January 18, 2021

SA law regards racism as illegal and punishable

The Judicial Tribunal, lead by Judge President Achmat Jappie, enquiring into the complaint laid against Judge Nkola Motata has resulted in an extremely serious finding.

It finds that sec 177(1)(a) of the Constitution should be invoked, which, if done, would result in the Judge being impeached.

What did Judge Motata do to result in such a finding? Many of us would assume that being convicted of drunk driving was in fact the issue, and that Judge Motata should be impeached on that basis. In fact, no. The Tribunal says that a judge being convicted of drunk driving is not in and of itself enough to trigger a finding of gross misconduct. Nor does the tribunal address itself to a general finding of gross misconduct.

Instead the tribunal focuses on the two complaints laid at the JSC against Judge Motata. One is about how he defended himself in his criminal trial, and the second is a charge of racism.

In conducting a trial, the lawyer representing the accused has to present a defence which the accused instructs him or her to. In this case, Judge Motata told his lawyer to present the case that he was not drunk. The tribunal concluded that the judge had conducted a defence which he knew to lack integrity.

On the second complaint of racism, the tribunal held that the Judge’s conduct and remarks at the scene were racist, and thus impinge on and prejudice the impartiality and dignity of our courts. The comments the tribunal focused on his comment “this used to be a white man’s land….South Africa belongs to us …this is our world…not the world of the boers…even if they have more land/bodies….” Racist conduct, holds the tribunal, constitutes gross misconduct in a Judge. The tribunal questions as to what the attitude of the judge would be towards an ordinary person, ‘let alone a person of Afrikaner descent.’

The Tribunal does not engage with the questions as to whether a black person can be described as racist. Racism when used in the sociological literature is generally premised on the assertion that racism is the result of two additive components – prejudice and power. In that analysis, a black person, who is the subject of structural racism, cannot be a racist themselves.

The finding of the tribunal will now go back to the JSC, who must decide on the next steps to have the judge impeached. The National Assembly must vote for impeachment by a two thirds majority. It will be some time before this matter is concluded.

This article first appeared on the Judges Matter website

Last modified on Tuesday, 24 April 2018 08:15

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Notes from the House is an independent online publication that tracks and monitors Parliament’s role in fulfilling its constitutional responsibilities to improve the lives of South African citizens. Published by Moira Levy with the support of the Claude Leon Foundation.

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