An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
The unfortunate arrest of Judge Nkola Motata on a drunken driving charge once again highlights the urgent need for the establishment of a disciplinary procedure to deal with misconduct by judicial officers.
Where judges act in an inappropriate way, there must be a mechanism in place to punish them without interfering with the independence of the judiciary.
Legislation that establishes a disciplinary committee made up of fellow judges (and NOT of politicians) is urgently needed to deal with cases like that of Justice Motata. In the absence of such a process, it will not be possible to take action against a judge who embarrasses himself and the judiciary in the way Justice Motata apparently did on the weekend.
An independent body need to be able to establish whether such allegations are true and if true, whether the misconduct amounts to an impeachable offence. (I am in two minds if it does amount to an impeachable offence in this case.)
At the moment the JSC has the choice either to impeach the judge or to do nothing. There is no middle ground. Given the racial politics of the case, it is clear that nothing will happen.
If no action is taken, the public will start to lose confidence in the judiciary which would pose a grave danger to the Rule of Law.
According to a transcript (if it is correct) of the events, Justice Motata behaved in a disgraceful manner. He is clearly an angry and not a happy drunk. He also seemed to have lied afterwards about his state.
Homeowner: You have to answer the question if you’re making an accusation…
Driver: Ah, fuck you! Please.
Homeowner: You being disrespectful to me.
Driver: Ah, I don’t care about you.
Homeowner: I’m the owner of the house. I’ve come here to see what damage you’ve done.
Driver: Ja. F off…Any damage to your house, don’t insult me.
Another voice: That’s what I was trying to…
Driver: I say don’t insult me. I say…
Homeowner: I think it’s a one way street here?
And then after some more insults and incoherent talk, the discussion proceeded as follows:
Homeowner: It is my opinion that you are drunk, yes, because you smell of alcohol, you’ve driven through my wall…
Driver: You talk rubbish!
Homeowner:…You don’t walk straight…
Driver: Don’t talk rubbish!
Homeowner: I’m not talking rubbish.
Driver: I’m telling you now you’re talking rubbish
Homeowner: One, two, three, four, five…
Driver: I don’t care about your workers…(indistinct)
Homeowner: …Six, seven. There’s eight people here
Driver: I say, don’t talk rubbish.
Homeowner: I don’t have any workers here…(Indistinct as driver shouts him down)
Driver: …Fuck you…I say fuck you
Homeowner: [My tenant] is a senior manager at one of the banks.
Driver: I don’t care about your senior management. He doesn’t work for me.
Homeowner: He’s my tenant, he’s not my worker. He’s a senior manager at one of the banks.
Driver: Oh, get to hell. Get to hell.
Homeowner: Don’t fall over! Whoa! Careful! Don’t fall over! He can’t even stand straight.
Driver: (Indistinct)…senior management at the bank.
Homeowner: But the difference is that he is a senior manager, he’s not a worker. He’s not a worker, don’t insult him.
Driver: But I’m talking to you, not to anybody else. I’m talking to you. You get to hell!
Homeowner: I’m a hard worker…yes, you’re right.
Driver: I’m happy for you. You are doing well for yourself. That senior messenger, you are talking rubbish about him.
Homeowner: Here’s the senior manager right here. Right here. He’s right here.
Homeowner: Sounds like you’re drunk saying things like that. Unfortunately the guys are laughing at you.
Driver: No, no they are not laughing at me. They are laughing at the short guy (A metro policeman). So you tell me when you are ready, I must run.
Homeowner: So you have a problem with the vertically challenged.
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