Gauteng High Court judge Nana Makhubele has defended her application for an interdict to halt the parliamentary process considering her impeachment. Makhubele's application, initiated eight months ago, seeks to delay the process until the finalisation of a review application to set aside the Judicial Service Commission's gross misconduct finding against her. The finding triggered parliament's impeachment process, which could result in Makhubele losing her lifetime benefit of receiving a judge's salary, currently about R2.1m per year.
Makhubele's replying affidavit, filed this month, counters Unite Behind's argument that her bid poses serious harm to the National Assembly's constitutional mandate in holding the judiciary accountable. Makhubele argues that her application for interim protection is not inconsistent with the National Assembly's duties or judicial accountability. Instead, she claims the court is asked to preserve the efficacy of its review jurisdiction, not to decide whether parliament should vote for her removal.
The application, before the high court in Pretoria, targets the National Assembly speaker and parliament's portfolio committee on justice and constitutional development, chaired by Xola Nqola. If Makhubele succeeds, it will delay the impeachment process. She argues that if the National Assembly proceeds with the impeachment vote and parliament passes a majority vote, President Cyril Ramaphosa will have no choice but to strip her of her judge title. Makhubele contends that such an outcome before a judgment in the review application would be problematic in law.
Makhubele's court papers state that her application seeks interim protection pending the determination of her review of the JSC decision finding her guilty of gross misconduct. She argues that it is in the interest of justice that this matter is determined, as it implicates judicial independence and accountability, as well as the lawfulness of the conduct of constitutional institutions in holding the judiciary to account. Unite Behind argues that Makhubele has an option to seek legal relief even after the parliamentary process.
However, Makhubele contends that Unite Behind's suggested 'window' for further proceedings after a parliamentary resolution does not adequately answer the urgency of preserving her position. She argues that the possibility of later proceedings does not establish an equally effective remedy against the harm of removal before the pending review has been determined. Makhubele has been on suspension since November 2020 and has been subjected to an inquiry in the past five years.
Eastern Cape judge president Selby Mbenenge, facing impeachment consideration like Makhubele, obtained a court interdict after a settlement by parties for parliament to halt its impeachment considerations against him. Unite Behind argues that the bar for an interdict against the National Assembly is high, and Makhubele has not met the legal standards warranting an interdict. The organisation also disputes the jurisdiction of the high court in Pretoria, arguing that the case should have been initiated in the Western Cape.
Makhubele was initially found guilty of grossly negligent conduct by the Judicial Conduct Tribunal last January. The JSC found her guilty of gross misconduct, a ground for impeachment, over a complaint that she accepted a job as a Passenger Rail Agency of South Africa (Prasa) board member after being informed of her imminent appointment as a judge. Makhubele argues she was not a judge when she accepted the Prasa interim board position and denies allegations against her, pinning her hopes on a review application to clear her name.
Key points
- Judge Nana Makhubele defends her court bid to block impeachment, arguing it does not harm the National Assembly's constitutional mandate.
- Makhubele's application seeks interim protection pending the determination of her review of the JSC decision finding her guilty of gross misconduct.
- The outcome of the case could have implications for judicial independence and accountability in South Africa.
