It is now up to the National Assembly to decide, by a two-thirds majority vote, whether Judge Nkola Motata should be removed from office.
This follows the first step taken by the Judicial Service Commission (JSC) regarding his removal.
Parliament announced on Friday it had received correspondence from Chief Justice Raymond Zondo pertaining to a finding of gross misconduct against Motata.
Section 177 of the constitution provides that a judge may be removed from office only if the JSC finds the judge suffers from an incapacity, is grossly incompetent, or is guilty of gross misconduct, and the National Assembly calls for that judge to be removed, by a resolution adopted with a supporting vote of at least two-thirds of its members.
The constitution also states that the president must remove a judge from office on the adoption of a resolution by parliament calling for that judge to be removed.
Parliament said the letter from Zondo, received on August 18, will be brought to the attention of MPs.
The events leading to Motata possibly facing a vote of impeachment date back to January 2007, when he crashed his Jaguar into the wall of a Hurlingham, Johannesburg, home and then made racist comments to the homeowner.
Motata was later convicted of driving under the influence. The judicial conduct tribunal recommended to the JSC in 2018 that Motata be removed from the bench for gross misconduct.
However, the JSC refused to accept the recommendation, deciding Motata’s actions at the time of the crash amounted to misconduct but not gross misconduct and did not warrant his removal from the judiciary. Instead, it fined him R1.1m.
But in 2020, Freedom Under Law began proceedings before the Johannesburg high court to have the JSC’s decision reviewed and set aside and to substitute that decision with a finding that Motata was guilty of gross misconduct
The high court dismissed the FUL application last year, prompting FUL to apply for leave to appeal to the Supreme Court of Appeal. Motata did not participate in the proceedings, either in the SCA or the high court.
In June, the SCA upheld FUL’s appeal and ordered the matter be remitted to the JSC for it to be dealt with in terms of section 20(4) of the JSC Act.
That section provides that if the JSC finds that a judge is grossly incompetent or is guilty of gross misconduct, it must submit that finding, together with the reasons for it and a copy of the report, including any relevant material of the tribunal, to the speaker of the National Assembly. This is what Zondo has done.
Though Motata retired in 2017 after being on special leave since January 2007, he was allowed to keep all benefits — including a salary for life. However, if he is impeached, these benefits will be withdrawn
