October 19, 2009
The Secretary of the Judicial Services Commission
Private Bag x1
Dear Ms Masangwana,
COMPLAINT AGAINST JUSTICE MOTATA
We refer to your letter dated 30 September 2009 to which was attached a letter from the Honourable Justice NJ Motata (see here).
Thank you for the opportunity to respond to Justice Motata's letter.
It should be stated that the outset that we are convinced that Justice Motata is unfit to serve as a judge of the High Court of South Africa and that the events leading to his conviction for drunken driving support our view that Justice Motata's conduct amounts to gross misconduct.
Allow us to deal with certain allegations contained in Justice Motata's letter. We wish to request the honourable commission to consider these issues-
Ad par 1 and 2
Since it is the Commission view that our complaint cannot be finalised before completion of the criminal trial and since Justice Motata has given notice of his intention to appeal against the conviction and the sentence, we hereby reserve the right to supplement our complaint and the motivation thereof based on the outcome of Justice Motata's appeal. For the time being we have only the records of the court a quo to evaluate and comment upon Justice Motata's explanations and allegations. It should be stated that it was found by the court a quo that Justice Motata in deed made racist remarks and that the evidence against him in this regard was credible (Johannesburg Magistrate Court case number 639868/2007).
Ad par 4.2
Justice Motata's admission that he consumed two glasses of wine on the evening of the unfortunate events is in contrast to his former public denials to this effect. He was reported as stating to a reporter before that he only had tea on the said evening. Refer to the two newspaper articles attached as annexure "A" and "B". It appears as if Justice Motata has now changed horses after his conviction in the Johannesburg Magistrate's Court. Since he was quoted widely on this issue his credibility as a judge of the High Court has been severely damaged.
Ad par 5
It is noted that Justice Motata according to his own admission and translation said the following:
"Yes but you know my brothers and sisters, let me tell you, to most of us this is our land, and not the white man only. Even if they can have big bodies, South Africa is ours."
However according to the official transcript of the video clips taken and admitted as evidence in his trial he was quoted as saying:
"This is our world, it is not the world of the boers. Even if they can have big bodies, South Africa is ours."
There is therefore a clear difference between the official transcript of what he said and his own version.
For this reason we would suggest that the Commission considers the entire transcript of the events of 5th January 2007 to establish the nature of what has been said by Justice Motata. For ease of reference, the transcript is attached as Annexure "C".
Ad par 6.
It is irrelevant whether Justice Motata spoke to the police-officer or to Mr Baird. The fact of the matter was that he was referring to Mr Baird in a derogatory manner with specific reference to his race.
The Oxford Advanced Learner's Dictionary defines the word boer (used in the English language) amongst others as follows:
"(disapproving) used to refer to a member of the (South African) police or army, especially in the past."
More importantly though, is that in order to determine whether the utterances by Judge Motata were racist or not, the context within which the word "boer" or "white man" was used is more important than the exact word itself.
From the context of the transcript it is clear that the intention of Judge Motata was to refer to Mr Baird in a disapproving manner with reference to his race.
Even if it is accepted that the use of "leburu" was to intended to refer to "whites" as opposed to the loaded and disapproving "boers", then the quotes by Judge Motata are even more so racist.
Further quotes from justice Motata according to the transcript are the following:
"The boers / whites are annoying me"
"There is no boer / white who will undermine me"
"Why these boers/whites took my keys?"
"Why are you begging the boers/whites?"
Judge Motata contradicts himself by stating: "it is normal to refer to a white man in the Sotho language as a "leburu" and there is nothing racial about it". Our submission is that his reference to Mr Baird in disapproving racial terms regardless of whether the word in question means "white man" or "boer" is in itself racial and therefore unacceptable for a judge of the High Court of South Africa.
We trust that the information is useful hope that it would assist you in an investigation in terms of section 177(3) of the Constitution.
Legal Representative: AfriForum
Cc: Honourable Judge President BM Ngoepe, North Gauteng High Court: Pretoria
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