A judge is “not an employee,” said evidence leader Dorian Papier at the Judicial Conduct Tribunal inquiry into a gross misconduct complaint against suspended Gauteng judge Tintswalo Nana Makhubele.
The tribunal was hearing closing arguments on Monday in a disciplinary process that could lead to Makhubele’s impeachment. One of the allegations Makhubele faces is that when she was appointed a judge she was also the chairperson of the Passenger Rail Agency of South Africa’s (Prasa) interim board of control — an improper dual role, said NGO #UniteBehind in its complaint against her.
In written argument ahead of closing arguments, her counsel argued that she was not, in law or in fact, a judge at the time she was at the helm of Prasa. This was because she had not, at that stage, accepted an offer from the president to become a judge.
After she was recommended for judicial appointment by the Judicial Service Commission (JSC) in October 2018, she only received an “initial offer” from the president to appoint her a month later — in November, argued her counsel Thabani Masuku SC in written argument. The “offer to appoint” was made from January 1 2018, said Masuku. Makhubele did not take up this offer, but instead “negotiated new terms of appointment” — to start at a later date to accommodate her Prasa tenure — and that these new terms “were ultimately accepted by the president when he issued a new letter of appointment with conditions that justice Makhubele was prepared to accept”.
“Contract law therefore resolves the complaint about duality of positions,” said Masuku.
But on Monday, Papier said: “If a judge was to be dealt with as just an employee, then it would do manifest harm to the whole constitutional system.”
He said the process of judicial appointment was set out in the constitution: a candidate was nominated and accepted nomination. They were interviewed and recommended. When it came to high court appointments, once recommended by the JSC, “the president is required to appoint her”.
“In terms of [the constitution], he doesn’t have a choice, he has to appoint judge Makhubele as a judge. That’s the law,” said Papier. “So to equate the appointment of a judge with somebody who ... is a prosecutor, for example ... where there is an offer and acceptance, this doesn’t happen in the scheme of things,” he said.
Counsel for the #UniteBehind, Michael Bishop, agreed. He referred to a 2002 Constitutional Court judgment, which said that it was undesirable for judicial officers (in this case magistrates) to engage in negotiations with the executive over their salaries. “They are judicial officers, not employees,” said the Constitutional Court.
Bishop also referred to other judgments, of the labour court and of foreign countries, which explained that judges were not, in law, regarded as employees because the employment relationship involved a degree of control by the employer — over the employee. This was inimical to judicial independence, said these judgments.
The appointment of judges was not governed by the law of contract. “It is a public law act, set out in the constitution.” The conditions of judges’ employment were governed by legislation, not negotiated under the law of contract, said Bishop.
He said it was “concerning” that Makhubele was advancing an argument that the appointment of a judge was governed by the law of contract, given its implications for judicial independence.
Makhubele’s counsel will make closing arguments on Tuesday.
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