Judge says ‘no evidence’ that state capture is helping


By Tania Broughton, GroundUp

Suspended judge Nana Makhubele this week denied that she was complicit in state capture at the Passenger Rail Agency (Prasa) while she was chairman of the interim board.

Prasa’s head of legal services, Martha Ngoye, made the allegation and referred to Makhubele’s involvement in a secret settlement agreement with the contractor Siyaya, who is also involved in state capture. If the court had not later set aside this contract with Siyaya, it would have led to a payout of R50 million.

According to #UniteBehind, which filed the complaint against Makhubele for which she is on trial at the Judicial Conduct Tribunal, Ngoye and a colleague, Fani Dingiswayo, were the “key whistleblowers” in the case. The complaint against her means Makhubele can be placed in a state of accusation.

Makhubele is accused of gross misconduct in that she simultaneously served as judge and chairman of the Prasa board.

Another complaint against her is that, during her term at Prasa, she promoted the interests of Siyaya by entering into a confidential settlement agreement with the company and bypassing her internal legal advisors.

Makhubele argues that Ngoye, in her testimony, made the “bold statement” that her corruption made aid possible.

“But there is no basis for the statement… no evidence that I was motivated by anything,” argued Makhubele.

She testified earlier that she was told by adv. Francois Botes was approached, and that she was under the impression that he acted on behalf of the liquidators of Siyaya – and not Siyaya himself.

However, Botes claims Makhubele approached him.

At one stage, when Ngoye began a process to prevent the Siyaya settlement from being made an order of the court, Botes gave copies of an SMS conversation between them to his instructing lawyer. It was used on the law firm’s letterhead and was an indication that she was in contact with the lawyer.

Makhubele told the tribunal that she had never met the lawyer and that the misuse of the text messages meant that she lodged a complaint against Botes with the Pretoria Bar Council.

“As far as I am concerned, there is not a single proof that I knew Siyaya’s lawyers. Ngoye did not provide any evidence of that nor evidence that I was driven by personal interest. There is no claim that I would benefit from this stuff. It is now five years later. If there was evidence, it would have been on the table,” the judge said.

She says the relationship between the board and Prasa’s internal legal team was good when she accepted the position, but fell apart after the suspension of the external legal panel in December 2017.

Ngoye drew up a memorandum opposing the decision and it was later leaked to #UniteBehind and GroundUp.

“They (Ngoye and Dingiswayo) decided to do their own thing. And they didn’t seek advice on anything,” says Makhubele. According to her, they also misled her about the status of certain investigations.

“They never approached the interim council – individually or collectively – to express their concerns about the settlement of the Siyaya claims. The only time they raised it was in a letter to min. (Blade) Nzimande, with a copy to the council.”

Makhubele says that after Prasa (through Ngoye) submitted a court application to have the Siyaya settlement set aside, Botes offered to get her a lawyer, should she be added as a party to the suit.

“I put it to you to demonstrate Botes’ malicious actions. I sent documents to the lawyer that Botes then used in his testimony before the state capture commission – as if they were things I had talked to him about.”

She says she then realized the same lawyer approached her in 2017 and asked for intervention on behalf of Siyaya’s liquidators.

“I informed Botes. He offered to do further damage control, but at the same time also got me deeper into the hole,” says Makhubele.

Botes apparently told her that the application was no longer proceeding. The liquidators would not oppose the Prasa set-aside application and were content to proceed with a process of arbitration. There was no reason for her to get involved in the issue either. The case would be removed from the roll.

“Toward the end of November 2018, it was a surprise when I heard on the radio that the judge had made negative findings against me,” says Makhubele.

She filed a complaint against the judge, but it was summarily dismissed and she is now appealing the decision.

The case continues.

  • This report was originally posted by GroundUp and is used with permission.