The Judicial Conduct Tribunal against Judge Tintswalo Makhubele resumed on Monday, May 8, in Rosebank, Johannesburg. The tribunal had been adjourned in February, and whistleblower Martha Ngoye took the stand as the second witness. Ngoye has been suspended as head of legal, risk and compliance at the Passenger Rail Agency South Africa (Prasa).
The first witness was Gauteng High Court Judge President Dunstan Mlambo. The tribunal is investigating Makhubele’s conduct during her tenure as chairperson of Prasa’s interim board. The allegations against Makhubele include breaching the separation of powers principle and engaging in improper conduct. The organisation #UniteBehind also accused her of negotiating and entering into a confidential settlement agreement with representatives of corruption-accused company Siyaya and sidelining Prasa’s internal legal team.
The Judicial Conduct Committee recommended a Judicial Conduct Tribunal in March 2020 following #UniteBehind’s complaint to the Judicial Service Commission in January 2019. During cross-examination of Ngoye, Advocate Vincent Maleka, acting for Makhubele, stated that Makhubele was carrying out the duties and responsibilities expected of her as interim board chairperson. Included in the decisions taken by the interim board at the time was the suspension of the legal panel, a move Ngoye criticised in her testimony at the Tribunal’s last sitting.
Maleka argued that the legal panel, a list of law firms used by Prasa, was found to be “improperly constituted” by the Auditor-General, and irregular expenditure by Prasa was raised when enlisting the services of firms included on the panel. Ngoye conceded there were issues with the legal panel, hence her department’s efforts to rectify them by attempting to convene to appoint a legal panel that met the required criteria.
Ngoye said when the board suspended the legal panel “with immediate effect” during Makhubele’s tenure, there was no clear direction in the form of a “signed resolution” that instructed her department on legal service procurement. Ngoye added, instead, her department received an unsigned excerpt from a document detailing a discussion during a board meeting that stated legal services were to be procured through the supply chain management process and in consultation with the chairperson of the board.
This decision, according to her, resulted in the sidelining of the legal department as well as a confidential settlement agreement with representatives of Siyaya. She told the Tribunal that despite hearing from Prasa’s business unit that no money was owed to Siyaya, and the rail agency had a strong case against it in court, there were plans for a “secret settlement” with Siyaya, which included a payment of about R56 million.
Maleka challenged Ngoye’s claim the settlement was a secret, saying it had been discussed with then-Prasa group CEO Lindekhaya Zide, and Diale Mogashoa Attorneys, who were enlisted by Makhubele to represent the organisation in the matter. That Ngoye was not informed about the settlement did not mean it was a secret, he argued.
Asked by Maleka whether she believed Makhubele “aided and abetted corruption at Prasa”, Ngoye responded: “The Siyaya transaction and the settlement thereof is tantamount to a corrupt transaction … I am saying yes.”Meanwhile, #UniteBehind’s legal officer and director, Joseph Mayson, said the organisation was confident evidence would reveal Makhubele’s conduct as interim board chairperson was “unbecoming of a judge”. The Tribunal continues on Tuesday.
Mboma Mboma