What now for Judge Aikona Motata?

News that the Judicial Conduct Committee (JCC) has found that race remarks made by judge Nkola Motata constituted a prima facie case of gross misconduct, might confuse many readers who are not familiar with amendments to the Judicial Service Commission Act. These amendments changed the manner in which the JSC deals with complaints of misconduct against judges. These amendments might well assist the JSC to avoid the kind of embarrassing legal defeats it has suffered over the years regarding its handling of complaints, as it sets out in great detail how complaints against judges should be dealt with.

The Act now establishes a Judicial Conduct Committee (JCC), who must  receive and consider all complaints against judges. The Committee comprises of the Chief Justice (who is also the chairperson of the Committee), the Deputy Chief Justice, and four other judges, at least two of whom must be women, designated by the Chief Justice in consultation with the Minister. These four judges are appointed for a term of up to two years. The Act makes clear that in the event of an equality of votes being cast by the Committee members present at a meeting, the person presiding at that meeting has a deciding vote in addition to his or her deliberative vote.

It was this Committee (comprising only of judges) who have decided to refer the complaint against Judge Motata to a Judicial Conduct Tribunal for a full hearing. This is what happens, I guess, when politicians and political appointees are not involved in decisions about complaints against judges — it helps to de-politicise the handling of the complaint.

As the JCC comprises only of judges, the judiciary retains some control over the disciplining of judges, which seems appropriate to me. The Chief Justice will usually have a deciding vote if those members of the JCC present at a meeting are deadlocked. The establishment of Judicial Conduct Committee will therefore remove some of the politics out of the JSC’s consideration of complaints against judges.

Any person may lodge a complaint against a judge with the JCC, alleging incapacity on the part of a judge giving rise to a judge’s inability to perform the functions of judicial office in accordance with prevailing standards, or gross incompetence, or gross misconduct, as envisaged in section 177(1)(a) of the Constitution.

It is important to note that the Act for the first time allows for the consideration of “lesser” non-impeachable offences not mentioned in the Constitution, including “any wilful or grossly negligent breach of the Code of Judicial Conduct” (which has been drafted by the Chief Justice in consultation with the Minister of Justice) and a failure to declare registrable interests. Accepting, holding or performing any office of profit or receiving any fees, emoluments or remuneration or allowances in contravention of the Act, is now also prohibited, but would usually not on its own constitute an impeachable offence.

(The latter two provisions could be called the Oasis/Hlophe amendments as they deal with some of the issues raised during Judge President Hlophe’s original brush with controversy.)

The JCC may also investigate any wilful or grossly negligent failure to comply with any remedial step proposed by the JCC in cases where it had previously found that a judge had been guilty of a serious but non-impeachable offence.

Where the JCC makes a finding that the complaint prima facie indicates incapacity, gross incompetence or gross misconduct on the part of the judge, the JJC may refer the matter to the Judicial Conduct Tribunal (JCT) or may decide that it does not constitute an impeachable offence, in which case it will refer it to the Chairperson (usually the Chief Justice) for an inquisitorial inquiry. In the latter case the Chairperson may then impose remedial steps on the judge after conducting a hearing.

If the JCC decides that there is a serious case to answer that may lead to impeachment, it will refer the matter to the Judicial Conduct Tribunal which consists of two judges, one of whom must be designated by the Chief Justice as the Tribunal President; and one person who is not a judge but whose name appears on a list of persons who have been approved by the Chief Justice, acting with the concurrence of the Minister of Justice. The JCT is therefore dominated by judges — not by politicians or non-judges.

The JCT will then hear evidence and in an inquisitorial process try to determine where the truth lies. The aim would be to get to the truth behind the complaint and there would be no onus on any of the parties to prove or disprove any fact. In other words, the formal rules that apply in an accusatorial system would not apply and the aim of such an inquiry would be to get to the bottom of the complaint against the judge. This is important as this would make it impossible for the Tribunal to reject a complaint merely because a judge provides a different version of events than the complainant. At such a hearing the judge would be able to lead evidence and have witnesses cross examined. The Tribunal may also subpoena witnesses and order them to produce any documents relevant to the inquiry.

The catch here is that the Tribunal will usually do its work in secret — which is perhaps a reason why the JSC would want to deal with the complaint against Judge President Hlophe in terms of the new rules. However, the Tribunal President may in the public interest and for the purposes of transparency, determine that all or any part of a hearing of a Tribunal must be held in public. This decision must be taken in consultation with the Chief Justice. As is the case with many other aspects of these amendments, the role of the Chief Justice is pivotal. The whole system now depends on the integrity and wisdom of the Chief Justice, which is why — at present — it will probably work much better than the previous politicised JSC process.

The Tribunal must then report to the properly constituted JSC on its findings and must also provide the JSC with all the relevant documents. The JSC can then decide to accept or reject the findings of the Tribunal as the JSC is constitutionally required to decide whether it wants to recommend impeachment of a judge to the National Assembly.

If JSC rejects the findings of the Tribunal, it will obviously delegitimise itself and the judiciary as a whole, so even though the JSC is not above politics it is going to be very difficult for the JSC to reject a finding made by a Judicial Conduct Tribunal. Such a decision by the JSC to reject the factual and legal findings of the Tribunal would, in effect, be mean that the JSC would be replacing a legal and factual decision with a purely political decision. This will cause severe harm to the judiciary and would obviously destroy the legitimacy of the JSC.

Where does this leave Judge Nkola Motata?

Well, Judge Motata will now probably face a full inquiry by the Judicial Conduct Tribunal (if news reports are correct), and the Tribunal will have to investigate the complaint, which relates to remarks Motata made after he crashed his car into a wall in Johannesburg while drunk. An audio recording of the events was played in the Johannesburg Magistrate’s Court during his drunk driving trial. Among other things, Motata seemed to have channelled his inner Julius Malema and said with reference to Richard Baird, owner of the house where the crash happened: “No Boer is going to undermine me. This used to be the white man’s land, but it isn’t anymore.” Motata also allegedly told members of the Johannesburg metro police that “they should not support the white man.”

His fate now rests in the hands of two judges and a lay person. It will be interesting to hear who will sit on the Tribunal. Obviously, a finding that a judge is racist must surely lead to a recommendation of impeachment. Some conservative critics of the JSC and of transformation of the judiciary might well cheer on the Tribunal in a display of schadenfreude as they would love to see the downfall of a judge who happens to be black and just had one cup of tea too many and said what many other people think.

But they should think twice before they rejoice about any such possible finding. Unlike in Kenya where the new Constitution requires a vetting of all judges for re-appointment, many judges in South Africa were appointed before 1994 and have never been vetted to see if they comply with basic requirements of honesty and adherence to values of non-racism. It would be surprising if some of these judges (as well as judges — both black and white — appointed after 1994) do not privately express racist beliefs or ideas based on racial prejudices that would make them unfit for judicial office if expressed publicly.

A finding against Judge Motata – a finding which is by no means certain and which I do not pre-empt — might therefore send a welcome message to judges of all races who harbour prejudices based on race, sex, gender, religion or sexual orientation. Whatever happens, the way in which the Tribunal and the JSC deal with the complaint against judge Motata presents an opportunity to improve perceptions about the JSC and, ultimately, the judiciary.

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