No instruction to pay Siyaya, Makhubele argues at tribunal

Judge Tintswalo Annah Nana Makhubele did not instruct anyone at the Passenger Rail Agency of SA (Prasa), directly or through attorneys, to pay a settlement to corruption-accused company Siyaya.

This was according to advocate Vincent Maleka, acting for Makhubele at the Judicial Conduct Tribunal being held in Rosebank in Johannesburg on her alleged misconduct during her tenure as Prasa’s interim board chair.

Tuesday was the second day of the second sitting of the tribunal, which was recommended three years ago by the Judicial Conduct Committee (JCC) after activist group #UniteBehind lodged a complaint against Makhubele with the Judicial Service Commission (JSC) in 2019.

#UniteBehind accused Makhubele of breaching the separation of powers principle and of improper conduct while she was interim board chair. It also claimed she had entered into a confidential settlement agreement with Siyaya.

When Makhubele was appointed as interim board chair in October 2017, the rail agency’s legal department had already received summonses from Siyaya and its subsidiary companies, including Siyaya DB Consulting Engineers, for outstanding payments. Contracts with Siyaya and its subsidiaries were the subject of a number of investigations.

Prasa’s suspended head of legal, risk and compliance, Martha Ngoye, previously told the tribunal that Prasa’s legal department and the responsible managers within Prasa’s business units had decided to defend the summonses and handed them over to Diale Mogashoa Attorneys, who had been appointed to act on behalf of the rail agency. (Ngoye has won an arbitration ruling against her dismissal, but Prasa has appealed the ruling.)

Ngoye told the tribunal that Makhubele said she was “saddled” with Siyaya and had to be engaged first with all matters related to the company.

According to Ngoye, the decision to defend Siyaya’s summons was then abandoned for a settlement. This occurred “without consulting” Prasa’s legal department. In March 2018, Ngoye and her team learnt that Prasa would be making a payment of about R56m to Siyaya.

A public outcry prompted the minister of transport to permit a rescission of the settlement, leading Ngoye to successfully apply for an urgent interdict to stop the payment.

Acting for Makhubele, Maleka rebutted Ngoye’s testimony that the R56m settlement was paid under Makhubele’s instruction.

Maleka said documents before the tribunal showed no mention of such an instruction from Makhubele. Ngoye refuted this under Maleka’s cross-examination, saying Makhubele was “instrumental in ensuring that the settlement happens” and was very involved in giving instructions about the settlement to former acting group CEOs Lindikhaya Zide and Cromet Molepo, and to Diale Mogashoa Attorneys.

Maleka argued that the terms of settlement were discussed and concluded by Diale Mogashoa Attorneys for Prasa and Mathopa Attorneys, who acted on behalf of Siyaya, in December 2017.

But Ngoye referred to an email sent to Diale Mogashoa Attorneys by Mathopa Attorneys in which Mathopa Attorneys accused Diale Mogashoa Attorneys of acting inconsistently with Prasa’s instructions.

She said this gave her “the impression” that Mathopa had Prasa’s internal information “at his disposal”.

Maleka questioned Ngoye on whether she raised this issue with Diale Mogashoa Attorneys, to which Ngoye responded by saying she did not because she felt the law firm was conflicted in the matter.

“We requested Diale Mogashoa to sign a notice of withdrawal,” she said, adding that Bowmans was instructed to act on Prasa’s behalf to oppose the settlement order.

The tribunal resumes on Wednesday.

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