Pretoria high court judge Nana Makhubele has urgently gone to court to prevent her suspension, saying she was not yet a judge at the time she was alleged to have committed gross misconduct.
Last month the Judicial Service Commission (JSC) asked President Cyril Ramaphosa to suspend Makhubele, pending an investigation into possible impeachment. This was because she had, after being appointed a judge, taken up the position of chairperson of the Passenger Rail Service of SA (Prasa) and has been accused, while there, of improper conduct.
Substantially similar allegations are also being investigated by the state capture inquiry.
But Makhubele has asked the Pretoria high court to set aside the finding of the JSC that her appointment as a judge commenced on January 1 2018. In her affidavit, filed in court last week, she said that — on a request to the president by judge president Dunstan Mlambo — her January 1 starting date had been revoked and changed to June 1 2018.
Until the court case is finalised, she has asked that the decisions that she should be suspended and face a judicial conduct tribunal should themselves be suspended. She also wants the high court to declare that it is unlawful for the state to refuse to fund her legal costs in her proceedings before the JSC.
Makhubele said that when she asked the JSC for reasons for its decision, its answer was that she was indeed a judge from January 1 2018. But she attached to her affidavit an appointment certificate that stated “in plain English” that she was appointed from June 1 2018, she said.
“It is a legal and constitutional absurdity to hold that I could be appointed as a judge of the high court on two separate and different dates by the president,” she said.
Makhubele was interviewed and recommended for appointment by the JSC on October 3 2018. In her affidavit, Makhubele said she was appointed as chair of Prasa on October 19 and accepted the appointment because it was to chair an interim board and would be of short duration.
She said she had — before her interview — already told the judge president that she would need to delay her appointment because she had to wrap up her affairs as counsel and as chair of the Water Tribunal. “The judge president was accommodative and indicated that I would be given the opportunity to finalise any outstanding matters and to deal with whatever I needed to deal with,” she said.
She had asked for the time to wind up her affairs “in the interest of judicial independence” — to ensure that there was no conflict between her duties as a judge and her other duties.
She said she was not asked about this at her JSC interview and while she “would have raised it unilaterally ... I was content that my discussion with the judge president had taken care of this issue”.
Makhubele said when she carried out her duties as Prasa chair she was neither a judge nor performing judicial functions. She had not taken her oath of office, she was not receiving a salary or any benefits of judicial office, she said.
She said that if the court agreed that she was not a judge at the time, the JSC would only have jurisdiction to investigate her fitness for office once another court or institution had found her guilty of acting dishonestly and corruptly.
“What the JSC may not do is conduct an investigation on allegations of corruption and dishonesty itself — for to do so would be to cloth the JSC with powers to investigate criminal activities.”
The JSC had no jurisdiction to investigate crime, but should “allow the criminal justice system to decide the guilt or innocence of the accused judge and only then take up the issue of fitness for office”.
The same went for other “relevant agencies,” she said.
Makhubele said the complaint against her before the JSC by civil society coalition #UniteBehind was a “vindictive campaign” against her.
* This article has been corrected since its initial publication to reflect that the court papers were filed last week and not on Monday.
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