It has been 16 years since judge Nkola Motata crashed his gold Jaguar into the boundary wall of Richard Baird’s home in Hurlingham, Johannesburg, and then hurled racial insults at the homeowner.
Despite the passage of time — two years shy of a child’s schooling career — there is still no finality on Motata’s fate as to whether he is fit to be a judge.
And that’s because from the time he crashed his car — when two JMPD officers were unable to arrest Motata and had to call for back up, to being handcuffed in his vehicle then lifted out of the vehicle before he could be taken to a facility have a blood sample tested — the judge fought tooth and nail against accountability.
It was at this time he was recorded hurling the racist abuse.
Two days after the incident, Motata was given leave of absence by then Gauteng judge president Bernard Ngoepe. He never worked as a judge again but continues to earn his salary to this day.
In 2009, Motata was convicted of driving under the influence of liquor. The high court confirmed his conviction a year later and found it “extremely improbable that any high court judge in his or her sober senses would use the kind of foul language used by [Motata]” in public.
It was these racist remarks that led to complaints being laid against Motata and have taken over 10 years to resolve. This latest judgment might bring this drama to an end.
The matter seemed to reach its conclusion in 2018 when the judicial conduct tribunal found Motata guilty of gross misconduct and recommended that section 177(1)(a) of the constitution should be invoked.
This section states that a judge may be removed from office if the JSC finds that the judge suffers from an incapacity‚ is grossly incompetent or is guilty of gross misconduct.
In its finding, the tribunal said Motata’s conduct at the scene of his motor accident and the remarks he made were racist and thus were prejudicial to the impartiality and dignity of the courts.
They found allowing him to retain his status would reduce the public confidence in the court.
That Motata has continued to draw a salary after his 2009 conviction is rubbing salt in the wound of the overburdened taxpayer.
Astonishingly though, despite these strong findings, the JSC rejected its tribunal recommendation a year later and the majority of eight against six — with one abstention — in the JSC found Motata’s conduct did not warrant his removal from office.
Instead, the JSC said Motata should pay a fine of R1.1m to the South African Judicial Education Institute over a period not more than 24 months.
This was supposed to be the end of the matter, but Freedom Under Law was unhappy with this decision and in 2020 brought review proceedings. It sought to set aside the JSC’s decision and to substitute that decision with a finding that Motata was guilty of gross misconduct.
In April last year, the high court dismissed the review application, which led the FUL to apply for leave to appeal.
The SCA found Motata’s conduct was of such gravity as to warrant a finding that he should be removed from office.
It said there was no alternative measure to removal that would be sufficient to restore public confidence in the judiciary.
The appellate court said this meant the conclusion reached by the JSC to “reject the tribunal’s recommendation” and that Motata’s “conduct did not constitute gross misconduct” must be rejected.
The court ordered the matter be remitted to the JSC to submit the finding to the speaker of the National Assembly.
Barring further appeals, the National Assembly will be in a position to decide if Motata is impeached.
This ping-pong legal saga has had its casualties. Baird, whom Motata labelled a racist, is reported to have lost his properties as a result of this.
In addition, that Motata has continued to draw a salary after his 2009 conviction is rubbing salt in the wound of the overburdened taxpayer.
This is not the only time a case against a judge has taken extraordinarily long to finalise.
The JSC finding against Western Cape judge president John Hlophe is another shocking example of injustice.
In 2021, the JSC decided by a majority that Hlophe was guilty of gross misconduct for a 2008 complaint by all the then justices of the Constitutional Court who had complained he had sought to influence the outcome of cases, then pending before their court, related to corruption charges against former president Jacob Zuma.
Despite this finding, court applications mean the National Assembly has not had a chance to vote on his impeachment.
We rely on the courts to maintain the rule of law and ensure due process swiftly and without fear of impartiality, and so when judges act as if they are above the law, we are doomed.
For the sake of continued public trust in the judiciary, it is vital the National Assembly to make the right call and stop those who are drunk with power.
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