Clock ticking for Judge Makhubele despite her threats to interdict hearing

Suspended Judge Tintswalo Annah Makhubele is between a rock and a hard place at the judicial tribunal hearing misconduct allegations against her after her attempts to postpone the sitting again failed on Wednesday.

Her threats to interdict the hearing to halt the proceedings should it continue dissipated as the panel insisted that the hearing should wrap up by Friday.

With Advocate Vincent Maleka absent, Makhubele arrived with lawyer Matshepo Mobeng from the Johannesburg office of the State Attorney.

On Monday, Maleka and Mabuza Attorneys complained about unpaid the R3m legal bill to be footed by taxpayers.

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The billing dispute between the law firm and the State Attorney emerged during the hearing last year and remains unresolved.

No agreement was reached in the past three months, prompting the legal team to take a backseat for now.

Panel running out of time

Makhubele told the tribunal that she weighed her options and that papers are being prepared with the help of the State Attorney.

Chairperson Judge President Achmat Jappie told her that the matter took four years before a hearing could sit, and that last year’s decision to no longer allow postponements stands because time was running out.

“It is your right to do whatever application you want, and as we said, anything else can be addressed at another forum.

“But we sit as the inquiry, instructed by the Office of the Chief Justice, and have a mandate to fulfill.

“I don’t see what further delays will achieve. If we adjourn until tomorrow, we wont have enough time still.”

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A visibly frustrated evidence leader Advocate Elaine Zungu said it was agreed at the last postponement in November last year that 22-26 January week will sit without delays.

“We all accepted this date, but on the first day, we are faced with a problem. This is an unreasonable delay in regards to tribunal, in terms of the Act, we can proceed in her absence.

“No court order is stopping us from proceeding. On this basis, I don’t see a need to wait until tomorrow,” she said.

Misconduct charges

Lobby group #UniteBehind laid a complaint against Makhubele, accusing her of violating judicial ethics and causing a conflict of interest when she took over as chairperson of the Prasa board in 2017 while she was a high court judge.

She further faces misconduct allegations for her involvement and alleged disruption of the Siyaya Rail Solutions’ litigation against Prasa.

Siyaya received a R60 million settlement from Prasa, thanks to alleged assistance from Makhubele.

The company scored contracts from the entity, with its owners linked to ex-Prasa CEO Lucky Montana.

The Siyaya matter saw Makhubele dragged to the Zondo commission of inquiry into state capture, where she reluctantly delivered her oral evidence, denying any wrongdoing.

‘Delays not my fault’

Replying to Jappie, Makhubele said that the delays were not her own doing.

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She said the blame should be laid at the door of the Judicial Conduct Committee (JCC) which she said took time before it could set the ball rolling.

“When we started last February we were moving smoothly until the issue of my legal representation arose.

“As much as I want to proceed, this matter is right at the tail end, and I am on my own. I can talk the whole day about what caused delays.

“But I can’t sit here and watch you proceed, we have work to do. If the hearing will go without me, there has to be a good reason for it, which is what we will argue in court. May we be excused, chairperson?” she asked Jappie who in turn told her to stay put until he makes a ruling.

Court could be risky

Pretoria attorney Llewelyn Curlewis said Makhubele’s court bid could become problematic for her.

“Refusing her another postponement could be seen as as a harsh approach, and it depends on the circumstances that were put before the tribunal.

“But as long as a fair tribunal process was followed, a court could be reluctant to intervene. The court might tell her to stick it through, see what happens and maybe come back afterwards if she is still unsatisfied with the process,” Curlewis said.

After lengthy inputs by all parties, Makhubele agreed that she can take the stand. Her evidence is the only item outstanding at the hearing.

She then asked for two days to go through the transcripts and prepare.

“Going to court is my last option, I want this to be finalised too. Giving me two days is much better,” she said.

Tribunal panel member, retired Judge Stanley Moshidi, asked Makhubele why she did not disclose her intention to approach the court during Monday’s sitting.

“When was this decision taken to interdict proceedings? If we had known on Monday, the matter would have been different, probably.

“The tribunal has now been surprised,” he added.

“We’re all here for fact-finding and to work together, and not be adversarial or take each other by surprise. We’re here to hear evidence and compile our report for the Office of the Chief Justice,” said Moshidi.

After deliberations, Jappie postponed the hearing to Thursday, despite Makhubele requesting two days and her court threats.

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