11 March 2024
Judge Nana Makhubele testifying before the Judicial Conduct Tribunal. Archive photo: Masego Mafata
At the 11th hour Thabani Masuku, an advocate, has been brought in to represent suspended Pretoria High Court Judge Nana Makhubele at a Judicial Services Commission tribunal probing allegations against her of gross misconduct, including abetting state capture at PRASA.
Masuku has been part of former President Jacob Zuma’s legal team in his many court applications surrounding arms-deal related corruption charges. He was also a member of axed public protector Busisiwe Mkhawabane’s legal team.
At the beginning of the inquiry, Makhubele was represented by Vincent Maleka, an advocate instructed by Mabuza Attorneys. But both Maleka and Mabuza Attorneys withdrew following a protracted battle with the State Attorney over payment, which resulted in several delays.
Since then she has been assisted by Mtshepo Mobeng from the State Attorney’s office, although Makhubele has repeatedly during her evidence and cross examination said that she had not properly consulted Mobeng and considered herself to be “unrepresented”. Nevertheless Mobeng continues to sit next to Makhubele, and on Monday she addressed the tribunal.
On Monday, when the tribunal resumed after adjourning in February at the request of Makhubele, so that she could call one last witness, it was placed on record that advocates Masuku and Menzi Simelane, who had been briefed by the State Attorney, were only to be available on Wednesday.
Makhubele wished to call a clerk from the Pretoria High Court as a witness.
But Mobeng told the tribunal that the clerk’s statement they had now received did not accord with Makhubele’s version of events. What the clerk had said in her statement differed from what “we had agreed on as being facts”.
Mobeng said there was concern that Makhubele might have to cross-examine her own witness, and Makhubele wanted a postponement to Wednesday so that she could take advice from her new legal team.
The tribunal refused. Tribunal president Judge Achmat Jappie questioned why, if the witness was present and available to testify immediately, she could not be called.
“The witness will either say what Judge Makhubele wants her to say or not. And if not, that’s the end of the witness.”
Makhubele said she would then not call the witness.
But, she said, she still wanted an adjournment until Wednesday so that Masuku could “lead her” in re-examination on issues raised during her cross-examination.
The tribunal refused this request as well. Judge Jappie said she had closed her case and that no other evidence would be heard.
Makhubele then asked for a day to collate documentation to submit to the tribunal. Judge Jappie said if she wished to bring anything to the tribunal’s attention, she could do so in her written closing arguments, with documentation attached.
He noted that the evidence leaders had closed their case in July last year and it could not be allowed to “go on and on”.
“I only started giving evidence this year in February,” responded Makhubele. “If you are not prepared to listen to me, if you have heard enough from me, even though I think it’s important, that’s your discretion. Now counsel is available and you don’t want me to have the benefit of having counsel look at that cross examination and re-examine me.”
Judge Jappie previously stated that he wanted to report to the Judicial Service Commission with the tribunal’s findings by April.
On Tuesday, the parties will sort out the record and set dates for the filing of heads of argument and oral argument.
Makhubele is facing possible impeachment following a complaint by #UniteBehind that not only did she sit 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, in that she authorised, in an alleged “secret settlement deal”, payments from PRASA to Siyaya for about R50-million.
After Makhubele left the state owned enterprise, PRASA brought court proceedings to set aside the Siyaya deal.
Makhubele has denied all the allegations against her.