‘She facilitated corruption’ – Makhubele among handful of judges who landed on wrong side of the law

Over the years, several magistrates and judges have had to face the music over alleged irregularities, the latest being suspended high court Judge Tintswalo Annah Makhubele, whom a lobby group has accused of enabling corruption at the Passenger Rail Agency of South Africa (Prasa).

Makhubele’s judicial tribunal is set to get underway in Johannesburg on Tuesday, bringing to light that some of those entrusted with the law also tend to break it.

Makhubele was board chair while a judge

Makhubele, who came from humble beginnings in Limpopo, is alleged to have violated judicial ethics and caused a conflict of interest when she took over as chairperson of the Prasa board in 2017 while a high court judge.

According to Judges Matter, judicial officials such as judges are legally forbidden from holding any other monetary beneficial position upon their appointment to the bench.

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

No evidence ‘she received money’

Lobby group #UniteBehind complained to the Judicial Conduct Committee (JCC) in 2017 about Makhubele’s dual posts and conduct, calling for her to be impeached.

The organisation’s Zackie Achmat on Monday said Makhubele’s story of a brilliant black girl from Limpopo, who grew up poor but achieved so much through merit, is a sad one to tell.

Her interference in the Siyaya court matter after she fired Prasa’s anti-corruption team in the legal department ensured that the company received R60 million from the SOE.

“She was not supposed to take any other work after her appointment to the bench, but she continued at Prasa.

“What was her motive for this? We can’t find a single piece of evidence showing she received any money. And we can’t say she got the [Prasa] job in return for something, because she was hired purely based on her own merits.

“She acted to facilitate corruption. The danger is that should she get away with this, other judges will see that they can do the same. [Judge John] Hlophe’s matter has divided that division into factional groups as we speak,” said Achmat.

Makhubele was the only judge to appear before Zondo in connection to alleged parastatal corruption and capture.

Prasa legal team fought back

Prasa whistleblower Martha Ngoye, also its head of legal risk and compliance, said in terms of legal prescripts, a Prasa board chairperson shouldn’t be involved in court settlement matters.

Ngoye and her team regrouped and successfully challenged the Siyaya case in court.

“She cannot settle, a board chairperson is not operational. We were able to tell the sheriff to recoup Prasa’s monies.

“That was how we, as the legal section in Prasa, were able to ensure that the money that was attached, with the assistance of the then minister, was returned to Prasa. At that time, the board [under Makhubele] wasn’t helping us at all,” she said.

READ MORE: Judge criticises judge in Prasa case

Makhubele resigned from the Prasa board in 2018 after the #UniteBehind complaint – a day before she was supposed to submit a report on the Siyaya matter to the minister.

The commission was heavily criticised for dragging its feet on the Makhubela matter. In 2020, at the advice of the JSC, President Cyril Ramaphosa suspended Makhubele from her judicial duties.

‘Rogue judges’

Perhaps a long-standing case of alleged misconduct by a judge is that of Western Cape High Court Division Judge President John Hlophe, which has spanned almost 15 years and is yet to be brought to a final conclusion.

The matter dates back to 2008 when 11 Constitutional Court judges complained that he tried to influence them on outcomes at the apex court to favour former president Jacob Zuma.

This related to the validity of searches during the arms deal investigation of Zuma and Thint in 2008.

In 2021, a tribunal found him guilty of gross misconduct, paving the way for possible impeachment.

More than a decade later, Hlophe was suspended by Ramaphosa in December last year.

The following are some judges and magistrates who found themselves on the wrong side of the law:

• Judge Nkola Motata was caught on video in 2007 drunk and hurling insults at Hurlingham homeowner Richard Baird after he crashed his Jaguar into his perimeter wall. He was first fined R20 000 in the high court and convicted of drunk driving in 2009. His appeal failed. He never worked again and had been on paid leave since his suspension in 2007. In 2019, the JSC fined him R1.1 million for misconduct. He retired in 2018 aged 65, with all benefits afforded to a judge.
• Pretoria Chief Magistrate Desmond Nair was criminally charged for allegedly accepting a state-of-the-art R200 000 security system bribe for his home from Bosasa in 2016. The last sitting was in December 2022 to allow the state to find an external magistrate.
•  A case before KZN high Court Judge Anton Van Zyl was heard in 2012 and 10 years later, no judgment was handed down. According to GoundUp, Van Zyl was rebuked by the Supreme Court of Appeal in 2020 for taking four years to rule in favour of a company for damages after a strike. Van Zyl retired in 2021, the 10-year judgment is still outstanding. All his matters were referred to the Judicial Conduct Committee.
• A Free State High Court judge is being hauled before the specialised commercial crimes court by the Hawks for allegedly stealing Road Accident Fund (RAF) money meant for a six-year-old accident victim when he was an attorney. Over R2 million belonging to the child was misappropriated by the now-sitting judge. He is expected in court on 9 March.

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