Gauteng high court Judge Tintswalo Annah Nana Makhubele, who is facing possible impeachment, has already run up legal fees in excess of R3-million to defend herself, with the money coming from the public purse.

The Judicial Conduct Tribunal into Makhubele’s conduct adjourned on 1 August after her attorneys had written to tribunal chair, retired Judge President Achmat Jappie, on 20 July requesting the postponement. At the time, Makhubele was embroiled in a battle with the State over her legal fees.

When the hearing resumed on 13 November, the tribunal heard Makhubele’s application for an adjournment of the proceedings until early next year.

Judge Jappie indicated that if Makhubele was not ready to proceed then she would have to bring an interdict in the high court to stop the proceedings from continuing on 22 January 2024.

He said the Tribunal was now on a tight timeline to complete its work in March so that its recommendations would be before the next sitting of the Judicial Services Commission in April. “Any adjournments will have to be decided by another forum, not this tribunal. We have been faced with uncertainty for five months since the last sitting,” he said.

Judge Jappie, who is assisted by retired Judge Seun Moshidi and attorney Noxolo Maduba-Silevu, said the decision to postpone the matter was not unanimous, but that it would definitely be the last one.

The tribunal into Judge Makhubele’s conduct follows activist group #UniteBehind’s complaint to the Judicial Service Commission (JSC) in 2019. The complaint accused Judge Makhubele of misconduct when she took up the dual roles of Gauteng high court judge and chairperson of the Passenger Rail Agency of South Africa’s (Prasa) interim board, violating the separation of powers principle of the Judicial Code of Conduct, and also of further misconduct while she was on the Prasa board.

Read more in Daily Maverick: Judicial Conduct Tribunal — Judge Makhubele denies allegation she instructed Prasa payment to Siyaya

According to correspondence placed before the tribunal, the State Attorney was refusing to pay invoices submitted by Makhubele’s lawyers, Mabuza Attorneys.

This was, the State Attorney claimed, because while funding had been approved, the appointment of Mabuza Attorneys had not been. This meant she would be personally liable for those fees.

“The undertaking for costs was signed by all parties. I did not receive any objection to Mabuza being appointed or any contrary view regarding who should represent me,” the Judge Makhubele said in her correspondence with the tribunal.

“As you are aware the proceedings are at the tail-end with only my evidence outstanding … it is the most difficult stage in any proceedings. My legal team is owed a substantial amount of money, in excess of R3-million. The outstanding fees are far above my annual salary. It would be unfair to expect me to pay those fees under circumstances where the reasons thereof have not been made clear by the State. I cannot represent myself at this late stage,” she said.

Makhubele’s attorney Thomas Sibuyi told the tribunal on Monday that last week, the State Attorney had agreed to pay the legal bill “but there still needs to be discussion about tariffs”. He said there was now acceptance that there was a funding agreement although the issue of tariffs was still unresolved.

Judge Jappie adjourned the matter until next year, but gave Makhubele until the end of November to provide an update on the fees issue.

According to Judges Matter, in July 2020, Makhubele was called before the Zondo Commission into State Capture to account for the time she served as the chairperson of Prasa’s interim board.

Read more in Daily Maverick: Makhubele tribunal an important test for the regulation of judges’ conduct

She had been implicated by employees from PRASA’s legal department for having interfered in the litigation between the rail agency and Siyaya Rail Solutions, which had won contracts worth millions of rands.

Judge Makhubele was the first and only judge to appear before the Zondo Commission. She has denied any wrongdoing. DM

First published by GroundUp.