Nana Makhubele ‘could be first judge impeached for State Capture' — #UniteBehind's Zackie Achmat
The Judicial Service Commission (JSC) recently accepted the findings of a Judicial Conduct Tribunal which found Gauteng High Court judge Tintswalo Nana Makhubele guilty of gross misconduct.
This opens the way for the National Assembly to vote on the impeachment of a woman with a once-promising future who tragically became entangled in State Capture at the Passenger Rail Agency of South Africa (Prasa).
#UniteBehind, a coalition of civil society movements, brought the complaint against Makhubele to the JSC.
'For #UniteBehind, it has been a painful journey of six-and-a-half years to hold Judge Nana Makhubele accountable for gross misconduct because of her… attempts at facilitating corruption and State Capture at Prasa. We have had to spend close to R5-million, perhaps more, without any possibility of recovering that cost,' said Zackie Achmat, activist and founder of #UniteBehind.
'Judge Makhubele is probably the first judge… that could be impeached, if Parliament does its work, for facilitating State Capture, and that for us is a major victory.'
Makhubele's crime is that she sat on the Bench while chairing the Prasa interim board and authorising a 'secret settlement deal' involving payments from Prasa to Siyaya of about R56-million.
Contracts with Siyaya and its subsidiaries were the subject of a number of criminal investigations. Makhubele was found to have committed perjury by alleging that she had been given permission to hold off taking up her job in January 2018.
'What we must remember is that this was not simply the facilitation of State Capture. It was also a set of acts… that has led to the destruction of lives in… [terms of a] lack of safety on the rail and the loss of livelihoods, with people losing jobs by not being able to be on time for work because of the destruction of Prasa's management,' Achmat said.
Horns of a dilemma
Makhubele had previously said she had found herself on the horns of this ethical dilemma since she could not resign because she had not wanted to 'let the minister (of transport, Joe Maswanganyi) down'.
Evidence before the tribunal was that Makhubele was recommended for judicial office in October 2017, the month in which she took up the Prasa chair position.
While she had been expected to begin her judicial duties on 1 January 2018, she did not arrive for work to take the oath of office. Gauteng Judge President Dunstan Mlambo – whose version was supported by an affidavit from his deputy, Judge Aubrey Ledwaba – testified that Makhubele had told him that she chaired the board of the Water Tribunal and was concerned about a clash of interests.
He had reassured her that there was no conflict and put her on the roster for the first term of 2018.
Strike three
Judge Makhubele faces the ignominy of being the third judge in post-apartheid South Africa to be removed from the Bench for dishonesty. Former Western Cape judge president John Hlophe and judge Nkola Motata paved the way.
In an announcement on Friday, 1 August, the JSC noted that it had accepted the findings of fact made early by the tribunal, but differed in two respects.
It corrected the section of the JSC Act to include gross misconduct and noted that the conclusion was 'inescapable that the dishonest conduct of Judge Makhubele as described in Part A constitutes a breach of section 14(4)(a) of the JSC Act'.
Furthermore the tribunal, chaired by retired judge Achmat Jappie, found that Makhubele' s conduct constituted a breach of section 14(4)(e) of the Act and that a further concern for the JSC had been that the tribunal had not added the adjective 'gross' to qualify the misconduct of which Judge Makhubele was found guilty.
The commission found that Makhubele was 'guilty of gross misconduct'.
Allegations were that she had failed to sever professional ties with Prasa upon her permanent appointment to the judiciary; that she occupied an office for profit, where she received payment for services, which payment was not authorised by the JSC Act; and that she had requested a special dispensation regarding her appointment.
#UniteBehind's complaint to the JSC highlighted that Makhubele served in a position which 'undermined the independence of the judiciary'.
Her actions also breached the separation of powers. DM
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The Passenger Rail Agency of SA is under fire from DA MP Thamsanqa Mabhena after he was barred from entering its depot to conduct unannounced oversight on Thursday. Image: Jacques Naude / Independent Newspapers DA MP Thamsanqa Mabhena will write to National Assembly Speaker Thoko Didiza after being prevented from doing an unannounced oversight on Passenger Rail Agency of SA's (Prasa's) controversial R7.5 billion train refurbishment programme. Mabhena, accompanied by DA City of Johannesburg councillor Bongani Nkwanyana, arrived at Prasa's Braamfontein depot on Thursday morning, but by midday, he still had not started doing his work. 'We will write to the Speaker just to appraise her of what is happening and secondly, we are going to hold the Prasa executive and board the next time they come to the portfolio committee that when MPs want to do unannounced oversight, there shouldn't be bureaucratic stumbling blocks which are manufactured, put there for us not to be able to do our work,' he explained. According to Mabhena, preventing oversight could have negative consequences for the agency. Video Player is loading. Play Video Play Unmute Current Time 0:00 / Duration -:- Loaded : 0% Stream Type LIVE Seek to live, currently behind live LIVE Remaining Time - 0:00 This is a modal window. Beginning of dialog window. Escape will cancel and close the window. Text Color White Black Red Green Blue Yellow Magenta Cyan Transparency Opaque Semi-Transparent Background Color Black White Red Green Blue Yellow Magenta Cyan Transparency Opaque Semi-Transparent Transparent Window Color Black White Red Green Blue Yellow Magenta Cyan Transparency Transparent Semi-Transparent Opaque Font Size 50% 75% 100% 125% 150% 175% 200% 300% 400% Text Edge Style None Raised Depressed Uniform Dropshadow Font Family Proportional Sans-Serif Monospace Sans-Serif Proportional Serif Monospace Serif Casual Script Small Caps Reset restore all settings to the default values Done Close Modal Dialog End of dialog window. Advertisement Next Stay Close ✕ Ad loading 'What then happens if I, as an MP, who has to vote for the Prasa budget to pass in terms of budget vote 40 of Parliament which contains Prasa transfers, if then I walk out of Parliament and say as an MP I'm not going to vote for this budget because you refused me access to that public entity?' he asked. Mabhena added that institutions of the state must work collaboratively. 'We will write to the chairperson of the Portfolio Committee on Transport (Donald Selamolela) because you cannot say that we need permission when we are doing an unannounced oversight visit, it is critical and very important, and as an established convention of Parliament, it has always been there.' He said currently, Parliament is in a constituency period. 'We are to go and see what is happening, to visit these public entities, so we are fulfilling the work of Parliament during the constituency period as mandated by the Speaker's programme,' added Mabhena. On the subject of his unannounced oversight visit, the general overhaul programme, he said Prasa has spent R2.5bn of the R7.5bn set aside for the yellow and grey fleet to refurbish trains they are not using or have no intention of using, and which are running only on two lines in the Eastern and Western Cape. 'The general overhaul programme is nothing but an elaborate corruption scheme, which is meant to give money to ANC-connected cadres who are benefiting from these contracts, who are milking the state dry by making sure we are refurbishing trains that we are not going to be using. 'Essentially, they are refurbishing these trains just for them to gather dust and to further decay here,' Mabhena complained. He added that Prasa has indicated that it has 3,000 coaches of the yellow and grey fleet, but 400 planned to be refurbished. Prasa, according to Mabhena, plans to scrap 590, of which 200 have already been scrapped. He said scrapping literally meant chopping up the trains for scrap metal and selling them off. 'This means that R2.5bn has gone down the drain,' Mabhena said. He said refurbishing trains that are not going to be used is nothing but corruption that has engulfed Prasa.
