The JSC’s failure to deal with judicial misconduct: The Makhubele Case
The first week of June 2022 marked 4 years since Gauteng High Court Judge Nana Makhubele swore to her oath of office as a judge. But when was she appointed? The answer seems deceptively simple but it is not and will be the subject of a formal inquiry by a Judicial Conduct Tribunal — a process as serious as a heart attack.
Judges Matter believes that the Judicial Service Commission has failed to deal with the complaint against Judge Makhubele effectively or efficiently. To us, this raises serious concerns about how the Judicial Service Commission (JSC) carries out its constitutional responsibility of holding judges accountable for misconduct.
The grounds for complaint against Judge Makhubele.
#UniteBehind – a civil society organization working to expose the rot at PRASA (the Passenger Rail Agency of SA) and get the trains back on track – filed a complaint against Judge Makhubele accusing her of judicial misconduct. They allege that for several months between January and March 2018, Makhubele’s role as a judge overlapped with her role as chairperson of the PRASA board. This would be in gross violation of the law and judicial ethics. To secure judicial independence, judges are prohibited from occupying any offices of profit other than their judicial office. This is in terms of section 11 of the Judicial Service Commission Act and reinforced by article 12(2) of the Code of Judicial Conduct.
Furthermore, #UniteBehind alleges that during her stay as PRASA board chairperson Makhubele improperly interfered with litigation brought against the rail agency, going so far as assisting Siyaya Group – a company they allege to have been involved in corruption and state capture – to obtain a court settlement worth over R50 million against PRASA. These latter allegations also form part of the Zondo Commission’s investigation, whose findings are likely to be in the next instalment of the State Capture Report.
Makhubele denies misconduct
Makhubele denies both of #UniteBehind’s grounds of complaint and accuses the organization of having a racist vendetta against her. She denies that there was any overlap between her role as PRASA chairperson and her being a judge. She says there was no prohibition against her taking on the PRASA job as she had not yet become a judge. Even though President Jacob Zuma formally announced her appointment as starting from 1 January 2018. President Ramaphosa (on request) amended this start date to 1 June 2018, as she explained at the Zondo Commission.
As for the part about her role in settlements against PRASA, Makhubele also denies any involvement and accuses #UniteBehind of working with disgruntled PRASA staff who themselves have been accused of impropriety.
Should she be found guilty, Makhubele will no doubt be impeached and stripped of her title as a judge. This will include the status, generous benefits, and judge’s salary (currently worth R1 882 486 annually) which she would have received for the rest of her life.
With allegations this serious against a sitting member of the Bench, one would’ve expected the JSC to act with speed to investigate and take corrective action if needs be. But those expectations would be dashed.
The Makhubele complaint has been beset by numerous delays and is still far from being resolved. At first, there were issues with Judge Makhubele securing legal representation paid for by the state ( these issues were only resolved after some litigation ). Later, there were issues with securing the availability of members of the Judicial Conduct Committee, a subcommittee of the JSC, who are all sitting judges (another structural problem with the system).
It then took the JSC several months to formally appoint a Judicial Conduct Tribunal panel to investigate the complaint, which the JSC finally did in October 2020, simultaneously recommending her suspension from office. However, she did not take this suspension recommendation lying down and went to court to prevent the President from carrying it out. This court challenge was unsuccessful and her suspension was effective from November 2020.
Right when the Tribunal was getting down to work, in November 2021, Tribunal President Judge Fritz Brand indicated an intention to recuse himself , after it was brought to his attention that he was remotely involved in certifying the R50 million settlement against PRASA. He formally recused himself on 7 January 2022.
It would take another 6 months before Judge Brand’s replacement was appointed, which eventually was retired Judge President Achmat Jappie. Dates for the hearings are still to be announced. In the meantime, Makhubele is still on suspension – with full pay.
JSC not taking judicial complaints seriously
On several occasions (see here, here and here) Judges Matter has raised the JSC’s failure to deal with judicial misconduct complaints efficiently and effectively as a grave institutional threat to the judiciary. Not only does it harm the institution as a whole, but it also harms the reputations of individual judges who sit with clouds hanging over their heads for extended periods. In a TV interview on his recent appointment to the Constitutional Court, Justice Owen Rogers admitted that there was frivolous complaint filed against him, but he was powerless to fight it as he has not heard anything from the JSC in the 15 months since it was filed.
Judges Matter has called for reforms in the judicial misconduct process to ensure that complaints are dealt with effectively and efficiently. These reforms include:
- streamlining the currently convoluted misconduct process and removing some stages;
- changing the Judicial Conduct Committee composition to be largely or exclusively comprised of retired judges;
- adding dedicated staff to process complaints and support the JCC and Tribunals.
Public confidence in the judiciary is dented if bad behaviour is not dealt with and rotten apples thrown out. We already know that the judiciary is under severe strain due to unfounded political attacks, it certainly doesn’t need those detractors to be handed ammunition by the JSC. There is no possible excuse why the JSC has taken nearly two years for the Makhubele Tribunal to kick off.
The Chief Justice needs to act
Responsibility for the judicial misconduct process is traditionally delegated to the Deputy Chief Justice. However, when there is a possibility of impeachment, it’s reasonable to expect that the Chief Justice would take a greater interest in bringing the complaint to finality. Chief Justice Zondo should be well aware of the Makhubele complaint and the need for it to be dealt with quickly. We trust that, with the imminent appointment of Justice Mandisa Maya as deputy chief justice (her interview is scheduled for 20 June), they will work hard to prevent yet another episode of a judicial complaint going more than a decade unresolved. The reputation of the judiciary cannot bear such a wait.
A version of this article was published in GroundUp: https://www.groundup.org.za/article/judicial-service-commission-fails-to-deal-with-judicial-misconduct/
Judges Matter is a civil society project that monitors the appointment of judges, their discipline for misconduct, and the governance system of the South African judiciary. Visit www.judgesmatter.co.za and follow @WhyJudgesMatter.