• The Judicial Conduct Tribunal considering allegations against Judge Tintswalo Annah Nana Makhubele continued on Thursday, with a third witness, Fani Dingiswayo, giving testimony.
• A central aspect of testimony at the tribunal has been Judge Makhubele’s actions in relation to Siyaya, a corruption-accused company that invoiced Prasa for tens of millions of rands.
• Dingiswayo testified that there were “discrepancies” between the contracts for services rendered and the accompanying invoices.
• His testimony also suggested that Judge Makhubele appeared to act in the interests of Siyaya rather than Prasa.
• The tribunal, which is a consequence of a complaint lodged in 2019 by commuter activist group #UniteBehind, continues on Friday.

The Passenger Rail Agency of South Africa (Prasa) had strong grounds to defend the Siyaya matters, said Fani Dingiswayo at the Judicial Conduct Tribunal on Thursday in Rosebank, Johannesburg. Dingiswayo is the former general manager of Group Legal Services at the rail agency,

Dingiswayo was the third witness to give testimony at the tribunal deciding on the conduct of Judge Tintswalo Annah Nana Makhubele, the former chairperson of Prasa’s interim board of control.

The tribunal, in its second sitting, was recommended three years ago by the Judicial Conduct Committee after activist group #UniteBehind lodged a complaint against Makhubele with the Judicial Service Commission in 2019.

#UniteBehind accuses Makhubele of breaching the separation of powers principle, and of improper conduct while she was interim board chairperson of Prasa. The organisation claims she negotiated and entered into a confidential settlement agreement with Siyaya, a corruption-accused company. In doing so, #UniteBehind argues, she sidelined Prasa’s internal legal team.

The settlement with Siyaya was again the focus of the tribunal on Thursday as Dingiswayo explained why Prasa had opted to defend the matters rather than settle them.

Dingiswayo told the tribunal that Prasa received three summonses in 2015 from Siyaya, and an additional two summonses in 2016, all for invoices that had yet to be settled. He said, “The cumulative claim of the summonses was just over R60-million.”

In the summonses, Dingiswayo said there were “discrepancies” between the contracts for services rendered and the accompanying invoices.

“One of the summonses was claiming an oral agreement and Prasa does not enter into oral agreements. Another claimed a partly written and partly oral agreement. We engaged with project managers [at Prasa] and they did not know about the projects, the invoices, and the services that were said to be rendered,” he said. Dingiswayo said because of this, they decided to defend all the summonses received and appointed Diale Mogashoa Attorneys to “handle all the matters”.

The Siyaya group of companies, according to Dingiswayo, were “one of the most fortunate providers of services to Prasa”. The group of companies benefited from “improperly awarded” contracts by former Prasa group CEO Lucky Montana, who is friends with Siyaya boss Makhensa Mabunda.

Dingiswayo said he allocated the summonses to a “legal advisor” in his team, but because of his “knowledge of the history of Siyaya”, he “stayed close to these matters… to ensure that nothing untoward happened”.

Following Makhubele’s appointment as Prasa interim board chairperson, Dingiswayo said she took an unusually keen interest in the Siyaya matters when there were more pressing issues that required the board’s attention at the rail agency.

The Siyaya matters “were small compared to everything else” Prasa was facing during Makhubele’s tenure, said Dingiswayo. He said Prasa was yet to report the agency’s financials and account for the R26-billion it had received from the government. The agency was also in the middle of litigation related to a R4-billion contract Prasa was trying to set aside, but Dingiswayo said Makhubele paid no attention to these matters, focusing instead on Siyaya.

Advocate Mfundo Salukazana, on behalf of Makhubele, struggled to poke holes in Dingiswayo’s testimony during cross-examination.

Salukazana questioned whether there were reports submitted to Makhubele as the chairperson of the interim board that explicitly mentioned Prasa’s “prospects of success” regarding the Siyaya matters.

Dingiswayo said while the words “prospects of success” were not explicitly used, the evidence in the reports regarding the discrepancies in Siyaya’s summons was telling for anyone with a legal background.

Dingiswayo told the tribunal that an arbitration process with Siyaya had already been agreed upon by the time Makhubele was appointed, and Prasa believed they had a case to defend because Siyaya did not address the discrepancies raised in their claims during the pre-trial proceedings.

It was also during this time that an inquiry into Siyaya’s liquidation was underway. Some Prasa employees were called to appear at the inquiry and Dingiswayo said Makhubele questioned Prasa’s defence of the Siyaya matters based on her understanding that some Prasa employees made concessions at the inquiry. He said, because of this, Makhubele pushed for a settlement rather than a defence of the matters.

Salukazana then questioned Dingiswayo at length about Siyaya’s liquidation process, the relevance of which tribunal leader, retired judge Achmat Jappie, questioned. Jappie reminded all parties in the tribunal to ensure that the questions posed were relevant to determining what happened during Makhubele’s tenure as chairperson of Prasa’s interim board and her appointment as a judge.

The tribunal resumes on Friday at 10am. DM

First published by GroundUp.