JSC setting a vexing precedent

It is unrealistic, perhaps even naïve, to think that South Africans can put the issue of race behind them in their day-to-day lives; there’s just too much baggage for that.

Yet, we had hoped that, in the judicial system, the influences of skin colour and culture would be firmly put aside when assessments are made or judgments passed. Sadly, the long drawn out case of drunken judge – which has just been finalised, after more than a decade – indicates that may not be the case.

Firstly, the Judicial Services Commission (JSC), in determining Motata’s fate, noted that one of its own members, Advocate Izak Smuts, as an alleged instigator of a complaint against Motata in terms of judicial rules, had chaired earlier deliberations over Motata and had not disclosed his involvement or recused himself. Smuts is white and Motata black.

Was there bias there, conscious or unconscious?

More disturbing, though, is the decision by the JSC that Motata was guilty only of “misconduct” and not “gross misconduct” because he had used racially inflammatory language after driving his car into a Johannesburg man’s wall. That man was white.

Motata claimed his outburst was in reaction to being call the “k-word” by the homeowner. The man, however, denies that claim emphatically and no evidence has been produced that he did use the word.

Despite that lack of evidence, the JSC found, as a fact, that Motata had been provoked by the homeowner and, consequently convicted the drunken judge of the lesser transgression.

Does this mean that unsupported claims can pass for evidence in our courts? Does it mean that the word of a black judge, who conducted himself poorly, is accepted over the word of a white man?

We worry that this JSC judgment sets a disturbing precedent.

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