The impeachment of Judge Hlophe and Judge Motata: A win for democracy and accountability

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The judicial misconduct cases involving Judge President John Hlophe and retired Judge Nkola Motata have finally reached their end after the majority of the National Assembly, on 21 February 2024, voted for the historic impeachment of both Judges from office, resulting in a loss of all privileges and benefits appending to Judges post retirement.

The dramatic rulings of the tumultuous proceedings, marked by unprecedented delays, and its many twists and turns could serve as a plot for a Hollywood thriller. The impeachments mark a low point in our constitutional democracy but a notable win for judicial accountability.

However, questions surrounding the excessive delay in finalising both disputes in the face of irrefutable evidence of wrongdoing remain. How did Hlophe and Motata evade the wheels of justice with relative impunity for so long?

One cannot deny the complexities and challenges that come with the mammoth task of impeaching a Judge in a democratic state. However, the events that bedevilled the finalisation of these disputes also reveal an invidious attempt at political machination by the powers that be, to thwart the finality of these proceedings, which has undermined the authority of the Judiciary.

The undue delay in bringing a close to these proceedings further reveals a fracture in the accountability mechanisms of the Judiciary. Nonetheless, the impeachment of Motata and Hlophe ought to serve as a warning for all judicial officers who undermine the importance of their roles that derelict conduct will not go unpunished.

Hlophe and Motata: A long history of misconduct

Judge President Hlophe’s woes with the judicial misconduct span 16 years. In 2008, Hlophe visited Justices Nkabinde and Jafta at the Constitutional Court, both members of the Court at the time. Hlophe wanted to influence both Justices’ opinions on an outcome in a matter being heard by the Constitutional Court concerning former President Jacob Zuma. Both Justices Jafta and Nkabinde shared the discussion with the other Justices of the Court, who agreed to submit a formal complaint of gross misconduct to the Judicial Service Commission (JSC) against Hlophe for attempting to improperly influence the members of the Constitutional Court.

Initially, the JSC chose not to hear the matter in 2009. However, that decision was set aside on review in a 2011 Supreme Court of Appeal (SCA) case of Freedom Under Law v Acting Chairperson: Judicial Service Commission and Others brought by Freedom Under Law (FUL). The SCA ordered the JSC to investigate the enquiry. A litany of litigation ensued resulting in several judicial decisions on the matter. Finally, the longstanding court battle culminated in the JSC conducting the enquiry in 2021. The outcome of the investigation was that Hlophe was indeed found guilty of gross misconduct.

During this period, Hlophe was also subjected to other JSC complaints of misconduct by several judges of the Cape Division of the High Court. Most notably, Deputy Judge President Patricia Goliath accused Hlophe of using abusive language towards her. Hlophe retaliated with complaints of his own against Goliath, accusing her of racism and using racially offensive language. The three-year back-and-forth spat ended with the JSC clearing Goliath of all charges levelled against her by Hlophe.

Judge Motata’s case is no less redeeming. In 2007, a drunk Judge Motata attempted to make a U-Turn and crashed into a wall. Afterwards, in a drunken tirade, Judge Motata hurled insults fuelled with racial innuendos and slurs at the property owner, Richard Baird, who captured the episode on video.

Judge Motata was criminally charged and convicted of several offences arising from the incident, which included driving a motor vehicle whilst under the influence of intoxicating liquor. He publicly denied being under the influence of alcohol and legally challenged several technical aspects of the Judicial Service Commission Act 9 of 1994 to frustrate the proceedings against him. These attempts were unsuccessful.

Over and above his criminal convictions, several complaints were lodged with the JSC regarding Judge Motata’s conduct. The Judicial Conduct Committee (JCC) of the JSC resolved to request the Chief Justice to appoint a Tribunal to investigate the complaints. The Tribunal was instituted and ultimately found that Judge Motata’s conduct constituted gross misconduct and recommended that the JSC invoke proceedings to remove Judge Motata in accordance with section 177(1)(a) of the Constitution. The JSC met to discuss the Tribunal’s Report, and in a shocking procession of events, the JSC rejected the Tribunal’s recommendation.

“…the impeachment of Motata and Hlophe ought to serve as a warning for all judicial officers who undermine the importance of their roles that derelict conduct will not go unpunished”.

An overriding factor militating against the adoption of the Tribunal’s recommendation was the “ostensible” role Advocate Izak Smuts SC, a member of the JSC at the time, played in instigating Advocate Gerrit Pretorius to institute a complaint against Motata. This interference was significant as the JSC reasoned that Advocate Smuts SC ought to have disclosed his role in instigating one of the initial complaints, given that he formed part of the deliberations of the JSC that referred the matter to the Judicial Conduct Tribunal.

The JSC found that this procedural irregularity vitiated the entire process. Instead of gross misconduct, the JSC found Judge Motata guilty of misconduct and sanctioned him with a fine of R1 152 650.40.

Dissatisfied with the outcome, FUL instituted an application in the Gauteng Division of the High Court, challenging the JSC’s decision. This was dismissed, but FUL appealed the High Court’s decision at the SCA, which upheld the appeal.

The SCA derided Motata’s conduct as “egregious” remarking how his conduct was characterised by “racism, sexism and vulgarity unbefitting of a judicial officer”. The SCA further criticised his lack of integrity as evinced by his dishonesty at the state of his inebriation and the false accusations he levelled against Richard Baird. The SCA ordered that the JSC submit a finding to the National Assembly that retired Judge Motata is guilty of gross misconduct.

The Law

Several legal instruments govern the misconduct of judicial officers, the standards expected from judicial officers when executing their judicial functions, and the consequences arising from a failure to do so.

Chief amongst these are the Constitution and the Code of Judicial Conduct. Section 177(1)(a) of the Constitution provides that a Judge may be removed from office only if “the Judicial Service Commission finds that the Judge suffers from an incapacity, is grossly incompetent or is guilty of gross misconduct”. Article 4 (a)-(b) of the Code of Judicial Conduct provides that a Judge “must uphold the independence and integrity of the Judiciary” and must “maintain an independence of mind in the performance of judicial duties”.

These provisions allude to the onerous standards of ethics and propriety Judges are expected to adhere to, considering their important role in dispensing justice and upholding the law. When Judges neglect or, worse, disregard these obligations, it not only undermines the credibility of the Judiciary but also erodes public trust and respect in the Judiciary. Consequently, this undermines the rule of law, which is critical for a functional constitutional democracy.

Judges are not immune from the vicissitudes of human error and the shortcomings of a lapse of judgement. However, they are expected to confront these turpitudes with integrity and honesty.

In Motata’s case, his flagrant dishonesty and lack of accountability, even when afforded an opportunity to truthfully account for his fault lines fell afoul of the integrity injunction the Code of Judicial Conduct imposes on Judges.

Hlophe, on the other hand, displayed a wilful and unashamed effort to improperly influence the outcome of a case. He sought to accomplish this by implicating other high-ranking judicial officers in his judicial subterfuge. This, coupled with his subsequent scathing conduct of verbally assaulting his fellow judicial officers can only be characterised as gross misconduct of the highest order.

Conclusion

There is no doubt that both Judges have brought immense disrepute to the Judiciary and that a sanction of impeachment was indeed warranted.

The JSC’s reluctance to initiate such proceedings against both Judges for over a decade is unfortunate and serves as a withering indictment of the ailing state of our institutional systems of accountability within our organs of state. The delay in taking decisive action against the embattled Judges has not only enabled transgressions on the part of Hlophe but has also tainted the public perception of the Judiciary.

Threats to the Judiciary’s credibility are unfortunate and undesirable, especially as it has long enjoyed the reputation of being the only optimally functioning and independent arm of the state, given the institutional failures of the Executive and Political branches.

The impeachment of both Hlophe and Motata represents a crucial step in upholding and strengthening institutional accountability safeguards, whilst simultaneously remedying the Judiciary’s reputation amidst allegations of capture.

The impeachment, a first of its kind in democratic South Africa, sends a strong message: no individual is above the law and derelict judicial officers will be held accountable.