Motata argues in his founding affidavit that President Cyril Ramaphosa’s decision to remove him from the bench should be set aside because he rubber-stamped a flawed decision by the National Assembly. (Paul Botes/M&G)
Former judge Nkola Motata, who was arrested for drunk driving in 2007, has filed papers with the constitutional court to challenge his impeachment in February.
Motata argues in his founding affidavit that President Cyril Ramaphosa’s decision to remove him from the bench should be set aside because he rubber-stamped a flawed decision by the National Assembly.
Ramaphosa’s letter communicating the decision in March makes clear that he relied on a finding of gross misconduct by the Judicial Service Commission (JSC), as did the National Assembly when it voted on the matter nine days earlier and resolved by 296 to 13 that he should be impeached.
But such a finding did not exist, Motata argued, because the JSC never endorsed a decision by the judicial conduct tribunal in 2018 that he was guilty of gross misconduct.
That tribunal’s finding was anchored not in Motata’s drunk driving conviction, but came in response to two complaints filed in relation to the incident in which he drove his car into a residential boundary wall in Johannesburg while under the influence.
One was a complaint of racism stemming from remarks he made at the scene, and the second was that he instructed his counsel to put up a defence he knew not to be true, namely that he was not drunk, in the criminal trial that followed the accident.
But a majority of members of the JSC in 2019 rejected the finding of the tribunal, holding instead that Motata was guilty of misconduct, which does not warrant impeachment.
It ordered Motata to pay a fine of R1.15 million to the South African Judicial Education Institute.
This decision was taken on review by Freedom Under Law, which asked that it be substituted with one of impeachable misconduct.
The case went from the high court to the supreme court of appeal (SCA), which last year upheld Freedom Under Law’s application and the recommendation of the tribunal that the provisions of section 177(1)(a) of the Constitution for impeachment be invoked.
The court said the report of the majority of the JSC had, untenably, ignored the effect of Motata’s racist comments on the public’s confidence in the judiciary.
Moreover, the issue of whether racism is serious misconduct or not was clear. It was inconsistent with both the Constitution and the judicial code of conduct.
“The point ignored is that the utterances, which evidence an apparent bias, would result in judge Motata being substantially disabled from performing his judicial function, because on any reckoning racist utterances are fundamentally irreconcilable with the standards expected of a judicial officer.”
The supreme court of appeal ordered the tribunal’s report be remitted back to the Judicial Service Commission not for deliberation, but to be dealt with in terms of s 20(4) of the JSC Act.
Motata’s application to the apex court challenges the legitimacy of this substitution by the JSC, and argues that all that flowed from it was invalid.
He said when Chief Justice Raymond Zondo referred the matter to parliament, his report “made it clear that the SCA had by implication set aside the JSC’s decision but did not want the JSC to consider the matter afresh and the JSC is precluded from doing so”.
Further, he added, Zondo stressed that the JSC did not itself reach a finding of gross misconduct.
When Motata was invited by the portfolio committee on justice to file submissions, he raised two points. First, he argued that there was no gross misconduct finding by the commission as required by section 177 and that therefore “the National Assembly had no jurisdiction”. Second, he invoked double jeopardy as he already paid the fine imposed by the JSC and had thus “already served my punishment for the misconduct”.
He argues in his founding affidavit that the chairperson of the portfolio committee, Gratitude Magwanishe, made more than one factual misrepresentation when addressing the National Assembly on 21 February.
This included saying he flouted the judicial code of conduct, omitting that it had not been written in 2007, and reiterating that the JSC had come to a finding of gross misconduct
“These statements were incorrect and misleading to the National Assembly,” he said. “The only extant finding of gross misconduct had been made by the SCA in its majority judgement.”
The chamber was not competent to resolve that he should be removed from the bench because section 177 makes a finding of gross misconduct by the commission a requirement for such a step, Motata said.
An appellate court order cannot supplant the “multi-disciplinary range of cogitation intended to be achieved” at the JSC, he argued.
The appellate court had hence violated the separation of powers as it could not assume the function of a specially designated constitutional body, he said, adding that judges could not judge their peers because there was a risk they would take sides or “settle scores”.
Although his application was not an appeal to the SCA ruling, Motata said, “we submit that this court is at liberty in the present circumstances to upset such judgment” because it sets a poor precedent.
He asked the court to find that the National Assembly’s resolution was null and void and that therefore Ramaphosa was neither obliged nor empowered to remove him from the bench.
Motata and former Western Cape judge president John Hlophe are the only two members of the judiciary who have been impeached in the post-apartheid era. Motata retired at the age of 70 in 2017.
Hlope too argues that his impeachment was flawed in law.