Judge Makhubele: 5 things you need to know about the judicial conduct tribunal

Pretoria high court judge Tintswalo Makhubele, a former board chairperson of the Passenger Rail Agency of South Africa (Prasa), faces a misconduct investigation by the judicial conduct tribunal which could lead to her impeachment.

Makhubele has been accused of breaching the separation of powers principle by serving as a judge of the high court while being Prasa chairperson. 

Here are five things you need to know about Makhubele's case:

#UniteBehind files a complaint

Makhubele made headlines in 2019 when civil organisation #UniteBehind filed a complaint against her with the Judicial Service Commission (JSC). 

According to the complaint, Makhubele was nominated by the JSC for appointment as a judge of the Gauteng High Court on October 4 2017. On October 17, she was appointed Prasa chairperson, with a start date of January 1 2018. 

On November 2, former president Jacob Zuma appointed Makhubele as a judge, with a start date of January 1 2018.

After the announcement, #UniteBehind raised concerns with the JSC about the conflict of interest the two positions would pose and questioned the rationality of appointing her to the chairperson position after her nomination for the high court.

Alleged racial bias

At the height of the complaint, Makhubele questioned whether she was targeted because she is a black woman. 

She lodged a complaint with the Judicial Conduct Committee against judge Neil Tuchten for “defamatory statements and unwarranted criticism” after he wrote in a judgment she ought not to undertake judicial duties until she clears her name.

“I am sorry to say that I must say something about the conduct of judge Makhubele as evidenced by these papers,” wrote Tuchten. “There are questions which demand answers.”

Makhubele suggested Tuchten's judgment against her was affected by racial bias. 

She wrote in her complaint: “Why did judge Tuchten single me out? Is it because I am a woman? A black woman? The others are white males.”

No-show at state capture inquiry

In 2020, Makhubele was a no-show at the state capture inquiry after she was expected to give evidence relating to allegations of corruption at Prasa. 

Makhubele sent her legal counsel, advocate Gift Shakoane, to request a postponement. 

Shakoane made representations to then deputy chief justice Raymond Zondo in a letter citing several reasons for his client not appearing.

He said Makhubele had not been alerted when evidence against her was to be delivered to the inquiry by a witnesses, advocate Francois Botes.

Denying wrongdoing

After months of silence and four postponement requests, Makhubele appeared before the state capture commission and denied wrongdoing when she chaired Prasa in 2017 and 2018.

“I’m going to deny everything. I’m going to show you I’m never one that takes short cuts,” she said.

Makhubele told the commission it was not true she showed special interest in Siyaya,  owned by Makhensa Mabunda, or that it was the first issue she raised when she arrived at Prasa.

Mabunda was politically connected to Prasa’s former and allegedly corrupt CEO Lucky Montana and Siyaya had almost R1bn worth of contracts with Prasa.

'She was not a judge while acting as Prasa chair'

This week, Makhubele’s counsel Vincent Maleka denied she was a judge while Prasa chairperson.

According to Maleka, Makhubele assumed her role as Prasa board chair in October 2017 and, at the time, there was no appointment letter that Makhubele had received from the high court. He said Makhubele never regarded herself as a judge of the high court until she started her official duties in June 2018.  

However, judge president of the Gauteng High Court Dunstan Mlambo, in his testimony, said Makhubele, by the end of March 2018, was ready to submit forms to start getting a salary as a judge. 

He said she wanted to resume her duties but he could not allow her to as they were still waiting for a deferral letter with Makhubele's new appointment date.

Mlambo said Makhubele was secretive about her appointment as interim board chair of Prasa.

“I voiced my disappointment that she knew from October she had been recommended for permanent judicial office but went on to take this other role.

“My biggest disappointment was there were cases involving alleged corruption at Prasa at that court. I asked her how she could join an organisation [in such circumstances] and felt [it was not good],” Mlambo said. 

The hearing will continue on Wednesday. 

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