Pravin Gordhan defends axing Transnet’s board
Public enterprises minister Pravin Gordhan insisted in court on Monday that his decision to fire the Transnet board was driven by its failure to act against corrupt and reckless activities related to state capture.
But former board member and head of the Transnet audit committee, Seth Radebe, argued that Gordhan’s decision to axe him after he had been in his position for just four months was irrational, illegal and motivated by "unfair discrimination".
This, Radebe’s lawyers told the Pretoria high court, was because Gordhan chose not to fire a white board member, Arlana Kinley, who had been appointed at the same time as Radebe. Kinley later resigned.
Radebe has filed an urgent application to challenge his dismissal by Gordhan and to seek the removal of the new Transnet board appointed by Gordhan.
At the heart of the case is Transnet’s R50bn acquisition of 1,064 locomotives which, according to the leaked Gupta e-mails, allegedly resulted in Gupta-linked companies receiving many billions of rand in kickbacks.
Gordhan’s lawyer Nazeer Cassim said the minister, after a "thorough investigation", concluded that Radebe was "no good … for the Transnet board. He can’t be the chairman of the audit committee."
Cassim said any suggestion that Gordhan’s decision to fire the Transnet board was driven by racism was "rubbish".
"There is nothing here that shows minister Gordhan is a racist. With great respect, that’s just rubbish, for want of a better word," Cassim told the court.
Radebe’s case is the first court challenge over the removal of the board of a state-owned enterprise, allegedly for failing to take action in response to evidence of state capture.
The outcome of the legal challenge to the Transnet board’s removal has implications far beyond Radebe’s case.
Radebe’s legal team, which includes advocates Dali Mpofu and Tembeka Ngcukaitobi, argued that the way in which he was removed had deeply damaging implications for his professional reputation. This was because there was now a perception that Radebe was somehow connected to state capture.
Gordhan has denied accusing Radebe of involvement in state capture. Instead, Cassim argued that the minister was deeply concerned that Radebe and his board had failed to take any disciplinary action against three senior officials heavily implicated by an investigation by the attorneys, Werksmans.
Gordhan said evidence contained in the Werksmans report made it clear there were grounds for further investigation of several former and current Transnet officials in relation to the 1,064 locomotives deals.
"The Werksmans report was delivered to Transnet on December 7 2017," Cassim told the court.
"Despite not being complete, legally speaking, the report still found that the procurement process was cloaked in corrupt and reckless activity. It contained certain recommendations, including establishing a judicial inquiry, instituting disciplinary proceedings against [and suspending] those employees involved with the tender and mentioned in the report, seeking to recover misappropriated funds and reporting the illegal conduct to the Hawks for potential prosecution," he said.
"The audit committee of Transnet, which [Radebe] chaired, nevertheless regarded the report as ‘inconclusive’, an opinion the board adopted, and did not implement all of its recommendations, including the taking of disciplinary action against those employees implicated therein.
"It chose instead to appoint another firm of attorneys [and not forensic investigators as initially envisaged] to conduct a further investigation at additional cost and causing further delay," said Cassim.
He argued that this further investigation by MSN Attorneys, which cost R27m, was essentially a "rehash" of the Werksmans report.
According to Radebe, however, Werksmans "could not interview" certain "material and key persons" when they conducted their procurement investigation – including former Transnet CFO Anoj Singh and Gupta family lieutenant Salim Essa. He said the company itself acknowledged that its report was "incomplete".
This, Radebe maintained, is why he and the former Transnet board decided to appoint another audit firm to do further forensic investigations into the procurement of the 1,064 locomotives – a decision he said was made in good faith.
Ngcukaitobi on Monday urged judge Hans Fabricius to take note of how Radebe and Transnet had taken action in response to the Werksmans report, which included trying to identify "which employees were responsible" for alleged state capture malfeasance.
According to Radebe, there were not just three employees involved in the locomotive transaction "but 130".
Fabricius will hand down judgment on September 25.