21 February 2023
Was a high court judge involved in state capture and corruption? When does a newly appointed judge assume the responsibilities of their office? Can a judge be held responsible for activities that happened prior to them becoming a judge? What kind of activities would violate judicial ethics and the law?
These are some of the questions the Judicial Conduct Tribunal into a misconduct complaint against Gauteng High Court Judge Nana Makhubele will have to answer when it begins its hearings on Tuesday in Rosebank, Johannesburg.
In the first part of the complaint, Judge Makhubele is accused by commuter rail activist group #UniteBehind of having held the position of a high court judge, starting from 1 January 2018, while at the same time serving as chairperson of the board of state-owned train company, Passenger Rail Agency of South Africa (PRASA) from 19 October 2017 to 16 March 2018.
These dual roles, #UniteBehind argues, are incompatible with each other as it means the judge is answerable to both the judiciary and the transport minister, in violation of the separation of powers principle and the law, and several provisions of the Judicial Code of Conduct.
In the second part of the complaint, which is even more serious, #UniteBehind alleges that while Judge Makhubele was chairperson of PRASA, she worked to advance the interests of a company whose contracts with PRASA have been set aside on the grounds of corruption linked to state capture.
Judge Makhubele strenuously denies these allegations, arguing that her involvement at PRASA happened before she became a judge, which she says occurred from 1 June 2018. Therefore, the Judicial Service Commission has no power to investigate these PRASA-related activities. In any event, Judge Makhubele argues, #UniteBehind has put up no evidence that she favoured the interests of one company over another during her tenure as board chairperson.
The Zondo Commission into State Capture tried to investigate some of these allegations as part of a broader investigation into corruption at PRASA but could not complete Judge Makhubele’s evidence before the end of the commission’s life. It now falls onto the Judicial Conduct Tribunal to test the two competing versions of what happened, and hopefully get to the truth.
The fact that Judge Makhubele was the only judge to come before the Zondo Commission is only one of several reasons why the Tribunal is significant. To understand the significance, it is important to understand the full context of the complaint and the process to hold judges accountable for misconduct.
In January 2019, #UniteBehind filed a complaint of judicial misconduct against Judge Makhubele by submitting an affidavit to the Judicial Service Commission (JSC) in terms of section 14 of the JSC Act of 1994. Inexplicably, the complaint waited a year before it was referred to then Chief Justice Mogoeng Mogoeng in February 2020, who determined that it was serious enough to warrant a hearing by the Judicial Conduct Committee (JCC).
The JCC hearing happened in March 2020, and Judge Makhubele was given an opportunity to state her version of events. After this hearing, the JCC ruled that the complaint against Judge Makhubele was so serious that, if substantiated, it would constitute gross misconduct that could lead to her impeachment. This is the most serious category of misconduct a judge may face. The JCC recommended that the Judicial Service Commission establish a Tribunal, which only happened in October 2020.
Further delays occurred, which included litigation by Judge Makhubele and the recusal of the Tribunal president, Judge Fritz Brand. It would only be at the end of 2022 that the date for the Tribunal hearings was finally confirmed as 21 February 2023.
The appointment of the Tribunal is also significant because of the powers that the Tribunal has to get to the truth. Chaired by a retired judge and with a senior prosecutor as evidence leader, the Tribunal has sweeping powers of investigation, and may call any witness to submit evidence or testify before it. Importantly, the Tribunal may cross-examine witnesses to get to the truth.
For example, Gauteng High Court Judge President Dunstan Mlambo is one of the witnesses who will testify at the Makhubele Tribunal. He will give evidence on the first part of the complaint, which is the exact timing of when Judge Makhubele became a judge. #UniteBehind says 1 January 2018; she says 1 June 2018. Judge Mlambo’s evidence will therefore answer the question of when exactly a person becomes a judge, and also why there is a discrepancy in the dates, and how it came to be that Judge Makhubele’s appointment as a judge was signed off by two presidents (Jacob Zuma in 2017 and Cyril Ramaphosa in 2018).
The determination of when Judge Makhubele became a judge is the first hurdle in the way of #UniteBehind’s complaint because, if it is established that she only became a judge on 1 June, then the Tribunal (and the JSC, of which it is a part) has no jurisdiction to investigate the PRASA-related aspects. The entire complaint will therefore be dismissed.
If the first complaint passes the hurdle, and it is established that Makhubele became a judge on 1 January 2018, then the Tribunal will shift to investigating the second part of the complaint, which examines what happened while Makhubele was at PRASA. A key witness on this aspect will be Martha Ngoye, the suspended head of PRASA’s legal division.
At the Zondo Commission, Ngoye testified that Judge Makhubele improperly involved herself in a legal dispute PRASA had with Siyaya DB, a company which had some of its contracts set aside on the grounds of corruption. PRASA almost lost R58-million through Makhubele’s alleged intervention in Siyaya’s favour. #UniteBehind therefore complained that, in seeking to intervene on behalf of Siyaya, Makhubele was trying to advance state capture at PRASA and that this violates the Code of Judicial Conduct, and that it is not compatible with someone holding the office of a judge.
Again, Makhubele denies #UniteBehind’s allegations, arguing that she was not acting alone but with the collective of seven other PRASA’s board members who were trying to protect PRASA’s interests in the litigation. She says the Siyaya’s lawyers improperly used her name in trying to claim the millions from PRASA, and she had no role to play. She has gone as far as laying a professional complaint against Siyaya’s advocate.
The Tribunal therefore has its work cut out in trying to get to the truth of what was Judge Makhubele’s role at PRASA, and whether her actions constitute gross judicial misconduct of the kind that will lead to impeachment. Once the hearings are done, the Tribunal will submit a report to the JSC. Based on this report, the JSC may vote to punish the judge through a fine or impeachment, and requesting Parliament to remove the judge from office.
The four years it has taken for the complaint to reach the stage of tribunal hearings is also a concern. This concern speaks to the structural problems in the design and function of the judicial misconduct system. These problems include that the system is far too complex, with multiple stages of decision-making that are all vulnerable to court cases and delays. This is made worse by the fact that the Judicial Conduct Committee is made up of judges currently sitting in court, and so complaints are only dealt with when the judges find the time, which is often during court recess periods.
These and other problems mean that the JSC is far too slow in dealing with complaints against judges. This is unfair to both the judges implicated and the public who rely on the utmost integrity of the judiciary.
So who judges the judges? The Tribunal this week will give us a clue on how seriously the South African takes this question.
Mbekezeli Benjamin Research and Advocacy Officer at Judges Matter, a civil society project that monitors the judiciary in South Africa.
Views expressed are not necessarily those of GroundUp.