The Judicial Service Commission (JSC) has cleared Judge Nkola Motata of impeachable conduct, going against the recommendation of a judicial conduct tribunal.
Announcing the decision on Thursday evening, JSC member Dali Mpofu SC said the majority of the JSC had decided that, although Motata had committed misconduct, it was not gross misconduct, warranting impeachment. Instead the JSC ruled that Motata must pay a fine of over a million rand — one year’s salary — to the South African Judicial Education Institute.
Earlier, Motata had been found guilty of gross misconduct by a judicial conduct tribunal on two complaints: one laid by Afrikaaner lobby group AfriForum for allegations that he made racist utterances at the scene of his infamous car crash in 2007, when he — under the influence of alcohol — drove his car into the wall of a Hurlingham home.
The other complaint was that, during the course of his criminal trial, he relied on a defence that he knew to be untrue — which was alleged to be a breach of judicial ethics.
The tribunal — chaired by KwaZulu-Natal judge president Achmat Jappie — made its finding in April last year.
But in terms of the Constitution and the JSC Act, it is the JSC, not the tribunal, that must decide whether a judge’s conduct warrants impeachment. Unless the decision is taken to court on review, that will be the end of the matter.
In a four-page statement setting out the reasons for the decision, 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 Gerrit Pretorius SC, the complainant, asking him to lodge the complaint, the JSC said in the statement. The reason for this was that “the Afriforum complaint was seemingly ‘insufficient’ to secure a guilty finding”.
Smuts had not disclosed that he was the “originator or instigator” of the complaint, the JSC said.
“Advocate Smuts SC sat in and actually chaired the deliberations of the JSC, which resolved to refer the matter to the JCT [judicial conduct tribunal] … He had a clear obligation to disclose and recuse himself,” the statement read.
The conduct breached the legal principle that protected against bias or perceived bias, said the JSC. “The Pretorius complaint can accordingly not stand.”
However, the facts that led to his conviction still needed to be taken into account, said the majority, and there was also the second complaint by AfriForum of racist utterances.
The conduct which led to his criminal trial and conviction “amounts to misconduct,” said the statement. Specifically, the “racially loaded utterances made by Judge Motata were unbecoming of a judge, notwithstanding the majority’s acceptance that his 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.”
As a result he was found guilty of misconduct, but not gross misconduct.
What the tribunal found
The Motata JCT was the first ever tribunal established under the JSC Act. The statements specifically quoted in the tribunal’s terms of reference record Motata as having said: “No boer is going to undermine me … this used to be a white man’s land, even if they have more land … South Africa belongs to us. We are ruling South Africa.”
The tribunal found that he had committed gross misconduct and acted in a way “incompatible with or unbecoming of the holding of judicial office”.
“The office of a judge is a very respectable office. So, must be those who hold it. A Judge’s conduct, in and out of court, should not dishonour that high office. Impeccable moral and ethical standing is a crucial hallmark of such public office,” the tribunal’s report reads.
Even if Motata had been provoked — as the trial court had found — this did not justify his conduct, the tribunal said. “Restraint is an essential trait in the character of a judicial officer. His reaction far exceeded the provocation,” the tribunal noted.
On the second complaint, the tribunal agreed that he had knowingly conducted a defence that he knew “lacked integrity”.
During his criminal trial, Motata’s counsel had put it to a witness that Motata would say he was not drunk. The tribunal said that all the evidence put before the court, “which the judge had access to before he pleaded, must have made it clear that a denial of intoxication was against all prevailing evidence and could not be true”.
This is a developing story and will be updated with comment from all the parties.