Majority SCA judgment rules JSC must refer Judge Nkola Motata to Parliament for ‘gross misconduct’

• The Supreme Court of Appeal has ruled the Judicial Service Commission (JSC) was wrong to find retired judge Nkola Motata guilty of misconduct instead of gross misconduct.
• The SCA ruled the JSC must refer a guilty finding against Motata for gross misconduct to the National Assembly.
• It also ruled the JSC should reconsider the recommendation of the Judicial Conduct Tribunal, including other available material, afresh, ensuring reasons support every ruling made. 

For as long as retired judge Nkola Motata is entitled to be called “Judge Motata”, the judiciary continues to be stained in the eyes of the public, the Supreme Court of Appeal (SCA) said in its ruling on Thursday.

The SCA, by majority, proposed the case should be remitted to the Judicial Service Commission (JSC) for it to “submit the finding that Judge Motata is guilty of gross misconduct to the Speaker of the National Assembly”.

A dissenting judgment, which agreed with “the reasoning and findings of the majority of the SCA”, recommended that the matter be sent back to the JSC “for reconsideration”.

“The application is upheld with costs, including the costs of two counsel where so employed,” the court said in its order.

Freedom Under Law (FUL), a public interest organisation founded by retired judge Johann Kriegler, approached the SCA to rule Motata should be found guilty of gross misconduct instead of misconduct.

It was appealing a High Court judgment.

READ | Motata house crash victim fights back, plans to sue former judge

In 2009, the Gauteng High Court in Johannesburg convicted Motata of driving under the influence and sentenced him to a fine of R20 000 or 12 months’ imprisonment.

The case was referred to a tribunal, which found Motata’s conduct at the scene of a car crash in 2007 was racist and lacked integrity.

Motata crashed his car into the boundary wall of Richard Baird’s Hurlingham home in Johannesburg.

The tribunal’s report also found Motata’s conduct at the scene and the “remarks he made were racist and thus impinged on and were prejudicial to the impartiality and dignity of the courts”.

It found him guilty of gross misconduct and recommended to the JSC that he should be removed as a judge.

But the JSC found Motata guilty of misconduct and ordered him to pay a more than R1 million fine. 

In reaching its decision on Thursday, the SCA said the JSC largely overlooked many important findings of fact.

“The decision of the JSC of 10 October 2019 clearly applies the standard for gross misconduct. Moreover, the issue of whether or not racism is serious misconduct is clear.

“Racism is a breach of Section 9 of the Constitution, which prohibits discrimination based on race.

The judgment read:

The court said Motata’s conduct was “egregious” and his behaviour at the incident scene was “characterised by racism, sexism, and vulgarity”.

The court added the JSC clearly found Motata’s conduct to be racially loaded, but it lacked the element of “gross” because of two mitigatory factors – intoxication and provocation.

“Absent those factors, it is clear that the racist utterances by Judge Motata would have been considered to be gross.

“Like the JSC, the High Court failed to consider the impact of Judge Motata’s conduct on the public confidence in the independence, impartiality and integrity of the judiciary.

“Both failed to consider the impact on the public of him remaining ‘Judge Motata’ and continuing to receive the benefits of his pension as a judge, after he was found to have made racist statements and thereafter conducted a dishonest defence in his criminal trial and before the tribunal.

“The High Court should have enquired whether the JSC was entitled to simply disregard the tribunal’s factual findings in the manner that it did. It did not do so.

“Had the High Court undertaken that task, the conclusion would perhaps have been inevitable that no justifiable warrant existed for the JSC to have rejected the tribunal’s findings,” the judgment read.

READ | Judge Motata denies he made racist comments when he crashed his car

The court said Motata also failed to offer an apology for his conduct.

“Whether an apology would have been sufficient to restore public confidence need not detain us, because none was proffered by him.

“It appears that he failed even after finalisation of the criminal trial to appreciate that he had engaged in misconduct of a most serious kind.

“This reveals both his lack of insight and his lack of appreciation for his misconduct on the public confidence in the judiciary.

“The public watched him conduct a dishonest defence during his trial and on appeal. They watched him dishonestly accuse Mr Baird of using the k-word, only to thereafter withdraw the accusation.”

The SCA judgment said the public also had to watch Motata lie under oath to the tribunal about his level of intoxication, although a video of him slurring his words and stumbling went viral.

“His conduct is inimical to his office. For as long as he is entitled to be called ‘Judge Motata’, the judiciary continues to be stained in the eyes of the public.”

The court said a further delay in the case did not serve the interests of justice.

“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.

“A fair-minded and dispassionate observer is bound to conclude that Judge Motata cannot properly discharge his functions.

“There is no alternative measure to removal that would be sufficient to restore public confidence in the judiciary,” the court said.

Editor’s note: An earlier version of this story stated that Nkola Motata would face impeachment. The order only refers the matter to the National Assembly which will still decide whether to impeach Motata. We apologise for this error, which has since been rectified.