Hate speech, race and gender: Judge Makhubele lodges complaint against Judge Tuchten over Prasa judgment

2019-04-30 13:18
Judge Tintswalo Nana Makhubele has lodged a complaint with the Judicial Conduct Committee against Judge Neil Tuchten  after he wrote a judgment criticising her. (Judges Matter, GroundUp)

Judge Tintswalo Nana Makhubele has lodged a complaint with the Judicial Conduct Committee against Judge Neil Tuchten after he wrote a judgment criticising her. (Judges Matter, GroundUp)

Multimedia   ·   User Galleries   ·   News in Pictures Send us your pictures  ·  Send us your stories

Judge Tintswalo Nana Makhubele has lodged a complaint with the Judicial Conduct Committee against Judge Neil Tuchten for “defamatory statements and unwarranted criticisms” against her, GroundUp reported. 

In his November 2018 Pretoria High Court judgment in the case between Passenger Rail Agency of South Africa (Prasa) and Siyaya Rail Solutions, Tuchten wrote that Makhubele “ought not to undertake any judicial duties until she clears her name of the allegations against her.”

The judgment said that Makhubele had disrupted litigation procedures within Prasa by instructing Ground 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.

“I am sorry to say that I must say something about the conduct of Judge Makhubele as evidenced by these papers,” wrote Tuchten. “There are questions which demand answers.” One of these questions, according to Tuchten, was: “Did she supply Siyaya with information which they could use against Prasa, and if so, why?” He further wrote: “In general, did she act with propriety in relation to the Siyaya litigation?”

Conflict of interest

Makhubele became chair of the Prasa interim board after being appointed a High Court judge. This conflict of interest was uncovered by commuter activist group #UniteBehind.

She consequently resigned from the board in March 2018.

Tuchten’s judgment stated: “Did she disclose in her application for judicial appointment that she was considering taking up an appointment as Prasa chair, which would prevent her from performing the duties of a judge until she gave up her position at Prasa?”

In her complaint against Tuchten, Makhubele wrote: “Although he did not make adverse findings on the allegations made by the GLS against me, 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.”

ALSO READ: ‘Conflicted’ judge refuses to leave Prasa

Makhubele claimed that Tuchten had breached multiple provisions in the Code of Judicial Conduct, including equal protection and benefit of the law.

Makhubele implied that Tuchten’s judgment against her was affected by racial bias. She wrote in her complaint, “Why did Judge Tuchten single me out? Is it because I am a woman? A black woman? The others are white males.”

“In fact, his judgment constitute[s] hate speech,” she stated.


She also wrote that Tuchten had violated judicial independence by considering the views of #UniteBehind to reach his judgment. Tuchten had also denied her right to fair trial by failing to call on her to answer, according to Makhubele.

In a memorandum in response to the complaint, Tuchten wrote: “I did not make any findings or display any animus against the complainant… If I had considered making findings against the complainant, of course I would have given her an opportunity to be heard.”

He denied that his judgment constituted hate speech and asserted that Makhubele’s accusation of racial bias was “unfounded”.

“The judgment reflected my honest opinions,” Tuchten wrote. “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. If the Committee did so, I believe it would be infringing the separation of powers doctrine.”

Tuchten said that he had offered to take leave until the complaint against him was resolved, but the Judge President declined his offer.

GroundUp requested comment from both judges via the spokesperson for the judiciary. We received a response (via the spokesperson) that Judge President of the Gauteng High Court, Dunstan Mlambo, said it would be premature for either of the judges to speak publicly about the matter.

Documents on which this story is based:

KEEP UPDATED on the latest news by subscribing to our FREE newsletter.

- FOLLOW News24 on Twitter

Read more on:    prasa  |  judiciary  |  courts

Join the conversation!

24.com encourages commentary submitted via MyNews24. Contributions of 200 words or more will be considered for publication.

We reserve editorial discretion to decide what will be published.
Read our comments policy for guidelines on contributions.

Inside News24

Traffic Alerts
There are new stories on the homepage. Click here to see them.


Create Profile

Creating your profile will enable you to submit photos and stories to get published on News24.

Please provide a username for your profile page:

This username must be unique, cannot be edited and will be used in the URL to your profile page across the entire 24.com network.


Location Settings

News24 allows you to edit the display of certain components based on a location. If you wish to personalise the page based on your preferences, please select a location for each component and click "Submit" in order for the changes to take affect.

Facebook Sign-In

Hi News addict,

Join the News24 Community to be involved in breaking the news.

Log in with Facebook to comment and personalise news, weather and listings.