Stop Judge Makhubele from milking the state and delaying justice

Judge Tintswalo Annah Nana Makhubele’s hearing at the Judicial Conduct Tribunal was adjourned until 13 November because of a fee dispute with the State Attorney. Archive photo: Masego Mafata

Judge Tintswalo Annah Nana Makhubele was due to give evidence at the Judicial Conduct Tribunal based on complaints that she breached the separation of powers and attempted to facilitate the transfer of money to corrupt companies.

The complaint stems from her time as the chairperson of the interim Board at the Passenger Rail Agency of South Africa (PRASA). #UniteBehind laid a complaint with the Judicial Services Commission (JSC) in January 2019 calling on that body to make a finding of impeachable conduct against her.

Last Tuesday, 1 August, Judge Makhubele unconscionably delayed the Tribunal by claiming that she could not pay her lawyers.

The Judicial Conduct Tribunal has conducted hearings since earlier this year. Over a three-week period all the witnesses called by the evidence leader, Elaine Zungu, the Director of Public Prosecutions in KwaZulu-Natal, had completed their evidence.

Evidence given by Gauteng Judge-President Dunstan Mlambo, Martha Ngoye and Fani Dingiswayo and others, backed up by a raft of documents, point to Judge Makhubele’s guilt. All that still had to happen was for the judge to tell her side of the story.

Judge Makhubele demands that the State Attorney pay her legal bills for conduct which has nothing to do with her duties as a judge but everything to do with damaging the integrity and independence of the judiciary.

Since December 2018, #UniteBehind has spent R1.3-million on legal fees on our complaint to the JSC against Judge Makhubele. We have also spent money on our own staff to research, educate, organise, protest and litigate against corruption at PRASA during her tenure. Volunteers donated time and money while our lawyers worked at reduced rates or, in the case of Halton Cheadle, worked without pay.

#UniteBehind will not receive a single cent of our costs back because complainants against judges must pay their own way. Judge Makhubele has been suspended on full pay (of about R2-million per year) for almost three years. Her lawyers refused to represent her on Tuesday because they are owed “millions”.

In 2020 Judge Makhubele attempted to stop our complaint against her from proceeding via a court application. She then withdrew the court application and tendered costs. We have still not received payment for our expenses in defending the application. She owes #UniteBehind almost R100,000 and is insisting that the State Attorney pays these wasted costs.

When she was chairperson of PRASA’s interim board, between October 2017 and March 2018, Judge Makhubele acted in breach of the separation of powers so that she could suspend and, we believe, ultimately halt criminal and civil proceedings against corrupt companies, ANC leaders and deployed cadres, who benefitted from state capture.

In December 2017 #UniteBehind had to bring an urgent application to stop Judge Makhubele and her board from facilitating further corruption at PRASA at the expense of working-class people.

#UniteBehind activists had to apply for an interdict against PRASA and the corrupt goons in its employ, who had assaulted and threatened to kill our activists.

Judge Makhubele seems immune to good advice. In an affidavit submitted to the Tribunal, Gauteng Judge-President Dunstan Mlambo stated under oath that Deputy-Judge President Aubrey Ledwaba “tried to talk sense into” her. However, she refused to resign from the PRASA Board. Judge-President Mlambo reiterated her refusal in his evidence.

Instead, her conduct ensured that Siyaya seized R56-million from PRASA bank accounts, despite it being the proceeds of corruption.

In March 2018, #UniteBehind launched an urgent application to stop this unlawful collusion between Judge Makhubele and Siyaya, owned by the notorious Makhensa Mabunda, from going ahead.

Later in March 2018, Judge Makhubele was forced to resign. She only did so because #UniteBehind exposed a legal opinion which said that the PRASA Board was not legally constituted and that, as a judge, she should consider resigning.

Whistleblowers Martha Ngoye and Fani Dingiswayo, from PRASA’s legal risk and compliance unit, ensured that the then-new Minister of Transport Blade Nzimande gave them permission to recover the money seized by Siyaya and return it to PRASA.

In May 2023, the Judicial Conduct Tribunal concluded three weeks of hearing evidence against Judge Makhubele. She was to be then to be led by a battery of lawyers on 31 July, including advocate Vincent Maleka, a senior counsel.

However, her attorneys, Mabuza Attorneys, have not been paid since February 2023. This is due to a conflict between Judge Makhubele and the State Attorney. The State Attorney had agreed to pay for Judge Makhubele’s legal fees regarding the interim interdict to stop our complaint from going ahead. Judge Makhubele believes that this initial agreement extends to the Judicial Conduct Tribunal, but the State Attorney disagrees.

At the Tribunal on Tuesday, Mabuza Attorneys testified that they will not represent Judge Makhubele further if they and counsel are not paid by the end of September.

After hearing from all parties, the Tribunal adjourned the proceedings until 13 November 2023, allowing Judge Makhubele to resolve the dispute with the State Attorney. The Tribunal ruled emphatically that, even if the dispute has not been resolved, the hearings will continue with or without Judge Makhubele’s representation.

#UniteBehind states unequivocally that it is preferable for Judge Makhubele to receive legal representation in the forthcoming hearings. However, we support the Tribunal’s decision to continue its hearings on 13 November, no matter what. Section 28(2) of the JSC Act holds that the Tribunal may continue in the absence of a respondent or the respondent’s legal representative, “if the Tribunal is satisfied that the respondent was properly informed of the hearing”.

The Tribunal has been planned since 2021 and hearings began in February this year. Judge Makhubele and her legal team should have secured the State Attorney’s approval years ago. Now, when the Tribunal is in its final stages, an issue with legal fees rears its head to further delay justice.

Judge Makhubele’s legal team is extremely expensive. On any day of the Tribunal, she has at least seven attorneys and two advocates represent her. There is no doubt that her legal team cost more than R180,000 per day. (A minimum wage worker would have to work for three years to earn that amount.)

The State Attorney cannot be used as an ATM by state capture-accused officials. When there is a case to answer for corruption or related crimes, the state must refuse payment.

From the criminally convicted former president Jacob Zuma to the suspended and impeached Public Protector and suspended Western Cape Judge President John Hlophe, legal proceedings have been deliberately delayed and stymied by fee disputes. The same is now true for Judge Makhubele. Such disputes should not be a barrier to justice and cannot be used as a delaying tactic.

Access to justice is a fundamental right enshrined in our Constitution and international law. Exclusion from justice because of costs remains the lot of the majority of urban and rural working-class people in our country. Even middle-class people cannot find justice against corporations or the state for the same reason. In our country, there is one class of people who treat the state as their piggybank: people such as Judge Makhubele who refuse to face justice.

Zackie Achmat and Zukiswa Vuka are leaders of #UniteBehind.

Opinions expressed are not necessarily those of GroundIUp.

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