In hot water: Judge Nana Makhubele at the Judiciary Conduct Tribunal hearing in Joburg this week over complaints relating to her conduct while at the Passenger Rail Agency of South Africa. (Papi Morake/ Gallo Images)
It has been a torrid week for the judiciary, with allegations of impeachable and prisonable wrongdoing against judges falling under the spotlight.
The judge president of the Eastern Cape is being investigated by the Judicial Conduct Committee (JCC) for allegedly sexually harassing a law clerk. A Free State high court has been warned to appear in court on fraud charges involving more than R2 million in March.
And since Tuesday, Gauteng high court judge Nana Makhubele has been appearing before the Judicial Conduct Tribunal as it holds public hearings into a complaint that she violated the Judicial Code of Conduct and the principle of separation of powers by serving both on the bench and the interim board of the Passenger Rail Agency of South Africa (Prasa), and breached the law by furthering corruption.
Makhubele denies the charge of gross misconduct and has testified that she was not sworn as a judge while chairing the board between 19 October 2017 and 16 March 2018.
She also denies that she sought to advance the interests of Siyaya, which secured contracts worth more than R2 billion to install security at stations. These were awarded on Lucky Montana’s watch as CEO and later set aside on suspicion that they were linked to state capture.
The allegations include that she sidelined Prasa’s legal advisors, among them whistleblower Martha Ngoye, to approve the settlement of claims worth close to R60 million with companies in the Siyaya group. It was owned by Makhensa Mabunda, who was politically connected to Montana and involved in the infamous Swifambo deal for “too tall” Spanish locomotives.
The judge, who is represented before the tribunal by Vincent Maleka SC, also disputed that it had jurisdiction over the second part of the complaint because it referred to a period before she acceded to the bench in June 2018.
The allegations regarding Siyaya were aired before the Zondo commission, but Makhubele never completed her testimony to the commission and no finding was made.
On Thursday, Prasa whistleblower Martha Ngoye, the company’s suspended former head of legal affairs, told the tribunal Makhubele had asked her why it was defending a clutch of legal claims by Siyaya when staff members had made important concessions.
Ngoye said it was the first she had heard of concessions and asked Makhubele to share a report regarding the alleged concessions. Makhubele said she could not, because she had received the information on a collegiality basis.
“I was dumb-founded,” Ngoye said of learning that unbeknownst to the legal department employees had conceded points that would make proceeding with litigation unwise.
“I would have expected to have been advised of concessions made by employees of Prasa… Without information I was left wondering what I was dealing with.”
Ngoye said she advised Makhubele that she believed the company had a strong case, but the chairwoman disagreed.
“She said based on the information that she has, we didn’t and we ought to have conceded these matters.”
Ngoye testified that she then approached the colleagues to whom Makhubele attributed the concessions but both firmly denied having made any.
Makhubele was the first female advocate at the Pretoria bar to take silk. She was interviewed by the JSC for a seat on the bench in early October 2017. On 19 October, her appointment as chair of the Prasa board was announced, followed a fortnight later by confirmation by then-president Jacob Zuma’s office of her appointment as a judge.
On Tuesday, Gauteng Judge President Dunstan Mlambo told the tribunal that he raised the conflicting appointments with Makhubele in January 2018 when he called her to a meeting to ask why, unlike the other candidates appointed to the division, she had not taken her oath as a judge.
“I said ‘are you not able to come because you’ve accepted a position, based on what I have read in the media’ and she said ‘yes’. I think I voiced my complete disappointment that she had accepted that appointment, having known from early October that she had been recommended for permanent judicial office,” Mlambo said.
“My biggest disappointment was that there were a number of matters in the division involving alleged corrupt activities at Prasa, and I say that was my biggest disappointment because I specifically said to her: ‘How could you go and join an organisation that was featuring in this division where you are appointed as a judge?’”
Retired judge president Achmat Jappie, who is the president of the tribunal, asked who had first raised the issue of Prasa. Mlambo replied that he did.
“Before that, she had never raised it with you?” Jappie asked.
“Never ever,” Mlambo said.
Elsewhere, the JSC on Tuesday confirmed its Judicial Conduct Committee is investigating a complaint against Eastern Cape Judge President Selby Mbenenge received in early December. The complaint was brought in December by the female clerk of Makhanda high court judge Avinash Govindjee.
The Sunday Times reported that she received a death threat and was redeployed to the office of the superintendent-general in the Midland offices of the Office of the Chief Justice.
Spokeswoman advocate Sesi Baloyi said the JSC was awaiting written submissions from Mbenenge and the complainant.
“The parties have been given the opportunity to make any written submissions by 25 March. The JSC will and is obliged to await the outcome of the JCC process.”
The severity of the allegations prompted Judges Matter to call for Mbenenge to step aside pending the outcome of the process.
Eastern Cape Judge President Selby Mbenenge. (Nelius Rademan/ Foto24/Gallo Images)
“This is an extremely serious complaint and must have had an impact on the functioning of the division,” Judges Matter co-ordinator Alison Tilley said.
“A high court judge president plays an important leadership role in the judiciary and the day-to-day management of the high courts in the province, including allocating cases to judges, drawing up the court roll and finding acting judges where additional capacity is needed.
“Acting as a judge is now considered a de facto requirement for permanent appointment as a judge. Under the circumstances, we believe it would be appropriate for the judge president to step down until the complaint is resolved.”
Though the JSC could ultimately recommend suspension, its statement indicates that it has ruled out doing so at this early stage. Another option is placing the judge president on special leave, which would be a decision only Zondo could make.
There have been repeated calls for judiciary to adopt a formal policy on dealing with sexual harassment. In his interview for the position of chief justice a year ago, Zondo, who was deputy chief justice, confirmed there was none in place but promised to move at speed to remedy the situation.
“I think my colleagues who are in the heads of courts who are also candidates here, I’m quite happy to make sure that on Monday I talk to them and say okay, what, how do we move, let’s move on this,” he said in response to a question from commissioner Nomaswazi Shabangu-Mndawe.
The issue has since been raised again in interviews with aspiring judges but no policy towards a policy has been reported.
“Sexual harassment is an ongoing problem in our country and in the legal profession.
It is well past time that the judiciary adopts an anti-sexual harassment policy which will regulate the conduct of judges and magistrates, protect victims and combat this scourge,” Tilley said.
It was the second time in five days that Judges Matter called for a sitting judge to step aside, the first being an unnamed Free State high court judge who has to appear in court in Kroonstad on 9 March on charges of theft, money laundering and contempt of court.
The charge stems from his handling of a Road Accident Fund claim relating to an accident involving a child in 2000, while he was still a practising attorney.
“We are deeply shocked and very concerned at this turn of events,” Judges Matter said.
“Being named in criminal charges such as these brings the judiciary into disrepute and is not compatible with the office of a judge. We call for his stepping aside until these charges are resolved.”
Tilley said while it was discomfiting to find three judges accused of serious wrongdoing, there was succour and proof of accountability in the fact that the JSC was dealing with the complaints against Mbenenge and Makhubele.
The concern though is the length of time it takes for the JSC to finalise matters.
The complaint against Makhubele was filed by activist group #UniteBehind in January 2019. It was referred to the tribunal in October the following year. The four years it has taken to reach this stage is short compared to the 14 years the misconduct saga of recently suspended Western Cape Judge President John Hlophe has spanned so far.
[/membership]