22 June 2023
Illustration: Lisa Nelson
“Drunk” Judge Nkola Motata could become the first South African judge to be impeached.
The Supreme Court of Appeal on Thursday ruled that the Judicial Services Commission (JSC) was wrong when it found that he was only guilty of “misconduct” and not “gross misconduct”, for events 15 years ago when he drove drunk into a wall.
While Judge Motata was convicted criminally of the offence, the JSC, by majority rule, did not accept the recommendation of the Judicial Conduct Tribunal that he be impeached. Instead, it imposed a R1.5 million fine on him.
Judge Motata has since retired on full benefits.
But the SCA, by majority, has directed that the JSC now initiate impeachment proceedings against him.
The application for his impeachment was launched by Freedom Under Law.
The Johannesburg High Court, which first heard the application, took sides with the JSC.
But Judge Visvanthan Ponnan, writing for the majority in the SCA, said the court, like the JSC, had not got it right.
Judge Motato’s drunk driving incident took place in January 2007 when he attempted to execute a u-turn and reversed into a wall.
The owner of the property arrived on the scene, and took a video of Judge Motata’s drunken, racist tirade.
Judge Motata denied being drunk and claimed he had been “provoked”, but this was rejected at his criminal trial and at the hearing of the tribunal.
But when the issue came before the JSC for consideration, it had ignored entirely the impact Judge’s Motata’s racist comments had on the public’s confidence in the judiciary, Judge Ponnan, writing for the majority, said.
“Both [the JSC and the High Court] had failed to consider the impact on the public of him remaining ‘Judge Motata’ and continuing to receive the benefits of his pension as a judge after he was found to have made racist statements and thereafter conducted a dishonest defence in his criminal trial and before the Tribunal.
“It was of course open to Judge Motata to offer, at any time, an apology for his conduct. But, he did not.
“Whether an apology would have been sufficient to restore public confidence need not detain us, because none was proffered by him.
“It appears that he failed even after finalisation of the criminal trial to appreciate that he had engaged in misconduct of a most serious kind. This reveals both his lack of insight and his lack of appreciation for his misconduct on the public confidence in the judiciary.
“Judge Motata’s conduct was egregious … 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 [the owner of the property] 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,” Judge Ponnan said.
The court ordered that the JSC deal with the matter in terms of section 20(4) of the Judicial Services Commission Act “namely that the JSC must submit the finding that Judge Motala is guilty of gross misconduct to the Speaker of the National Assembly”.
The two dissenting judges agreed with the main findings of the court but said the issue should be remitted back to the JSC for reconsideration.