Johannesburg - Deputy Chief Justice Raymond Zondo has dismissed the application by former Passenger Rail Agency of SA (Prasa) interim board chair and Judge Nana Makhubele who is currently before the commission into state capture to answer to allegations of wrongdoing against her.
Judge Makhubele has been accused by previous witnesses on Prasa-related testimony of abusing her position as the chairperson of the then interim board to push for controversial payments of contractors.
Her scheduled appearance before the commission last month was postponed after her lawyers indicated that she was traumatised by a tyre burst she had experienced with her car on her way from Limpopo to Pretoria.
Justice Zondo then issued a directive that Judge Makhubele files several affidavits before the commission relating to her tenure at the helm of Prasa by last Wednesday and also directed her to personally appear before the commission of August 3 to testify.
Appearing with her new attorney of record, Mxolisi Nxasana, Judge Makhubele pushed to her testimony further postponed until mid-September in order to secure her chosen senior counsel who was currently busy, and in order to secure a transcript of the evidence of some of the Prasa officials who implicated her.
She highlighted the restrictions of the Covid-19 lockdown, problems with her previous lawyers and her schedule as a judge as being among the obstacles for her to give evidence.
Justice Zondo, who had subpoenaed Judge Makhubele to appear before the commission, said he was inclined to dismiss her application for a postponement.
“We are working under serious constraints in terms of the order of the court to finish our work within a certain time. She has had enough time to really obtain counsel who would be ready to really proceed today, as I see it,” he said.
Nxasana argued that justice would only be done if Judge Mkhubela’s application for a postponement were to be fully heard before Justice Zondo took a final decision on it.
“If the application is dismissed for a postponement to enable her to consult with her legal team, that will mean, basically, she does not have legal representation because, in terms of the rules of the commission she is entitled to legal representation,” Nxasana said.
Nxasana, who was only roped into the case on Saturday, said he would not be able to re-examine Judge Makhubele if she was forced to testify on Monday as there had been no proper consultation between them.
Justice Zondo, however, rejected the plea and ruled that Makhubele had to take the stand and testify, adding that she was legally trained in her own right.
“Although one accepts that even a judge does need legal representation in certain cases, one can’t forget the fact that she is a judge. She is legally trained and also, in the end, the fact that really the matters that will be dealt with will be very factual,” he said.
He pointed out that the commission was scheduled for a number of other witnesses who were lined up to testify before it and that it had already lost time due to Judge Makhubele’s issues.
“I am going to dismiss the application but I will give reasons in due course. The application is dismissed,” he said.
Justice Zondo said he would, at a later stage, indicate whether or not there was good cause for Judge Makhubele not to comply with his directive to file affidavits by Wednesday.
The commission had earlier heard that Judge Makhubele had only filed her affidavit on Thursday morning.
Political Bureau