Quote of the week

As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.

Khampepe J
Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State and Others (CCT 52/21) [2021] ZACC 28 (17 September 2021)
2 September 2009

Haikona Motata (III)

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.

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