Suspended Gauteng high court judge Tintswalo Nana Makhubele’s time on the bench could soon come to an end after 17 months on it on a full-time basis, should parliament vote to impeach her.
Makhubele was found guilty of gross misconduct by the Judicial Service Commission (JSC) last Friday. Whether she will remain a judge will depend on politicians in parliament. According to the constitution a judge may be removed from office only if the JSC finds a judge guilty of misconduct and the impeachment motion in parliament gets supported by a two-thirds majority.
If she loses her title, she will lose the benefit of receiving a judge’s salary for life.
Makhubele was initially found guilty of misconduct by the Judicial Conduct Tribunal in January on a complaint that she accepted a job as a Passenger Rail Agency SA (Prasa) board member after she was informed of her imminent appointment as a judge by Gauteng judge president Dunstan Mlambo.
Civil rights organisation Unite Behind, which filed the complaint, argued Makhubele’s conduct undermined the independence of the judiciary and breached the separation of powers doctrine when she accepted both roles on paper.
Makhubele argued she was not a judge when she accepted the Prasa interim board position at the end of October 2017. Former president Jacob Zuma announced her appointment in December 2017 and she was meant to start on January 2018.
Makhubele said she asked to start on the bench in April 2018. This created a conundrum for Mlambo because he could not rescind the president’s appointment. She only started on the bench in June 2018 after her reappointment by President Cyril Ramaphosa. She was suspended on November 2020 pending a probe into her conduct.
The second complaint related to Makhubele’s conduct during her tenure as iterim Prasa chair. Unite Behind accused her of acting in a manner unbecoming of a judicial officer. She was accused of settling a matter with corruption-accused company Siyaya without a mandate from the board.
Makhubele hit back at Unite Behind by saying it was victimising her for decisions taken by the board.
Unite Behind leader Zackie Achmat applauded the JSC’s recommendation. “The big problem for Unite Behind is that we have had to spend close to R4m over six and half years to get to this point,” Achmat told Business Day.
“Now the bigger question for all of us is, will parliament take a two-thirds majority to impeach the judge against whom the evidence is absolutely clear [that] she is not fit and proper to be a lawyer, never mind being a judge?”
“Our confidence in parliament is very weak but the evidence is so clear that I do not believe that parliament can do anything other than impeach judge Makhubele.”
Achmat said unlike MK Party deputy president Mandlakayise Hlophe’s case the nature of corruption allegations against Makhubele would prompt parliament to act.
“If parliament is absolutely serious about upholding the constitution, then parliament has no chance but to impeach judge Makhubele. For the last six years she been on a fully paid judge’s salary and now this must end.”
Makhubele said she could not comment on whether she would challenge the JSC finding in court, adding that she had yet to consult her lawyer and “have sight of the official communication from the JSC.”
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