The Judicial Service Commission (JSC) has shut down claims by drunk-driving Judge Nkola Motata that the tribunal it appointed to help discipline him is unlawful.
Motata has been on special leave since he crashed his Jaguar into the wall of a Johannesburg home in 2007 while drunk and is challenging the JSC’s disciplinary structures in the Constitutional Court.
The High Court in Pretoria found in December that the JSC was free to decide how it investigates judges.
State legal adviser Lawrence Bassett argued‚ in court papers‚ that Motata’s claim about the JSC’s conduct committees and tribunals breaching the doctrine of the separation of powers – because these include non-judicial members – is flawed.
Though these bodies offer assistance‚ it is the JSC that has the final say on recommendations for dealing with misbehaving judges‚ he said.
Bassett deposed his affidavit‚ filed on February 14‚ on behalf of the Minister of Justice and Correctional Services Michael Masutha and the JSC.
“The [Judicial Conduct Committee] and Tribunal are bodies that assist the JSC in establishing whether a complaint will prima facie indicate incapacity‚ gross incompetence or gross misconduct‚” Basset said.
“[But] the JSC is the body that will find that the judge suffers from an incapacity‚ is grossly incompetent or is guilty of gross misconduct; and the JSC is the body that will recommend that a judge may be removed from office.”
Motata claimed that parliament trampled the JSC’s rules when it enacted the Judicial Service Commission Amendment Act in 2008‚ and in doing so took over the duties of determining the JSC’s procedures. The Act allows people who are not members of the JSC to participate in disciplinary proceedings.
Bassett denied that the JSC had delegated its responsibilities to parliament in this regard.
“The JSC‚ after the amendment of the JSC Act in 2008‚ chose as its own procedure‚ the procedure provided for in the JSC Act. Parliament‚ in passing the JSC Act‚ exercised original jurisdiction derived from the Constitution in collaboration with the JSC.
“This arrangement secures the separation of powers and preserves the supremacy and independence of the judiciary as members of the National Assembly participating in the JSC will have an opportunity to vote on the removal in their legislature in due course.”
Bassett said that other arms of government are bound by the constitution to ensure the JSC is able to function optimally.
The responding parties want the Constitutional Court to dismiss Motata’s appeal of the judgment by the High Court in Pretoria.
The resolution of the case will open the gates for disciplinary proceedings pending against Judge Mabel Jansen and Judge John Hlophe.
Jansen‚ who has been on special leave since May‚ came under fire for a string of Facebook comments‚ in which she said 99% of the criminal cases she heard were “of black fathers/uncles/brothers raping children as young as five years old”.
Proceedings against Hlophe‚ accused of trying to influence Constitutional Court justices‚ have been delayed for years.
Motata was due to appear before a Judicial Conduct Tribunal in 2013‚ on complaints relating to racist remarks he made at the scene of his accident and his conduct at his subsequent criminal trial.
Motata denied that his remarks constituted racism.
The judge was convicted and sentenced to a fine of R20‚000 for driving drunk in 2009.
The hearing date is yet to be set.