High Court judge accused of ‘impeachable conduct’

Activist group #UniteBehind has lodged a complaint against sitting Gauteng High Court judge Tintswalo Annah Nana Makhubele for allegedly breaching the Code of Judicial Conduct.

The civil society coalition claims Makhubele violated the code’s “separation of power” clauses, by having been chairperson of the interim board of the Passenger Rail Agency of SA (Prasa) while also serving as a judge, and have called for her impeachment.

The complaint filed with the Judicial Conduct Committee of the Judicial Service Commission (JSC) is signed by #UniteBehind secretariat member Zukiswa Fokazi. It is divided into two parts: criticism of her occupying the two positions at the same time, and criticism of her conduct while at Prasa, which GroundUp reported last year.

According to the complaint, Makhubele was nominated by the JSC for appointment as a judge of the Gauteng High Court on October 4 2017. On October 17 she was appointed Prasa chairperson. On November 2 former President Jacob Zuma appointed Makhubele as a judge, effective from January 1 2018.

After this announcement, #UniteBehind raised concerns with the JSC about the conflict of interest the two positions would pose and questioned the rationality of appointing her to the chair after her nomination for the high court.

Though Makhubele asked for a high court start date of April 1 — as revealed in emails obtained and cited by #UniteBehind in its affidavit — her position on the high court was effective from January 1 2018, according to the activist group. Her name officially appeared on the court roll on February 5 2018.

Makhubele continued in her position at Prasa until March 16 2018.

During her time as chairperson, Makhubele was also accused of disrupting litigation procedures inside Prasa. In November 2018, the Pretoria high court found that she had instructed Prasa’s lawyers not to defend the company against legal action that resulted in R56m being seized from Prasa (the money eventually had to be returned to the state-owned enterprise). In its judgment the court wrote that Makhubele “ought not to to undertake any judicial duties until she clears her name of the allegations against her”.

And in February 2018 the Sunday Times accused Makhubele of pushing for a R500m investment in the now bankrupt VBS Mutual Bank Bank “without any agreement being signed”.

#UniteBehind is calling for the impeachment of Makhubele on the grounds of violating the “independence of the judiciary”, as well as for her conduct while at Prasa.

The JSC acknowledged receipt of the complaint on January 21 2019 and forwarded it to the Judicial Conduct Committee.

Nathi Mncube, a spokesperson for the judiciary, said Makhubele cannot comment on the matter until she has been invited to do so by the Judicial Conduct Committee when it processes the complaint.

Read more:

• Analysis by judicial watchdog Judges Matter on judges, boards and conflicts of interest
• #UniteBehind’s complaint to the JSC

This article was first published in GroundUp.