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The Portfolio Committee on Justice and Constitutional Development today receive a briefing on the referral of findings of gross misconduct against Judge Nana Makhubele and Judge Mushtak Parker and will now call on both judges to make representations.
 
Parliament’s Constitutional and Legal Services Offices briefed the committee on what is expected from the committee, in terms of law, at this stage.
 
Committee Chairperson Mr Xola Nqola said the committee resolved to follow the legal guidance it received and it will now, in terms of Section 177 of the Constitution, invite written representations on extenuating circumstances from the judges affected.
 
In terms of this Section, a judge may be removed from office only if the Judicial Service Commission (JSC) finds that the judge suffers from an incapacity, is grossly incompetent or is guilty of gross misconduct. The National Assembly (NA) must then call for the judge to be removed, by a resolution adopted with a supporting vote of at least two thirds of its members.
 
The committee heard that this does not mean that the NA acts as a rubber stamp or that its resolution is automatically that of removal. The NA should not reconsider merits as settled in processes at the JSC stage. Accordingly, the NA and by extension the committee, should note the JSC findings for the purposes of making a recommendation as to the possible sanction to follow.
 
Regarding Judge Makhuble, the committee heard that in December 2018 #UniteBehind lodged a two-part complaint with the JSC in terms of section 14 of the JSC Act. #UniteBehind argued that there was a breach of separation of powers in that Judge Makhubele, after being appointed permanently to the bench, did not vacate her post as interim Chairperson of the PRASA Board (the position she was appointed to by the Minister of Transport after the date of her interviews but prior to her appointment by the President). This failure undermined the independence of the judiciary, #UniteBehind reasoned.
 
They further argued that during Judge Makhubele tenure as interim PRASA Board Chairperson, she improperly interfered with litigation to assist in obtaining a R50 million settlement for Siyaya Group (a state capture-implicated company) against PRASA, which was dishonest, unethical and lacked integrity.
 
Regarding Judge Parker, the committee heard that the initial complaint, lodged in March 2020, in which 10 judges of the Western Cape Division of the High Court submitted a complaint to the JSC in terms of section 14(4)(a) of the JSC Act. They alleged gross misconduct by Judge Parker in that he gave two mutually exclusive statements under oath regarding his alleged assault by the then Judge President of the Division, Dr John Hlophe. The two statements were given within the context of a complaint lodged with the JSC by the Deputy Judge President of the Division, Judge Patricia Goliath, against the then Judge President Hlophe.
 
A further complaint was lodged in March 2020 by the Cape Bar Council in terms of section 14(4)(b) and/or (e) of the JSC Act, alleging gross misconduct on the part of Judge Parker in that he failed to disclose deficits on the trust account of his then law firm, at the time when he was undergoing the interview process to become a judge.
 
Both judges have been found guilty of gross misconduct and Judge Makhubele has since taken the decision on review.
 
The committee also received a presentation on the determination of the remuneration of judges, magistrates, the Public Protector (PP), the Deputy PP and Commissioners of the South African Human Rights Commission and agreed with the recommendation of 4.1% salaries increase. The reports on these will now go to the NA for approval.

Issued by the Parliamentary Communication Services on behalf of the Portfolio Committee on Justice and Correctional Services, Xola Nqola