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.
It is clear that Judge Nkona Motata’s lawyer is doing everything in his power to block the playing in court of sound recordings of his alleged drunken diatribe made on the night when he accidentally reversed his Jaguar through someones garden wall and was arrested for drunken driving.
The case has now been postponed until June next year to allow the defense to take the magistrate’s decision to preliminary allow the recordings on review. One wonders whether the judge is still on leave and whether he will remain on leave until next year June. Of course, we will be paying his salary, but it is perhaps best that he does not act as judge while this cloud is hanging over his head.
The Judge is of course entitled to defend himself in court and must be presumed innocent until proven guilty, but one wonders whether he is not clutching at straws. The picture that was taken at the scene of the accident and that appeared in the Sunday Times clearly shows a person that is as drunk as a skunk. Rumour has it that the judge is known for his love of alcohol and that he has a Manto Tshabalala Msimang problem.
Would it not be better for his own reputation and for the reputation of the judiciary if he resigned as judge? Even judges can get drunk (and do!), and they can of course be forgiven for misdemeanors, but Judge Motata’s alleged behaviour seem really beyond the pale.
If it is correct that he was so drunk that he inadvertently reversed his car though a wall, resisted arrest, shouted sexist and racist abuse at others and then told the newspaper that he had not been drunk because he was just back from having tea with a friend, he does seem rather unfit to be a judge on the High Court.
I would imagine Judge Motata has given the JSC ruling in the Judge John Hlophe case a look and has decided he might still hang on to his job if he can get acquitted on the drunken driving charge or at least if he can prevent the tapes of his alleged abusive behaviour from being played in court.
Because the JSC has set the bar so low, Judge Motata must think he is in with a fighting chance to keep his job, despite in damage it might do to the judiciary. The worst case scenario for which him and his legal team is angeling is for the case to be thrown out on a technicality and for him then to go back to work.
And the JSC would not do anything of course because despite a blood alcohol tests showing the Judge to be far over the limit and despite all the evidence already splashed in the media, he would not have been convicted and therefore there would be no evidence as far as the wise men and woman on the JCS are concerned.
This is why the Hlophe decision was so disastrous: it sends a signal to other judges that they might get away with things unless there is an absolute watertight case against them – perceptions be damned.
But the legitimacy of the judiciary is based on perceptions and not on technicalities. Once the ordinary public starts thinking that crooks and drunks populate the benches of the High Court, respect for the judiciary will take a nosedive. Which is bad for the legal system and even worse for our democracy.
Judge Motata, I beg you, for the sake of democracy and our Constitution, please resign.BACK TO TOP