Motata challenges tribunals set up to discipline judges

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Motata's papers were filed on the day the Constitutional Court gave a ruling that cleared the way for a number of judicial disciplinary proceedings to proceed after a three-year delay.

No fewer than six judges including Motata, face investigations by judicial conduct tribunals that look into potentially impeachable conduct.

All tribunals have been on hold since 2013, when Constitutional Court justices Bess Nkabinde and Chris Jafta challenged the lawfulness of a tribunal at which they had been called to as witnesses.

This was to investigate a 2008 complaint of gross misconduct against Western Cape Judge President John Hlophe.

They also challenged the constitutionality of a section of the JSC Act, on which the Constitutional Court finally ruled on Wednesday.

Now Motata has challenged numerous sections of the JSC Act, saying "the whole process" set out in the act for dealing with misconduct complaints against judges is unconstitutional.

The JSC has already notified the High Court in Pretoria that it will oppose the application.

In 2010, a substantial amendment to the JSC Act came into force. Under it, a judicial conduct committee and judicial conduct tribunals were created.

The committee of five judges receives complaints for processing. Tribunals are established by the chief justice, once the JSC has decided there is potentially impeachable conduct, and are made up of two judges and one other person.

But in his court papers, Motata says the Constitution authorised only the JSC to handle complaints against judges. A process that brought in people other than JSC members was at odds with the Constitution, he said.

"The provisions of (the Constitution) are aimed at protecting judicial independence and separation of powers," he says.

It is also not for Parliament to decide what procedures the JSC should follow because the Constitution says the JSC may determine its own procedure.

Although the Constitution also says the JSC has "powers and functions assigned to it ... in national legislation," he says, this does not mean Parliament could promulgate the JSC Act — "with a view to usurp the powers and functions of the JSC".

Motata faces two complaints. The first is that he made racist remarks at the scene of his car accident in 2007.

The second is that, at his criminal trial for driving under the influence, he relied on a defence he knew to be untrue.

Source: Business Day via I-Net Bridge