Judge Tintswalo Nana Makhubele was not a judge while she was the chairperson of Prasa’s interim board as she had asked that her judicial appointment be deferred and she clearly indicated that she could not take office in January 2018, but rather in April that year.
This is according to advocate Thabani Masuku, who represented now suspended Judge Makhubele during her closing arguments yesterday before the Judicial Conduct Tribunal.
She is facing a misconduct inquiry by the tribunal which could lead to her impeachment.
It is probing claims of gross misconduct against her which arose from the time when she was the chairperson of Prasa’s interim board, while allegedly also being a judge.
This follows complaints against the judge, including a complaint by civil society organisation #UniteBehind, into allegations of gross misconduct. It claims Judge Makhubele violated the separation of powers principle by serving both as a judge and chairperson of a state-owned entity, Prasa, and that she was at the time involved in litigation between Siyaya Rail Solutions and Prasa.
Advocate Dorian Paver, evidence leader, in closing arguments this week said there is a strong prima facie case that her conduct at Prasa amounts to criminal conduct.
Masuku, in the opening to his argument yesterday, cautioned the tribunal to be fair towards the judge and against allowing the complainants to label her “a criminal”, as she is still a judge and if no wrongdoing is found, she still has to return to the bench.
Masuku said a judge is like any other person who holds public office and at some point must be held accountable for the power that they hold. “They are aware they are regarded with high esteem and private conduct can bring the judiciary in disrepute and they must be held accountable.”
But, he said, she is still a judge whose dignity must be upheld as she may return to her judicial duties if the tribunal cleared her.
“She is accused of many things which are deeply concerning. Even if you conclude she is not guilty, words spoken by the evidence leader will remain engraved in paper and in her heart. Certain words and terms must be spoken with circumspect because words will have lasting effects on her character and judicial process,” Masuku said.
He added that the complainants want the tribunal to conclude that she acted intentionally to elicit an unknown purpose. “There was no evidence to this regard. The complainants did not submit a shred of evidence that there was an intention by her to further an unknown purpose.” Masuku said these allegations against Judge Makhubele were simply made “to throw mud at her, so something will stick”.
“They say she acted in a reckless way without considering Prasa or the judiciary. You speak about a judge, no matter how much you despise her.”
Masuku also referred to Paver who this week said on the face of it, Judge Makhubele committed criminal acts while at Prasa. Masuku commented that it is words like that that which diminish the public’s confidence in judges.
“You must be circumspect about what words you use …” Masuku said these words were just said “for a big show”, which include that Judge Makhubele is a “so-called state capture judge accused of crimes and illicit purposes”.
“This tribunal must be sensitive to how judge treated. Judge Makhubele is not treated fairly,” Masuku said in pointing out that for most of the proceedings, she had to defend herself as the State omitted to pay for her legal representation and she constantly had to raise this issue.
“I’m suggesting gross unfairness. She constantly had to raise the issue of legal representation. This is not a fair way of conducting this hearing.”
Masuku said Judge Makhubele did nothing wrong and she clearly stated to Judge President Dunstan Mlambo that she first wanted to conclude her business with Prasa, before she could serve as a judge. Thus, she made it clear she could not start her duties alongside the other new judges on January 1, 2018, he said.
“From her own mouth she said her appointment in January (2018) would not be in the interests of justice.”
He referred to her interview before the Judicial Service Commission in 2017 to be considered as a judge, which he referred to as “riveting”.
“One of the best interviews. It was a story South Africa could listen to over and over. It was a beautiful story of a woman who moved mountains to get where she is.”