“Dishonest” Judge Makhubele found guilty and faces impeachment
JSC upholds Tribunal ruling. Now Parliament will have to decide Makhubele’s fate
Judge Nana Makhubele could face impeachment after a Judicial Conduct Tribunal found her guilty of misconduct. Archive photo: Masego Mafata
Suspended Gauteng Judge Nana Makhubele is facing impeachment after the Judicial Service Commission (JSC) found her guilty on two charges of gross misconduct.
The complaints – instigated by #UniteBehind – were that she sat as a judge at the same time that she was chair of the PRASA interim board and, while there, she involved herself in state capture.
The latter was in relation to matters involving the Siyaya Group of companies in that she authorised, in an alleged “secret settlement deal”, payments from PRASA to Siyaya of R56-million while sidelining the internal legal team.
In a statement released on Friday, the small JSC (sitting without members of Parliament) said it had considered the report of the Tribunal established to probe the allegations.
“Prior to considering the matter, the commission called for written representations from Judge Makhubele and #UniteBehind. These were duly considered along with the report of the Tribunal, the record and the core bundle,” it said.
The complaint in Part A was that Judge Makhubele served in a position which undermined the independence of the judiciary. In doing so, she breached the separation of powers, failing to sever professional ties on her appointment to the judiciary. And that she occupied an office for profit and requested special dispensation regarding her appointment.
Judge Makhubele denied the allegations and alleged the (then) Gauteng Judge President Dunstan Mlambo had consented to her starting her appointment in April 2018 rather than 1 January 2018.
The Tribunal found that on 2 November 2017, Mlambo informed Makhubele that she had been appointed and would begin work on 1 January 2018.
She had previously been informed by Mlambo that her name would be forwarded as one of the successful candidates.
In November, she appeared before the Parliamentary Portfolio Committee of Transport and disclosed that she had been appointed as a judge and would assume her position in January.
In December 2017, she emailed Mlambo with a request that she only start work on 1 April. His response was that the President had already made the appointment. At a meeting that month he informed her that it was too late to change her starting date.
Mlambo’s evidence was corroborated by his deputy, Judge Aubrey Ledwaba.
The Tribunal, chaired by retired judge Achmat Jappie, said it was common cause that she had made no mention of her appointment at PRASA to Mlambo.
She failed to commence her duties on 1 January.
Her version, that Mlambo had agreed to her starting later, was “most unlikely” and her evidence “was deliberately misleading and unambiguously insufficient” to cast any doubt on the credible evidence of Mlambo.
The JSC said these findings clearly supported the conclusion that Judge Makhubele was guilty of gross misconduct and that she had been dishonest.
Regarding the complaint in Part B, #UniteBehind had alleged that her conduct during her tenure as chairperson of the PRASA board was dishonest, lacking integrity and unethical.
The Tribunal said the facts were that she took up the position at the end of October 2017. Then she “abruptly resigned” in March 2018.
Prior to her appointment, there were four claims by different entities within the Siyaya Group that were vigorously defended by PRASA. Judge Makhubele alleged that the board had taken a resolution to settle these claims but was unable to produce the proof of this. She personally conveyed the decision to Francois Botes, an advocate who was acting on behalf of the Siyaya entities. She gave Botes correspondence to assist him to obtain default judgment against PRASA.
The Tribunal’s evidence leader called four witnesses regarding these allegations.
Judge Makhubele disputed their evidence but provided no counter evidence.
“The Tribunal concluded that on the evidence before it, the version of Judge Makhubele was intrinsically problematic, inconsistent and amounted to a bare denial in the face of vastly credible evidence to the contrary on crucial aspects of the matter,” the JSC said in its statement on Friday.
“The Tribunal specifically noted the absence of a record indicating who had taken the decision to settle the Siyaya matters as well as her conduct in assisting Adv Botes to obtain default judgment against PRASA.”
The JSC said the Tribunal had found her guilty of only misconduct in this regard.
“The allegations underpinning these charges relate to dishonest conduct which qualifies as gross misconduct,” it said.
The JSC is expected to recommend to the National Assembly that Makhubele be impeached. This requires a two thirds majority vote. The President must then formally remove her from office.
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