Impeached Gauteng judge Nkola Motata has approached the Constitutional Court to set aside his impeachment, saying parliament did not have the “jurisdiction” to impeach him because the Judicial Service Commission (JSC) never found him guilty of gross misconduct.
Instead, this finding was made by the Supreme Court of Appeal (SCA), said Motata in his court papers. Without a finding by the JSC, the National Assembly had no jurisdiction to impeach him, he said.
Motata had initially been cleared of gross misconduct by the JSC in 2019. Instead, he was found to have committed serious, but not impeachable, misconduct and ordered to pay a fine. He paid the fine — of more than R1m.
But this JSC decision was set aside by the SCA in 2023. Instead of sending the decision back to the JSC for the commission to take it again, the SCA ordered that the JSC refer Motata to the National Assembly for his possible impeachment.
In his court papers, Motata took issue with the SCA stepping into the shoes of the JSC, instead of referring the decision back to the JSC to be taken again. He said the JSC was “specially designed to ensure that its decisions are taken by persons representing various areas of the profession and the society”.
Commissioners included judges, advocates, attorneys, a teacher of law and persons designated by the president, he said.
Its composition sought to “achieve a reasonably balanced assessment from the broader legal fraternity and the society at large before a judge is referred to parliament for impeachment”, said Motata.
On the other hand, the SCA’s majority decision represented “a perspective taken by three judges of appeal”, he said. “It does not in any way encompass the purpose and multidisciplinary range of cogitation intended to be achieved through the unique composition” of the JSC, he said.
Judges, being human, may, if given the power to decide on the fate of their colleagues, as happened in this case, be tempted to use this power to protect one of their own or, at worst, to settle scores
— Nkola Motata, impeached judge
Motata said the SCA's judgment violated the separation of powers. Allowing the SCA to "take over the function of such an important constitutional institution” as the JSC would be “a serious indictment to and a travesty of our constitution”.
He said the SCA majority judgment also undermined constitutional safeguards: “Judges, being human, may, if given the power to decide on the fate of their colleagues, as happened in this case, be tempted to use this power to protect one of their own or, at worst, to settle scores.”
In its judgment, the SCA considered whether to remit the decision back to the JSC. The majority said it was in as good a position to decide as the JSC was and the JSC had taken 13 years to reach a final decision.
“Should this court remit the matter to the JSC, there is every likelihood that any fresh decision by it will be reviewed, and the matter will again wind its long, slow journey through the courts. Further delay does not serve the interests of justice,” said the SCA. Two SCA justices dissented and would have sent the decision back to the JSC.
But Motata said the vote in the National Assembly to impeach him was based on a misrepresentation.
He said in its written recommendation the committee that considered his impeachment “deliberately gave an impression” to the house that the JSC had ratified the finding of gross misconduct by the SCA. “This assertion is not contained in the chief justice’s letter and/or the JSC’s report/minutes nor can it be read into them by any stretch of the imagination,” he said.
Then, during the oral presentation, committee chair Bulelani Magwanishe had stated that the SCA remitted the matter to the JSC, “which made the finding of gross misconduct”, he said.
MPs relied on these statements “and were induced thereby to vote in favour of the recommendations of the parliamentary committee”, he said. But the JSC had only done what it was instructed to do by the SCA, which was to refer the court’s finding to parliament
“In the circumstances, the resolution of the National Assembly is void, having been induced by a misrepresentation of fact.”
Motata said he had already been found guilty — of serious, non-impeachable conduct — by the JSC. He had already paid a penalty.
“I was punished by paying a hefty fine out of my pension payout. I may not be able to recover the sum ... yet I would still be removed from office as a punishment. The double-jeopardy rule was introduced to prevent such unjust eventuality.”
Motata did not participate in the SCA appeal by the JSC but has asked for direct access to the Constitutional Court.
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