Siyangena Technologies has failed in its bid to have a excessive courtroom ruling that set aside contracts to the worth of greater than R6 billion that have been awarded to it by the Passenger Rail Agency of South Africa (Prasa) overturned.
The Supreme Court of Appeal (SCA) on Tuesday dismissed the enchantment with prices.
Read: Prasa malfeasance and maladministration return a very long time
Contracts awarded to Siyangena have been probed by the Zondo Commission of Inquiry into allegations of state seize – which, amongst different issues, was instructed that signatures have been cast to facilitate sure contracts at state-owned Prasa.
Siyangena Technologies is a subsidiary of TMM Holdings, which is owned by Mario Ferreira.
The reconstituted board of Prasa determined in March 2018 to apply to set aside its personal selections. Prior to this, Prasa’s government administration committee fell beneath the management of then group CEO Lucky Montana.
Montana resigned beneath a cloud in July 2015 when there have been mounting allegations about mismanagement at Prasa and an ongoing investigation had been launched by the Public Protector into maladministration on the entity.
Read:
Montana the opportunistic property mogul
Prasa seeks delay in tender case
Prasa alleges fraud in R4bn of tenders
The enchantment follows the Pretoria High Court in October 2020 setting aside contracts awarded by Prasa to Siyangena to provide and keep an built-in safety entry administration system at varied prepare stations – together with public handle amenities, velocity gates and digital show boards, which have been meant to improve the protection, entry and effectivity of the general public rail commuter system in preparation for the 2010 Fifa World Cup.
The excessive courtroom discovered that in contracting for these items and providers with Siyangena, Prasa failed to act in a fashion that was “fair, equitable, transparent, competitive and cost effective” in accordance with the structure.
In phrases of its remedial energy in phrases of the structure, the courtroom additional directed that an unbiased engineer be appointed to decide whether or not any of the funds made to Siyangena by Prasa must be set off in opposition to the worth of the works performed.
Constitutionally invalid
The SCA stated that on enchantment Siyangena appeared to settle for that, on the power of two earlier judgments, the contracts must be declared constitutionally invalid.
However, Siyangena took situation with the remedial order and contended that it’s inconsistent with the Constitutional Court’s method to a simply and equitable treatment as a result of Siyangena was in the place of an harmless social gathering.
As a consequence, Siyangena argued that it ought not to be stripped of any rights it might have been entitled to beneath the contract, however for the declaration of invalidity.
The excessive courtroom dominated that the affidavits of “intervening witnesses” have been inadmissible after an earlier excessive courtroom order that sure personnel from Prasa who have been implicated in alleged wrongdoing, have been entitled to intervene as witnesses and ship affidavits in their defence of their alleged wrongdoing.
The SCA stated the order by the primary courtroom granting depart to witnesses, together with sure personnel from Prasa who have been implicated in alleged wrongdoing, to intervene is unprecedented.
It stated there is no such thing as a help for it in the foundations of courtroom and the primary courtroom lacked the facility to situation such an order, which was to all intents and functions a nullity.
Read: Prasa whistleblower speaks out
The SCA stated the excessive courtroom that lastly heard the matter was subsequently entitled to disregard the affidavits produced in phrases of that order on the idea that they have been inadmissible.
Litany of breaches
The SCA stated it might additionally discover no floor to intervene with the excessive courtroom’s choice to condone the 10-month delay by Prasa in bringing the evaluate software.
It stated this era of delay was not unreasonable in the circumstances, with Prasa appearing expeditiously as soon as the true causes for the questionable procurement selections got here to mild.
“In the context of a litany of breaches of the procurement system, condonation had to be granted in the interests of justice,” it stated.
The excessive courtroom discovered that the earlier administration of Prasa, beneath the “tyrannical” management of then group CEO Montana, positioned obstacles in the trail of the newly constituted Prasa board to unearth the true state of affairs, by irritating the circulate of knowledge.
The SCA stated the brand new board was constituted in August 2014 whereas Montana remained in his place till his resignation in July 2015, in which period steps have been taken to conceal the irregular and illegal conduct.
It stated that to unearth the true extent of the mismanagement, the brand new Prasa board appointed a group of forensic investigators.
The SCA stated they have been required to trawl via numerous emails and laptop databases whereas there have been deliberate efforts to conceal the malfeasance inside Prasa.
‘Complicit’
Turning to the questionable contracts awarded to Siyangena, the SCA stated it’s glad the excessive courtroom was unavoidably pushed to conclude that Siyangena was complicit, or alternatively concerned, in the corruption in relation to these contracts.
“Nothing which has been placed before us warrants disturbing that finding,” it stated.
The SCA concluded that Siyangena was rightly discovered by the excessive courtroom to have been “complicit to the corruption, impropriety and maladministration”.
“It is inconsistent with notions of justice and equity that it should be allowed to profit from the unlawful procurement contracts,” it stated.
The SCA stated the argument by Siyangena that the order of the excessive courtroom was imprecise and incapable of implementation has no advantage.
Valuing the work …
Siyangena argued that the excessive courtroom order failed to outline how the unbiased engineer would connect a “value” to the work it has carried out.
The SCA stated the order of the excessive courtroom particularly offers that if the events are unable to agree on the id of the engineer or if there’s disagreement in the valuation of the works, they’re entitled to re-enrol the matter for the courtroom to make a willpower.
It stated the appointment of the unbiased engineer, notably the place events are unable to agree on the worth of the works, isn’t uncommon.
The SCA stated that Prasa in this case contends that the gear was not match for goal as a result of it didn’t meet the necessity or present the newest expertise and, in varied respects, was carried out in a fashion that was insufficient and incomplete.
“All of this points to the need for an independent, qualified third party to assess and determine the financial value of the works,” it stated.
“This approach will ensure that Siyangena would not be benefitted unduly and that Prasa would not be paying for services not rendered. Fairness is achieved and justice is ensured for both parties.”
Read: Gautrain an enormous coverage mistake – CompCom