ConCourt rejects former judge Motata’s application to overturn his impeachment

The Constitutional Court has dismissed an application brought by impeached judge Nkola John Motata, almost a year after he approached the court. Motata went directly to the court to try to have his impeachment overturned, skipping the high court and Supreme Court of Appeal.

“The Constitutional Court has considered the application for direct access. It has concluded that no case has been made for direct access. The court has decided not to award access,” the order reads.

The Constitutional Court is South Africa’s highest court and only grants direct access in certain cases.

Read in Daily Maverick: Double jeopardy – Disgraced ex-judge Motata goes to ConCourt over ‘double punishment’ for crime

A researcher at Judges Matter, Mbekezeli Benjamin, noted that the threshold for direct access is set very high. Judges Matter is a non-profit organisation that monitors the work of judges, judicial appointments and related matters.

“It is notoriously difficult to get direct access to the ConCourt. Generally, the Constitutional Court is reluctant to be the court of first and last instance,” he said.

Litigants who want direct access often have to prove why the case is of extreme constitutional importance and should explain why the lower courts should not hear argument first.

But because of the wording of the order, Motata could still have a legal avenue to have his case heard, said Benjamin.

“He challenges the basis of Parliament’s decision and so he could still challenge that in the high court and then it will wind its way to the Constitutional Court. But for now, if he does not take that issue up, then it's the end of the road,” he said.

‘Double jeopardy’ argument

Motata approached the ConCourt in March 2024, requesting the court to set aside the National Assembly’s decision to have him removed. He argued that the National Assembly lacked the jurisdiction to have him removed, and said the decision was motivated by “misinformation”.

Motata also claimed he was a victim of double jeopardy and was being punished twice for the same crime — first when he was fined for misconduct and the second time when Parliament removed him as a judge.

“I was punished by paying the hefty fine out of my pension payout. I may not be able to recover the sum from the JSC [Judicial Service Commission] or South African Judicial Education Institute, yet I would still be removed from office as a punishment. The double jeopardy rule was introduced to prevent such an unjust eventuality,” he said.

Motata was impeached on 21 February 2024 along with former Western Cape Judge President John Hlophe, who now serves as a member of Parliament for the MK party.

Read in Daily Maverick: Justice committee recommends removal from office of judges Hlophe and Motata 

Motata’s impeachment stemmed from a 2007 drunk driving incident in which he drove into a wall and subsequently made several disparaging comments to the homeowner, Richard Baird. He was tried criminally, convicted of drunk driving and fined R20,000.

After the incident became public, lobby group AfriForum lodged a complaint with the JSC accusing Motata of gross misconduct for comments he made at the scene of the crash, some of which were recorded on tape.

In 2019, the JSC found Motata guilty of misconduct, and not gross misconduct, and ordered him to pay a fine of R1,152,650.40. The money went to the SA Judicial Education Institute.

That was not the end of the matter as the JSC’s decision was challenged in court because it went against the recommendation of a Judicial Conduct Tribunal that found that Motata was guilty of gross misconduct, which is a dismissable offence in terms of the Constitution.

Read in Daily Maverick: The Motata ruling – Structural and human problems behind failure of JSC to protect integrity of judicial system

In 2023, the SCA noted that Motata never apologised for his conduct and the JSC should have considered the impact his remaining in office would have on public confidence in the judiciary.

“It appears that he failed, even after finalisation of the criminal trial, to appreciate that he had engaged in misconduct of a most serious kind. This reveals both his lack of insight and his lack of appreciation for his misconduct on the public confidence in the judiciary,” wrote Judge Visvanathan Ponnan in the majority judgment.

“Judge Motata’s conduct was egregious … his behaviour at the scene of the incident was characterised by racism, sexism and vulgarity. The public watched him conduct a dishonest defence during his trial and on appeal. They watched him dishonestly accuse Mr Baird of using the k-word, only to thereafter withdraw the accusation,” noted Ponnan.

Motata retired from active office in 2017 and had he not been impeached he would have continued to collect judicial benefits, including a salary for life.

When contacted for comment on the order, Motata’s lawyer Simeon Ngomane said: “At this moment I don’t have any comment because I am waiting for further instructions from the client.” DM