The Judicial Conduct Tribunal, chaired by retired Judge President Achmat Jappie, has found suspended Gauteng judge Tintswalo “Nana” Makhubele guilty of misconduct. This ruling stems from allegations brought forward in 2019 by the civil society organization Hashtag Unite Behind, accusing Makhubele of breaching the principle of separation of powers by simultaneously holding roles in the judiciary and the executive.
Dual Roles at PRASA and the Judiciary
In October 2017, Makhubele was appointed as the chairperson of the interim board at the Passenger Rail Agency of South Africa (PRASA), a decision approved by the Cabinet. A month later, in November 2017, she was appointed as a judge by the president.
The complaint against Makhubele highlighted the conflict inherent in these dual roles, arguing that her continued association with PRASA while being a judge undermined judicial independence and the separation of powers doctrine.
Disputed Start Date as Judge
Central to the tribunal’s inquiry was the question of when Makhubele officially commenced her judicial duties. During the hearings, Makhubele argued that the date of her commencement as a judge, set for January 1, 2018, was under dispute. She claimed that she had communicated her inability to assume her duties on this date to Gauteng Judge President Dunstan Mlambo.
However, the tribunal found her evidence in this regard unconvincing. It determined that Makhubele’s claims about her commitments to the water tribunal and her need to conclude matters as an advocate were improbable and lacked credibility.
Tribunal Findings
The tribunal’s report concluded that Makhubele failed to inform Judge President Mlambo about her appointment to PRASA’s interim board, which explained her inability to start her judicial duties on the specified date. This omission, the tribunal noted, constituted a violation of her obligations as a judicial officer.
Additionally, the tribunal found Makhubele’s explanations for her delayed commencement as a judge to be unreliable. It rejected her assertion that she had communicated her situation to Mlambo and found no credible evidence to support her claims.
The tribunal also emphasized the importance of judicial officers maintaining independence and avoiding any conduct that could undermine public confidence in the judiciary. By holding a leadership role at PRASA while being a judge, Makhubele was found to have compromised the integrity of her office.
Potential Impeachment
The tribunal’s findings have been submitted to the Judicial Service Commission (JSC), which will now deliberate on the matter. Should the JSC accept the tribunal’s recommendations, Makhubele could face impeachment, making her one of the few judges in South Africa to undergo such a process.
The case has reignited debates about the importance of upholding judicial independence and ensuring that judges adhere to the highest ethical standards. Civil society organizations, including Hashtag Unite Behind, have welcomed the ruling as a victory for accountability.
Public Reaction
The tribunal’s decision has drawn mixed reactions from the public and legal professionals. Critics of Makhubele’s conduct argue that her dual role at PRASA and in the judiciary highlighted systemic gaps in governance and ethics.
“Judges should be the epitome of impartiality. Makhubele’s actions were a blatant disregard for the principles that underpin our democracy,” said a legal expert.
On the other hand, some have questioned whether Makhubele was given adequate guidance on managing her transition from advocate to judge, suggesting that systemic failures within the judiciary may have contributed to the controversy.
Conclusion
As the JSC prepares to deliberate on the tribunal’s findings, the case of Judge Tintswalo Makhubele serves as a cautionary tale about the critical importance of upholding ethical standards in public office. The outcome of this case could set a precedent for how the judiciary handles allegations of misconduct and reinforces the principle that no one, not even a judge, is above the law.