Parliament, Wednesday, 22 November 2023 – The Portfolio Committee on Justice and Correctional Services today resolved by majority to recommend to the National Assembly (NA) that former Western Cape Judge President John Hlophe and Judge Nkola Motata be removed from office after being found guilty of gross misconduct.

Committee Chairperson Mr Bulelani Magwanishe said the committee processes relating to both judges were undertaken in terms of Section 177 of the Constitution, after the Judicial Services Commission’s (JSC) findings of gross misconduct were referred to the NA for further consideration and possible removal.

The committee previously heard from Dr Barbara Loots of Parliament’s Constitutional and Legal Services regarding the process followed so far and its role in it. The committee heard that its role is limited and does not include conducting an enquiry or repeating the work of the JSC. Parliament’s responsibility is to deliberate on the consequences of the JSC findings and indicate whether removal should follow.

The committee gave both judges an opportunity to provide extenuating circumstances, to ensure a fair process for the purposes of its deliberations. Mr Magwanishe said both judges took up the opportunity to do so comprehensively. “An extension was granted when a request for more time was made,” said Mr Magwanishe.

The JSC findings relate to two complaints against Judge Motata. One concerned his defence in his criminal trial and the other was a charge of racism. In the first matter, when conducting a trial, the accused lawyer is obliged to present a defence based on instructions received from the accused. In Judge Motata’s case, he instructed his lawyer to inform the court that he was not drunk at the scene of a motor accident. A JSC tribunal thereafter concluded that Judge Motata had conducted a defence that he knew lacked integrity.

On the complaint of racism, the tribunal held that the judge’s conduct and remarks at the scene of the car accident were racist. They thus impinged on and prejudiced the impartiality and dignity of the courts. The tribunal’s decision of gross misconduct was later overturned by the JSC to one of misconduct.

Judge Motata indicated to the committee that he was found guilty of misconduct only by the JSC and was consequently fined R1 152 650.40, which he has already paid. He argued that there was no JSC decision of gross misconduct properly referred to the committee. In correspondence to the committee, the “small” JSC (which excludes Members of Parliament serving on the JSC) confirmed the committee’s position, namely that the JSC’s decision of misconduct was set aside and replaced by the Supreme Court of Appeal (SCA) with one of gross misconduct, as per the initial finding of the JSC’s Judicial Conduct Tribunal. The JSC indicated that issue of the fine already paid should be addressed by the JSC and Judge Motata and does not influence the current parliamentary process.

Judge President Hlophe, whose JSC finding of gross misconduct relates to a complaint of attempted improper influence brought by the Justices of the Constitutional Court, indicated that there is alleged undue political pressure to remove him from office. People who dislike him, he claimed, actively pursued the JSC process until it amounted to a finding of gross misconduct. He further claimed it is in the public interest for the committee to not proceed with its deliberations as to possible removal.

He further noted that he is currently the most senior judge (serving 28 years), where he served until his December 2022 suspension, and has 23 years of service as a Judge President. He is a well-respected academic having published and presented numerous papers and chapters in books nationally and internationally. He served as a member of the South African Law Commission, delivered many reported judgments, some which were referred to with authority in SCA and Constitutional Court judgments and is still held in high esteem by many jurists and scholars.

Mr Magwanishe said the committee deliberated extensively, taking all reports, court judgements and extenuating circumstances regarding these matters into account. “We applied our minds. We acted within the specified role and scope the Constitution allows for this. We considered whether there was procedural fairness in both matters.

“We are convinced all processes were fair. The majority of members in the committee were in favour of this and we therefore cannot but recommend to the House that both judges be removed from office.”

ISSUED BY THE PARLIAMENTARY COMMUNICATION SERVICES ON BEHALF OF THE CHAIRPERSON OF THE PORTFOLIO COMMITTEE ON JUSTICE AND CORRECTIONAL SERVICES, MR BULELANI MAGWANISHE.

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