Judge Makhubele “sidelined and excluded” PRASA’s legal team

Article originally published on GroundUp By Masego Mafata

• Judge Tintswalo Annah Nana Makhubele “sidelined and excluded” the PRASA legal team from the Siyaya matters.
• This is according to testimony by Martha Ngoye, PRASA’s suspended head of legal, risk and compliance, at the Judicial Conduct Tribunal against Judge Tintswalo Annah Nana Makhubele.
• The Tribunal comes almost four years after activist group #UniteBehind lodged a complaint against Judge Makhubele with the Judicial Service Commission.

Judge Tintswalo Annah Nana Makhubele “sidelined and excluded” the legal department at the Passenger Rail Agency of South Africa (PRASA) from dealing with litigation matters involving corruption-accused company Siyaya DB and the rail agency. This was according to the testimony of Martha Ngoye, the suspended head of legal, risk and compliance at the rail agency.

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Ngoye testify against Judge Makhubele

Ngoye was the second witness to give testimony at the Judicial Conduct Tribunal against Judge Makhubele, the former chairperson of PRASA’s interim board of control. The Tribunal entered its third day in Rosebank on Thursday, after two days of testimony from Gauteng High Court Judge President Dunstan Mlambo.

Activist group #UniteBehind lodged a complaint against Judge Makhubele with the Judicial Service Commission (JSC) in 2018, and a Judicial Conduct Tribunal was recommended by the Judicial Conduct Committee (JCC) in March 2020. #UniteBehind have accused Judge Makhubele of breaching the separation of powers principle, and of improper conduct while she was chairperson of PRASA. They allege that Judge Makhubele negotiated and entered into a confidential settlement agreement with representatives of Siyaya, a corruption-accused company, and sidelined PRASA’s internal legal team.

According to Ngoye, Judge Makhubele said that she had been “saddled” with the Siyaya matter and told Ngoye that “anybody that wanted to deal with this matter had to engage with her first”. Ngoye told the Tribunal that of all the legal matters that PRASA was dealing with at the time, the Siyaya matter was the only one to which Judge Makhubele dedicated “a lot of time” and attention.

Ngoye explained how the Siyaya matter came to be, saying PRASA received about five summonses from Siyaya and its subsidiary companies, one of which was Siyaya DB Consulting Engineers, in 2015. Contracts with Siyaya and its subsidiaries were the subject of a number of corruption investigations.

“The summonses were dealt with by the legal advisers within group legal [at PRASA] together with the responsible managers within the business units … Once the team was happy that there was merit to defend the summonses, a law firm was appointed and the summonses handed over to the law firm,” she said. The law firm appointed to act on behalf of PRASA at the time was Diale Mogashoa Attorneys.

Judge Makhubele’s appointment

When Judge Makhubele was appointed as chairperson of the interim board on 19 October 2017, an arbitration process with Siyaya had already been agreed, and PRASA believed they had a case to defend. It was also during this time that Siyaya DB applied for liquidation and a section 417 inquiry into its liquidation was underway. Some PRASA employees were called to appear at the inquiry and PRASA’s attorneys, Diale Mogashoa, kept a watching brief, Ngoye told the Tribunal.

On 14 November, Ngoye said she was called to a meeting with Judge Makhubele and Lindikhaya Zide, then acting group chief executive officer of PRASA. Judge Makhubele asked Ngoye why PRASA’s legal team was defending the Siyaya matters rather than opting for a settlement.

“I was a bit startled. We had a good defence as far as these matters are concerned,” said Ngoye.

During the meeting, Judge Makhubele told Ngoye that she had received a report out of “collegiality” that indicated that former and current PRASA employees told the Siyaya DB liquidation inquiry that PRASA did not have a defence against Siyaya’s claims in their ongoing legal matter. Ngoye told the Tribunal that the former employees Judge Makhubele mentioned were former group CEO Lucky Montana, former senior manager in supply chain management Maishe Bopapa and former chief engineer Daniel Mthimkhulu, who was convicted of fraud last year.

After the meeting, Ngoye said she had not seen the report that Judge Makhubele referenced, so she followed up with PRASA’s attorneys and the employees who allegedly gave concessions to find out what was conceded and how it affected PRASA’s defence. Ngoye told the Tribunal that everyone she spoke to, including current PRASA employees that Makhubele had cited, knew nothing of this.

PRASA

Following a series of emails, memorandums and reports sent between the attorneys, PRASA’s legal department, Judge Makhubele and Zide, Ngoye said she was shocked to learn of an unsigned draft resolution from a board meeting held on 1 December 2017 which, amongst other things, stated that:

• Ngoye must hand over all litigation files relating to the contract or contractors that followed from corruption investigations to PRASA’s company secretary.
• Management should provide a report to the board on the status of the legal panel and provide reasons why the legal department still uses a legal panel that appears to have expired.
• The legal panel is suspended with immediate effect, and any legal services sought must be procured through the supply chain management process and in consultation with the chairperson of the board, on all matters relating to the investigations only.

Ngoye said she tried to challenge and seek clarity about the unsigned resolution because her department could not address PRASA’s legal matters without a legal panel. She told the Tribunal that there was no response from Judge Makhubele.

Ngoye said that after this, PRASA’s legal, risk and compliance team were excluded from the Siyaya matter. But in March 2018, Ngoye and her team heard that PRASA had settled with Siyaya, without consulting them, and learned that PRASA would soon be making a payment of about R56-million to Siyaya.

PRASA’s general manager and Ngoye

Ngoye said that she and PRASA’s general manager for legal services Fani Dingiswayo took action, instructing law firm Bowmans “to act on [PRASA’s] behalf and oppose the order” of the settlement. This was done without the support of the board, and against the instruction of then acting group CEO Cromet Molepo.

According to Ngoye, she heard from Dingiswayo that Judge Makhubele had told Siyaya’s lawyers that Ngoye did not “have authority to have briefed Bowmans because Bowmans is not on the panel”. Ngoye said their opposition to the settlement failed because when Bowmans appeared in court on 9 March, the law firm was told they had no authority to appear on behalf of PRASA, despite being in possession of a power of authority from Ngoye.

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A public outcry prompted the Minister of Transport to permit a rescission of the settlement, leading Ngoye to apply for an urgent interdict to stop the payments. This was successful and prevented the payment to Siyaya.

Earlier in the Tribunal, Judge Moshidi, one of the leaders of the Tribunal, said he was concerned that Ngoye was “singing the same song” as the other PRASA witnesses, yet to be called, in making serious allegations against Judge Makhubele using the same evidence. Questioning the need to call the other witnesses, he said,

“I am anxious to reach finality on this matter”.

The Tribunal continues on Friday.

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