Judge Tintswalo Annah Makhubele said there was nothing untoward in her taking up the position of chairperson of the Passenger Rail Agency of South Africa (Prasa), while she was waiting to take up her role as a judge at the Gauteng bench. But on Wednesday, Makhubele had to appear before the Commission of Inquiry into Allegations of State Capture to testify about her role at the agency.

Makhubele appeared at the first evening session of the commission, held on Wednesday 5 August at 5pm at the old Johannesburg Council Chambers. She had appeared on Monday 3 August at the commission, when she requested a postponement of her testimony. This, throughout a protracted day of proceedings, was eventually granted and Makhubele was asked by Zondo to appear again on Wednesday evening. 

Judge Makhubele finally appears – to request a postponement

Makhubele had previously been named in testimony by Martha Ngoye and Fanie Dingiswayo who claimed Makhubele had interfered with the work of Prasa’s legal department, specifically related to the settling of the Siyaya contract which Prasa had been negotiating. 

She is also implicated in testimony from Zackie Achmat, from the activist coalition #UniteBehind, which is still to be heard. 

But Wednesday’s testimony focused on the circumstances of Makhubele becoming a judge and the chairperson at Prasa. 

Off the bat, Makhubele said, “Firstly, I deny I am one of the people found wanting in some of the reports”. She said she was never implicated in any corruption or irregularities at the agency, she was merely there to clarify her role as the chairperson of Prasa and to respond to Ngoye’s allegations that she had interfered with the work of Prasa’s legal team. 

Zondo asked her to talk about the period when she found out she was going to be a judge in Gauteng. According to Makhubele, she had gone for a selection interview in October 2017 and then found out she had been accepted to the bench. 

When asked how she came to hear of the appointment to the board of Prasa, she said that in September 2017, her neighbour Richard Chauke told her that Cabinet minister Joe Maswanganyi, had put out a request for names to be submitted for the board. Makhubele says she then gave Chauke her CV. On 18 October, she saw “my name being mentioned on television that Cabinet approved my name to the board” and only then did the Transport Ministry inform her about her appointment. 

Makhubele says she was informed, “the minister [Joe Maswanganyi] was given four months to constitute a board” and thus this was only an interim position. 

Makhubele had applied for her position on the bench to be deferred from 1 January 2018 to 1 April 2018, to allow her to conclude her legal work and a stint as the chairperson of the Water Tribunal. 

She said then-president Jacob Zuma had already published that she, along with other judges, would start on 1 January of 2018, but she had corresponded with the Justice Ministry about her situation. 

She said that in 2018 #UniteBehind raised concerns about whether she had a dual role at this point – as a judge and as chairperson of the interim board of Prasa. But by then, Zuma – who had appointed her to the judiciary – was removed and she needed to wait for the state legal advisers to tell her whether the new president, Cyril Ramaphosa, could change her starting date to April. 

Makhubele said she had written to Gauteng Judge President Dunstan Mlambo and Justice Minister Michael Masutha asking if she would be allowed to become a judge. 

Their response, Makhubele said, was they could not “risk putting her on the bench until the controversy is over”. By March 2018, Makhubele had resigned from Prasa in anticipation of starting on the bench, but this did not immediately happen. 

“So I did nothing in April, nothing in May… so mid-May, President Ramaphosa took a decision,” she said. Makhubele was finally allowed to take up her seat on the bench on 1 June 2018. 

Zondo asked her if she thought it was acceptable to take on a new role while she was waiting to become a judge. She insisted that Mlambo did not give her permission to go to Prasa – this was purely an “economic decision” as she had been informed the interim board would only be around for four months, so she had time to do this while she finished up her legal work. 

“To me, there would be still something strange about taking the Prasa job,” said Zondo. 

Makhubele said as far as she knew, she had until the end of March to complete her business and, “as far as I know, there was no prohibition – and I had a need”. 

Zondo asked her about the allegation made by advocate Francois Botes to the commission that Makhubele told him that she had been appointed by Zuma to the board. Makhubele replied, “It’s also strange that someone would make this kind of allegation to me.” She said she did not know Zuma nor had she met him. The only time she had been in the same room as him was when Nkosazana Dlamini Zuma had been installed as chancellor of the University of Limpopo in 2019. 

When Zondo asked about her role at Prasa and the relationship she had with Ngoye and Dingiswayo, she said it started very well, until the Prasa legal panel had been suspended and the Siyaya contract matter, in which Ngoye had accused Makhubele of overruling her and settling with the company, which the legal team had not wanted to do. 

Read from GroundUp: Court puts the brakes on R56-million payment to Siyaya

Following Ngoye’s “critical” report on the Siyaya matter, Makhubele said the report was leaked to the media and “used by #UniteBehind when they challenged the decisions of the board”. 

#UniteBehind laid a complaint with the Judicial Conduct Committee over the potential conflict of interest and levelled misconduct charges against her. 

Makhubele said the case involving #UniteBehind is expected to be heard in October and that she had asked for time off work to deal with the complaint and the requirements of the commission. 

Makhubele addressed Ngoye’s complaints and told Zondo, “She only talks about me… she doesn’t talk about herself and the irregularities of her.” Throughout her appearance, Makhubele insisted that she had done nothing wrong, and that there was no mention of her in allegations of wrongdoing. 

Makhubele is expected to file a recusal application against evidence leader advocate Vas Soni by Friday, with the commission’s legal team expected to respond to this by Wednesday next week. That matter is scheduled to be heard when Makhubele next appears on 17 August. The commission continues on Thursday. DM