Freedom Under Law versus Judge Motata

Freedom Under Law versus Judge Motata: the doctrine of leave to sue

In our last instalment we discussed the Judicial Service Commission’s (JSC) mis-dealings against Judge Motata, which resulted in a review application being launched by Freedom Under Law (FUL), a civil society watchdog.

Freedom Under Law, launched the review application proceedings because the JSC decided not to adopt the findings of the Judicial Conduct Tribunal (the Tribunal). On 12 April 2018, the Tribunal found that Judge Motata’s conduct at the scene of his motor accident and the remarks he made were racist and thus impinged on and were prejudicial to the impartiality and dignity of the courts.

The Judicial Tribunal’s findings against Motata

The Tribunal also found that the lack of integrity in the way Judge Motata allowed his defence to be conducted at his trial was incompatible with or unbecoming of the holding of judicial office. The Tribunal further found that to permit Judge Motata to remain in judicial office would negatively affect the public’s confidence in the justice system. The Tribunal accordingly recommended to the JSC that the provisions of section 177(1)(a) of the Constitution should be invoked, implying that Judge Motata should be found guilty of gross misconduct and impeached from office.

The JSC’s rejection of the Judicial Tribunal’s findings

Despite the findings of the Tribual, the JSC failed to make findings in line with the recommendations of the Tribunal. Instead, the JSC concluded that Judge Motata was not guilty of gross misconduct, but rather guilty of the lesser offence of misconduct. As a result, the JSC rejected the Tribunal’s recommendation that the JSC should invoke the removal mechanism embodied in section 177(1)(a) of the Constitution, effectively refusing to impeach Motata. As sanction for Judge Motata’s misconduct, the JSC imposed a fine of R1 152 650.40 to be paid by Judge Motata to the South African Judicial Education Institute (SAJEI). It is the decision by the JSC not to adopt the findings of the Tribunal that Freedom Under Law seeks to have reviewed and set aside.

“It is the decision by the JSC not to adopt the findings of the Tribunal that Freedom Under Law seeks to have reviewed and set aside.”

The objectives of the review application are to assert the proper standard by which judges’ misconduct should be dealt with by the JSC. The review application also inevitably aims to ventilate issues of judicial integrity and accountability in respect of judges.

Freedom Under Law’s review application of the rejection of the Tribunal findings

In its review application, Freedom Under Law asked for a declaratory order in relation to section 47 of the Superior Courts Act 10 of 2013 (the Act).  Section 47 of the Act stipulates that:

“Notwithstanding any other law, no civil proceedings by way of summons or notice of motion may be instituted against any judge of a Superior Court, and no subpoena in respect of civil proceedings may be served on any judge of a Superior Court, except with the consent of the head of that court or, in the case of a head of court or the Chief Justice, with the consent of the Chief Justice or the President of the Supreme Court of Appeal, as the case may be.”

The objectives of section 47(1)(a) of the Act are to insulate judges from unwarranted and ill-conceived proceedings aimed at them. It is well known that the core function of judges is to adjudicate disputes involving competing interest daily. Judgements handed down and statements made in judgements by judges have the potential to displease some litigants, which may result in judges being dragged to court to defend their judgment in litigation. It is important for the adjudication function of judges that they should be protected from the lingering threats of legal proceedings being directed at them arising from the execution of their judicial responsibilities. Section 47(1)(a) of the Act is necessary to ensure that judges adjudicate disputes without fear, favour, or prejudice.

Freedom Under Law advanced arguments to the effect that the provisions of section 47(1)(a) of the Act do not apply in the review proceedings instituted against the decision of the JSC relating to Judge Motata. In essence Freedom Under Law’s argument was that there was no need to request consent from Judge President Mlambo to cite Judge Motata in the review proceedings. Freedom Under Law advanced two arguments as follows:

• In the first instance, Freedom Under Law argued that section 47(1) of the Act does not require a litigant to obtain consent to institute proceedings against retired judges. In essence Freedom Under Law was arguing that retired judges no longer enjoy the protection of section 47(1) of the Act because they no longer render judicial functions. The absence of protection by the section does not pose a threat to the independence of the proper functioning of the judiciary.

In respect of the above argument Mlambo JP found that Freedom Under Law’s argument was misdirected for various reasons. First, Section 47 of the Act does not make a distinction between retired judges and judges still in active service to the judiciary. Second, there are retired judges who continue to feature in judicial functions and other activities. These might include finalising part heard matters and sometimes retired judges are called upon to undertake new work allocations either in their divisions or in others. It must however be noted that Judge Motata had been on special leave since the drunken driving accident and after his retirement in February 2017 he had never been called to perform any judicial or other activities. Nonetheless, Mlambo JP concluded that Section 47 of the Act does not limit the scope of application of the leave to sue doctrine to judges in active service but also includes retired judges.

“…section 47 of the Act does not make a distinction between retired judges and judges still in active service to the judiciary. Second, there are retired judges who continue to feature in judicial functions and other activities.’

• In the second instance, Freedom Under Law argued that the phrase ‘civil proceedings’ in section 47(1) of the Act should not be interpreted to countenance review proceedings instituted against administrative decision makers such as the JSC and not against judges, even if such judges have an interest in the matter or outcome thereof.

In respect of the above argument, Judge President Mlambo found that the clear language of section 47(1) of the Act is that consent of the head of the court where the judge has been appointed is necessary in any intended proceedings. This applies whether the judge participates in those proceedings or not.

Considering the above arguments by Freedom Under Law and findings made by Judge President Mlambo, the latter concluded that consent as ordained by Section 47(1) of the Act is required to cite Judge Motata in the review proceedings.

In deciding whether good cause had been shown by Freedom Under Law to warrant the requisite consent to cite Judge Motata in the review proceedings Judge President Mlambo noted that Judge Motata’s involvement in the review proceedings would in no way impede the functioning of the High Court in which he formerly served (Gauteng Division of the High Court of South Africa). Judge Motata’s inclusion in the review proceedings would not  undermine the independence of the judiciary. As a result, consent to cite Judge Motata in the review proceedings was granted by Mlambo JP.

Freedom Under Law has passed through the first hurdle in the review application against the decision of the JSC. We now await the hearing of the main review application, which will be ground-breaking as it is aimed at upsetting the JSC’s decision by challenging the lawfulness, rationality, and validity of the decision not to find Judge Motata guilty of gross misconduct.

A judge’s appointment is a lifetime appointment

It would not be surprising that some people would wonder, what difference will the review application by Freedom Under Law make given that Judge Motata has already retired. It is important to note that a judge’s appointment is a lifetime appointment. A judge retains the status of being a judge even after retirement. Although retired judges no longer feature in the running of the courts, some continue to feature in the judicial functions and activities. Retired judges are sometimes appointed to undertake new work allocations either in their divisions or in others and are also sometimes requested to preside over commissions of inquiry. Given the fact that retired judges continue to play a role in the judiciary, it is important that complaints against judges be brought to finality, regardless of whether the judge is retired or not.

“Given the fact that retired judges continue to play a role in the judiciary, it is important that complaints against judges be brought to finality, regardless of whether the judge is retired or not.”

Some complaints may seem trivial when compared to other complaints, such as a drunken driving complaint versus a complaint about an attempt to influence Constitutional Court judges. However, the JSC Act makes provision for four grounds upon which any complaint against a judge may be lodged. These grounds are:

• Incapacity or gross incompetence or gross misconduct; or
• Any wilful or grossly negligent breach of the Code of Judicial Conduct; or
• Accepting, holding, or performing any office of profit or receiving any fees, emoluments, or remuneration or allowances other than those in relation of one’s position as a judge; or
• Any other wilful or grossly negligent conduct that is incompatible with or unbecoming the holding of judicial office, including any conduct that is prejudicial to the independence, impartiality, dignity, accessibility, efficiency or effectiveness of the courts.

It is important that the complaint against Judge Motata be brought to finality

The above grounds upon which a complaint may be lodged against a judge are all encompassing in respect of unacceptable conduct by those who hold the office of a judge. Therefore, the complaint of drunken driving is as serious as any other complaint against a judge and must be dealt with in the same manner as any other complaint would be dealt with.

It is important that the complaint against Judge Motata be brought to finality. The review proceedings will bring certainty in respect of the standard by which judges’ misconduct should be dealt with by the JSC and the standard by which judges are to conduct themselves accordingly.