Quote of the week

Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation.  This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.

KHAMPEPE J and THERON J
Public Protector v South African Reserve Bank (CCT107/18) [2019] ZACC 29 (22 July 2019)
18 April 2018

What did the Conduct Tribunal find and is it likely to lead to judge Motata’s impeachment?

Judge NK Motata could become the first judge in South Africa’s history to be impeached. But this will only happen if the Judicial Service Commission (JSC) accepts the findings of the Judicial Conduct Tribunal that judge Motata was guilty of gross misconduct and should be removed from office, and if two thirds of the members of the National Assembly (NA) then vote in support of his removal. Whether judge Motata will be removed from office (which will lead to him losing all his retirement benefits) will therefore depend on political (and not legal) considerations.

 It is widely known that in the early hours of 17thJanuary 2007 judge NK Motata reversed his car through a pre-cast boundary wall of a house in Hurlingham, Johannesburg. Video recordings taken at the scene show that the judge was extremely intoxicated at the time. Further evidence – accepted by the lower court and the court on appeal – confirmed that he was intoxicated when he drove his car into the wall.

On the scene of the accident, the judge insulted the owner of the house in racial terms (calling the owner a “boer” and asserting his superiority over the owner – and all so called “boere’ – in racial terms). He claimed later that he was provoked, but the Conduct Tribunal held that this was not born out by the record. At the scene of the accident the judge also used the kind of colourful language one would expect from many dead-drunk South African men, saying (about the owner of the house):

Fuck him, fuck him, he must not insult me. I say fuck him. Anybody who insults me, I say fuck you.

Judge Motata was later convicted of drunken driving (a conviction confirmed on appeal). During his trial he continued to insist (and this was partly his defence) that he was not intoxicated at all at the time when he reversed through the wall.

A Judicial Conduct Tribunal (consisting of two sitting judges and one lay person) was appointed in terms of section 19 of the Judicial Service Commission Act to investigate two charges against the judge.

The first charge dealt with the racially charged insults made by judge Motata at the scene of the accident. The Conduct Tribunal had to decide whether these statements could be classified as racist language and if so, whether it constituted gross misconduct.

The second charge dealt with the manner in which judge Motata conducted his defence during the criminal trial and whether this was inconsistent with judicial ethics and thus also constituted gross misconduct.

The Conduct Tribunal is a fact-finding tribunal created by the Judicial Service Commission Act to deal with serious allegations against judges. In terms of section 177 of the Constitution a judge “may be removed from office only if the Judicial Service Commission finds that the judge suffers from an incapacity, is grossly incompetent or is guilty of gross misconduct” and the “National Assembly calls for that judge to be removed, by a resolution adopted with a supporting vote of at least two thirds of its members”. The President must then remove the judge from office.

In terms of section 20 of the Judicial Service Commission Act, a finding by the Conduct Tribunal that a judge is guilty of gross misconduct is not binding on the JSC. Section 20(1) requires the Commission to consider the report of a Tribunal to decide whether it agrees with the finding of the Tribunal. Section 20(4) concludes:

If the Commission finds that the respondent is suffering from an incapacity, is grossly incompetent or is guilty of gross misconduct, the Commission must submit that finding, together with the reasons therefore and a copy of the report, including any relevant material, of the Tribunal, to the Speaker of the National Assembly.

If the JSC decides the judge is guilty, it must refer the matter to the NA who must then vote on impeachment. This means, the politicians from various parties in the NA can decide not to have a judge removed from office despite the fact that the judge is guilty of gross misconduct or is grossly incompetent. From a political perspective, this may be more difficult to do if the findings of the Conduct Tribunal rests on solid grounds. It is therefore important to analyse the findings as they relate to judge Motata.

The Conduct Tribunal found that the remarks made by judge Motata were “gratuitous, unjustified and divisive”. The Tribunal held that by making these racially charged remarks (including attempts to insult the owner of the house as a “boer” and asserting that he as a black person was superior over “boere”), the judge was attempting to use race to gain the sympathy of the black police officers at the scene of the accident.

The Tribunal invoked a dictionary definition of racism to measure judge Motata’s conduct against. The cited definition defines racism as:

a belief that race is the primary determinant of human traits and capacities and that racial differences produce an inherent superiority of a particular race.

The Tribunal held that the manner in which judge Motata deployed these racially charged remarks was racist and the statements thus constituted gross misconduct. Judges were custodians of the rights in the Constitution (including the right to dignity) and “racist conduct on the part of a judge therefore strikes at the heart of judicial integrity and impartiality”.

The use of dictionary definitions to decide the meaning of a legally relevant term is a rather old-fashioned and formalistic way of engaging in legal interpretation. I am therefore sceptical of the Tribunal’s decision to invoke a dictionary definition of racism. Moreover, the definition focuses on the subjective belief of an individual and not on the actual effects of that individual’s words or actions. This seems to be in conflict with the Constitutional Court jurisprudence which focuses on the impactof specific action within a particular social and economic context in which the ideology of white supremacy remains prevalent.

I am not sure it was necessary for the Tribunal to make this finding to come to the conclusion that judge Motata was guilty of gross misconduct (but perhaps it did so because this was the manner in which the question was posed to the Tribunal). It seems to me a finding of gross misconduct on the first charge could have been made without any definitive answer on whether the judge was guilty of racism.

This is because the Tribunal links its finding of gross misconduct to more general requirements for judicial conduct that would be breached if a judge deploys bigoted (but not necessarily racist) language or where his or her actions display gross forms of prejudice, stating in conclusion that:

impartiality, dignity and acting without favour or prejudice are key elements undermining our courts and judicial conduct. Conduct which militates against such attributes must amount to gross misconduct because such conduct would undermine these key values and attributes necessary to ensure Judicial Authority.

You do not need to label the judge as a racist to conclude that his racially charged statements displayed a shocking lack of impartiality, and that it undermined the dignity of his office and of those he attacked. It is a bit like a gay judge unleashing a drunken rant against “heterosexual breeders” and shouting: “Fuck all heterosexual perverts!” This is not the kind of conduct that would instil confidence in the impartiality of the judge.

As a side note: this finding suggests that had judge Mabel Jansen not resigned (and had she thus attempted to hold on to her retirement benefits despite her racist statements on Facebook) she too would have been found to be guilty of gross misconduct as any black accused person could not possibly ever again have trusted her impartiality.

In any event, the Conduct Tribunal also found judge Motata should be removed from office for a second reason. It found he intentionally advanced a defence which he knew to be false. A judge (like any other accused) has every right to require the state to prove its criminal case against him or her and he is entitled to put up an appropriate defence. But unlike an ordinary accused a judge cannot publicly state a fact that he knows to be false, build a defence on such an untruth and then accuse truthful witnesses of manipulating evidence and of being racist.

The Tribunal rejected the argument advanced by judge Motata that he did not consider himself to be drunk. It held that while he might have considered himself not under the influence of alcohol at the time of the incident, by the time he was conducting his defence, it would not be possible for him to have believed this claim.

The Tribunal referred to overwhelming evidence placed before the court (and again considered on appeal) and concluded that judge Motata conducted a defence in his trial “which he knew lacked integrity”. It then concluded that judge Motata was guilty of gross misconduct by knowingly advancing a defence which he knew was false:

The office of a judge is a very respectable office. So, must be those who hold it. A Judge’s conduct, in and out of court, should not dishonour that high office. Impeccable moral and ethical standing is a crucial hallmark of such public office. The criminal trial of Judge Motata has placed has conduct squarely within the public domain.

Judge Motata is now retired from active service. A removal from office will not have any effect on his serving again as a judge. It will lead to a loss of all his retirement benefits as he would no longer be a judge entitled to retirement benefits. As noted in the introduction, in these circumstances, the politicians (on the JSC and – if it comes to that, the NA) will have to decide whether his removal is warranted to safeguard the integrity of the judiciary.

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