By Judith February and Chris Oxtoby
A judicial conduct tribunal began sitting this week (on Tuesday, 21 February) to consider a complaint by civil society organisation Unite Behind against Gauteng High Court judge Tintswalo Annah Nana Makhubele. She is accused of gross misconduct, which could result in her impeachment, while she was chair of the interim board of the Passenger Rail Agency of South Africa (Prasa).
It is alleged that Makhubele bypassed Prasa’s legal department to settle a claim by Siyaya, a company described as being linked to corruption and State Capture; and that she violated the principle of the separation of powers by serving as Prasa chair at the same time as being a judge. Makhubele previously appeared before the Zondo Commission, but the commission was unable to deal fully with the matter in time and left the evaluation of her conduct to the judicial conduct tribunal.
A judicial conduct tribunal is an ad-hoc body set up by the Judicial Service Commission (JSC) to inquire into whether a judge has acted in a way which may lead to their impeachment. If the tribunal finds that a judge has committed such misconduct, the JSC decides whether to accept that finding, and if it does, the matter is sent to Parliament, which votes on whether the judge should be removed from office.
Although there has been an explosion of complaints against judges in recent years, to date relatively few have proceeded to the tribunal stage. For instance, a conduct tribunal found that Judge Nkola Motata had committed potentially impeachable conduct, but the JSC did not accept that finding, and ordered a lesser sanction. Freedom Under Law has taken this decision on judicial review. (An interesting aside is that the judge chairing the Makhubele tribunal, retired KwaZulu-Natal Judge President Achmat Jappie, was also the chair of the Motata tribunal). Then, in the cause célèbre of South African complaints against judges, a tribunal found that Western Cape Judge President John Hlophe was guilty of gross misconduct for attempting to influence Constitutional Court judges in deciding a case against former president Jacob Zuma. This matter is still to be dealt with by Parliament. In the only concluded tribunal cases, now-retired judges were sanctioned, but not impeached, for the late delivery of judgments.
The Makhubele tribunal comes at a critical time for the judiciary. In the days leading up to the start of the proceedings, two stories have broken which, if proved, would doubtless serve to undermine public trust in the judicial system. First, it was reported that a sitting judge was due to appear in court to face charges of theft, money laundering and contempt of court, relating to his handling of a Road Accident Fund case while he was still an attorney. The second story revealed that allegations of sexual harassment had been levelled against a judge president of one of the high courts by a court official. The judiciary depends on public confidence to fulfil its constitutional mandate. An erosion of this trust is extremely damaging.
Unfortunately, the JSC’s track record of dealing with complaints against judges has not been conducive to building such necessary trust. In 2022, Freedom Under Law produced a report examining the performance of the JSC in appointing judges and dealing with complaints of misconduct against judges. The report is strongly critical of how the JSC has dealt with complaints against judges. It highlights that the process of dealing with complaints is time consuming, complex and lacks transparency. Although, on paper, the JSC system of dealing with complaints about judges’ conduct seems like it would provide a solid basis to ensure that complaints are resolved promptly and fairly, the commission’s track record “reveals a system that is broken, certainly as far as allegations of gross misconduct are concerned”.
The report criticised the JSC for failing to finalise complaints within a reasonable timeframe and for showing an inability or unwillingness to exercise its disciplinary powers decisively, and notes that the system has been vulnerable to delay, including because of judges asserting their rights in court. The JSC’s tardy approach in dealing with these matters cannot be reconciled with the need for complaints of misconduct to be dealt with urgently, so as to protect the reputation and legitimacy of the judiciary.
The report’s recommendations for dealing with these issues include introducing clear but flexible timelines for the resolution of complaints; and involving complainants more closely in the process, to ensure that the detailed knowledge the complainants possess is brought to bear as fully as possible to assist the tribunal in coming to its decision.
The Makhubele tribunal therefore presents an important case study to see whether the complaints system is able to address these issues. There are already some grounds for concern. The tribunal is only now, in 2023, starting to hear a matter arising from a complaint that was lodged in December 2018, more than four years ago. This delay was due in part to the late recusal of former Supreme Court of Appeal judge Fritz Brand, who was to have chaired the tribunal, in early 2022. It has taken a year for the tribunal to reconvene, which sadly bears out the assessment that the system is far too susceptible to long delays. And it has been slow going, with many procedural issues being discussed which should have been dealt with before the hearing began, and it seems likely that only two witnesses will have testified by the end of the week. It may be that clear, standardised case management rules for all tribunals need to be introduced.
The complainant’s legal representatives also appear to be restricted to a more limited role than might be expected, with their right to examine witnesses to be assessed on a witness-by-witness basis. It is to be hoped that in taking this approach the tribunal will not lose the benefit of the complainant’s insight. The stakes in this hearing are high, both for Makhubele and the efforts to ensure accountability for her alleged misconduct, and for the tribunal to show that the system for dealing with complaints against judges can operate fairly, efficiently and expeditiously after all.