Judge Nana Makhubele has become the first judicial officer to face impeachment over allegations that she was heavily involved in state-capture corruption.
She served as chair of the interim board of the Passenger Rail Agency of SA (Prasa) after accepting her appointment to the bench.
Makhubele, a Gauteng high court judge who was appointed to the bench by then president Jacob Zuma in late 2017, testified at the Zondo inquiry into state capture that she saw no conflict with these dual roles, as she did not believe her position as chair could be called “a huge responsibility”.
She was implicated in serious wrongdoing during her time at Prasa, which was the subject of multibillion-rand looting, in evidence given by the utility’s head of legal, risk and compliance Martha Ngoye, advocate Francois Botes, Prasa legal head Fani Dingiswayo and Zackie Achmat of social-justice coalition Unite Behind.
The judge faces claims that she tried unlawfully to interfere with and stymie litigation between the rail agency and Siyaya Rail Solutions, a goods and rail services provider which allegedly received millions in contracts from Prasa without valid contracts being in place.
Makhubele’s conduct in that saga saw judge Neil Tuchten ruling in November 2018 that she “ought not to undertake any judicial duties until she clears her name of the allegations against her”.
She responded by lodging a gross misconduct complaint against Tuchten, in which she accused him of racism and sexism. That complaint was dismissed.
Nearly two years later, the Judicial Service Commission said on Tuesday that the gross misconduct complaints levelled against Makhubele in December 2018 by Unite Behind would be referred to a judicial conduct tribunal for investigation. The Judicial Service Commission (JSC) has advised President Cyril Ramaphosa to suspend her pending finalisation of the complaint.
The JSC’s advice follows findings by its judicial conduct committee, headed by chief justice Mogoeng Mogoeng, that the allegations levelled at Makhubele by Unite Behind were so serious that, if proven, they would probably result in a finding of gross misconduct.
Detailed accusations and evidence provided by Unite Behind against Makhubele include allegations that she “paid special attention” only to the cases that involved Siyaya and marginalised the Prasa legal unit, fired the rail agency’s lawyers and then personally appointed another firm of attorneys to represent Prasa.
Perhaps most damagingly, Ngoye claimed under oath that Makhubele then negotiated with Siyaya’s attorneys and entered into a confidential R56m settlement agreement that was manifestly not in the rail agency’s interest.
According to Ngoye, the judge did so after claiming falsely that she had an insolvency report revealing that Prasa employees had made “major concessions” on the rail agency’s liability to Siyaya. When Ngoye asked Makhubele to provide her with this report, she had failed to do so.
Despite Prasa’s lawyers believing that they had a good chance of winning their court battle with Siyaya, Makhubele pushed for a settlement of the case, which Tuchten later overturned.
“I am sorry to say that I must say something about the conduct of judge Makhubele as evidenced by the papers,” Tuchten said. “There are questions which demand answers ... Why did she intervene at all in the litigation with Siyaya?”
During her evidence at the Zondo inquiry, Makhubele denied doing anything wrong.
Makhubele also faces accusations that she, together with acting Prasa executive Cromet Molepo, put pressure on the rail agency’s CFO, Yvonne Page, to sign off on an illegal attempt to invest R1bn in Prasa funds in the ill-fated VBS bank, eventually forcing Page to resign.
A month later, Prasa issued a statement claiming that Makhubele had resigned from her position as interim board chair. In its complaint to the JSC, Unite Behind said it soon established that the judge was still “actively engaged in some of Prasa’s internal affairs”.
While no judge has ever been impeached in democratic-era SA, Mogoeng has stressed that should the claims made against Makhubele be true they would justify her removal from the bench.
But with law enforcement taking action against MPs, top police officers and powerful government officials implicated in state capture, it is about time that the JSC shows that it too expects the same accountability from judges.
Correction: October 15 2020
Due to an error in the editing process, where a comma was omitted, an earlier version of this article gave the impression that Judge Makhubele’s accusers were implicated in wrongdoing. Business Day regrets the error.
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