Judge Raymond Zondo, chairperson of the judicial commission of inquiry into state capture, has dismissed an application by former Prasa chairperson Tintswalo Makhubela, a sitting judge in Gauteng, to have her hearing postponed.
Makhubela and her legal counsel, Advocate Mxolisi Nxasana, appeared before the commission on Monday to argue for a postponement.
After this was denied, Nxasana said he would have to “reluctantly” withdraw as Makhubela’s attorney of record as he had not yet had a chance to consult with her. Makhubela, meanwhile, said she saw no reason to continue paying for the services of an attorney under the circumstances.
Makhubela had failed to appear on July 24 before the inquiry for what was meant to be her initial appearance. At the time her previous counsel told the hearing that she had suffered a burst tyre on the road between Mokopane to Pretoria, and was not in a “fit emotional state” to attend. Zondo then granted a postponement to 3 August, but compelled Makhubela to attend Monday’s hearing.
During Monday’s proceedings Nxasana tried to buy more time for his client, saying he had not yet had a chance to consult with her.
But Zondo responded that Makhubela had “a long time” to prepare.
“I cannot see her how her work commitments or situation is different from anyone else who also has work commitments, who makes time to do what they need to do. When they are required to prepare affidavits, they prepare affidavits,” he said.
Makhubela told the commission she had prepared and filed a 47-page affidavit, but would want to supplement it with responses to what other witnesses said in their transcripts.
Evidence leader, Advocate Vas Soni, however, pointed out that these transcripts are publicly available on the state capture website.
At the sitting on July 24, Soni had said Makhubela was “disrespectful” for previously not submitting affidavits to the commission.
Makhubela said this is untrue, and requested that Soni not lead evidence against her.
In the afternoon session, discussions chiefly centred around how the commission would proceed if Soni should withdraw or be recused, and when time could be found for Makhubela to give evidence in light of her duties on the bench.
In the end Zondo decided not to rule on the recusal application against Soni. He asked Makhubela to put in a written application for recusal by Friday. The state would respond the following week.
The Gauteng High Court judge will now return to the commission on Wednesday to commence giving evidence. The would be the debut of the commissions ‘evening sessions’ which Zondo said were needed so that more evidence could be heard each day.
In light of the questions over Soni’s involvement, on Wednesday there is a possibility that Zondo will directly question Makhubela about her past as Prasa chairperson.
Makhubela was appointed as the chairperson of the passenger rail agency’s interim board in October 2017.
After being interviewed by the Judicial Services Commission (JSC) she was also appointed a High Court judge in Gauteng at the start of 2018, as Fin24 previously reported.
She resigned from Prasa’s board two months later, after concerns around her dual roles. Lobby group #UniteBehind however has lodged a complaint against her with the JSC last year, over concerns that she might have held dual roles. The matter is still before the JSC.