Makhubele faces heat as her cross-examination begins

Evidence leader asks why crucial parts of her evidence were not put to witnesses when they gave evidence against her

09 February 2024 - 19:41
By Franny Rabkin
The tribunal of suspended Judge Nana Makhubele has been postponed to February 22.
Image: Photo from Judges Matter video The tribunal of suspended Judge Nana Makhubele has been postponed to February 22.

The evidence leader at suspended judge Nana Makhubele’s judicial conduct inquiry asked Makhubele on Friday whether it was fair for her to argue that witnesses who testified against her were lying — “when they haven’t been given an opportunity to hear your side of the story in cross-examination”.

This question followed a series of earlier questions where evidence leader Dorian Paver asked Makhubele whether, after testifying for a week, she had told her side — he asked about specific, crucial allegations she had made — to her former counsel, Vincent Maleka SC.

During her evidence Makhubele had contested the versions of judge president Dunstan Mlambo, Prasa lawyers Martha Ngoye and Fani Dingiswayo and Prasa’s external attorney Madimpe Mogoshoa.

“None of these things I have mentioned thus far were put to these witnesses. Their evidence was not challenged ... It was incumbent on you to instruct counsel to challenge evidence that is at odds with the evidence that you have given over the last five days,” said Paver.

Makhubele faces impeachment on a complaint from the civil society coalition #UniteBehind that, after she was appointed as a judge from January 1 2018, she continued to serve as chairperson on the interim board of Prasa, a double role that was improper, said #UniteBehind.

#UniteBehind also alleges that during that time, she pushed through the settlement of claims for about R59m with a set of companies in the Siyaya group owned by Makhensa Mabunda and on terms very favourable to the group. This was contrary to legal advice from her own legal affairs division, which she sidelined, it was alleged.

Mabunda was politically connected to Prasa’s former CEO Lucky Montana. The state capture commission’s report recommended that “serious consideration” be given to Montana’s prosecution over tenders he awarded while at Prasa.

Makhubele gave evidence most of this week and cross-examination only began on Friday afternoon.

Paver first asked her whether she had told Maleka there was no meeting between her, Mlambo and deputy judge president Aubrey Ledwaba in the first two weeks of January. Mlambo had testified there was. She responded: “I briefed my legal team with regard to what happened between me and judge president Mlambo ... and the kind of meetings we had,” she said.

Asked whether she had told Maleka there was “an express agreement” between her and Mlambo that she would only commence her work as a judge on April 1 2018, she said “yes,” adding that Mlambo had testified that she had approached him about an April 1 start, “but he denies having granted permission, so that’s the only dispute”.

To some questions she responded directly that she had told Maleka, to another that she could not recall, and to another “I don’t think we spoke about that”.

But, said Makhubele, the tribunal was not a court, it was a fact-finding inquiry, and the evidence she had brought — supported by documents — was relevant. Just because it had not been put to witnesses did not mean she was not entitled to put it before the tribunal, she said.

Makhubele said she had never used the word “lie” in the tribunal. She had not called Mlambo a liar. She had used the word “deny” and disputed evidence and said that evidence put by witnesses was not true. She had responded to questions from the tribunal’s panel as to why witnesses who testified against her would lie.

“It could be none of us is right,” she said.

She added: “That sounds like an article in the media that I have just read that Makhubele says witnesses are lying and she is the only one who is right. I never said that. I’ve been testifying here for I don’t know how many days and I have confronted allegations. And where I have documentary evidence, I have provided that. I’ve never answered a question by saying someone is lying.”

In her evidence on Wednesday, in response to a question from panel member, retired judge Seun Moshidi, about why the Prasa legal team would lie about her, she said: “They lied, because they talk about non-existing report. They lied, because they said non-existing concessions.”

The tribunal adjourned until February 22.