The judicial court tribunal hearing the matter against suspended judge Nana Makhubele is set to continue on March 11. So far, Makhubele’s defence has been one of denial.
On Friday, she denied “in the strongest terms” that she acted improperly in the decision to settle claims for about R59m with a set of companies in the Siyaya Group during her tenure as chair of the interim board of Passenger Rail Agency of SA (Prasa).
She is facing a complaint by #UniteBehind that after she was appointed as a judge from January 1 2018 she continued to serve as Prasa chair, a double role that was improper.
#UniteBehind also alleges that during that time, she tried to push through the Siyaya settlement and on terms very favourable to the group. This was contrary to legal advice from her own legal affairs division, which she sidelined, it was alleged.
The Siyaya Group was owned by Makhensa Mabunda, who was connected to former Prasa CEO Lucky Montana. The state capture commission’s report recommended that “serious consideration” be given to Montana’s prosecution over tenders he awarded while at Prasa.
At the state capture commission, chief justice Raymond Zondo described the allegation: “When you look at the so-called settlement, it’s not a settlement. It’s a capitulation by Prasa. When you look at the amounts that are paid, it’s exactly the same as the amounts that are claimed ... It’s not a compromise or anything.”
For two of the proceedings, Makhubele’s cross-examination related to the part of the complaint about the Siyaya settlement agreement, with evidence leader Dorian Paver grilling Makhubele on a number of aspects, including:
- Whether she had consulted with the CEOs of the relevant Prasa units before settling;
- Who had taken the decision to settle; and
- Whether she had reported the settlement agreement to the board.
This detailed cross-examination was directed at ascertaining whether Makhubele had acted improperly and pushed through the Siyaya settlement, which was not in Prasa’s interests.
Makhubele had earlier testified that the settlement decision was based on major concessions about Prasa’s liability by Prasa employees at a liquidation inquiry of one of the Siyaya companies. These would negatively affect Prasa’s ability to defend the litigation, she said.
But on Friday Paver asked Makhubele whether she had, before the decision to settle, consulted with the two executives at the helm of the Prasa units involved in the settlement. She said she consulted with people mentioned in the liquidation report. “These are the people who had knowledge of these claims,” she said. She said she was hearing the names of the two executives “for the first time today”.
Paver said: “Well, I want to suggest to you that you were duty-bound to consult with these people because that is what is required by the delegation of authority that you relied on ... You did not act properly, you had no authority to act in terms of the delegation of authority to do what you were doing. You were impinging upon the functions of the operational units within Prasa,” he suggested.
“I deny that assertion in the strongest terms,” said Makhubele. She said no-one presented those two people and they were not named in the reports given to her.
She also denied that she took the decision to settle unilaterally. The attorney on the Siyaya litigation, Madimpe Mogashoa, had testified that she had instructed him to settle. But she said he had participated in a meeting of about four hours where the settlements were discussed extensively. When asked why this had not been put to Mogashoa during his own evidence, Makhubele said she didn’t know why, “but I have my records” and there were documents to support her evidence.
She said the decision to settle was made by her and acting group CEO Lindikaya Zide. “I was assisting. I was mandated to assist the CEO, according to the delegation of authority ... so it was me and the CEO.”
But, said Paver, “that evidence is at odds with what Mr Mogoshoa told this tribunal, which was also not challenged”.
Paver also referred to the evidence of Francois Botes, the counsel of the companies on the other side of the Siyaya litigation, who told the tribunal she had phoned him and brought up the Siyaya cases. “I deny that,” she said. It was Botes who had first phoned her and he who had brought up the Siyaya matters, she said.
She said that at the state capture commission the same question had come up in relation to Botes. Its investigators had done a forensic investigation with their devices, which showed he was the one who first called her. Their message exchanges also supported her version, she said.
Makhubele was questioned about seeking a report on Siyaya before a board meeting, saying she wanted to report back to the board. “Why does it not appear that it was raised [at the meeting]?” asked the tribunal chair, retired judge president Achmat Jappie. Makhubele said she had reported to the board. She did not sign off on most board minutes because there had been many errors in them, she said.
Then there was the question of the board taking decisions — such as suspending Prasa’s legal panel, a list of attorneys available to be instructed when matters came up — when it was raised that the board was not quorate.
Tribunal member judge Seun Moshidi said: “During your tenure at Prasa ... did it ever occur to you as chairperson, senior counsel, about to become a judge now, that the decisions you were taking, at the board chaired by you, may be invalid? I mean, they are all relying on you, with your experience and expertise, legal qualifications.”
Makhubele said she had not ignored the concern raised about the lack of quorum. The transcript of the board meeting revealed she had suggested it be added to the agenda. But she asked for an opportunity to read the transcript to remind herself what they decided to do about the issue.
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