Judge Makhubele's counsel: state suffered no financial loss from her delay in taking office

The judicial conduct tribunal hearing against Pretoria high court judge Tintswalo Makhubele on Wednesday heard that the state suffered no financial prejudice when Makhubele did not resume her duties as per her appointment letter.

The legal counsel for Makhubele, Vincent Maleka, put it to the judge president of the Gauteng division of the high court, Dunstan Mlambo, that his [Mlambo's] response to a letter by the complainant in the matter, transport advocacy group #UniteBehind, clearly stated Makhubele didn’t receive any salary at the time she served as Prasa chair.

Mlambo, however, disputed this and said the state did suffer financial prejudice, as it had to appoint two acting judges to work on her allocated roll during her absence. 

“Two salaries had to be paid every time she remained outside,” Mlambo said.

In response, Maleka said: “She is now suspended and the state is paying two salaries. It’s not her decision but that of the executive.”

The hearing heard that #UniteBehind had written a letter to Mlambo, airing their displeasure over Makhubele’s appointment as Prasa board chair while serving as a judge of the high court.

This is central to the complainant that the commuter activist group lodged with the JSC.

#UniteBehind alleged Makhubele had violated the separation of powers principle by being both a judge and chair of Prasa. According to Maleka, Mlambo then responded to the letter and told #UniteBehind that Makhubele was not receiving a salary as a judge. 

Maleka then said Makhubele’s acceptance of the Prasa job was never a problem for Mlambo. 

“Had it been a serious matter of concern affecting her integrity, you [Mlambo] would have raised it with her,” Maleka said.

He said that during Mlambo’s correspondence with the then justice minister, Michael Masutha, asking for a deferral letter and a change in Makhubele's starting date, he never mentioned the Prasa issue to the minister and his reservations about it.

Mlambo, however, maintained that Makhubele was aware of his displeasure with her  for joining a litigant featuring in the same division she was to work in. 

Maleka then referred Mlambo to the correspondence that Makhubele had received from the office of the chief justice, regarding her registration in the declaration of interests.

“The e-mail says her disclosures are not due until April 2018. That is till the time she was to start with her judicial duties,” Maleka said.

In response, Mlambo said the declaration of interests was not related to taking an oath of office.

The judge president went on to reiterate how he and the deputy judge president, Aubrey Ledwaba, had to “extract out of her” an admission that the reason she couldn't start her judicial duties was due to the Prasa position she had accepted. 

Maleka then went back to the administrative process of appointing judges and said it was not the responsibility of the judge president to appoint judges.

“As soon as JSC makes recommendations, you don’t go there and then [to the recommended candidate] and say this is the date I want you to start. 

“When you had this conversation with judge Makhubele, president had not yet signed certificates of appointments,” Maleka said. 

In response, Mlambo said it was a divisional policy in his courts that newly appointed judges start with their duties in January, to which Maleka responded that every rule has an exception. 

Mlambo is done with his testimony and the hearing will resume on Thursday with a new witness.

Evidence leader advocate Noxolo Maduba-Silevu told the hearing that deputy judge president Aubrey Ledwaba would no longer be called as a witness. 

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