Adjournment of tribunal into embattled Judge Makhubele’s conduct is 'costing us enormous amounts of money'

24 Feb 2023

#UniteBehind’s Zackie Achmat urges Judge Makhubele to publicise her legal costs ‘which are being carried by the public’.

Activist group #UniteBehind director Zackie Achmat said the adjournment of the Judicial Conduct Tribunal against Judge Tintswalo Annah Nana Makhubele, the former interim board chairperson at the Passenger Rail Agency of South Africa (Prasa), was “a sad delay that is costing us enormous amounts of money”. The Tribunal has been adjourned until May.

Achmat said #UniteBehind had already incurred close to R1-million in legal fees and related costs. He said the organisation would have to raise more funds to cover its costs ahead of the resumption of the Tribunal.

Evidence leader advocate Elaine Zungu had begun the day resuming the testimony of witness Martha Ngoye. However, when Zungu led evidence and posed questions to Ngoye using a document that she had not seen before, the Tribunal was adjourned by Tribunal leader and former Judge President of the KwaZulu-Natal high court Achmat Jappie.

Ngoye is the suspended head of legal, risk and compliance at Prasa and began giving evidence at the Tribunal on Thursday.

The adjournment was also triggered in part by a request from Judge Makhubele’s legal team for documents, as well as a request from Zungu, said Judge President Jappie. He did not disclose the request from Zungu, simply saying it was related to “practical matters” of the Tribunal.

According to Zungu, the document that prompted the adjournment was a legal opinion sought from law firm ENSAfrica regarding whether the appointment of former interim board chairperson Judge Makhubele was legally sound, given her nomination as a judge in the high court at the time; whether Judge Makhubele was a judge at the time of her appointment as chairperson; and whether the interim board was “lawfully constituted” by the Minister of Transport.

This document, which Zungu said was emailed to Judge Makhubele as Prasa board chairperson and axed Prasa company secretary Lindikaya Zide on 28 February 2018, stated that the composition of Prasa’s interim board was “defective up to at least 5 February 2018”.

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Zungu told the Tribunal that, according to the document, decisions of the interim board while it was defective were likely to be considered “legally invalid for lack of authority”. Zungu did not name the sender.

During her testimony on Thursday, Ngoye also told the Tribunal that Prasa’s interim board during Judge Makhubele’s tenure as chairperson was not properly constituted “because it did not have all the required functionaries in terms of the legislation of a properly constituted board”, according to the provisions of the Legal Succession to the South African Transport Services Act.

Ngoye said the board at the time did not have a representative from the Department of Treasury, as required. She said because of this, decisions taken by the board were not binding.

Ngoye was the second witness to give testimony at the Judicial Conduct Tribunal into Judge Makhubele’s conduct. The first witness to appear before the Tribunal and give two days of testimony was Gauteng high court Judge President Dunstan Mlambo.

#UniteBehind have accused Judge Makhubele of breaching the separation of powers principle, and of improper conduct while she was chairperson of Prasa. The organisation also alleges that Judge Makhubele negotiated and entered into a confidential settlement agreement with representatives of Siyaya, a corruption-accused company, and sidelined Prasa’s internal legal team.

The Judicial Conduct Committee (JCC) recommended a Judicial Conduct Tribunal in March 2020 following #UniteBehind’s complaint to the Judicial Service Commission (JSC) in 2018.

The Tribunal will resume on 8 May 2023. Judge President Jappie said he encouraged all parties to resolve outstanding matters before the Tribunal resumed.

Achmat urged Judge Makhubele to publicise her legal costs, “which are being carried by the public” and for the costs of the Tribunal process to also be made public. DM

First published by GroundUp.

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