Driving under the influence of liquor is a rather serious matter – especially if you are so drunk (after drinking one cup of “tea” too many) that you reverse your car through someone’s garden wall. Even the Judicial Services Commission (JSC) must surely agree that it constitutes a breach of the ethics guidelines for judges when a judge is convicted of drunken driving. This means that Judge Nkola Motata of the North Gauteng High Court must be in serious trouble.
Motata was found guilty today of drunken driving by the Johannesburg Magistrate’s Court. “I find that you were under the influence of an intoxicating liquor at the time of a crash into a wall,” said Magistrate Desmond Nair. He said audio recordings taken at the scene of the accident brought to mind the saying “if a picture told a thousand words, the audio recordings [taken at the time of his arrest] told ten thousand words”.
On the recording Motata says: “I know the law. Ja, you mustn’t look at me as a black man. Let me go before the law. F*** him. F*** him. Anybody who insults me, I say f*** you….. No boer is going to undermine me, f*** him. He mustn’t insult me, f*** him, I don’t care,” Motata was heard saying.
This come as no surprise for anyone who saw the pictures taken of Motata at the scene of the crime. In those pictures Motata appears about as sober as Ozzie Osborne or Charles Bukowski after a three day party binge, staring drunkenly into the middle distance.
Whether a conviction for drunken driving alone would, in the eyes of the JSC, constitute gross misconduct for which a judge could be impeached is not clear. Some cynics would say that given the way in which the JSC has several time now turned a blind eye to Judge President John Hlophe’s various acts of misconduct, Judge Motata has little to worry about.
I happen to disagree. Perhaps if Judge Motata had pleaded guilty after his arrest and had apologised for his terrible mistake, we would all have been able to forgive him and the JSC would not have worried too much about the embarrassment caused by a judge being convicted of drunken driving and continuing to sit as a judge and hearing appeals of other drunken driving convictions.
There are several reasons why it would not be that easy for the JSC to let Motata off the hook.
First, his defence was that he did not drive under the influence of liquor at all. He claimed only to have had a cup of tea with a friend before he drove home and crashed his car through someone else’s garden wall. He also claimed this whole case was part of a racist conspiracy. This defence has now been rejected by the court, which means that a court has now confirmed that judge Motata had vehemently denied something that was true (usually – if not amongst a certain Judge President and his friends – this is called lying). An officer of the court should not mislead the court and should not act in such a deeply dishonest manner and if he or she does, surely it MUST constitute gross misconduct worthy of impeachment?
Second, the court found that the recordings made at the scene of the arrest were all accurate, which means that when Judge Motata was drunk he uttered the most scurrilous and bigoted racial slurs. The court has thus found that Motata has displayed an attitude which is in complete conflict with the values enshrined in our Constitution, a Constitution which Motata is supposed to uphold as a judge.
Third, Motata was found guilty of drunken driving in a court of law. That means the Magistrate was of the opinion that the state had proven its case beyond reasonable doubt. Unlike the JSC who had decided that where there were two versions of a particular event it would be IMPOSSIBLE to decide what happened, the Magistrates Court actually did its job and weighed the evidence and decided Motata’s defence was a fabrication and the state had proven its case. How could the JSC possibly wiggle out of such a finding by a court of law?
Well, stranger things have happened, but if this judgment is confirmed on appeal and the JSC refuses to act against Motata, I would lose the last little bit of respect I might have had for that august body.
If one cup of tea can make me ‘vloek’ like that….EISH!!!!!!!!!!!!
Prof,
Do you know whether the “learned” judge is appealing the conviction…. I would be surprised if he doesn’t. The Stalingrad strategy seems to work for all such in a pickle…..
In this animal farm where double standard rule applies, surely his fate lies in winning the appeal. If his appeal fails, my guess is that the horrible (oops, is it honourable) judges in the JSC might take this as an opportunity to redeem themselves. And the possibility of this happening is not far-fetched when one considers the fact that there was no Justice Alliance for Judge Motata and neither were there protesters outside the court in his favour.
In the whole process, one can only praise the fact that it was done de jure, unlike in the Hlophe case, but the outcome is of course debatable. While I have not been following this case, Mdu’s comparison of Dr Death’s case and Motata’s raises my emotions in that, Dr Death’s case was thrown out largely on the basis of contradiction of evidence by witnesses. And how this important aspect of law carries more wait in one case and less in the other raises more questions. It is the same as what I have observed in the past whereby one’s being a father of little children raised in mitigation was enough to set a white man free while the same was not enough a mitigation to set a black man free. But of course there are other aspects courts consider in making their judgments.
You can say that again Mayimele.
Mayimele, I too did not really follow the case. But surely one question that we ought to ask ourselves is: did the contradiction have the result that the State was unable to establish one of the elements of the offense? If indeed there were contradictions, but they did not render the State incapable of establishing the requisites for the offence, then I have to ask: what’s the problem?
Pierre,leave the JSC out of this Motata was drunk and we all know that.Don’t use use behaviour to settle your other scores.
Pierre,leave the JSC out of this Motata was drunk and we all know that.Don’t abuse his behaviour to settle your other scores.
Well I guess we can’t say as sober as a judge any more.
I pledge my allegiance to the constitution, for the same, I ask all the right thinking South Africans whether black or white to defend the JSC one of our constitutional institutions and to defend the constitution itself against attack from one unconstitutional expert called Pierrer de Vos. Please de Vos do not call me counter revolutionary. The constitution is under attack!
Mdu et Mayimele – Contradictions between the accounts of two or more witnesses do not per se show that either of them is lying; and, contradictions only play a role where they are relevant and non-trivial. Moreover, contradictions only become relevant to the outcome of the case where the contradicting witness is believed above the other. When the contradicting witness is however disbelieved, then it is another ball game alltogether. Now, the Metro Police witnesses, I have heard some of them testify in another high profile case once where drunken driving was also involved; and, I must say, they were clueless when it came to establishing whether a person is inebriated, when blood samples were to be taken and by whom. In any event, did Motata even take the stand? Or did he rely merely on the fanciful argumets of Counsel? And, why did he not use the same Counsel until the end? Also remember, he lost the first round in the High Court, where two ‘imported’ judges in his review application held that Desmond nair was correct in allowing the video material into evidence. Judicial officers indeed look at more than contradictions. And, in this case, I think Desmond nair was spot-on. He would indeed be a fool to use his own agenda to convict a judge, knowing quite well that in all probability his decision would be appealed/reveiwed and, if successful, the judges would be looking at all his future judgments through magnifying glasses. I think his judgment was well considered and brave.
As far as the comparrison to Dr Death’s case is concerned, there is no comparrison to be made. The charges and the witnesses were all different. In any event, I do not agree that Harzenberg J was correct in his treatment of the evidence – he was definitely not correct in his treatment of the objections to the charges at the outset, so he could have been wrong in his weighing of the evidence – and if you listened to the evidence, as I did most of the time, one should agree that he was wrong in acquitting on all the counts. However, the state has no appeal against an acquittal, only against a wrong finding on a question of law. That is why Harzenberg’s (possibly wrong) acquitaal could not be appealed, and if it could, the outcome might have been different. Furthermore, as far as the dropped charges are concerned, I believe the state could have charged him anew with ‘war crimes’ rather than conspiracy to murder. The NPA however decided to drop the prosecution after the CC’s decision.
Motata is in a different position altogether. He can appeal the magistrates finding of fact. But, in his case, I do not think his chances of success are too good.
Pierre
“Third, Motata was found guilty of drunken driving in a court of law.”
That’s pretty impressive, wouldn’t you say. He must have been helluva drunk to get his car into the courthouse. Definitely a case for impeachment.
I renew my demand that charges against Judge Motata be dropped. It is clear that the racist liberals, having failed in their efforts to lynch the JP, are turning their attention to a new target. It is no coincidence that the Magistate’s decsion was handed down so soon after the Judge Hlophe was honoured by the JSC.
Judge Motata is a world renowned scholar of jurisprudence, and a hero of the struggle.
And what an irony: the same liberals who once applauded the exoneration of their hero, Dr Death, now avidly pursue a distinguished judge obviously framed by the opponents of transformation.
Actually, shouldn’t a South African judge found guilty of drunken driving be immampoered rather than impeached?
Sarah – If the mampoer was made of peaches, as it should have, I think impeachment is the correct term. Nevertheless – I like the comparrison.
Mikhail – on the comparison of the Dr Death matter – go look see my comment above. And, with Malema’s conception of a ‘minority’ that you reminded me of in the other post below, I thought all along that he was referring to something very private, something one does not like to speak about when a woman asks for a taxi fee the following morning. (No, I’m not being sexist, just juggling with his line of reasoning currently before the equality court. And sure as hell I hope he, not the Youth League, is slammed a heavy order of compensation for callously disregarding women’s rights in such a way.)
You see – even magistrates can be convicted of drunken driving – so why not judges? http://www.saflii.org/za/cases/ZAECGHC/2009/56.html
FROM AFP:
Lesbian rape case exposes SA as grimly macho – by Justine Gerardy
Delmas – Songs for Eudy Simelane filter into the courtroom where dozens wait, with flasks of coffee and endless patience, for the men accused of the lesbian footballer’s gang-rape and murder.
Meanwhile, far from the narrow wooden benches in the sterile courtroom, South Africans have whipped up an outpouring of near-hysterical patriotism for returning gender row champion Caster Semenya.
The parallels are striking: Simelane and Semenya are top sportswomen from humble backgrounds with muscular “butch” builds that defy social norms. Both have been touted as gender cause celebres.
But gold medallist Semenya has been feted as a national hero preyed upon by global bullies who ordered a probe to determine if she is really a woman, after a dazzling 800m win at the World Athletics Championships in Berlin last month.
Former national women’s soccer midfielder Simelane is seen as a target of growing anti-lesbian violence. Her supporters mourn her death in songs from outside the courtroom, but the attack hasn’t sparked similar national outrage.
“There’s a certain nationalistic enthusiasm informing the response to Caster Semenya. People have rallied around because it appears as an insult and attack from the outside,” said Lisa Vetten of the Tshwaranang Legal Advocacy Centre.
“But the minute that the attacks come from inside and are directed toward effeminate men and masculine women, we’re not going to say and do terribly much.”
South Africa’s constitution was the first in the world to outlaw discrimination on the basis of sexual orientation, and the nation now prides itself as a symbol of freedom.
But the continent’s largest economy also juggles deep rooted apartheid-era and traditional conservatisms that its sweeping liberal laws have failed to penetrate.
The result is often grimly macho: attacks on women who wear mini-skirts or trousers, abductions of rural teenage girls for marriage, and a staggering one in four men admitting to rape in a recent study.
Simelane, 29, was a trainee professional referee when her body was found in an open field in Kwa Thema township, 40 kilometres southeast of Johannesburg, the day after South Africa marked the 14th “Freedom Day” since the fall of apartheid.
Activists believe she was singled out by four attackers for being a lesbian as part of rising attacks, that can include forced sex to “cure” homosexuality, with at least 31 killings in a decade.
“You must link this to corrective rape,” Phumi Mtetwa of the Lesbian and Gay Equality Project told AFP.
The phenomenon, Mtetwa explains, is guided by the idea that: “By raping you and giving you a penis, I will prove that I will correct you so that you understand your role as a woman.”
The courts have ruled that Simelane’s rape and killing was not linked to her sexuality, but the trial unfolding in the mining town of Delmas has exposed some uncomfortable contradictions about gender in South Africa.
Gays are still often characterised as “un-African”, and even South African President Jacob Zuma was forced to apologise for calling gay marriage “a disgrace” in 2006, before taking office.
Last year, a five-year study by the Human Sciences Research Council found that more than 80 percent of South Africans felt that sex between two men or two women was “always wrong”.
For Simelane’s mother Mally, a former domestic worker who lives in a humble four-roomed home, the hatred is difficult to understand.
“Eudy liked to be a lesbian since she was small. I accepted her,” she told AFP. “I want to tell the other mothers that these are my children. They are not creatures, they are human beings. They are our children of South Africa today.”
While Semenya’s sex and not her sexuality is under the spotlight, some analysts question the depth of public support for the 18-year-old dubbed “our golden girl”.
“Now the questions are whether the same public will rally around that, whatever the sex results are,” Mtetwa said. – AFP
Pierre, If I come across an article like the one you posted above, should it not be posted in the Seminar Room?
Kevin, by PdV settling the score are you referring to his disapproval of the way in which the JSC handled the Hlophe case, particularly its bizarre findings? Are in the similar vein suggesting his disapproval is sour grape and alleging that his reference to JSC in this post is an attempt to settle this (JSC) score (against his wish to have Hlophe impeached) by rubbishing it?
If this is correct, are you therefore of the view that the JSC’s handling of the Hlophe case and its findings were correct? Without deviating too much from the current topic about Motata it will be interesting to know my learned Adv Maluga feels so strong about this view. I might have missed your inputs in this topic last week if at all the learned Adv has made inputs in this regard. I will try to go back and see what you might have said.
Mayimele,please see my input on that matter in Pierre’s thread ‘Hlophe what happens now’ I think it was two days ago.
Your post from AFP on Eudy Simelane is indeed tragic and descriptive of the hypocrisy so prevalent in South Africa. Unfortunately we are not a first world country which has struggled for long years under the umbrella of Democracy to find the answers we so desperately need. Its not just the small percentage of our population which is privileged through wealth, but also we suffer a small percentage privileged with education and an understanding of the world, justice, and may I say fairness.
Your comments in an earlier blog indicated that we need to consider and devise a new strategy, something I believe needs to come about through collective consideration and input.
I hope you give this more thought, as I’m sure you are.
Leigh & Anonymouse, I cannot debate details in this one for I am in the weaker position. Like I have said earlier I have not been following this case. But as for your question Leigh, generally I do not see any problem when the state proves its case beyond any reasonable doubt to secure conviction even in the face of contradictory evidence as Anonymouse has correctly explained how this principle applies to which I agree. The fact that the accused is Motata who happens to be a judge is immaterial to me because I wish and advocate for the country with the justice system in which we are all faceless before the law irrespective of colour, sex, gender and socio-economic status in the community.
The point I am trying to make above, of course under disclaimer that (a) I have not been following this case and (b) admission that courts by the way consider many issues and aspects in making their judgments over and above a mere contradiction of evidence is that, on a lighter note though, it is mind boggling to find these aspects (contradictory evidence and one accused having little children) in particular being elevated above all other legal aspects in one case where this could not have been the case just to get someone off the hook while in another case the same is not done. This refers mostly to the pre-1994 period but we still witness similar practices in our democratic justice system today as what had happened with Dr Death, JZ and recently Hlophe’s case (although it did don go to court). You can also add the circumstance around the conviction of Mzwakhe Mbuli where the state’s case was riddled with contradictions yet the court found otherwise. It is these indifferent court findings based on not-so-convincing reasons that I refer to which raises a lot of questions. While I know how the law opertates and its ultimate goal which is justice but not necessarily fairness, and the fact that this happened within the realm of law, I still cannot agree with the findings. But in the whole I do take into consideration Anonymouse’ correct explanation and the fact that legal questions may be the same but with different circumstances and issues to be considered in which cases these may or may not be important in making a decision; or they may be important but carry much less weight in one case than in the other.
In a normal stable democracy where our judicial institutions are not subject to the whims and fancy’s of the ruling party, this is cut and dried – he should be impeached. The court (yes Mikhail, I know the court is racist, elitist, colonial and counter-revolutionary, but courts still decide the law of the land, as you and your fellow JZ supporters reminded us when the charges against him were dropped) has found that the chap was hammered when driving (not great, but as PdV pointed out, forgiveable in some circumstances), and then to boot, he lied outright about it under oath.
Additionally, he is clearly a racist (unless calling a white man a boer in a derogatory sense is acceptable when it is a black man doing the name calling), which is a rather frightening thought – I wouldn’t want to come up against a black man in his court, because apparently he doesn’t think very highly of white people.
However, this is South Africa – I don’t foresee too much happening to him – we’ll get a Justice for Motata alliance bleating about Western values and laws again, and he’ll probably be put on paid suspension for 3 years and then finally get reinstated quietly.
I hope I’m wrong.
Kevin, your logic (as with your view on the Hlophe matter) escapes me. Are you suggesting the JSC would have no role to play in determining whether Motata should be impeached? If not, why would the JSC not be relevant to this issue?
Big Slipper you’re being a bit presumptuous.There are those of us who agree with the JSC’s decision on Hlophe who however do not condone Motata’s behaviour.There are stupid people of all colours and likewise drunk drivers of all colours and no you are wrong that there will be a Justice for Motata Alliance bleating about Western values.Its common cause that Motata was drunk.The question is this gross misconduct,the type that can get him removed,probably not.There are lawyers of all colours who have been caught driving drunk,its stupid and idiotic behaviour and I will never defend it under any circumstances.I do however have a problem with the likes of you hijacking a tragic case to score points against so-called black views and the JSC.That is opportunistic and cheap.Motata was drunk and yes you’re right he probably will be suspended.You have all lost your sense of humanity because of Hlophe and other matters.Would you personally think you are beyond redemption in life if you were convicted of drunk driving?
Has South Africa not thought about ‘Suspension Without Pay’, as a deterrent. Innocent before proven guilty is important, but why should suspension be a reward. Gawd, I need a holiday, please suspend me. I mean, R57k a month. I know Pre-schools which run on less than that.
Pierre,I’m sensing from your last paragraph of your post that you carried your grudge against the JSC’s finding on Hlophe into this matter commending the magistrate and denigrating the JSC.This is a drunk driving case with no political machinations.The JSC of course will consider it and make a finding on it and I would personally recommend that Motata be suspended because it could be anyone behaving in a such a stupid manner.Judges as I’ve always maintained are human.So my point is leave the lump you still have over Hlophe behind in this matter.
Since Canada is all in the SA news lately, perhaps I should say that when you are suspended in Canada, it is without pay. You have the right to argue before labour arbitration, and if you the employee win, then most often the order includes, if you are to be reinstated, lost pay awarded. Much better system, don’t you think? It even speeds up the whole process.
Let do a poll. Just to test the opinons of the esteemed Constitutionally speaking readers.
Judge Motata will be impeached – yes / no
Its a hard one, but I say
no
What say you?
Summary
no 1
yes 0
Kameraad, its a sad no.
I think that Kevin’s far too pleased that the JSc has failed in its duty to do its job. This doesn’t shock me as he didn’t want the whole adversarial approach anyway. It should be abundantly clear that where a man makes us change our expressions (“as sober as a judge”) he should be punished… It also seems to show that one is not fit and proper for the office he holds. He has also show great diregard for the values of non-racialism in the Constitution. But, who cares about the Constitution nowadays, we have govt tenders.
A resignation by the honourable justice would not disallow him from using his legal knowledge in some form or other.
Hlophe’s matter is a tragic one bacsuae it is AFTER Zuma change the composition of the JSC that we got this finding. Why this is relevant is the way in which further drama has unfolded. 1st it was Zuma going beyond the bounds of the law, now Hlophe – the should learn to practice some self-restraint.
Prof, I wish you luck with trying to convince people that any lesbian woman (or gay man) is worth the nation’s support – other than Semenya. It seems Malema believes himself a champion of women’s after talking a whole lotta nonsense regarding Semenya.
Prof: please note:
←” Can Judicial Independence Survive Transformation? – A public lecture delivered by Judge Johann Kriegler at the Wits School of Law”…
is all messed up and almost impossible to read. Please notify your tech.
Sirjay, i thought it was just me who had that problem.
Kevin, like Mayimele, I am not clear on the basis for your defense of the JSC’s decision in the JP’s matter.
I looked at the other thread, and could find no answer from you as to two basic questions:
1. What is the basis, or authority, or doctrine, of deciding that the JP need not be cross-examined because it would be “naive” to think he would change his account?
2. Is there any authority for your claim that the presumption of innocence applies in the admin/discip0linary setting?
Looking forward to your answer.
It is most disappointing to see Prof Malunga implying that Judge Motata was “stupid,” and asserting that, unlike in the Hlophe matter, there has been no conspiracy.
Has he have been brainwashed by those Wits liberals, or seduced by their sophistry, or even bent by their bigotry?
Prof Malunga: Please understand that Motata J is a victim of MOTATAPHOBIA — just as much as the JP was a near victim 0f HLOPHEPHOBIA!
I must say that I thought the JSC borrowed Kevin’s suggested (on TV a week or so before I think) defence practically word for word – which is ‘n pluimpie in jou pet for Kevin.
Nothing will happen to him. NOTHING.
Kevin, with respect, your suggestion is not legally tenable. If it is not in your opinion gross misconduct then there can be no question of suspending judge Motata. Section 177(3) of the Constitution states that the President, on the advice of the Judicial Service Commission, may suspend a judge who is the subject of an impeachment inquiry based inter alia on a prima facie case of gross misconduct. At the moment the JSC does not have the power to suspend a judge (or recommend suspension) in any other situation.
Pierre you are quite wrong when you say driving under the influence of liquor is a rather serious matter.
It’s only when you get caught that it becomes quite serious.
Pierre,I’m a law and society advocate(while you strike me as an advocate of formal legalism).I believe that there is often a difference between law in action and law in the books.Motata is already under some form of ‘suspension’/enforced absence from work notwithstanding Section 177(3).With hindsight a further ‘suspension’ might not subject him to anything that he’s unused to.So indeed you’ve correctly identified a potential loophole in the law but by looking at Section 177 you went too far because it deals with removal of judges and I certainly do not think Motata’s behaviour(while embarassing) warrants his removal from the bench.This is really about judicial decorum,ethics and dignity.The Judicial Service Commission Amendment Bill upon implementation, if passed will probably better deal with Motata type scenarios.If Pierre de Vos waved his buttocks at John Hlophe in a drunken stupor and Sello Alcock happened to find and hopefully publish that footage we would all be outraged(perhaps amused) and UCT may very well ask him to take a break but would it write him off from society and academia?Probably not.Having said that it is my belief that a mutual agreement/suspension will have to be agreed upon by the JSC/Minister Radebe and Motata J.Its obviously untenable for him to go to work immediately but the ball is really in Motata J’s court.Contrite behaviour will make this go away eventually.Further stubbornness can only aggravate it.So my point is that in the absence of appropriate punitive measures currently this will have to be a law in action scenario rather than one for law in the books.Simply put the JSC and the minister will have to work out a dignified solution to this which obviously means Motata staying away from the bench for a while.
Michael Osborne,I have not chickened out of your various challenges.I haven’t been on this blog in a while.
Mikhail,I’m glad that you have noticed that I do not subscribe to a herd mentality(which so many liberals seem to do).Each scenario is viewed on its merits.Don’t expect me to defend Motata because he is black.If he was drunk he was drunk and its not the Wits liberals .I have a mind of my own which I will die with.I am 300% behind the JSC decision on Hlophe.The Motata case is different.
Peter,thanks for observing my correct prophecy on the JSC outcome and reasoning on Hlophe.
@Kevin Sifiso Malunga
Go to sleep!
Kevin Malunga,
I hear you, broer.
But I have the following problems with Motata
• He decided to fight the drunken charges in a court of law, with the aim of defeating the ends of justice. Why did he not do like the rest us (yes, I was arrested for driving under the influence of alcohol many rains ago) and pay an admission of guilt fine maybe surreptitiously?
• His language on those recordings, especially “no boer is going to undermine me” is revealing. Don’t you think this kind of language and behaviour ought to raise the eyebrows of the JSC?
kameraad:
I vote No.
Kevin, with respect, it would clarify a great deal if you would answer Michael’s questions – I for one would appreciate your respones.
I really don’t follow you Kevin (Adv. Malunga). If you are drunk, as a judge, I believe it warrants more serious action than if you’re an academic. Not alllegal academics have been admitted as either advocates or attorneys and they do not have to be regarded as fit and proper persons. I would believe that the standards that judges have to live up to, in public, are higher than those of mere mortals. We should also be mindful of the racial slurs made by Motata J, those should certainly warrant some or other punishment. Judges are there to apply the law and to uphold the Constitution, where one acts in contrast then one should resign and save himself or herself – as well as the Judiciary – further embarrassment.
On the note of judicial ethics, I believe that there are some white judges who do make racial slurs and drink excessively, in the comfort and privacy of their own homes. There is no media proof of this and it doesn’t harm the image if its in private. Its wrong but we can’t do much about it. We should, however, do something about it when its brought to the public’s attention. It also seems that judicial ethics set even higher standards than legal ethics so I cannot accept your position as one worth defending.
I would like to express my sympathies for the Langa family. Mrs Langa passed away very recently and I wish that Langa CJ (and his family) can find some strength and some peace so he can deal with his grief.
Sirjay, the problem with the Kriegler speech is now sorted out. Thanks for alerting me.
Nkululeko, I second your offer of sympathy to the Langa family.
Kevin, actually the legislation you refer to HAS been passed by Parliament but it has not yet come into effect. Obviously the position of an ordinary citizen and a judge is and should be different. Your “solution” would be for Motata to stay away from work for a while on full salary (which he has done since the incident) as his salary cannot be docked at present. That would amount to no punishment at all. If Motata had been caught and had confessed and apologised to the nation (don’t people learn from that master of the apology, President Jacob Zuma?), my humanity would have kicked in and I would have said he should not be impeached. Problem is, he denied being drunk, said he only had tea and then conducted a defence premised on being innocent and did not take the stand. This was not a “mistake” (which I concede driving under the influence could be – who of us with a driver’s license have not driven when over the legal limit?) but a deliberate strategy to try and wiggle out of a drunken driving charge and evade the law, the very law he is duty bound to uphold and enforce. This strategy demonstrated a shocking lack of judgment and exposes the judge as a liar and seems to me (but I guess the JSC will apply not logic, reason, ethical principles or law and might see it otherwise) to constitute gross misconduct. This, in my view, does not make me vengeful and devoid of humanity, just someone saddled with common sense, ethical principles, logic and an understanding of law.
Kameraad Mhambi – My stem in tipiese Arikaans: “Ja,nee.”
Kevin Sifiso Malunga
“I certainly do not think Motata’s behaviour(while embarassing) warrants his removal from the bench.This is really about judicial decorum,ethics and dignity”
I think we jumping the gun here, wait for the sentencing on the 9th, If Motata gets a prison sentence he will be removed from the bench.
The JSC has the power to refer this matter to parlament to have him removed based on the guilty verdict as it stands to prove unfit, there are no loop holes here, this is clear cut. However I feel the JSC will not have the politcal appetite for this – giving the drum beat for transformation.
Whats even worse is the court found Motata racial slurs ..well…racist.
Its extremely embarrassing and it will be further embarrassing and damaging to the judiciary having a convected drunk racist driver sitting on the bench.
Leigh, well said Nkululeko and Professor: my condolences also to the Langa family.
I say all this fuss about Judge Motata is hypocritical nonsense.
Say a white judge had had a little too much too drink, crashed his car through the fence, and used racist slurs at the scene of the accident. I bet there would be no talk about “discipline” or “impeachment.” Instead, white liberals would call for “understanding,” and demand that we acknowledge that he had been involved in “training” of black lawyers.
Chris, I think your analysis pretty much goes to the heart of it: it could very well reflect badly on the judiciary to Motata J preside given (a) the conviction (b) that he actually defended against the charges instead of pleading guilty as one might have expected of a judge and (c) the racial slurs which he uttered. As to point (c) I think the key question is: would a custodian of constitutional values really have that sort of thing to say? I cannot see how one whose office demands that he be one of the constitution’s keepers could talk like that.
Apologies, forgot to make this point:
To accuse the respected Judge of “racism” is pure idiocy.
As Pierre has so often pointed out, black people are incapable of racism.
Sne, you have been so quiet for a long time now. Could you be on sabbatical leave? Your cool head reasoning and objective judgment is highly missed. PdV and Kevin Maluga’s legal mansions are in blaze over the Motata case and your intervention would be highly appreciated.
Mikhail Dworkin Fassbinder:
You not really helping much, please get with the times. Your theories are extremely out dated and out of touch
I believe this is Motata’s first DUI incident, I have a feeling his sentencing will be counciling some sort of alcohol-education program. If he successfully completes it, the charges – driving under the influence – will be dismissed and a public apology. Ill be honest that I would feel comfortable with. I cant see Motata getting a prison sentence for this its a first offence, lets be real here.
However if people feel strongly about empeaching Motata it should be based on the findings of racism.
A perfict example that fits close to Motata’s case is Judge E. Curtissa R. Cofield
who was arrested for DUI and racial slurs – lol get this a black judge calling a black police officer a “negro washington” “nigger trooper”
and she wasnt removed from the bench for that
It’s funny how Pierre, Chris Mcdee, Leigh, et al who coincidentally happens to be white, amd Me, Kevin and Skhokho et al who also coincidentally happen to be black tend to disagree with the other block, and then people talk of objectivity!
This is why it’s best to avoid having intoxicating tea before driving. http://www.health24.com/Woman/Drinking_smoking_and_drugs/711-3568-3569,25658.asp
Judge Motata’s behavior failed the first typical test listed as to how intoxication affects one’s driving ability – a failure or inability to judge the distance of a stationary or moving object – in this case, a (white) perimiter wall around one’s garden, which is a stationary object that is clearly visible in normal circumstances.
Mdu, if you are suggesting that the differences of opinion about topics such as the JSC majority decision and the question of what ought to happen to Motata J can be ascribed to race only, then I disagree. I think many of the people who have ventured opinions on this blog about the subject matter in question have there reasons which are divorced from race – although I shall concede that the pattern here could give one the impression that race is the cause of the division if one were to opt for a fairly superficial inspection thereof.
I do have a question for you though: do you think it is possible that some people doubt the JSC majority not because its decision favoured a black judge, but rather because it was a poor decision which, given the circumstances, has given rise to reasonable suspicion?
Chris – “I believe this is Motata’s first DUI incident, I have a feeling his sentencing will be counciling some sort of alcohol-education program. If he successfully completes it, the charges – driving under the influence – will be dismissed and a public apology. Ill be honest that I would feel comfortable with. I cant see Motata getting a prison sentence for this its a first offence, lets be real here.”
While I agree, the alcohol-education programme should include a lesson or two in how to distinguish tea that is served “met eish” and the beverage that made Ceylon (now Sri Lanka) famous.
I have to agree with Pierre on the 2 judgments on Hlophe and Motata Indica
You comparing a Lamborghini to an Uno.
Will the judgment on Motata was made public the judgement on Hlophe was made private.
The public investigation into Hlophe was complete wndow dressing as they knew the media would play into there hands about the investigation which left them window to make the judgement in private.
The jsc completely failed in public cooperation and actually went against its own guidlines and ethics in making judgments compared to a judgement being made by a court. The contrast smacks of competance
I would push for an investigation into the conduct of the JSC as it is not fillfulling its role as an aiding body in disciplinary procedures.
Mdu
Looks like the one obsessed with race is you. How do you know what race Chris is? He’s American. His name tells you nothing about his colour. You’ve just jumped to conclusions bec of his views. Likewise, any of the bloggers here can assume net IDs that reveal nothing about their real identity. Your real name could be Chris van Tonder and mine Thandi.
@ Chris: Excuse me, my theories are not, as you claim, “out of date.” On the contrary, I have recently had all my theories refurbished and amplified at the London School of Economic Theory.
@ Mdu: I agree that there appears to be an unhealthy racial polarisation. But what about my case? Being of joint Slovenian/Ibo descent, I am 1000% behind Judge Motata. Pierre, Leigh, Chris etc. need to understand one simple thing: Had a white judge crashed his car and hurled racial slurs, there is NO WAY that me, you and other black contributors would have made a big fuss and called for his impeachment.
What is the thinking around the question of anyone who pleads innocence and is subsequently found guilty is by implication guilty of perjury?
The law seems to turn a blind eye to it. It never happens that someone sentenced to a jail term for murder, for example, is also sentenced for perjury because of his protestations of innocence before the court. Or does it?
Is this a kind of legal compromise to protect the right of anyone to put up a defense? Almost a sort of parliamentary privilege – while you are defending yourself, you are allowed to say anything without fear of being prosecuted for lying?
Does this principle hold in the appointment and impeachment of judges? I would imagine that Judge Motata’s conviction may very well be held against him when his position as judge is evaluated. But if his defense in court against that conviction is held against him in future, won’t it sort of undermine the right to an unbridled defense, if such a right exists at all?
Maybe THIS would solve the problem of drunken driving for Judge Motata? http://www.dispatch.co.za/article.aspx?id=342165
Pierre De Vos says:
September 3, 2009 at 10:44 am
Yes Prof, but then the horse should not have had too much (fermented) barley-corn before being used as mode of tpt.
Mikhail Dworkin Fassbinder says:
September 3, 2009 at 10:21 am
@ Chris: Excuse me, my theories are not, as you claim, “out of date.” On the contrary, I have recently had all my theories refurbished and amplified at the London School of Economic Theory.
when was that back in the 1800s?
“Had a white judge crashed his car and hurled racial slurs, there is NO WAY that me, you and other black contributors would have made a big fuss and called for his impeachment.”
You wanna look at the states what happens to white judges who are convicted of DUI’s?
See thats the problem we talking legal law not economic’s. I think you on the wrong forum to be honest with you
Whether the judge is a two headed bug from district 9 the facts is the judge was out of order and found guilty, stop side stepping the real issue at hand with infections of out dated racism and deal with the actual issue on what to do with a judge who is found guilty of a criminal act? have you got an answer? or do you need to go back to london?
@Barrie
hey welcome to the forum,
“What is the thinking around the question of anyone who pleads innocence and is subsequently found guilty is by implication guilty of perjury?”
The presumption of innocence is a conclusion drawn by the law in favor of the citizen, by virtue whereof, when brought to trial upon a criminal charge, he must be acquitted, unless he is proven to be guilty.
Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.
This sole right protects the defendant from perjury
Oh, the demon tea …
A new twist for Hlophe
http://www.iol.co.za/index.php?set_id=1&click_id=15&art_id=vn20090903033210514C943055
Well said Adv Malunga. I agee with your points on both Motata and Hlophe.
I like this ‘Freedom Under The Law’. It seems to be a sober organization.
It matters not that their work is going to be cut out by the Zuma-Hlophe supporting judiciary; the point is that those untenable decisions like the Mpshe-Zuma and JSC-Hlophe will be exposed for what they really are.
By the way, Mdu, I am also Black – ngingumzulu phaqa.
Barrie, nice to make your acquaintance. I am going to confine my response to the part of your post that appears to question whether it may undermine the right of an accused who happens to be a judge to present a defence if an unsuccessful attempt in this regard could weigh against him later.
An accused person has the right to lead and challenge evidence. This entitlement necessarily embraces the view that the accused has the right to (a) seek to undermine the State’s case and (b) seek to establish a defence.
As far as I know, a guilty plea by the accused can conceivably weigh in mitigation. That is, the court may be persuaded to impose a more lenient sanction where the accused confesses to liability. If that is true, then why should we not countenance the view that the dishonest conduct of a defence could potentially weigh against the convicted party at the sentencing stage?
At the heart of it,I think that one fairly tenable position could present as follows: dishonest conduct of a defence should, in appropriate circumstances, weigh against a convicted party at the sentencing stage. It would not undermine the relevant fair trial right of an accused who sought to make out a defence for which there existed something of an honest foundation, but which ultimately did not convince the court to rule in the defence’s favour.
If some sort of prejudicial consequence were to follow at the sentencing stage on the basis of untruthful conduct of a defence, well that might even help the administration of justice insofar as it may discourage some people from fabricating defences.
I think that the position is even clearer as regards judges and whether the conduct of their defences against criminal charges ought to (a) bear upon their chances at appointment to higher judicial offices or (b) serve as grounds for possible impeachment. That is, judges are supposed to observe fairly onerous standards of conduct. So if a judge conducts a dishonest defence – and presumably the tea drinking story fits that bill – well then the conduct of the defence should, in my view, militate against the judge.
Equally, a courageous and honourable plea of guilt – perhaps even coupling that guilty plea with undertaking, at a relevant stage of the proceeding, to undergo some sort of meaningful treatment – ought to weigh in the judge’s favour.
Tony, I cannot be bothered whether you are Zulu or what, I just think you’re obssessed with the States and are lost!
I just think this Freedom under the Law. is going to elevate Hlophe’s profile even more, let them assist the Honourable one in his cause to be CJ,even the ANC must really see Hlophe is the man with such passionate haters most of whom happen to be white, it’s no coincidence, there is something about Hlophe which make mostly white people to detest him and mostly blacc people, like the BLA to love him!
@barrie
Just one last thing, if Motata or Hlophe were found to being lying under oath, an investigation can take place and an indictment for perjury and obstruction of justice will be layed and if that did happen they are entitled to the presumption of innocence unless and until such time as they are proven guilty beyond a reasonable doubt of perjury
This is why I and Tony seem to enjoy the group called ‘Freedom Under The Law’ as they are pushing for an investigation into the Hlophe “investigation” because as it stands now someone is laying either Hlophe or the cc judges.
I’m sorry, Chris, but I have to agree 117% with everything that Mikhail has said to date on this forum. The guy is clearly a genius. It must be really difficult for someone of his racial mix to fit into the racially polarised society here. I myself find it difficult. I got so pissed off during the elections when the press repeatedly ignored the fact that I am partially of Mongolian descent as well as having Inuit blood coursing through my veins. All they could go on about was Barack and his mixed ancestry. And why? Just because he ended up with a dark skin whereas despite all my mix I ended up white (pace Schadenfreude).
Mdu says:
I actually wonder if you really do think before you talk
“Tony, I cannot be bothered whether you are Zulu or what, I just think you’re obssessed with the States and are lost!”
Not a very african thing to say now is it?
Then another stupid give away
“it’s no coincidence, there is something about Hlophe which make mostly white people to detest him and mostly blacc people, like the BLA to love him!”
BLA LOVES HIM??? well duh we know that, thats why the JSC is full of BLA members no wonder Hlophe got off free……can you say BIASED or corrupted??.
Honestly Mdu simply breath takingly stupid
Sarah Palin
lol I hear you, Alaska always gets the bottom end of the stick, im sorry, well for a mixed up bread you got one fit body. Sarah Palin is hot! I said it I admit it. What u doing this weekend?
It’s high time that justice is served: Motata’s conviction is a fair one. Often, the very people (regardless of race) who are supposed to uphold justice, feel they are above the law and act like this accordingly. So, in the absence of wanting to “racialise” this issue), the magistrate’s decision is correct, given the objective facts. The fact that Motata is in fact black is completely irrelevant. The nature and content of his behaviour go to the root of them being absolutely no example to anyone sitting on the bench. On the contrary, precisely this kind of behaviour brings the judiciary into disrepute and scar the faith in law and justice. Let us assume that Motata was not found guilty and he was faced with a case in which he had to judge on whether X, under the very same conditions, was guilty or not. Would Motata have convicted X (and on what basis) or would he have let X gone free (and on what basis too)? If he had convicted X – this would then have been the highest form of judicial hypocrisy because how can a man, who himself who drank under precisely the same conditions, now convict someone else for the same deeds. This is clearly tantamount to a disgrace in the eyes of law and justice? Let us assume Motata had let X gone free, and let us assume that it may have been because Motata “identified” with X’s situation – such decision would have lacked all form of objectivity and fairness – it having been a similar disgrace in the interest of justice. In most other civilised law systems, any person with such disgraceful behaviour would have been/would be expelled anyway. Why should SA judges be any different?
Mdu, with respect, I think you have been incredibly unfair towards Tony. You have effectively implied that Tony cannot possibly have any reasonable grounds for doubting Hlophe’s integrity and that any misgivings which he might entertain about the JP can be explained away by labelling him a sell out who is ‘lost’.
You will have noticed by now that defences of Hlophe – apart from (a)closley reasoned views such as Mzo’s which go more to advocating general fairness rather than defending particular individuals and (b), intriguing expositions such as Mikhails – are typically premised on two fronts regardless of what the content of the criticims of Hlophe happen to be? That is, if you are white and you criticise the JP, you are automatically a racist. And if you are black and do so, then you have forgotten where you come from.
Would you consider whether there are other explanations? Perhaps ones that concern how Hlophe has conducted himself in the past and also what has happened in order to see his position safeguarded?
Mayimele said: September 3, 2009 at 9:19 am
Thanks bro. I am just reading and like it that way for now.
Sarah Palin
Dear, you seem to know a lot about our country. Last time I checked you did not even know about Panama Canal which is located at the southern most part of South America (continent not south of the USA). Should we compliment the Prof on this score?
It seems to me that the racist conspiracy defence will soon become a plausible defence in South African law. I cannot help to feel that this is starting to get out of hand. Alot of the blacks in South Africa should brush the chips of their shoulders and start manning the hell up to their mistakes. Blaming everything on racism is so last season. No judge , no matter what colour , is fit for the bench if he doesnt have respect for the law, ie driving drunk and is a racist ( racial slurs). This man cannot hand down judgment even remotely objectively. If its transformation that is the problem, then I propose they replace Motata with black judge that values the principles enshrined in our constitution.
Ps let me take a wild quess, the guy whose garden wall Motata drove into is actually the racist because he was pissed of at a drunk person who drove into his garden wall.
Leigh said: September 3, 2009 at 12:19 pm
Leigh I think you raise an interesting but at the same time problematic point here. I agree with you that judges should be held to a higher standard of conduct than ordinary citizens. However, section 9(1) of the Constitution guarantees equality before the law. Insofar as such a higher standard of conduct might impinge upon the defence a judge charged with a crime should ethically be allowed to raise, how do you think this can be squared with section 9(1)? Judges are after all entitled to the same rights as you or I would be when conducting their defences. I know that you specifically deal with the idea of a dishonest defence, but can we say that because the court rejected Motata’s version of the facts, his defence was therefore necessarily dishonest?
I can’t say that I have an answer to this contradiction but would appreciate your thoughts on this.
Leigh, I have to agree with your analysis of Mikhails and Mzo’s arguments, they indeed seem to be fair and well reasoned with due care at impartiality. But in so far as I am seen to be stipid by the moron et idiotic Mcdee, I think the same of him, for I know he is also biased.
As for Tony, I steadfastly hold to my views,just listen “Tony in Virginia”- he’s clearly obsessed with the USA and he is bumbling his ignorance away from that far away country and has lost touch with SA’n reality.
Leigh, Hlophe has in my view conducted himself honourably especially by standing up to the racists in Cape Town, mush as Prof said Nair conducted himself honourably in convicting a Judge, look at the repercissions for Hlophe for having dared calling a spade a spade!
Chris, that is real cool of you to say so and also to ask about my weekend plans. I always read your comments first cos I’m a patriot at heart and I reckon you’re the dude. But unless you’re in Orania this weekend and don’t mind sharing me with Blikkies Moerdyk, I’m afraid I’ll have to turn down your offer of a drink (if that is what it was).
Sne, I do know a lot more about SA than the United Emirate of Panama. But there’s a good reason for that. When I applied for political asylum here I knew I would be asked lots of difficult questions about your country, so I did lots and lots of research. When I searched the web I found some excellent sources of information: Hayibo.com was particularly useful to me and also Boerseun’s blog.
But you’re right, the prof must definitely take some of the blame for my knowledge of SA .
I also asked this amazingly knowledgable guy I met in Canada called Brandon Hunter and some of the South African doctors living in Alaska. Then when I came here I was lucky enough to be able to learn from such intellectual giants as Lindelani (you might remember how, before John and I lost to Obama, I struck up a bit of a friendship with him on this blog) and Julius Malema. Julius was particularly patient with me when explaining the more complex issues in SA’s history – he said it was because I’m a woman and he has always held my sex in great regard.
Mdu, I said Mikhail’s views are intriguing – not well reasoned. Actually I think Mikhail’s contributions are insightful. And if I may appropriate more of your attention, I would suggest that you and I appreciate Mikhail’s posts for different reasons.
As for your analysis of Tony, yours is certainly is one way to look at it. Another is that even though he is far from the country of his origin, he still cares enough about it to keep abreast of our domestic affairs. Some may conclude that this suggests deep affinity for this country.
Hlophe’s racism report does not really seem to serve as a basis upon which to offer him praise. The allegations he made did not, as far as I am aware, stick. And I have yet to hear anything to suggest that the matter died down under dubious circumstances.
Further, I would hesitate to equate Hlophe with Nair. The allegations reflected in Hlophe’s racism report are merely that: allegations. Nair on the other hand made a finding on the basis of allegations proved beyond a reasonable doubt – quite distinguishable from Hlophe who it seems believes that even though he is a judge, he need not concern himself with actual evidence. I trust you have not forgotten that Moseneke DCJ is still waiting for proof of the alleged conspiracy against Hlophe to which the former was a supposedly a party.
Chris – “Just one last thing, if Motata or Hlophe were found to being lying under oath, an investigation can take place and an indictment for perjury and obstruction of justice will be layed and if that did happen they are entitled to the presumption of innocence unless and until such time as they are proven guilty beyond a reasonable doubt of perjury.”
In South Africa, an accused pesron that testifies, and is caught out at lying under oath, can never be prosecuted for perjury. It has never happened and it will probably never happen. It will however count heavily against him because, he will in all probability be convicted and will receive a heavier penalty.
As far as Motata’s case is concerned, he never testified under oath in order to rebut the (highly incriminating) case that the state presented against him. That was one of the reasons advanced by Magistrate Desmond Nair as to why he was convinced that the state had succeeded in proving its case beyond reasonable doubt. In South Africa: While an accused person has a right to remain silent and not to testify in his own defence, an adverse inference will invariably be drawn from his failure to provide evidence to rebut a highly incriminating case presented by the prosecution. Such an inference is a matter of logic since, in such a case, there is no evidence against which the incriminating evidence can be tested and, for that reason, such evidence will almost invariably be accepted as correct. There are a number recent SCA and CC decisions that recognize this approach even in the new constitutional dispensation.
Mdu – As for your continually playing the racism card where you run out of legal arguments (or do not have any) to support your view: Ulibambe Lingashoni!
Michael Osborne September 2, 2009 at 21:16 pm
Kevin and I do not share the same view on JSC’s finding on Hlophe. He is on the affirmative while I am on the negative. My argument that JSC could have proceeded with the case and held it in public is not to get Hlophe impeached but rather for justice do be done. And this has got nothing to do with whether or not Hlophe is likely to change his account on the allegations. It has got a lot to do with this path being in the interests of justice which is one of the provisions to be observed in the constitution, and that this could have helped in restoring the credibility of our justice system particularly under the new administration which has been tarnished largely by the JZ and Hlophe camps to date; and the opposite is correct.
I am not sure if I understand the second question so I leave it to my learned Adv Maluga to respond if he has not done so yet since his posts above shows that he knows no sleeping.
Anonymouse says:
September 3, 2009 at 15:14 pm
“In South Africa, an accused pesron that testifies, and is caught out at lying under oath, can never be prosecuted for perjury. It has never happened and it will probably never happen. It will however count heavily against him because, he will in all probability be convicted and will receive a heavier penalty.”
I will state upfront that my criminal law knowledge is a bit suspect, to say the least. However, the above statement raises questions in my mind: could this be the correct statement of law?
I’m assuming that a person gets convicted on the basis that the state has managed to prove its case beyond reasonable doubt and, based on that assumption, I further assume that the fact that someone has been caught lying under oath does not necessarily mean he will be convicted of whatever crime he’s accused of. Now, if my assumptions are correct, would I be reading the above statement correctly when I take it that it means that you can lie under oath and if you are not convicted of the crime you are accused of, then you are home and dry? – you seem to suggest that one only suffers the consequences of lying under oath at the sentencing stage, which my or may not happen – depending on whether one gets convicted on the charges against him or not. Please enlighten me.
On Motata J, I am kinda enjoying the heated debate and I’ve decided not to comment, inter alia, because (a) I am not very clued up on the matter and (b) until I see if he’s going to appeal or not.
Having said that, I doubt the issue is about race, I saw him on TV last night and he was with a white legal representative. I one can assume (I think reasonably so) that Motata J doesn’t really think that all white people are all those foul names he apparently uttered after drinking that famous tea…just that this particular had the audacity to tell him that the honourable judge was not “sober as a judge” when his car somehow ended up halfway through garden wall after just having a cup of tea…..hahaha
Sne, I am glad you are still alive. Keep cool but don’t dissappear for too long. The more things change in our justice system and body politics the more they stay the same, so many (good) cooks may not spoil the pot.
Joseph, nice to make your acquaintance. And I shall thank you also for your questions – I appreciate the scrutiny.
To briefly restate my earlier position: a judge’s conduct would have to observe onerous standards. And this distinguishes judges from other persons. And where a judge conducts a dishonest defence against criminal charges, such conduct should militate against the judge by either (a) prejudicing (but not necessarily destroying) the judge’s chances at appointment to higher judicial office and (b), serving as grounds for possible impeachment.
Section 9 clearly contemplates that people are equal before the law. And it may even be fair to advance that it would amount to a species of differentiation if judge’s were to suffer greater personal prejudice than other persons for conducting dishonest defences. And by prejudice, I mean that my position contemplates judge’s necessarily sustaining fairly substantial professional knocks should the circumstances which I outline obtain.
So I am prepared to concede that my stance may well allow for differentiation. But the critical question is: does my stance foster discrimination which is unfair? If so, it seems we would have a breach of the relevant right on our hands. If not, then speaking constitutionally: it’s all good
I must concede that I have not taken this investigation that far. So my bad on that score.
You also ask a question which I think is important. You question whether we can conclude that a defence is dishonest purely because the court rejected the factual foundation thereof.
I mean to answer your question in two parts. The first will go to what one may call a general approach. The second will concern whether one could properly deduce that the basis of Motata’s defence was dishonest.
As regards the first part, I think that as a general approach, we cannot conclude that a defence was dishonest purely because it was not successfully invoked. For instance, persons X and Y bandy words heatedly. X looses her cool and physically attacks Y. Y defends herself. At trial, Y’s counsel seeks to make out private defence. But the court rejects the defence not because it felt Y was lying, but rather because Y exceeded the bounds which would have clothed her conduct in a blanket of lawfulness. That is, her attempt at relying upon the defence was honest but was ultimately unsustainable on the facts.
I turn now to the second part of the answer – the part wherein I shall draw from the Motata matter. I did not really follow the case closely. But I did deduce (hopefully not unreasonably) that the defence was probably dishonest given that one cannot reconcile tea drinking with what the court accepted as to what went down – although one could possibly reconcile tea drinkin with, as Chris earlier suggested, a racist white wall growing legs and running into Motata’s car.
Mouse, why are you threatning me:”ulibambe lingashoni” is a threat, do you perhaps know where I reside? lol!
Bet you can’t wait! OK, a quick exit poll form our poll!
Will J Motata be impeached?
yes (0)
no (3)
and one ja / nee
I note that some honourable CS readers have not had their say, come on Mzo, Mdu, Gwebecimele, Sarah and Pierre, use it or loose it
Sarah, I cannot thank you enough for your support.
Do any of you “legal eagles” know whether it is too late to add Judge Motata’s name to the list of Con. Court candidates?
This judge has built up a staggering body of jurisprudence. That itself makes him deserving of the bench in Braamfontein.
More to the point, Judge Motata has now experienced the concerted attack of imperialists and local racists — and come out on top.
As we say in Slovenia: The stongest steel is forged in the hottest flame!
Mdu,
There is nothing in my contributions that betray the fact I am in the USA. I have never made any inferences or comparisons with anything in SA to the USA, have I? Has it ever occurred to you that I could be in Virginia in the Free State?.
I’d rather be lost, Mdu, than countenance actions by people I’m supposed to revere; which actions have proven in other countries to be the cause of a failed country status. I love my country too much to allow individuals to mess it up because of their loyalty to another individual just to advance their own narrow selfish interests.
Except for dragging the race card and some unproven and non-provable conspiracy theories, I have yet to hear sound legal arguments for the Mpshe-Zuma decision, the Shaik parole decision and now the JSC-Hlophe decision.
As they say Mdu, you are playing the man and not the ball; but I don’t care if I’m lost as long as my senses are intact.
Mzo – “I further assume that the fact that someone has been caught lying under oath does not necessarily mean he will be convicted of whatever crime he’s accused of.” You are of course correct – which is why I said in the part that you quote that an accused person that lies under oath will “in all probability” (not necessarily) be convicted. However it is quite unfortunate that your assumption that, where an accused pesron lies under oath but is not convicted for the crime charged, he would be home and dry on the perjury issue. There has never been a prosecution for such, and I doubt it will ever happen. There are a number of things that count here: An accused person’s right to silence; an accused person’s right not to incriminate himself or to provide evidence that can be used against him at his own trial; necessity to provide evidence in rebuttal; necessity to lie in immaterial respects to escape, not only conviction, but also persecution from elsewhere; client/lawyer confidentiality; etc.
Mdu – I know all too weel that ulibambe lingashoni is a threat, and I know exactly what it means. As to my knowledge where you reside, that would not present much of a problem should I engage the services of a Sangoma, now would it? … No just joking – just trying to show to you that I know much more of thye indigenous cultures and languages than you would have imagined. even though I’m white, and male, I grew up in a rural society and I attended an initatiation school to be exact. I love black people – and am definietly not racist. Now how about legal arguments from you besides tthat racism card you regularly play
Mhambi
Yes. (Despite my cynicism, I vote yes here because I think Motata isn’t a big player like Hlophe or JZ.)
Joseph, the CC has stated that s 9(1) does not prevent distinctions between different groups of people. As long as the distinction is not arbitrary, in other words, as long as it is rationally related to a legitimate purpose. The legitimate purpose here would be to safeguard the integrity of the judiciary and holding judges to a higher standard would clearly be rationally related to that purpose. Section 9(1) would therefore in my opinion not really be an obstacle to Leigh’s argument. Section 9(3) might be applicable but then it would have to be shown that the distinction was based on one of the grounds listed in section (9(3) or on an analogous ground like HIV status AND then it would have to be shown that the distinction was unfair. Once again I cannot imagine that being the case in the matter under discussion.
Professor, thank you for the clarification.
This is a bit late, but…
@Kevin yesterday…
The issue is not that he was drunk. Obviously we all make mistakes.
The issue is that he claimed he was not drunk. This is called lying.
I find it incredibly problematic when a judge lies.
The presiding judge also found that the witness audio recordings were accurate. In those recordings, Motata made racial slurs.
I find the fact that a judge is racist also very problematic.
I don’t care about Hlophe, or the fact that Motata is black. I do care that a judge lied and made racist remarks. I don’t see how this is remotely unreasonable, or “inhumane”.
AFAIK SA-law allows me to tdo badhings if I’m under the influence of mind
altering substances [in my tea]. Alto’ in civilised societies drunk-driving is serious.
And the ‘chance’ killing of someone from the drunkeness is less sigfnificant.
That Motata spoke his true feeling under deep-hypnosis, just shows what a good-boy PeeCee player he is
when sober ?
Anonymouse says:
September 3, 2009 at 15:14 pm
“In South Africa, an accused pesron that testifies, and is caught out at lying under oath, can never be prosecuted for perjury.”
I disagree
Criminal Procedure Section 319(3) of Act 56 of 1955
“If a person has made any statement on oath whether orally or in writing, and he
thereafter on another oath makes another statement as aforesaid, which is in conflict
with such first mentioned statement, he shall be guilty of an offence and may, on a
charge alleging that he made the two conflicting statements, and upon proof of those two
statements and without proof as to which of the said statements was false, be convicted
of such offence and punished with the penalties prescribed by law for the crime of
perjury, unless it is proved that when he made such statement he believed it to be true.”
Motata did testify in his own defence…he pleaded not guilty and that he only drank tea.
However where the conflict is obvious a specific indication of the differences is actually superfluous as the possibility of prejudice falls away.The onus then falls upon the accused to prove on a balance of probability that he believed in the truth he was drinking tea
Chris – For common law perjury, it has to be proven that a statement under oath is false, and that the person who made the statement knew it to be false. For s 319, one does not need to prove which statement is false and which true, just that there is a (material) conflict.
s 319(3) Act 56/55 (statutory pejury) is not applicable since it cannot be proven that Motata made two statements under oath. Firstly, his statement to his Counsel, even if under oath, is protected by lawyer/cleint privilege. (That would apply to every other accused person as well.)Moreover, we do not know whether he said something else in that matter than what he did during his trial. An accused person has a right to plead not guilty and to test the case against him, even if he had in confidentiality disclosed to his lawyer that he is in fact guilty. If the state cannot prove its case, then he is entitled to his discharge. Lastly, Motata did not testify (under oath, that is) in his own case. He pleaded not guilty and exercised his right to silence. No plea explanation was given ito s 115 of the Criminal Procedure Act 51 of 1977. The explanation that he only had tea was given extra-curially, never in court. But even if such a plea explanation was given during plea or during cross-examination of state witnesses, it is still not under oath and not a statement that qualifies as a conflicting statement for purposes of s 319. He also did not testify in his own defence. After the prosecution closed its case, and after a failed attempt to get discharge in terms of s 174 of the CPA at the closure of the case for the prosecution, he closed his case and relied on legal argument for an acquittal. He did not testify under oath. That is one of the reasons that Desmond nair found that the state’s version had been proven beyond reasonable doubt.
As far as practice is concerned – there are many examples where state witnesses, witnesses in civil matters and people who made false affidavits (not sublect to privilege, mind you) have been prosecuted and punished for perjury. There is however not one example in South African history where an accused person that has been caught out at lying under oath has been prosecuted for perjury and, for the reasons I advanced above, there will never be such a case in future. Believe you me.
Anonymouse says:
September 4, 2009 at 9:44 am
Chris – For common law perjury, it has to be proven that a statement under oath is false, and that the person who made the statement knew it to be false. For s 319, one does not need to prove which statement is false and which true, just that there is a (material) conflict.
Exaclty The reason for cross-examination is to test the credibilty/strength/truthfullness of the testimony. Should it be found that thewitness lied under oath; a charge of perjury will then be put to the claimant who lied
Thats why your are wrong on this score
“In South Africa, an accused pesron that testifies, and is caught out at lying under oath, can never be prosecuted for perjury.”
However I must concede that Motata did not testify “That is one of the reasons that Desmond nair found that the state’s version had been proven beyond reasonable doubt.”
I admit my mistake there
As for you last paragraph
“As far as practice is concerned – there are many examples where state witnesses, witnesses in civil matters and people who made false affidavits (not sublect to privilege, mind you)”
Yes and the practice is to sue for damages and there are many cases of that
Never say never
check out Cornwell Tshavhungwa
He was found guilty of perjury, drunken driving and on two fraud charges.
He committed perjury when he testified under oath in the Pretoria High Court that he played a role in prosecuting the Bronkhorstspruit cash heist gang. He claimed that because of his “role” in that case, he would be in danger in prison.
He once again committed perjury when he said in the Pretoria regional court that he was not involved in any remunerated employment outside the NPA.
Sarah Palin says:
September 3, 2009 at 14:47 pm
“I’m afraid I’ll have to turn down your offer of a drink”
Easy girl we just met, you moving to fast there for me, next you gonna ask me out on a date.
Chris – Once again, the example you give is not good. Cornwell Tshavhungwa’s perjury charges arose from his evidence under oath at two different occasions during bail proceedings – not criminal trials. Bail proceedings in South Africa are proceedings that are sui generis – and they cannot be classified as either criminal or civil. At the criminal trial itself (where the two perjury charges were brought against him together with the other charges), he chose not to testify under oath (any way – that is how I read the magistrate’s [colleague of mine] judgment). It is therefore not out of the ordinary that he was charged with and convicted of two counts of perjury. (By the way, I have heard that the North Gauteng Full Court has a week ago set aside the convictions and sentences in the Tshavhungwa matter – I have not yet seen the judgment on Saflii – apparently, not on the merits, but due to an irregularity that he did not receive a “fair trial”, and the Court used its review powers to set the magistrate’s judgment aside. The NPA is however doing the necessary to appeal the judgment.)
Once again, however, it has never happened that an accused person that did testify at his own trial, and were caught out at lying under oath, were charged with perjury. The reason is simply because, in most such instances, the accused would have been convicted of the original crime charged and, his mendacity as a witness would have had an effect on sentence (lack of remorse etc.) It would therefore most probably amount to double jeopardy should he be charged and punished again. Since it has never happened in the past 350 odd years of South African common law history, it is dubious if it would ever happen in future.
Nevertheless, I take it you concede that s 319 of the old CPA is not applicable in the Motata matter and, neither can he be charged with the common law crime of perjury because he never made a statement under oath which was proven to be false.
I’m fascinated by the rationalisations and psycho contortions the defenders of Motata indulge in.
The guy was drunk(“common view”)disorderly,damaged property,lied ,obstructed justice and used serious racial abuse ( crimen injuria?)and held up our stressed courts in a vain attempt to defend the indefensible.
We now have hundreds of bloggs arguing whether this constitutes unethical imeachable behaviour.
G-d the price we pay for the post- modern ,disfunctional,ramblings of the truly confused scares the hell out of me.
You make some good points. I guess it depends on your standpoint. – It is obvious that ‘obscenity’ is not a term capable of exact legal definition; in the practice of the Courts, it means ‘anything that shocks the magistrate’. Bertrand Russell 1872-1970: Sceptical Essays (1928) ‘The Recrudescence of Puritanism’