JSC slated for protecting infamous 'drunk judge' Motata instead of the judiciary

The Supreme Court of Appeal (SCA) has lambasted the Judicial Service Commission (JSC) for protecting the personal interests of retired judge Nkola Motata instead of prioritising preserving the public’s confidence in the judiciary.

Sixteen years after Motata yelled racist slurs while intoxicated after crashing his car into the wall of a house in Johannesburg, the SCA found that the JSC’s process to assess his misconduct was flawed.

This after an appeal by Freedom Under Law (FUL) which contended Motata’s behaviour constituted gross misconduct and he should have been removed from office.

While the Judicial Conduct Tribunal (JCT) issued a report to the JSC stating Motata committed gross misconduct, the JSC refused to accept the recommendation. It decided Motata's action at the time of the crash amounted to misconduct, not gross misconduct, and did not warrant his removal from the judiciary. Instead it fined him R1.1m, which was to be paid to the South African Judicial Education Institute. The JSC's decision meant Motata, who retired in 2017 after being on special leave since January 2007, was allowed to keep all benefits, including a salary for life.

The SCA’s majority judgment on Thursday proposed the matter be returned to the JSC for it to submit the finding that Motata is guilty of gross misconduct to the speaker of the National Assembly.

Judge Visvanathan Ponnan, with two judges concurring, found the majority decision by the JSC showed no regard for the “damning factual findings” of the trial court and the tribunal, which found Motata guilty of driving under the influence and verbally attacking the owner of the home he had crashed into. Instead, the report by the JSC ignored the affect of Motata’s racial comments on the public’s confidence in the judiciary, he said.

“The point ignored is the utterances, which evidence an apparent bias, would result in Motata being substantially disabled from performing his judicial function, because on any reckoning, racist utterances are fundamentally irreconcilable with the standards expected of a judicial officer.”

The judgment also found the JSC’s decision shows no regard was taken for the “damning factual findings” of the trial court and the tribunal, which found Motata guilty of misconduct and drunk driving.

The JSC dismissed AfriForum’s formal complaint of racial utterances by Motata but for weak reasons, the court found. In addition, the commission also denied complaints lodged by a member of the Pretoria Bar, which Ponnan found to be “shirking its duty”.

“Motata’s conduct was egregious,” Ponnan said. “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 lie under oath to the tribunal about his level of intoxication, as the video of him slurring his words and stumbling went viral. For as long as he is entitled to be called ‘judge Motata’, the judiciary continues to be stained in the eyes of the public.”

This “can have grave repercussions for the administration of justice”.

“The JSC manifestly blurred the distinction between the protection of the institution in the interests of the public at large and the protection of the personal interests of the judge.”

A minority judgment by SCA judge Baratang Mocumie and one concurring, however, said instead of the JSC being instructed to refer the matter to parliamentary proceedings, it should be told to reconsider its own decision.

“The JSC is best advised to study this judgment (both majority and minority judgments), reflect on it, establish processes in line with this judgment and properly consider the report and recommendation of the JCT,” she said.

Mocumie also questioned the R1.1m fine imposed on Motata. Calling it “an innovation on the part of the JSC”, Mocumie said the commission could not give reasons for such sanction.

The JSC Act provides for a transgressing judge to attend a specific training and counselling course or be subjected to other appropriate corrective measures.

“The commission may make a finding that [Motata] attends such a course or be subjected to such a measure. This would have been the appropriate measure because Motata would have, through an intensive programme, come to terms with the magnitude of his transgressions. He would have taken steps to correct the perception he created about the judiciary, including tendering a public apology and many other measures,” Mocumie said.

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