Pretoria - The long-awaited Judicial Conduct Tribunal into a misconduct complaint against Gauteng High Court, Pretoria Judge Nana Makhubele, kicked off yesterday with Judge President Dunstan Mlambo as the first witness.
Judge Makhubele, a former board chairperson of the Passenger Rail Agency of SA (Prasa), is facing a misconduct investigation which could lead to her impeachment.
The investigation arises from a complaint filed by civil society organisation #UniteBehind.
It claims that Judge Makhubele violated the separation of powers principle by serving both as a judge and chair of a state-owned company.
She is said to have served on the Prasa board from October 19, 2017 to March 16, 2018.
Counsel for #UniteBehind, the complainant, yesterday told the tribunal that Judge Makhubele’s conduct rendered her unfit to hold office. It was said that #UniteBehind’s case did not simply hinge on the date when she became a judge.
Judge Makhubele has denied wrongdoing, saying she had already resigned as Prasa chairperson when she was sworn in as a judge.
The tribunal led by retired KwaZulu-Natal Judge President Achmat Jappie, must establish whether Makhubele was a judge during the time that she headed the Prasa board.
It is claimed that she improperly served as chairperson while she acted as a judge, and that she was at the time involved in litigation between Siyaya Rail Solutions and Prasa.
Judge Mlambo yesterday testified that he was disappointed that Judge Makhubele was a member of the Prasa board at the time when she was appointed to take up her position as a judge at the High Court in Pretoria.
He said after she was appointed as a judge following the interviews in October 2017, he told her, alongside the other appointed judges, that they had to take up office on January 1, 2018.
Judge Makhubele told him that she was not ready to resume her tasks on that date, as she still had outstanding matters to sort out.
She told Judge Mlambo that she was the chairperson of the Water Tribunal at that stage and asked whether she could resume her duties in April 2018.
Judge Mlambo responded that this did not matter, as it was not a conflict of interest and that she had to start her duties in January.
As she accepted her appointment as a judge, he expected her, together with the other newly appointed judges, in his office in the first week of January to be sworn in. Judge Mlambo said the roster was already worked out and Judge Mahkhuble was scheduled to handle appeals.
When she did not arrive for work, he called her to his office during the second week of January, where he and Deputy Judge President Aubrey Ledwaba met her.
“I asked her why she did not come in (earlier) as she was on the duty roster. She said it was because of her Water Tribunal duties.”
Judge Mlambo said he pointed out to her that he had rejected that point earlier.
He then asked her whether she did not want to resume her duties at that stage as she was the chairperson of Prasa. Judge Mlambo said he had read in the media that she had been appointed to that position.
“She said yes. I voiced my disappointment as she knew from October that she was appointed as a judge.”
Judge Mlambo said his biggest disappointment was that Judge Makhubele had agreed to head the Prasa board, while the entity was implicated in alleged corrupt activities. He said he pointed out to her that her division handled a lot of litigation involving Prasa.
Judge Ledwaba then asked her why she did not get out of the Prasa board.
“She told Judge Ledwaba that she did not want to disappoint the minister (of transport),” Judge Mlambo said.
He was adamant that before this meeting in chambers, Judge Makhubele never mentioned that she was appointed to head the Prasa board.
The hearing is set to take place over several days, with a number of witnesses being called to testify.
Judge Makhubele has been accused by former and current Prasa employees of favouring and interfering in the settling of legal matters between Prasa and Siyaya.
The Zondo Commission was earlier told that when Judge Makhubele was appointed as chairperson of Prasa’s interim board, she became preoccupied with the legal matter involving Siyaya.
Siyaya had been in a legal dispute with Prasa in 2017 regarding services the company claimed it rendered, but was not paid for.
It was claimed that Judge Makhubele had shared confidential information with Siyaya’s legal team and had prevented Prasa’s legal team from being involved in the matter. The issue was later settled at an arbitration proceeding, where it was agreed that Prasa would pay Siyaya R59 million with interest added.
Judge Makhubele denied the claims when she appeared before the Zondo Commission.
Pretoria News