Gauteng High Court judge Nana Makhubele has filed an urgent application to halt parliament’s consideration of the Judicial Service Commission (JSC) recommendation for her to be impeached.
Makhubele wants the parliamentary process to be halted until finalisation of a review application to set aside the JSC’s gross misconduct finding against her which prompted parliament’s impeachment process.
Business Day reported earlier that parliament’s portfolio committee on justice and constitutional development, chaired by Xola Nqola, last week resolved to continue considering the recommendation of the JSC for Makhubele’s impeachment despite the legal dispute.
The urgent application before the high court in Pretoria against the National Assembly speaker and the committee will delay the impeachment process.
If impeached, Makhubele will lose her title and lose the benefit of receiving a judge’s salary for life.
The JSC decision is the foundation of parliament’s impeachment process, and should a court set aside the finding, it will trigger a novel legal case on the impeachment process if parliament votes for her removal.
Makhubele argues if the National Assembly proceeds with the impeachment vote before the outcome of the review application, she will have no alternative relief to save her career.
“The continuation of the section 177 [removal of a judge] proceedings under circumstances where there is a pending review application will result in irreparable harm,” she argues.
“The fact that I will have no alternative remedy in an adverse vote from the National Assembly makes this matter urgent. Even if I were to succeed in the review application, the victory will be meaningless.”
The continuation of the section 177 [removal of a judge] proceedings under circumstances where there is a pending review application will result in irreparable harm
— Judge Nana Makhubele
Parliamentary legal adviser Barbara Loots told MPs last week if parliament impeaches Makhubele and she later wins the review, the impeachment decision would fall away.
It is unclear how President Cyril Ramaphosa is expected to deal with the legal conundrum, as he is expected to remove Makhubele when parliament passes a majority vote on the impeachment.
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.
After a majority vote in parliament, the president must remove the judge.
“An interdict is only satisfactory against the first [National Assembly speaker Thoko Didiza] and third respondents [Nqola], because once the section 177 proceedings are concluded and I am unconstitutionally removed as a judge, the prejudice is irreversible.
“The president has no discretion but to remove a judge after the National Assembly has adopted a resolution to do so.”
Makhubele, in court papers, argues she did not have an interdict prayer in the review application because she had made a request for a stay in the impeachment proceedings to the National Assembly speaker’s office.
She, however, did not win in the out-of-court procedure because parliament contends without a court order prohibiting it from considering the JSC report, it has to fulfil its constitutional mandate and consider the impeachment recommendation.
“I do not have legal representation; hence, I was reluctant to engage in litigation with the speaker of parliament on an issue that, in my view, can be resolved in an amicable manner,” Makhubele maintains.
“I have a right to have the dispute between myself and the JSC adjudicated by the courts. I submit that the National Assembly, being a constitutional institution, should not be allowed to ignore this right. I have demonstrated the various irregularities and failures in the JSC process, which I believe should be reviewed and set aside.”
One of Makhubele’s contentions is the gross misconduct findings of the JSC and the Judicial Conduct Tribunal (JCT) are based on two different sections of the Judicial Services Act.
“The JCT found me guilty of gross misconduct as contemplated in section 14 (4) (e) of the Judicial Services Act. It is common cause that the relevant section in terms of which the JCT purported to rely on says nothing about gross misconduct.
“A guilty finding in terms of section 14 (4) (e) does not invoke the provisions of section 177 of the constitution which exposes the affected judge to be removed from office.”
Makhubele challenges the JSC, arguing there were irregularities in the commission’s probe on the complaint against her.
Makhubele was initially found guilty of misconduct by the JCT last January on a complaint that she accepted a job as a Passenger Rail Agency South Africa (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 in 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 in November 2020 pending a probe into her conduct.
Makhubele argues her late start on the bench meant there was no conflict of interest.
“One such issue is a question of whether a recommended candidate for judicial appointment becomes a judge merely on the basis of that recommendation irrespective of the fact they never took the oath of office or performed any judicial function,” her papers state.
“My argument before the JSC was that I only became a judge, factually, and legally, when I took office in June 2018.
“My contention is that the complaint was not investigated at all because in their report, the JSC placed the burden of summoning or presenting evidence on me. This is in breach of not only the constitutional mandate of the JSC but also the rules which clearly define the duties and obligations of the JCT.”
Business Day
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