Tribunal must decide if Dunstan Mlambo or Nana Makhubele is being honest

Suspended Gauteng judge Nana Makhubele had, by implication, attacked the honesty and credibility of the two most senior judges in the province in an attempt to extricate herself from “the mess” she had put herself in.

This was the submission of evidence leader advocate Dorian Paver before the Judicial Conduct Tribunal probing allegations of gross misconduct against her.

Makhubele is facing possible impeachment following a complaint by #UniteBehind in January 2019 that not only was she appointed as a judge at the same time that she was chair of the Prasa interim board, but she had also involved herself in state capture in connection with matters involving the Siyaya group of companies. It is alleged she authorised a “secret settlement deal” for R56m in payments from Prasa to Siyaya while sidelining the internal legal team.

After hearing evidence over several months, the Judicial Conduct Tribunal (JCT), chaired by retired Judge Achmat Jappie, is wrapping up its business. Final oral arguments commenced on Monday.

While Makhubele did not challenge the evidence of her boss Judge President Dunstan Mlambo — who was supported by an affidavit from his deputy, judge Aubrey Ledwaba — Paver said she had then contradicted their version.

The tribunal, he said, would have to make credibility findings because of these two conflicting versions.

“But you are seasoned judges,” he said to Jappie and Tribunal member Judge Seun Moshidi. “You know the consequences of not putting a version to a witness under cross examination. And we are not dealing with a layperson. She is a judge of the high court. The inference is inescapable.”

Mlambo, in his evidence, said after Makhubele failed to arrive at work on January 1 2018, he had summoned her to his chambers. Ledwaba was present.

He had to extract from her the fact that she was chairing the interim board of Prasa. Makhubele insisted she could not resign because “she did not want to disappoint the minister”.

But in her evidence, Makhubele claimed she had a long-standing agreement with Mlambo — even before she was interviewed for judicial appointment by the Judicial Service Commission in October 2017 — that she could only take up her position later in 2018.

She said the meeting in January “never happened”. She eventually took up judicial office in June 2018.

As advocate Michael Bishop for #UniteBehind said in his later argument on Monday:

“One witness told the truth and one did not.”

Bishop, as did Paver, argued that Mlambo’s version should be accepted.

“There is no incentive for the judge-president (and Ledwaba) to lie. There is an incentive for judge Makhubele to lie,” Bishop said.

He argued that in law, Makhubele had been appointed as a judge from January 1. The fact that at the meeting in mid-January, she refused to take the oath, and start work, meant she was guilty of gross misconduct.

Paver said when considering whether Makhubele was guilty of gross misconduct, the Tribunal had to ask itself the same questions as had been posed in the run-up to the impeachments of now former judges John Hlophe and Nkola Motata.

These would be the following: what would be the attitude of an ordinary person if they were to be tried before them? Had the conduct threatened public confidence in the judiciary?

Makhubele, he said, had been evasive, and verging on aggressive at times during the hearing.

Not only was she guilty of gross misconduct, he said, but also of gross incompetence.

Questionable conduct as Prasa chair

Regarding her conduct at Prasa, Makhubele had blamed her previous lawyer for not putting questions to witnesses during cross examination, Paver said again.

In fact, he said, “this had become her mantra”.

He said the evidence showed her direct involvement in the settlement of the Siyaya claims, even though she had no authority.

There was evidence of dozens of WhatsApp messages and some meetings with advocate Francois Botes, who was acting for Siyaya. At the same time and in contrast, she only had one meeting with Prasa’s internal legal team which had been defending the claims.

The legal team only found out about the settlement when demands for payment were made by Siyaya.

Prasa also suffered a financial crisis in March 2018, when the Sheriff seized R56m from Prasa’s bank account to meet Siyaya’s claims.

However, Prasa’s legal team successfully applied to rescind the judgments.

“That this money was not lost to the public purse was no thanks to [Makhubele]. The sheriff held the money in his bank account, otherwise it would have been lost,” Paver said.

On the events at Prasa, Bishop said there was no evidence of corruption. But that did not matter, and whether Makhabele had acted with the ulterior purpose of reckless disregard, it amounted to gross misconduct.

“I don’t know why she did what she did. Whatever the explanation, she has shown she is not the type of person the public will have confidence in to perform as a judge.”

Makhubele’s legal team is expected to argue on Tuesday morning.

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