The Supreme Court of Appeal (SCA) has made a scathing assessment of how the Judicial Service Commission (JSC) handled complaints laid against “drunk” Judge Nkola Motata, saying “the judiciary continues to be stained in the eyes of the public” as long as he is entitled to be called a judge.

Freedom Under Law took the JSC’s decision not to sanction Motata for gross misconduct on review, calling it irrational. The JSC went against the recommendation of the Judicial Conduct Tribunal which held the inquiry into Motata’s conduct.

“Public confidence in and respect for the judiciary are essential to an effective judicial system and, ultimately, to democracy and founded on the rule of law. A fair-minded and dispassionate observer is bound to conclude that Judge Motata cannot properly discharge his functions,” Judge Visvanathan Ponnan wrote in the majority judgment issued on Thursday.

“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.”

Read more in Daily Maverick: JSC ‘protecting’ retired judge Motata, charges Freedom Under Law

Motata crashed into the boundary wall of Richard Baird’s home in Hurlingham, Johannesburg, in January 2007 and was later found guilty of drunk driving. Baird recorded some of the interaction he had with Motata, including the judge referring to him as a “boer”.

Motata had also said: “It is not a problem that I can pay for the wall but he must not criticise me. There is no boer who will criticise me.” He also swore at Baird, saying: “F*ck him, f*ck him, he must not insult me. I say f*ck him. Anybody who insults me, I say f*ck you.”

After the criminal case concluded, the JSC received three complaints about Motata’s conduct at the scene of the crash as well as during the trial, where he had pleaded not guilty.

Among the complaints were that Motata had made racist remarks and that he had lied during his defence in the criminal case. Motata had claimed he was provoked by Baird using the K-word, but the SCA found there was no evidence of this.

The JSC is the statutory body tasked by the Constitution with disciplining judges. It is headed by the Chief Justice and at the time of Motata’s hearing, former Chief Justice Mogoeng Mogoeng was the chairman. The JSC was split on its decision on Motata, but the majority found that he should be sanctioned for simple misconduct, not gross misconduct, and pay a fine.

Irregular complaint

During its deliberations, the JSC decided not to consider one of the complaints due to the way it came about. One of the JSC commissioners, Advocate Izak Smuts, had alerted advocate Gerrit Pretorius of certain deliberations within the JSC that prompted Pretorius to lay a complaint. The JSC said this “irregularity” brought into question the integrity of the process.

However, the SCA has found that the JSC should not have dismissed the complaint without looking at its merits.

“The JSC was wrong in concluding that there was a reasonable apprehension of bias on the part of the JSC. Smuts SC’s involvement was confined to one preliminary step in the complaint process … He was also not part of the JSC that considered the Tribunal’s report and made the final decision in terms of s 20(4) and (5) of the JSC Act. 

“It might well have been improper for Smuts SC not to disclose that he had prompted Pretorius SC to lay the complaint, but that did not taint the hearing of the complaint by the Tribunal or the decision of the JSC. Those who took those decisions were not biased and could not be reasonably suspected of bias,” Judge Ponnan wrote.

He added that there is a public interest in the “effective disciplining of a judge”.

“The JSC resorted to ‘accusing the accuser’, instead of considering and engaging with the allegations of wrongdoing. Courts should be slow to countenance such a strategy. The JSC’s refusal to determine the merits of the Pretorius SC complaint defeats the very purpose of the powers given to it to discipline judges and, in so doing, to protect the public’s perception of the integrity of the judiciary,” he said.

Another complaint was brought by AfriForum, and the SCA said the JSC had failed to consider the contents of that complaint adequately.

“The majority decision does not say why the factual findings of the Tribunal in respect of the AfriForum complaint were rejected, including the findings on the credibility of the witnesses. It also does not engage with the heart of the complaint that a judge who conducted himself as Judge Motata did, betrays the public’s confidence in the judicial system.

“The mosaic as a whole detracts from the foundation upon which the majority decision came to rest. In particular, two examples that go to the heart of the majority’s finding and are particularly germane, find little support in the evidence — namely, that Judge Motata’s 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,” Judge Ponnan wrote.

Two other judges, Ashton Schippers and Fayeeza Kathree-Setiloane, agreed with Ponnan’s ruling. The majority judgment found that Motata should be found guilty of gross misconduct and the case should immediately be referred for consideration of possible impeachment, in terms of section 20 (4) of the JSC Act.

“Judge Motata’s conduct was egregious, particularly when one has regard to the cumulative consequence of both the AfriForum and Pretorius SC complaints. 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 dishonestly accuse Mr Baird of using the K-word, only to thereafter withdraw the accusation. 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,” Ponnan wrote.

The judges also said it would not serve the interests of justice to send the complaint back to the JSC for reconsideration because so much time had already passed in the case.

“The incident occurred on 6 January 2007. Sixteen years have since passed. It has taken nearly 13 years for the JSC to make a final decision. Undoubtedly, some of the delays were on account of Judge Motata’s high court challenges and points in limine before the Tribunal. Should this Court remit the matter to the JSC, there is every likelihood that any fresh decision by it will be reviewed, and the matter will again wind its long, slow journey through the courts. Further delay does not serve the interests of justice,” Judge Ponnan ruled.

Dissenting decision

Two other judges, Constance Mocumie and Thokozile Masipa, agreed that the JSC was wrong to dismiss the tribunal’s findings. The judges were critical of the JSC’s conduct but said the commission should have a chance to reconsider its finding.

“The JSC is best advised to study this judgment (both majority and minority judgments), reflect on it, establish processes in line with this judgment, and properly consider the report and recommendation of the JCT [Judicial Conduct Tribunal],” the judges wrote.

“Nonetheless, this Court cannot be seen as endorsing an ‘eye for an eye’ approach, but rather a path of reconciliation, based on the values underpinning the Constitution, aspiring toward a united nation that seeks to rebuild itself as one, irrespective of race, sex, or creed. This case should not be viewed through the lens of expediency but rather as an opportunity to strengthen the systems within the JSC that hold judges accountable.” 

The JSC has been ordered to pay Freedom Under Law’s costs. Retired Justice Johann Kriegler, the organisation’s chairman, said Freedom Under Law “has been in a love-hate relationship with the JSC for 15 years” as a result of some of its decisions.

“The JSC does not understand its duty in terms of the Constitution. I say this being aware that the JSC is not a constant body. Its members change from time to time. It does not realise that its duty to the rule of law is to apply the law to judges as correctly, as freely and as fairly and as objectively as they would in respect of anybody else. If anything, judges should be held to a higher standard than the ordinary member of the public,” Kriegler said.

Vindication

Meanwhile, the man whose wall Motata crashed into in 2007, Richard Baird, said this judgment has vindicated him.

“I’ve been waiting for this for 17 years,” he said.

Baird said he was happy that the court had agreed with the tribunal that there was no evidence that he had used the K-word to provoke Motata.

“On the scene [of the crash] I decided I was going to hold a mirror up to South Africa. I am a professional. I have ethics. He is a judicial officer. He should have supreme ethics … This isn’t just about a drunk judge. This is about a racist,” he said.

Baird added that Motata had not paid for the damage to his wall and that repairs at the time had cost him close to R10,000.

JSC spokesperson Advocate Sesi Baloyi SC said the commission noted the judgment and would consider the ruling. DM