SUSPENDED Judge Tintswalo Nana Makhubele was found guilty of gross misconduct by the Judicial Conduct Tribunal following complaints that she was a judge while she was the chairperson of Prasa’s interim board.
The findings will be referred to the Judicial Service Commission for consideration and could result in her impeachment.
Retired KwaZulu-Natal judge president Achmat Jappie, who chaired the tribunal, together with two more members of the tribunal, heard evidence from various parties, including Gauteng Judge President Dunstan Mlambo, relating to Judge Makhubele’s appointment as a judge while it was said that she was also the interim chairperson of the Prasa board.
In January 2019, #UniteBehind (the complainant) lodged a complaint of judicial misconduct with the Chief Justice, as Chairperson of the Judicial Conduct Committee (’JCC’), against Judge Makhubele.
The complaint concerned her acceptance and service as chairperson of the interim board of control of Prasa while simultaneously being a nominated prospective judge.
The complaint alleged that Judge Makhubele undermined the independence of the judiciary and received remuneration from Prasa, a role within the executive branch of the government. Such a role, it said, undermined the separation of powers and/or the status of the judiciary.
The complaint alleged that she intentionally or negligently failed to immediately sever all her professional links and failed to organise her personal and business affairs to minimise professional links and avoid a conflict of interest.
Judge Makhubele was adamant that Judge Mlambo already knew in December 2017 that she was on the Prasa board when she, among others, discussed this with him during a meeting.
According to her, he thus fully knew that she could not take up her position as a judge in January 2018 and that she still had to resign from the board. She said it was later agreed that she would start her judicial duties on April 1, 2018.
Judge Makhubele said that she had a meeting with Judge Mlambo and Deputy Judge President Aubrey Ledwaba in March 2018, where she was told that she would start on April 1, 2018.
Judge Mlambo, however, testified that she never told him that she had accepted the Prasa position, and he made it clear to her that her starting date as a judge was January 1, 2018.
He said during the meeting she had with him and Judge Ledwaba, she only mentioned that she had to wrap up cases she was involved with as counsel and her duties at the Water Tribunal.
Judge Mlambo said that he had already set up the duty roster as he accepted that she would start her duties on January 1, 2018.
Judge Jappie said in his findings that Judge Makhubele’s evidence regarding her involvement in Prasa and her starting date was rather confusing. According to her, she had several discussions with Judge Mlambo before and during her JSC interviews in October as to when she would commence with her duties.
She said Judge Mlambo agreed that she would not start on January 1, 2018, but the tribunal found that it is most unlikely that she discussed with Judge Mlambo that she would not be able to start her duties on January 1, 2018.
He said her evidence as to why she seemingly owed allegiance to the Water Tribunal and the manner in which she was unable to finalise her unfinished court matters in order to ready herself for judges’ duties on January 1, 2018, was equally unconvincing, improbable, and unreliable.
The same criticism was levelled at her evidence as to how she became a chairperson of Prasa’s interim board before October 2017. According to her, she simply handed her CV to a neighbour and waited until she received congratulatory messages from various sources on her appointment as chairperson.
She testified that her appointment to Prasa was only for four months. This evidence is contrary to the contents of her letter of appointment by the minister of transport, Judge Jappie said.
He also noted that while giving evidence, she became argumentative. He said based on the entirety of the evidence before the tribunal, the evidence of Judge Mlambo had to be accepted and that her evidence was misleading.
“Accordingly, we find on the totality of the evidence that the respondent has made herself guilty of gross misconduct…” Judge Jappie said.
Regarding part B of the complaint against her - relating to her handling of claims brought by the Siyaya group of companies against Prasa, in which she settled the Siyaya matters and allowed default judgment to be taken against Prasa, the tribunal said it was not known who gave her the mandate to settle these matters.
He also noted that there is no record of a board meeting where the decision was taken to settle these matters.
The tribunal further noted that on the evidence when the minister of transport asked her for a report concerning the Siyaya matters, she unexpectedly resigned and failed to give such a report.
The absence of a record regarding who and how the decisions were taken to settle the Siyaya matters is the basis of the contention that the settlement was done in secret by Judge Makhubele, Judge Jappie said.