After five months of obdurate silence and four postponement requests, judge Nana Makhubele finally testified at the state capture commission this week, adamantly denying any wrongdoing on her part when she chaired the board of passenger rail agency Prasa in 2017 and 2018.
“I’m going to deny everything. I’m going to show you that I’m never one that takes short cuts,” said the judge.
Her testimony on Wednesday — at the commission’s first evening session as it races towards its court-ordered end date — came as a surprise. The Friday before, Makhubele had been a no-show, reportedly blaming a flat tyre. She then spent all of the following Monday arguing for a postponement.
However, in the face of an increasingly displeased deputy chief justice Raymond Zondo, the chair of the commission, Makhubele for the first time publicly addressed the cloud that has hung over her head since 2017.
Earlier this year, Prasa’s internal lawyers Martha Ngoye and Fani Dingiswayo described to the Zondo commission how, when Makhubele took over as chair, she took an almost immediate and unusually keen interest in certain litigation: four claims against Prasa for about R59m from a set of companies in the Siyaya group, owned by Makhensa Mabunda.
Mabunda was politically connected to Prasa’s former and allegedly corrupt CEO Lucky Montana, and Siyaya had almost R1bn worth of contracts with Prasa.
Makhubele’s early interest was unusual because there were much bigger fires that needed to be put out, and with this particular litigation Prasa had a very good chance of winning, said Dingiswayo.
But Makhubele wanted to settle. Not only did she want to settle, she wanted to do so on terms that were very favourable to Siyaya, the lawyers said.
Summing up their testimony, Zondo said on Wednesday: “And, they say, she sidelined the legal department of Prasa, that is people who have always been handling Prasa matters internally ... and she tells Mr Mogashoa [Madimpe Mogashoa, Prasa’s external attorney on the Siyaya cases]: ‘Don’t deal with the internal legal department any more.’ ”
Zondo continued: “And when you look at the so-called settlement, it’s not a settlement. It’s a capitulation by Prasa. When you look at the amounts that are paid, it’s exactly the same as the amounts that are claimed ... It’s not a compromise or anything.”
Makhubele told the commission it was not true that she showed special interest in Siyaya or that it was the first issue she raised when she arrived at Prasa.
She did not even know about the Siyaya cases when she first met with Ngoye and Dingiswayo, she said.
The claims against Prasa by a set of companies in the Siyaya group
— R59m
She said she did not sideline the legal team; it was they who did not come to meetings on the Siyaya litigation.
Makhubele said the relationship between the internal legal department and the board — not her individually — broke down after the board suspended Prasa’s legal panel and a report on this by Ngoye, highly critical of the move, was leaked to the media.
“They were working against the board. And I have proof,” she said.
She flatly denied that she had instructed Mogashoa not to involve Dingiswayo and Ngoye in the Siyaya litigation.
But why would Mogashoa lie, asked Zondo.
“It just seems strange that an attorney who gets work from Prasa and who is working with the new chairperson of the board of Prasa would say to somebody in the legal department of Prasa, ‘Your chairperson said I mustn’t discuss these matters with you’ when in fact that is not so,” said Zondo.
The amount the state capture commission has cost SA so far
— R700m
The events that gave rise to the controversy around Makhubele happened after she was recommended for appointment as a judge of the high court in 2017, but before she had taken her judicial oath and started work on the bench.
Zondo asked Makhubele why someone who had been recommended for judicial appointment would, instead of winding down her affairs, allow herself to be appointed to chair a state-owned entity — “responsibilities that would be seen as not being consistent with being a judge”.
Makhubele said she “had time” to take the job, having already sought permission from judge president Dunstan Mlambo to delay beginning to work as a judge so she could finish up her work as chair of the Water Tribunal.
And there was no prohibition on her taking up the post, she added.
Zondo referred to a letter Mlambo wrote to the minister of justice — about the Water Tribunal arrangement — but on the other hand said Zondo, Makhubele had told the Pretoria Bar that she was winding down her practice.
She had spoken more generally when she corresponded with the Pretoria Bar, said Makhubele.
Just before he adjourned, Zondo again referred to the judge president’s letter, saying it would be given to Makhubele — as would correspondence from the Water Tribunal that said “there was only one appeal and even that one appeal was heard in 2017 and not in 2018”.
He said Makhubele could look over the correspondence and tell the state capture commission what other Water Tribunal matters she had needed to attend to, and what other matters she had been referring to when she said she was wrapping up her legal practice.
The judiciary has for the most part been untainted by allegations of state capture. In Makhubele’s case, the Judicial Service Commission’s judicial conduct committee has already decided that a misconduct complaint about the events before Zondo warrants an investigation into whether she should be impeached.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.