Today, 23 July 2024, marks the conclusion of the Judicial Conduct Tribunal hearings for Judge Nana Makhubele, which ended a day early. Finally, after the tribunal was established in 2021 and our complaint was lodged in 2019, the hearings have concluded. We now await the Tribunal’s finding, which is expected to be published by the end of September 2024 at the latest.
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 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 2/3 majority, she will be impeached – a decision which will be formalised by the President.
We at #UniteBehind are pleased with how these final hearings have proceeded. On the first day, Advocate Paver, representing the evidence leader, summarised their case and made several key points, with which we, as the complainant, concur.
Our case centred around several critical issues. First, we argued that Judge Makhubele was a judge from 1 January 2018, appointed by President Zuma. Although President Ramaphosa purported to delay her appointment to 1 June 2018, this postponement was invalid. Therefore, she unlawfully and unethically held dual status, receiving an income and working for a commercial entity while being a judge. The President’s actions are irrelevant and cannot make her conduct ethical. The fact that she had not taken the oath of office until June 2018 is immaterial. A prerequisite to taking the oath is that one must already be a judge, as stated in the Constitution and the Judicial Service Commission Act.
Judge Makhubele withheld her chairpersonship from Judge President Mlambo and Deputy Judge President Ledwaba, creating political controversy within and around the judiciary and failing to uphold judicial independence. She is guilty of gross misconduct on this basis alone.
While at PRASA, Judge Makhubele acted unlawfully and aided corruption. She acted against PRASA’s interests by driving and ensuring corrupt settlement agreements worth R60 million were made and enforced between PRASA and Siyaya, a company owned by Makhensa Mabunda. She sidelined PRASA’s legal department, disbanded its legal panel, and communicated directly with Siyaya’s legal counsel—actions that are unethical. These decisions were made by controlling a board that was not quorate. She lacked the authority to settle the case and did not apply her mind appropriately. PRASA had sufficient defences against Siyaya’s claims, and an honest and rational consideration would not have led to the settlements. Either she had an ulterior, improper motive, or she showed reckless disregard for PRASA’s interests. Regardless, she is unfit to be a judge. Her motive is irrelevant—it is her conduct that is impugned.
The PRASA Board of Control is the accounting authority, and Judge Makhubele contravened the Public Finance Management Act (PFMA), which states in section 50(2)(a): “A member of an accounting authority may not act in a way that is inconsistent with the responsibilities assigned to an accounting authority or use the position or privileges of, or confidential information obtained as, accounting authority for personal gain or to improperly benefit another person.” It took the heroic efforts of Martha Ngoye and Fani Dingiswayo from PRASA’s legal department to reverse these corrupt settlements and ensure the money was returned to PRASA.
We dismantled her defences, which primarily relied on two points. Firstly, she argued that, like a normal employment relationship, she had not accepted the offer of employment from the President and thus was not a judge on 1 January 2018, claiming the tribunal had no jurisdiction over her conduct at PRASA. We countered that judges are not employees beholden to the President; they cannot postpone their appointment. Even if she was not a judge (although she was), the Judicial Service Commission and the Judicial Conduct Tribunal still have jurisdiction over her conduct at PRASA. Her actions after being recommended for appointment as a judge brought the judiciary into disrepute.
Secondly, she argued that differences in the factual accounts of Judge President Mlambo and herself were irrelevant. We maintained it was highly relevant. If they had met before 1 January 2018, she would not be guilty of gross misconduct. However, they met on 15 January because she refused to take the oath and start her judicial duties, preferring to continue working at PRASA to avoid disappointing the Minister. This deference to the Executive rather than the Judiciary showed gross misconduct. Mlambo’s evidence is more credible due to corroboration by Deputy Judge President Ledwaba, the weakness of Makhubele’s evidence, and the lack of incentive for Mlambo JP to lie.
We argued that her conduct during the Tribunal also demonstrated her incapability, incompetence, and unfitness to be a judge. She was belligerent, unable to answer questions, and failed to appreciate and understand the law. She was dishonest and accused senior judiciary members of lying without sufficient evidence.
Our case is strong, and we believe we dismantled Makhubele’s defences. We anticipate that the Judicial Conduct Tribunal will find Judge Makhubele guilty of gross misconduct. We eagerly await the Tribunal’s final ruling by the end of September 2024 and hope that this decision will improve accountability at SOEs and safeguard the health and integrity of our judiciary.
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 independence, accountability, transparency, and integrity that form the bedrock of our judicial system. #UniteBehind will see out the matter until it the process is completely resolved.