Seeking clarity on judicial conduct

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.”

But what does ‘upon permanent appointment’ and ‘immediately’ mean? There is often a gap between nomination to the bench by the JSC and the appointment of a judge by the President. There does not appear to be a hard and fast rule that the nominee must have wound up their professional affairs either by the date of appointment by the President or some fixed time after that.

And what is the rule as to when you officially become a judge? Is it the date of appointment by the President? It seems that there may be some delay between that date and your first sitting as a permanent judge. Is it when you take the oath of office? Or is it some more prosaic date, such as when HR get you on the payroll? A current example of this problem is now firmly in the spotlight.

City Press reports that Adv Tintswalo Makhubele has been the subject of a concern lodged to the JSC. Civil society group #UniteBehind wrote to the JSC to complain about Makhubele’s position.

The group noted that the JSC formally recommended Makhubele for appointment as a judge in the Gauteng High Court following her interview before the commission on October 5 last year. On October 19 last year, then-transport minister Joe Maswanganyi appointed Makhubele to Prasa’s board “until further notice”.

City Press reports that according to documents in their possession, Makhubele’s case for staying on at Prasa was an “arrangement” she had with Gauteng Judge President Dunstan Mlambo. In a letter to #UniteBehind, he said he had written to Justice and Constitutional Development Minister Masutha asking him to petition President Cyril Ramaphosa to defer her beginning work as a judge to April 1.

“Madam Justice has not taken the oath nor has she been paid any salary as a judge,” Mlambo continued.

Adv. Makhubele was announced as chair of the new interim Prasa Board, just weeks after her nomination to the bench. Her appointment was subsequently confirmed by the President in November 2017 to commence on 1 January 2018.

In response to a previous comment on a potential conflict of interest as a result of the Prasa appointment, written by Judges Matter, Advocate Makhubele took the view 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 stated that she has not been sitting in matters, and has not done so since the end of her last acting position in October 2017. She had requested the delay in her taking up her role in order to settle her affairs with the Water Tribunal and other positions.

#UniteBehind argue that her continued stay at Prasa and the subsequent request for the judicial appointment to be deferred, were both unlawful.

The group are quoted in City Press as arguing 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”.

It is not uncommon to have judges on boards or as trustees, but they tend to be not for profit entitles. Judge President Mlambo is the chair of the Legal Aid Board, with Judge Motsamai Makume also part of that board. The South African Law Reform Commission is constituted as requiring a judge as a member of its board, a position currently held by Judge Jody Kollapen. Five judges sit as trustees of the granddaddy of all public interest law NGOs, the Legal Resources Centre: Judge Kollapen, Judge President Mlambo, Justice Lex Mpati (now retired), Justice Mahomed Navsa and Judge Taswell Papier.

Judges are also called on to head commissions of enquiry. These are usually retired judges, but active judges are also deployed to do this work, often controversially. For example, Judge Heath’s heading of the Special Investigative Unit of the Heath Commission was found inconsistent with the constitution.

As reported by News24, “Heath’s SIU, established during former President Nelson Mandela’s tenure, was initially asked to investigate government corruption in the Eastern Cape. Mandela extended the unit’s mandate to encompass the whole country…. Heath’s leadership of the SIU meant that he, as a judge, was directly involved in the investigation of areas of government corruption and maladministration determined by the President and not by the unit. This was [found to be] incompatible with the separation of powers between the judiciary and the executive and legislative branches of government required by the constitution.”

It may be that the JSC and the Office of the Chief Justice need to bring greater clarity and rigour to the rules on what appointed but not yet sitting judges, as well as sitting judges can do, and clarify the code of conduct so as to make clear the responsibilities of nominated and not yet appointed, and nominated and appointed but not yet sitting judges. Having a complaint lodged with the JSC about a nominated and appointed, but not yet sitting, judge cannot but negatively affect the deservedly high standing in which our judges are held.

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

Read Judges Matter’s previous article: Judge Makhubele: High Court Judge and Parastatal Chair?

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