Suspended judge denies fault in serving dual government role

Suspended judge Nana Makhubele yesterday denied receiving calls to take her oath from Gauteng High Court Judge President (JP) Dunstan Mlambo, refuting conflict of interest claims during her time as Passenger Rail Agency of South Africa (Prasa) chair.

She was the only witness left to testify before the Judicial Conduct Tribunal in the hearing into her alleged misconduct.

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She said she had been labelled many things in the past four years, which included being arrogant, using Stalingrad tactics and being the cause of delays in the investigation.

She said it was critical to put forward credible evidence. “This is important because it does not just [conclude] with the end of this tribunal. It goes to my integrity as a person, as a judge,” Makhubele said.

“It is important to put on record the sequence of everything so you all see … the complainant had a hand in the delays.”

Makhubele faced a misconduct investigation by the tribunal, which could lead to her impeachment.

The investigation resulted out of a complaint filed by civil society organisation #Unitebehind in 2019, which alleged Makhubele – who was appointed as a judge on 1 January, 2018 – had violated the separation of powers principle by being both a judge and chair of a state-owned company, and advancing corruption and state capture.

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It is understood Makhubele continued to serve as chair on the interim board of Prasa while being a judge. The double role in government was seen as improper by the organisation.

Makhubele said there was correspondence to prove Mlambo actively facilitated the “redetermination of the date” of her appointment. In a general letter from #Unitebehind on the second day of the first term in 2018 (a year before the formal complaint), the complainant wrote to Mlambo to say, “one of your judges is at Prasa but when looking at a court roll for a particular day – she is in court. JP Mlambo was asked to confirm this”.

“On 28 January, 2018, JP Mlambo responded: ‘I have already forwarded the letter to the minister of justice and correctional services to request the president of South Africa to revoke the appointment of madam justice Makhubele from 1 January, 2018.

“My request is that her appointment be with effect from 1 April, 2018 and madam Makhubele has undertaken to ensure by the time her appointment takes effect, she would have resigned from all position she is currently holding.’ ”

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Makhubele said in the next paragraph, Mlambo further stated: “Madam Justice has not taken the oath, nor has she been paid any salary as a judge. I further confirm that I have forwarded the letter for her noting and comment.”

She said: “That was JP Mlambo’s response to being told that one of his judges is doing court work and also Prasa.”

Mlambo had commented that she had tarnished the image of the judiciary. However, at the time, he never took her into his confidence, she said.

“Judge Mlambo has made a lot of allegations which he says I ignored when he called me to come take an oath. He says he telephoned me a lot of times and I ignored his directive.

“I do not think it is enough for me to say Judge Mlambo did not call me. Whether or not he called me is a relevant factor. I am prepared to submit my device for forensic investigation.

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“You may believe me or you may believe him, but take into account the fact that this very issue goes into the genesis of the complaint. It’s a question of did I refuse to go take an oath as, he alleges: my evidence is, no.

“I am going to present text messages which will supplement my part of the evidence… When you read all these messages, do you see someone who is disappointed in me, someone who thinks I have brought the judiciary into disrepute?”

Makhubele also faced misconduct allegations for her involvement and alleged disruption of the Siyaya Rail Solutions’ litigation against Prasa.

The Siyaya matter saw her dragged before the Commission of Inquiry into State Capture, chaired by Chief Justice Raymond Zondo, where she unwillingly delivered oral evidence and denied any wrongdoing.