Parliament’s portfolio committee on justice and constitutional development will not oppose Gauteng High Court judge Nana Makhubele’s urgent application to halt its consideration of the recommendation that she beimpeached.
Last week, Makhubele filed the urgent application to halt parliament’s consideration of the Judicial Service Commission (JSC) recommendation for her impeachment.
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 previously reported that the committee, 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 is against the National Assembly speaker and the committee chair.
The committee chair on Monday filed a notice to abide by the court’s decision on the case. This means the committee will not oppose the application.
National Assembly speaker Thoko Didiza has not yet filed papers indicating her position on the matter and it remains unclear if she will oppose it as the first respondent.
If impeached, Makhubele will lose her title and the benefit of receiving a judge’s salary for life.
Makhubele, in court papers, argues that 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.
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 has 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.
“The president has no discretion but to remove a judge after the National Assembly has adopted a resolution to do so,” Makhubele argues.
“An interdict is only satisfactory against the first [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.”
