Pretoria - Freedom Under Law has received the green light to proceed with its legal challenge to have retired Judge Nkola Motata impeached after he was convicted of driving under the influence of alcohol nearly 14 years ago.
The judge president of the Gauteng Division of the High Court, Dunstan Mlambo, however, rejected the organisation’s submissions that it did not have to ask for permission in terms of the Superior Courts Act if it wanted to institute action against a judge who was already retired.
Judge Mlambo said the law was in place to protect both judges and retired judges from frivolous litigation. He pointed out that retired judges in many cases still performed judicial duties. He said each application must be decided on a case-by-case basis, and in this instance, he concluded that the organisation could bring review proceedings in which Judge Motata was cited as one of the applicants.
The applicant is set on approaching the Gauteng High Court, Pretoria in which division Judge Motata served before his retirement, to review and set aside the decision by the Judicial Service Commission.
The latter dismissed the Judicial Conduct Tribunal’s recommendation in October 2019 that Judge Motata’s conduct while he was driving under the influence of alcohol amounted to gross misconduct, which would have resulted in his impeachment.
The commission found that he was rather guilty of the offence of misconduct.
It slapped him with a R1.1 million fine, which he had to pay to the South African Judicial Education Institute.
As it planned on taking this on review, Freedom Under Law wrote a letter to Judge Mlambo in which they asked his permission to cite Judge Motata as a party to the application, although the commission was the main respondent.
Judge Motata’s lawyers responded that he had adhered to the sanction meted out to him by the commission and added that he would be severely prejudiced by the institution of the review proceedings.
They also said that he had to bear the costs of various litigious processes that took place from the inception of the matter until its conclusion by the commission, which occurred after his retirement.
“Further litigation would also be detrimental to his health,” the lawyers said.
Judge Mlambo, however, called on the organisation to launch a formal application to obtain permission, to which Judge Motata’s legal team said it would abide by his decision.
After hearing the application, Judge Mlambo concluded that even though Judge Motata is retired, the Superior Courts Act did require consent from the head of a court before even a retired judge is cited in legal proceedings, if good cause was shown to
give the nod in this regard.
“This is a case where consent must be granted. The respondent (Judge Motata) has retired and has not been called to act or participate in judicial functions since retiring.
“Prior to his retirement in February 2017, the respondent was on special leave for almost a decade.
“The respondent’s involvement in the review proceedings will in no way impede the functioning of the High Court in which he formerly served. Nor will his inclusion in the review proceedings undermine the
process.”
He added that consent is warranted in the circumstances of this matter
and that the objective of the review proceedings is therefore aimed at asserting the proper standard by which judges’ misconduct should be dealt with by the commission.
He concluded that it was up to Judge Motata to defend the pending review or not.
It was estimated in 2016 that he had already cost the taxpayer about R16m in salaries and other costs.
Pretoria News