The law, like the suburban American house, is designed to order a particular pattern of relationships, many of them oriented around the heterosexual nuclear family. For real people in contemporary circumstances to inhabit the house the law built, one has to find side doors and discreet corners, while the dominant space changes little and the façade remains unaltered. The two big L.G.B.T.-rights Supreme Court victories that came before Bostock—Windsor and Obergefell—did exactly that: they carved out a place for monogamous same-sex couples who want to marry (statistically, these are more apt to be white middle-class people like the plaintiffs) in the house of the American nuclear family.
I have new respect for Transvaal Judge President, Bernard Ngoepe, after he took swift action to minimize the damage to the bench caused by the drunken driving charges against Justice Nkola Motata.
He immediately met with the wayward judge and instructed him to go on a leave of absence until after the completion of his trial. He also indicated that this is not necessarily the end of the matter and that the situation would be “looked at again” after the completion of the trial.
His action sends a signal that the issue is indeed serious and that Justice Motata has a case to answer. This contrasts sharply with the way in which the JSC dealt with the Hlope matter.
The big test will of course come when/if Justice Motata is convicted on the drunken driving charge. If convicted, he will not only be sertified as a drunk driver but also, more damaging to my mind, as a liar and a bully.
To the Sunday Times he claimed that he was not drunk and only had tea with a colleague. Like Watergate, I think the cover-up would be more damaging to his credibility than the crime. If convicted he should therefore do the decent thing and resign.
If he does not resign, Justice Ngoepe should whisper in his ear to persuade him to do the right thing – perhaps by threatening impeachment if he does not do the honourable thing.
I suppose the big test for the Judge President will come if that scenario plays out. Will he have the backbone to get rid of a judge when a certain click in the Judicial Services Commission may frown upon it? Does he perhaps have ambitions to sit in the Constitutional Court?
If Justice Motata is convicted and no action is taken against him it will be a dark day for the judiciary in South Africa indeed.