High Court says “Haikona Motata”, awards cost against the judge

In South Africa it is extremely difficult to remove a judge from office and no judge has ever been removed from office, either before the advent of democracy or since then. This is as it should be: security of tenure is one of the most important structural safeguards for the independence of the judiciary. But this does not mean that judges cannot be held accountable for unethical and dishonest behaviour – as the Gauteng High Court reminded us again last week when it rejected an appeal by drunk driving judge Nkola Motata.

Litigants who challenge the constitutionality of legislation or the constitutional validity of other exercises of public power are almost never required to pay the legal cost of those who oppose the application. In Biowatch Trust v Registrar Genetic Resources and Others the Constitutional Court held that:

The primary consideration in constitutional litigation must be the way in which a costs order would hinder or promote the advancement of constitutional justice.

Where a litigant challenges the constitutionality of a law or relevant conduct it would normally advance constitutional justice – even if he or she loses the case – because the case would have clarified a constitutional issue to the benefit of the public at large. It is therefore quite damning that the Gauteng High Court ordered Judge Nkola Motata to pay the cost of opposing counsel in the case of Motata v Minister of Justice and Others.

Recall that almost ten years ago judge Motata was convicted of drunken driving (having consistently failed to take the court into his confidence) and was sentence to 12 months imprisonment or a fine of R20 000. He has been on special leave since January 2007 on full pay while the disciplinary process against him dragged on.

After his conviction the Judicial Service Commission (JSC) received a compliant of gross misconduct against judge Motata (gross misconduct being one of the three grounds that warrants a removal from office of a judge in terms of section 177(1) of the Constitution).

Complaints against judges are now regulated by the Judicial Service Commission Act. In terms of this Act, a Judicial Conduct Committee (JCC) established in terms of section 8 of the Judicial Service Commission Act must first consider a complaint to decide whether it is of such a serious nature that it could lead to impeachment. Judge Motata appeared before the JCC which held that the complaint, if proven, would constitute an impeachable offence and recommended to the JSC that the complaint be referred to the Judicial Conduct Tribunal (JCT) established in terms of s 21(1) of the JSC Act.

Judge Motata was then summoned to appear before the JCT who had to decide whether to recommend his impeachment to the JSC. Once the JCT recommends impeachment and the JSC endorses the decision to impeach, a judge can be removed from office – in other words, impeached – if two thirds of the members of the National Assembly support the removal.

Judge Motata did not embrace this opportunity to account for his actions before the JCT. Instead – after some delay – he brought an application challenging the sections of the Judicial Service Commission Act regulating the disciplining of judges.

He argued that the power to remove a judge rests exclusively with the JSC. Parliament, so he argued, breached the separation of powers doctrine and infringed on the independence of the judiciary when it passed the sections of the Judicial Service Commission Act establishing the JCC and the JCT. The High Court summarised his argument as follows:

[T]he applicant’s overarching attack on the JSC Act is that Parliament arrogated unto itself the power to promulgate the JSC Act, to determine the procedures to be followed by the JSC when deciding whether a judge is guilty of gross misconduct, is grossly incompetent or incapacitated. Hence Parliament violated the doctrine of the separation of powers and the independence of the judiciary.

There was only one problem with this argument. Section 180 of the Constitution explicitly empowers Parliament to enact legislation to provide for any matter concerning the administration of justice that is not dealt with in the Constitution, including “procedures for dealing with complaints about judicial officers”.

The High Court therefore rejected judge Motata’s constitutional challenge to the various provisions of the Judicial Service Commission Act. But the most interesting and telling part of the judgment is not the relatively straight forward reasoning of the court on this point. Rather, it is the sharp words aimed at judge Motata by the court in ruling that he would be personally liable for the respondent’s cost, that signals the court’s displeasure with judge Motata’s behaviour throughout the tawdry affair.

Noting that judge Motata failed to mention the need to protect the “dignity of the judiciary and openness, transparency and accountability” in his application, the High Court continued:

Not once has [judge Motata] said that he is committed to accounting for his conduct that resulted in his conviction and sentence for driving a motor vehicle under the influence of alcohol…. The seriousness of the complaint, the conviction and sentence being admitted facts, and the implications for the image and dignity of the judiciary, should leave the applicant in no doubt about his duty to account for his conduct. Why has he not done so?

In the relatively diplomatic language of a court, the judgment hints that judge Motata might have brought the constitutional challenge not in pursuit of some higher purpose – such as enforcing the rule of law or the principle of legality – but rather to avoid being held accountable for his actions. This while continuing to draw a full salary for a period of ten years while being on special leave.

This conclusion is bolstered by the fact that the Supreme Court of Appeal (SCA) had in effect already decided the very point that judge Motata asked the High Court to decide. Yet the judge had initially failed to mention this judgment of the SCA in his papers. As the High Court noted disapprovingly:

The primary point decided by the Supreme Court of Appeal was the validity of the decisions of the JSC to refer complaints to the JCC and the Tribunal. What could possibly have been the reason for this material non-disclosure?

As a higher court – the SCA – had already essentially decided the same point that judge Motata asked the High Court to decide, his application had little prospects of success from the outset. The High Court also noted that this “material non-disclosure by judge Motata was unethical.

The High Court further took a dim view of the fact that judge Motata had delayed launching his application and that disciplinary proceedings against judge Motata had dragged on for almost ten years.

The delay is unconscionable; as such it… impairs the dignity and effectiveness of the judiciary and the courts, and is against the public interest. The applicant has been on special leave since 15 April 2007. There is no indication on the papers what conditions, if any, apply to his special leave. The probabilities are that his leave is with full pay for almost ten years hence his disincentive to act expeditiously. After his fifteenth year of service he would have qualified for his tax-free gratuity amounting to double his prevailing annual salary. After age sixty-five years he could retire on pension with the leave of the Minister. Considering that the applicant has spent only five of his sixteen years as a judge in active service, these burdens on the public purse cease to be safeguards against undue interference but become a favour akin to one that the Constitutional Court eschewed in the Justice Alliance [judgment].

In conclusion the High Court found that judge Motata had not raised a genuine constitutional dispute in his application and that the “application, the grounds on which it is based, and crucially his failure to account for his acts and omissions are manifestly inappropriate”. It would devalue of constitutional justice not to award costs against judge Motata. It would result in unfairly and unjustifiably favouring judge Motata at the expense of the public interest. In all the circumstances not to award costs against the judge “would be unconscionable”.

The awarding of cost against judge Motata – and the harsh criticism levelled at him by the court – might dissuade the honourable judge from launching an appeal, which in any event has little chance of success. If this is correct, the Judicial Conduct Tribunal – consisting of two judges and a lawyer – will finally be able to decide whether to recommend judge Motata’s impeachment on a charge of gross misconduct.

In the event that such a recommendation is made, it would have to be endorsed, first by the JSC (excluding the JSC members of the legislature) and then by a two thirds majority of the members of the National Assembly. Such an unpleasant spectacle could, of course, be avoided if judge Motata resigned before the conclusion of the matter. But if the honourable judge can hang in there until he turns 65, he could retire with full pension benefits at taxpayer’s expense.

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