Pretoria – Freedom Under Law will turn to the High Court in Johannesburg to overturn the decision by the Judicial Services Commission not to impeach retired judge Nkola Motata.
The judge made headlines more than 13 years ago when he ploughed his car through a wall while intoxicated.
In papers filed at court, the organisation said the decision not to impeach Motata was flawed and must be reviewed and set aside. It is asking that it be substituted with a finding of gross misconduct.
AfriForum was one of the parties which complained to the commission that Motata should be removed as a judge as he was not fit for the position.
It claimed that Motata made racist remarks to Richard Baird, the owner of the house into the wall of which he had crashed in January 2007.
It was found that Judge Motata was driving under the influence of alcohol. He allegedly told Baird on the scene of the crash that “no boer is going to undermine me This used to be the white man’s land, but it is not anymore”.
He was was fined R20000 for driving under the influence. Motata had appealed against his drunk driving conviction, but this was turned down in 2010.
The matter was referred to the Judicial Conduct Tribunal, which found him guilty of gross misconduct and recommended to the commission that it invoke proceedings to remove him as a judge. But the commission overturned the tribunal’s decision and found him guilty only of misconduct and not gross misconduct. As sanction for his misconduct, the commission imposed a fine of R1.1million to be paid by him to the South African Judicial Education Institute.
Nicole Frits, executive officer at Freedom Under Law, said in court papers that this review application was about the standard of conduct for judges and the duty of the commission when judges were found to violate that standard.
She said it was clear Motata had violated this standard and the commission breached its duty in permitting him to retain his office and title of judge.
She said they were thus asking for an order declaring unlawful and/or irrational and invalid the decision of the commission.
“The reason for this is that Judge Motata drove his vehicle while intoxicated, resulting in damage to private property. After this, he made various remarks that were not merely gratuitous and offensive, but constitute racism and sexism.
“To make matters worse, he then defended his criminal conduct through lengthy proceedings, during which he knowingly advanced a defence that was factually and legally without basis,” Fritz said.
Despite this and the recommendation by the Judicial Conduct Tribunal that he should be removed, the commission decided he should remain a judge. “The decision is flawed, both procedurally and substantively, and must therefore be reviewed, set aside and substituted with a finding of gross misconduct and/or incapacity,” she said.
It will be argued that the commission is tasked by the Constitution, through its advisory and disciplinary functions, to protect as well as promote the judiciary’s independence and impartiality. Fritz said justice and equity demand that the decision should not be remitted to the commission for reconsideration. “If the matter were referred back to the commission, the end result would be a foregone conclusion.”
The court had to rule that Motata was guilty of gross misconduct and thus not fit to be a judge, she said. Allowing Motata one further day to hold judicial office than was necessary was an affront to constitutional standards and values. “This matter must be brought to an end without further delay. Further to delay the process would cause unjustifiable prejudice to the public perception of the integrity and impartiality of the judiciary.”
Motata, who is in his 70s, has been on pension for about three years.
He has been on special leave with full pay and not been back on the Bench since the accident more than 13 years ago. No date has yet been set for the hearing.