Suspended Gauteng High Court, Pretoria Judge Nana Makhubele yesterday told the Judicial Conduct Tribunal into a misconduct complaint against her that she did not immediately tell Judge President Dunstan Mlambo that she was appointed as chairperson of Prasa’s interim board, as she did not deem it necessary.
During cross-examination by senior State advocate Dorian Paver, Judge Makhubele said Judge Mlambo knew all along that she only wanted to start her new appointment as a judge on April 1, 2018.
According to her, he knew even before she applied for the position of a judge that she had her own cases to conclude, as she was an advocate at the time. He also knew, according to her, that she was at the time chairperson of the Water Tribunal Board and that she wanted to give three months' notice to the board.
Thus, as she had April 1, 2018 in mind to take up her position as a judge, she said she did not see the need to immediately tell Judge Mlambo about her position at Prasa. She said that, in any event, her position at the Prasa interim board would only have been for about three months and come April 2018, she would have been relieved of all her responsibilities and ready to take-up her role as a judge.
Judge Makhubele said she told him on December 15, 2017 about being the newly appointed chairperson of the interim board. But Judge Mlambo, during his evidence, was adamant that he had no idea about this. He testified that he only came to know about this in middle January 2018 ‒ after she was supposed to commence her judicial duties.
Paver extensively questioned her about an email sent to her and other newly appointed judges by Judge Mlambo on October 19, 2017, in which he congratulated them on their appointments. He also directed them in the email that their appointments were as from January 1, 2018.
In the evening after receiving the email, Judge Makhubele received the news that she was appointed as the chairperson to Prasa’s interim board. She sent an email to Judge Mlambo the following day, on October 20, 2017, in which she said she wanted to meet with him. She, however, did not mention her new appointment at Prasa.
Asked why she did not, Judge Makhubele said this was as she and Judge Mlambo had much earlier agreed that she would only take-up her duties in April and she did not really think to mention the Prasa issue at the time.
Judge Makhubele said she was shocked when she saw Judge Mlambo’s email that everyone had to start on January 1, 2018 and she wanted to meet with him just to remind him about their agreement in this regard.
But weeks went by before she sent him another email ‒ early in December 2017 ‒ to ask for a meeting. They eventually met nearly two months after her Prasa appointment - on December 15. This is when she said she told Judge Mlambo about Prasa ‒ which he vehemently denies.
Judge Makhubele also said that when she accepted the Prasa appointment she had no official confirmation from President Cyril Ramaphosa about her appointment as a judge. Paver points out that she was appointed as a judge at that time.
But Judge Makhubele said the president could have still changed his mind about the appointment, as he had done so in other cases.
This prompted Paver to ask her whether she was familiar with Section 174 of the Constitution. Judge Makhubele asked him to “remind her”. A startled-looking Paver reacted: “But you are a judge. You don’t know what it says?”
Judge Makhubele responded: “You are ridiculing me.”
Paver then pointed out that it relates to the process of appointing judges, but he did not take the point further.
The tribunal is investigating 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.
Pretoria News