Daily Maverick | Steve Kretzmann | 25 July 2023
Despite being cleared of disciplinary charges in arbitration, Ngoye remains suspended as the rail agency seeks to appeal the decision in the Labour Court.
The Passenger Rail Agency of South Africa (Prasa) has asked the Labour Court for a date to review the arbitration award which cleared whistleblower Martha Ngoye of all charges against her, prolonging her suspension.
Ngoye was fired in 2021 from her position as head of legal services by the agency’s board, along with Nathi Khena and Tiro Holele, on the basis that their supposed five-year contracts had expired. Ngoye challenged the decision in the Labour Court, which ruled in her favour and dismissed Prasa’s request for leave to appeal.
But Prasa then petitioned the Labour Appeal Court and leave to appeal was granted. Ngoye was allowed to return to work on 6 April 2021 while the appeal was pending, but was then suspended on disciplinary charges related to Prasa contracts with Swifambo and SA Fence & Gate.
She was cleared earlier this year of all the charges against her by an arbitration inquiry headed by advocate Imthiaz Sirkhot.
The inquiry found, notably, that she was not among those who had recommended the Swifambo “tall trains” contract and also that she was not guilty of financial misconduct in condoning a R58-million extension to a R210-million contract with SA Fence & Gate.
But the board, chaired by Leonard Ramatlakane, who has since been axed, in February filed for a review of the arbitration with the Labour Court.
Prasa has now requested that the case be set down for hearing. This is the latest development in Prasa’s efforts over more than two years to prevent Ngoye from getting back to work.
Her attorney Geoffrey Allsop said Prasa is legally required to comply with the award as she has been cleared of misconduct and “there exists no lawful reason to continue to keep her on suspension”.
Allsop said in his experience the review sought by Prasa would likely only be set down by the Labour Court for 2024 at best, with a date in 2025 being more likely.
Ngoye has been a central figure in the fight against corruption at the rail agency. She has helped Prasa win court victories against Swifambo, Siyangena, and Siyaya. It was Ngoye’s defiance that rebuffed Judge Tintswalo Makhubele’s attempt to improperly settle with Siyaya
Further, Ngoye’s testimony at the State Capture Commission revealed the depths of former CEO Lucky Montana’s corrupt leadership of Prasa.
Chief Justice Raymond Zondo has said he was “lost for words” at attempts by the Prasa Board to oppose claims by Ngoye and fellow executives Khena and Holelethe that they had been unlawfully dismissed “when they had no defence to the executives’ unlawful dismissal claim on the merits”.
In all the Labour Court litigation against the executives, as well as for the arbitration hearings and the current arbitration appeal, Prasa has made use of attorneys from De Swardt Myambo Hlahla, a law firm that is not on Prasa’s approved legal panel.
A letter from Basani Duiker, National Treasury Chief Director of supply chain management governance, monitoring and compliance to then Prasa Group CEO Thandeka Mabija on 31 March 2021 notes that the appointment of De Swardt Myambo Hlahla deviates from normal procurement procedures.
Allsop said that effectively meant all money paid to the firm constitutes irregular expenditure under the Public Finance Management Act.
Prasa has failed to respond to GroundUp’s questions on the use of De Swardt Myambo Hlahala and the continued suspension of Ngoye.