JSC should find retired judge Motata guilty of gross misconduct, SCA hears

Retired judge Nkola Motata should be found guilty of gross misconduct after a drunk driving incident 15 years ago, the Supreme Court of Appeal (SCA) heard.

Motata was found guilty of ordinary misconduct by the Judicial Service Commission (JSC) and still receives lifetime benefits. But public advocacy group Freedom Under Law (FUL) said last week this should be set aside. The SCA is yet to hand down judgment.

The JSC found Motata guilty of misconduct in 2019. FUL took this on review to the high court but lost and then appealed to the SCA.

In 2007, Motata, under the influence of alcohol, according to the courts, drove his car into Richard Baird’s house in Johannesburg. Motata was charged and convicted of driving under the influence, which was upheld on appeal by the high court.

Complaints were then lodged with the JSC. The Catholic Commission and AfriForum took issue with Motata’s “racially loaded utterances” against Baird. Advocate Gerrit Pretorius, acting for himself, complained that Motata misled the court in his criminal trial by building his case on a “false denial” in saying he was not under the influence.  

A tribunal was appointed in 2013 to evaluate the evidence. In 2018, the tribunal found that Motata’s behaviour constituted gross misconduct and recommended to the JSC that he be removed from office and its lifetime benefits.

However, in 2019 the majority of the JSC rejected the tribunal’s conclusions. It found his conduct constituted only misconduct and fined him about R1m.

While the “racially loaded utterances” were “unbecoming of a judge”, the JSC was not satisfied they constituted gross misconduct. Pretorius’s complaint was dismissed entirely, given his relation to another lawyer who sat on the JSC at the time.  

FREEDOM UNDER LAW LOSES IN HIGH COURT

FUL argued in the high court that the JSC’s decision was irrational. But the high court disagreed and dismissed FUL’s review. FUL then appealed to the SCA.

Last week, FUL raised several grounds for review. First, it argued that the JSC dismissing Pretorius’s complaint on procedural grounds was unwarranted.

Second, FUL argued that the JSC’s finding about Motata’s “racist remarks” was not justified. The JSC did not deny that Motata made “racially loaded utterances ... unbecoming of a judge”. However, the JSC does not, according to FUL, outline why it deviated from the tribunal’s recommendation.

The JSC also did not deal with the concern AfriForum raised about Motata’s “dishonesty” in raising a defence “he knew to be untrue”, FUL argued. Instead, the JSC found his “proven intoxication” to be a mitigating factor.

FUL also argued that the JSC “failed to consider what constitutes the lesser offence of misconduct as opposed to gross misconduct”. FUL argued that there was no evidence before the court to draw the conclusion that the JSC considered the difference in standards.

FUL therefore sought a substitution of the high court’s dismissal and asked the SCA to find Motata guilty of gross misconduct. “As long as he is entitled to be called judge Motata, the judiciary is stained in the eyes of the public,” FUL argued.

JSC SAYS FUL’S APPEAL IS BAD IN LAW

The JSC, however, argued that it is the JSC, not a court, that determines the distinction between misconduct and gross misconduct. A court would be usurping the JSC’s power. The JSC “is not bound by the findings” of the tribunal, the JSC argued.

Since Motata has resigned, the JSC contended that “there is no evidence that he is likely to engage in misconduct in the near future”.  

In the end, “the very foundation of [FUL’s] appeal is bad in law and is unfounded on the facts”.

Commenting on the case, Mbkezeli Benjamin of judicial watchdog Judges Matter told Business Day: “Judges Matter is concerned about how long the Motata matter has dragged on, and the many years of litigation that has marked the life of this judicial misconduct complaint.

“Despite this, we would welcome the SCA’s guidance on the roles and powers of the JSC [and the tribunal], as it relates to what kind of actions would constitute gross misconduct that may be subject to impeachment.”

Judgment has been reserved.