31 July 2023
The Judicial Conduct Tribunal will consider the allegations again Judge Tintswalo Annah Nana Makhubele’s on 1 August. Archive photo: Masego Mafata
The Judicial Conduct Tribunal of High Court Judge Tintswalo Annah Nana Makhubele is set to resume on Tuesday, 1 August. The hearing is considering allegations of misconduct in relation to Judge Makhubele’s time as chair of the Passenger Rail Agency of South Africa (PRASA) board.
But Judge Makhubele wants the hearing postponed because her legal representation has not been paid by the office of the state attorney. This is according to a letter Makhubele’s legal representative sent to retired Judge President Achmat Jappie on 20 July.
“Unfortunately, we cannot commit to a date since we do not know when the impasse with the Office of the State Attorney will be resolved. We will notify the Tribunal as soon as our fees are settled,” the letter reads.
The tribunal consists of retired Judge Jappie, retired Judge Seun Moshidi, and practising attorney Noxolo Maduba-Silevu.
Makhubele is facing the tribunal hearing after commuter activist organisation #UniteBehind laid the complaint with the Judicial Service Commision (JSC) in 2019. The complaint accused Makhubele of misconduct when she took up dual roles of Gauteng High Court judge and chairperson of the PRASA board, violating the separation of powers principle of the Judicial Code of Conduct, and also further misconduct allegations while she was on the PRASA board.
In 2020, the Judicial Conduct Committee (JCC) referred the matter to the Judicial Conduct Tribunal after it found the allegations to be “very serious”. But the tribunal faced many delays and only resumed three years later in February 2023.
#UniteBehind has since raised concern about further delays in the hearing, since Makhubele has “already sought, and been granted, substantial postponements for purposes of securing legal representation”.
The organisation recommended a short postponement of no more than a month. If a longer postponement was desired, Makhubele “should then bring a proper application for a postponement under oath, duly served on the Tribunal, the evidence leaders and the complainant, so that its merits can be properly considered”.
Director of #UniteBehind Zackie Achmat said that, “Justice Makhubele’s costs, conduct and the withdrawal of her legal team appears to follow the pattern of the criminally convicted former President Jacob Zuma and the disgraced Public Protector in their defences. #UniteBehind demands that all the costs of Justice Makhubhele’s legal teams for the JSC be made public immediately.”
Meanwhile, #UniteBehind has also requested that Makhubele pay their legal fees for a court case that she promptly withdrew after making an application to the Gauteng High Court in order to prevent her suspension as a judge. The application was withdrawn with the costs tendered.
The organisation requested written permission from Judge President Dunstan Mlambo of the Gauteng High Court “in terms of section 47 of the Superior Courts Act to issue and pursue a writ of execution against Judge Makhubele’s assets for the recovery of our client’s costs”.
In response and in writing to Mlambo, Makhubele’s legal representative said that #UniteBehind’s legal team is “relentless in their pursuit of Judge Makhubele” and that “their conduct is bordering on harassment and abuse”.
“It is not as if Judge Makhubele is refusing to pay. It is only if the State Attorney refuses to pay the bill that they can look upon her for payment. They must allow that process to conclude,” the letter read. They requested the Judge President to urge #UniteBehind to “temper their … sense of grievance towards Judge Makhubele”.
In response to a request for comment, the Office of the Chief Justice confirmed that the tribunal will resume on Tuesday.
Makhubele’s legal representatives did not respond to a request for comment.