Makhubele Tribunal

• The interview: On 5 October 2017, Makhubele was interviewed by the JSC for appointment as a judge of the Gauteng High Court in Pretoria. On the same day, the JSC announced that Makhubele was one of six candidates recommended as judges in Gauteng.
• Timing: Two weeks after the JSC interview, on 19 October 2017, then-transport minister Joe Maswanganyi appointed Makhubele as chairperson of the PRASA board “until further notice”. On 2 November 2017, the Presidency issued a statement confirming that then-President Zuma had appointed Makhubele as a judge to commence duty on 1 January 2018.
• Code of Conduct: According to Article 12(2) of the Code of Judicial Conduct for South African Judges states that:
  A judge must, upon permanent appointment, immediately sever all professional links and recover all fees and other amounts outstanding speedily and organise his or her personal business affairs to minimise the potential for conflicts of interest.
  There is normally a delay between the JSC announcing its recommended candidates and the presidency announcing its formal appointment. An appointment is usually only effective from the date that the President determines in what is called a “Presidential Minute” (an official record of a decision by the President) and the public announcement.  What normally happens is that the newly appointed judge uses this time to close their legal practice, resign from any corporate positions they may have held, and take other necessary steps in preparation for their new professional life on the bench.
  This situation is unusual in that Advocate Makhubele took up the position on the interim PRASA board after the JSC had recommended her for judicial appointment.
• Civil society alarm: In December 2017, civil society group #UniteBehind wrote to the JSC – a constitutional body mandated to oversee the appointment and removal of judges from the Bench – to complain about Makhubele’s position on the Board of PRASA and how this would be in conflict with her imminent assumption of judicial office.
• Breach of separation of powers: #UniteBehind considered Makhubele’s dual position as a judge and a parastatal chair would be a breach of the separation of powers, a fundamental constitutional principle.  They argued that Makhubele being both a judge and working on PRASA’s board may be considered a breach of the separation of powers between the judiciary and the executive, as PRASA is a state-owned entity run by the Department of Transport.
• Questionable deferment: During the course of December 2017, Makhubele is alleged to have written to Judge President Dunstan Mlambo to request a deferment of her assumption of judicial office from 1 January 2018 to April 2018. This, she said, was to allow her to wind down her legal practice and avoid a conflict of interest.
  #UniteBehind argued that such a request for the judicial appointment to be deferred is also unlawful, saying in their letter that:
  “There is no constitutional or legislative power for the president to revoke, withdraw an appointment permanently or temporarily, or to reappoint a judge without a formal interviewing process through the JSC, [and] any such instance must interfere with the separation of powers and the legal principle of life-long tenure”.
  There are only two mechanisms for the termination of a judicial appointment, said the group. These are “resignation or removal under section 177 of the Constitution through a process that involves the JSC and the National Assembly”.
• Questionable dealings: Despite now being technically on the bench (as from 1 January 2018), Makhubele did not step down from her paid position as chair of the PRASA board until 16 March 2018. This became public after she, as chair, and her six fellow board members failed to attend a Parliamentary committee meeting. The subpoena was suspended when Makhubele managed to bring her team before the committee the following week, on 13 February 2018.
  While serving as PRASA chair, # UniteBehind alleges that Makhubele took several steps to advance the interests of Siyaya, a company allegedly involved in “state capture” and receiving contracts from PRASA through corrupt and fraudulent means. In one instance, #UniteBehind alleges that Makhubele sidelined PRASA’s internal legal team and concluded a settlement agreement worth R59 million in favour of Siyaya. Furthermore, Makhubele was instrumental in getting the Board to disband PRASA’s panel of attorneys who were involved in active investigations into corruption. These actions, #UniteBehind alleges, are proof that Makhubele is unfit to occupy the office of judge and should be impeached. Read more here 
• Denial of wrongdoing: In an affidavit filed with the JSC, Makhubele denies that she was a judge as from 1 January 2018, as she had not yet taken the oath of office. She adds that when she wrote to Judge President Mlambo requesting a later start date, it was not to request a special arrangement, but it was simply on the basis that she needed to wind up her affairs in legal practice, including her role as chairperson of the Water Tribunal. Importantly. Makhubele notes that during the course of April/May 2018, President Ramaphosa, on the advice of Justice Minister Michael Masutha, rescinded the 2017 appointment letter and issued a fresh appointment letter that notes that Makhubele’s term of office starts on 1 June 2018. It was only on that date that she took her oath of office and was therefore officially became a judge. In so doing, Makhubele argues that she did not occupy dual offices as Prasa chairperson and judge, as she had already resigned her Prasa chairperson on 16 March when she became a judge on 1 June 2018.
  Related to the question of the date on which she became a judge, Makhubele argues that the JSC does not have any jurisdiction [authority] to investigate her conduct prior to her becoming a judge. She argues that her conduct in relation to PRASA had nothing to do with judicial office and should there be allegations of corruption or other impropriety, these should properly be investigated by law enforcement authorities.
  Makhubele denies that she interfered improperly in legal cases at PRASA or that she sidelined the internal legal team. She says that the decision to disband the panel of attorneys was taken by a collective of the Board, and it is unfair to single her out for discipline without doing the same for her fellow board members. For this reason, #UniteBehind was acting against her due to improper motives, including racism against her as a black woman.
• PRASA in High Court: In a November 2018 Pretoria High Court judgment in the case between Passenger Rail Agency of South Africa (PRASA) and Siyaya Rail Solutions, Judge Tuchten raised questions about Judge Makhubele’s role in a PRASA dispute. Tuchten wrote that Makhubele “ought not to undertake any judicial duties until she clears her name of the allegations against her. ”The judgment said that Makhubele had disrupted litigation procedures within PRASA by instructing Ground Legal Services (GLS), an internal body of the rail agency, to stop its participation in the Siyaya litigation. At issue in the case was a R56-million payment by PRASA to Siyaya.
• Counter action: In April 2019, Judge Makhubele responded and lodged a complaint with the Judicial Conduct Committee against Judge Neil Tuchten for “defamatory statements and unwarranted criticisms” against her.  The Judicial Conduct Committee dismissed Makhubele’s complaint and found that Tuchten was entitled as a judge to raise concerns of impropriety in his judgment.
• Zondo Commission: In July 2020, Makhubele was called before the Zondo Commission into State Capture to account for the time she served as the chairperson of PRASA’s interim board. She had been implicated by employees from PRASA’s legal department for having interfered in the litigation between PRASA and Siyaya Rail Solutions, which had won contracts worth millions of Rands. Judge Makhubele became the first and only judge to appear before the Zondo Commission.

 

#UniteBehind filed its complaint against Judge Makhubele in January 2019. Over a year later, in March 2020, the complaint was referred to the Judicial Conduct Committee (JCC). The JCC held a private hearing where both #UniteBehind and Judge Makhubele were given the opportunity to make representations and legal arguments.

After this hearing, Chief Justice Mogoeng Mogoeng (joined by fellow JCC members Judge Dumisani Zondi and Judge Nambitha Dambuza) handed down a written decision in which he found that #UniteBehind had established a prima facie case of gross misconduct against Judge Makhubele, which might lead to her impeachment. CJ Mogoeng recommended that the JSC establish a Judicial Conduct Tribunal to investigate the complaint against her.

Read the JCC finding here

In October 2020, the Judicial Service Commission (JSC) met to decide on the JCC’s decision in the Makhubele complaint. After considering the complaint, the submissions made by all the parties, and the Judicial Conduct Committee’s recommendation, the JSC decided that a tribunal — which looks into potentially impeachable conduct — was warranted and should be appointed.

In a media statement, the JSC also indicated that it would advise the president that “it would be desirable” to suspend Makhubele pending the finalisation of the complaint.

Read the full JSC statement here

In early November 2020, Makhubele submitted an urgent application in the North Gauteng High Court to set aside the JSC’s recommendation to President Cyril Ramaphosa that she be suspended from her duties. Her application claimed that the JSC lacked the jurisdiction to discipline her. Her papers also cited commuter activist group #UniteBehind as a respondent. It was #UniteBehind’s complaint to the JSC that led to her suspension.

Makhubele also wanted the court to declare that the state should pay her legal costs. She later withdrew her application after the JSC filed a notice of counterapplication, which asked the court, if her application was successful, to set aside her appointment as a judge and to bar her from performing any judicial functions or practising as an advocate.

The Tribunal then confirmed that the date for Judge Makhubele’s Tribunal was scheduled for 10 and 11 January 2022, exactly three years after the complaint was filed.

 

Judge Makhubele faces charges of gross misconduct and possible impeachment on a complaint from civil society coalition #UniteBehind that she continued to serve as chairperson of the board of PRASA after she was appointed a judge on 1 January 2018.

Her being a judge and working on PRASA’s board may be considered a breach of the separation of powers between the judiciary and the executive, as PRASA is a state-owned entity run by the Department of Transport. Judges are not allowed to take up an appointment seen to be inconsistent with an independent judiciary or that would undermine the separation of powers doctrine.

Her request for her judicial appointment to be deferred, in order to fulfil this role, is also alleged to have been unlawful. According to #UniteBehind, “[T]here is no constitutional or legislative power for the president to revoke [or] withdraw an appointment permanently or temporarily, or to reappoint a judge without a formal interviewing process through the JSC… any such instance must interfere with the separation of powers and the legal principle of life-long tenure.” There are only two mechanisms for the termination of a judicial appointment, said the group. These are “resignation or removal under section 177 of the Constitution through a process that involves the JSC and the National Assembly”.

The organisation also alleges that, during her time on the PRASA board, she pushed through, contrary to the legal advice of her own legal affairs division, the settlement of claims worth about R59m with a set of companies in the Siyaya group, owned by Makhensa Mabunda. Mabunda was politically connected to PRASA’s former and allegedly corrupt CEO, Lucky Montana.

The Siyaya group had almost R1bn worth of contracts with PRASA, making the contracts part of a bigger state capture pattern, #UniteBehind alleges. Her conduct regarding these claims was materially prejudicial to PRASA’s interests and therefore amounted to gross misconduct, the organisation adds.

Judge Makhubele denies all of #UniteBehind’s allegations, arguing that they are being made to tarnish her reputation and harm her. She denies that she was a judge as of 1 January 2018, as she had not yet taken the oath of office. Makhubele says that she only took up judicial office on 1 June 2018, after President Ramaphosa rescinded an earlier decision and redetermined her start date.

Furthermore, her request to Judge President Mlambo for a later start date was simply because she needed to wind up her affairs in legal practice, including her role as chairperson of the Water Tribunal. Makhubele says that she did not breach the separation of powers principle because she did not occupy dual offices as PRASA chairperson and judge, as she had already resigned her PRASA chairperson role on 16 March when she became a judge on 1 June 2018.

Makhubele also denies that she interfered improperly in legal cases at PRASA or that she sidelined the internal legal team. She says that the decision to disband the panel of attorneys was taken by a collective of the Board, and it is unfair to single her out for discipline without doing the same for her fellow board members. For this reason, she argues, #UniteBehind was acting against her due to improper motives, including racism against her as a black woman.

The Tribunal will have to investigate the truthfulness of these allegations, including Makhubele’s denials. It will have to collect documents and also call witnesses to testify.

Read more here.

The Makhubele Tribunal is made up of retired KwaZulu-Natal Judge President Achmat Jappie (previously retired Supreme Court of Appeal Judge Fritz Brand, who recused himself) as Tribunal President, alongside retired Gauteng High Court Judge Seun Dimphemetse Moshidi and Ms Noxolo Maduba-Silevu, a practising attorney in Bloemfontein.

The Tribunal is entitled to appoint a member of the National Prosecuting Authority as evidence leader, after consultation with the Minister of Justice and the National Director of Public Prosecutions. The Makhubele Tribunal appointed Advocate Elaine Zungu, KwaZulu-Natal Director of Public Prosecutions, as evidence leader. She is assisted by Advocate Dorian Paver.

The Terms of Reference for the Tribunal are that it must investigate #UniteBehind’s complaint against Judge Makhubele and report its findings to the JSC. In particular, the Tribunal must investigate:

1. Whether Judge Makhubele improperly held a dual status as a judge of the High Court of South Africa and Chairperson of the Interim Board of Control of PRASA, and in doing so rendered herself guilty of gross misconduct in terms of section 177 of the Constitution.

2. Whether the respondent’s conduct as Chairperson of PRASA was incompatible with the office of a judge in that:
   i) Of all the cases that PRASA was involved in, she paid special attention only to those of Siyaya;
   ii) She marginalised the PRASA legal unit and terminated, or caused to be terminated, the mandate of PRASA’s attorneys and personally appointed another firm of attorneys to represent PRASA;
   iii) She negotiated with Siyaya’s attorneys and entered into a confidential settlement agreement that is manifestly and materially prejudicial to the interests of PRASA, relying on non-existent “major concessions” on PRASA’s liability to Siyaya allegedly made by PRASA employees at the Insolvency Inquiry; and
   iv) She frustrated PRASA’s attempts to resist the enforcement of the settlement;
   thereby rendering herself guilty of gross misconduct as envisaged in section 177 of the Constitution.

Read the full Terms of Reference here.
Read Judge Makhubele’s response to the charges here.

The Tribunal may conduct its investigation through:

1. collecting evidence;

2. conducting a formal hearing;

3. making findings of fact; and

4. making a determination on the merits of the allegations levelled against Judge Makhubele.

The Tribunal is entitled to subpoena documents and may call witnesses to testify at the hearing.

Judge Makhubele will be entitled to legal representation at the hearing (the Justice Department has agreed to provide her with legal representation).

The Tribunal must complete its investigation within three months of the hearing and submit a report to the JSC within one month of completing the investigation.

14 January 2019 – #UniteBehind files complaint against Judge Makhubele with Judicial Service Commission.
11 March 2020 – Chief Justice Mogoeng refers complaint to Judicial Conduct Committee for consideration in a hearing.
20 March 2020 – Judicial Conduct Committee (chaired by CJ Mogoeng with Justices Dambuza and Zondi) held a private hearing with Judge Makhubele.
23 March 2020 – Judicial Conduct Committee finds a prima facie case that allegations in the complaint may lead to impeachment and recommends that the Judicial Service Commission appoint a tribunal to investigate #UniteBehind’s complaint against Makhubele.
9 October 2020 – After receiving submissions from #UniteBehind and Makhubele, it recommends that the Chief Justice appoint a Judicial Conduct Tribunal and that the president suspend Makhubele from office.
16 February 2021 – The JSC sets the terms of reference for the Tribunal investigation.
14 April 2021 – Chief Justice Mogoeng establishes Judicial Conducted Tribunal with Retired Justice Fritz Brand as president, assisted by retired Judge Seun Moshidi and attorney Noxolo Maduba-Silevu.
22 December 2021 – The first hearing of the Tribunal is postponed after questions are raised about Justice Brand’s participation in the Tribunal.
7 January 2022 – Justice Brand formally recuses himself from the Makhubele Tribunal, throwing the whole process into disarray.
13 June 2022 – Retired Judge President Achmat Jappie is appointed as the new Judicial Conduct Tribunal president.
21 – 24 February 2023 – Makhubele Tribunal hearings began  – stage 1.
8 – 18 May 2023 – Makhubele Tribunal hearings – stage 1 continued.
22 January 2024 – Makhubele Tribunal hearings – stage 2.
11 March 2024 – Makhubele Tribunal hearings continued – stage 2.
July 2024 – Final Oral hearings.
9 January 2025 – Judge Makhubele found guilty of gross misconduct by the Judicial Conduct Tribunal.
1 August 2025 – Judge Makhubele was found guilty of gross misconduct by the JSC.

 

MAKHUBELE TRIBUNAL HEARING: JANUARY 2022
The Makhubele Tribunal is scheduled for a hearing on 10 and 11 January 2022 at the Office of the Chief Justice in Midrand, Gauteng.
According to the Terms of Reference, the Tribunal hearing is private; however, the Tribunal President may decide, if it is in the public interest and for the purposes of transparency, whether all or any part of the hearing will be held in public.

Disciplinary proceedings against judges are a vitally important accountability mechanism for the judiciary. In light of the principle of open justice, including the important constitutional principle of transparency, the public interest is best served by the proceedings being held in the open through broadcasting them live.

MAKHUBELE TRIBUNAL HEARING POSTPONED
The Makhubele Tribunal was scheduled for a hearing on 10 and 11 January 2022 at the Office of the Chief Justice in Midrand, Gauteng. However, on 22 December 2021, the JSC confirmed that the hearing had been postponed to a later date that is yet to be confirmed.

Although the JSC does not state the basis for the postponement, we understand that it might relate to the availability of one of the parties’ legal representatives and also to a request for the recusal of the Tribunal President, Judge Fritz Brand. We will find out more information and update you as soon as we are able.

Read the letter from the JSC here.

NEW PRESIDENT APPOINTED FOR MAKHUBELE TRIBUNAL, JUNE 2022
In January 2022, Judge Fritz Brand formally recused himself from the Makhubele Tribunal, throwing the whole process into disarray. #UniteBehind threatened to sue the JSC over Brand’s recusal but decided against it, as it was likely to cause further delay. The JSC undertook to appoint a replacement for Judge Brand as soon as possible.

On 13 June 2022, the JSC wrote to #UniteBehind confirming that retired Judge President Achmat Jappie has been appointed as the new President of the Makhubele Tribunal. Judge Jappie presided over the tribunal that found Judge Nkola Motata guilty of judicial misconduct.

KwaZulu-Natal Director of Public Prosecutions, Advocate Elaine Zungu, will still be evidence leader.
The dates for the sitting have not been confirmed, and the venue is likely to be in Gauteng.

See the JSC’s letter to #UniteBehind (13 June 2022).
Read: The JSC’s failure to deal with judicial misconduct: The Makhubele Case

TRIBUNAL HEARINGS STAGE 1: 21 FEBRUARY 2023
The Makhubele Tribunal is scheduled to sit from 21 February 2023 in Rosebank, Johannesburg, almost three years after it was recommended by the Judicial Conduct Committee in March 2020.

The Tribunal will be presided over by retired Judge President Achmat Jappie, with Advocate Elaine Zungu as evidence leader. Judge Makhubele will be represented by Advocate Vincent Maleka SC, and #UniteBehind, as complainant, will be represented by Advocate Michael Bishop. The Tribunal will hear testimony from several witnesses, including Gauteng High Court Judge President Dunstan Mlambo, PRASA legal head Martha Ngoye, and #UniteBehind activist Zackie Achmat.

In this first sitting, the Tribunal began by first addressing Judge Makhubele’s objection to #UniteBehind’s participation in the tribunal hearing, which was an issue that was first raised in the proceedings of November 2022. Judge Jappie stated that #UniteBehind would be allowed to pose questions to the witnesses on a case-by-case basis, where they felt that an issue was not addressed by the evidence leader, Elaine Zungu.

Zungu then listed the witnesses to be called to give evidence to the Tribunal, first beginning with former Judge President Mlambo (now the Deputy Chief Justice of the Constitutional Court).

The former Judge President testified that Makhubele had failed to disclose that she was the PRASA board chairperson at the time when she was appointed as a judge of the High Court. It was only after a meeting in the second week of January with Mlambo and the Deputy Judge President Ledwaba that Makhubele was “prompted” when she confirmed her position on PRASA’s board.

Thereafter, both the Judge Presidents tried to reason with her, and requested that she resign from her designation at PRASA, to which she responded that she “did not want to disappoint the Minister”.

Mlambo mentioned that he had sent an email to all recommended judges after their interviews, stating that all appointed judges would commence their duties on 1 January 2018. He had also expressed that once they had been made aware of her appointment in November 2017, judges are required to “resign from or wind down” all work carried out in their private capacity before starting on 1 January 2018.

However, once confirming her placement via email, she asked that her commencement date of 1 January 2018 be deferred. He approved her request for deferment as he did not identify a conflict of interest. He then wrote to the then Minister of Justice, Michael Masutha, on 22 January 2018, requesting to defer Makhubele’s appointment.

Advocate Maleka argued that she was not yet “in active service” between January and June 2018, thus her PRASA role did not compromise judicial independence. He stressed she only became a judge on 1 June 2018, when she began drawing a salary and had declared her private interests. Mlambo disagreed, pointing out that she had only resigned from private positions by March 2018 and submitted salary forms, and showed readiness to assume office. He added that the State suffered financial prejudice during her suspension, as an acting judge had to be appointed while she continued to receive a salary.

Zungu then decided that it was not necessary to call Deputy Judge President Ledwaba.

The second witness to be called was Martha Ngoye, who was the suspended head of legal, risk and compliance at PRASA. During her testimony, she said that the interim board had not been properly constituted and that, because the board did not at the time have a representative from the Department of the Treasury as required, the decisions of the board were not binding.

However, the evidence leader then posed questions to Ngoye using a document that she had never seen before. The document was a legal opinion regarding whether the appointment of Makhubele was legally sound, given her nomination, whether Makhubele was a judge at the time of her appointment as interim chairperson, and whether the interim board was lawfully constituted by the Minister of Transport.

Because of this, and because of a request from Makhubele’s legal team for documents, the Tribunal was adjourned to 8 May 2023. The adjournment was then followed by a request from the chairperson for Makhubele to publicise her legal costs, and for the costs of the Tribunal to be made public.

A #UniteBehind director said that the adjournment of the Tribunal was “a sad delay” in that #UniteBehind had already incurred close to R1 million in legal fees and costs, and that they would have to raise more funds to cover its costs and those incurred ahead of the resumption of the Tribunal.

Read more on Mlambo’s testimony here and here.

TRIBUNAL HEARINGS STAGE 1 CONTINUED: 8 MAY 2023
The second sitting concerned a variety of submissions relating to the allegations against Makhubele on negotiating and entering into a confidential settlement agreement with representatives of Siyaya, a corruption-accused company, and for sidelining PRASA’s internal legal team in doing so.

Ngoye submitted that, despite hearing from PRASA’s business unit that no money was owed to Siyaya and that the rail agency had a strong case against them in court, a confidential settlement agreement with the representatives of Siyaya of up to R56 million was agreed on under the instruction of Makhubele, and that this transaction and settlement amounted to a corrupt transaction.

Ngoye testified that the interim board’s decision to suspend the legal panel was improper. However, Advocate Maleka, who was representing Makhubele, stated that she was simply carrying out her duties and responsibilities, which were expected from her as chairperson, as the list of law firms which had been procured by PRASA at the time was found to be “improperly constituted by the Auditor-General”. It was further raised that there was a finding of irregular expenditure by PRASA when enlisting the law firms.

The third witness to be called was Fani Dingiswayo, PRASA’s former legal head. He stated that there had been three summonses in 2015 and two summonses in 2016, which were served by Siyaya, amounting to R60 million. Further, that there were “discrepancies” between the contracts for services rendered and the accompanying invoices, and therefore, the rail agency had elected to defend all the matters. He further stated that he kept an eye on these matters to ensure that nothing improper happened. However, Makhubele took an “unusually” keen interest in the Siyaya matters when there were more pressing issues for the board to attend to.

Advocate Mfundo Salukazana, on behalf of Makhubele, argued that it was not unusual for a board chairperson at PRASA to take an interest in the rail agency’s legal matters, and previous PRASA board members had been known to “engage attorneys” who were working on PRASA’s legal matters.

Dingiswayo responded, saying it was not unheard of for board members to engage attorneys, but what was strange in the context of Makhubele’s engagement with attorneys was the exclusion of PRASA’s legal department and the confidential nature of the Siyaya settlement.

Advocate Francois Botes, who was enlisted to represent Siyaya in the legal proceedings, was the fourth witness to testify in the Makhubele Tribunal. He stated that PRASA had no strong defence as Siyaya rendered the required services and that the payments were due. He further noted that Makhubele had contacted him as she felt that the legal department of PRASA had undermined her authority and that of the board members. He stated that he and Makhubele had a long-established relationship and that his communications with her were bona fide and that the settlement process was transparent with “no secrets”.

The fifth witness to appear before the Tribunal was attorney Madimpe Mogashoa, appointed by PRASA to deal with the Siyaya litigation. He refuted Botes’s claim, saying he was not aware of any concessions that impacted PRASA’s defence.

The last two days of the Tribunal once again concerned Makhubele’s actions in relation to Siyaya for outstanding payments. Read more here and here.

The Tribunal was adjourned to resume on 31 July 2023.

MAKHUBELE TRIBUNAL HEARING POSTPONED
The Judicial Conduct Tribunal of Judge Makhubele was due to resume on 31 July 2023; however, due to outstanding legal fees, it was postponed to Tuesday, 1 August 2023. Makhubele’s attorneys had written to the Tribunal chair on 20 July requesting the postponement.

Judge Makhubele requested that the hearing be postponed as her legal representation had not been paid by the Office of the State Attorney since taking up the matter in December 2020. During the proceedings on 1 August, Judge Makhubele’s legal representation was without Advocates Vincent Maleka and Mfundo Salukazana, who had acted as her legal counsel in previous sittings.

Evidence leader, Advocate Elaine Zungu, noted that despite the pre-trial conference in November 2022, the issue of outstanding legal fees had only come to the forefront at this late point of the Tribunal, but that it was important for Makhubele to have legal representation, despite how unfortunate it was to have the delays.

#UniteBehind once again raised its concern about the further delays in the legal proceedings. They recommended that Makhubele must bring a proper application for postponement under oath, duly served on the Tribunal, evidence leaders and the complainants in order for its merits to be properly considered.

They further stated that Judge Makhubele’s costs, conduct and the withdrawal of her legal team appeared to follow the pattern of the criminally convicted former president and the disgraced Public Protector in their defences. They then demanded that the costs of Makhubele’s legal teams be publicised immediately.

#UniteBehind further requested that she pay their legal fees for a court case, which she had quickly withdrawn to prevent her suspension as a judge. The application was withdrawn with the costs tendered. Read more on this here.

Judge Jappie stressed the need to conclude the hearing as the Tribunal had hoped to submit their findings to the JSC in October, which would no longer be possible, and that the adjournment would only be to allow Makhubele to sort out her legal costs. However, the Tribunal would resume on 13 November with whatever evidence was available, considering that the Tribunal had now been going on for almost four years.

FURTHER TRIBUNAL HEARINGS POSTPONEMENTS STAGE 2: 13 NOVEMBER 2023
When the hearing resumed on 13 November 2023, Makhubele had filed an application for an adjournment to early 2024.

The correspondence placed before the Tribunal contained the State Attorney’s refusal to pay the invoices submitted by Makhubele’s lawyers, Mabuza Attorneys. The State Attorney had claimed that although funding had been approved, the appointment of Mabuza had not been, and therefore Makhubele would be personally liable for those fees. She then emphasised the importance that this was the most difficult stage of the Tribunal as the proceedings were at the tail-end, with only her evidence outstanding.

Makhubele stated that the costs agreement had been signed by all parties and that she had never received any objection to Mabuza’s appointment, and that her legal team’s fees had now accumulated in excess of R3 million. Further, that her outstanding fees were “far” above her annual salary and that it would be unfair to expect her to pay those fees on the basis that the State Attorney had not provided enough reasons for their decision.

Judge Jappie indicated that if Makhubele was not ready to proceed, then she would have to bring an interdict in the High Court to stop the proceedings from continuing on 22 January 2024. He further added that any further adjournments would have to be decided by another forum, and not the Tribunal.

See the media statement here: 10 November 2023
Read more about the Makhubele Tribunal here.

TRIBUNAL HEARINGS STAGE 2: 22 JANUARY 2024
On 22 January 2024, when the second stage of the Tribunal hearings was meant to proceed, Makhubele again requested a postponement. This time, the request to postpone was due to the fact that Advocate Vincent Maleka, who had previously been representing Makhubele, had received notice that the State Attorney had agreed to pay her legal fees of over R3 million, but they had not yet made the actual payment to the attorneys for the work done thus far.

Maleka had only been informed about this on Friday, 19 January, and although there was uncertainty as to whether he would continue representing her, if he were to represent her, he would need more time to prepare and would only be available at the end of February. He thus requested a postponement until then.

Following this, Judge Jappie set the date to resume for Wednesday, 24 January, to allow Makhubele to sort out her position.

On 24 January, Makhubele put in a request to once again postpone the proceedings, as she claimed that she had not had sufficient time to prepare. She was represented by Advocate Matshepo Mobeng on behalf of the State Attorney, who informed the Tribunal that she was under instruction to launch an urgent application to the High Court to interdict the Tribunal from proceeding until the issues surrounding Makhubele’s legal representation had been resolved.

Judge Jappie stated that the Tribunal would proceed regardless of the pending High Court application.

Makhubele then agreed to lead evidence without legal counsel. However, she said she would need until Friday to prepare herself.

On Thursday, 25 January, Makhubele began by countering the claim that she was already a judge when she resigned as chair of the PRASA board. She claimed that, contrary to Mlambo’s submissions, she had no intention of sitting on the bench while also being the PRASA chair. She also made an aside by saying that she was unprepared and was struggling to locate some of the documentary evidence she had intended to refer to.

On Friday, 26 January, Makhubele introduced new evidence between herself and Mlambo requesting an extension on her date of appointment, but stated that this was done prior to her interview with the JSC for the position. She told Mlambo that if she was appointed, she needed to give three months’ notice to the Water Tribunal on which she served, and needed to tie up outstanding court matters. According to her, Mlambo said her position on the Water Tribunal was not in conflict with her possible appointment as a judge.

When she received the directive from Mlambo stating that she would take office on 1 January 2018, she alleged that she contacted the JP immediately to discuss the change of date of her appointment as a judge, which she had already raised with him prior to the JSC interviews.

On the meeting with Mlambo and Ledwaba which took place mid-January, she challenged Mlambo’s testimony and stated that this meeting never happened, but rather that there had been a meeting with the Judge President on 14 December 2017, where she was shown a certificate for new judges and she claimed that he was not giving her hers due to her appointment date having been changed to 1 April 2018.

Continuing on 7 February, Makhubele focused on the second complaint alleging that she furthered the interests of Siyaya and entered a confidential settlement agreement with them, and that she sidelined her internal legal team.

She denied the allegations of improper dealings with Siyaya and accused Botes of misusing private communications. However, the cross-examination by evidence leader Dorian Paver exposed contradictions in her testimony regarding her dual roles and the Siyaya settlement. In her response, she struggled to give direct answers, often clashing with Paver.

Makhubele admitted to continuing correspondence with Botes until March 2018, but insisted she had withdrawn from involvement. Paver argued that Siyaya payments were never formally considered by the board. Makhubele claimed they were discussed in closed meetings, but no signed minutes existed.

Makhubele also disputed Ngoye’s claims, arguing the breakdown between PRASA’s board and legal team was due to Ngoye’s opposition to the suspension of the external legal panel. She accused Ngoye and Dingiswayo of misleading her.

The Tribunal was then adjourned until 22 and 23 February, when the cross-examination was expected to continue. However, Makhubele once again complained about her lack of legal representation. This was denied by Judge Jappie, who stated that she had had enough time to make arrangements in this regard and instructed that “you are required to be present” to Makhubele.

On 22 February, Makhubele had her first cross-examination, where she once again clashed with Paver, and accused him of ridiculing her after he questioned her knowledge of section 174 of the Constitution, which governs judicial appointments.

The Tribunal was then adjourned and set to resume on 11 March 2024 as Makhubele had wished to call a clerk from the Pretoria High Court as a witness.

TRIBUNAL HEARINGS STAGE 2 CONTINUED: 11 MARCH 2024
The Tribunal resumed on Monday, 11 March, where Makhubele returned with new counsel, Advocate Thabani Masuku, known for representing Jacob Zuma and Busisiwe Mkhwebane. Until then, she had been assisted by Mobeng from the State Attorney’s Office, although she had repeatedly claimed that she had not properly consulted Mobeng during the cross-examination and considered herself to be “unrepresented”, despite him being seated next to her the entire time.

However, during the Tribunal proceedings, Mobeng highlighted that the clerk’s statement recently submitted did not align with Judge Makhubele’s version of events and contradicted what had previously been agreed upon as factual. This raised concerns that Makhubele might be placed in the unusual position of having to cross-examine her own witness. In response, Makhubele requested a postponement until Wednesday, 13 March, to seek advice from her newly appointed legal team. Judge Jappie refused, questioning why the witness could not testify immediately if she was present and available. He remarked that the witness would either support Makhubele’s account or not, and if not, her testimony would simply end there. Faced with this, Makhubele chose not to call the witness at all.

Makhubele then sought an adjournment until Wednesday so that her counsel, Masuku, could re-examine her on issues raised during cross-examination. This request was also denied, with Judge Jappie ruling that her case had already been closed and no further evidence would be admitted.

The Tribunal adjourned for the finalisation of the record and to agree on dates for the submission of heads and oral argument.

CLOSING ORAL ARGUMENTS: 22 JULY 2024
On Monday, 22 July, Advocate Michael Bishop for #UniteBehind argued that Judge President Mlambo’s account should be accepted over Judge Makhubele’s, noting that Mlambo and Ledwaba had no incentive to lie, while Makhubele did. He emphasised that Makhubele had legally been appointed as a judge from 1 January, and her refusal to take the oath in mid-January amounted to gross misconduct.

Furthermore, he submitted that she had directly involved herself in settling claims with Siyaya without authority to do so, and had relations with its lawyer without consulting the PRASA legal team.

Evidence leader, Advocate Paver, supported this view and urged the Tribunal to apply the same standards used in the impeachments of Judges John Hlophe and Nkola Motata, asking whether an ordinary person would feel confident being tried before her and whether her conduct threatened public confidence in the judiciary.

Although Bishop acknowledged there was no evidence of corruption, he stressed that her reckless disregard still amounted to gross misconduct. Both advocates concluded that her actions eroded public confidence in the judiciary and proved she was not the kind of person the public could trust to serve as a judge.

On Tuesday, 23 July, Judge Makhubele’s legal team led their arguments.

Advocate Thabani Masuku argued that if Makhubele were found not guilty of the two charges levelled against her, there would be a need to repair her reputation so that she could hold her head up high and resume judicial duties.

On the first issue, he argued that the differing versions did not mean one party was lying, but rather reflected differences in recollection, since communication between the individuals had often been informal. Masuku further argued that his client was not legally a judge from 1 January, as she had refused to accept the appointment at that time, and Judge President Mlambo was aware of this. He emphasised that she only formally took judicial office on 1 June 2018, after President Cyril Ramaphosa issued a fresh certificate of appointment, and therefore she could not be guilty of gross misconduct for events prior to that date.

On the second charge concerning her conduct at PRASA, Advocate Menzi Simelane contended that the Tribunal lacked jurisdiction to investigate or make a ruling on the Siyaya settlement. He explained that the Companies Act and the Public Finance Management Act set out specific procedures for such inquiries, none of which had yet been completed. Simelane also highlighted that the Special Investigating Unit was already probing PRASA’s affairs from 2010 to 2020, meaning any constitutional finding of gross misconduct would be premature. He concluded by denying all allegations against Makhubele, insisting that she had not broken any laws in relation to the Siyaya claims.

Section 177 of the Constitution outlines how judges can be removed. A judge may only be impeached if the Judicial Service Commission (JSC) finds them guilty of incapacity, gross incompetence, or gross misconduct, and if the National Assembly supports removal with a two-thirds majority. Once Parliament passes such a resolution, the President must act to remove the judge, and may also suspend a judge under investigation on the JSC’s advice.

In Judge Makhubele’s case, the Judicial Conduct Tribunal must report its findings to the JSC. If the Tribunal concludes she is guilty of gross misconduct and the JSC agrees, the matter is referred to Parliament. Only if the National Assembly votes by a two-thirds majority will impeachment and removal follow.

The Judicial Service Commission (JSC) met on 3 July 2025 to consider the findings of the Judicial Conduct Tribunal regarding allegations of misconduct against Judge Makhubele. The complaint was lodged by #UniteBehind, a coalition of civil society organisations, and was divided into two parts. Part A concerned her acceptance of and service as chairperson of the interim board of the Passenger Rail Agency of South Africa (PRASA) after her judicial appointment had taken effect. Part B related to her conduct while serving in that role, including allegations of dishonesty and unethical behaviour.

Part A: The Tribunal found her testimony inconsistent and misleading, particularly regarding her communications with Judge President Mlambo and Deputy Judge President Ledwaba. The JSC agreed with the Tribunal that her appointment was effective from January 2018 and concluded that her actions constituted gross misconduct under section 14(4)(a) of the JSC Act.

Part B: Evidence showed that she conveyed a settlement decision without proper board authority and provided correspondence that enabled Siyaya to obtain default judgments against PRASA. Witnesses contradicted her version of events, which the Tribunal found to be a bare denial lacking credibility. The Tribunal held that her conduct breached section 14(4)(e) of the JSC Act. The JSC, however, went further, determining that her dishonesty amounted to gross misconduct under section 14(4)(a).

In its final decision, the JSC accepted the Tribunal’s factual findings but clarified the legal classification of the misconduct. It held that both sets of allegations — her failure to sever ties with PRASA after judicial appointment (Part A) and her dishonest conduct in settling claims (Part B) — constituted gross misconduct. The Commission concluded that Judge Makhubele is guilty of gross misconduct in both respects, thereby opening the path for possible impeachment proceedings under section 177 of the Constitution.

Read the full Judicial Conduct Tribunal report here.

Read the full Judicial Service Commission report here.

On 11 November 2025, the first steps were taken to impeach Judge Makhubele for the two charges that the JSC found to amount to gross misconduct. The findings of gross misconduct have been referred by the Speaker of Parliament to the Portfolio Committee on Justice and Constitutional Development. The committee will be considering the findings of the JSC in line with section 177 of the Constitution. If the committee agrees with the findings, the next step will be for the matter to be referred to the National Assembly, where it will be voted on. The resolution to remove Makhubele will be passed if a two-thirds majority in support is attained.

JUDGES MATTER ARTICLES:

• The JSC’s failure to deal with judicial misconduct: The Makhubele Case
  
• Judge Makhubele: High Court Judge and Parastatal Chair?
• Seeking clarity on judicial conduct
• Everything you need to know about the Makhubele Tribunal

OFFICIAL MEDIA STATEMENTS:

• [OFFICIAL MEDIA STATEMENT] from UniteBehind regarding Adv Makhubele and PRASA:
  https://www.groundup.org.za/media/uploads/documents/PART_A_UniteBehind_complaint.pdf
• [OFFICIAL MEDIA STATEMENT] The Judicial Service Commission’s decisions on complaints involving Judge Makhubele of the Gauteng division of the High Court and Judge Parker of the Western Cape division of the High court Media statement:

RELATED PRESS ARTICLES:

• 22 MARCH 2018 | Board Chairperson Judge Makhubele conspired with Siyaya lawyers
• 22 JUNE 2018 |  High court Judge Tintswalo Makhubele, the former acting chairperson of the Passenger
  Rail Agency of South Africa (Prasa) board, who asked for a delay before she started active service at the Gauteng division of the high court, is alleged to have used that extra time at the state-owned enterprise to push through a R60-million settlement with a questionable service provider:
• 30 APRIL 2019 | Is it because I’m a black woman? Judge vs Judge in defamation claim
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• 4 AUG 2020 | [NEWS] Deputy Chief Justice, Raymond Zondo dismissed Judge Tintswalo Makhubele’s application to postpone her testimony before the state capture commission of inquiry. To unpack this, Stephen Grootes speaks to Mbekezeli Benjamin, from Judges Matter Campaign. via Newzroom Afrika https://youtu.be/IVzhLXeDBhI
• 14 OCT 2020 | Ramaphosa advised to suspend high court judges over misconduct claims
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• 11 JAN 2022 | [NEWS] Pretoria – The Judicial Conduct Tribunal hearing scheduled for this week into the conduct of Gauteng High Court Judge Nana Makhubele has been postponed.
• 14 JUNE 2022 | [NEWS] New judge appointed to take over Judge Makhubele conduct hearing
• 16 FEB 2023 | [NEWS] Tribunal against ex-PRASA chair Judge Makhubele set for next week