High court judges step closer to possible impeachment

Two high court judges moved closer to potential impeachment this week when the Judicial Services Commission (JSC) announced it would recommend they both be suspended and tribunals set up to investigate allegations of gross misconduct against them.

On 9 October, the JSC met to discuss complaints lodged against the Western Cape High Court’s Judge Mushtak Parker and Judge Tintswalo Annah Tannah Makhubele, from the Gauteng division.

On Wednesday, it announced its decision to request the chief justice to appoint tribunals to probe both their cases. This after the JCC previously found if established, the complaints against Parker and Makhubele would both amount to gross misconduct.

In terms of the constitution, there are only three categories of complaints which, if established, can get a judge kicked off the bench. These are gross misconduct, gross incompetence or incapacity. And in terms of the JSC Act, a tribunal is the only forum that has jurisdiction to investigate these categories of complaints.

Two complaints were lodged against Parker – one by 10 of his fellow Western Cape judges, who raised serious ethical concerns after he backtracked on a claim that controversial Judge President John Hlophe had assaulted him – and the other by the Cape Bar Council.

The latter relates to allegations of maladministration at the legal firm Parker helped head up before he was appointed to the bench in 2017; as well as to Parker’s alleged failure to disclose millions of rands worth of shortfalls in the firm’s trust account during his interview for a judgeship.

The complaint against Makhubele, meanwhile, was laid by lobby group #UniteBehind and concerns allegations around her acceptance of an offer to chair the Passenger Rail Agency of South Africa (Prasa) between 2017 and 2018, after learning she had been recommended for appointment as a judge.

Makhubele has also been accused of meddling in Prasa’s legal department’s affairs during her tenure at the rail agency. The JSC said it would also be informing President Cyril Ramaphosa of its decision and recommending Parker and Makhubele be placed on suspension pending the finalisation of the tribunals’ probes.

Advocate Paul Hoffman, from Accountability Now, yesterday said the tribunals would be tasked with investigating the complaints and determining whether or not they did, in fact, amount to grounds for impeachment. He said if the tribunals did recommend impeachment, the JSC would, in turn, likely recommend the same to Ramaphosa.

“He would then refer the matter to the National Assembly and if two-thirds vote in favour of a motion for the impeachment of the judge, he or she will be impeached,” Hoffman explained. The process is a complicated and relatively lengthy one, but Hoffman said yesterday judicial independence was an institutional safeguard.

“They’re appointed for life to ensure their impartiality and independence and that’s why there is a convoluted process to see whether there has been serious misconduct or incapacity.”

But Judges Matters’ Mbekezeli Benjamin said he and his colleagues had concerns with the “numerous levels of decision-making” in the process and said this provided “ample room for an accused judge to take the ‘Stalingrad approach’ and challenge every single decision, causing considerable delays that drag the process out”.

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