PROFESSION – Judge – Misconduct – Utterances and conduct following drunk driving accident – Section 177 of the Constitution – Removal of judge from office – Judicial Conduct Tribunal finding Judge guilty of gross misconduct – No justification for the Judicial Service Commission rejecting the findings and conclusion of Tribunal – Matter remitted for it to be dealt with by the JSC in terms of section 20(4) of the Judicial Service Commission Act 9 of 1994.
Facts: In the early hours of 6 January 2007, Judge Motata crashed his car into the boundary wall of a residential property owned by Mr Baird. Judge Motata became involved in a verbal altercation with Mr Baird. Mr Baird formed the view that Judge Motata was inebriated. The police eventually managed to handcuff Judge Motata, remove him from his car and arrest him. Using his mobile phone, Mr Baird recorded Judge Motata making racist utterances, resorting to profanities and employing derogatory language. A conviction followed for driving a motor vehicle whilst under the influence of intoxicating liquor.
Appeal: The majority of the Judicial Service Commission (JSC) found Judge Motata guilty of misconduct simpliciter and imposed a fine to be paid to the South African Judicial Education Institute. Freedom Under Law (FUL) approached the High Court to review and set aside the JSC’s decision but the court rejected all of FUL’s grounds of review, dismissed the review application based on the AfriForum complaint and remitted the determination of the Pretorius SC complaint to the JSC for decision.
Discussion: That the Judicial Conduct Tribunal had concluded that Judge Motata’s conduct constituted gross misconduct and recommended to the JSC that the provisions of section 177(1)(a) of the Constitution be invoked; the majority of the JSC decided to reject the Tribunal’s recommendation; that in considering the complaints in a compartmentalised fashion, as it did, the JSC may well have acted arbitrarily and capriciously; that the evidence of provocation was neither clear, nor irrefutable; that Judge Motata had accused Mr Baird of using the k-word, however, the Tribunal found that he had ultimately conceded that Mr Baird did not use the k-word; and that the Tribunal was satisfied that Judge Motata had conducted a defence both at his trial and before the Tribunal that he knew to be untrue and lacked integrity.
Findings: The majority report ignored entirely the impact of the Judge Motata’s racist comments on the public’s confidence in the judiciary. In arriving at a contrary conclusion to the Tribunal, the JSC largely overlooked a great many important findings of fact. The majority’s approach disregarded the purpose for which it was exercising its disciplinary powers. The majority decision also shows no regard whatever for the damning factual findings of the trial court and the Tribunal.
Order: The appeal is upheld and the order of the court below replaced with one where the application succeeds and the matter is remitted to the JSC for it to be dealt with in terms of section 20(4) of the Judicial Service Commission Act 9 of 1994. * Note para .
PONNAN JA (SCHIPPERS JA and KATHREE-SETILOANE AJA concurring)
MOCUMIE JA and MASIPA AJA (dissenting) from para 
CIVIL LAW – Delict – Fraudulent non-disclosure – Sale of immovable property – Knowledge of leaking roof of a guesthouse – Duty to disclose latent defects – Seller fraudulently misrepresented true condition of roof and failed to disclose this to buyers – Non-disclosures and misrepresentation were made deliberately in order to induce the sale of the guesthouse – Constituted fraud.
Facts: Mr and Mrs Zietsman bought a guesthouse in Tzaneen from Mr Le Roux. Barely three months after they had taken occupation of the property, it rained heavily and there was extensive leaking of the entire roof. The guesthouse was flooded with water and the furniture and linen were soddened. For the two months the guesthouse was under repair, they could not conduct any business and lost income.
Appeal: The Regional Court found in favour of the Zietsmans and the High Court dismissed the appeal with costs and confirmed the order of the Regional Court. That order was for Mr Le Roux to pay damages in the amount of R167,480.23 for the repairs of the property and R68,038 for loss of income resulting from the fraudulent non-disclosure and fraudulent misrepresentation.
Discussion: Whether Mr Le Roux, knowing the purpose for which the property was to be used, and having knowledge of the latent defect in the property (the leaking roof), fraudulently failed to disclose this to the Zietsmans before the sale with the aim to induce the sale; that Mrs Zietsman testified that had she been aware of the condition of the roof, she would never have bought the property; that Mr Le Roux had told them that the roof leaked but that it had been repaired and did not leak anymore; and the evidence of the expert witness.
Findings: The engineer’s report revealed extensive and long-standing defects in the roof which contradict Mr Le Roux’s claim that he was not aware of the seriousness of the leakage problems. He had a duty to disclose the latent defects in the entire roof. On his own version, he had no true belief at the time of the signing of the deed of sale that the leaking roof had been fixed. He fraudulently misrepresented the true condition of the roof and failed to disclose this to the Zietsmans. The only reasonable inference to be drawn is that the non-disclosures and misrepresentation were made deliberately in order to induce the sale of the guesthouse and this constituted fraud.
Order: The appeal is dismissed with costs.
MOCUMIE JA (MBATHA JA, MABINDLA-BOQWANA JA, KATHREE-SETILOANE AJA and MALI AJA concurring)
FAMILY – Damages – Extra-marital affair – Ex-husband claiming damages for maintaining child that was not his – Basing claim on fraudulent non-disclosure – No legal duty on one spouse to disclose the existence of an extra-marital affair to the other – Failure to disclose not fraudulent non-disclosure – Furthermore the claim is contra bonos mores and against public policy – Action dismissed.
Facts: The plaintiff and the defendant got married to each other in 1991. During the subsistence of the marriage three daughters were born, the youngest of whom, N, was born in 1997. The parties were divorced in 2012 and they entered into a deed of settlement, which was also made an order of court. During 2015 it was established through blood tests that N is not the biological child of the plaintiff.
Claim: For damages by the plaintiff, who is the former husband of the defendant. He contends that defendant had a duty to disclose that she had an extra-marital affair during the time that N was conceived. Her failure to inform the plaintiff hereof constitutes fraudulent non-disclosure with the intention to deceive him. As a result of the defendant’s misrepresentation, alternatively fraudulent non-disclosure, the plaintiff took the responsibility of maintaining N and paid maintenance for N up to February 2015. He claims that he suffered damages of R1,441,290.
Discussion: That plaintiff explained that N had a medical condition which was not in the health history of their family and that her features were also different to those of their family; the elements for a claim based on fraud and the alleged misrepresentation; the requirements for fraud based on a fraudulent non-disclosure; and whether there is a legal duty to disclose an extra-marital affair.
Findings: There exists no legal duty on one spouse to disclose the existence of an extra-marital affair to the other. The defendant therefore had no legal obligation to have informed the plaintiff of her one-night sexual encounter. Her failure to have done so did consequently not constitute a fraudulent non-disclosure as claimed by the plaintiff. The irreparable emotional damage this action caused to N, her relationship with the plaintiff and the whole family relationship, is very evident from the totality of the evidence. The court furthermore find that his claim is contra bonos mores and against public policy and can for this reason also not succeed.
Order: The earlier order dismissed the action with costs.
VAN ZYL J
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