"Well, Mr Shakoana what is the real reason your client wants a postponement [...] why has she not had a full and proper consultation with her legal team from the time she at least knew that the matter would be coming up today?" asks Deputy Chief Justice Raymond Zondo.
#StateCaptureInquiry Zondo notes that Judge Makhubela was sent a letter on 6 July 2020. He says that "we are not talking about a layperson [...] we are talking about a judge" and asks when attorneys were consulted. Advocate Gift Shakoane SC asks for a moment to check.
Zondo says he is surprised that "even this basic information isn't at hand" and says "this is information that should have been ready" and asks again when the attorneys were instructed. Shakoane says he is informed the attorneys were instructed on 15 July 2020.
#StateCaptureInquiry Zondo says he (previously) asked that he lawyers for Makhubela to be informed that any application for postponement must be made at the @StateCaptureCom and Makhubela should be present.
#StateCaptureInquiry Zondo says he asked and was told Makhubela's lawyers were informed and her lawyers said "one, they were going to be at the hearing but she will not be at the hearing" and asks Shakoane to confirm if that is true.
#StateCaptureInquiry Shakoane says, "When I was contacted the question I asked is whether she is available [...] I got the understanding she wasn't around." He says he was then, later, informed Makhubela had been at Mokopane and when traveling to Pretoria she had a tyre puncture.
Shakoane continues saying he was told Makhubela was en route to Pretoria and the vehicle lost control but she is not injured, it's trauma, and her family members had to come fetch Makhubela and "that was also, when I discussed with the attorney, conveyed to the secretariat".
"Before we proceed I am going to ask you to contact your client," says Zondo. He pauses for a moment. "So that we know what the position is [...] I wanted her to be here because we don't know what the outcome of an application to postpone is going to be," he adds.
"I know that she is not working today because I did speak to the her Judge President some weeks back, once we knew the date, to say to the Judge President: this is the date that has been set aside for your judge to appear before the Commission," says Zondo.
#StateCaptureInquiry "I may need her to explain some of the things in regard to the application for a postponement under oath. There are certain gaps in the [...] letter. You know, there is no affidavit in support of her application for a postponement," says Zondo of Makhubela.
#StateCaptureInquiry Zondo says Makhubela may need to take the stand in relation to the application for a postponement. "I think we need to take an adjournment [...] to enable you to be in touch with her," he tells Shakoane, who asks what specifically he should establish.
Zondo says he wants to know if Makhubela can be here and if her application is refused the @StateCaptureCom #StateCaptureInquiry so he would like Makhubela to be here, and wants Shakoane to establish her position. He adjourns.
Proceedings have resumed. Shakoane reports he made contact with Makhubela who told him "the accident occurred at about 19:30" and Zondo asks if it was an accident or flat tyre. Shakoane says based on the pictures he has seen it looks like it resulted in an accident.
Shakoane says the pictures can be forward to the @StateCaptureCom and Zondo says he thinks that should be done. Shakoane continues saying Makhubela has informed him "she is not emotionally in a state to be able to attend or testify as of today" due to the tyre burst last night.
"She says even the suspension collapsed," he continues. Zondo says, "And there are pictures available of the car." Shakoane confirms and says they can be forwarded, it may be possible to show them on a phone. Zondo says maybe arrangements can be made to immediately print them.
#StateCaptureInquiry "No, I just wanted to get the facts right," says Zondo, of Makhubela going to a doctor. He notes "nevertheless she is traumatised" and seeks a postponement.
Zondo then says the tyre bursting last night did not form the basis of the postponement application, it has come to light now and "one would have expected that she would have informed her lawyers as soon as possible" of the additional matter and consequent emotional trauma.
#StateCaptureInquiry "I think Judge Makhubela has known that the Commission would want her to come and give evidence for at least a number of months," says Zondo.
#StateCaptureInquiry "She was in correspondence with the Commission but as far as I know she certainly didn't apply for leave to cross-examine Ms Ngoye [...] the same procedure would have happened with the affidavit of Mr Dingiswayo of PRASA," says Zondo of Makhubela.
#StateCaptureInquiry Zondo notes other affidavits which were served to Makhubela. He says, "I believe that, at some stage - maybe in February, maybe in March, or even after - there was communication from the legal team to her" regarding an affidavit responding to the allegations.
Zondo adds a qualification, saying he thinks at some stage in June or early July "she did correspond with the Commission and there was an affidavit, I think" including Makhubela's response to some matters. "She may be mentioning other things" relating to Ngoye and Dingiswayo.
Zondo: She has known it was likely she was being asked to come and give evidence. It was a question of when. She has known who the witnesses are who seem to implicate her in some things. She has had their affidavits. If she wanted the transcripts she would have been given them.
#StateCaptureInquiry "It seems to me that if she only instructed her attorneys on the 15th of July she allowed a whole week to lapse after she had become aware of the date and she knew that the date was not far," says Zondo of Makhubela.
Zondo says "And then from the 15th of July to [...] the 21st of July there was no indication that there would be an application for a postponement [...] one would have thought that the time would have been used even to put the application on affidavit, which hasn't happened."
Zondo: We are not dealing with just a layperson. We are dealing with a High Court judge. She knows how important it is to act quickly if you are expected to appear in a court, tribunal, forum. She knows that it's important to act quickly if you are not going to be able to appear.
[MOMENTS EARLIER] #StateCaptureInquiry Zondo says these issues cause him concern about Makhubela and her application, she comes at the last minute and asks for a postponement, which would therefore mean "this whole days is waste" and "we don't have a lot of time."
#StateCaptureInquiry "We are operating under a court order that says we must finish our work in a certain time," says Zondo. Shakoane, in reply, says on the face of it "some steps, almost proactively" appear to have been taken, except for the limited availability of attorneys.
Zondo says of Makhubela "she decided to instruct them late, and that is her decision" and Shakoane says the initial attorneys withdrew due to a conflict. Zondo responds. He lists several events and after 9 July 2020, he says, "She doesn't seem to thereafter act with urgency."
#StateCaptureInquiry As things stand, says Zondo, there does not appear to be any proper explanation from Makhubela why did not appear to act with diligence from 9 July to 21 July 2020. Shakoane begins to retort, referring to contents of a letter.
[OBSERVATION] #StateCaptureInquiry Zondo has repeatedly noted Makhubela is a High Court judge and he has spoken critically about her apparently lax conduct in relation to getting her house in order, regarding her scheduled appearance at the @StateCaptureCom.
Shakoane notes there is something another person is trying to communicate to him. There is a pause and he says, "I am made to understand [...] there was a [...] supplementary affidavit of [a witness] which was promised to be supplied to her but has still not yet been provided."
Zondo says he'd like a member of Makhubela's team to establish if she would be available to appear tomorrow, noting "we have sat on a Saturday before" and it can occur again. He says of a potential delay in her evidence, "I can guarantee I am not going to postpone for a month."
#StateCaptureInquiry Zondo asks Advocate Vas Soni SC about the @StateCaptureCom's legal team's availability. "We are available tomorrow and Sunday," replies Soni. He seeks leave to hand up certain correspondence, from 13 July and 21 July, pertaining to Makhubela's appearance.
#StateCaptureInquiry Zondo says it may be necessary, for the record, for Soni to "go through the history [...] particularly in regard to [...] when were Rule 3.3 notices sent to Judge Makhubela" relating to Ngoye, Dingiswayo and other witnesses.
#StateCaptureInquiry "This was served on Judge Makhubela on the 21st of February 2020," says Soni of the Ngoye affidavit. Dingiswayo's affidavit was served the same day, he says. "Then there are three other affidavits," he says. One was served on 20 February and two on 26 May.
#StateCaptureInquiry Zondo notes Makhubela "had about two months" to respond to the two affidavits served on 26 May (the latest of those served on her, besides a supplementary affivait) and Soni then talks of a consultation with Makhubela on 9 July. A letter follows on 13 July.
#StateCaptureInquiry Soni says he sent this letter of 13 July recorded the consultation of four days prior. He hands up an SMS from a @StateCaptureCom representative to Makhubela, attaching a (supplementary) affidavit.
[SUMMARISED AND NOT VERBATIM] Soni: I will raise some of these matters with Judge Makhubela whenever she comes to testify. I phoned her, she didn't answer the phone, her daughter answered and I said to her daughter: please ask her to phone me. Makhubela has not called since.
#StateCaptureInquiry Soni for the @StateCaptureCom legal team says of the phone call, "That was on the 13th of July. I have not heard a response since. I took the trouble over that weekend to go through all the correspondence and assist in that process."
[MOMENTS EARLIER] #StateCaptureInquiry "And now to be accused of not doing what I had indicated is, is we submit, quite cheeky to say the least," says Soni, hitting back at certain remarks from Shakoane.
Zondo notes Makhubela had two affidavits for about five months, she asked for and was granted consultation with the #StateCaptureInquiry legal team, during which she had an opportunity to deal with all affidavits but she sought or declared she would to only (then) deal with one.
#StateCaptureInquiry Soni says he had prepared for that consultation and it was only in later communication Makhubela indicated she wanted legal representation. He then describes dialogue (written, seemingly on a phone) between Makhubela and himself.
#StateCaptureInquiry Soni says the following day he phoned Makhubela on 10 July (which, he notes, is two weeks ago) and says he noted to her it was clear Makhubela may want to seek counsel. Soni says he indicated to Makhubela: please ensure that we have the affidavit in time.
#StateCaptureInquiry "This is her response, Chairperson: I am driving with people, I'm not in a position to talk. And I say: well, if you want we can talk over the weekend. And she says: I am going to be busy all weekend," reports Soni of discussing with Makhubela, who's a judge.
[SINCERE APOLOGIES] #StateCaptureInquiry Please note the designation, full name and correct spelling of the witness set down for today @StateCaptureCom is: Judge Tinswalo Annah Nana Makhubele. In truth, I was transcribing from ear and neglected to check in time. Begging pardon.
#StateCaptureInquiry Soni reads from a record, namely a letter from the inquiry legal team, showing Makhubele indicated today's date 24 July 2020 "suited her" and he confirms that is what Makhubele, in fact, said to the @StateCaptureCom legal team.
#StateCaptureInquiry Soni continues to read correspondence relating to the evidence anticipated from Makhubele today. Some moments earlier, it was noted that the @StateCaptureCom is available tomorrow, should the Chair postpone Makhubele's appearance by a day.
[MINUTES EARLIER] #StateCaptureInquiry "To the extent that what is contained in the letter [...] by Judge Makhubele's attorneys is at variance with what we have put up, Chairperson, we would ask what we have put up be regarded as the correct facts," says Soni.
#StateCaptureInquiry "For me, this really is the issue: the dispute, and all the disputes relating to this matter, are contained in document. It does not require days and days of consultation to work out what the disputes are," says Soni, beginning to give an example.
Zondo interjects, to my ear he's clearly annoyed. "Well, Mr Soni, I don't even think you need to give examples. Judge Makhubele has [...] had them [certain affidavits] for six months. She has not prepared any affidavit in those six months to respond to those affidavits," he says.
Zondo soon says of Makhubele's conduct over the last six months, "She had not done anything. In terms of the rules [...] everybody is given two weeks, 14 days. She has had MORE than enough. She has done absolutely nothing to deal with those allegations by way of affidavit."
[EARLIER] #StateCaptureInquiry An incensed Zondo continues on Makhubele, "She has had AMPLE opportunity. NO explanation seems to be given why over these six months she could not have prepared those affidavits or got counsel to prepare those affidavits."
"So, there is no doubt that she has had more than ample time to prepare affidavits," says Zondo. Soni then speaks of the approach adopted by Makhubele and says she has made preparation for her appearance a "major task" which makes the leading of evidence an untidy affair.
[NOW] #StateCaptureInquiry Zondo says he was thinking Makhubele would come here and maybe her explanation would him persuade him to grant a postponement. "As things stand I am disinclined to do so," he says. Zondo soon adds, "My inclination is that the application has no merit."
#StateCaptureInquiry Shakoane raises the intervening matter of the burst tyre. He says if Soni's presentation stood (alone) Zondo's position would make sense but Makhubele has a situation which is not her own making. Zondo says he should see pictures as soon as possible.
#StateCaptureInquiry Zondo repeats, save for this intervening matter, he is of the view the postponement application has no merit. "Have you received instructions whether if we were to postpone to tomorrow she would make herself available?" Zondo asks Shakoane of Makhubele.
#StateCaptureInquiry A steady pause follows, punctuated by a cough and the knock of a microphone. Zondo asks if Shakoane needs an adjournment. He says, "Yes. Maybe five minutes." Zondo adjourns until 12:45.
[PROCEEDINGS RESUME] #StateCaptureInquiry Zondo tells Shakoane he should start with whether Makhubele will be available tomorrow. "The answer there, Mr Chair, is she will not be able to be here tomorrow under the circumstances of her experience last evening."
#StateCaptureInquiry "Where are the pictures? Let me see the pictures," says Zondo. Shakoane says they're in black and white, he's informed there's also a video. These items relate to a flat tyre last night, which occurred when Makhubele was en route to Pretoria last night.
Zondo asks what is depicted in the pictures, what they are intended to indicate. He describes what he can see. Shakoane says the report Makhubele didn't answer a call from Soni on 10 July isn't correct, he's instructed Makhubele was in court and "she actually" returned the call.
#StateCaptureInquiry Zondo: I had to ask why is she not here, because I said she should be told that I wanted her to be here so that if her application for a postponement is not successful we would proceed. It was only then I was told by you about this incident of yesterday.
#StateCaptureInquiry "I am simply saying it is a concern," says Zondo. Shakoane says Makhubele requests Zondo could have her affidavit filed by 31 July 2020 if he permits. Zondo sighs. "Okay," he says and thanks Shakoane.
#StateCaptureInquiry "Save for the issue of what may have happened to her yesterday, last evening, about which there is not much information placed before me in terms of a tyre burst or tyre puncture," begins Zondo.
#StateCaptureInquiry "The application that Judge Makhubele has brought for the postponement of the hearing of her evidence does not reveal any good cause for a postponement," he continues.
"And, actually, everything else on which the letters that were put up, a reading of those letters reveal that the grounds of the application [...] have no merit whatsoever," says Zondo. He says not enough information is before him to reach a firm conclusion on last night's event.
[JUST IN] #StateCaptureInquiry Deputy Chief Justice Raymond Zondo, Chairperson of the @StateCaptureCom, has said an application for a postponement from a High Court judge, has "no merit whatsoever" and she was asked to be present today.
#StateCaptureInquiry In any case, notes Zondo, Makhubele isn't present today and he is informed she is not in an emotional state that would allow her to give evidence today. "This has caused the Commission a lot of inconvenience. This date was set aside for her to give evidence."
Zondo says, of course, Makhubele could not have known about the incident yesterday. He adds the decision on the postponement "was decided before" and, as he has said, all the grounds she relied on in the correspondence preceding the incident "don't reveal any merit whatsoever."
[SUMMARISED] Zondo: This Commission is working under very serious time constraints. It cannot afford to have postponements which can be avoided. But, as I have said, I will postpone the hearing of Judge Makhubele because of the reality of the situation.
#StateCaptureInquiry "I'm not going to postpone the hearing of her evidence for a month. I am going to postpone it for a week. She has had ample time to do what needs to be done. Her counsel has said she has offered to file her affidavits by end of next week," says Zondo.
Zondo declares a deadline for Makhubele's affidavit(s) of next Wednesday and not Friday as requested by her counsel. He postpones Makhubele's appearance to Monday, 3 August 2020 at 10:00 before noting doing so requires @StateCaptureCom change its plans, will inconvenience others.
#StateCaptureInquiry "I am determined to hear her evidence," says Zondo of Makhubele. He soon adds, "Furthermore, unfortunately, I find it necessary that I issue a directive that she must appear before this Commission on that day. I would not normally do that against a judge."
Zondo says he would expect that if he requests a judge appear before the @StateCaptureCom he would expect that to be enough, noting others have willingly agreed to file affidavits and appear without having to be compelled.
#StateCaptureInquiry Zondo notes the directive he is making is provided for in the @StateCaptureCom regulations (specifically 10.6). He reads it, see below. 
