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.
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.