Judge Makhubele is suspended … but still hearing cases

Judge Tintswalo Makhubele, suspended on 14 October, struck an application by the Black Sash Trust from the urgent roll on Friday 2 November. The application sought the continuation of the top-up SASSA grants. Photo courtesy of Judges Matter

This article has been update. See below.

Judge Tintswalo Annah Nana Makhubele was suspended by President Cyril Ramaphosa following the recommendation of the Judicial Services Commission (JSC) on 14 October, until a Judicial Conduct Tribunal (JCT) completes impeachment proceedings against her. Her suspension was to take effect after Judge Makhubele finalised “part-heard and reserved judgments.” But Judge Makhubele has been allocated new matters since 14 October.

Judge Makhubele struck off an application from the urgent roll on Friday 2 November by the Black Sash Trust that sought to ensure the continuation of the top-up South African Social Security Agency (SASSA) grants beyond October.

The Black Sash Trust brought the matter against SASSA, Chief Executive Officer of SASSA, the Minister of Finance, the Minister of Social Development, and the President.

Commuter activist group #UniteBehind had brought a complaint against Judge Makhubele following her controversial tenure at the Passenger Rail Agency of SA (PRASA). Judge Makhubele was accused of breaching the separation of powers principle, by being both a Judge of the High Court and Chair of PRASA, a position that falls under the executive branch, as well as of improper conduct while PRASA chair. On 14 October, Sello Chiloane, secretary of the JSC, wrote to Judge Makhubele on behalf of Chief Justice Mogoeng Mogoeng, to inform her that the JSC had recommended the establishment of a tribunal to conduct impeachment proceedings, and that it had requested the President suspend her judicial office in the meantime. Also on 14 October, the JSC released a statement communicating the decision against Judge Makhubele, as well as a similar decision to impeach and suspend Judge Mushtak Parker, of the Western Cape High Court.

In response to GroundUp’s questions, CP Fourie, spokesperson of the JSC, said that the JSC “has been informed by the Presidency that the President has suspended Judges Makhubele and Parker subject to the condition that they finalise their part-heard matters and reserved judgments.” Fourie confirmed that the Judicial Conduct Tribunal “is being established and the public will know when its hearings commence.”

On why Judge Makhubele was still hearing new cases, GroundUp was directed to Dunstan Mlambo, Judge President of the Gauteng Division of the High Court. GroundUp has not yet received a response.

It appears from the High Court rolls that Judge Makhubele has been hearing new matters since 14 October. The Pretoria High Court Criminal Court roll for Tuesday (10 November) shows that Judge Makhubele is enrolled in Court 6E as a Civil Trial judge. Before this, a criminal court roll of 5 November shows that Judge Makhubele had been assigned to hear an unopposed motion.

On 3 November, TimesLive reported that Judge Makhubele had approached the North Gauteng High Court to set aside the JSC decision to recommend that she be suspended from the judiciary.

Zukiswa Vuka, senior organiser for #UniteBehind, confirmed that the commuter activist group would be opposing this application.

Judge Makhubele argues that the date of her appointment as a Judge was on 1 June 2018, and not 1 January 2018. According to the JSC’s correspondence with Judge Makhubele, the JSC “felt that Judge Makhubele was indeed a Judge during the period of 1 January 2018 until her position was in fact re-determined by the President”.

Update

In an email to GroundUp received after publication of this article, judiciary spokesperson Nathi Mncube said while the JSC’s recommendation to President Ramaphosa that Judge Makhubele be suspended pending the outcome of a Judicial Conduct Tribunal was delivered on 14 October, the President only made the suspension effective on Sunday 1 November, two weeks later.

“The suspension of Judge Makhubele by the Honourable President Ramaphosa was sent to her on 1 November 2020 subject to the condition that she finalises her reserved judgments and part-heard cases. The Black Sash urgent application was heard on Friday 30 October 2020 and dismissed on Monday 2 November 2020. It falls squarely under the condition set by Honourable President Ramaphosa,” he said.

“It is incorrect that Judge Makhubele is hearing new cases which would be in conflict with her suspension conditions. She has not heard any new cases since her suspension by the Honourable President Cyril Ramaphosa.”

“Judges’ duty roster is prepared at the beginning of term and amendments to the duty roster are made as and when it becomes necessary. Judge Makhubele was removed from the duty roster immediately after she was served with her letter of suspension. We acknowledge that the amended duty roster had not been published at the time of your writing the article.”

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