Judge attempts to halt impeachment proceedings

Gauteng High Court Judge Nana Makhubele has filed an urgent application to halt Parliament’s consideration of the Judicial Service Commission's (JSC) recommendation for her to be impeached. TimesLIVE reports that Makhubele wants the parliamentary process to be halted until finalisation of a review application to set aside the JSC’s gross misconduct finding against her which prompted Parliament’s impeachment process. Business Day reported earlier that Parliament’s Portfolio Committee on Justice & Constitutional Development last week resolved to continue considering the recommendation of the JSC for Makhubele’s impeachment despite the legal dispute. The urgent application before the Gauteng High Court (Pretoria) against the National Assembly Speaker and the committee will delay the impeachment process. If impeached, Makhubele will lose her title and lose the benefit of receiving a judge’s salary for life.

The JSC decision is the foundation of Parliament’s impeachment process, and should a court set aside the finding, it will trigger a novel legal case on the impeachment process if Parliament votes for her removal. Makhubele argues if the National Assembly proceeds with the impeachment vote before the outcome of the review application, she will have no alternative relief to save her career. ‘The continuation of the section 177 (removal of a judge) proceedings under circumstances where there is a pending review application will result in irreparable harm.’ Parliamentary legal adviser Barbara Loots told MPs last week if Parliament impeaches Makhubele and she later wins the review, the impeachment decision would fall away. TimesLIVE notes that it is unclear how President Cyril Ramaphosa is expected to deal with the legal conundrum, as he is expected to remove Makhubele when Parliament passes a majority vote on the impeachment. The Constitution stipulates a judge may be removed if the JSC finds the judge guilty of gross misconduct and thereafter the National Assembly calls for that judge to be removed with a supporting vote of at least two-thirds of its members. After a majority vote in Parliament, the President must remove the judge.

TimesLIVE notes that Makhubele argues she did not have an interdict prayer in the review application because she had made a request for a stay in the impeachment proceedings to the National Assembly Speaker’s office. However, she did not win in the out-of-court procedure because Parliament contends without a court order prohibiting it from considering the JSC report, it has to fulfil its constitutional mandate and consider the impeachment recommendation: ‘I do not have legal representation; hence, I was reluctant to engage in litigation with the Speaker of Parliament on an issue that, in my view, can be resolved in an amicable manner.’ One of Makhubele’s contentions is the gross misconduct findings of the JSC and the Judicial Conduct Tribunal are based on two different sections of the Judicial Services Act. Makhubele was initially found guilty of misconduct by the JCT last year on a complaint that she accepted a job as a Passenger Rail Agency SA (Prasa) board member after she was informed of her imminent appointment as a judge by Gauteng Judge President Dunstan Mlambo. Civil rights organisation Unite Behind, which filed the complaint, argued Makhubele’s conduct undermined the independence of the judiciary and breached the separation of powers doctrine when she accepted both roles on paper. Makhubele argued she was not a judge when she accepted the Prasa interim board position at the end of October 2017. Former President Jacob Zuma announced her appointment in December 2017, and she was meant to start in January 2018.