Suspended Gauteng judge Nana Makhubele violated the judicial code, breached the separation of powers and violated judicial independence, said #UniteBehind in written argument to a Judicial Conduct Tribunal (JCT) that is investigating its complaint of gross misconduct against her.
The tribunal is scheduled to hear closing arguments next week after a marathon hearing that has stretched, in stops and starts, over the past two years.
The complaint, laid in 2019, was that Makhubele continued to serve as chairperson of the interim board of The Passenger Rail Agency of South Africa (Prasa), after she was appointed a judge from January 1 2018. This was an improper dual role, said #UniteBehind.
The organisation also complained about her conduct while she was at the helm of Prasa: that, almost from the start, she paid “special attention” to the Siyaya group of companies — controlled by Makhensa Mabunda, who was politically connected to Prasa’s ex-CEO Lucky Montana and who have both been accused of Prasa-related corruption.
The organisation said Makhubele went out of her way to push through the settlement of several claims, worth about R59m, by Siyaya companies against Prasa. Prasa’s own internal legal division was fighting these claims, but the team was sidelined by Makhubele, who liaised directly with Siyaya’s lawyers, said #UniteBehind.
In its written argument, filed ahead of next week’s closing arguments, #UniteBehind’s counsel argued that her misconduct was compounded by evidence that, confronted by judge president Dunstan Mlambo when she tried to delay taking up her judicial duties, she told Mlambo she did “not want to disappoint the minister”.
“For a judge to refuse to serve as a judge so as not to disappoint a minister is to consciously choose to forego judicial service for personal gain or fealty to the executive,” said UniteBehind’s counsel, Michael Bishop.
But her counsel, Thabani Masuku SC, argued that Makhubele was not, in law or in fact, a judge at the time she was at the helm of Prasa. Though she was recommended for appointment by the JSC in October 2017, the same month that she accepted the position at Prasa, she only received an “initial offer” from the president to appoint her a month later — in November.
The “offer to appoint” was made from January 1 2018, said Masuku. Makhubele did not take up this offer, but instead “negotiated new terms of appointment” — to start at a later date to accommodate her Prasa tenure — and that these new terms “were ultimately accepted by the president when he issued a new letter of appointment with conditions that justice Makhubele was prepared to accept”.
Masuku argued: “It is not misconduct for a person to reject an offer of employment or appointment to the position of judge made by the president, it similarly cannot be gross misconduct for a person to make a counter-acceptance of the offer of employment as justice Makhubele did.”
She knew she was a judge at the time. Yet she chose not to take the oath. She chose to continue to serve as the chairperson of Prasa
— Michael Bishop, counsel for UniteBehind
Masuku argued that contract law resolved the complaint about the duality of positions, saying that the process of appointing a judge is “similar to the formation of any agreement”.
But Bishop characterised the process differently. Setting out the timeline of events, he argued that a presidential minute was signed by former president Jacob Zuma on November 17 2017 appointing Makhubele, with effect from January 1 2018.
“A judge becomes a judge by way of the president’s appointment,” said Bishop.
The fact that the president later amended the appointment date — a move that was “almost certainly unlawful”, said Bishop — did not change the ethics of her conduct.
“Even if the president acted lawfully, the ethics of judge Makhubele’s conduct must be judged at the time that she acted. From January 1 2018, she was a judge. She did not know, and could not know, whether the date of her appointment would be altered or not. And she knew she was a judge at the time. Yet she chose not to take the oath. She chose to continue to serve as the chairperson of Prasa,” he said.
Evidence leader Elaine Harrison also argued that “there can be no doubt” that Makhubele was both chair of Prasa and a judge at the same time.
“The evidence is unchallenged that the president appointed her as a judge on November 2 2017 with effect from January 2 2018. This was communicated to the respondent not only through the media but also through e-mails from the JP,” said Harrison.
She said Makhubele was “a thoroughly unsatisfactory witness”.
“She would have this tribunal believe that it was not a foregone conclusion that once the JSC had made a recommendation, she was destined to be appointed permanently as a judge of the high court.” After setting out her testimony, Harrison said Makhubele’s understanding of the constitution “at best for her ought to be found wanting”.
At worst, the inference was inescapable that she resorted to excuses “to explain away her failure to assume her duties as a judge when she was duty bound to do so”, said Harrison.
Part B of #UniteBehind’s complaint related to Makhubele’s conduct while at the helm of Prasa and, in particular, in relation to the Siyaya settlements. At the state capture commission, chief justice Raymond Zondo described the allegation thus: “When you look at the so-called settlement, it’s not a settlement. It’s a capitulation by Prasa. When you look at the amounts that are paid, it’s exactly the same as the amounts that are said ... It’s not a compromise or anything.”
Makhubele denied the allegations and the commission never made findings on it because, said Zondo’s report, it would be resolved at her JCT.
In his written legal argument, Masuku said since Makhubele was not a judge when she was chair of Prasa, that ought to be the end of the matter. The JSC had no jurisdiction over Makhubele’s actions before her appointment as a judge.
But even if the tribunal were to find otherwise, Makhubele’s actions at the helm of Prasa did not fall under conduct to be investigated by a judicial conduct tribunal, he argued. “What in any event does it mean that she paid special attention to the Siyaya matter- because it is not alleged that she acted in a corrupt manner, received a bribe or any undue benefit for the alleged ‘special attention’ given to the Siyaya matter,” argued Masuku.
He said that in the absence of allegations that Makhubele had a deliberate strategy to commit corruption, fraud or misconduct, there could not be gross misconduct in terms of the constitution.
But Bishop argued that “within weeks of her assuming her position as chairperson, judge Makhubele was on the phone to Siyaya’s advocate, Mr Botes SC [and] continued to communicate with Mr Botes to ‘rectify’ her attorneys’ own settlement offer, and to scupper Prasa’s attempt to defend Siyaya’s attempt to enforce the settlement”.
He said when she was finally asked to account to the minister, she resigned. In doing what she did, she acted outside her powers — according to Prasa’s delegation of authorities, the chair of the board had no power to settle the Siyaya claims. Decisions were taken by an inquorate board on her instruction.
The way she went about the settlement of the Siyaya claims was “indefensible”, he said.
Perhaps each step of the “misconduct” on its own was explicable or forgivable as an error in judgment, said Bishop. “But judge Makhubele’s conduct must be taken as a whole. When it is considered that way, it is far more disturbing,” he said. “It was either reckless with no regard for her fiduciary duties. Or she settled the claims for an ulterior and impermissible purpose.”
Bishop argued that this conduct happened when Makhubele had already either been recommended for appointment or in fact appointed from January 1 2018. “It was not dug up from ages gone by,” he said. It was serious misconduct because she had fiduciary duties as chair and legal duties under the Public Finance Management Act and breached these duties.
Judges are required at all times, even in relation to extrajudicial conduct, to comply with the law, argued Bishop. They are also required to avoid political controversy. “Judge Makhubele actively became involved in political controversy. Her controversy was so bad, that a member of the executive, the minister, required her to file a written report to account for her actions — which she did not do.”
Finally, there was the question of Makhubele’s conduct during the tribunal itself, with UniteBehind accusing her of lying in her testimony and accusing judge president Dunstan Mlambo and deputy judge president Aubrey Ledwaba of lying. “For a judge to lie under oath and falsely accuse other judges of lying, is to be willing to pull down the temple of justice just to save her own skin,” said Bishop.
Harrison said Makhubele “attacked the integrity and honesty of two senior judges with whom [she] had worked with ... This was conduct which was incompatible with or unbecoming of the holding of a judicial office”.
But Masuku said this was a “defamatory and scandalous allegation”. Just because the versions of Mlambo and Ledwaba were different to Makhubele’s did not mean that her version was a lie, he said. Nor did it mean that she was lying because she did not, in cross-examination, put her version to Mlambo when he was testifying.
“The material and relevant issues there did not require justice Makhubele to put her version,” he said.
Harrison said Makhubele’s conduct at Prasa and the tribunal “in the full glare of the publicity afforded to this matter” had threatened public confidence in the judicial system. She recommended that the tribunal find her guilty of gross misconduct.
The tribunal is scheduled to run from Monday and wrap up on Wednesday.
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