Makhubele 'treated very unfairly', says her lawyer

Suspended Gauteng judge Tintswalo Nana Makhubele had “been treated very unfairly”, her counsel, Thabani Masuku SC, has told her Judicial Conduct Tribunal.

Makhubele faces possible impeachment for a complaint of gross misconduct by civil society coalition #UniteBehind, which complained that after she was appointed as a judge from January 1 2018, she continued to serve as chairperson on the interim board of the Passenger Rail Agency of South Africa (Prasa), a double role that was improper.

The organisation also alleged that during that time, she pushed through the settlement of claims for about R59m with a set of companies in the Siyaya group, controlled by Makhensa Mabunda, and on terms very favourable to the group. This was contrary to 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 at Prasa. 

Makhubele’s legal team gave closing argument on her behalf on Tuesday and said allegations had been made against Makhubele — by counsel for #UniteBehind and the tribunal’s evidence leaders — for which there was no evidence. These included that she had acted “for an illicit or unknown purpose”, said Masuku.

There was “not a single shred of evidence” for this, he said.

Masuku said the evidence leaders had accused her of criminal acts under the Public Finance Management Act.

“Once you introduce a word of ‘crime’, you are asking this tribunal to investigate a crime. That is not what this tribunal was established for,” he said, adding it was all a “show”.

“This was the big show. And judge Makhubele, the so-called ‘state capture judge’, is accused of pursuing crimes, is accused of pursuing illicit purposes. And somewhere ... judge Makhubele is also accused of ... assisting in corruption. What evidence is there that she assisted in corruption?”

There was no such evidence, he said.

Masuku argued that Makhubele was not a judge when she was at the helm of Prasa. This was because when the president had written her letter of appointment, she had not accepted it

The state had an obligation to provide legal representation to judges who face judicial misconduct tribunals, he said. Yet Makhubele had to “beg” the state attorney’s office for representation and he, Masuku, was the second or third legal representative she had asked for. She had to change lawyers midstream and, at a point, had to represent herself.

“That can’t give a judge dignity at all. No judge would want to be treated like that.”

Masuku argued that Makhubele was not a judge when she was at the helm of Prasa. This was because when the president had written her letter of appointment, she had not accepted it. Instead, she had sought to negotiate a later starting date. A conditional acceptance was, in terms of contract law, not an acceptance.

Responding to the evidence leaders and #UniteBehind’s argument on Monday, Masuku said Makhubele’s legal team had never claimed she was an employee or that her judicial appointment was governed employment law. What they had argued was that a judicial appointment had to be made by agreement. She had not agreed to take up the post when it was offered to her by former president Jacob Zuma in an appointment certificate that would have seen her appointment effective from January 1 2018.

Asked by the tribunal’s chair, retired judge president Achmat Jappie, who in law is supposed to make the approach when it came to the appointment of a judge, Masuku went through the process of nomination, acceptance, interview and recommendation by the JSC. But he said there must be the ability for a judge to say no after the letter of appointment has come.

Because Makhubele was not a judge at the time, the JSC did not have jurisdiction to investigate what she did as chairperson of the interim Prasa board, said Masuku.

Her second counsel, Menzi Simelane, said the tribunal was also not the right forum to investigate what was happening at Prasa during her tenure as chairperson of its board because it was being investigated elsewhere — by the Special Investigating Unit.

The allegations against her about what she did at Prasa were also matters that should be investigated under the Public Finance Management Act and the Companies Act, not matters of judicial misconduct that should be investigated by a Judicial Conduct Tribunal, argued Simelane. They were also matters that were for the accountability of the whole board at the time, he argued.

Evidence leader Elaine Harrison said if the tribunal was of the view that evidence before it “discloses the commission of an offence by the respondent [Makhubele)”, the tribunal president must notify the National Director of Public Prosecutions. “So we are not saying she is guilty, but we are saying if there is evidence to suggest same,” this could be referred to the relevant authority, she said.

#UniteBehind’s counsel Michael Bishop said he had not argued there was evidence of corruption on Makhubele’s part, but that there seemed only two possible explanations for how she acted when she was at the helm of Prasa: either she acted intentionally to further an illicit unknown purpose or she acted in a grossly reckless way.

But Masuku said the conclusions reached by #UniteBehind were not justified by the evidence.

Tuesday was the last day of the tribunal’s hearing. Jappie said the tribunal would give its decision before the JSC next sits in October.