Judgment was on Wednesday reserved in the North Gauteng High Court in Pretoria against an application by drink-driving Judge Nkola Motata to have numerous sections of the Judicial Service Act declared unconstitutional.
The 66-year-old judge has been on special leave with full pay and benefits since January 2007, after his Jaguar ran down the wall of a house in Johannesburg.
He was in 2009 convicted of drunk driving and fined R20 000. His subsequent appeal against his conviction was dismissed.
AfriForum and a senior Johannesburg advocate had laid complaints of racism and gross misconduct against Motata for his alleged remarks after the drunk driving incident.
He had allegedly said no boer would undermine him, and that this used to be the white man’s land, but no more.
Justice Minister Michael Masutha had earlier this month, in reply to questions by the Freedom Front Plus, said Motata had been paid almost R14 million between January 1, 2007 and the end of October.
But there was no provision that the judge had to pay back a portion of his salary if a Judicial Conduct Tribunal found him guilty of gross misconduct.
Motata on Wednesday applied to the high court for an order declaring several provisions of the amended Judicial Service Act unconstitutional. He contended that the judicial conduct committee and tribunal established, in terms of the Act, to investigate complaints against him with the view to remove him from office were unconstitutional.
His counsel, Bantubonke Tokota, argued that only the Judicial Service Commission (JSC) could make a finding if a judge suffered from an incapacity, was grossly incompetent or was guilty of gross misconduct.
But counsel for the justice minister, Anthea Platt, said it was not unconstitutional for a nonmember of the JSC to be a member of the tribunal – a fact-finding body – because it was still the JSC that made the decision