9 February 2024
Judge Nana Makhubele was cross-examined on Friday at the Judicial Conduct Tribunal into her conduct as PRASA interim board chairperson. Archive photo: Masego Mafata
Suspended Judge Nana Makhubele on Friday denied branding those who testified against her - including her boss Gauteng Judge President Dunstan Mlambo - as liars.
“I did not use that word. It is not in my vocabulary. That is a word you want to hear come out of my mouth,” she said. Makhubele was being cross examined by Senior State Advocate Dorian Paver before the Judicial Conduct Tribunal.
But Paver would not let it rest. After hearing her evidence in chief, he said, “One is driven to the conclusion that everyone who has given evidence at odds with yours, is not telling the truth.”
Makhubele responded: “It could be that none of us is right. I have never said I am right. I have confronted allegations and where I have documented proof I have provided it.”
At issue was, according to Paver, the fact that when witnesses, including Judge President Mlambo, were cross-examined by Makhubele’s former counsel, certain questions which supported her version were not put to them. He pointed out that it would not be fair to argue that witnesses were lying when her version had not been put to them.
He said Judge Mlambo had testified that he and deputy Chief Justice Aubrey Ledwaba had summoned her to a meeting in mid-January 2018 to ask why she had not taken up her appointment and had “extracted” from her that she was still the chair of PRASA.
However, Makhubele said this meeting only took place in March that year because she had a prior agreement that she would only take up judicial office from April.
Only one version could be true, Paver suggested.
“I did not argue in a vacuum that witnesses were lying. I have never used that word in this forum,” Makhubele said.
Makhubele is accused of gross misconduct following a complaint by #UniteBehind that, not only did she sit as a judge at the same time that she was chair of PRASA’s interim board, but she also involved herself in state capture in connection with the Siyaya matter.
Earlier on Friday, during her evidence in chief, Makhubele said PRASA’s internal legal team did not attend an important meeting to discuss the multi-million rand claims of the Siyaya group of companies.
At previous hearings, two witnesses from the legal department said that they had been sidelined by her in all Siyaya matters. Makhubele insisted that she did not sideline head of legal Martha Ngoye and colleague Fani Dingiswayo. She said they “absented themselves” from meetings. She said she recalled, in particular, that when the board was to discuss Siyaya’s claims on 15 December 2017, she had been told by the CEO that they were “at an office party”.
She similarly dismissed evidence by private attorney Madimpe Mogoshoa, who had been appointed by PRASA to deal with the Siyaya litigation. He claimed he had been told the board was now dealing with the issues - and he was not to speak to the legal team.
To which Makhubele testified that this was “his interpretation”.
“He was told not to deal with the legal team. Not that he could not talk to them.”
She said the settlement of the claims was discussed with Mogoshoa. She denied that he had simply been given figures and told to settle.
“We all sat down at the meeting. We went through each summons. The CEO presented the outcome of the investigations and consultations. He [Mogashoa] was sitting there and making inputs.
“We went through every claim, which should be settled, which should not, and which had already been settled,” she said.
Evidence before the Tribunal is that in total, claims of over R50 million were agreed in an alleged “secret” settlement, which was referred to arbitration and later to the high court for confirmation.
PRASA, through Ngoye - who has been named as a “whistleblower” - eventually brought proceedings to set aside the court order after Makhubele resigned as chairman. The money was not paid out.
Makhubele said: “The media ran with the narrative that I instructed that the money be paid. My recollection is that this was after all the negotiations and revisions (of the settlement), that everything was now done. I was not instructing that the payment be made. I was saying, attend to payment, as per the usual processes. The CEO knew those processes.”
She said it was common cause that the Chief Financial Officer did not make the payment. Makhubele said allegations that the settlement agreement had been done in “secret” were not true - and Mogoshoa had confirmed that.
“If it was a secret, why would I have gone to all of these efforts, the CEO engaging in all these investigations and leaving paper trails?”
The Tribunal has adjourned until 22 and 23 February when cross examination is expected to continue.
However, Makhubele complained again about her lack of legal representation. Tribunal President Judge Achmat Jappie said she had enough time to make arrangements in this regard “and you are required to be present”.