/ 18 March 2018

‘Conflicted’ judge refuses to leave Prasa

Tintswalo Makhubele is hard-pressed to explain why she has continued staying at Prasa as interim board chairperson.
Tintswalo Makhubele is hard-pressed to explain why she has continued staying at Prasa as interim board chairperson.

Unless the president shifts Advocate Tintswalo Makhubele’s appointment as judge to April 1, her continued stay at Passenger Rail Agency of South Africa (Prasa) may be deemed to be in breach of the judicial code of conduct.

Makhubele, one of former president Jacob Zuma’s last appointments to the high court Bench, has been reported to the Judicial Service Commission for accepting an interim appointment as Prasa board chairperson, two weeks after the JSC recommended her for appointment as a judge.

Tintswalo Makhubele is hard-pressed to explain why she has continued staying at Prasa as interim board chairperson. This was despite Zuma’s confirmation of her appointment as a judge in November last year, to come into effect on January 1. Zuma appointed her after the JSC nominated her to the Gauteng Bench in October.

Unless President Cyril Ramaphosa revokes Zuma’s appointment time frames and shifts the appointment to April 1, Makhubele’s continued participation at Prasa may be deemed a breach of the judicial code of conduct.

Her being a judge and working on Prasa’s board may be considered a breach of the separation of powers between the judiciary and the executive. Prasa is a state-owned entity run by the department of transport.

Even a legal opinion Makhubele commissioned on the matter, by law firm ENSafrica (Edward Nathan Sonnenbergs) dated February 28 seen by City Press, confirms that she effectively became a judge on the day of her appointment, although she could be excused because she has not taken “active service”. 

When approached for comment, Makhubele said Prasa was “bound by attorney-client privilege and as such cannot divulge the nature of opinion sought from their attorneys”. Therefore, she did not want to discuss the matter further.

She said her appointment, as well as other members to the interim board, were done by the minister “in consultation with Cabinet (and) any questions in this regard must be directed to the relevant authority”.

Civil society group #UniteBehind wrote to the JSC – a constitutional body mandated to oversee the appointment and removal of judges from the Bench – to complain about Makhubele’s position.

In a letter dated February 27, the JSC asked the complainants to resubmit their grievance in the form of an affidavit.

Makhubele said #UniteBehind made an application to the high court to look into her appointment at Prasa and that it had referred her “perceived conflict of interest” to various government entities. Therefore, she and Prasa “cannot comment on the matter at this stage”.

City Press understands that Makhubele is “reversing” the work of former Prasa board chairperson Popo Molefe, including agreeing to a multimillion rand settlement with a company called Siyaya Consulting Engineers. Molefe had refused to pay the company due to suspicions of irregularities.

City Press heard that in the few months she’s been at Prasa, Makhubele had made interventions that saw Siyaya strike a R58m settlement. The deal had already been made an order of court.

However, media reports this week indicated that the deal would be challenged on the grounds that Makhubele had no authority and that Prasa’s legal department had not been consulted.

Prasa spokesperson Nana Zenani said Transport Minister Blade Nzimande had asked for a detailed report about the matter from Makhubele and the group executive of Prasa’s legal unit.

“This means that all further actions will be dealt with at ministerial level. The minister indicated that he will decide on further action after receiving the necessary advice,” Zenani said.

However, according to documents in City Press’s possession, Makhubela’s case for staying on at Prasa was an “arrangement” she had with Gauteng Judge President Dunstan Mlambo. In a letter to #UniteBehind, he said he had written to Justice and Constitutional Development Minister Tshililo Michael Masutha asking him to petition President Cyril Ramaphosa to defer her appointment to April 1.

In a letter dated January 29 to #UniteBehind, Mlambo said the request to Masutha was “to ensure that by the time (Makhubele’s) appointment takes effect, she will have resigned from all positions she is currently occupying.

“Madam justice has not taken the oath nor has she been paid any salary as a judge,” Mlambo continued.

The group #UniteBehind complained about Makhubele to Zuma on February 12. He was still head of state until Ramaphosa – then the deputy president – took over a few days later, on February 15. In its letter, the group argued that her continued stay at Prasa and the subsequent request for the appointment to be deferred, were both unlawful.

“There is no constitutional or legislative power for the president to revoke, withdraw an appointment permanently or temporarily, or to reappoint a judge without a formal interviewing process through the JSC [and] any such instance must interfere with the separation of powers and the legal principle of life-long tenure”.

There are only two mechanisms for the termination of a judicial appointment, said the group. These are “resignation or removal under section 177 of the Constitution through a process that involves the JSC and the National Assembly”.

The group noted that the JSC formally recommended Makhubele for appointment as a judge in the Gauteng High Court following her interview before the commission on October 5 last year. And yet, on October 19 last year, then-transport minister Joe Maswanganyi appointed Makhubele to Prasa’s board “until further notice”.

The group said Maswanganyi seemed unconcerned that Makhubele had already been recommended for appointment as a judge. Two weeks later, Zuma confirmed Makhubele’s appointment as judge.

#UniteBehind said Makhubele continued in her Prasa role, “despite the fact that she had been allocated matters on the roll for February 3.”

On February 6, Prasa’s board members failed to appear before Parliament’s portfolio committee on transport, resulting in MPs deciding to subpoena the board to show up.

Committee chairperson Dikeledi Magadzi told City Press yesterday the subpoena was suspended when Makhubele managed to bring her team before the committee the following week, on February 13.

At that meeting, the committee heard that Makhubele would start her duties as a judge on April 1. She said the committee had not seen the ENSafrica legal opinion – which states that the Prasa board had not been properly constituted until February 5, when a representative of Treasury was appointed.

ENSafrica said therefore “the decisions taken by the interim board for the period of the defective composition are likely to be considered legally invalid for lack of authority if challenged in court”.

Magadzi said that concerns about the improper composition of the board were brought to the committee’s attention. As a result, Prasa was unable to present its annual report and send it to Parliament. She said the committee would investigate the activities at Prasa.

“But it will not be like the state capture investigation,” she said.—News24