Parliament’s portfolio committee on justice & constitutional development on Wednesday resolved to continue considering the recommendation by the Judicial Service Commission (JSC) for the impeachment of judge Nana Makhubele despite a flagged review application.
The JSC made recommendations to the National Assembly for the removal of Makhubele and judge Mushtak Parker after both were found guilty of gross misconduct in two separate cases.
Impeached judges lose their titles and lose the benefit of receiving a judge’s salary for life.
Parliamentary legal adviser Barbara Loots told MPs that Makhubele has initiated a review application in court challenging the JSC and judicial conduct tribunal findings against her, which triggered the parliament process.
Loots, however, said Makhubele in the review did not ask for an interdict against parliament’s process of considering the impeachment process. The effect of this is that there is nothing prohibiting parliament from proceeding with the process of considering and deciding on the impeachment recommendation, she said.
“Parliament has been cited in the matter, but no interdict has been sought to halt the National Assembly’s consideration of the commission’s finding,” she said.
“Absent an interdict and given that the courts have said the JSC finding is a preconditional fact that must be acknowledged by the National Assembly ... the committee in the National Assembly must proceed. The members of this committee can proceed to consider the possibilities of sanction.”
Loots said that if at any stage a court grants an interdict against the parliamentary process, that would be a ground to halt the process.
“The JSC finding has not been set aside and has been duly tabled before the National Assembly, and the committee is called to consider that finding to make a recommendation whether the removal would be an appropriate sanction.”
The constitution stipulates a judge may be removed if the JSC finds the judge guilty of gross misconduct and thereafter the National Assembly calls for that judge to be removed with a supporting vote of at least two-thirds of its members.
In the cases of Makhubele and Parker the committee is yet to consider the JSC report and file a report to the National Assembly on whether impeachment should follow.
The committee, chaired by Xola Nqola, decided on Wednesday that both judges would be called to make submissions to the committee.
“We are going to write letters to both judge Parker and Makhubele for their written representations. We are going to consider the mitigating factors,” Nqola said.
Nqola asked for further and detailed legal advice on the effect of Makhubele’s application on the parliamentary process.
MK party MP Sibonelo Nomvalo urged the committee to consider all facts before taking a decision.
“We are driven by impartiality and objectivity; we are not going to rush to take a decision. Let us apply our own mind as parliament and not rely on what has been presented to us by the JSC,” he said.
“Let us call the affected judges and not say we take this [JSC report] as nothing but the truth and take a decision based on that.”
Parliament has so far impeached two judges: former Western Cape judge president John Hlophe and judge Nkola Motata.
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