Judge Makhubele: High Court Judge and Parastatal Chair?

Can a sitting judge be a member of a board of directors? The role of judges on the boards of charities and not for profit organisations has certainly been questioned from time to time. In the most recent October hearings of the JSC, now Judge Unterhalter when asked about his affiliations with civil society organisations said;

“I think the answer to that is that I’m keenly aware of the fact that when you assume judicial office you have to leave behind associations that you’ve had in your professional life.”

However, another successful candidate from that round, Judge Makhubele, seems to have taken a different approach. She was also nominated by the JSC to the Gauteng bench in October. In her interview, she moved the members of the Commission with her story of doing incredibly well in school, and yet having to spend a year out of school doing child care work until her parents could afford to send her back to school.  She had gone on to become a social worker, and then a prosecutor, and joined the bar as an advocate. She rose to become the first black female chair of the Pretoria Bar.

Adv. Makhubele was then announced as chair of the new interim PRASA Board, just weeks after the JSC recommended her for appointment to the bench. Adv. Makhubele’s appointment  was subsequently confirmed by the president and she assumed her new position in January 2018.

Despite now being on the bench, Makhubele J does not appear to have stepped down from her paid position as chair of the PRASA board. This became public after the fact that she as chair and her fellow board members had not attended a Parliamentary committee meeting at the behest of the committee became news.  It was reported that despite the presence of PRASA’s acting group Chief Executive Officer Cromet Molepo, none of the six members of the current interim board were in attendance. According to Groundup;

“The hearing was scheduled to take place 6 February when the Passenger Rail Agency of South Africa (PRASA), the Railway Safety Regulator and UniteBehind were due to address the committee.”

The board did show up for a meeting this week in Parliament. “We are in the process of appointing a permanent board,” DM for Transport Sindi Chikunga told Parliament’s portfolio committee on transport on Wednesday,when Prasa’s interim board appeared before the committee together with civil society grouping UniteBehind.

Makhubele J is currently sitting on matters in the North Gauteng High Court.[1] 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 speedily all fees and other amounts outstanding and organise his or her personal business affairs to minimise the potential for conflicts of interest.

So the question we must then ask is this; when will Judge Makhubele resign from the PRASA board?

[UPDATE: 21 February 2018]

Judges Matter has commented that despite being appointed to the bench, Judge Makhubele has not stepped down from her position as chair of the interim PRASA board.

We have contacted Advocate Makhubele directly on this issue, and she has responded by saying that she will only take up her position as a judge from the beginning of April 2018, which she has been given permission to do by the Judge President.  She notes that she is not currently sitting on cases, and has not done so since the end of her last acting position in October. She has requested the delay in her taking up her role in order to settle her affairs with the Water Tribunal and other positions. Adv Makhubele will be appearing in court as counsel in the near future, and is not currently receiving a salary as a judge.

We are not aware of any similar situation where a judge has delayed taking up his or her judicial appointment in this manner.  There is normally a delay between the JSC announcing its recommended candidates, and the presidency announcing their formal appointment. Furthermore, the appointment is usually only effective from a date after the Presidential announcement. This would usually give the newly appointed judge 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.  This unusual situation warranted some communication from the judicial leadership to explain to the public why a recently appointed judge had not yet taken up her position, and the circumstances under which she was appointed a member of the PRASA interim board.

[UPDATE: 27 March 2018]

Read Judges Matter’s follow-up article:[19-03-18] Seeking clarity on judicial conduct

Read the full City Press article: [18-03-2018] ‘Conflicted’ judge refuses to leave Prasa

Update: [23-03-18] Adv Makubele has resigned from the Prasa board.

Read the full EWN article: [23-03-2018] Prasa interim board chair Makhubele resigns

Read the full article from the Citizen: [23-03-2018] Prasa interim board chair Tintswalo Makhubele resigns

Read the full EWN article: [23-03-18] Prasa confirms Tintswalo Makhubele’s resignation

[1] As per court roll of 5 February  2018, page 18: http://www.saflii.org.za/za/other/ZAGPPHCRolls/2018/26.html