Judge Motata appeared in court this last week for a hearing regarding the charges against him and sparked a controversy when his hearing was moved to the magistrate’s chambers at Judge Motata’s counsel’s request. Advocate Nazir Cassim SC said that he asked that the matter be moved to the magistrate’s chambers to save his client the embarrassment of having to appear before the magistrate in open court with the press present.
"It was I who asked (regional court magistrate Herman Visser) if he would be kind enough to grant a postponement in chambers, which he graciously agreed to do …"
This is not an unheard of step and while it may be a normal request, as the Mail & Guardian points out, the issue is not whether it is a normal request but whether it is right that the request be made and granted. Judge Motata is, well, a judge and if he is found guilty of having been driving drunk (and the indications are there that he was driving drunk) then it is important that his trial be public and transparent. This is really more about the administration of justice generally than it is about this particular individual’s conduct.
Because he is a judge there is already a question as to whether he will be treated like any other accused or not and the way the personnel at the Magistrates’ Court "bent over backwards" to accommodate his counsel’s request already suggests that his trial will be less than public and transparent. Generally speaking trial proceedings in criminal matters should be heard in open court unless it is in the interest of:
- Good order;
- Public morals;
- Security of the state; or
- The administration of justice.
I fail to see how conducting these preliminary proceedings in chambers and away from the public to save the judge the embarrassment of appearing in front of the press and the public and being accused of driving drunk is grounds for not having the proceedings conducted in open court? If anything these considerations should weigh in favour of the judge appearing in open court. People need to see that he is being treated like any other person accused of a similar crime. As for the embarrassment, well of course it is embarrassing to be accused of driving drunk and crashing his car into another citizen’s wall, particularly if it is true. Guilty or not, this matter should be dealt with in open court because of the message it sends to the public at large.
The perception is clearly that if you have money or influence the usual rules don’t apply to you because it is politically incorrect to be forced to comply with the same rules as everyone else. If anything, Judge Motata should have insisted on appearing in open court to send a message that he considers himself subject to the same laws as the rest of us, even if his counsel, the senior prosecutor and the magistrate (each of whom, by the way, have as their primary duty, a duty to the court and to see to the proper administration of justice) desperately wanted to protect him from all that embarrassing stuff.
What kind of message does this send to a public already sceptical about the criminal justice system in light of recent events (Tony Yengeni comes to mind)? What will happen the next time the judge appears in court? Will his trial be conducted in chambers too? Will there be someone there to offer him drinks and perhaps something to eat too? Which other "normal" procedures will be invoked to spare the judge the embarrassment of having his matter heard in open court and how long will it be before a precedent is created whereby high profile figures are spared the embarrassment and inconvenience of being made subject to our law and our procedures?