Written by: Dr Pearl Kupe
Article source: JOY! Magazine

On Thursday 22 February, we woke up to the bittersweet news that Judges John Hlophe and Nkola Motata became the first two judges in the history of post-democratic South Africa to be recommended by the National Assembly for impeachment proceedings. Never before has any judge in South Africa been voted by an overwhelming majority of parliamentarians for impeachment. Impeachment essentially allows for legal charges to be brought against government officials. Section 177 of the South African Constitution allows for the removal of a judge where the Judicial Service Commission has found, by way of a tribunal inquiry, that the said Judge suffers from:

  • incapacity, or
  • is guilty of gross misconduct, and/or
  • is grossly incompetent

Hlophe’s case started as far back as 2008, when nine justices of the Constitutional Court laid a complaint against him, accusing him of attempting to influence Justices Chris Jafta and Bess Nkabinde in a case involving former President Jacob Zuma. Motata’s case started seventeen years ago in 2007 after he crashed his car into the boundary wall of a house and followed that up by hurling profanities at people who were there. He was later found guilty by the Judicial Services Council of drunk driving and misconduct in 2009, but the Supreme Court of Appeal, found that he should rather have been found guilty of gross misconduct.

Who is Judge John Hlophe?
Judge John Hlophe studied law at the University of Natal, the University of Fort Hare, and Cambridge University and lectured in law at the University of Transkei before he was appointed to the bench. His career as a judge began with his appointment in 1995. He had the privilege of having been permanently appointed at a relatively young age of 36 as the first black judge in the Western Cape High Court. He also carries the distinction of being the first “full-time academic to be appointed as a High Court Judge”. In 2000, he was appointed as Judge President of the Western Cape Division of the Hight Court in South Africa. More recently, he was shortlisted in 2021 as one of the top five candidates for the vacant Chief Justice position that was previously held by former Chief Justice Mogoeng Mogoeng. His name was removed after several objections were lodged in protest.

Who is Judge Nkola Motata?
Judge Motata was prosecuted and convicted for drunk driving, after which two additional complaints were filed against him, namely (1) for knowingly raising a dishonest defence in his criminal trial; and (2) for racist comments he made while intoxicated, after his accident. He was placed on special leave from 2007 for proses of investigating this case and has been on full pension since 2017 at the taxpayers’ expense. A video of him after crashing into a home of him intoxicated and slurring his speech went viral in 2007.

One question I still have is why it took 16 years to investigate and finalise this matter and, in the case of Judge Motata, 17 years. In law, there is a maxim that states that “justice delayed is justice denied”. It should never have taken so long to investigate and make a ruling of impeachment in these two cases. It shows that there was a lack of seriousness in dealing with the matters.

Judicial accountability, integrity, and rule of law
Judicial accountability is key and a fundamental tenet of the rule of law. The rule of law guarantees the equality of all individuals in society. It is based on the principle that every person is equal before the law and the law must be applied equally without fear or favour. It is a basic tenet that must be protected at all costs.

The rule of law must be applied across board and especially within the judicial arena as the judicial office is a high calling. The nation depends on judicial officers to conduct themselves with integrity and the highest level of ethical conduct. That is why there is judicial code of conduct.

I remember studying legal ethics as one of my final year courses. In that class, much emphasis was placed on the nobility of the legal profession and the high ethical standards required of all those in this field.

In a previous JOY! Magazine article I wrote on the subject matter of the rule of law. “In nations where there is no rule of the law, corruption and bribery become the norm of the day. Poverty, inequality, injustice, and lawlessness become the main drivers and the nation plunges downwards into a socio-economic quagmire.

South Africa must always strive to protect the rule of law to ensure it does not descend further into a lawless society where laws are not respected and there is an expectation created that laws are only to be obeyed by some while other selected individuals are held to be exempt from obeying the law.

If South Africa allows this the selective application of rule of law principles, it will not only be setting an extremely dangerous precedent for itself, but it will also be paving a chart and pathway for the nation’s eventual destruction.”

One the one hand, it is sad to see two of the first ever black judges in South Africa ending their careers in such a manner when they could have gone down in history as trendsetters and pioneers in the legal field.

On the other hand, it is most encouraging to know that no one is above the law, including judge presidents. Let us hope and pray that this heralds a new era that will support the legal maxim that says “justice should not only be done, but should manifestly and undoubtedly be seen to be done” and the scripture in Psalm 97:2 that righteousness and justice are the foundation of God’s throne.

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Date published: 26/02/2024
Feature image: Judges John Hlophe and Nkola Motata

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