Durban – Judge Nkola Motata, who was convicted of drunk driving in 2009, has failed in his latest bid to have the judicial conduct committee and tribunal that was established to investigate him declared unconstitutional. In a judgement that was handed down by Judge Dhaya Pillay in the North Gauteng High Court in Pretoria on Tuesday, Dhaya dismissed Motata’s application with costs.
Motata had sought to have the establishment of the Judicial Conduct Committee (JCC) and the subsequent Judicial Conduct Tribunal declared unconstitutional.
They were formed after complaints were lodged by civic rights organisation Afriforum and an advocate – this was in terms of the country’s Judicial Services Commission Act. Motata was summoned to appear before the tribunal in June 2013, but the proceedings of the tribunal were postponed following Motata’s application.
Motata’s troubles arise from an incident in 2007 when he drove his Jaguar in an intoxicated state into the wall of a house in Johannesburg’s northern suburbs. He allegedly told Richard Baird, the owner of the house, that: “No boer is going to undermine me. This used to be the white man’s land, but it isn’t any more.”
Motata was convicted in 2009 and fined R20 000. His subsequent appeal in 2010 against his conviction also failed. He has been on special leave since April 2007 and it emerged last year October that Motata had been paid almost R14 million since being placed on special leave. Justice Minister Michael Masutha made the revelations in response to questions by the Freedom Front Plus.
It was in May 2011 that Afriforum and advocate G C Pretorius lodged their complaint with Judicial Services Commission (JSC). If the tribunal, the JCC and then JSC find against Motata, their recommendation to have him removed would be referred to the National Assembly. The JSC can impose another penalty other than impeachment.
President Jacob Zuma would be required to dismiss Motata if two thirds of the National Assembly vote in favour of his removal. A judge can only be removed if he is incapacitated, grossly incompetent or guilty of gross misconduct.
In her judgement, Pillay wrote: “Not once has the applicant (Motata) said that he is committed to accounting for his conduct that resulted in his conviction and sentence for driving a motor vehicle under the influence of alcohol”.
Pillay continued: “The seriousness of the complaint, the conviction and sentence being admitted facts, and the implications for the image and dignity of the judiciary, should leave the applicant in no doubt about his duty to account for his conduct. Why has he not done so?”
She noted that in his application that Motata had never said on any occasion that his application was made in ensuring that the rule of law was enforced. Dhaya said that Motata had also failed to show how the establishment of a tribunal would prejudice him.
She questioned his delay in challenging the establishment of the tribunal and the JCC. Dhaya further noted that for the 16 years, which Motata had been a Judge, only five had been as an active judge.
“The applicant (Motata) has been on special leave since 15 April 2007. There is no indication on the papers what conditions, if any, apply to his special leave," noted Pillay. "The probabilities are that his leave is with full pay for almost 10 years hence his disincentive to act expeditiously. After his fifteenth year of service he would have qualified for his tax-free gratuity amounting to double his prevailing annual salary. After age 65 he could retire on pension with the leave of the Minister.”
Pillay described Motata's failure to account for his actions as inappropriate and said he had not raised a genuine “constitutional dispute”. It was not immediately known if Motata would be appealing Pillay’s ruling.