Judge vs Judge: JSC in a bind over complaints of state capture, racism and sexism

In his November 2018 Pretoria High Court judgment in the case between the Passenger Rail Agency of South Africa (Prasa) and Siyaya Rail Solutions, Judge Neil Tuchten wrote: "Judge [Tintswalo Annah Nana] Makhubele ought not to undertake any judicial duties until she clears her name of the allegations against her."

However, Judge Makhubele responded by lodging a complaint against him with the Judicial Services Commission (JSC) for alleged racism and sexism. Then commuter activist group #Unitebehind also lodged a complaint against her.

Eight months later, neither complaint had been adjudicated in a case that dealt with the state capture of the rail agency, reports GroundUp.

READ: Judge Tintswalo Makhubele referred for impeachment

The two complaints raise questions about the JSC's processes. In particular, why after eight months has the JSC's judicial conduct committee still not finalised the complaints, and does Judge Makhubele's complaint even fall under the JSC's jurisdiction?

Two issues about Judge Makhubele concerned Judge Tuchten when he handed down judgment in the case.

First, she was appointed chairperson of Prasa's interim board after being appointed in October 2017 as a High Court judge. This conflict of interest was uncovered by #UniteBehind. She resigned from the board in March 2018.

"Why did she accept the appointment to chair Prasa when she already had been appointed as a judge?" asked Judge Tuchten in his judgment.

READ MORE: ‘Conflicted’ judge refuses to leave Prasa

Second, court papers stated Judge Makhubele had disrupted litigation procedures within Prasa by instructing Group Legal Services (GLS), an internal body of the rail agency, to stop its participation in the Siyaya litigation. At issue in the case was a R56m payment by Prasa to Siyaya, which Judge Tuchten's judgment had interdicted from being paid.

"I am sorry to say that I must say something about the conduct of Judge Makhubele as evidenced by the papers. There are questions which demand answers… Why did she intervene at all in the litigation with Siyaya?" he wrote in his judgment.

Judge Tuchten wrote that she had been given at least two opportunities to present her side of the story. "At no stage of the proceedings has Judge Makhubele made an affidavit or otherwise communicated her version in response to the allegations."

Judge Makhubele responded weeks after his judgment by lodging a complaint against him with the judicial conduct committee. In her complaint, she said she had only been made aware of the allegations against her through newspapers and social media.

While she believed she was not given a formal opportunity to respond to the allegations, she wrote: "I will address the merits of the allegations at the appropriate time and relevant forum if called to do so, or in the exercise of any legal remedies that I may have against anyone, including Judge Tuchten."

Judge Makhubele in her own complaint acknowledged Judge Tuchten had not "made adverse findings" against her, adding "the manner in which he phrased the questions, the context and his contempt of me as a judge, it is clear that he believes that I am guilty of the alleged wrongdoings".

"Is it because I am a woman? A black woman? The others are white males"

She claimed he had breached multiple provisions in the code of judicial conduct, and implied his statement about her were racially biased. She wrote: "Why did Judge Tuchten single me out? Is it because I am a woman? A black woman? The others are white males."

In his response to Makhubele's accusations of racism, he told the committee: "The suggestion that I want to hurt the complainant because she is a black woman is unfounded. I have never been influenced either in favour of or against anyone because of their race, gender, religion or political beliefs."

In a subsequent document sent to the committee, Judge Tuchten said: "It is unthinkable that a judge, faced with allegations under oath such as these, would choose to remain silent and continue judicial duties. Instead of answering the allegation against her, [Judge Makhubele] has without justification imputed base motives to me. I think she has done so to deflect attention from the serious, unanswered allegations of misconduct against her."

GroundUp has seen letters - dated April 23, May 1, May 14 and May 23 - in which Judge Tuchten asked that the complaint against him should be dealt with fairly and promptly.

He also questioned whether the body had jurisdiction to deal with a complaint of this nature. "I do not think the committee is empowered by law to enquire into the conduct of judges who express their honest opinion in a judgment."

'Infringing the separation of powers doctrine'

"If the committee did so, I believe it would be infringing the separation of powers doctrine. Judges who feared the committee might discipline them for writing what they honestly believed would not be independent in the fullest sense of the word and might withhold their honest opinions for fear of disciplinary consequences.

"I believe my approach to the allegations made against the complainant was the correct one, but if I am wrong it is for the courts to correct me, not the committee."

#UniteBehind lodged its complaint against Judge Makhubele with the JSC in January and as GroundUp reported in July, there appeared to be no progress processing it.

Responding to questions last week, Sello Chiloane, the JSC's secretary, confirmed the complaint by Judge Makhubele against Judge Tuchten had still not been resolved eight months after it was lodged.

Chiloane attributed the delays in the finalisation of complaints to the compliance procedures followed by the committee when looking into serious complaints. "The fact that the complaint has not been dismissed is an indication of the seriousness of the complaint."

He said when dealing with a complaint that was either impeachable or deemed serious but not impeachable, the committee first had to consider responses from those involved, adding it would then hold a formal hearing into the matter.

"The complaint is still under consideration and the committee should be afforded an opportunity to deal with it. Once it has been decided, the committee will notify the parties," Chiloane said.

'A broken system to deal with complaints'

Since January, the committee has received 58 complaints, of which 42 were finalised or dismissed. At least 16 complaints, including the complaint against Judge Tuchten by Judge Makhubele and the one against Judge Makhubelele by #UniteBehind are still pending.

"Complaints against judges are dealt with by the judicial conduct committee established in terms of the JSC Act. If the committee finds that a complaint is impeachable, it would recommend to the JSC to request the chief justice to appoint a judicial conduct tribunal. It is only when dealing with impeachable complaints that the JSC will be involved," Chiloane said.

He added the process of appointing new committee members was underway.

But Alison Tilley of Judges Matter believed the complaints process used by the JSC "is broken" and it was not dealing properly with matters brought to its attention.

"There are also complaints which we don't hear about, which the JSC deals with, without reporting them to Parliament. The JSC is required to report to Parliament and it is not doing so," she said.

Tilley noted Section 4 of the JSC legislation stated that any complaint against a judge might be lodged for "any willful or grossly negligent conduct … that is incompatible with or unbecoming the holding of judicial office, including any conduct that is prejudicial to the independence, impartiality, dignity, accessibility, efficiency or effectiveness of the courts".

"Although the issue has not yet been considered by the courts, to subject the substance of a judicial decision to the judicial conduct process must surely be contrary to judicial independence, as recognised constitutionally and internationally," she said.

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