Makhubele tribunal winding up

The tribunal will hear one more witness and argument then consider written and oral arguments before making a ruling

By Tania Broughton

23 February 2024

The long-running Judicial Conduct Tribunal into gross misconduct allegations against Judge Nana Makhubele appears to be drawing to a close. Archive photo: Masego Mafata

The long-running Judicial Conduct Tribunal probing gross misconduct allegations against Judge Nana Makhubele appears to be drawing to a close. Evidence was first led in February 2023.

On Friday, evidence leader Dorian Paver concluded his cross examination. Judge Makhubele indicated she wanted to call one witness – a clerk at the Pretoria High Court, but that evidence would not take long.

The tribunal, presided over by retired KwaZulu-Natal Judge President Achmat Jappie, will then have to consider written and oral arguments before making a ruling.

Judge Jappie said the tribunal would sit again on 11 March and “hopefully it can all be done by April this year”.

Makhubele is facing possible impeachment following a complaint by #UniteBehind that not only did she sit as a judge at the same time that 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. She allegedly authorised a “secret settlement deal” involving payments from PRASA to Siyaya for about R50-million.

After Makhubele left the state owned enterprise, PRASA brought court proceedings to set aside the deal.

Makhubele has denied all the allegations against her.

She claims she had an agreement with Gauteng Judge President Dunstan Mlambo before she went for her JSC interview, that she would not take up judicial office on 1 January but on 1 April 2018, because she had commitments to the water tribunal and other matters she was dealing with as an advocate.

However, Mlambo and Deputy Judge President Aubrey Ledwaba deny this.

In his evidence, Mlambo said in January 2018 when they called her to answer why she had not started her judicial duties, they “extracted” from her the fact that she had taken up the chair of the state-owned enterprise

Siyaya payments

Friday’s cross examination mainly focussed on events at PRASA. Several times Judge Jappie had to intervene when Judge Makhubele appeared to struggle with answering yes or no questions.

She complained that evidence leader Paver was not contextualising documents, and that she had not been given an adequate opportunity to peruse some of them.

With regards to the Siyaya claims, she insisted that she had been delegated by the Acting CEO to deal with the matter in consultation with him, and again denied that the internal legal team had been side-lined.

Much of the cross examination focussed on Makhubele’s relationship with Advocate Francois Botes SC, who was acting for Siyaya.

He claimed Makhubele had contacted him and asked what she could do with regards to Siyaya’s claims against PRASA.

Makhubele said that was not true. Botes, she said, had contacted her, and forensic records of their exchanges were proof of this.

She said an email she directed to the CEO to “finalise the payment” to Siyaya had to placed in context.

“I was not instructing payment … but to set in motion the process of payment.”

Paver said it was common cause that the finance department had refused to make the payment.

While Makhubele, in her evidence, said from January 2018 she was feeling uncomfortable with the constant messages from Botes, and had told him to rather discuss matters with the CEO, Paver pointed to a message she sent to him late in January. In it, she said: “Dear Francois, my quietness is caused by shock and disgust at the open defiance displayed by the finance lady.”

“Why were you disgusted and shocked?” Paver asked.

Makhubele said it was because “they were talking about me … the rumours were coming through. She had refused to entertain the instruction [by the CEO] to pay.”

Paver then took her through other correspondence with Botes.

Makhubele said she had never denied that she continued to correspond with him until March 2018. “But I had already informed him that I did not want to be involved. I simply said thank you for the update.”

Paver said it appeared from records that the issue of the payments to Siyaya had never been considered by the board.

But Makhubele said they were discussed at closed meetings not attended by executives.

She said there were no minutes of meetings because drafts contained errors and she had not had the opportunity to sign off on them before she left PRASA in mid March 2018.

Paver also asked her why she had not prepared a report on the Siyaya matter, as requested by the Minister of Transport.

Makhubele said a decision had been taken that the board would compile a response “because it was my last day at PRASA”.

“When I left, I was not called again by the board to give input. I heard the minister did not receive the board’s report.”

Asked how anyone other than her or the CEO at the time “who had crafted the settlement agreement” could have compiled the report, she said, “The board knew, I kept everyone informed.”