Under-fire judge seeks court order ‘in order to keep title’

Gauteng High Court judge Nana Makhubele says her legal bid to halt parliament’s consideration of the Judicial Service Commission (JSC) recommendation for her to be impeached does not seek to block judicial accountability.

Instead, it is a protective measure to not lose her judge title amid litigation, she said.

Makhubele recently filed court papers in her application initiated eight months ago to halt the parliamentary process considering the impeachment recommendation until the finalisation of a review application to set aside the JSC’s gross misconduct finding against her.

The gross misconduct finding prompted parliament’s impeachment process.

The application is before the Pretoria high court, and against the National Assembly speaker and parliament’s portfolio committee on justice and constitutional development chaired by Xola Nqola.

Should the application succeed, it will delay the impeachment process. However, if impeached, Makhubele will lose the benefit of receiving a judge’s salary for life.

The committee and National Assembly have not opposed the application. In a replying affidavit filed this month, Makhubele, defends the application for an interdict after civil society group Unite Behind, opposing application, said it poses serious harm to the National Assembly’s constitutional mandate to consider impeachment recommendations in holding judicial accountability.

“I deny that an application for interim protection is necessarily inconsistent with the National Assembly’s duties or judicial accountability. The court is asked to preserve the efficacy of its review jurisdiction, not to decide whether parliament should vote for my removal,” she says.

Makhubele argues that if the National Assembly proceeds with the impeachment vote and parliament passes a majority vote on the impeachment, the constitution gives President Cyril Ramaphosa no choice but to strip her of the judge title.

Such an outcome before a judgment in the review application of the decision triggering the impeachment process would be problamatic. “This application seeks interim protection pending determination of my review of the JSC decision finding me guilty of gross misconduct. This application seeks to prevent the removal process from overtaking the court’s determination of its lawfulness,” she says.

“It is in the interest of justice that this matter is determined. It implicates judicial independence and accountability. But it also implicates the lawfulness of the conduct of constitutional institutions in holding the judiciary to account.”

Unite Behind argues that Makhubele has an option to seek legal relief even after the parliamentary process, in that should the review court find in her favour, whatever decision taken by parlianment would collapse and she would get her job back.

The court papers show that in March, Nqola wrote to Makhubele to make representations before the committee weeks after she initiated the interdict application. In response, Makhubele said it was “unfair” for the process to proceed pending the application for an interdict.

“My primary case is not an unconditional right to retain judicial office or a right, under section 22, to hold that office irrespective of misconduct. It is a right to judicial protection against the consequences of the materially unlawful disciplinary decision alleged in this case.”

Judges earn about R2.1m a year. Makhubele has been on suspension since November 2020 and in the past five years has been through the misconduct hearings.

She was initially found guilty of grossly negligent conduct by the Judicial Conduct Tribunal last January on a complaint that she accepted a job as a Passenger Rail Agency of SA (Prasa) board member after she was informed of her imminent appointment as a judge by former Gauteng judge president Dunstan Mlambo.

The JSC found her guilty of gross misconduct which is a ground for impeachment.

Unite Behind argue Makhubele’s conduct undermined the independence of the judiciary and breached the separation of powers doctrine.

Makhubele argues she was not a judge when she accepted the Prasa interim board position at the end of October 2017. Former president Jacob Zuma announced her appointment in December 2017 and she was meant to start in January 2018. – BusinessDay