JUDGING THE JUDGES
MAY 10, 2018
THIS BRIEF CONSIDERS CIRCUMSTANCES IN WHICH JUDGES CAN BE IMPEACHED FOR GROSS MISCONDUCT SPECIFICALLY CONSIDERING THE CASE OF JUDGE NKOLA MOTATA
This brief will evaluate at the Constitution’s mechanisms for judicial impeachment, and consider specific instances where this section 177 provision has been invoked. In particular, the brief will review the case of Judge Motata and the implications of his actions. A central question, here, would relate to whether or not the inherent bias of his racist remarks taint his judgments already handed down?
JUDICIAL APPOINTMENT AND IMPEACHMENT
The Constitution of the Republic of South Africa Act 8 of 106 (“Constitution”) prescribes the appointment of judicial officers in section 174. Requirements include, being a South African citizen, having the necessary qualifications and most importantly, for the purposes of this brief, a fit and proper person. What exactly constitutes a fit and proper person is not defined or described in legislation or regulations. Case law has shed some light on the accepted meaning in the context of public officials and legal officers.
However, the standard applied is not absolute and prescriptive. It is commonly accepted that in order to be "fit and proper" a person must show integrity, reliability and honesty. In 1998 the late Chief Justice Ismail Mahomed introduced the guidelines to elaborate on the section 174 requirements, included in these is the necessity for the applicant to be a person of integrity. “There can be absolutely no question but that an untruthful person is not a fit and proper person…”
Before a Judge is appointed, he or she must go through rigorous interviews by the Judicial Service Commission (“JSC”). The members of the JSC carry a significant constitutional obligation to recommend fit and proper candidates for judicial office. Further, section 174(8) of the Constitution provides that before judicial officers begin to perform their functions, they must take an oath, or affirm, in accordance with paragraph 6(1) of Schedule 2, that they “will uphold and protect the Constitution and the human rights entrenched in it, and will administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law.” We see from the above that judicial appointment is stringently contingent upon the candidate being independent, impartial and fair, with a commitment to constitutional values.
The Judicial Service Commission Act 9 of 1994 (“JSC Act”) contains the Code of Judicial Conduct (“Code”) which serves as the standard of judicial conduct. Judges must adhere to this Code and any wilful or grossly negligent breach of the Code may amount to misconduct which will lead to disciplinary action in terms of section 14 of the JSC Act.
Relevant articles of the Code that apply to the Motata case include:
Article 4(a): a Judge must uphold the integrity of the judiciary.
Article 5(1): a Judge must always, and not only in the discharge of official duties, act honourably and in a manner befitting judicial office. “A Judge behaves in his or her professional and private life in a manner that enhances public trust in, or respect for, the judiciary and the judicial system.”
Article 7: a Judge must at all times (a) personally avoid and dissociate him- or herself from comments or conduct by persons’subject to his or her control, that are racist, sexist or otherwise manifest discrimination.
Section 177 of the Constitution governs the removal of a Judge. A Judge may be removed on grounds which include incapacity, gross incompetence, or gross misconduct.
As per the 2010 amendments to JSC Act, the JSC’s Judicial Conduct Committee (“Committee”) comprises of the Chief Justice (the Chairperson of the Committee), the Deputy Chief Justice and four Judges designated by the Chief Justice. The Chairperson of the Committee will refer a complaint for investigation or recommend to the full JSC that a tribunal investigate the complaint against a Judge. If the Committee decides that the conduct may warrant impeachment, then a Judicial Conduct Tribunal (“Tribunal”) will be convened and, based on the Tribunal’s report, the JSC will decide whether the criteria for impeachment are met.
If the Tribunal finds that the Judge should be impeached, it will then refer the finding to the National Assembly. The National Assembly must have a two thirds majority vote for impeachment, at which point the Judge is formally removed from office by the President. If the National Assembly does not vote in favour of impeachment the Judge may still be sanctioned for lesser misconduct. Such punitive measures include an order for an apology, a reprimand, counselling or training.
THE TRIBUNAL IN ACTION
At the time of writing, seven judges whose cases have dragged on for an inordinate amount of time, face impeachment. Noteworthy cases include the Judge Hlope saga, the Judge Jansen matter and, most recently, the Judge Motata case.
In 2016, the Constitutional Court dismissed an appeal from the Supreme Court of Appeal that ordered the continuance of an investigation by the Judicial Conduct Tribunal in relation to charges of misconduct against Western Cape Judge President John Hlophe. Hlophe was accused of trying to influence two Constitutional Court judges in 2008. The matter still remains unresolved.
Judge Mabel Jansen was accused of making racist remarks in 2015 on a Facebook post. The Judge resigned after the JSC decided that she would have to face the Tribunal.
In 2007, Judge Nkola Motata drunkenly drove his car into a wall. At the scene of the crime, the Judge began to hurl racist remarks at a state witness and two female Metro Police officers. Beyond this, the Judge conducted his defence at the trial dishonestly. In 2018, the Tribunal finally heard the case of two complaints of gross misconduct arising from the crash. The Tribunal’s 12 April 2018 report held that the drunk driving conviction for which Motata was charged, was not enough to trigger a finding of gross misconduct.
The Tribunal focused on i) how he defended himself in his criminal trial and ii) the charge of racism. The Judge instructed his defence lawyer to present the case that he was not drunk. The tribunal concluded that the Judge had conducted a defence which he knew to lack integrity. Further, the Tribunal held that the comment “No boer is going to undermine me… this used to be a white man’s land, even if they have more land… South Africa belongs to us. We are ruling South Africa” was in fact racist and constituted gross misconduct. The Tribunal has made the recommendation to the JSC that section 177(1)(a) of the Constitution be invoked, which would result in the Judge being impeached if the National Assembly so decides.
EFFECTIVENESS OF THE COMMISSION AND TRIBUNAL
The effectiveness of such complaint, investigative and impeachment procedures is questionable. At the time of writing this brief, seven Judges are facing the Tribunal including Judges Ferdi Preller (retired), Ntsikelelo Poswa (medically boarded), George Webster (retired) and Moses Mavundla (still at work) for long-outstanding judgments. Free State Judge Shamin Ebrahim (medically boarded) faces a complaint for failing to disclose her interests as required under the JSC Act regulations. Only the case of Judge Jansen, on account of her resignation, has been resolved.
A contributory reason for the delay is that some of the incidents resulting in the Tribunal consideration occurred before the 2010 JSC Amendment Act. It was argued that the cases that pre-dated the amended procedure must be dealt with, not by the Tribunal, but by the entire JSC - as was the procedure before the amendment was affected. Constitutional Court Justices Bess Nkabinde and Chris Jafta challenged the amendment on a technical basis because it breached the separation of powers doctrine.
The Supreme Court of Appeal dismissed the appeal from the Gauteng Local Division of the High Court, Johannesburg which had dismissed the challenge. The dismissal of the appeal to the Constitutional Court brought the matter to finality. The decision removes uncertainty surrounding the constitutionality of the amendment and unblocks the obstruction preventing the Tribunal doing its work. It is hoped that, granted this progress, the consideration of matters will become more expeditious. It is an alarming abuse of public funds to pay these Judges for special leave if their cases are delayed for a long time. Until he retired last year, Judge Motata was on special leave — at a cost of R14-million to taxpayers.
Since Judges are appointed for life, the consequences of impeachment are still a threat even if they have retired.
THE IMPORTANCE OF IMPARTIALITY
It is interesting to note the problems of jury bias, including that of racism, in countries such as the United States. Racism is a punishable offense, and a person convicted of a hate crime, which includes a crime motivated by racism, can be convicted of a felony – a crime punishable by a prison sentence of more than one year. If a person is convicted of or is subject to felony charges they may not serve as a member of a jury. A jury must be free from overt racial prejudice. In terms of the South African situation where a Judge is the only person responsible for adjudicating a case, it is even more pertinent that such induvial must not exhibit racial prejudice.
In addition to the obvious prejudices inherent in a racist judgment, the misconduct goes further to taint judicial credibility. “Judicial misconduct undermines the esteem with which society holds the judiciary, and can only weaken the willingness of the public to accept judicial decisions. This is why it is critical that we hold judges to the highest ethical standards and come down hard if they fail to meet these standards. When misconduct occurs, judicial disciplinary procedures must be credible, effective and swiftly implemented”. Other than disciplinary procedures against the Judge, what are the consequences for the judgments already handed down? Are these judgments irreparably tainted? Should they be reviewed or even set aside?
It is imperative that judges act in accordance with the values contained in the Bill of Rights and act impartially with clear-headed transparency when considering cases before them. A Judge who fails to act in terms of such ideals fails – not only the parties in court – but also the reputation of the judiciary as an institution.
Jade Weiner is a Researcher at the Helen Suzman Foundation.
This article first appeared as an HSF Brief.
 Jasat v Natal Law Society (78/98)  ZASCA 14; 2000 (3) SA 44 (SCA);  2 All SA 310 (A) at 11.
 The JSC is entitled to advise the national government on any matters relating to the Judiciary or administration of justice. Additionally, it performs the following functions:
- interviewing candidates for judicial posts and making recommendations for appointment to the bench; and
- dealing with complaints brought against Judges.
 Helen Suzman Foundation v Judicial Service Commission (CCT289/16)  ZACC 8 at 81.
 How does the JSC Deal with Complaints against Judges Judges Matter available at https://www.judgesmatter.co.za/opinions/complaints_against_judges/ accessed on 25/05/18.
 Section 177(1)(b) of the Constitution.
 The amendment provides that a member of the prosecuting authority be appointed as a pro forma prosecutor. Nkabinde and Another v Judicial Service Commission and Others (20857/2014)  ZASCA 12;  2 All SA 415 (SCA); 2016 (4) SA 1 (SCA).
 In response to questions by the Freedom Front Plus last year, Justice Minister Michael Masutha said Motata had been paid R14 million since being on special leave in 2007.
 Former Chief Justice S Sandile Ngcobo Sustaining Public Confidence In The Judiciary: An Essential Condition For Realising The Judicial Role SALJ Vol 128 2011 at 15.