Heated exchange as judge Makhubele’s still unprepared for hearing

On Thursday, the judicial conduct tribunal hearings probing Gauteng judge Tintswalo Makhubele’s alleged impeachable conduct resumed. Makhubele was expected to give her oral testimony.

However, it was not to be.

An extra lunch hour to prepare

“I think I will require the full lunch break so I can sort myself out with regards to the documents. I am really struggling. Immediately after eating, I will sort out my documents.”

“I must say I did not have enough time to check what I needed to check but the struggle for me will continue.”

With these words, Makhubele displayed the character of a person who had little time to prepare to give oral evidence before a judicial conduct tribunal hearing. By her own admission.

The tribunal is taking place at the Southern Sun Hotel in Rosebank, Johannesburg. Its chairperson is retired Judge President Achmat Jappie. The other tribunal members are retired Judge Seun Moshidi and Advocate Noxolo Maduba-Silevu.

The hearings began with Jappie asking Makhubele if she was ready. He wanted to know if she was ready to start with her testimony in the absence of a legal representative.

Makhubele responded that she would testify, though she had “little time to prepare.”

Negative public image

“I have been labelled many things. I have been labelled arrogant, employing Stalingrad tactics to delay [my testimony] and causing delays for the past four years. This [hearing] does not end with the tribunal,” said Makhubele.

“It goes to my integrity as a person and as a judge. I am still a judge. It is important for me to put everything into perspective and into the record. You will see who caused the delay. I will acknowledge where the delay has been caused by me.”

Makhubele officially began her testimony after taking the prescribed oath. She highlighted that she would rebut the evidence presented last year at the tribunal hearings. She said the evidence was presented by Dunstan Mlambo.  Mlambo is the judge president of the Gauteng division of the High Court.

Secretive about Prasa position

At the heart of her impeachment hearing is her appointment as interim board chairperson of the Passenger Rail Agency of South Africa (Prasa). This as she was also judge at the High Court.

During the testimony, Mlambo said Makhubele was secretive about her appointment as Prasa interim board chairperson. This even after she got a recommendation from the Judicial Service Commission (JSC) to be appointed as a High Court judge.

“When JP [judge president] Mlambo says I strained the image of the judiciary at the time, he did not take you into his confidence. In the correspondence I will refer you to, I will show you that he actively facilitated the redetermination of my date of appointment.

“I will show you the meetings and discussions we had,” said Makhubele. She was referring to discussions as proof that she did not strain the image of the judiciary.

As the proceedings continued, Makhubele seemed to be struggling to find the page she was looking for in her bundle of documents.

Missing documents during hearing

“Chairperson [Jappie], can I have a moment? I think my volumes are… let me just look at what I have been given here,” said Makhubele. She was looking for a letter written by the JSC to the complainant in the matter.

While fiddling through the documents before her, Makhubele said to one of her support staff: “it is not here.”

This caused Jappie to intervene, and he asked Makhubele: “We seem to have a bit of a problem. It is almost 12:30pm. If we take the adjournment now so that you can please find what it is you are looking for. And we resume at 1:15pm, is that fine with you? Or do you want to finish?”

Makhubele said: “I think I will require the full lunch break so I can sort myself out with regards to the documents. I am really struggling. Immediately after eating, I will sort out my documents.”

Jappie then ordered that the tribunal take a one-hour lunch adjournment until 1:30pm.

Following the lunch adjournment, there was a seemingly heated exchange between Makhubele and Moshidi. This when he asked Makhubele to explain why she did not resume her duties as a judge on January 1, 2018. The date was as per her appointment letter.

Requests for more time

Makhubele said she would answer the question at a later stage of her testimony.

“The reason I want to get this cleared is because there is this perception that I have been running around not wanting to testify. If I don’t clarify and put it on record, I don’t know what your attitude is towards me. I will deal with that question when I deal with the witness [evidence] later,” said Makhubele.

Moshidi then interjected: “When we ask you certain things, we are not acting outside our mandate. We regulate the proceedings here. We ask you questions, and you say you will answer later. That is fine. Bear in mind that we are in control of these proceedings and procedures.

Trading verbal blows

“We want to find out exactly what happened. The sooner we do that, the better for everybody in the interests of justice. You are now saying I must wait until you are ready to tell the tribunal why you did not report for duty on January 1 2018.

“If that is your preference that we as the tribunal may not ask you questions at this time when you don’t want to answer, that is something else,” added Moshidi.

Makhubele said: “I didn’t say I didn’t want to answer. I have answered, and I have indicated that I was going to deal with that.”

Adjourned to Friday

Moments later, Makhubele could be seen breathing a sigh of relief and asking the tribunal if she could take a break.

“As I said in the morning, I am not familiar with the documents I have. I need to prepare myself properly. Tomorrow [Friday], I would like to finish my evidence,” said Makhubele.

Jappie accepted Makhubele’s request and adjourned the proceedings to Friday at 10 a.m.

Makhubele is the only witness left to testify before the tribunal.

Improper government role

Makhubele faces impeachment on a complaint from the civil society coalition #UniteBehind. The coalition argues that after Makhubele was appointed a judge on January 1, 2018, she continued her position at a state-owned entity. It says she continued to serve as chairperson on the interim board of Prasa. The double government role was improper, according to #UniteBehind.

According to the complainant, #UniteBehind, Makhubele was nominated by the JSC for appointment as a judge of the Gauteng High Court on October 4, 2017.

Makhubele was appointed Prasa chairperson on October 17, 2017, with a start date of January 1, 2018.

Former president Jacob Zuma appointed Makhubele as a judge on November 2, 2017, with a start date of January 1, 2018.

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