What Judge Motata did wrong

In January 2018, the Judicial Tribunal, led by Judge President Jappie, enquiring into the complaint laid against Judge Motata resulted in an extremely serious finding. It found that sec 177(1)(a) of the Constitution should be invoked, which, if done, would result in the Judge being impeached.

What did Judge Motata do to result in such a finding?

Many of us would assume that being convicted of drunk driving was in fact the issue, and that Judge Motata should be impeached on that basis. In fact, no. The Tribunal says that a judge being convicted of drunk driving is not in and of itself enough to trigger a finding of gross misconduct. Nor does the tribunal address itself to a general finding of gross misconduct.

Instead the tribunal focuses on the two complaints laid at the JSC against Judge Motata. One is about how he defended himself in his criminal trial, and the second is a charge of racism.

In conducting a trial, the lawyer representing the accused has to present a defence which the accused instructs him or her to. In this case, Judge Motata told his lawyer to present the case that he was not drunk. The tribunal concluded that the judge had conducted a defence which he knew to lack integrity.

On the second complaint of racism, the tribunal held that the Judge’s conduct and remarks at the scene were racist, and thus impinge on and prejudice the impartiality and dignity of our courts. The comments the tribunal focused on his comment “this used to be a white man’s land….South Africa belongs to us …this is our world…not the world of the boers…even if they have more land/bodies….” Racist conduct, holds the tribunal, constitutes gross misconduct in a Judge. The tribunal questions as to what the attitude of the judge would be towards an ordinary person, ‘let alone a person Afrikaner descent.’

The Tribunal does not engage with the questions as to whether a black person can be described as racist. Racism when used in the sociological literature is generally premised on the assertion that racism is the result of two additive components – prejudice and power. In that analysis, a black person, who is the subject of structural racism, cannot be a racist themselves.

The finding of the tribunal will now go back to the JSC, who must decide on the next steps to have the judge impeached. The National Assembly must vote for impeachment by a two thirds majority. It will be some time before this matter is concluded.

UPDATE: AUGUST 2023 | SPEAKER OF PARLIAMENT CONFIRMS RECEIVING JUDGE MOTATA IMPEACHMENT LETTER FROM CHIEF JUSTICE

On Friday (25 August 2023) the Speaker of the National Assembly confirmed receiving a letter from the the Chief Justice with the Judicial Service Commission’s recommendation that Gauteng High Court Judge Nkola Motata be impeached and removed from office.

The Speaker’s confirmation triggers the beginning of the impeachment process in Parliament.

The Speaker confirmed that the Chief Justice’s letter will be referred to the National Assembly’s Justice and Correctional Services Committee for further processing.

The Justice Committee will consider the Chief Justices’ letter, the JSC’s recommendation against Motata, including the report of the Judicial Conduct Tribunal which found him guilty of gross misconduct.

The Committee will then submit a report to the National Assembly with a recommendation of whether Judge Motata should be removed from office.

That report will be debated by members of parliament in the National Assembly, and then a vote will be taken. For the removal of a judge from office, there needs to be a two-thirds majority vote (which is 267 members of the NA).

Read the full statement from the Speaker:
Read more about the full impeachment process for Judge Motata:
Read: The Report of the Judicial Conduct Tribunal Re Judge Motata.

ADDITIONAL RESOURCES:
Listen: Aubrey Masango spoke to The Coordinator of The Judges Matter Project, Alison Tilley on the Judicial Tribunal’s findings that retired Judge Nkola Motata was ‘racist’ and ‘lacked integrity’

Listen: Alison Tilley discusses the Tribunal decision on Power FM: Drunk judge’ Motata faces impeachment over racism‚ lack of integrity.

RELATED READING:
– Media Statement: Judges Matter welcomes the Supreme Court of Appeal’s ruling concerning Judge Motata
– Freedom Under Law versus Motata
– The JSC’s misdealings against Judge Motata
– Explained: How a judge gets impeached