R56M ATTACHED BY SHERIFF FROM PRASA’S STANDARD BANK ACCOUNT BOARD CHAIRPERSON JUDGE MAKHUBELE CONSPIRED WITH SIYAYA LAWYERS
When the Board of a state-owned entity, unlawfully led by a Judge, facilitates unlawful payments to the companies of a known corrupt person with the support of Executive Management against the advice of their Legal and Finance departments, and, in open defiance of a court challenge to their authority, then the Minister responsible together with Treasury must act. So must the South African Police Service and the Judicial Services Commission. This is not a fictional story. Every day people die on our trains because of this corruption, state capture and maladministration.
#UniteBehind is preparing further legal action against the Interim Board of Control of the Passenger Rail Agency of South Africa led (PRASA) by Justice T.A.N. Makhubele, Natalie Skeepers, Professor John Maluleke, Magdalen Reddy and Xolile George for conspiring to pay Siyaya Rail Infrastructure Solutions and Technology and Siyaya DB Consulting Engineers (in liquidation). Today, we learnt that at least R56m of PRASA money in Standard Bank has been attached by the Sheriff and paid over to attorneys appointed by Siyaya.
Secret Settlement with Siyaya: Together with Acting Group CEO Cromet Molepo, they allowed about R59m to be transferred from their banks and attached by the Sheriff. Justice Makhubele initiated a secret settlement with the Siyaya Group and their legal representatives process by deliberately excluding PRASA’s Legal Department from about mid-December 2017. She made offers to the Siyaya Group in defiance of Court proceedings in the Western Cape High Court which challenges both the Interim Board’s appointment and the 1 December 2017 resolution that purported to give her power to appoint lawyers and facilitate unlawful payments and to obstruct anti-corruption investigations and court matters.
Lying to the Western Cape High Court: In this Court urgent court matter by #UniteBehind and Equal Education launched on 22 December 2017, PRASA executives lied about the status of the resolutionand then supplemented their lie with the “truth” in an affidavit in order to facilitate exit looting. Since 8 February 2018, the PRASA Interim Board of Control were warned by #UniteBehindthat their attempts to pay the Siyaya Group under the guise of an arbitration settlement order would be illegal. Then Acting-Chief Financial Officer, Yvonne Paige (who has since resigned) refused to pay the “settlement agreement” and we imagined all would be fine. Justice Makhubele, her Board and Cromet Molepo were advised of their unlawful actions by Martha Ngoye (the PRASAGroup’s Legal Executive) andFani Dingiswayo on many occasions.
Justice Makhubele’s legal advice says Board decisions unlawful: After #UniteBehind wrote to the President, Chief Justice, the Speaker of Parliament and the Judicial Services Commission among others to alert them to breaches of the separation of power by having an appointed judge serve on the PRASA Board, Justice Makhubele sought legal advice from ENS Africa. Since 28 February 2018, Justice Makhubele and the PRASA Interim Board have known that all their decisions taken between 19 October 2017 and 4 February 2018 have been unlawful.
We understand for the period 19 Octoberto 4 February 2018, there was no representative of the Department of Finance Based (National Treasury) appointed to the Interim Board. In addition, we understand that the Interim Board has been making decisions based on its own rules and procedure … Based on the jurisprudence and legal principles described above, our view our view is that the defect in the composition of the Interim Board (19 October 2017 to 4 February 2018) and possibly also the Interim Boards application of its own quorum and majority voting rules, are all likely to be considered material non-compliance with the requirement of the Legal Succession Act, if challenged, affecting the validity of decisions taken by the Interim Board during the period of its tenure.(Paragraph 6.7. ENSafrica Legal Advice dated 28 February 2018)
Since 28 February 2018, Justice Makhubele and members PRASA Interim Board have been aware that their resolution of 1 December 2017 was unlawful. And, there was no “if” in the legal challenge to its validity, #UniteBehind and Equal Education have challenged its legality. As an officer of the court and a judge, Justice Makhubele ought to have informed the Western Cape High Court of the legal advice she received and suspended any implementation of the decision. PRASA Board did nothing of the sort, instead, they hastened to facilitate the payments to Siyaya through an order of court.
Conspiring with Siyaya attorneys against PRASA’s lawyers: On 9 March 2018, PRASA’s attorneys opposed Siyaya’s attempt to make the settlement agreed with the consent of the arbitrator an order of court because PRASA finance had refused to pay. PRASA ‘s Legal Department learnt of the Siyaya legal action by accident on 5 March 2018 and moved to oppose the order of court. Instead of following legal advice from PRASA attorneys Justice Makhubele responded to the Siyaya attorneys in a text message saying: “Those attorneys [opposing the payment of R59m] have no authority. PRASA Legal Panel has been suspended since 1 December 2017.” This knowingly invokes what Justice Makhubele knew to be an unlawful resolution from her own legal advice and a resolution that is under challenge in the court’s as justification to pay Siyaya. There can be no lawful explanation of why the attorneys for Siyaya had direct access to Justice Makhubeleagainst PRASA and the public’s interest.
Legal advice to tender her resignation:ENSafrica found that since 1 January 2018, Advocate Makhubele SC has been a judge governed by the Judicial Services Commission Act (No.4 of 1999) and the Code of Judicial Conduct issued under it. The specific legal advice given to Justice Makhubele on 28 February 2018 stated the following:
And, we would note, the longer the Chairperson remains a member of the Interim Board, without tendering her resignation and winding up her PRASA-related affairs, the greater the risk of a successful constitutional challenge based on the Minister’s failure to terminate the Chairperson’s position so as to avoid the possibility of violating the separation of powers principle.
Justice Makhubele and the PRASA Board did not see fit to inform Minister Blade Nzimande of this legal opinion that unless she resigns he is legally obliged to remove her as PRASA Interim Board Chairperson. It is public knowledge that Justice Makhubele and other PRASA officials met with Minister Nzimande on 12 March 2018, Neither did she inform him that all the decisions taken by PRASA’s Interim Board between 19 October 2017 and 4 February 2018 were “materially non-compliant” that is unlawful.
Justice Makhubele decided to appoint ENSafrica to represent her and the Interim Board against #UniteBehind in our attempts to recover the unlawful payment of about R56m to Siyaya despite the PRASA Legal Department having asked the Board to apply for a recission of the Court order a week ago.