THE Constitutional Court has dismissed an application by former judge Nkola Motata - who was impeached earlier - for direct access to have the National Assembly resolution to axe him, set aside.
In an order issued subsequently, the apex court said it has considered the application for direct access. It has concluded that no case has been made out for direct access.
The court has decided not to award direct access, the order issued by the registrar of that court said. It also decided not to award costs in this application.
The order was made by Chief Justice Mandisa Maya and nine other justices.
“For as long as Judge Nkola Motata is entitled to be called ‘Judge Motata’, the judiciary continues to be stained in the eyes of the public,” three judges of the Supreme Court of Appeal earlier said when they found that his conduct more than 16 years ago, when he ploughed his gold Jaguar through the wall of a house in Johannesburg North, was of such gravity as to warrant a finding that he be removed from office.
But Motata, who is turning 78 this year and is now retired, took his plight to the apex court last year where he also wanted the decision taken by President Cyril Ramaphosa to remove him declared invalid.
He was discharged from active service as a judge in 2017, but he was placed on special leave following the incident in 2007.
Motata said in an affidavit filed at the Constitutional Court that the National Assembly lacked jurisdiction to pass a resolution to remove him from office and that the resolution was motivated and obtained by misrepresentation.
“I was subjected to double jeopardy having complied and served my punishment as imposed by the JSC (Judicial Service Commission),” Motata stated.
He cited three grounds for the application, which included that the Judicial Conduct Tribunal earlier found him guilty of misconduct not amounting to gross misconduct and imposed a fine of R1.1 million, which he did pay to an institution called the South Africa Judicial Education Institute.
The SCA, however, following an appeal by Freedom Under Law, found him guilty of gross misconduct and instructed the JSC to submit this finding to the National Assembly for a resolution in terms of the Constitution.
Motata stated that the parliamentary committee recommended his removal to the National Assembly, despite no finding of gross misconduct by the JSC.
He added that the parliamentary committee, through its chairperson, misled and misrepresented to Parliament that a finding of gross misconduct had been made against him.
Another objection raised by Motata was the rejection of his argument of double jeopardy (double punishment for the same crime) in relation to the fine imposed and already paid by him.
“The issue, though placed before the SCA, was not considered and dealt with by it when it substituted the initial finding of the JSC.”
Motata said he had been punished, and he had paid his dues – his fine – and he cannot be punished twice. According to him, the parliamentary committee failed to take this into account.
In motivating his direct access application to the Constitutional Court, Motata said it is in the interest of justice that he be heard.
“The impeachment of a judge is a matter of national importance and general public interest. It also involves constitutional issues. Since the inception of the constitutional democracy in South Africa, I am the first alongside Judge President (John) Hlophe to undergo such a process as a judge.”
The Constitutional Court, however, did not delve into the merits of his application or comment on it, as it decided not to entertain his application for direct access to it.