Judge says there’s no proof she aided state capture

Suspended Judge Nana Makhubele yesterday denied she had aided and abetted state capture at Passenger Rail Agency of South Africa (Prasa) while she was chair of its interim board.

The allegation was made by Prasa head of legal services Martha Ngoye, who referred to Makhubele’s involvement in a secret settlement agreement with state capture implicated contractor Siyaya, which – had it not been rescinded in court – would have resulted in a R50 million payout.

According to civil society organisation, #UniteBehind, which laid the complaints Makhubele is now facing at the Judicial Conduct Tribunal, Ngoye and a colleague, Fani Dingiswayo, are the “key whistle-blowers”.

The complaints could result in her impeachment.

Makhubele is facing charges that she allegedly committed gross misconduct by being a judge and chair of the Prasa board at the same time. She is facing a further complaint that while at Prasa she furthered the interests of Siyaya by entering into a confidential settlement agreement with it, sidelining her internal legal team.

Makhubele said Ngoye, in her evidence, had “made the bold statement” that she had aided and abetted corruption. “But there is no support for that statement … No evidence that I was motivated by something,” she said.

Makhubele had previously testified that she had been approached by advocate Francois Botes, believing he was acting for the liquidators of Siyaya and not for Siyaya itself.

Botes, however, claims it was Makhubele who approached him.

At one point, when Ngoye initiated proceedings to stop the Siyaya settlement being made an order of court, Botes had given his instructing attorney copies of an SMS exchange between them, and these had been used on the law firm’s letterhead, indicating she had been in contact with the attorney.

Makhubele told the tribunal she had never met the attorney, and the misuse of the SMSes had resulted in her filing a complaint against Botes with the Pretoria Bar Council. “As far as I am concerned, there is not a single piece of evidence that I knew Siyaya’s attorneys,” she said.

“Ngoye presented no evidence of that or proof that I was motivated by personal interest. There is no allegation that I stood to gain from these things. It’s been five years now. If there was any evidence, it would be on the table.”

She said the relationship between the board and the internal legal team, while good when she first took office, had broken down after the suspension of the external legal panel in December 2017.

Ngoye had written a memorandum opposing the decision which was then leaked to #UniteBehind and GroundUp. “They [Ngoye and Dingiswayo] decided to do their own thing. And they wouldn’t consult the board on anything,” she said, alleging they had also misled her about the status of certain investigations.

“They never approached the interim board, collectively or individually, to raise their concerns about their unhappiness about the settlement of Siyaya claims. The only time they raised it was in a letter to Minister [of Higher Education, Science and Innovation Blade] Nzimande, which was copied to the board.”

The tribunal hearing is expected to continue today.