The JSC’s misdealings against Judge Motata

In the early hours of one morning in January of 2007 Judge Motata was driving his motor vehicle along Glen Eagles Road in Hurlingham, Johannesburg, when he crashed into the boundary wall of a residential property owned by Mr Richard Baird. After the crash Judge Motata and Mr Baird became involved in a verbal confrontation, during which it became apparent that Judge Motata had been driving under the influence of alcohol. During the verbal confrontation Judge Motata used racial slurs, profanities, and language of a derogatory nature, all of which was recorded by Mr Baird.

Judge Motata’s charges of criminal misconduct

Judge Motata was subsequently charged with two counts of criminal misconduct. The first charge was a contravention of section 65(1)(a) of the National Road Traffic Act, 1996 (“the NRTA”), that being driving a motor vehicle under the influence of alcohol. The second charge was one of defeating and obstructing the ends of justice, with the alternative to this count being a contravention of section 67(1)(a) of the South African Police Service Act, 1995, that being resisting arrest. Judge Motata pleaded not guilty to both charges levelled against him. The recording by Mr Baird was later admitted into evidence in the court case against Judge Motata in respect of these charges.

On 2 September 2009 Judge Motata was convicted on the first charge against him as it had been proven before the Johannesburg Regional Magistrates Court that Judge Motata was driving under the influence of alcohol on 6 January 2007. Judge Motata was however, acquitted on the remaining charge, namely the crime of defeating and obstructing the course of justice by resisting arrest. Judge Motata’s conviction was confirmed on appeal at the High Court. The High Court was ultimately satisfied that the Magistrate was entitled to conclude that Judge Motata’s guilt had been proved beyond a reasonable doubt.

The JSC proceedings leading up to the JSC decision

After the incident of 6 January 2007, three complaints were lodged with the JSC against Judge Motata. The first complaint was lodged by The Catholic Commission for Justice and Peace on 8 January 2007, requesting that the JSC investigates Judge Motata’s conduct which allegedly brought disgrace on him, the judiciary and undermined public respect.

The second complaint was lodged by AfriForum on 5 July 2008, alleging that Judge Motata had committed gross racist misconduct, and should therefore be impeached in terms of section 177 of the Constitution of the Republic of South Africa, 1996 (the Constitution).

The third complaint was lodged by Advocate Gerrit Pretorius SC (“Pretorius SC”) on 22 May 2011 alleging that Judge Motata’s conviction was a sufficient reason why he should no longer be a judge, and that motivation for his removal was compounded by his unsubstantiated denial that he was intoxicated on 6 January 2007. Pretorius SC further alleged that Judge Motata’s conduct caused the judge’s office to be the object of ridicule, and that his false denial that he was drunk strikes at the heart of the judiciary’s integrity.

The Judicial Complaints Tribunal’s finding on Judge Motata’s case

The complaints were considered by the Judicial Conduct Committee (the JCC) on 14 May 2011. The JCC recommended, in terms of section 16(4)(b) of the JSC Act, that the AfriForum complaint be investigated and reported on by the Judicial Conduct Tribunal (JCT). The JCT was accordingly appointed on 4 March 2013.

The JCT, inter alia, found that Judge Motata’s conduct at the scene of his motor accident and the remarks he made were racist and thus impinge on and are prejudicial to the impartiality and dignity of the courts. The JCT also found that the lack of integrity in the manner in which Judge Motata allowed his defence to be conducted at his trial was incompatible with or unbecoming of the holding of judicial office. The JCT further found that to permit Judge Motata to remain a judicial officer would negatively affect the public’s confidence in the justice system. The JCT 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.

Image: Paul Botes, Mail & Guardian

The JSC refuses to remove Motata

On 10 October 2019, the JSC rejected the JCT’s conclusions and refused to make a finding that Judge Motata was guilty of gross misconduct or to invoke the mechanism provided for under section 177(1)(a) of the Constitution for the removal of judges. The majority of the JSC accordingly concluded that Judge Motata was not guilty of gross misconduct, but rather guilty of the lesser offence of misconduct, and therefore rejected the JCT’s recommendation that the JSC should invoke the removal mechanism embodied in section 177(1)(a) of the Constitution. 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.

JSC decision regarding Motata was not unanimous

Of utmost importance for the purposes hereof is that the decision of the JSC was not unanimous. A minority concluded that Judge Motata’s conduct constituted gross misconduct. Before assessing the merits of the allegations against Judge Motata, the minority considered the applicable standards of conduct required of a judicial officer. Sources referred to include the Constitution; the Code of Judicial Conduct adopted in terms of section 12 of the JSC Act (the Code); international standards and conventions of judicial conduct; and jurisprudence of foreign; comparative jurisdictions regarding the removal of judges for gross misconduct. Applying these principles to facts before it, the minority found that Judge Motata’s conduct fell short of the required standards, and that he was guilty of misconduct. The minority then turned to the question of whether Judge Motata’s misconduct amounted to gross misconduct as contemplated under section 177(a) of the Constitution. The minority accordingly supported the JCT’s recommendation that the matter be referred to Parliament in order to invoke impeachment proceedings against Judge Motata in terms of section 177(1)(b) of the Constitution.

Freedom Under Law’s application to overturn Motata decision

Freedom Under Law (FUL) has now brought an application to overturn the majority decision holding that Judge Motata was not guilty of gross misconduct. In their application they note that the JSC, when fulfilling its mandate of protecting and promoting the essential features of the judiciary, must consider the standards of judicial conduct. In doing so, it must ask various questions. First, whether the judge in question has destroyed confidence in his or her ability properly to perform judicial functions. Second, whether his or her conduct is so inimical to that required of a judge that public confidence in his or her integrity or impartiality would be destroyed. Third, whether the judge has acted in such a manner so as to reveal him or herself unfit for the high office of judge.

According to FUL it is apparent that the decision of the majority of the JSC failed expressly to determine a standard of judicial conduct or even engage with this question beyond the bare bones provided by section 177(1)(a) of the Constitution.   The JSC therefore considered the conduct of Judge Motata against an impermissibly vague standard which, in the circumstances, amounts to nothing more than the personal opinions of those members of the JSC who endorsed the majority decision.

According to FUL Judge Motata has tarnished his integrity irreparably. His conduct is destructive of public confidence in his ability to perform judicial roles with the necessary standards of integrity and impartiality, particularly when it comes to race and gender. He is consequently unfit to hold judicial office. The retention of Judge Motata as a judge is inimical to the public perception of the integrity and impartiality of the judiciary as a whole.

In the review application launched at the Johannesburg High Court FUL raises two grounds for review. The first ground for review is the unlawful abuse of discretion and irrationality of the decision of the JSC. The second ground for review is an error of law or that the JSC misconstrued its powers.

FUL submits that in reaching the decision, the JSC misconstrued its powers and thus committed material errors of law. By purporting to revisit, and ultimately to reject factual findings made by the JCT, such as that Judge Motata was driving under the influence of alcohol and had tried to use his status as a judge to prevent the police officers from performing their duties, the JSC misconstrued its powers, arrogated powers for itself that it does not have under the JSC Act, and thereby committed an error of law in reaching the decision.

JSC’s decision regarding Motata is unconstitutional

By launching the review application FUL accordingly submits that Judge Motata’s conduct impinged on the independence and impartiality of the judiciary, constituted gross misconduct, and evidenced his incapacity to continue in judicial office. Judge Motata’s conduct warranted his removal in accordance with section 177(1)(a) of the Constitution. However, the decision by the JSC failed to hold Judge Motata accountable for his actions. Therefore, the decision by the JSC falls to be set aside as it is irrational, unconstitutional, and invalid.

The criticism of conduct proceedings Judges Matter has is borne out by this case, among others. It has taken the JSC approximately 12 years to decide in respect of the complaint(s) lodged with the JSC against Judge Motata and in its handling of the case it is evident that the JSC has not been able to manage these processes effectively. The review application lodged by FUL has good prospects of success, and the JSC clearly must attentively consider the criteria it uses to assess misconduct. A similar concern exists in respect of appointments and the JSC needs to be clear about the criteria it applied when seeking to recommend candidates for permanent appointment on the bench.

*Feature image courtesy of enca