Unless there is serious political interference at the Judicial Service Commission, or retired Judge Nkola Motata decides to take the findings of a Judicial Tribunal that he was racist and guilty of gross misconduct on review, the next step would be for parliament to consider his removal, a legal expert said.
Dr Llewellyn Curlewis, a senior lecturer in criminal procedure at the University of Pretoria, said the Judicial Service Commission (JSC) must consider the tribunal’s findings.
If the JSC endorsed its conclusion that Motata should not be retained as a judge, the matter would then progress to parliament, because only parliament could fire a judge on a two-thirds majority, in terms of the constitution.
“If, however, the JSC decides not to endorse the finding of the tribunal, they will be left red-faced: why are they not endorsing a finding which they initiated?
“Unless there’s political intervention in that forum, the right thing to do would be to advance the matter to parliament, because that’s the right process to follow,” he said.
If this happens, Motata will become the first judge in SA’s history to be impeached and lose his retirement benefits.
Although Motata retired last year, he is currently receiving a full salary and other allowances, while on suspension since 2007.
He will continue to enjoy the same privileges for the rest of his life – unless he’s impeached.
Motata was in 2009 sentenced to R20 000 or 12 months’ imprisonment for crashing into the wall of a house in Hurlingham, Johannesburg, two years earlier, while under the influence of alcohol.
His subsequent appeal against his conviction was dismissed.
The Catholic Commission for Justice and Peace, as well as AfriForum, lodged complaints against him with the JSC for the racially charged insults he made at the scene of the accident.
A senior advocate also complained about the manner in which he conducted his defence in his criminal trial. He insisted that he was not drunk, despite evidence to the contrary.
The tribunal only started proceedings in January, after being delayed for years by Motata’s unsuccessful attempt to have the tribunal declared unconstitutional.
A possible review application against the ruling could delay the process further, but Curlewis said Motata would have to show there was some kind of irregularity in the proceedings, or that he had suffered substantial prejudice.
That would be difficult as there was a judge and a senior panellist involved.
Not ‘automatically a racist’
- As for the cases in which retired Judge Nkola Motata presided over a decade ago, legal expert Llewellyn Curlewis said anyone who felt that he been biased, or that anything was wrong with his conduct in the civil and criminal cases before him, should have taken their cases on review or on appeal to higher courts immediately.
- If they did not, their time frames for doing so have elapsed long since and could not be reversed now.
- “The mere fact that he was found guilty of racial misconduct on one specific incident, and even driving under the influence of alcohol, doesn’t suggest that he can automatically be classified as a racist altogether, forever and a day, since his birth. “That is ridiculous. The court must at some stage draw a line,” Curlewis said.
It’s political, says De Vos
- Pierrre de Vos, a senior law lecturer at the University of Cape Town, said in his blog Constitutionally Speaking the decision on whether judge Motata should be removed from office would ultimately depend on political, and not legal, considerations. Two-thirds of the members of the National Assembly would have to vote in support of his removal. If they did, Section 177 of the constitution provided that the president then had no choice but to remove him.
Also read: I was sober as a judge – Motata