Judge Makhubele is not fit to be a judge, says #UniteBehind

Suspended Judge Nana Makhubele is not fit to be a judge, #UniteBehind has argued before the Judicial Conduct Tribunal probing her behaviour.

• The Judicial Conduct Tribunal probing the conduct of Judge Nana Makhubele is wrapping up its business.
• All parties have made written submissions and oral argument is expected to be heard later this month.
• Makhubele is accused of chairing the PRASA board while being a judge, and of involving herself in “state capture”.
• Activist organisation #UniteBehind says she did not respect the law and she lied to cover her mistakes.

The conduct of suspended Gauteng Judge Nana Makhubele has demonstrated that she is not fit to be a judge, #UniteBehind says in its submissions to the Judicial Conduct Tribunal considering the gross misconduct charges the organisation laid against her.

“Judges must respect the law. Judge Makhubele did not. They must make decisions based on all relevant information. Judge Makhubele did not. Judges must listen to others. Judge Makhubele did not. Judges must not lie to cover their mistakes. Judge Makhubele did,” lawyers acting for #UniteBehind said in written argument.

Makhubele is facing possible impeachment following a complaint by #UniteBehind that she sat as a judge at the same time that she was chair of the PRASA interim board, and that she involved herself in State Capture when she allegedly authorised a “secret settlement deal” involving payments from PRASA to Siyaya for about R56-million

After hearing evidence over several months, the tribunal, which is chaired by retired Judge Achmat Jappie, is wrapping up its business. All parties have made written submissions and oral argument is expected to be heard later this month.

Both #UniteBehind and the evidence leader, KwaZulu-Natal director of Public Prosecutions Elaine Harrison, say the evidence has proved Judge Makhubele’s guilt on both charges.

“Her story is a tragic one. She had a career of great promise. She was a role model for young lawyers. But now, for whatever reason, her time at PRASA and the pressures of this tribunal revealed she does not have the qualities required of a judge,” #UniteBehind says.

“She showed herself to be, at best, weak-willed, subservient to the executive, dishonest, obstructive and prideful. At worst, she acted to further an improper purpose.”

Evidence before the tribunal was that Makhubele was recommended for judicial office in October 2017- the same month she took up the PRASA chair position.

While she was expected to begin her judicial duties on 1 January 2018, she did not arrive for work to take the oath of office.

Gauteng Judge President Dunstan Mlambo – whose version was supported by an affidavit from his deputy, Judge Aubrey Ledwaba – testified that Makhubele had told him that she chaired the board of the Water Tribunal and was concerned about a clash of interests.

He had reassured her that there was no conflict and put her on the roster for the first term of 2018.

In January, when she failed to arrive for work, he had a meeting with her. Judge Ledwaba was present. Makhubele again said she could not start in January because of Water Tribunal commitments. Mlambo said he had to coax out of her, that she was actually sitting on the PRASA board. She indicated that she could not resign because she didn’t want to “let the minister (of transport) down”.

Makhubele, in her version, claimed she had an arrangement with Mlambo to take up judicial office later in the year. She denied the January meeting, saying it had happened later in the year.

In its submissions, #UniteBehind says Makhubele had not put this version to Mlambo during cross examination, and that she had committed perjury, and while not using the actual words, had accused the provincial leadership of dishonesty and lying.

“There is no doubt that she is guilty of multi-layer misconduct. She refused to do her job and instead worked for and earned a salary from a state-owned company on a board that ultimately answered to the Minister of Transport, the executive.

“She did so at a time when PRASA was embroiled in allegations of corruption and mismanagement. She then lied about her conduct and, by implication, suggested that her Judge President and his deputy had lied to attempt to avoid an adverse finding (against her).”

On her actions while at PRASA, #UniteBehind said the most important point was not that Judge Makhubele made the wrong decision in settling the Siyaya claims. It was how she reached the decision that constituted gross misconduct. She had ignored five separate reports from lawyers advising that PRASA had a defence to the claims and had denied PRASA’s internal legal advisors access to crucial documents.

“She had no intention of taking proper advice. Her mind was made up, for whatever reason, to ignore PRASA’s legal advisors and, by any means necessary, ensure Siyaya got their millions.”

Makhubele’s lawyers insist that she was not a judge during her time at PRASA. They say there was only an “offer of employment”, and she had not accepted her appointment while she “negotiated the terms”.

They say this is not misconduct and brings into question whether the Judicial Service Commission had the authority to discipline her at all.

On the alleged lies, her lawyers say these were “defamatory and scandalous” allegations.

“That she did not put her version to Mlambo is not proof that she lied. It is a desperate attempt to re-engineer another smear campaign against her.”

Regarding her conduct at PRASA, they said there was no finding that she acted dishonestly “to impugn her fitness for judicial office”.

Evidence leader Elaine Harrison labelled Makhubele as an unsatisfactory witness whose “grasp of the law” and the Constitution was wanting, and whose lack of understanding of the legality of her own conduct was “astonishing”.

“She is not only guilty of gross misconduct but has also shown to be grossly incompetent,” Harrison said.

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