Judge Makhubele contradicts Gauteng Judge President’s testimony

Embattled Judge Nana Makhubhele led her own evidence at the tribunal into her conduct on Friday. Archive photo: Masego Mafata

• Embattled Judge Nana Makhubhele led her own evidence at the tribunal into her conduct on Friday.
• Makhubele stands accused of having continued as chair of the PRASA board while appointed as a judge.
• She argued she was not supposed to be appointed as a judge until her term as interim chair of the PRASA board had ended.

Leading her own evidence at the Judicial Conduct Committee tribunal over whether she acted as PRASA board chairperson while appointed as a judge, Nana Makhubele on Friday contradicted Gauteng Judge President Dunstan Mlambo’s testimony.

The tribunal, which has been ongoing for two years, follows a complaint lodged by #UniteBehind in January 2018 that Makhubele continued to be chairperson of the PRASA board after being appointed as a judge from 1 January 2018.

Makhubele is accused of breaching the separation of powers principle, and of improper conduct while PRASA chairperson. #UniteBehind also claims she negotiated and entered into a confidential settlement agreement between PRASA and Siyaya, a company accused of corruption, and in doing so sidelined PRASA’s internal legal team.

In a tribunal beset with delays, Makhubele earlier this week asked for a further postponement as her previous legal representative, advocate Vincent Maleka, was only told on Friday last week that he should resume representation but was not available until the end of February. The request was denied by tribunal chairperson Judge President Achmat Jappie, resulting in Makhubele representing herself.

Introducing two new bundles of emails and text messages between herself and Mlambo, which were provisionally accepted, Makhubele’s arguments on Friday centred on her requests that her appointment as judge be from 1 April 2018, not 1 January 2018, by which time her term as interim chair of the PRASA board would have ended.

She said discussions with Mlambo on the date of her appointment began prior to her interview with the Judicial Services Commission (JSC) for the position.

She said she told Mlambo that if she was appointed, she needed to give three months notice to the water tribunal on which she served, and needed to tie up outstanding court matters, including a Constitutional Court hearing in which she was involved. According to her, Mlambo said her position on the water tribunal was not in conflict with her possible appointment as a judge.

She said she never applied to be on the PRASA board. Her neighbour, a Mr Chauke, had in September 2017 told her the minister of transport was under pressure to finalise the boards of 13 SOEs under his department. She said she told him she was scheduled for an interview with the JSC and if appointed, would accept the position of judge.

“He said, ‘No just give me your CV because this is a short term thing’.” She said she understood a board appointment would not be for more than four months.

Makhubele told the tribunal: “I said I have other responsibilities before I join the bench, so if it’s not going to be longer than three months, you can take my CV.”

She said she had no idea who he gave it to and the first she heard of her appointment to the PRASA board was when she received congratulatory messages from friends and colleagues following a media announcement.

The next day, 19 October 2017, she received a letter from the Department of Transport stating she had been appointed chair of PRASA’s interim board.

“I spoke to the minister and said I’m waiting for feedback from the recommendations of the JSC as there were no appointments yet and if I’m appointed I only have three months, I can stay until March. That was the understanding.”

She said then on 20 October 2017 she received the directive from the Judge President stating she should take up her appointment as judge on 1 January 2018. She said that same day, she contacted Mlambo asking to discuss the date of her appointment as judge, as she had already talked about it prior to the JSC interview.

Judge Jappie raised Mlambo’s testimony that he’d called her to a meeting also attended by the Deputy Judge President in mid-January to discuss her position on the PRASA board, which he had been alerted to through media reports. According to Mlambo, this was the first time her position on the PRASA board was discussed.

Makhubele denied this, saying there were no media reports on the issue at that point, and that she never met Mlambo in mid January. She said she had met Mlambo at his chambers on 14 December 2017, and did not meet him again until 30 January 2018.

In the 14 December meeting, she said Mlambo showed her an envelope containing the appointment certificates for the new judges, but said he was not giving hers to her as the date of her appointment needed to be changed to 1 April 2018. She said the next time she heard from Mlambo was a text on 26 January asking for her email so he could send her a confidential letter. It emerged the letter was the complaint from #UniteBehind. She said she then met him in his chambers on 30 January 2018 and they discussed the complaint, with Mlambo telling her he had already replied to #UniteBehind and there was nothing further to be done at that point.

Pressed by Jappie as to Mlambo’s testimony that he met with her in mid-January, Makhubele said: “I deny there was such a meeting”.

She said her texts and emails showed their first meeting was on 30 January 2018 after he had emailed #UniteBehind’s letter of complaint to her.

Due to a request by Makhubele’s attorney to attend to an emergency, the tribunal adjourned shortly after 2pm, with Makhubele stating she reserved her rights to ask for legal representation.

“As you can see, I’m really struggling, I need to have legal representation when we reconvene.”

Jappie said the tribunal, which has taken place at the Southern Sun Hotel in Rosebank, Johannesburg, would reconvene on 7 February, at a venue yet to be confirmed.

This would give Makhubele more than a week to decide on her legal representation.

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