As the Judicial Conduct Tribunal (JCT) hearings for Judge Nana Makhubele conclude from 22 to 24 July, we at #UniteBehind are calling for swift justice. The allegations against Judge Makhubele, coupled with her defence and the critiques of the Judicial Service Commission (JSC) processes, highlight the urgent need for a transparent and efficient judicial oversight mechanism.
Background and Allegations
Judge Makhubele faces serious charges of gross misconduct from her tenure as chairperson of the interim board at the Passenger Rail Agency of South Africa (PRASA). These charges include serving simultaneously as PRASA chairperson and a judge, which led to significant conflicts of interest. She authorised secret settlements worth millions to the Siyaya group of companies despite legal advice against such actions. She also sidelined PRASA’s internal legal team, obstructed justice, and lied about her conduct to cover her actions. If found guilty of gross misconduct, she could be impeached, a consequence reflecting the gravity of the charges. Can they find her guilty without any court judgement?
Violations of the Judicial Service Commission Act
Judge Makhubele is alleged to have violated section 11 of the Judicial Service Commission Act and article 12(2) of the Code of Judicial Conduct, which prohibit judges from occupying any office of profit other than their judicial office. This contravention is a gross violation of the law and judicial ethics, as it compromises the independence and integrity of the judiciary. Moreover, she interfered improperly in litigation brought against PRASA, assisting the Siyaya Group—a company involved in corruption and state capture—in obtaining a court settlement worth over R50 million against PRASA.
JSC Processes and Critiques
The Judicial Service Commission (JSC) is responsible for maintaining judicial integrity and accountability. It handles complaints against judges, decides whether to refer them to a Judicial Conduct Tribunal (JCT), and oversees the general conduct of judges. However, its processes have been marred by significant flaws. The JCT, an ad-hoc body established by the JSC to investigate complaints that could lead to a judge’s impeachment, handles the actual hearings and investigations into serious misconduct. After this week’s hearings, the JCT will make a finding: whether Judge Makhubele is guilty of gross misconduct or not. If she is guilty of the same, the JSC is then likely, in its October meeting, to recommend her impeachment to the National Assembly, which will then vote on this recommendation. If the House votes in favour by a 2/3 majority, she will be impeached – a decision which will be formalised by the President.
The Tribunal process for Judge Makhubele has been marked by delays, which undermine justice and erode public trust. These delays stem from procedural complexities and ongoing disputes over legal costs. For instance, Judge Makhubele’s case saw repeated postponements due to her claims of inability to pay her legal fees, leading to significant delays in the proceedings. The hearings were delayed 3 times, extending the Tribunal hearings by almost a year. This is a clear example of how procedural issues can drag on the process, causing justice to be delayed. Further, the delays increased the amount of wasted costs of the Tribunal (paid by the Office of the Chief Justice), #UniteBehind, and Judge Makhubele (paid by the State Attorney). Millions of public funds and public interest funds have been wasted through Judge Makhubele’s conduct.
The JSC Act and Regulations do not contain a mechanism for public interest complainants, such as #UniteBehind, to recoup the millions of rands spent on legal fees after taking the matter through multiple stages of the complaint over four years.
Civil Society’s Role
Civil society organisations, particularly #UniteBehind, have been crucial in driving the complaints process against Judge Makhubele. We have faced numerous challenges, including procedural unfairness, with repeated postponements and delays seen as tactics to impede justice. Our role in tribunal hearings is limited, restricting our ability to present comprehensive evidence. Ongoing disputes over who bears the legal costs for judges in disciplinary proceedings cause further delays and financial strain on complainants. Moreover, complainants are unable to recover the significant expenses incurred during these prolonged processes, adding an additional layer of injustice.
Our Position
We argue that Judge Makhubele’s conduct at PRASA shows a fundamental disregard for the law and ethical standards expected of a judge. Her actions were legally questionable and indicative of an intent to further improper purposes. We call for her removal from the judiciary, grounded in the belief that her continued presence would erode public trust and undermine the judiciary’s integrity.
Defence Arguments
Judge Makhubele’s defence hinges on several key points. Her lawyers argue that she was not officially a judge during her time at PRASA, as there was only an offer of employment, not an acceptance, during the critical period. They contend that the appointment process was legally sound and that any delays in her taking office were administrative rather than indicative of wrongdoing. The defence contests the allegations of dishonesty and obstruction, claiming her actions were within the bounds of her duties and not aimed at personal gain. They assert that the settlements she authorised were necessary to protect PRASA from greater financial losses and that her decisions were made in good faith based on the information available at the time. The defence also labels the accusations as defamatory and scandalous, arguing that failing to present her version during cross-examination does not equate to lying. They maintain that the procedural delays were not tactics to avoid justice but were due to legitimate issues needing resolution for a fair hearing.
Conclusion
The Makhubele Tribunal encapsulates the broader challenges facing South Africa’s judicial oversight mechanisms. As the final hearings approach, the outcomes will not only determine Judge Makhubele’s fate but also signal the judiciary’s commitment to accountability and transparency. Ensuring a timely, fair, and transparent resolution is crucial for maintaining public confidence in the judicial system.
The critiques of the JSC processes, the role of civil society in driving accountability, and the defence arguments all highlight the intricate balance required to uphold judicial integrity. As we await the Tribunal’s decision, it is clear that reforms are necessary to streamline processes, enhance capacity, and ensure greater transparency in judicial oversight. The integrity of our judiciary depends on it.
We at #UniteBehind remain steadfast in our commitment to holding those in power accountable and ensuring that justice prevails. Judge Makhubele’s case is a test of our collective resolve to uphold the principles of fairness, transparency, and integrity that form the bedrock of our judicial system. Justice can no longer be delayed.
#UniteBehind will see out the matter until Judge Makhubele is impeached.