Former PRASA chair should not have accepted the job, tribunal told

Judge Makhubele was in no position to accept new work after she had been recommended as a judge on 8 October 2017, says Gauteng High Court Judge President Dunstan Mlambo

By Masego Mafata

21 February 2023

Judge Tintswalo Annah Nana Makhubele has been accused of gross misconduct by activist group #UniteBehind. Photo: Masego Mafata

The Judicial Conduct Tribunal hearing on Judge Tintswalo Annah Nana Makhubele started on Tuesday in Rosebank, Johannesburg, almost three years after it was recommended by the Judicial Conduct Committee (JCC) in March 2020.

Led by retired former Judge President of the KwaZulu-Natal High Court Achmat Jappie, retired Judge Seun Moshidi, and advocate Noxolo Maduba-Silevu, the Tribunal hearing comes almost four years after activist group #UniteBehind lodged a complaint with the Judicial Service Commission (JSC).

#UniteBehind has accused Judge Makhubele of holding the position of a high court judge, from 1 January 2018, while at the same time serving as chairperson of the Passenger Rail Agency of South Africa (PRASA), from 19 October 2017 to 16 March 2018, in breach of the separation of powers principle. They further accuse Judge Makhubele of improper conduct while she was chairperson of PRASA.

The Tribunal began by addressing Judge Makhubele’s objection to #UniteBehind’s participation in the Tribunal hearing, first raised during the pre-trial proceedings in November last year.

Advocate Michael Bishop, on behalf of #UniteBehind, argued that #UniteBehind had participated in every stage before the Tribunal hearing, beginning with the laying of the complaint in December 2018, and that the law was in favour of their participation in the Tribunal hearing.

“We don’t believe we can participate effectively without being able to put questions to witnesses,” he said, adding that without their participation, the Tribunal would be without some helpful evidence. He said his client’s “knowledge of documents and of the history” of this matter enable #UniteBehind to assist the Tribunal with gathering evidence.

Judge President Jappie, the chair of the Tribunal, said #UniteBehind would be allowed to pose questions to witnesses, on a case-by-case basis, where they feel an issue was not addressed by the evidence leader, advocate Elaine Zungu.

The terms of reference for the Tribunal were read out by Zungu, and included the three allegations for which evidence will be collected during the Tribunal hearing:

Zungu listed the witnesses to be called to give evidence at the Tribunal, including corruption-busters Martha Ngoye and Fani Dingiswayo.

Judge President Mlambo gives evidence

Judge President Dunstan Mlambo of the Gauteng Division of the High Court was the first witness called to give evidence. He revealed that Judge Makhubele had not disclosed that she was the PRASA board chairperson at the time she was appointed as a judge of the high court.

It was only after a meeting in the second week of January 2018, with Judge President Mlambo and Deputy Judge President of the Gauteng High Court Aubrey Ledwaba that Judge Makhubele confirmed her position on PRASA’s board.

“I called [Judge Makhubele] in the second week of January, as she was the only judge appointed who had not come to the office … She asked for a meeting to discuss the issue further … The PRASA issue came out because we extracted it out of her, she didn’t want to place it on the table as her reason for failing to take oath of office,” Judge Mlambo told the Tribunal.

At this time, Judge President Mlambo said there were a number of matters in the Gauteng Division of the High Court involving alleged corrupt activities at PRASA.

“I specifically said to her, how could you go and join an organisation that is featured in this Division, where you are appointed as a judge?”

Judge Mlambo said they “tried to reason” with Judge Makhubele, even asking her to resign from her role at PRASA, but she said she “did not want to disappoint the Minister”.

Judge President Mlambo said he sent an email to all judges recommended for the Gauteng High Court, including Judge Makhubele, following their interviews in October 2017. He said it was made clear in the email that “appointed judges would commence their duties on 1 January 2018”.

Judge President Mlambo said he also expressed in the email that, once appointed, judges must “resign from or wind down” all work carried out in their private capacity before 1 January 2018. “When you become a judge, you can only have one income,” he told the Tribunal.

Judge President Mlambo said that Judge Makhubele confirmed her placement by email but asked that her commencement date of 1 January 2018 be deferred. She said that she had to fulfil other duties, including her chairing of the Water Tribunal, before taking up her position. Judge President Mlambo said he did not approve her request for deferment as he did not identify a conflict of interest.

After failing to persuade Judge Makhubele to start her work as a judge on 1 January, Judge President Mlambo said he wrote to then Minister of Justice and Correctional Services Michael Masutha on 22 January, asking the Minister to defer Judge Makhubele’s appointment from 1 January 2018. This was owing to her work as chair of the Water Tribunal, as she had officially indicated.

Judge Moshidi asked Judge President Mlambo why he did not refer the matter back to the JSC “rather than getting involved”.

Judge President Mlambo said once a person has been appointed as a judge, the bulk of the communication happens between the Ministry and the respective Judge President. “Referring the matter to the JSC did not cross my mind,” he said. Judge President Mlambo also told the Tribunal that this was the first time in his tenure that a newly appointed judge had not been able to start work on the set date.

Advocate Vincent Maleka, for Judge Makhubele, put it to Judge President Mlambo that his decision not to disclose to the Minister that Judge Makhubele was PRASA board chair suggested that he “did not consider it as a matter that impacted her suitability to be a judge suitable to serve office in the high court”. Judge President Mlambo disagreed.

Maleka also argued that Judge Makhubele did not regard herself as a judge before she took office on 1 June 2018, since she did not claim any salary before that date. Judge President Mlambo countered this claim by telling the Tribunal that at the end of March 2018, when Judge Makhubele wrote to the Judge President saying she had resigned from positions she occupied in the private sector and was ready to assume office, she was “ready to submit salary forms to start receiving her salary”.

Maleka then put it to Judge President Mlambo that, when Judge Makhuble was appointed as PRASA board chairperson, she was not yet a judge in his division. But Mlambo disagreed with Maleka, saying Judge Makhubele knew from 8 October that she had been recommended as a judge to serve in the high court, and from this point forward, was in no position to accept new work or projects that would interfere with her appointment as a judge.

This was the last argument the Tribunal heard before adjournment at 4pm. The hearing is set to start again at 10am tomorrow.

#UniteBehind director Zackie Achmat said while the need for this Tribunal hearing was a tragedy, today was a reminder “that the law applies equally to every person”. Achmat said they were disappointed that their legal team would not be able to cross-examine witnesses at will, having to ask permission instead. “That is unfair in our view, but we accept it because we want the Tribunal to conclude its work,” he said.