On Monday 3 August the former chairperson of the board of the Passenger Rail Agency of South Africa (Prasa), Judge Tintswalo Annah Nana Makhubele, finally appeared before the Zondo Commission of Inquiry into Allegations of State Capture. Expected to detail what happened at the rail agency during her tenure between October 2017 and March 2018, Makhubele instead again requested a postponement of her testimony.

She had been due to appear at the commission on Friday 24 July, but her testimony was postponed as she was “emotionally unwell” as a result of a car accident the previous evening. 

On Friday, the chairperson of the commission, Deputy Chief Justice Raymond Zondo, ordered Makhubele to submit papers in response to allegations made against her by various people, including Martha Ngoye and Fanie Dingiswayo from the legal department at Prasa, who have previously testified, and Zackie Achmat from the activist coalition #UniteBehind, who is due to testify at the commission. Zondo also ordered Makhubele to appear at the commission on Monday 3 August.  

Zondo riled by fellow judge’s ‘no show’

When Makhubele finally appeared on Monday, her new legal representative, Mxolisi Nxasana, immediately brought a postponement application. Through Nxasana, Makhubele cited several reasons for her request, including that she needed new legal representation, and had not received the transcripts of evidence given by Ngoye and Dingiswayo or Achmat’s affidavit. Nxasana said this was serious and could have an impact on a complaint involving Makhubele laid by #UniteBehind. 

In 2017, Makhubele was appointed to the interim board of Prasa, but at the same time, she was appointed to the bench of the Gauteng High Court. This conflict – serving as a judge while being on the board of a state institution – as well as allegations of improper conduct while at the helm of the board of the rail agency is the basis of the #UniteBehind complaint with the Judicial Conduct Committee (JCC). In March 2020, GroundUp reported that the JCC had ruled the complaint would be referred to the Judicial Conduct Tribunal. 

Makhubele’s testimony before the Zondo commission, Nxasana said, could have “repercussions” on the complaint against her. 

But Zondo said Makhubele has had almost six months to request information about allegations against her, as affidavits from Achmat, Dingiswayo and Ngoye had been given to her in February 2020 already.

“Somebody who was very concerned about these allegations wouldn’t wait for a date… she didn’t furnish the commission with her version all these months,” said the deputy chief justice. 

“If I grant her application, we lose another day,” said Zondo, repeating that the commission had a deadline of March 2021 to complete its work. 

Addressing Zondo, Makhubele took the stand and said there were many factual inaccuracies that needed to be addressed from her legal team’s previous appearance at the commission on Friday 24 July. 

She said her legal team, from a “competent black law firm”, was ridiculed and the media and public were “having a go at her counsel” during their appearance – at which she was not present. 

Makhubele said she was “scared of the perception that I am this arrogant person who is disrespectful [and] refusing to work with this commission”. The judge said she and her family had provided the required affidavits to the commission last week, even working through the night to detail her side of events.

But Zondo said nothing he had heard had changed his mind to not grant a postponement. 

“This matter has serious implications for me,” said Makhubele. 

Zondo adjourned and on resumption dismissed Makhubele’s postponement application. 

Makhubele then asked Zondo for a recusal application against the evidence leader, advocate Vas Soni, whom she claimed told “some untruths about me” on 24 July and in a meeting on 9 July between herself, Soni and commission investigators. She claimed he had only wanted to deal with Ngoye and Dingiswayo’s evidence, but not evidence she had wanted to give at that point. 

When asked by Zondo for his response, Soni said that he had no intention of leading evidence against Makhubele as this was Nxasana’s role. Soni said his role was merely to confirm and to ask her about allegations made in previous testimony.

Zondo asked Makhubele to provide reasons as to why he should grant a recusal application against Soni, adding that a recusal application needs to be submitted by close of business on Friday 7 August. The commission’s legal team needs to respond to Makhubele’s application by close of business on Wednesday 12 August. This recusal application is provisionally set down for 17 August. 

But then, Nxasana told Zondo that he was “reluctantly withdrawing as an attorney on record” and left Makhubele to face Zondo alone. 

Makhubele requested Zondo to adjourn so she could consider her options and said, “the allegations I’m going to make require serious investigations”. She said if Zondo removed Soni as evidence leader then she would drop the recusal application. 

She told Zondo she knew of the commission’s legal team that allegedly worked with Prasa but claimed she didn’t want to “embarrass” Zondo with this information.

Zondo said he would postpone the day’s proceedings as it was 15:52 already and the day had only dealt with the postponement application. Zondo asked the commission staff to provide Makhubele with bundles of documents she required and said her testimony was set down for Wednesday. DM