Suspended Prasa whistle-blower Martha Ngoye found not guilty in arbitration case

1 Feb 2023

Previously, Ngoye, who has been employed at Prasa since 2011, told Daily Maverick she had been victimised because of her testimony at the Zondo Commission of Inquiry into Allegations of State Capture.

Martha Ngoye, the suspended head of Legal, Risk and Compliance at the Passenger Rail Agency of South Africa (Prasa) has, in an arbitration case, been found not guilty of charges brought against her by her employer.

Previously, Ngoye, who has been employed at Prasa since 2011, told Daily Maverick she had been victimised because of her testimony at the Zondo Commission.

Read more in Daily Maverick: “ ‘Just like Babita, I was doing my job, now I am paying the price,’ says Prasa whistle-blower Martha Ngoye”

According to the arbitration ruling, Prasa had instituted disciplinary action against Ngoye, who had, in turn, approached the Labour Court. Both parties then agreed to settle for an arbitration hearing if Ngoye did not go to court, and Prasa withdrew its disciplinary action.

Statements to the Zondo Commission

Prasa charged Ngoye with gross misconduct over statements she made to the Zondo Commission, saying she had brought Prasa and the board’s image into disrepute. Prasa said Ngoye’s conduct constituted gross misconduct and undermined the integrity and authority of the board.

Ngoye told the commission that Prasa’s legal team had been sidelined when it came to key contracts.

SA Fence and Gate

Prasa charged Ngoye with “financial misconduct, alternatively gross misconduct and/or dereliction of duties” in relation to a contract with SA Fence and Gate. Prasa claimed Ngoye breached various clauses of its supply chain management policy, National Treasury policies and the Public Finance Management Act (PFMA) when she signed off on the contract during her tenure as acting Group CEO.

In 2013, SA Fence and Gate entered into a contract with Prasa worth R209-million to install fences and other security measures at train depots. The deal would be extended when Prasa and SA Fence and Gate negotiated to include items such as lights for depots.

But, the deal turned sour over performance and payment, and ended with an arbitration award in 2021 by advocate Lindi Nkosi-Thomas, in which SA Fence and Gate was ordered to pay back R45,101,179.69.

Prasa then sued Ngoye for that amount.

Swifambo

Prasa charged Ngoye with gross misconduct, and/or dereliction of duties over the corrupt Swifambo deal, alleging she was part of the committee that recommended that Swifambo be appointed to supply locomotives to Prasa.

The company was at the centre of the “tall trains” saga which saw money meant for new trains flow to entities such as an olive farm and luxury cars. Ngoye told the Zondo Commission that she and the legal team were kept away from decisions over certain legal contracts.

Ngoye explained during the arbitration that as acting Group CEO in December 2014, she “had received a request from [then Prasa engineering head] Dr Daniel Mthimkhulu to approve prepayment in the amount of R448-million. The employee was not happy to approve the payment without the signature of the CFO on the document.”

Ngoye claimed the board ordered an investigation into the transaction.

Ngoye said there were issues with the tender when she was in the legal department as the tender value increased from R3.5-billion to R5-billion.

The arbitration hearing ruled in Ngoye’s favour, finding she was “not part of the BEC [Bid Evaluation Committee] that had recommended that Swifambo be appointed”.

Umjanji Consortium (Provantage)/Siyathembana/Strawberry Worx

Ngoye was also charged with financial misconduct, alternatively gross misconduct or dereliction of duties, in relation to the Umjanji Consortium contract.

Umjanji, according to Prasa, was an entity that did not exist at the time of the tender closing — and therefore did not comply with the requirements of the Public Finance Management Act (PFMA). Umjanji then ceded and assigned certain rights and obligations to Strawberry Worx and/or Siyathembana. The agreement allowed Prasa, Siyathembana, Strawberry and/or Umjanji Consortium to circumvent the provisions of the PFMA.

Prasa said because Ngoye was the CEO of Intersite (a subsidiary of Prasa), she entered into the cession agreement, which allowed the companies to circumvent a fair, equitable, transparent, competitive and cost-effective tender process in respect of the Media Advertising and Broadcasting Concession tender.

The arbitration hearing ruled: “The employee did not sign the cession agreement for Siyathembana as the Siyathembana contract was signed by the predecessor of the employee who was the CEO of Autopax… also a subsidiary of Prasa”.

Obstructing Prasa investigations and unauthorised removal of company property

Prasa also said Ngoye breached her employment contract and Prasa policies when in November 2015, “she uplifted” a Corporate Tender Procurement Committee file from Prasa’s Supply Chain Management Department. Prasa claimed that to date, Ngoye had not returned the file. “The removal of the file has compromised various investigations conducted in relation to the Swifambo tender,” read the charge against Ngoye.

Statements made by Ngoye about Swifambo Rail Leasing provision for diesel-electric locomotives, tender number HO/SCM/223/11/2011

Prasa said Ngoye’s conduct around statements made to the company and the Zondo Commission constituted gross dishonesty and had brought Prasa into disrepute.

Prasa also alleged Ngoye had misled the commission with her involvement in the Swifambo deal in April 2021. Prasa said Ngoye continued to mislead the commission on 4 March and 1 June 2021 in her evidence and affidavit.

“At the commission and in your representations to the employer, you denied that you were present at the CTPC [Corporate Tender and Procurement Committee] meeting of 11 July 2012 [which recommended that Swifambo be appointed as a preferred bidder] and/or that the said meeting took place,” said Prasa.

Specifically related to the Swifambo deal, the arbitrator said there was no evidence before him to indicate that Ngoye was part of any meeting that approved Swifambo as the preferred bidder, nor was he shown any evidence to indicate that Ngoye misled Prasa regarding her involvement in the Swifambo deal.

Ngoye pleaded not guilty to all the charges against her.

Read more in Daily Maverick: “Prasa’s legacy of whistle-blower victimisation and corruption cover-ups is off the rails”

Arbitrator Imthiaz Sirkhot found her not guilty of all the charges and acknowledged that Prasa had dropped two of its charges against her — of removing the file and her statements about the current board. No cost orders were made.

In a statement, Prasa confirmed Ngoye was still suspended.

“The Board of Control is currently studying the decision and will further engage with legal counsel on the way forward,” read the statement. Prasa said no there would be no further comments on the matter. DM

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