Martha Ngoye, the corruption-busting legal head turned whistleblower at the Passenger Rail Agency of South Africa (Prasa) has been found not guilty of a number of charges brought against her by the rail agency in an arbitration inquiry presided over by advocate Imthiaz Sirkhot.
The 30 January arbitration award followed 13 days of inquiry proceedings, starting in June last year. Ngoye and Prasa, led by its chairperson Leonard Ramatlakane, agreed to an arbitration inquiry in terms of section 188A(11) of the Labour Relations Act to resolve a long-standing dispute between them.
Since coming into office, Prasa’s board, led by chairperson Leonard Ramatlakane, has sought to suspend, sue, and sack Ngoye, whose work against corruption while head of legal, risk and compliance at the rail agency has saved Prasa billions of rands.
Sirkhot’s ruling covered three items where Prasa argued that Ngoye was guilty of gross misconduct: the condonation of irregular expenditure in the SA Fence and Gate contract; her participation in a committee that recommended the Swifambo “tall-trains”; and her role in allowing the cession of rights for a media contract to unsuccessful tenderers.
Prasa contended that Ngoye had committed financial misconduct, gross misconduct and had acted in dereliction of her duties when she had condoned irregular expenditure in the SA Fence and Gate contract while she was acting GCEO. GroundUp has previously reported on Prasa’s attempt to sue Ngoye for R45 million for her role in this matter.
Sirkhot found that Ngoye “had duly performed her duties as the acting GCEO in condoning the irregular expenditure”, and that the “failure to observe the rules, regulations and procedures as set out in the contract occurred under the continued tenure of Mr [Lucky] Montana as GCEO.”
The arbitrator found Ngoye had not committed any financial misconduct, that the losses which Prasa suffered were not her fault, and found her not guilty on this charge.
Prasa then sought to charge Ngoye with gross misconduct and dereliction of duty regarding her role in the award of the Swifambo “tall-train” contract. The arbitrator combined three separate charges into one.
Prasa alleged that Ngoye had been a member of the corporate tender and procurement committee (CTPC) that had recommended the award of the locomotive tender to Swifambo, and that she had subsequently “deceived” Prasa about her involvement in the Swifambo transaction.
Prasa relied on the testimony of Sidney Khuzwayo, who was a senior procurement manager at Prasa and who had made handwritten notes of the meetings of the CTPC during which the committee apparently approved the Swifambo contract.
But Khuzwayo’s stance that Ngoye had been present and was one of those to recommend the award of the tender to Swifambo crumbled under cross-examination by Ngoye’s advocate, Ben Prinsloo, during the inquiry. It became apparent that Ngoye had been recused from the committee to focus on her duties as CEO of Intersite, and that there were subsequent meetings not attended by Ngoye during which Swifambo was recommended.
While there had been a meeting of the CTPC on the morning of 11 July 2012, attended by Ngoye, she had recused herself from the meeting and from the committee itself. In his notes, Khuzwayo had placed a “#” alongside Ngoye’s name, which he had said was used randomly. However the same symbol was beside other Prasa employees’ names, who were not only also not present, but one of whom would have been barred from attending this meeting as they were members of another bidding committee.
It emerged that there had been a second meeting of the CTPC on 11 July at 10pm in the evening, during which Swifambo had been recommended. Ngoye was not present. While Khuzwayo insisted that Ngoye was not recused from the meeting, the arbitrator found that his own handwritten notes corroborated Ngoye’s version of events.
“There is no evidence before me to indicate that the employee was part of any meeting that approved Swifambo as the preferred bidder, neither, is there any evidence before me to indicate that the employee misled Prasa regarding her involvement in the Swifambo transaction,” wrote Sirkhot, finding Ngoye not guilty on those charges.
Sirkhot then examined the claim that Ngoye, while head of Intersite, Prasa’s property management subsidiary, had committed financial misconduct by entering into agreements to cede tender rights from the Umjanji Consortium to Strawberry Worx and Siyathembana.
Strawberry Worx is owned by the son of Roy Moodley, who was directly implicated in billions of rands of dodgy deals at Prasa, including the notorious Siyangena tender. In March 2021, the Gauteng High Court set aside this contract in favour of Primedia.
Prasa’s case for this charge ran into trouble from the outset when it transpired that the initial contract and subsequent cession agreements were signed by Ngoye’s predecessor at Intersite, Tumisang Kgaboesele.
Instead, Ngoye had signed a concession agreement relating to the matter, which occurred after the rights had already been ceded. While Prasa argued that it was “merely semantics” and that there was no difference between the cession and concession agreement, the arbitrator found that the difference was material, and that if Ngoye had not signed the concession agreement, “Strawberry Worx would enjoy the rights in terms of the cession agreement but would have no obligations”. Ngoye was accordingly found not guilty on this count as well.
No cost order was given, since “to grant costs in this matter would mean that taxpayers carry the costs ultimately”.
Despite this victory, Ngoye’s current position at the rail agency is unclear. Prasa is appealing a Labour Court ruling that found that her January 2021 sacking was unlawful and that she should be reinstated. It will be heard in March this year.
Ngoye told GroundUp that she had been vindicated. “I have always known the truth. But I will have to hear what my employer says,” she said.
Prasa spokesperson Andiswa Makanda told GroundUp: “The Prasa Board of Control has noted the award made by the Section 188A (11) Inquiry between Prasa and the suspended Head of Legal, Ms Martha Ngoye, chaired by Advocate Imthiaz Sirkhot. The Board of Control is currently studying the decision and will further engage with legal counsel on the way forward. There will be no further comments on this matter.”
© 2023 GroundUp. This article was first published here.
