The judge, the big payout and the
A R60m settlement involving Prasa puts the probity of its former chair under scrutiny
High court Judge Tintswalo Makhubele, the former acting chairperson of the Passenger Rail Agency of South Africa (Prasa) board, who asked for a delay before she started active service at the Gauteng division of the high court, is alleged to have used that extra time at the state-owned enterprise to push through a R60-million settlement with a questionable service provider.
The allegations have raised questions about her probity and caused consternation among judges in the division where she started work on June 1 — and where the Prasa-linked litigation is being heard.
It has also raised questions about what happens when new information about a judge comes to light after the Judicial Service Commission (JSC) has made a recommendation for an appointment, but before active service has commenced.
The allegations in court documents in the Mail & Guardian’s possession paint a picture of how Makhubele appeared to act with indecent haste — and against the advice of Prasa’s in-house legal team — to push through the R60-million settlement in respect of payment claims by a group of “Siyaya entities”.
The claims, by Siyaya DB Consulting Engineers and Siyaya Rail Solutions, had been flagged as dodgy by Makhubele’s predecessor, Popo Molefe.
Her actions caused Prasa’s group executive for legal risk and compliance, Martha Ngoye, to say in an affidavit submitted to the high court in Pretoria in April: “I did not understand why [Makhubele] sought to deal with the matters on such an extremely urgent basis.”
In Ngoye’s affidavit Makhubele is accused of barring Prasa’s attorneys of record from discussing the R60-million claim by the controversial Siyaya companies with the parastatal’s internal legal department, sidelining the department on Prasa’s legal strategy for the claim, refusing to hand over documents to them and assuming powers beyond her remit in an attempt to speed up the “secret” arbitration settlement deal between Prasa and Siyaya entities.
Ngoye’s affidavit was filed in the high court in Pretoria on April 3, as Prasa urgently sought to interdict the sheriff of the court from paying Siyaya out.
Ngoye also claimed that Makhubele sent Siyaya’s lawyers text messages stating that Prasa’s legal team had no authority to represent it at a court appearance on March 9, where the arbitration settlement to pay the R60-million was to be made an order of the court.
The orders were eventually granted on an unopposed basis, after acting judge John Holland-Muter ruled that law firm Bowmans (formerly Bowman Gilfillan) did not have the authority to represent Prasa, despite its being briefed by the parastatal’s legal department.
In a March 8 letter to Bowmans, Siyaya’s lawyers Mathopo Attorneys questioned the firm’s authority to represent Prasa. They also included text messages, allegedly from