Johannesburg - In a rare move, Deputy Chief Justice Raymond Zondo has issued a directive compelling High Court Judge Tintswalo Makhubele to testify at the State Capture Inquiry.
Zondo decided on Friday after hearing an application by Makhubele's lawyer, Advocate Gift Shakoane, which sought to postpone her appearance.
Makhubele had served as the chairperson of Prasa's interim board and has been implicated by Prasa employees for having interfered in the legal litigation between Prasa and a contractor, Siyaya Rail Solutions.
She was accused of forcing the SOE to negotiate a settlement with Siya instead of taking the legal route.
Makhubele had been scheduled to give evidence on Friday, but her lawyer made a last-minute attempt to ask for a postponement. Zondo appeared frustrated by the fact that Makhubele had not appeared in person to argue for her postponement.
Shakoane attempted to explain that Makhubele had been involved in a car accident on Thursday night and was "too traumatised" to appear before the commission.
Advocate Vas Soni, for the commission's legal team, laid out numerous correspondence between him and Makhubele where she had indicated that she was willing to appear on July 24. Soni and Zondo took issue with the fact that Makhubele had not provided the commission with an affidavit explaining her version of events in three affidavits that implicated her.
Makhubele had also backtracked on her willingness to answer to the three affidavits and said she would only be willing to deal with one affidavit.
Zondo appeared frustrated and at first proposed that Makhubele appear at the inquiry on Saturday since she was not immediately available. Her lawyer said this was also not possible and asked that her appearance be postponed by a month and that she be given a week to submit an affidavit of her defence.
Zondo said he could not understand why Makhubele had not provided the commission with an affidavit when she had months ahead to prepare. He said he was even more disturbed at the fact that Makhubele was a judge and knew well how processes should be followed.
"Why has she not provided an affidavit? This is not a layperson who does not know how to compile an affidavit. You are a judge, you are experienced. There is nothing complex about this. “You say you are ready to provide an affidavit and then you say you are only prepared to deal with one. That can't be acceptable from a judge," Zondo said.
The chairperson said Makhubele's reasons for seeking a postponement were weak and he would have likely dismissed the application and prompted her to proceed giving evidence if she had attended the hearing.
"I have to postpone the hearing because she is not here. I am told that as a result of the incident (accident) she is not in an emotional state that would allow her to be here to give evidence. This has caused the commission a lot of inconvenience, this date was set aside and according to correspondence, she had indicated that she was available.
"The application for postponement had been decided upon before the incident of yesterday. She had intended to apply for a postponement. All the grounds that she relied on in the correspondence do not reveal any merit whatsoever," Zondo said.
Instead of postponing the hearing by a month, as Makhubele had sought, Zondo said he would postpone for a week. He said Makhubele had until Wednesday, July 29, to submit a responding affidavit of the evidence that implicated her.
"I am going to issue a directive that she files the affidavit by close of business next week Wednesday and I am going to postpone to Monday the 3rd of August at 10 am. The commission will have to move hearing other evidence to the following day.
“This will cause an inconvenience, but I am determined that we must hear her evidence. I would not normally do that, issue a directive, against a judge. I expected the notice to be enough, it had been enough for other people who are not judges," the chairperson said.
Zondo reiterated that the commission was on a tight deadline and had to complete its work by the end of the year.
The commission resumes on Monday and will hear the evidence of former police minister Nathi Nhleko.
Political Bureau