By Lehlohonolo Lehana.
Gauteng Judge President Dunstan Mlambo expressed great disappointment in Judge Tintswalo Nana Makhubele after she took up a position at the Passenger Rail Agency of SA (Prasa), an entity that was cast in a bad light publicly.
“My biggest disappointment was that there were a number of matters in the [Gauteng High Court] division involving alleged corrupt activities at Prasa,” Mlambo said on Tuesday.
Mlambo was the first witness called during the first day of the three-day Judicial Conduct Tribunal hearing against Makhubele.
The Gauteng judge president outlined what transpired after Makhubele was interviewed by the Judicial Service Commission (JSC) for a position on the High Court in early October 2017.
He told the tribunal he knew Makhubele as a silk at the Pretoria Bar but more as an acting judge.
Mlambo said he sent an email to all recommended judges, including Makhubele, informing them that they had to do handovers of all the matters they were involved in to start “clean”.
“When I say clean, [I meant] they have nothing else from an income earning perspective that they are attached to when they start.”
Makhubele was placed at the Pretoria High Court, which she accepted, Mlambo said.
But an issue arose when the duty rosters for January 2018 were issued. Makhubele requested that her starting date be placed on hold because she was involved in “a number of things”, Mlambo said.
Mlambo said Mkhubele requested a meeting, but he asked her to write to him explaining her view on her starting date. He did not receive a response from Makhubele.
Mlambo said he called Makhubele two weeks into January 2018 to follow up on why she had yet to take the oath of office.
A meeting was scheduled where Makhubele informed him that she could not start due to her position at the Water Tribunal, Mlambo said.
“She simply said that she can’t come … I brought up the issue of her interim board chairpersonship at Prasa. I asked if she could not come because she accepted a position based on what I have read in the media.”
Makhubele agreed, he said.
“Her Water Tribunal responsibilities posed no issue. I think the Prasa issue stood in her way in terms of coming to take up the permanent judicial appointment. We realised that we were not able to persuade her.”
Mlambo said he expressed “great disappointment” in Makhubele for accepting the Prasa position, having known from early October 2017 that she had been recommended for permanent judicial office.
Advocate Vincent Maleka SC, who is acting for Makhubele, argued her inability to take office on 1 January 2018 did not suggest any wilfulness or gross negligence relating to the breach of the Code of Conduct.
During most of Mlambo’s cross-examination, Maleka argued the Judicial Services Act and Judicial Code of Conduct, which restricted judges’ extrajudicial work and income, did not apply to Makhubele as she was not yet an “active service” judge.
Maleka highlighted sections of the code of conduct that listed the grounds of judicial misconduct.
“The point I would like to explore with you is that the definition of active service implies that you are performing duties as a judge,” Maleka told Mlambo.
Maleka further quoted another section from the act which stated: “A judge performing active service may not receive in respect of any fees or other remuneration or allowances apart from his or her salary, and any other amount which may be payable to him or her in his or her capacity as a judge.”
Maleka put it to Mlambo this related to a judge who was performing active service.
“We now know on the facts of this case up to this point that Judge Makhubele was not in active service on your understanding?”
Replying, Mlambo said: “Yes, that is my understanding. She was appointed but not in active service.”
Makhubele has been accused of breaching the separation of powers principle by serving as a High Court judge while being the chairperson of Prasa, a position that falls under the executive branch, as well as of improper conduct while Prasa chairperson.
Civil society organisation #UniteBehind lodged a complaint with the Judicial Service Commission three years ago, accusing Makhubele of gross judicial misconduct following her controversial term at Prasa.
Makhubele was also named in the State Capture Commission report.
On Wednesday, Maleka told Mlambo before the tribunal Makhubele did not claim any income, and there could “hardly be a suggestion of a conflict of interest in relating to whatever fees she may have earned at Prasa as the interim chair of the board of control”.
“In the context of what we have read, yes,” Mlambo responded.
Maleka put it to Mlambo there was nothing in the conduct of Makhubele communicated to him which was prejudicial to the independence of the judiciary.
The tribunal continues and watch live proceedings in the video below:
Video Courtesy of JRSA.