Martha Ngoye, the PRASA whistleblower, was found not guilty of the allegations filed against her by the rail agency during an arbitration investigation.
It was determined that Ngoye was not one of those who recommended the Swifambo “tall trains” deal.
Ngoye was also held not liable for PRASA’s damages in the SA Fence and Gate issue, for which PRASA is suing her for R45 million.
Under cross-examination, PRASA’s witnesses disintegrated.
The current status of Ngoye at the train agency is uncertain; PRASA’s appeal against a ruling that reversed her dismissal will be considered in March.
Martha Ngoye, the anti-corruption legal head and whistleblower at the Passenger Train Agency of South Africa (PRASA), was found not guilty of a number of accusations made against her by the rail agency in an arbitration investigation presided over by attorney Imthiaz Sirkhot.
The arbitration award issued on January 30 followed 13 days of investigative proceedings that began in June of last year. Ngoye and PRASA, led by its chairman Leonard Ramatlakane, consented to an arbitration inquiry pursuant to section 188A(11) of the Labour Relations Act in order to settle a long-standing disagreement.
Since assuming office, PRASA’s board, led by chairman Leonard Ramatlakane, has sought to suspend, lawsuit, and fire Ngoye, whose anti-corruption efforts as head of legal, risk, and compliance at the rail agency have saved PRASA billions of rands.
PRASA argued that Ngoye was guilty of gross misconduct in three areas: 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 permitting the cession of media contract rights to unsuccessful tenderers.
PRASA said that Ngoye had committed financial misconduct, gross misconduct, and dereliction of duty by approving irregular expenditures in the SA Fence and Gate contract while working as GCEO. GroundUp previously reported on PRASA’s attempt to sue Ngoye for her role in this incident for R45 million.
Sirkhot discovered Ngoye:
“properly discharged her duties as acting GCEO by approving the irregular expenditure,” and “the failure to observe the rules, regulations, and procedures outlined in the contract occurred during Mr. Montana’s continued tenure as GCEO.”
The arbitrator determined that Ngoye had not engaged in any financial malfeasance, that PRASA’s losses were not her fault, and ruled her not guilty on this count.
Regarding Ngoye’s role in the awarding of the Swifambo “tall train” contract, PRASA wanted to charge her with gross misconduct and desertion of duty. The arbitrator consolidated three distinct allegations into a single one.
PRASA said that Ngoye was a member of the corporate tender and procurement committee (CTPC) that recommended awarding the locomotive deal to Swifambo, and that she “deceived” PRASA over her involvement in the Swifambo transaction.
RAIL AGENCY COURT WITNESS PRASA relied on the testimony of Sidney Khuzwayo, a senior procurement manager at PRASA who had taken handwritten notes during meetings of the CTPC in which the committee reportedly approved the Swifambo deal.
During the inquiry, Ngoye’s attorney, Ben Prinsloo, dismantled Khuzwayo’s assertion that Ngoye was present and was among those who recommended awarding the contract to Swifambo. It became evident that Ngoye had been recused from the committee in order to focus on her duties as CEO of Intersite, and that Swifambo was recommended at following meetings she did not attend.
Although Ngoye had attended a CTPC meeting on the morning of 11 July 2012, she had recused herself from the meeting and the committee itself. In his notes, Khuzwayo had inserted a “#” next to Ngoye’s name, a symbol he said was used arbitrarily. However, the identical mark appeared next to the names of other PRASA employees who were not only also absent, but one of whom would not have been permitted to attend this meeting as a member of another bidding committee.
It was discovered that the CTPC had had a second meeting on 11 July at 10 p.m., during which Swifambo was recommended. Ngoye did not attend. While Khuzwayo argued that Ngoye was not excluded from the meeting, the arbitrator discovered that Khuzwayo’s own handwritten notes supported Ngoye’s account.
JUDICIAL DECISION IN FAVOR OF NGOYE
“There is no evidence before me to suggest that the employee participated in any meeting that approved Swifambo as the preferred bidder, nor is there any evidence to suggest that the employee misled PRASA about her involvement in the Swifambo transaction,” wrote Sirkhot, finding Ngoye not guilty of the charges.
Sirkhot then investigated the allegation that Ngoye, while serving as the head of Intersite, the property management unit of PRASA, had engaged in financial malfeasance by entering into agreements to relinquish Umjanji Consortium tender rights to Strawberry Worx and Siyathembana.
Strawberry Worx is owned by Roy Moodley’s son, who was personally involved in billions of rands worth of corrupt agreements at PRASA, including the infamous Siyangena contract. The Gauteng High Court voided this contract in favor of Primedia in March 2021.
When it was discovered that the first contract and subsequent cession agreements were signed by Ngoye’s predecessor at Intersite, Tumisang Kgaboesele, PRASA’s case for this claim was doomed from the start.
Instead, Ngoye signed a concession agreement about the topic after the rights had already been transferred. While PRASA argued that there was no difference between the cession and concession agreements, the arbitrator determined that the distinction was material, and that if Ngoye had not signed the concession agreement, “Strawberry Worx would enjoy the rights under the cession agreement but would have no obligations.” Accordingly, Ngoye was also declared not guilty on this count.
THE FUTURE OF NGOYE AT THE RAIL AGENCY
No cost order was issued because “granting costs in this matter would ultimately place the burden on taxpayers.”
Regardless of this triumph, Ngoye’s current position at the train agency remains unknown. PRASA is appealing a Labour Court judgement that determined her dismissal in January 2021 was illegal and she should be reinstated. This year, it will be heard in March.
Also see: PRASA’s response to the stalled bus beneath the low-height bridge
Ngoye revealed to GroundUp that she was vindicated.
“I’ve always been aware of the truth. “However, I must hear what my employer has to say,” she remarked.
PRASA spokeswoman Andiswa Makanda told GroundUp:
“The PRASA Board of Control has taken note of the Section 188A (11) Inquiry award between PRASA and the suspended Head of Legal, Ms Martha Ngoye, presided by by Advocate Imthiaz Sirkhot. The Board of Control is now reviewing the decision and will consult with legal counsel regarding the next steps. No further comments will be made on this topic.”
»PRASA whistleblower was acquitted of all charges«