…By Lola Smith for TDPel Media. An advocate acting for Judge Tintswalo Annah Nana Makhubele has argued that she did not directly or indirectly instruct anyone at the Passenger Rail Agency of South Africa (PRASA) to pay a settlement to corruption-accused company Siyaya.
This statement was made during the Judicial Conduct Tribunal, which was held to investigate allegations of misconduct against Makhubele during her time as PRASA’s interim board chairperson.
This tribunal was recommended three years ago by the Judicial Conduct Committee (JCC) after activist group #UniteBehind lodged a complaint against Makhubele with the Judicial Service Commission (JSC) in 2019.
Background:
When Makhubele was appointed as interim board chairperson in October 2017, the rail agency’s legal department had already received summonses from Siyaya and its subsidiary companies, including Siyaya DB Consulting Engineers for outstanding payments.
Contracts with Siyaya and its subsidiaries were the subject of a number of investigations.
PRASA’s suspended head of legal, risk and compliance, Martha Ngoye, previously told the tribunal that PRASA’s legal department and the responsible managers within PRASA’s business units had decided to defend the summonses and handed them over to Diale Mogashoa Attorneys, who had been appointed to act on behalf of the rail agency.
The tribunal:
During the tribunal, Ngoye claimed that Makhubele instructed all matters related to Siyaya to go through her first.
Ngoye also claimed that the decision to defend Siyaya’s summonses was then abandoned for a settlement, which occurred “without consulting” PRASA’s legal department.
In March 2018, Ngoye and her team learned that PRASA would be making a payment of about R56-million to Siyaya.
A public outcry prompted the Minister of Transport to permit a rescission of the settlement, leading Ngoye to successfully apply for an urgent interdict to stop the payment.
The Advocate’s Statement:
Acting for Makhubele, advocate Vincent Maleka rebutted Ngoye’s testimony that the R56-million settlement was paid under Makhubele’s instruction.
Maleka argued that documents before the tribunal showed no mention of such an instruction from Makhubele.
However, Ngoye refuted this under Maleka’s cross-examination, saying Makhubele was “instrumental in ensuring that the settlement happens” and was very involved in giving instructions about the settlement to former acting group CEOs Lindikhaya Zide and Cromet Molepo, and to Diale Mogashoa Attorneys.
Analysis and Commentaries:
This case shows the importance of conducting independent investigations into allegations of misconduct by public officials.
The fact that the tribunal is being held almost four years after #UniteBehind lodged a complaint against Makhubele highlights the need for timely investigations.
The conflicting statements between Ngoye and Makhubele’s advocate show that the truth may be difficult to ascertain in cases where there are no clear records of instructions or decisions.
Nonetheless, it is important that any allegations of misconduct be thoroughly investigated to maintain public confidence in the judiciary and public institutions.
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