The allegations in Prasa’s legal risk and compliance executive Martha Ngoye’s affidavit add to the growing criticism of Judge Tintswalo Makhubele’s intentions by organisations such as #UniteBehind.
The social movement has already raised concerns about whether, by accepting her appointment to the Prasa board despite being recommended for a position on the Bench, Makhubele had thrust herself into a position where her interests were conflicted.
Judges are not allowed take up an appointment seen to be inconsistent with an independent judiciary or that would undermine the separation of powers doctrine.
Makhubele, previously a silk at the Pretoria Bar, was recommended for appointment as a judge by the Judicial Service Commission (JSC) in October last year and was expected to begin active service on January 1 2018.
She was appointed to the Prasa board on October 17 2017 and asked that her date of appointment be delayed to April 1 2018. However, the date of her active service was postponed until June 1 after President Cyril Ramaphosa was successfully petitioned by Justice Minister Michael Masutha and Gauteng Judge President Dunstan Mlambo to delay her starting duty.
#UniteBehind had written to Mlambo raising concerns about Makhubele’s continued tenure at Prasa and her fitness to hold judicial office. The Mail & Guardian has confirmed there is no formal complaint lodged with the JSC against Makhubele currently but understands that #UnitedBehind will do so in the next two weeks.
Makhubele was recommended for judicial appointment after making a very good impression at her interview before the JSC in October last year. The president is obliged to appoint judges recommended for high court posts by the JSC.
Makhubele only requested a legal opinion on whether her Prasa appointment was legal and whether she was in fact a judge after meeting with law firm ENSAfrica on February 22 and 24, almost two months after her active service was due to begin in January. In a February 28 opinion, ENSAfrica’s view was that Makhubele “holds office as a judge as of January 1 2018, but is not yet a judge performing active service”.
Spokesperson for the office of the chief justice, Nathi Mncube, responding to questions on behalf of Mlambo, said both the judge president and the justice minister had sought a legal opinion on Makhubele’s request to delay the assumption of duty.
He said the opinion found there was no legal impediment to redetermining the date for Makhubele to assume duties because she had not taken an oath of office or was deemed to have “assumed duty”.
He said that Mlambo was of the view that any concerns about a conflict of interest involving Makhubele were “misplaced”.
However, Alison Tilley for the Judges Matter coalition of nongovernmental organisations asked at what point the judicial code of conduct became applicable for judges: “When does the actual position of a judge begin such that that person would be susceptible to the JSC process which could result in impeachment?”
Article two of the Judicial Code of Conduct states that a “judge not on active service is bound by this code insofar as applicable” and is generally accepted to apply to retired judges. Makhubele’s case may prove an opportunity to test whether this is applicable to judges who have been appointed by the president but have not taken up active service.
JSC spokesperson CP Fourie said applying the code to judges who had not yet begun active service “would not be practical” because lawyers required time to wind up their practices — in effect requiring activities contrary to the code — before starting on the Bench.
Fourie said that, if new information emerges about a prospective judge after they are recommended to the president and between the time he confirms the appointment and they take up active service, it was out of the commission’s hands.
“Once the president makes the appointment, that is it. There is nothing the JSC can do other than if a complaint is lodged, in which case normal processes must be followed,” said Fourie.
Tilley noted that “transparency [in the interview and appointment process] is a necessary but not sufficient condition for good appointments and there is a great deal that is to be done in the way that we, the legal profession generally, grows up our candidates for judicial appointment in the right way so that the candidates are the right people for the job”.
Earlier this month Makhubele was initially placed on the roll of the high court in Pretoria — the seat at which the Prasa litigation was heard — before being moved to the Johannesburg seat. The roll for the third term, seen by the M&G, has a set of blank spaces next to her name.
When asked whether this decision may in fact point to a recognition of a potential conflict of interest by Mlambo, Mncube said it was “an operational decision” since it obviated having to appoint an acting judge to fill a position in Johannesburg that had recently became vacant after the appointment of a judge from that court to the Labour Appeal Court on June 1.