Judge Makhubele accuses PRASA whistleblowers of lying

The judge is before the Judicial Conduct Tribunal to answer charges of gross misconduct

By Tania Broughton

7 February 2024

Judge Tintswalo Annah Nana Makhubele has been testifying before the Judicial Conduct Tribunal. The hearing is expected to continue on Thursday and Friday. Archive photo: Masego Mafata

Suspended Judge Nana Makhubele on Wednesday continued to insist that while she was chairperson of PRASA she was not a judge, and the date of her appointment had been re-determined from 1 January 2018 to April that year.

“I did not sit as a judge. I did none of the things required to become a judge. I did not take an oath of office, and I did not take a salary. I was not in the (Persal) system,” she testified before the Judicial Conduct Tribunal, which will determine whether she is guilty of gross misconduct, a finding that could result in her impeachment.

The tribunal hearing was sparked by a complaint by #UniteBehind that being the chairperson of the board of PRASA and being a judge at the same time violated both the law and judicial ethics.

The second complaint, which became the focus of Wednesday’s hearing, is that while at PRASA she furthered the interests of Siyaya, a company linked to state capture and corruption, and, in entering into a confidential settlement agreement with it, she sidelined her internal legal team.

Makhubele, in her evidence, said Advocate Francois Botes had approached her to discuss Siyaya, not the other way round as he alleged in his evidence.

She said she knew Botes as they were colleagues from the Bar, but they were not friends.

She believed he was acting for the liquidators of Siyaya and she had no idea that he was, in fact, acting for Siyaya.

She said she only met him once.

Retired Judge Seun Moshidi, a member of the tribunal panel, said the tribunal had to determine if Botes, and three other witnesses, including “whistleblower” Martha Ngoye, PRASA head of legal, risk and compliance, and Fani Dingiswayo, PRASA head of legal, had told the truth.

Regarding Botes, he asked if Makhubele felt that he had abused her trust, interacting extensively with her when he was acting against the interests of PRASA.

Makhubele said Botes had forged documents to implicate her and she had eventually referred a complaint against him to the Pretoria Bar Council when she was “at her lowest”.

“After forging that letter, he then came to me like when a snake bites you and then offers to take you to his doctor.

“He then went to the State Capture inquiry - I don’t know if he was invited or if he invited himself, and said I had called him and asked what I could do for him.

“I became distressed when he lied at the State Capture Commission under oath. And nobody says anything about it, because he is Advocate Botes SC.”

She said the Bar Council had not even investigated her complaint. It had just sent her a one-liner, dismissing it.

Referring to Makhubele’s earlier evidence that both Ngoye and Dingiswayo had been happy when she was appointed as PRASA chair, Judge Moshidi asked, “But now you say we should not accept their evidence as to how you interfered and sidelined them, dissolved the external panel of lawyers and settled matters behind their backs. Are they just making up stories about you?”

Makhubele said that when she questioned their absence at meetings, the acting group CEO had told her they were not available. For example, that Ngoyi had had a family bereavement and on one occasion that the legal department was having a party.

She had just accepted this.

She said Dingiswayo had “concocted” the story that she was completely focussed on Siyaya.

She said the final straw was when she spoke to Ngoye, suggesting she withdraw the memorandum leaked to #UniteBehind.

“She became visibly aggressive. They were aware that I was an inquisitive person and if there were any suggestions around issues of corruption or negligence I was bound to ask.”

Judge Moshidi asked her if, during her “extensive” interactions with Botes, without legal department representatives, she realised that he was “acting for opposition”.

“Did you ever realise that it was wrong … that it could not be in the interests of PRASA, its board, its employees and the Minister of Transport?”

Makhubele said, “I think extensive is an exaggeration. I met him once. And then put him on to the Group CEO. He would come back to me (through SMS and WhatsApp) with updates and I would simply reply with a thanks.”

Date of appointment disputed

Earlier on Wednesday, she continued to insist that Gauteng Judge President Dunstan Mlambo knew about her PRASA appointment in December 2017, and it was this, coupled with the fact that she also sat on the Water Tribunal and that she had court commitments (as an advocate), which had resulted in him taking steps to change her appointment date from January to April.

Mlambo, in his evidence, said her PRASA role had only been “extracted” from her in the presence of Deputy Judge President Aubrey Ledwaba at a meeting in January 2018 after she failed to report for duty at the beginning of the month.

Makhubele says she only met once with both judges, in March that year.

In December 2017, she said, she had instigated the meeting with Mlambo because she knew she could not start on 1 January 2018 because of her other commitments. Mlambo was alone. It had been agreed that she could wrap up her other commitments and Mlambo would write to the Minister of Justice and the President revoking her appointment until later in the year.

“He didn’t tell me that I must resign from PRASA. And no-one called me in the first week to come and take an oath. He had already returned the certificate of appointment. The next time we had a communication was after the complainant wrote to him and we met thereafter. I was never told to sit at home and not do anything. As a self-employed person you need to pay your bills.”

At the March meeting with Mlambo and Ledwaba many issues had been discussed, including whether the board had made any controversial decisions under her tenure. Her answer had been no, she said.

She then resigned from PRASA. She believed that she was to take up judicial office on 1 April “but the JP changed his mind and said he would wait to hear from the President”.

She finally took office in May.

The hearing is expected to continue on Thursday and Friday.