Makhubele's counsel says she wasn't a judge while acting as Prasa chair

The judge president of the Gauteng division of the high court, Dunstan Mlambo, says he felt Pretoria high court judge Tintswalo Makhubele rendered herself unsuitable for her post by joining a litigant in the division of the court in which she was supposed to serve.

Mlambo appeared as a witness on Tuesday before the judicial conduct tribunal hearing which is looking into the conduct of Makhubele, who is alleged to have violated the separation of powers principle by being both a judge and chair of the Passenger Rail Agency of SA (Prasa), and allegedly advanced corruption and state capture.

The complaint against Makhubele was lodged by #UniteBehind in January 2019.

During cross-examination, Makhubele’e counsel, Vincent Maleka, put it to Mlambo that Makhubele didn’t conceal anything with her desire to start her judicial duties on April 1, as opposed to January, which was the original date she was expected to start as a permanently appointed judge of the high court in Pretoria.

“She concealed her Prasa appointment and I voiced my displeasure. She rendered herself unsuitable by joining a litigant in the division,” Mlambo said in response to a question by Maleka.

Maleka maintained that Makhubele was not a judge when she took on the role to serve as the interim chair of Prasa.

According to Maleka, Makhubele assumed her role as Prasa board chair in October and, at the time, there was no appointment letter that Makhubele had received.

“It’s the president only and no-one else that appoints judges. She had had no appointment letter from the president when she accepted the Prasa position.

“When the then-minister of transport, Joe Maswangayi, appointed judge Makhubele as interim chair of the Prasa board on October 19 2017, she was not a judge at all, in your division.

“Can we check the JSC act and constitution and see if there is any part that precludes recommended candidates from taking any other job? There are recommended candidates who still appear before you even now,” Maleka said.

Maleka maintained that Makhubele never regarded herself as a judge of the high court, until she commenced with her official duties in June 2018.  

“She never received any salary until she took office on June 1 2018 because she didn’t regard herself as a judge,” Maleka said. 

In response, Mlambo said “that’s her view”. According to Mlambo's testimony, in March 2018 Makhubele wanted to resume her duties but he could not allow her to as they were still waiting for a deferral letter, with Makhubele's new appointment date.

“At the end of March, she was ready to submit forms to start getting a salary,” Mlambo told the tribunal. 

The judge president also maintained that in line with the view he holds, Makhubele was appointed in November as a judge and remained a judge. 

Maleka then turned to a letter addressed to Makhubele by the then justice minister Michael Masutha. 

According to Maleka, in the letter Masutha addressed Makhubele as an advocate, confirming that her appointment as a judge was not yet effective. 

“The minister addresses her as an advocate and tells her when she will commence with her appointment,” Maleka said. 

He also went on to tell Mlambo that the directive he sent to newly appointed judges in October 2017 was misdirected. 

“In truth and in fact, there were no newly appointed judges at this time. It is fair for the tribunal to accept that the directive was misdirected,” Maleka said. 

The hearing will continue on Wednesday. 

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