, but were also racist and sexist. “To make matters worse, he then defended his criminal conduct through the lengthy proceedings, during which he knowingly advanced a defence that was factually and legally without basis,” reads the affidavit.
She also said Motata was found guilty by the Joburg High Court for driving under the influence of alcohol and reckless and negligence driving and was fined R20 000 or 12 months’ imprisonment. After being found guilty, AfriForum, among others, filed a complaint with the JSC demanding that Motata be removed as a judge as he was not fit to occupy judicial office.
The JSC referred the matter to Judicial Conduct Tribunal (JCT), which found him guilty of gross negligence and recommended to the JSC that proceedings for Motata’s removal as a judge be invoked. The JSC later overturned JCT’s verdict and instead found Motata guilty of misconduct and not gross misconduct and declared that he should remain a judge.
It also fined Motata R1.2-million, which was supposed to have been paid to the South African Judicial Education Institute. In its argument, JSC said it had decided that although
Motata had committed misconduct, it was not gross misconduct warranting impeachment. The other complaint, filed by Gerrit Pretorius (SC), was that during the course of his criminal trial Motata relied on a defence that he knew to be untrue – which was alleged to be a breach of judicial ethics when he said he believed he was not under the influence of alcohol.
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 Pretorius, the complainant, asking him to lodge the complaint because AfriForum’s complaint was seemingly “insufficient” to secure a guilty finding.
JSC said Smuts had not disclosed that he was the “originator or instigator” of the complaint and went on to sit in and actually chaired the deliberations of the JSC, which resolved to refer the matter to the JCT. The JSC said his conduct breached the legal principle that protected against bias or perceived bias.
But the FUL argued that the JSC misconstrued its powers and arrogated itself the authority that it did not have when it went against the recommendation of JCT to impeach Motata because the law only empowers the JCT to make such decisions. It also said the JSC’s decision not to impeach Motata will betray the confidence the public has in the judiciary. The case will be heard at a date still to be decided.
