EDITORIAL: Delays do not bode well for justice

It  is rare for courts to be so fed up with decision-makers that they simply bypass said decision-makers. Yet that is what happened last week, when the Supreme Court of Appeal (SCA) told the Judicial Service Commission (JSC) to send a gross misconduct finding about a judge to parliament to begin impeachment proceedings.

In 2007 Nkola Motata — a Gauteng High Court judge at the time — crashed his car and engaged in conduct the SCA said was “characterised by racism, sexism and vulgarity”. The SCA, in its majority ruling last week, said Motata had “lied under oath” and “conducted a dishonest defence”. After Motata was criminally convicted for driving under the influence in 2009, and again on appeal in 2010, the JSC received numerous complaints to have him removed as judge.

A tribunal appointed by the JSC to investigate Motata made its findings in 2018, more than a decade after the incident. It recommended that Motata be found guilty of gross misconduct, which would warrant stripping him of his lifetime benefits. Motata also retired from the bench in 2018.

However, the JSC decided to instead find Motata guilty of the lower charge of misconduct (not gross).

Freedom Under Law challenged this finding. A majority of the SCA last week agreed. “Motata’s conduct was egregious,” the SCA majority said. “For as long as he is entitled to be called ‘Judge Motata’, the judiciary continues to be stained in the eyes of the public.”

Part of the delay was due to Motata’s various challenges. The court noted that to avoid further delays, and that complainants and Motata had had opportunities to put forward argument over the years, the time had come to simply send the matter to parliament.

Only after a two-thirds majority vote in the National Assembly can a judge be impeached, according to the Constitution.

Parliament is now dealing with suspended Western Cape judge president John Hlophe’s possible impeachment for allegedly trying to influence the Constitutional Court.   

We should find it disheartening the second most powerful court in the land has to tell a judicial regulatory body it had failed miserably in its duties.

Yet, what should also be remembered is that the JSC that ruled on Motata is not the same one  we’ve been watching over the past two years. Comissioners have been replaced and new leadership has been established, with chief justice Raymond Zondo and deputy chief justice Mandisa Maya taking the helm. For that reason, it is unlikely that the JSC will appeal against this finding as Zondo, the current head of the JSC, can wash his hands of the JSC’s decisions. As we saw in its recent round of interviews, the JSC seems to be prioritising holding judges accountable — judges were grilled on delayed ruling and misunderstanding the law.

Should Motata appeal, however, this would temporarily scupper impeachment proceedings in parliament. However, he can appeal to the Constitutional Court, who seem more amenable to dismissing matters before they start should the court determine them meritless.

Motata, however, still has a chance to come out the victor in the National Assembly vote. Regardless, as the SCA said last week, “Further delay does not serve the interests of justice.”