Complainants against suspended Gauteng high court judge Nana Makhubele “have not submitted a single shred of evidence” in support of the assertion she was involved in “illicit” conduct at the Passenger Rail Agency of SA (Prasa).
This was according to Makhubele’s lawyer, advocate Thabani Masuku, on the final sitting of the Judicial Conduct Tribunal on Tuesday.
The tribunal is investigating a complaint from Zackie Achmat’s civil society movement UniteBehind.
Makhubele faces the possibility of being the third judge in democratic SA to be impeached, following the removal of John Hlophe and Nkola Motata earlier this year.
UniteBehind claims Makhubele was part of state capture because, as chair of Prasa, she allegedly authorised R56m in payments from Prasa to the Siyaya group of companies.
UniteBehind argued that Makhubele, the only judge to appear before the Zondo commission, had ignored Prasa’s lawyers after Siyaya sued the railway agency for R56m. Siyaya claimed Prasa “had not paid” for various consultancy agreements.
Instead of defending the claims, she allegedly instructed Prasa’s attorneys to settle. UniteBehind said she “excluded Prasa’s internal legal department”. The R56m, however, was recovered thanks to a successful court application. “That this money was not lost to the public purse was no thanks to [Makhubele]. The sheriff held the money in his bank account, otherwise it would have been lost,” evidence leader advocate Dorian Paver said on Monday.
Makhubele, however, argued that people disagreeing with her management of Prasa did not rise to the level of misconduct. “A bad deal for Prasa does not establish misconduct,” her lawyers said in written argument. They also argued that UnitedBehind presented no evidence of corrupt dealings.
In a second charge, UniteBehind said she “held dual status: as a judge and a chairperson of Prasa”. Judges are obliged to give up all other work and practice if appointed to the bench to maintain independence.
In written argument, her lawyers say she was appointed as Prasa chair in October 2017, a month before receiving the president’s judicial offer. She said she informed Gauteng judge president Dunstan Mlambo that she wanted to negotiate appointment terms, as she could not start with the other judges in January 2018.
UniteBehind, however, said she “was appointed as a judge from 1 January 2018” which “overlaps with her appointment” as Prasa chair. She resigned from Prasa only in March 2018. In its written argument, UnitedBehind said she “wilfully refused to give up her position to fulfil her judicial obligations”.
UniteBehind’s lawyers argued she never informed the Judicial Service Commission (JSC) during her interview that she had applied for the Prasa position. Makhubele denies she applied, noting she merely gave her CV to a neighbour and learnt of her appointment only when it was publicly announced. She was never interviewed either.
The JSC recommended her for judicial appointment on October 4 2017. However, cabinet approved her chairperson position at Prasa on October 18 2017.
“Despite already knowing the JSC had advised the president to appoint her,” UniteBehind’s lawyers wrote, “she accepted the appointment as chairperson. She was not obliged to do so; she chose to.”
Former president Jacob Zuma signed a presidential minute confirming her appointment on November 2 2017 to start in January 2018.
In testimony, Mlambo told the tribunal that he called a meeting with Makhubele in mid-January, as she had not appeared for her duties nor taken the oath of office. Mlambo said this was the first time her Prasa chairpersonship had come to his attention.
In a letter to justice minister Ronald Lamola, Mlambo wrote, “She accepted the post for interim chair of the Prasa board and this was with no discussions with me.”
Makhubele denied such a meeting happened. UniteBehind argued that Makhubele “perjured herself” with this denial.
Tribunal chair Achmat Jappie said on Tuesday the tribunal would have to also answer the question of when a person “becomes a judge”: when the JSC nominates, when the president appoints or when they swear their oaths of office.
The tribunal adjourned and will produce a report before the JSC’s October meeting.
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