The financially crippled Passenger Rail Agency of SA (Prasa) has charged two employees for testifying at the Zondo commission, where they alleged victimisation and a cover-up of corruption at the agency.
The two, head of legal Martha Ngoye and general manager for strategy Tiro Holele, told the state capture commission there had been collusion at Prasa to rig the awarding of multibillion-rand contracts during the tenure of former CEO Lucky Montana.
During her first round of testimony at the commission in March 2020, Ngoye told the inquiry her legal team had no say in how the board awarded contracts.
The Prasa board, led by Leonard Ramatlakane, fired Ngoye and Holele in January, but the Labour Court overturned the decision and they were reinstated in April. However, they were subsequently suspended.
The board said it conducted its own investigations, which “revealed that both executives were prominent members of the committee that irregularly awarded” a R3.5bn locomotives contract to Swifambo Rail in 2013. Swifambo delivered only 13 of 70 locomotives — and those were too tall for local infrastructure.
Prasa’s moves against Ngoye and Holele come despite a forensic investigation by Werksmans Attorneys in 2015, commissioned by then board chair Popo Molefe, which did not make any findings against the pair.
Ngoye told the commission: “We just did not see this contract [Swifambo] being beneficial to Prasa — and when we raised our concerns, it was not received favourably.” She said her department met with opposition when it tried to clarify details of contracts.
Earlier this year Montana claimed at the commission that he did not approve the Swifambo contract, which he said was approved by the board at the time. He said the approval followed recommendations from the bid adjudication committee, chaired by Holele, on which Ngoye also sat.
Now Ramatlakane’s board has charged the two, saying it has filed responses to the commission regarding Ngoye and Holele’s allegations that they are being victimised.
“The executives are not whistleblowers, they are directly involved in irregularities that took place before the board’s appointment. The executives have lied to the Zondo commission and this had been brought to the commission’s attention and they are being charged internally as well,” said Prasa in a response to questions from the Sunday Times.
You have recently accused the current board ... of covering up corruption. In particular, you have, under oath stated that: ‘On 29 January 2021, the board of Prasa and the acting group CEO of Prasa found a spurious reason to unlawfully push me out of Prasa'
— Prasa lawyers' letter to Martha Ngoye
After Ngoye and Holele’s dismissal was overturned by the Johannesburg Labour Court in March, the court had to compel Prasa to allow the pair to return to their positions. Prasa has now petitioned the Johannesburg Labour Appeal Court to overturn the decision.
Prasa in June this year wrote to the commission and attempted to block Ngoye from testifying again, claiming that her testimony on her dismissal was outside the terms of reference of the commission.
This irked commission chair, acting chief justice Raymond Zondo. “If Prasa people are engaged in corruption, people are entitled to come to this commission and say so,” he said.
On July 8, Prasa, through its lawyers De Swardt Myabo Attorneys, served Ngoye with a letter demanding she withdraw statements she made at the commission and at the Johannesburg Labour Court over her dismissal.
“You have recently accused the current board ... of covering up corruption. In particular, you have, under oath stated that: ‘On 29 January 2021, the board of Prasa and the acting group CEO of Prasa found a spurious reason to unlawfully push me out of Prasa’, ” the letter says.
Her lawyers responded, pointing out that Prasa had had ample opportunity to challenge her statements at the commission.
“Your demand that our client should retract the statements made under oath in the court documents and in affidavits filed at the [commission] ... is bizarre,” Kase Mahlaku, of Gwina Attorneys, says in a letter to Prasa.
“Your client could have brought an application to strike out parts of our client’s affidavit in order to set the record straight and place your client’s version of events before the court.”
Upon their return to work in April, Prasa charged Ngoye and Holele with gross misconduct and dereliction of duty relating to contracts with Swifambo, SA Fence and Gate and Umanji. It later added charges relating to the Zondo commission after amending its charge sheets, claiming that both Ngoye and Holele made “disparaging statements in public and elsewhere about the current board of Prasa”.
Prasa said statements by Holele and Ngoye at the commission were serious allegations that led to an irretrievable breakdown of trust, and that it would ask the chair of the disciplinary hearing to dismiss Ngoye.
Ngoye, who led a Prasa team that got an arbitrator to award Prasa R45.1m from SA Fence and Gate after the agency paid the company R47m despite it only delivering R1.9m worth of services, was further charged with “acting beyond her authority” in allegedly approving a R58m extension of the contract.
To date Prasa has not pursued the directors of Swifambo individually to recover money they made from the corrupt locomotive deal. It said the matter is in the hands of law enforcement.
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