Judge Makhubele says there’s no evidence she aided state capture at PRASA

The Judicial Conduct Tribunal is hearing evidence about Judge Tintswalo Annah Nana Makhubele’s conduct as PRASA interim board chairperson. Archive photo: Masego Mafata

• Judge Nana Makhubele says there is no evidence that she aided and abetted state capture at PRASA.
• The suspended judge says there was no evidence that she stood to gain personally from the settlement agreement with Siyaya.
• Judge Makhubele is expected to finish her evidence before the Judicial Conduct Tribunal on Friday, after which she will be cross-examined by evidence leader Elaine Harrison.

Suspended Judge Nana Makhubele on Thursday denied that she had aided and abetted state capture at PRASA while she was chair of the interim board.

The allegation was made by PRASA Head of Legal Services Martha Ngoye, who referred to Makhubele’s involvement in a secret settlement agreement with state-capture implicated contractor Siyaya, which had it not been rescinded in court would have resulted in a R50-million payout.

According to #UniteBehind, which laid the complaints against Makhubele that she is now facing at the Judicial Conduct Tribunal, Ngoye and a colleague, Fani Dingiswayo, are the “key whistleblowers”. The complaints could result in impeachment.

Makhubele is facing charges that she committed gross misconduct by being a judge and the chairperson of the PRASA board at the same time.

She is facing a further complaint that while at PRASA she furthered the interests of Siyaya by entering into a confidential settlement agreement with it, sidelining her internal legal team.

Makhubele said Ngoye, in her evidence, had “made the bold statement” that she had aided and abetted corruption.

“But there is no support for that statement … no evidence that I was motivated by something,” said Makhubele.

She had previously testified that she had been approached by advocate Francois Botes, believing he was acting for the liquidators of Siyaya and not for Siyaya itself.

Botes, however, claims that it was Makhubele who approached him.

At one point, when Ngoye initiated proceedings to stop the Siyaya settlement being made an order of court, Botes had given his instructing attorney copies of an SMS exchange between them, and these had been used on the attorney firm’s letterhead, indicating that she had been in contact with the attorney.

Makhubele told the tribunal that she had never met the attorney, and the misuse of the SMSes had resulted in her filing a complaint against Botes with the Pretoria Bar Council.

“As far as I am concerned there is not a single piece of evidence that I knew Siyaya’s attorneys. Ngoye presented no evidence of that or proof that I was motivated by personal interest. There is no allegation that I stood to gain from these things. It’s been five years now. If there was any evidence, it would be on the table,” she said.

She said the relationship between the board and the internal legal team, while good when she first took office, had broken down after the suspension of the external legal panel in December 2017.

Ngoye had written a memorandum opposing the decision which was then leaked to #UniteBehind and GroundUp.

“They [Ngoye and Dingiswayo] decided to do their own thing. And they wouldn’t consult the board on anything,” she said, alleging that they had also misled her about the status of certain investigations.

“They never approached the interim board, collectively or individually, to raise their concerns about their unhappiness about the settlement of Siyaya claims. The only time they raised it was in a letter to Minister Nzimande, which was copied to the board.”

Makhubele said after PRASA (through Ngoye) had made a court application to rescind the Siyaya settlement, Botes had offered to get her an attorney in case she was joined as a party to the proceedings.

“I am telling you this to indicate the malicious behaviour of Botes,” she said. “I sent documents to the attorney which Botes then used in his evidence before the State Capture commission, as though it was things I had spoken to him about.”

She said she then realised that the same attorney had approached her in 2017 asking for her intervention on behalf of Siyaya liquidators.

“I informed Botes. He offered to do more damage control but at the same time getting me deeper in the hole,” she said.

She said Botes had told her the application was not going ahead. The liquidators were not going to oppose the PRASA rescission application and they were happy to go back to arbitration, and so there was no reason for her to get involved in the case. It would be removed from the roll.

“At the end of November 2018, it came as a surprise when I heard a judgment being discussed on the radio where the judge had made adverse findings against me,” Makhubele said.

She said she had laid a complaint against the judge but it had been summarily dismissed. She was now appealing against that.

The Tribunal hearing is expected to continue on Friday.

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