‘No conflict of interest’ while Judge Makhubele was at Prasa, tribunal hears

Advocate Vincent Maleka on Wednesday put it before the judicial tribunal probing alleged misconduct by Judge Tintswalo Annah Nana Makhubele that his client was not an active judge while at Prasa, and therefore no conflict of interest occurred in that period.

Maleka cross-examined witness Gauteng Judge President Dunstan Mlambo on the second day of the tribunal.

The judge president sat in October 2017 interviews in which Makhubele was a candidate. The now-suspended judge was consequently appointed to start work on 1 January 2018 in the North Gauteng High Court, which she deferred to a later date.

According to Mlambo, Makhubele never informed him or the Judicial Service Commission (JSC) that she took the Prasa board position just a day after she was announced as one of the new judges.

‘Act shows Makhubele was not an active judge’

Maleka said according to the Judicial Services Commission Act, only active or retired judges are prohibited from earning other income outside of their judicial office.

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He read out Article 15 of the Act, which outlines judges’ obligations regarding additional income.

“The Act says a judge performing active service may not receive any fees, remuneration or allowances apart from his other salary, except as so far as royalties for legal books written or edited by a judge are regulated.

“My take is this is related to a judge performing active service. We now know, based on the facts of this case, that Judge Makhubele was not in active service.”

Mlambo agreed with Maleka.

“Yes, she was appointed but not in active service.”

Maleka proceeded: “And we now know she did not receive any salary, and there can hardly be a conflict of interest in relation to whatever fees she might have earned at Prasa as interim board chairperson. Is this correct,” he asked Mlambo.

Mlambo conceded and agreed: “Yes, in that context of what you just read, yes.”

He then interjected: “A thought has just come to me that I’ve admitted there was no conflict of interest regarding whatever income she earned during that period, which is correct.

“But my understanding is that judges who are retired must seek the minister’s permission before they could embark on something of an income in nature.”

Maleka agreed with him but, by that time, the first sign of Makhubele’s satisfaction with Mlambo’s concession flickered through her facial expression.

‘Makhubele should have been upfront about Prasa’

Tribunal deputy chairperson, retired Judge Stanley Moshidi, asked Mlambo why he did not inform the JSC after first learning that Makhubele had no plans to start in January 2018.

“Yesterday the same question was posed to you on why JSC was not informed, and you said it had never been done before.

“Is there a solid reason why you did not take this matter back to the body that interviewed Judge Makhubele?” he asked.

Mlambo said Makhubele was interviewed by the JSC on 4 October 2017, and by that time she already knew that her Prasa appointment was imminent.

He added that any person assuming judicial office would have found it important to mention that and for the JSC to tackle it.

“That didn’t happen. After she was appointed to Prasa on 19 October, she wrote to me the following day asking me to put her start date on hold.

“Had she written to me before her formal appointment as a judge by the President, I would have written to the ministry to ask that her recommendation be put on hold and referred this matter to the JSC to look into.

“Had I known in 2017 about the Prasa matter, the appointment process would not have been set in motion already because it would have come before the JSC to consider if someone who’s about to take up a position at an organisation that was litigating in a court she was about to join was suitable.

It was important for the JSC to consider whether to revisit the facts,” said Mlambo.

President Cyril Ramaphosa suspended Makhubele from her judicial duties at the advice of the JSC in 2020, following a complaint of alleged misconduct against her laid by lobby group #UniteBehind.

Evidence leader Advocate Elaine Zungu told the tribunal that she would no longer call Deputy Judge President Aubrey Ledwaba to the stand following Mlambo’s testimony.

The hearing continues on Thursday.

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