Thabani Masuku has been brought in at the 11th hour to represent suspended Pretoria high court judge Nana Makhubele at a Judicial Service Commission (JSC) tribunal probing allegations of gross misconduct that include abetting state capture at Prasa.
Masuku has been part of former president Jacob Zuma’s legal team in his many court applications surrounding arms deal-related corruption charges. He was also a member of axed public protector Busisiwe Mkhawabane’s legal team.
At the start of the inquiry, Makhubele was represented by Vincent Maleka, an advocate instructed by Mabuza Attorneys. But both Maleka and Mabuza Attorneys withdrew following a protracted battle with the state attorney’s office over payment, which resulted in several delays.
Since then she has been assisted by Matshepo Mobeng from the state attorney’s office, though Makhubele has said repeatedly during her evidence and cross-examination that she had not properly consulted Mobeng, and considered herself to be “unrepresented”.
Nevertheless, Mobeng continues to sit next to Makhubele, and she addressed the tribunal when it resumed on Monday. It adjourned in February at the request of Makhubele so that she could call one last witness, and it was placed on record that advocates Masuku and Menzi Simelane, who had been briefed by the state attorney, would be available only on Wednesday.
Makhubele wished to call a clerk from the Pretoria high court as a witness. But Mobeng told the tribunal that the clerk’s statement they had now received did not accord with Makhubele’s version of events. What the clerk had said in her statement differed from what “we had agreed on as being facts”.
Mobeng said there was concern that Makhubele might have to cross-examine her own witness, and Makhubele wanted a postponement to Wednesday so that she could take advice from her new legal team.
The tribunal refused. Tribunal president judge Achmat Jappie questioned why, if the witness was present and available to testify immediately, she could not be called.
“The witness will either say what judge Makhubele wants her to say or not. And if not, that’s the end of the witness.”
Makhubele said she would then not call the witness.
But, she said, she still wanted an adjournment until Wednesday so that Masuku could “lead her” in re-examination on issues raised during her cross-examination.
The tribunal also refused this request. Jappie said she had closed her case and that no other evidence would be heard.
Makhubele then asked for a day to collate documentation to submit to the tribunal. Jappie said if she wished to bring anything to the tribunal’s attention, she could do so in her written closing arguments, with documentation attached.
He noted that the evidence leaders had closed their case in July last year and it could not be allowed to “go on and on”.
“I only started giving evidence this year in February,” said Makhubele. “If you are not prepared to listen to me, if you have heard enough from me, even though I think it’s important, that’s your discretion. Now counsel is available and you don’t want me to have the benefit of having counsel look at that cross-examination and re-examine me.”
The judge had previously stated he wanted to report to the JSC with the tribunal’s findings by April.
On Tuesday, the parties will sort out the record and set dates for the filing of heads of argument and oral argument.
Makhubele is facing possible impeachment following a complaint by #UniteBehind that not only did she sit as a judge at the same time as she was chair of the Prasa interim board, but she had also involved herself in state capture in connection with matters involving the Siyaya group of companies, in that she authorised payments from Prasa to Siyaya of about R50m in an alleged “secret settlement deal”.
After Makhubele left the state-owned enterprise, Prasa brought court proceedings to set aside the Siyaya deal.
Makhubele has denied all the allegations against her.
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