A judicial conduct tribunal has found suspended Gauteng judge Nana Makhubele guilty of gross misconduct for accepting a job to chair the Prasa interim board after having been recommended to serve as a high court judge from January 2018.
The tribunal’s decision must still be considered by the Judicial Service Commission (JSC), which may accept or reject its findings.
The tribunal, chaired by retired KwaZulu-Natal judge president Achmat Jappie, said its unanimous view was that Makhubele’s version — that Gauteng judge president Dunstan Mlambo had consented to a later starting date for her to take up judicial office — was “most unlikely”.
The tribunal said Mlambo had testified that he had met with Makhubele in January together with deputy judge president Aubrey Ledwaba and at the meeting she did not mention her Prasa appointment, saying rather that she could not commence with judicial office because she still had work as president of the Water Tribunal.
Makhubele had denied the meeting happened in January, saying it happened “firstly, in March 2018, [which] later changes to February 2018”, said the tribunal. It said Makhubele’s evidence on the meeting was “not credible and cannot be true”.
We find on the totality of the evidence that the respondent has made herself guilty of gross misconduct — judicial conduct tribunal.
— Judicial conduct tribunal
It was “deliberately misleading, and it was unambiguously insufficient as an explanation for her conduct to cast any doubt on the credible version of Mlambo JP”, said the tribunal.
“Accordingly, we find on the totality of the evidence that the respondent has made herself guilty of gross misconduct.”
The tribunal made a second guilty finding against Makhubele. It said that, through her conduct as chair of Prasa, she had breached section 14(4)(e) of the JSC Act — which prohibits wilful or grossly negligent conduct that is incompatible with judicial office.
The second finding related to a complaint that she had not acted honourably or in a manner befitting a judicial officer when she was chair of Prasa.
The complainant, civil society organisation #UniteBehind, said that during her time as chair she pushed through the settlement of claims worth about R59m with a set of companies in the Siyaya group, owned by Makhensa Mabunda, and on terms very favourable to the group.
Mabunda was politically connected to former Prasa CEO Lucky Montana, who the state capture commission’s report has recommended for prosecution arising out of tenders he awarded at Prasa.
The settlement of the claims went against legal advice from her own legal affairs division, which she sidelined, #UniteBehind alleged.
In its decision, the tribunal said there was no record of the board taking a resolution to settle these claims. “It remains unknown who gave [Makhubele] the mandate to settle the Siyaya matters ... It is to be noted that there is no record of a board meeting where the decision was taken,” said the tribunal.
Further, the evidence showed that, when the then-minister of transport asked for a report concerning the Siyaya matters, Makhubele “unexpectedly resigned and failed to give such a report”.
“The absence of the existence of a record as to who [took the decisions] and how the decisions were taken to settle the Siyaya matters is the basis of the contention that the settlement was done in secret by [Makhubele],” said the tribunal.
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