How the JSC failed our judges – and the public

Illustration: Lisa Nelson

The first week of June 2022 marked four 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. It will be the subject of a formal inquiry by a Judicial Conduct Tribunal — a process about as serious as a heart attack.

Judges Matter believes that the Judicial Service Commission (JSC) has failed to deal with the complaint against Judge Makhubele effectively or efficiently. To us, this raises serious concerns about how the JSC carries out its constitutional responsibility of holding judges accountable for misconduct.

Grounds for complaint against Judge Makhubele

In January 2019, #UniteBehind – a civil society organisation working to expose the rot at the Passenger Rail Agency of South Africa (PRASA) and getting 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 other 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 alleged 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 organisation 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 Cyril Ramaphosa amended this start date to 1 June 2018, 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, benefits and judge’s salary (currently worth R1,882,486 annually) 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.

Numerous delays

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 she went to court to prevent the President from carrying it out. Her court challenge was unsuccessful and her suspension was effective from November 2020.

Then, 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 took another six months before Judge Brand’s replacement was eventually appointed – 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 televised 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 the rotten apples aren’t 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 for 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, as in the case of Judge John Hlophe. The reputation of the judiciary cannot bear such a wait.

The authors are with Judges Matter, 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.

Opinions expressed are not necessarily those of GroundUp

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