Revealed: how whistleblowers worked with activists to stem PRASA looting

Zachie Achmat said in an affidavit that Ngoye and Holele were dismissed for their honesty and refusal to “turn a blind eye to corruption” within PRASA. Archive photo: Ashraf Hendricks

• Activist organisation #UniteBehind has applied to intervene in a Constitutional Court application by Martha Ngoye and Tiro Holele, who have been fighting their dismissal by PRASA for five years.
• An affidavit by Zackie Achmat reveals how Ngoye and Holele worked with activists to expose the widespread looting at the passenger rail agency.
• The Labour Court previously ruled that the whistleblowers be reinstated, but this was overturned by the Labour Appeals Court and the Constitutional Court declined to hear the matter.
• The whistleblowers and #UniteBehind now want the apex court to rescind that decision.

An affidavit by activist Zackie Achmat in a Constitutional Court application sheds new light on the role of whistleblowers Martha Ngoye and Tiro Holele in attempts to prevent widespread looting at the Passenger Rail Agency South Africa (PRASA).

Ngoye, who was head of legal, risk and compliance, and Holele, who was head of strategy, were fired by PRASA in early 2021. The Labour Court ordered that they be reinstated, but the Labour Appeal Court overturned the ruling. The Constitutional Court declined to hear an appeal.

Ngoye and Holele have now applied to the Constitutional Court to rescind its decision not to consider their appeal. This is the last possible option in their five-year battle to have their whistleblower status recognised, and be reinstated at their workplace.

Activist organisation #UniteBehind, of which Achmat is a director, have applied to intervene in the court case, or alternatively be admitted as amicus curiae (friend of the court).

“Staunch resistance to corruption”

Achmat states in his affidavit that the organisation’s struggle over the past decade to “arrest the rot at PRASA” has been “inextricably intertwined with the specific facts around Ms Ngoye’s and Mr Holele’s whistleblowing” and their “staunch resistance to corruption”.

“Their fight is our fight. In this respect, we are less interested in the abstract legal theories that resulted in the current disjuncture between right and remedy on an individual level,” stated Achmat in his affidavit.

He said Ngoye and Holele were dismissed for their honesty and refusal to “turn a blind eye to corruption” within PRASA.

Neither the Labour Appeal Court nor the Constitutional Court had “taken proper account of this larger picture when they closed the doors on the applicants,” he said.

He said if #UniteBehind is granted leave to intervene, the organisation intends to argue in terms of Section 172 of the Constitution – which allows the court to declare any law or conduct inconsistent with the Constitution as invalid – or, alternatively, lean on the Promotion of Administrative Justice Act to order Ngoye and Holele be reinstated at PRASA with back pay.

According to Achmat, #UniteBehind’s work has often relied on whistleblowers such as PRASA’s former board chairperson Popo Molefe, who provided information in 2017, such as Treasury reports into about 300 unlawful contracts known as #PRASALeaks.

The board under Molefe, from 2014 to 2017, had “made slow but admirable progress” in cleaning up the looting and corruption of the Lucky Montana era in which billions of rands were siphoned from the rail agency.

It was Molefe who introduced #UniteBehind to Ngoye and Holele, amongst others.

Ngoye, appointed in 2014 under Molefe’s board, was in charge of all PRASA’s litigation to set aside unlawful contracts and decisions, and to recover money lost to corruption. The most well documented is Ngoye’s attempt to prevent then interim board chair Nana Makhubele from settling with corruption-impugned company Siyaya to the tune of nearly R60-million.

Makhubele, who was at the same time appointed a judge in the Gauteng High Court, has since been found guilty of gross misconduct by the Judicial Service Commission.

Achmat states that under Molefe’s board, PRASA made “about 39” reports to the Directorate for Priority Crimes Investigation (DPCI) in terms of Section 34 of the Prevention and Combating of Corrupt Activities Act (PRECCA).

Section 34 of PRECCA makes it a duty of any senior executive or manager to report corrupt activity involving R100,000 or more to the police.

When #UniteBehind took action against the DPCI and National Prosecuting Authority for their failure to act on these reports, they were introduced to Ngoye and legal services general manager Fani Dingiswayo.

Ngoye and Dingiswayo gave #UniteBehind a “full briefing” on the case against the DPCI and NPA, including that the DPCI and NPA had challenged the authority of Molefe, Ngoye and PRASA’s attorneys (Werksmans) to conduct the litigation.

After Molefe’s term as board chair, the interim board headed by Makhubele “immediately started efforts to undo the progress of the Molefe board and to paralyse the parts of PRASA driving this recovery.”

“Since much of the course-correcting work involved litigation, the legal department under Ms Ngoye’s leadership was an obvious and immediate target.”

The case against the DPCI and NPA was effectively abandoned by PRASA and has since been taken up by Open Secrets.

Achmat said Ngoye and other whistleblowers worked to protect PRASA’s interests, including frustrating a bid by Siyangena Technologies to overturn a finding by the Pretoria High Court that it was complicit in corruption when it scored contracts valued at about R5.5 billion from PRASA.

He said while Ngoye helped protect PRASA’s interests, she “was visited with more trials and tribulations that led to her unlawful dismissal”, and “honesty and competence” put targets on the whistleblowers’ backs.

He argues Ngoye and Holele were dismissed for resisting corruption and the Labour Appeal Court turned a blind eye to the public interest “simply because the matter was adjudicated primarily as a labour dispute”.

“If the Labour Appeal Court applied the correct test, then we submit that the test is inconsistent with the Constitution and with South Africa’s international law obligations, and must be developed.”

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