Everything you need to know about the Makhubele Tribunal

The Judicial Conduct Tribunal will start hearings into allegations of gross judicial misconduct filed by activist organisation #UniteBehind against Gauteng High Court Judge Nana Makhubele.

If found guilty of gross misconduct, Judge Makhubele might face judicial impeachment.

The allegations against Judge Makhubele:

#UniteBehind’s allegations against Judge Makhubele include:
1. Being the chairperson of the board of state-owned rail agency PRASA while also being a judge, which violates both the law and judicial ethics.
2. While at PRASA, furthering the interests of a company linked to corruption and state capture, to the detriment of PRASA.

Judge Makhubele denies these allegations, and it now falls on the Tribunal to get to the truth.

Read the full background to the allegations here.

What is the Makhubele Tribunal set up to do?

The Makhubele Tribunal was set up by the JSC to investigate the allegations of gross judicial misconduct against Judge Makhubele.

The Makhubele Tribunal was set up by the Judicial Service Commission in October 2020 to investigate #UniteBehind’s allegations of gross judicial misconduct against Judge Makhubele. The Tribunal has sweeping powers of investigation and can hear testimony from witnesses and subpoena documents and other evidence.

The Makhubele Tribunal will call several witnesses including Gauteng High Court Judge President Dunstan Mlambo, and former head of legal affairs at PRASA, Ms Martha Ngoye.

A Judicial Conduct Tribunal is set up to investigate the most serious allegations of misconduct against a judge (gross judicial misconduct). If a tribunal delivers a guilty verdict and the JSC confirms it, the judge may be impeached and removed from office.

Who is the Makhubele Tribunal made up of?

April 13, 2015. Achmat Jappie, deputy judge president in KZN division of the high court at the JSC interviews, Cape Town. Pic:Trevor Samson/ Business Day

The Tribunal President is Judge Achmat Jappie, the retired judge president of the KwaZulu-Natal High Court. He is assisted by retired Gauteng High Court Judge Seun Moshidi and practising attorney Ms Noxolo Maduba-Silevu.

The evidence leader is Advocate Elaine Zungu, the head of the National Prosecuting Authority in KwaZulu-Natal.

Judge Makhubele’s legal team is led by Advocate Vincent Maleka SC and #UniteBehind’s legal team is led by Advocate Michael Bishop.

Read the functions and terms of Reference of the Makhubele Tribunal.

What is the link between the Makhubele Tribunal and the Zondo Commission on State Capture?

[Image courtesy of Netwerk24]

Judge Makhubele was the only judge to appear before the Zondo Commission on State Capture. Three witnesses testified agaist her, including former PRASA legal head Martha Ngoye, #UniteBehind activist Zackie Achmat, and Advocate Francois Botes SC from the Pretoria Bar. After several attempts at getting her evidence, Judge Makhubele never submitted an affidavit and only gave part of her testimony.

In his final report on PRASA, Justice Raymond Zondo states that he could not complete Judge Makhubele’s evidence before the end of the commission’s life, but that “I will leave the matters of her role at PRASA to be dealt with by the Tribunal even though it may not deal with all aspects.” (Zondo Report Vol 5, Part 2, page 837, para 2155).

To watch Judge Makhubele testifying at the Zondo Commission click here.

Who is Judge Nana Makhubele?

Appointed as a judge in 2018, Makhubele led an illustrious career in the law. Growing up in a poor family, she worked as a domestic worker to allow her brother to go to school. She would become a social worker, then later an advocate, eventually becoming the first black women to attain the coveted status of ‘silk’ (or senior counsel) at the Pretoria Bar.

Read more about her here.

What are the wider implications of the Makhubele Tribunal?

The Makhubele Tribunal is only the fifth judicial conduct tribunal set up to investigate serious allegations of misconduct against a judge since 1994. It is one of only a small handful to reach the hearing stage. That fact that it has taken almost 4 years to get to this stage speaks to the systemic weaknesses in the judicial conduct process. It is too slow, too complex, and has many legal loopholes which make it vulnerable to delay-causing litigation. Judge Makhubele’s case illustrates this problem.

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