First published by GroundUp

The Judicial Service Commission (JSC) has dismissed the complaint of Judge Tintswalo Annah Nana Makhubele against her colleague Judge Neil Tuchten. The decision was handed down by Judge Patricia Goliath on Wednesday morning.

Makhubele complained to the JSC against Tuchten in April 2019 after Tuchten criticised her role in a case involving the Passenger Rail Association of South Africa (Prasa) and Siyaya Rail Solutions. Makhubele claimed that Tuchten’s questioning was motivated by gender and racial bias.

Makhubele served as chairperson of the Prasa board for several months after she was appointed as a judge. Tuchten wrote in a November 2018 judgment that she had disrupted litigation procedures within Prasa by instructing Group Legal Services (GLS), an internal team within the rail agency, to stop its participation in the Siyaya litigation.

He also raised concerns over whether Makhubele had used her connections with the Siyaya legal team to suggest a settlement of R56 million, which Tuchten blocked.

“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?” Tuchten wrote in his judgment.

He also wrote: “Why did she accept appointment to chair Prasa when she had already been appointed as a judge?”

Wednesday’s decision elaborated on the details of Makhubele’s alleged conflict of interest.

“The complainant was aware of the grave allegations made against her which questioned her integrity in her capacity as Senior Council, Chair of Prasa, as well as a judge whose appointment was imminent,” Goliath wrote. “She stated unequivocally that she intended to take action to vindicate her good name and reputation but failed to do so.”

The decision vindicates Tuchten’s concerns about Makhubele, claiming that her failure to prove her own innocence justified the judge’s scrutiny. The JSC found nothing irregular in the manner he approached the matter or the way he raised questions about Makhubele.

Makhubele is also facing a complaint against her at the JSC from commuter activist group #UniteBehind, which is still outstanding. In her complaint against Tuchten she claimed that the judge had “left me under the mercy of #UniteBehind, the media and malicious individuals in the social media space”. Goliath wrote in her decision that there was no merit in the assertion that Tuchten intended to support the #UniteBehind complaint.

The JSC emphasised that Makhubele can still state her case and vindicate her reputation. “Currently the allegations against the complainant [Makhubele] remain uncontested.” DM

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