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Civil society group #UniteBehind wants Gauteng High Court Judge Tintswalo Makhubele impeached by the Judicial Services Commission (JSC) over alternate charges of gross incompetence, gross misconduct or both.
In a letter to the JSC dated last Monday, the social justice coalition group submitted its evidence of Makhubele’s alleged breach of the JSC Act and the judicial code of conduct, citing the two as sufficient grounds for the matter to be probed by the commissions’ judicial conduct tribunal.
#UniteBehind said Makhubele “undermined the independence of the judiciary by having served in and received remuneration for the position of chairperson of the Passenger Rail Agency of SA (Prasa) – a role within the executive branch of government – after her position as a member of the judiciary had, by presidential determination, come into effect”.
At Prasa, said the group, Makhubele “failed in her duty to act honourably and avoid the appearance of impropriety in all her activities, [and] acted in a manner unbecoming of judicial office”.
It cited allegations that during her stint at the commuter rail service, Makhubele drove efforts to enforce secret settlement agreements with companies linked to corruption.
She was also fingered for allegedly playing a controversial role in an arrangement to invest R1 billion of Prasa’s assets in VBS Mutual Bank, failing to appear before the transport portfolio committee in Parliament and for continued involvement in Prasa affairs after her resignation on March 16 last year.
#UniteBehind described Makhubele’s alleged conduct as incompatible with a person fit and proper to hold judicial office in that “her actions lacked honesty and integrity, and lead to unethical conduct”.
“#UniteBehind submits that the JSC has little choice but to recommend the harshest sanction of impeachment for Judge Makhubele’s conduct,” said group secretariat member Zukiswa Fokazi in an accompanying affidavit dated December 13 last year.
Contacted for comment, Makhubele referred questions to spokesperson for the judiciary Nathi Mncube. Makhubele has previously denied the allegations.
Mncube said of Friday that Makhubele had not been advised by the judicial conduct committee (JCC) of the JSC that a complaint had been lodged against her, and therefore she was unable to respond.
“It seems the JCC is seized with the matter and we are of the view that the media should respect that process and allow the committee to deal with the matter.” Secretary of the JSC Sello Chiloane said the JCC had received a complaint lodged against Makhubele and it “will be dealt with by that body accordingly”.
Chiloane said the committee was also dealing with another matter in which Makhubele had complained against a colleague, Judge Neil Tuchten – who presided in November last year in a matter involving Prasa and Siyaya.
In that judgment Tuchten said he held a “firm view that Judge Makhubele ought not to undertake any judicial duties until she clears her name of the allegations against her”.
An impeachment is the harshest sanction for a sitting judge of the court and carries a penalty that includes the loss of a lifetime salary and other benefits. Once the JSC endorses the removal of a judge, the final decision resides with the president, following a two-third majority vote by the National Assembly. A finding against the judge by the tribunal is not binding on the JSC.
No judge in South Africa has ever been impeached since democracy, but at least two other high-profile judicial officers have faced the threat, including Western Cape High Court Judge President John Hlophe and retired Judge Nkola Motata.
In its complaint to the JSC, #UniteBehind noted that the commission formally recommended Makhubele for appointment as a judge in the Gauteng High Court following her interview before the commission on October 5 2017. Yet 14 days later, then transport minister Joe Maswanganyi appointed Makhubele to Prasa’s interim board “until further notice”.
However, by November 2017, former president Jacob Zuma had confirmed her appointment as a judge, which was to come into effect on January 1 last year. By that time, efforts were under way to get Zuma’s successor, President Cyril Ramaphosa, to shift her appointment to April 1 to avoid a possible breach of the judicial code of conduct as a result of her continued stay at Prasa beyond the official date that Zuma had set for her to take the bench.
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