Judge Makhubele’s settlement with Siyaya lawful, tribunal hears

Suspended Judge Tintswalo Makhubele did not act unlawfully when she settled with Siyaya, the company accused of corruption, while she was chairperson of Prasa. This was the submission made during the closing arguments of the Judicial Conduct Tribunal in Rosebank, Johannesburg, which is investigating Makhubele’s alleged misconduct.

Civic organisation #UniteBehind lodged a complaint against her alleging that she violated the separation of powers doctrine by being both a Judge and Chairperson of Prasa in 2017.

A five-year-long battle has come to an end. Parties delivered their closing arguments in another matter looking into alleged misconduct by a Judge.

The suspended Judge’s legal counsel argued that there was no misconduct on the part of Makhubele. She is alleged to have reached out to the counsel for a corruption-accused company, Siyaya which was in litigation with Prasa during her tenure as Chairperson of the state-owned company.

Advocate Francois Botes testified before the Tribunal that Makhubele had reached out to him soon after her appointment as Chairperson with a particular interest in the Siyaya matter. The claim was also made that Makhubele settled with the company without the knowledge of Prasa’s legal department.

However, Advocate Menzi Simelane submitted that this was not unlawful and did not violate the Public Finance Management Act.

“A director of a company with the authority to run the affairs of the institution is entitled where the board deems it necessary that certain aspects of the business of the organisation be looked into by a board member. It’s not uncommon. We didn’t break the law, we submitted. There’s no investigation that she broke the law. There was nothing wrong in focusing on the Siyaya matters if it was identified that there was a need to do so. In this case, when approached by Botes to settle these claims, the respondent looked into the issues, identified the issues and acted in the best interests of the company, considered them, went ahead and settled the matter. In terms of the PFMA, there’s nothing wrong with that.”

Makhubele’s legal counsel sought to poke holes in the submissions delivered by the complainants and the Evidence leader.

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Advocate Thabani Masuku says there has been no evidence submitted to the Judicial Conduct Tribunal that Makhubele intentionally aimed to advance illicit purposes during her time at the state-owned entity.

“In paragraph 314 of their submissions, when they have spoken of how, the difficulties they have, this is what they seek the tribunal to draw inference or to conclude that Justice Makhubele acted intentionally to further an illicit, unknown purpose. Let me stop there.

“Is there evidence that Justice Makhubele intentionally or unintentionally furthered an illicit purpose? We submit there was none but that submission sits in the submissions of the complainants. The complainants have not submitted a single shred of evidence that supports that kind of conclusion,” Adv Thabani Masuku explains.

Another issue that the Tribunal will be tasked with determining is whether Makhubele was a Judge during this period. Masuku argues the opposite.

He submitted that there was a Constitutional dilemma that arose after she indicated that she would not commence with her judicial duties on the first of January 2018 despite an appointment certificate being issued.

Makhubele indicated that she would only begin with her duties later in the same year.

Masuku says two appointment processes took place and the appointment made in November with the commencement date of the first of January was not a valid or binding one.

“In our submissions, we say she did not hold the position of a judge. You’ve got to choose. You cannot leave the situation as it is because it’s a constitutional problem but you can’t resolve it without dealing with when exactly was she appointed as a judge. You can’t ignore those two appointment instruments that were issued by the president. The presidential minutes, you can’t ignore them. Can a person who has been offered a letter of appointment, refuse it? That’s the question that Mr Bishop did not engage with.”

But that begs the question, as asked by Tribunal Chairperson, Retired Judge President, Achmat Jappie. “Now the appointment of the first of January, what happened to it?”

The Tribunal will now consider the representations made before it and deliver a ruling which they will announce to the JSC.