15/08/2012 Judge Nkola Motata arrives at the Pretoria High court. Picture: Phill Magakoe

Pretoria - Controversial high court Judge Nkola Motata - who has been on special leave on full pay since being convicted of drunk driving - will have to wait to find out whether he can resume his duties and if misconduct investigations against him will be dropped.

The Pretoria High Court on Wednesday heard an application by Judge Motata, 64, for his special leave to be declared unlawful and for him to return immediately to his job.

Judge Motata appeared in good spirits during court proceedings.

Judge Jean Nepgen, member of the Eastern Cape division, was called in to hear the matter.

After hearing arguments from Judge Motata’s advocate and counter-applications by the justice minister, the Judicial Service Commission (JSC) and AfriForum, Judge Nepgen reserved judgment.

Judge Motata has been on special leave with full pay since September 2009 - costing the taxpayer millions for his salary and benefits - while fighting to clear his name and return to the Bench.

As a high court judge he will earn about R1.4 million this year. This is set to increase by 5.5 percent as President Jacob Zuma has accepted a recommendation to this effect by the Independent Commission for the Remuneration of Public Office Bearers.

The millions paid to Judge Motata in remuneration over the past three years exclude the benefits judges receive.

In essence, Judge Motata’s case is that Justice Minister Jeff Radebe has yet to table in Parliament a code of conduct for judges.

His counsel, Bantubonke Tokota, SC, argued that in the absence of such a code, no inquiry might be conducted by the JSC tribunal into any allegations of gross misconduct against him.

Tokota said it was not their argument that the JSC did not have the power to address matters regarding judges, but there must be a code of conduct in place to define what is meant by “gross misconduct”.

He argued that it was unfair to charge the judge with misconduct and for him to prepare his defence in the absence of guidelines. Judge Nepgen commented that gross incompetence or misconduct was a value finding.

“Are you saying that until there is a code of conduct in place a judge can do what he likes and that there is no definition for gross misconduct?” he asked.

Tokota said this was precisely his view, but the judge responded that “this can never be”.

The judge said if this was so, no judge could ever be impeached for misconduct.

“Does that mean that I cannot be charge with misconduct if I, for example, jumped up here and swore at you?” Judge Nepgen asked.

Tokota also argued that it was unfair that Judge Motata had misconduct charges hanging over his head since Afriforum and an advocate - Gert Pretorius - had asked the JSC to look into his fitness to be member of the Bench.

He said the delay in the proceedings was unfair to Judge Motata, as it could be years before the matter was resolved.

Judge Nepgen said he “may have sympathy” for Judge Motata in this regard, but he was being asked to decide only whether it was unfair to place him on special leave and not allow him to return to the Bench.

The charges of misconduct followed alleged racist comments Judge Motata made in 2007 after he crashed his car into the wall of a Joburg property, while driving under the influence of alcohol.

He was subsequently convicted of drunk driving and fined R20 000. He lost his appeal.

On the recommendation of then-deputy judge president Jerry Shongwe, Judge Motata was placed on leave with full pay until the JSC concluded a hearing into the allegations.

Ismail Jamie SC, for the JSC, said the tribunal due to preside over the misconduct inquiry was not yet in place as the rules pertaining to the tribunal had not yet been drawn up and submitted to Parliament.

The JSC was waiting for the outcome of the high court proceedings before it could set up the tribunal, Jamie said.

Once judgment had been delivered and if Judge Motata failed, the JSC would have to decide whether it could proceed with the inquiry without the rules in place.

“According to me it can proceed,” Jamie said.

Quintus Pelser, SC, for AfriForum, said this case was not to establish Judge Motata’s guilt.

AfriForum supported the arguments of the justice minister and the JSC that the inquiry should run its course.

This was to establish whether there was a place on the Bench for someone who held racist views, Pelser said. - Pretoria News