Suspended high court Judge Tintswalo Annah Nana Makhubele. Photo: RSA Judiciary
Gauteng Judge President Dunstan Mlambo had to “extract” from embattled Judge Tintswalo Annah Nana Makhubele confirmation of her appointment as Prasa board chairperson during a meeting in which she only mentioned her position at the Water Tribunal as the reason she was unable to start work in January 2018.
Mlambo was the first witness at the judicial tribunal into Makhubele’s alleged gross misconduct.
He said upon completion of the Judicial Services Commission (JSC) interviews for high court judges in October 2017, Makhubele, who was one of the candidates, asked him about appointment processes should she be a successful candidate.
As head of the high courts in the province, Mlambo said he knew Makhubele quite well as a silk who also offered her time to take up acting judge duties.
“She’s the one who approached me asking as to what would happen in terms of starting dates if she succeeds, and I told her candidates appointed in October should wind up practices and start as judicial officers on 1 January the following year,” said Mlambo.
“She told me she may not be able to start on 1 January, as she is chairperson of the Water Tribunal. I said her role at that tribunal is judicial, and I see no conflict, and that as judge president I would give her time to attend to that work. We left it there.”
After the announcement of the successful candidates in October, which included Makhubele, the judge president said he wrote to each candidate welcoming them to the division ahead of the new year.
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When Makhubele failed to pitch to take the judges’ oath along with the others, Mlambo called her to ask why she never arrived. Makhubele requested a meeting.
Mlambo said he invited his deputy, Judge Aubrey Ledwaba, to be part of the meeting.
According to Mlambo, Makhubele kept insisting that her job at the Water Tribunal forced her to ask for a postponement of her appointment to April 2018.
She never mentioned her appointment as interim Prasa board chairperson in the same month after her successful JSC interview, said Mlambo.
“She again brought up the Water Tribunal duties and I repeated that I reject that, because there was no conflict. Until I brought up the issue of Prasa board, she never put that on the table.”
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Mlambo said he asked Makhubele if her inability to start was based on what he read in the media about her being a new board chairperson.
“I placed my displeasure that she accepted that appointment having known from October that she accepted permanent judicial office.
“I expressed to her that that was my biggest disappointment, because how could she join an entity that’s litigating in the division she was appointed to, not forgetting allegations of what was happening at Prasa?” Mlambo said.
When Ledwaba asked her why she couldn’t withdraw from Prasa, Makhubele told them she wouldn’t want to disappoint Joe Maswanganyi, the transport minister at the time.
Mlambo then wrote to the then minister of justice Michael Masutha, detailing that Makhubele has asked for a deferment of her appointment to April that year.
The former minister then sought a legal opinion on the matter.
In the interim, Mlambo asked Masutha to appoint another judge to fill the vacancy left by Makhubele.
By the time the legal opinion came, Makhubele wrote to Mlambo in May, telling him she had resigned from Prasa and was ready to take up her post at the North Gauteng High Court.
She started work on 1 June 2018.
Tribunal chairperson and former KwaZulu-Natal judge president, Achmat Jappie, asked Mlambo if there has ever been an incident where a new judge is unable to start their duties.
“Up to that point, it had never happened before,” Mlambo replied.
Makhubele’s legal representative, Advocate Vincent Maleka, told the tribunal that her client was not a judge up until she formally started judicial work on 1 June.
“She was not being paid a salary as a judge. My instructions are that she never claimed or received a salary before she took office on 1 June 2018.
“She made no secret about communicating the request to you, it was open, and she did not conceal her desire to start in April,” said Maleka.
Mlambo replied that she did not draw a salary because she had not submitted employment documents or signed any human resources-related forms in order to receive payments.
Said Maleka: “And that is because she did not regard herself as a judge at that time.”
Mlambo replied: “That’s her view, she was ready to fill out the necessary forms at the end of May in order to receive her judge’s salary.
“My view, as I testified earlier, is that Judge Makhubele and the others were formally appointed judges by that letter from the president that said ‘I hereby appoint you, Advocate Makhubele, as judge of the high court, effective from 1 January 2018.”
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 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.
The tribunal continues on Wednesday.
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