C O M M I S S I O N O F I N Q U I RY I N T O S TAT E C A P T U R E H E L D AT BRAAMFONTEIN CHAMBERS 10 16 MARCH 2020 D AY 2 2 4 FINAL 20 16 MARCH 2020 – DAY 224 PROCEEDINGS COMMENCE ON 16 MARCH 2020 C H A I R P E R S O N : G o o d m o r n i n g M r S o n i , g o o d m o r n i n g e v e r y b o d y. A D V VA S S O N I S C : M o r n i n g D C J . CHAIRPERSON: It looks like …(intervenes). A D V VA S S O N I S C : T h e l i g h t i n g . CHAIRPERSON: The lighting is still quite bad but I have been told that they are attending to it. A D V VA S S O N I S C : Ye s . C H A I R P E R S O N : To t r y a n d i m p r o v e b u t t h e r e w a s s o m e i m p r o v e m e n t s 10 at some stage on Friday particularly around here but I think it has gone back to what it was at some stage. Interestingly the areas right there appear to have good lighting maybe because of the lighting on the ceiling boards. A D V VA S S O N I S C : Ye s . CHAIRPERSON: Okay alright let us continue. A D V VA S S O N I S C : C h a i r p e r s o n j u s t f o r t h e s a k e o f c o n t e x t y o u w i l l recall that Mr Molefe had not finalised his evidence yesterday that will c o n t i n u e a s w a s a g r e e d o n W e d n e s d a y. C H A I R P E R S O N : Ye s . Yo u m i g h t h a v e t o r a i s e y o u r v o i c e a g a i n . 20 A D V VA S S O N I S C : O h s o r r y. C H A I R P E R S O N : J a . Ye s . A D V VA S S O N I S C : I w a s s a y i n g M r C h a i r p e r s o n j u s t t o p u t t h i n g s i n context and for the record Mr Molefe had not finished his evidence on Wednesday and we – sorry on Friday and we agreed that he will continue his evidence on Monday – on Wednesday on account of Page 2 of 210 16 MARCH 2020 – DAY 224 certain commitments he has already have. In the meantime then we will ask for the evidence of Ms Onica Martha Ngoye to be tendered t o d a y. C H A I R P E R S O N : Ye s N g o y e i s … ( i n t e r v e n e s ) . MS NGOYE: Ngoye. C H A I R P E R S O N : I s e e i t w r i t t e n h e r e i t i s w r i t t e n c o r r e c t l y. A D V VA S S O N I S C : T h e y h a v e i t w r o n g o n – i f y o u l o o k a t t h e a ff i d a v i t itself it is Ngoye Mr Chairman. CHAIRPERSON: It is Ngoye. 10 A D V VA S S O N I S C : N g o y e . CHAIRPERSON: Ja they seem to get this wrong I do not know why t h e y s o r t o ff – g e t t h e p e o p l e ’s n a m e s w r o n g o n t h e o u t s i d e c o v e r i t w a s t h e s a m e t h i n g w i t h M i n i s t e r Yu n u s C a r i e m t h e o t h e r w e e k . I picked this up. Okay alright. A D V VA S S O N I S C : M a y t h e … ( i n t e r v e n e s ) . CHAIRPERSON: Would you like – okay please administer the oath or a ff i r m a t i o n . REGISTRAR: Please state your full names for the record? MS NGOYE: Onica Martha Ngoye. 20 REGISTRAR: Do you have any objection to taking the prescribed oath? MS NGOYE: No I do not. REGISTRAR: Do you consider the oath to be binding on your conscience? M S N G O Y E : Ye s I d o . REGISTRAR: Do you swear that the evidence you will give will be the Page 3 of 210 16 MARCH 2020 – DAY 224 truth; the whole truth and nothing else but the truth if so please raise y o u r r i g h t h a n d a n d s a y, s o h e l p m e G o d . MS NGOYE: So help me God. CHAIRPERSON: But on a lighter note Ms Ngoye do your people have nothing to do with the University of Zululand? M S N G O Y E : N o C h a i r. C H A I R P E R S O N : I t h o u g h t m a y b e t h e y s t a r t e d t h e U n i v e r s i t y. MS NGOYE: No, no. CHAIRPERSON: Because it is known as Ngoye. 10 MS NGOYE: Ngoye. CHAIRPERSON: The University of Zululand so I thought maybe your p e o p l e s t a r t e d i t . O k a y a l r i g h t . Ye s . M s S o n i – M r S o n i . A D V VA S S O N I S C : M s N g o y e j u s t t o p l a c e i n c o n t e x t y o u r e v i d e n c e y o u r – t h e a ff i d a v i t s y o u h a v e m a d e a r e c o n t a i n e d i n B u n d l e E a n d y o u r a ff i d a v i t s i s m a r k e d S S 7 . E x h i b i t S S 7 . M S N G O Y E : Ye s . A D V VA S S O N I S C : N o w h o w m a n y a ff i d a v i t s h a v e y o u m a d e i n a l l ? M S N G O Y E : I h a v e m a d e t h r e e a ff i d a v i t s . C H A I R P E R S O N : I a m s o r r y. 20 A D V VA S S O N I S C : Ye s . C H A I R P E R S O N : J a o k a y M r S o n i c o n t i n u e I a m s o r r y. M S N G O Y E : I h a v e m a d e t h r e e a ff i d a v i t s a l t o g e t h e r C h a i r p e r s o n . A D V VA S S O N I S C : O k a y. So again just so that we can reach them easily Ms Ngoye if you look at the index you will see that the first a ff i d a v i t w h i c h i s d a t e d t h e 1 6 t h o f S e p t e m b e r 2 0 1 9 i s m a r k e d A a n d i t Page 4 of 210 16 MARCH 2020 – DAY 224 appears from page 1 to page 276 together with the annexures. Would that be correct? MS NGOYE: That is correct Chairperson. CHAIRPERSON: I am sorry Mr Soni. I think I was right. We have not i d e n t i f i e d t h i s b u n d l e w h e r e t h e s e a ff i d a v i t s a r e , i s i t n o t ? And – so t h a t w h e n y o u t a l k a b o u t a n a ff i d a v i t t h e n w h o e v e r r e a d s k n o w s i n w h i c h b u n d l e t h a t a ff i d a v i t i s t h a t y o u a r e r e f e r r i n g t o . A D V VA S S O N I S C : M s N g o y e i s i t c o r r e c t t h a t t h e t h r e e a ff i d a v i t s a r e in what is marked PRASA Bundle E? 10 M S N G O Y E : Ye s C h a i r p e r s o n . A D V VA S S O N I S C : W e l l w h e n w e a r e r e f e r r i n g t o t h e a ff i d a v i t s w e w i l l r e f e r t o B u n d l e E a n d t h e a ff i d a v i t – a ff i d a v i t s a s E x h i b i t S S 7 . MS NGOYE: That is correct. CHAIRPERSON: M r S o n i i s – a r e a l l t h e a ff i d a v i t s i n h e r e ? I know about two. A D V VA S S O N I S C : T h e t h i r d o n e h a s b e e n i n s e r t e d t h i s m o r n i n g . CHAIRPERSON: Has been inserted. A D V VA S S O N I S C : Ye s . CHAIRPERSON: 20 a ff i d a v i t ? The annexures – are they annexures to the first A r e t h e y a n n e x u r e s t o t h e s e c o n d a ff i d a v i t ? Are they a n n e x u r e s t o t h e t h i r d a ff i d a v i t ? A D V VA S S O N I S C : T h e y – C h a i r p e r s o n y o u w i l l s e e i n t h e i n d e x t h e f i r s t a ff i d a v i t h a s 1 5 a n n e x u r e s m a r k e d O M N 1 t o 1 5 . C H A I R P E R S O N : Ye s . A D V VA S S O N I S C : A n d t h e n s e c o n d a ff i d a v i t w h i c h i s m a r k e d B i n t h e Page 5 of 210 16 MARCH 2020 – DAY 224 index is from page 277 to 385 together with the annexures and that has 10 annexures marked from OMN1 to OMN10. CHAIRPERSON: H’mm. A D V VA S S O N I S C : A n d t h e n t h e t h i r d a ff i d a v i t w h i c h i s c a l l e d a s u p p l e m e n t a r y a ff i d a v i t i t i s d a t e d y e s t e r d a y t h e 1 5 t h o f M a r c h . I t h a s no annexures and it appears at page 386 to 398. C H A I R P E R S O N : Ye s . I s e a c h a ff i d a v i t a s e p a r a t e E x h i b i t ? A D V VA S S O N I S C : It has not been marked as a separate Exhibit Chairperson. It is all marked Exhibit SS7. 10 CHAIRPERSON: I think they should be separate. I think the one that has got – the two that have got annexures each should be a separate exhibit contained in the same bundle. A D V VA S S O N I S C : Ye s . CHAIRPERSON: And then with its annexures so that there is no confusion. A D V VA S S O N I S C : Ye s . CHAIRPERSON: Because if you say Exhibit SS7 and you go to the first a ff i d a v i t y o u w i l l t h i n k t h a t t h a t i s a l l t h a t S S 7 i s . A D V VA S S O N I S C : Ye s . 20 CHAIRPERSON: And – so it will cause confusion. A D V VA S S O N I S C : M r C h a i r p e r s o n . CHAIRPERSON: I think should then have SS7A, SS7B, SS7C. A D V VA S S O N I S C : W e l l t h i s i s w h a t I w a s g o i n g t o a s k ? C H A I R P E R S O N : I t h i n k I w i l l t h e n s a y t h e a ff i d a v i t o f M s O n i c a M a r t h a Ngoye deposed to on the 16th of September 2019 and its annexures will Page 6 of 210 16 MARCH 2020 – DAY 224 be marked – will be admitted and marked as Exhibit SS7A. A D V VA S S O N I S C : S S 7 A . CHAIRPERSON: The next one is on what page? A D V VA S S O N I S C : P a g e 2 7 7 C h a i r p e r s o n . CHAIRPERSON: 277? A D V VA S S O N I S C : Ye s . It is separated by the divider which is marked …(intervenes). C H A I R P E R S O N : Ye s I h a v e f o u n d i t . T h e a ff i d a v i t o f M s O n i c a M a r t h a Ngoye deposed to on the 17th of February 2020. 10 A D V VA S S O N I S C : T h a t i s t h e o n e C h a i r p e r s o n . CHAIRPERSON: And that is the one that also has annexures hey? A D V VA S S O N I S C : T h a t i s s o . CHAIRPERSON: And its annexure will be admitted and will be marked as Exhibit SS7B. A D V VA S S O N I S C : B y e s . CHAIRPERSON: And then where is the third one? A D V VA S S O N I S C : T h e o t h e r – t h e C i s a t 3 8 6 C h a i r p e r s o n o f B u n d l e E. CHAIRPERSON: Is it the one at 386? 20 A D V VA S S O N I S C : T h a t i s s o C h a i r p e r s o n . CHAIRPERSON: O k a y. T h e a ff i d a v i t o f M s O n i c a M a r t h a N g o y e deposed to on the 15th of March 2020 will be admitted and marked as Exhibit SS7C. Have we covered all of them? A D V VA S S O N I S C : Ye s . Ye s M r C h a i r p e r s o n . CHAIRPERSON: But your index did seem to indicate that there four Page 7 of 210 16 MARCH 2020 – DAY 224 a ff i d a v i t s i f I a m n o t m i s t a k e n . A t t h e e n d I – l e t m e c h e c k w h a t I s a w ? A D V VA S S O N I S C : S o r r y w h a t t h e i n d e x s e e m s t o … ( i n t e r v e n e s ) . CHAIRPERSON: Ja that is what is shows. A D V VA S S O N I S C : Ye s . C H A I R P E R S O N : I t s a y s t h e r e i s a s u p p l e m e n t a r y a ff i d a v i t a t p a g e 3 8 6 t o 3 9 8 a n d t h e r e i s a s u p p l e m e n t a r y a ff i d a v i t a t – s a m e – a n d t h e n gives same pages. A D V VA S S O N I S C : Ye s . CHAIRPERSON: Is that duplication? 10 A D V VA S S O N I S C : I t i s y e s . CHAIRPERSON: H’mm. Why can people not see these things and eliminate them? Ja okay alright. A D V VA S S O N I S C : A s i t p l e a s e s y o u . C H A I R P E R S O N : Yo u c a n c o n t i n u e . A D V VA S S O N I S C : M s N g o y e y o u h a v e r e a d e a c h o f t h e a ff i d a v i t s here this morning? MS NGOYE: That is correct. A D V VA S S O N I S C : A n d t h e a n n e x u r e s t o t h o s e a ff i d a v i t s ? MS NGOYE: That is correct Chairperson. 20 A D V VA S S O N I S C : D o y o u c o n f i r m i n r e s p e c t o f e a c h o f t h e a ff i d a v i t s t h a t i s S S 7 A , S S 7 B a n d S S 7 C t h a t w h a t i s c o n t a i n e d i n t h e a ff i d a v i t s i s true and correct to the best of your knowledge? M S N G O Y E : Ye s C h a i r p e r s o n I c o n f i r m t h a t . A D V VA S S O N I S C : A n d t o t h e e x t e n t t h a t y o u r e f e r t o a ff i d a v i t s – t o annexures, the annexures you refer to are those that are annexed to Page 8 of 210 16 MARCH 2020 – DAY 224 t h e d o c u m e n t – t o y o u r a ff i d a v i t ? MS NGOYE: That is correct. A D V VA S S O N I S C : Ye s . N o w M s N g o y e I j u s t a g a i n f o r t h e p u r p o s e s o f p u t t i n g t h i n g s i n c o n t e x t y o u r a ff i d a v i t s t o g e t h e r w i t h t h e a n n e x u r e s deal with a whole range of matters? MS NGOYE: That is correct Chairperson. A D V VA S S O N I S C : I just want to say to you following consultations we have had in relation to the evidence that you will give now we have a g r e e d t h a t m u c h o f t h e d e t a i l s c o n t a i n e d i n t h e a ff i d a v i t s a n d t h e 10 annexures might not be strictly relevant to the thrust of what the Commission is investigation – investigating namely State Capture. MS NGOYE: That is correct Chairperson. A D V VA S S O N I S C : A n d t h e r e f o r e w e w i l l c o n c e n t r a t e i n y o u r e v i d e n c e on those matters directly implicated in State Capture. MS NGOYE: That is correct Chairperson. A D V VA S S O N I S C : N o w i f I s t r a y p l e a s e b r i n g m e i n l i n e a n d i f y o u stray you will forgive me if I bring you in line. And I am sure if both of us stray the Chairperson is going to bring us both in line. Okay well we c a n c a r r y n o w. N o w M s N g o y e c a n I j u s t a g a i n t o p u t t h i n g s i n c o n t e x t 20 t h e a ff i d a v i t m a r k e d S S 7 A i s a n a ff i d a v i t t h a t d e a l s w i t h o n e s p e c i f i c matter namely a motley contract between PRASA and the DBSA worth about R4.7 billion? MS NGOYE: That is correct Chairperson. A D V VA S S O N I S C : And that is just one specific topic. The second a ff i d a v i t d e a l s w i t h a r a n g e o f m a t t e r s a n d I a m g o i n g w i t h t h e – i n t o Page 9 of 210 16 MARCH 2020 – DAY 224 that in a moment but they all deal with the extent to which in your e x p e r i e n c e P R A S A’s p r o c e s s e s w h e r e – w e r e f o l l o w e d s o a s t o – o r implemented so as to benefit certain beneficiaries. MS NGOYE: That is correct Chairperson. A D V VA S S O N I S C : A n d t h e t h i r d a ff i d a v i t t h a t i s S S 7 C d e a l s specifically with the Siyangena court papers in which you made the f o u n d i n g a ff i d a v i t t h a t i s b e f o r e c o u r t n o w ? MS NGOYE: That is correct Chairperson. A D V VA S S O N I S C : I s i t i n o r d e r i f w e s t a r t w i t h a ff i d a v i t 7 7 – S S 7 B ? 10 MS NGOYE: That is correct Chairperson. A D V VA S S O N I S C : 277. Chairperson that is SS7 page 277 – SS7B page N o w i n t h i s a ff i d a v i t y o u s k e t c h o u t i n t h e f i r s t f e w p a r a g r a p h s your position at PRASA and the type of work you do and in particular the extent to which you are a safeguard to ensuring that PRASA remains within or acts strictly within the law? MS NGOYE: That is correct Chairperson. A D V VA S S O N I S C : R i g h t s o l e t u s s t a r t o ff w i t h y o u r p o s i t i o n a t PRASA. MS NGOYE: Chairperson currently I am the Group Executive for Legal 20 Risk and Compliance. So there is obviously quite a lot of work that one does primarily advising the organisation on legal matters. Yo u k n o w running litigations on behalf of the organisation with the attorneys, drafting contracts as well for the organisation, giving opinions where required and in certain instances we give those opinions where we believe they need to be given so that we can redirect the organisation Page 10 of 210 16 MARCH 2020 – DAY 224 to make sure that we are compliant with what we do. So it is – and I am also responsible for the Risk Portfolio looking at governance related issues and compliance and in a nutshell you know that is basically what I do as a Group Executive leading a team of other lawyers in the organisation. A D V VA S S O N I S C : N o w o n e o f t h e t h i n g s t h a t h a s c o m e u p b e f o r e t h e Commission is the amount of litigation that PRASA has been involved in r e l a t i n g t o d i ff e r e n t c o n t r a c t s t h a t a r e s i g n e d . I am sure there are o t h e r a r e a s o f l i t i g a t i o n . Yo u a r e a w a r e o f t h a t ? 10 MS NGOYE: I am aware Chairperson. A D V VA S S O N I S C : C a n I a s k h o w, w h e n y o u l o o k a t i t n o w, d i d t h a t come about? CHAIRPERSON: Just hang on there. I am going to adjourn so that all this movements that happen here can be attended to without interrupting me. A D V VA S S O N I S C : A s y o u p l e a s e C h a i r p e r s o n . CHAIRPERSON: We adjourn. REGISTRAR: All rise. I N Q U I RY A D J O U R N S 20 I N Q U I RY R E S U M E S CHAIRPERSON : L e t u s c o n t i n u e. ADV VAS SONI SC : CHAIRPERSON : As you please, Chair. O k a y. ADV VAS SONI SC: M i s s N g o y e we were – I h a d a s k e d y o u a b o u t t h e a m o u n t o f l i t i g a t i o n s , e s p e c i a l l y r e l a t i n g t o p ro c u r e m e n t m a t t e rs . Page 11 of 210 Yo u 16 MARCH 2020 – DAY 224 were going to explain to the Chairperson how you think this came about. M I S S NGOYE : Chairperson, there is a lot of litigation within PRASA and m a i n l y t h e l i t i g a t i o n , y o u k n o w, f o c u s e s a r o u n d t h e c o n t r a c t s t h a t P R A S A would hav e c o n c l u d e d w i t h a whole lot of suppliers and when one looks at t he i s s ues a t ha nd on e fi nd s th a t, you kn ow, t h er e is la ck of co m plian c e with processes within PRASA in many of these contracts and we find that, I mean , y ou k no w, we hav e t o re v i e w s o m e o f t h e co n t r a c t s a n d t a k e t h e m t o c ourt s o that the dec i sion s t o e nte r in t o t ho se co n t ra cts ca n b e , yo u k n o w, s e t a s i d e . 10 So, in terms of the number of contracts that we have, I think PRASA is sued on, on a daily basis and there is a lot of li tig at ion t hat , t hat g o e s o n a n d Chairperson, perhaps it is also important for me to say while we deal with this litigation, you know, some, some people find that t he as s is t anc e of the L e g a l D e p a r t m e n t i s c r u c i a l a n d t h e y w e l c o m e i t a n d o t h e r r eg a r d u s a s a n u i s a nc e i n t h e pro c e s s . S o , y o u k n o w, t h i s i s w h e r e we find ourselves and we have to obviously rely on the business in defending the matters where PRASA is concerned. ADV VAS SONI SC: Now, in regard to the major litigation that we have l e d e v i d e n c e o n o r h a v e b r o u g h t to th e n ot ice o f th e C hairp erson , f or 20 example the Swifambo contract, the Siyangena contract, the Siyaya contracts, what role did legal play in drafting the contracts advising how PRASA should deal with these matte rs? M I S S NGOYE : Ch a i r p e r s o n , i n r e s p e c t o f th e Sw ifa mb o a gre emen t tha t h a s b e e n s e t a s i d e b y t h e C o n c o rt and the Supreme c o u r t o f A p p e a l, t h e legal function was not involved at all. This is a contract that was worth Page 12 of 210 16 MARCH 2020 – DAY 224 3 . 5 b i l l i o n R a n d . T h e o r g a n i z a t i o n fe lt it n ece ssa ry t o a p p o i n t s o m e b o d y e l s e o u t s i d e a n d n o t i n v o l v e t h e In te rn al L e ga l Te am i n a s s i s t i n g w i t h t h a t contract. I n f ac t , as f ar a s Swifambo is conce rned , wha t t ra nspired wa s t hat t here wa s a p oin t w here th er e w as a n in te nt io n to in creas e t h e v a l u e o f t h e c o n t r a c t t o 5 b i l l i o n a n d t h i s i s w h e r e , y o u k n o w, t h e L e g a l Department was approached and on looking at the initial contract we were o b v i o u s l y c o n c e r n e d a s t h e Department b e c a u s e w e f o u n d t h e n u m b e r o f p r o v i s i o n s w h i c h w e r e n o t n e c e s s a ri l y c o m p l i e d w i th , f o r i n s t a n c e , y o u 10 k n o w, c o m p li a n c e w i t h n a t i o n a l Tr e a s u r y requirements. Some of the conditions precedent were not followed, were not m e t a n d when we raised these issues as far as the Swifambo contract was concerned, you know, we were fo u nd t o b e in p e o p l e s ’ b a d b o o k s a n d what we s a i d a s t h e l e g a l f u n c t i o n a s f a r a s t h a t i s c o n c e r n e d i s t h a t w e will not participate in a contract that we believe is untoward and also, where we make suggestions for changes to be made those changes not b e i n g w e l c o m e d . S o we have made it very clear, rat h e r do not involve the L e g a l D e p a r t m e n t b e c a u s e i t i s – i t was a late stage already fo r o u r involvement and that is how it was. 20 Chairperson. The Siyangena contract as well, I guess I must start by sayin g I h a d c o m e t o th e L e g a l Department i n S e p t e m b e r 2 01 4 s o t h e s e c o n t r a c t s h a d a l r e a d y b e e n concluded and my understanding is that even in those contracts legal – p a rt ic i pat io n w as v ery mi n ima l, you kn ow, we get called in when there is p r o b l e m s w i t h t h e c o n tract but in te rms of dra ftin g of th ose con tract s a n d advising the organization, we have been excluded. Page 13 of 210 16 MARCH 2020 – DAY 224 Th e P rodi gy c on tra ct a s we ll t hat , t hat is a lso , you know, be in g spoken of here, what we found is that, yes, again, we were not involved a n d w h e n w e ra i s e d i s s u e s a r o u n d t h e a m e n d m e n t s t h a t w e r e r e q u i re d a s f ar as t he c o nt rac t i s c once rned on e could sa y h ell br oke loo se w it h in t h e organization and the advice that we had given, also, at the time, c o n s i d e r i n g t h e f a c t t h a t p r o c e s s e s w e r e n o t f o l l o w e d , w e l o o k e d a t t ha t a n d s a i d , y o u k n o w, o b v i o u s l y w e c an n ot p erp et ua te t his t yp e o f behaviour and I remember that the memo that we drafted for the Group CEO at the time was to say, l o o k , t h i s p r o c e s s w a s n o t n e c e s s a r i l y 10 f ol lowed prop erl y a n d t h a t w e d o n o t b e l i e v e t h a t th e a men dme nt sh ou l d b e m a d e , b u t , y o u k n o w, th a t de cisio n wa s se e n a s lega l, bein g con t ra ry t o w hat p eopl e w ant to do as f ar as th e org a niza t io n wa s con ce rne d a nd i t really did not sit well within the organization. ADV VAS SONI SC : I n f act, as you d eta il la te in your a ffid a vit, you r refusal o r r e l u c t a n c e t o i n v o l v e y o u r s e l f i n t h e S w i f a m b o a n d P r o d i g y m a t t e r s i s w h a t l e d t o M r Dingiswayo ’s dismissa l a nd in th e da y a f t e r, your dismissal. M I S S NGOYE : CHAIRPER SON : 20 Th at i s corre ct, C h airp erson . Well, i t i s g o i n g t o b e i m p o r t a n t t o m e n t i o n p e o p l e ’s names as to who did what, who ignored what so that we have a complete picture as opposed to just generalizations. If a memo was addressed to a s p e c i f i c p e r s o n s a y i n g , t h i s i s t h e a d v i c e a n d t h a t pe r s o n i g n o r e d i t , l e t m e k n o w w h o t h a t p e r s o n i s , w h o th e m e m o w a s f r o m , w h o w a s i t t o a n d what did the memo say a n d what was their response, okay? M I S S NGOYE : Yes , Chairpers on. Page 14 of 210 16 MARCH 2020 – DAY 224 ADV VAS SONI SC : Now we will come to those details in a m o m e n t , M i s s Ngoye. You, in paragraph 9 of your affidavit talk about th e p e r i o d when Mr Lucky Montana was the CEO and you say that PRASA was wrapped with maladministration and corruption. That is – wo u l d t h a t b e correct, is that what you are saying? M I S S NG O Y E: Yes , t hat is cor rect, C ha irp e rson. ADV VAS SONI SC : M I S S NGOYE : What i s th e p ositio n n o w? Chairperson, the more things change at PRASA, the more t hey s t ay t he s a me. Mr Mo nta na le ft in 2 01 5 a nd wh at we f o u nd is t h a t 10 f r om tha t perio d on wa rds , y o u k n o w, th i n g s h a v e n o t n e c e s s a r i l y c h a n g e d t o w ha t w e w oul d hav e wan te d t he m t o b e a nd I do ref lect on t hat in m y a ff i d a v i t b e c a u s e i t i s v e r y c l e a r t h a t i s s u e s a r o u n d m a l a d m i n i s t r a t i o n within PRASA continue. CHAIRPERSON : M r S o n i , I p r e f e r t h a t w e s t a r t w h e r e we should start a n d g o u p t o t h e e n d , f o r e x a m p l e t h i s p art o b v i o u s l y b e l o n g s t o t h e e n d , s o f o r m e , i t d o e s n o t – I d o n o t n e e d i t t o b e t o l d a b o u t i t n o w, o n l y i n g e n e r a l t e r m s a n d l a t e r o n th e de ta ils. I wa n t to get it all in on e pla ce in t h e s t o r y s o I w ould pref er th at we st art so me wh ere , we go u p t o t he e n d and where we deal with an issue, I get all the details that I need to get at 20 t hat ti m e bec aus e ot herw ise w he n I rea d t he t ra n scrip t , I he a r ab o ut t h es e generalities. I want details and then I do not know that I will get the d e t a i l s l a t e r. ADV VAS SON I SC: CHAIRPERSON : Yes . So I suggest we just start from beginning and we deal with issues as a whole and complete and then move on to the others up to Page 15 of 210 16 MARCH 2020 – DAY 224 t he end . So , i n ot he r words, I wil l w a n t t o k n o w i f t h e r e h a s b e e n n o c h a n g e , b u t I w a n t t h a t a t th e e n d . A t t h i s s t a g e I w a n t t o t a l k y o u , t o t a l k t o me ab out 20 14, 20 15 b l a , b l a , b l a o k a y ? ADV VAS SONI SC : Yes , as y ou pleas e, Chair. Now, the firs t s u b s t a n t i v e m a t t e r yo u d e a l w i t h i n y o u r a ff i d av i t , M i s s N g o y e i s t h e i n f l u e n c e o f M r R o y M o o d l e y a t PRASA. M I S S NGOYE : Th at i s corre ct, C h airp erson . ADV VAS SONI SC : And you start that issue at paragraph 14 of your a ff i d a v i t . 10 M I S S NGOYE : Th at i s corre ct, C h airp e r s o n . ADV VAS SONI SC : So, would you tell the Chairperson how it came a b o u t th a t y o u b e c a m e a w a r e o f M r M o o d l e y ’s i n f l u e n c e a n d a s t h e Chairperson has pointed out, one wants particulars about who the i n d i v i d u a l s w e r e , w h o t h e e n t i t i e s w e r e a n d t o w ho s e n o t i c e w e r e c e r t a i n m a tt ers brough t i n r e l a t i o n t o c o n c e r n s t h a t y o u r a i s e . M I SS NGOYE : Chairperson, my first encounter, effectively with the name Roy Moodley was in relation to a contract, an advertising contract , with a p a r t y c a l l e d S t r a w b e rry Worx. Now I had no knowl e d g e o f w h o M r M o o d l e y w a s a t t h e t i m e a n d t h i s c o n t r a c t w a s c o nc l u d e d a t t h e t i m e t h a t 20 I was t he CE O of In te rs i te so, in t e rms of PRASA’s ma n d at e , I nt e rsit e i s responsible for leveraging on, on PRASA’s property portfolio so tha t i t c a n s u p p o r t t h e r a i l bu s i n e s s . Th is c ont ra c t w as en t ered in to aro u nd ab ou t 2 011 – 2 0 – y e s , 2 0 11/ 2 0 1 2 a n d t h e g i s t o f t h e c o n t r a c t , r e a l l y, w a s t h e p r o v i s i o n o f advertising for PRASA in relation to our various stations. Page 16 of 210 N o w, I h a d 16 MARCH 2020 – DAY 224 c o m e t o k n o w o f M r M o o d l e y w h e n I wa s s u m mo n e d t o a m e e t i n g . W h a t I u n d e r s t o o d f r o m M r Ti r o H o l e l e w a s th a t th e g rou p CEO at th e time, Mr L u c k y M o n t a n a h a d r e q u e s t e d t h a t M r Holele call this meeting with the p a r t i e s f r o m S i y a n g e n a – I m e a n , S t r a w b e r r y Wo r x s o t h a t a whole lot of issues can be ironed out. I w el c ome d th e mee ting b ecau se w e a t In t ersite we re ru n n i n g with the transaction and I did not see anything untoward and at the end of t he day I t hin k one c an s af ely say t hat w e did n o t, you kno w, b en e f it on e s u p pl i e r t o t h e o t h e r, t h e r e w ere quite a number of players within the, the 10 advertising portfolio. So , f o r m e i t w a s , Strawberry Worx y o u h a v e g o t y o u r p a r t o f t h e c o n t r a c t . Yo u w i l l d e a l w i t h y o u r p a r t o f t h e c o n t r a c t a n d a n d o b v i o u s l y a c c o u n t a c c o r d i n g ly w h e r e P R A S A i s c o n c e r n e d b u t I g u e s s i t w a s n o t t o b e b e c a u s e i n t h i s p a r t i c u l a r m e e t i n g w h e r e I wa s c a l l e d , M r Holele came with Mr Maharaj who, later on I do say M r C h a i r p e r s o n , M r M a h a r a j i s t h e a t t o r n e y f o r S t r a w b e r r y Wo r x . There was Mr Selvan M o o dl e y w h o I l a t e r u n d e r s t o o d to b e Mr R oy Mo od ley’s so n and the r e was a Mr Ashveer, I just did not k n o w h o w t o p r o n o u n c e h i s s u r n a m e , Chairperson . . .(i nt erv ene s) . CHAIRPERSON : 20 I thi nk it is Va lly. ADV VAS SONI SC : I t is th e re. If yo u look at pa ragra ph 1 5 . 4 , M i s s Ngoye you will s e e t h e r e . M I S S NGOYE : CHAIRPERSON : M I SS NGOYE : CHAIRPERSON : I t i s Dw arika pe rsa dh. O k a y. I t i s . . .(i nte rve ne s). Dwarikapersadh. Page 17 of 210 16 MARCH 2020 – DAY 224 M I S S NGOYE : Yes . CHAIRPERSON : M I S S NGOYE : I s th at t he o ne ? Th at on e. CHAIRPERSON : O k a y. Dwarikapersadh. I cou ld be co mp le tel y mispronouncing it. ADV VAS SONI SC : CHAIRPERSON : Hey? ADV VAS SONI SC : CHAIRPERSON : 10 Dwari k a p ersadh. Dwarikapersadh. Dwarikapersadh. Okay. We must try and pronounce it t he way it sh oul d be p r o n o u n c e d . O k a y. M I S S NGOYE : Chair. ADV VAS SONI SC : Sorry, I just saw that we have the tim e l i n e s . Yo u , a t t hat ti m e, w ere a t t he CEO of In t ersit e. C o u ld you t ell t h e Ch a ir pe rso n b e t w e e n w h a t p e r i o d a n d w h a t p e r i o d y o u w e r e t h e C h a i r p e r s o n of I nt ers it e? M I S S NGOYE : Chairperson, I was the CEO of Intersite from August of 2 0 11 t i l l A u g u s t of 20 1 4 s o I o c c u p i e d t h a t r o l e d u r i n g t h a t p e r i o d . ADV VAS SONI SC: And as the CEO, what would your powers and your d u t i e s b e i n r e l a t i o n t o c o n t r a c t s th a t I nt ersit e h a d co nclud e d w i t h 20 d i ff e r e n t c o n t r a c t s ? M I S S NGOYE : Chair, I think at the time Inter s i t e h a d t h e b e n e f i t o f m e being an attorney as well that I could look at the contracts that were e n t e r e d i n t o a n d a d v i s e a c c o r d i n g l y o n w h a t n e e d s t o h a pp e n a s f a r a s t hos e co nt rac t s w ere c o nce rne d so e ven t hou gh I w as t he CEO, yo u kno w, I di d ma nage reall y a n d w o r k t o g e t h e r w i t h t h e c o m m e r c i a l u n i t w i t h i n , Page 18 of 210 16 MARCH 2020 – DAY 224 within Intersite in making sure that, as an example, this particular c o n t r a c t i s m a n a g e d p r o p e r l y a nd w e a c c o u n t p r o p e r l y w h e r e PRASA is c o n c e r n e d . S o o v e r a n d a b o v e a l l t h e o t h e r w o r k t h a t I h a d t o d o fro m a s t r a t e g i c p e r s p e c t i v e , y o u k n o w, I p l a y e d a h u g e r o l e a s f a r a s l e g a l matters were concerned within Intersite. ADV VAS SONI SC : CHAIRPERSON : Sorry .. .(int e rven es). Just again, Intersite was one of two subsidiaries of PRASA. Is that right? M I SS NG O Y E: 10 CHAIRPERSON : Th at i s corre ct, C h airp erson . Yes a n d th e co nt ract t ha t yo u w ere t alkin g a bo u t fo r a d v e r t i s i n g w a s a c o n t r a c t b e t w e e n P R A S A o r involving PRASA or involving Intersite. M I S S NGOYE : No, Chair. The contract was with Intersite. What h a d t r ans pir ed w as t hat pa rt of th e m an d ate of Int e rsit e co m in g f ro m PRAS A was that PRASA – I n t e r s i t e w o u l d e n t e r i n t o c e r t a i n c o n t r a c t s o n b e h a l f o f PRASA a n d t his was , y o u kno w, f o r r e v e n u e g e n e r a t i o n p u r p o s e s w h e r e I nt ers it e w as c onc erned an d a ls o i n l i n e w i t h t h e m a n d a t e t h a t P R A S A h a d g i v e n I n t e r s i t e o f l e v e r a g i n g , y o u k n o w, P R A S A’s P r o p e r t y p o r t f o l i o a n d m a k i n g m o n e y b e c a u s e a t t h e e n d o f t h e d a y we would account to the 20 g ro u p i n t e r m s o f t h e r e v e n u e t h a t w e w e r e m a k i n g . CHAIRPERSON : I was t o l d l a s t w e e k o f a d v e r t i s i n g o n P R A S A P r o p e r t y. I s tha t wh at y ou a re talk i n g a bou t? M I S S NGOYE : CHAIRPERSON : Th at i s corre ct, C h airp erson . J a . O k a y. ADV VAS SONI SC : Now, in relation to the Strawberry Worx contract, it Page 19 of 210 16 MARCH 2020 – DAY 224 was between whom and whom ? M I SS NGOYE : Th e S t rawbe rry Wo rx con tract , C ha irpe rson w as b e t wee n I nt ers it e and S t raw berry Worx. ADV VAS SONI SC : And was the contract in e x i s t e n c e a t t h e t i m e y o u we re appointed CEO of Intersite? M I S S NGOYE : No, the contract was not yet in exis te nce . Th e, in f ac t, as far as the advertising portfolio was concerned, Chairperson, we had t he c on tra c t bei ng awarded to a co mp any calle d Um ja n ji Consortium and what had bee n a g r e e d a t t h e t i m e w a s t h a t s o m e p o r t i o n s o f t h e c o n t r a c t 10 would be seeded to ot h e r s up p l i e r s . So a portion of that particular c o n t r a c t w a s t h e n s e e d e d t o S t r a w b e r r y Wo r x a n d t h e S t r a w b e r r y Wo r x c o n t r a c t r e a l l y w a s f i n a l i z e d a ro u n d a b o u t 2 0 1 2 . ADV VAS SONI SC: And you were part of that process which Strawberry Worx became involve d i n wh a t U m j a n j i h a d s e e d e d ? M I S S NGOYE : Th at i s corre ct, C h airp erson . ADV VAS SONI SC : And there was – fro m y o u r u n d e r s t a n d i n g , t h e r e w a s n o t h i n g i m p r o p e r a b o u t t h at. M I S S NGOYE : Well, Chair, I – y ou k n o w, I s u p p o s e b e i n g a l e g a l p e r s o n , y o u l oo k a t t he proc u reme nt pro cedu re, yo u know a n d y o u b e c o m e 20 concerned with when somebody speaks about sessions of a procurement p r o c e s s a n d t h e c o n ce r n t h a t o n e h a d w a s t h a t we c o u l d b e c h a l l e n g e d o u t t h e r e b e c a u s e c l e a r l y t h a t w a s n o t t h e a i m . Yo u c o u l d n ot ju st e n t e r i n t o a n a g r e e m e n t w i t h a p a r t y a n d t h e n s e e d o ff p o r t i o n s o f i t to o th er p e o p l e w h o h a d n o t n e c e s s a r i l y b e e n s u c c e s s f u l i n t h e t en d e r, b u t t h i s i s what tran s p i r e d in t his case an d th e Page 20 of 210 d e cision for t he ses sio n 16 MARCH 2020 – DAY 224 . .. (i nt erv ene s ). CHAIRPERSON : Th e s e s s i o n w o u l d d e f e a t t h e w h o l e p u r p o s e f o r procurement. M I S S NGOYE : Th at i s corre ct, Ch a irperso n. So in th is re g ard , yo u k n o w, when the instruction cam e t o s a y w e n e e d t o s e e d t h i s c o n t r a c t , t h e i n s t r u c t i o n c a m e f r o m t h e B o a r d o f I n t e r s i t e a t t h e t im e a n d the Chairperson of the Board of Intersite at the time was Mr Lucky Montana s o e ff e c t i v e l y, y o u k n o w, t h a t i n s t r u c t i o n w a s c arried through, but the c o n ce r n s w e r e r a i s e d a r o u n d , y o u k n o w, s e e d i n g c o n t r a c t s f o l l o w i n g a 10 procurement process. CHAIRPERSO N: M I S S NGOYE : CHAIRPERSON : M I S S NGOYE : Th e i n s t r u c t i o n w a s t o d o w h a t ? To s e e d ? To s e e d . Ye s . Th e, t he rig h ts to se e d w ho se rig ht s to whom? Well, b e c a u s e U m j a n j i , C h a i r p e r s o n , C o n s o r t i u m h a d b e e n t h e s u c c e s s f u l b i d d e r, s o i t w a s b a s i c a l l y t a k e n a w a y fro m U mja n j i a n d g i v e n t o S t r a w b e r r y Wo r x , s o t h a t h a d t o b e a c o n s e n t c o m i n g f r o m Umjanji to say, y e s , I c o n s e n t t o t h e s e ss i o n o f – a t po rtion o f the a d v e r t i s i n g p o r t f o l i o t o S t r a w b e r r y Wo r x . CHAIRPERSON : 20 So, there was in existence a contract be tw ee n In t e r s i t e and Umjanji. M I S S NGOYE : CHAIRPERSON : Th at i s corre ct, C h air. And that was for advertisements to be don e o n PRASA Properties . M I SS NGOYE : CHAIRPERSON : Th at i s c o rrect, C ha irpe rson . And that had been in existence from when, t h a t Page 21 of 210 16 MARCH 2020 – DAY 224 c o nt rac t ? M I S S NGOYE : CHAIRPERSON : M I S S NGOYE : CHAIRPERSON : Fro m 2011 . Fro m 2011 . Th at i s corre ct, C h airp erson . And as far as you know, i t t o o h a d b e e n i m p l e m e n t e d over the years. M I S S NGOYE : CHAIRPERSON : 10 Yes , Chairpers on. And the n t h i s i s n o w 2 0 1 4 , 2 0 1 5 ? M I S S NGOYE : Th is is no w 20 12 , 2 0 1 3. M I S S NGOYE : No, when, when the instruction comes to say the re should b e a s e s s i o n f r o m Umjanji to Strawberry Worx. When is that – wh e n w a s t hat ins t ruc t io n? M I S S NGOYE : CHAIRPERSON : I t w as aro un d 20 1 2 . Around 2012? Oh, okay. Alright. And basically it s o u g h t t o – t h e i n s t r u c t i o n s o u g h t t o m a k e s u r e t h a t w h a te v e r b e n e f i t s would have be e n g i v e n t o , w o u l d h a v e b e e n o b t a i n e d b y U m j a n j i w o u l d n o w g o t o S t r a w b e r r y Wo r x . M I S S NGOYE : CHAIRPERSON : 20 Th a t i s co r r e c t , C h a i r p e r s o n . So, this instruction came about a year or so after the c o n t r a c t h a d b e e n c o n c l u d e d be t w e e n Umjanji a n d I n t e r s i te . M I S S NGOYE : CHAIRPERSON : Th at i s corre ct, C h airp erson . Yes . O k ay. Alright. Thank y ou. ADV VAS SONI SC : Now, when the instruction came from the Intersite Board and you say Mr Montana was, Chairperson I do not t h i n k t h e r e w a s a n y d i s p u t e t hat t he CE O of PRASA wa s th e Ch airpe rson o f t he Boa rd s o f Page 22 of 210 16 MARCH 2020 – DAY 224 I nt ers it e an d A ut op ax . W he n t hat in struct i o n c a m e where any concerns raised by you or by your L e g a l Te a m a t I n t e r s i t e ? M I S S NGOYE : Chairperson, as I indicated, the co n c e r n s w e r e r a i s e d , I m e a n , I reme mbe r be ing on e o f th e pe ople tha t ra ise d t h e con ce rn o f th e s e s s i o n b e t w e e n , y o u k n o w, p a r t i e s i n l i g h t of th e pro cu remen t pro ce ss t hat I unders to od h ad been , yo u kn ow, und er t ake n so I d e f in it ely ra ised t he i s s ues a rou nd th e s e s s i o n a s a c o n c e r n b u t , yo u kno w, I gu ess o n e i s overruled and this is basically what happened. The session proceeded a n d we e n t e re d i n t o a c o n t r a c t w i t h S t r a w b e r r y Wo r x . 10 CHAIRPERSON : Now, this instruction, did it come to you in a Board m e e t i n g of I nt ers i te or was it give n to you ou tsid e of t he Boa rd me etin g, so when it was given for the first time? M I S S NGOYE : CHAIRPERSON : M I S S NGOYE : I t w as gi v e n b y th e Boa rd . I t w as given b y th e Boa rd? Yes , it was giv en by the Board bec aus e from an auth o r i t y p e r s p e c t i v e t h e y h a d t o auth o rise me to th en sig n th a t co n tra ct so it cam e f r om t he B oa rd of Int er si te at th e t ime . CHAIRPERSON: Yes . Now th e a dve rtiseme nt a gre e me nt . D id t he y n ot e n t a i l t h a t w h o e v e r h a d a c o n t r a c t w i t h I n t e r s i t e i n t h i s re g a r d w o u l d 20 o b t a i n c l i e n t s who want advertisements to be placed on certain properties o f P R A S A a n d t h a t t h a t e n t i t y w o u l d p u t t h o s e a d v e r t i s em e n t s a n d t h e n t he cl ie nt s wou l d pay that e ntity a n d t h a t e n t i t y w o u l d t h e n p a y s o m e m o n e y t o I n t e r s i t e or PRASA. Is that not what was involved? M I S S NGOYE : Th at i s c o rre ct , C ha irp erson . In fa ct, in t er ms of t he c o n t r a c t , t h e r e w a s a 6 0 / 4 0 s p l i t o f t h e revenue so where PRASA, for Page 23 of 210 16 MARCH 2020 – DAY 224 i n s t a n c e , y o u k n o w, g a v e Capex , f or inst an ce, in re latio n t o p articu lar s t r uc t u r e s w h i c h w o u l d b e u s e d fo r ad vert ising p urp o ses, t hen PR ASA would get 6 0% o f t h e r e v e n u e c o m i n g b a c k a n d v i c e v e r s a , C h a i r p e r s o n , where for i n s t a n c e a n y o f t h e o t h e r, y o u k n o w, a d v e r t i s i n g c o m p a n i e s i n v e s t e d t h e i r m o n i e s i n r e s p e c t o f t h e a d ve r t i s i n g p o r t f o l i o t h e r e v erse would apply where 6 0% o f t h e r e v e n u e w o u l d t h e n g o t o t h e m a n d t h e 4 0 % would then be accounted for where Intersite was conc e r n e d . CHAIRPERSON : O k a y. T h a n k y o u . ADV VAS SONI SC: 10 Now one, when you raised your concerns about the session I take it one of your concerns was that this could – the award could be challenged on the basis as you said that that is not what the p urpose o f aw ardin g a tend er is. ADV VAS SONI SC : Th at is cor re ct, Cha ir p e r s o n . I n f a c t , t h a t w h o le a d v e r t i s i n g c o n t r a c t w a s a s u b j e c t o f l i t i g a t i o n . We w e r e c h a l l e n g e d y o u k n o w, p r i m a r i l y b y P r i m e M e d i a w h o b e l i e v e d t h a t t h e p r o c e s s t h a t w a s f ol lowed was not p r o p e r. S o , y o u k n o w, i t w a s i n e v i t a b l e t h a t d o i n g t h e s e s s i o n a s well, you know, would comp o u n d t h e i s s u e s w h e r e w e a r e concerned. CHAIRPERSON : 20 So is the position that, in 2011 when that contract was c o n c l u d e d b e t w e e n I n t e r s i t e a n d U m j a n j i p r o c u r e m en t p r o c e s s i n g h a d n o t b e e n c o m p l i e d w i t h t h e r e a s w e l l a n d t h a t w he n an instru ction to e ffe ct a session was given that too, you pointed out to the Board, would defeat t he purpo s e of proc uremen t? M I S S NGOYE : CHAIRPER SON : Th at i s c o rrect, C ha irpe rson . O k a y. Page 24 of 210 16 MARCH 2020 – DAY 224 ADV VAS SONI SC : Now, in regard to the Prime Media m a t t e r, M i s s Ngoye, you re f erred t o it in pa ra gra ph 15 . 5 o f y o u r a ff i d a v i t , t h a t i s S S 7 B. I s that c orr ec t ? M I S S NGOYE : Th at i s corre ct, C h airp erson . ADV VAS SONI SC : Now, what was P rime Me d i a ’s , i f y o u c a n r e c a l l , what were their main comp l a i n t s w h e n t h e y c h a l l e n g e d th is a wa rd? M I S S NGOYE : Chairperson, at the time of th e te nd er pro cess, t he re w as a c o m p a n y b y t h e n a m e o f P r o v a n t a g e t h a t w a s p a r t o f , y o u k n o w, t h e c o m p a n i e s t h a t h a d b i d f or the advertising portfolio. Now what transpi red 10 a f t e r t h e c o m p l e t i o n o f t he te n de r p rocess w as t hat Provan tag e th en , y o u k n o w, e n t e r e d i n t o a n a g r e e m e n t w i t h a n o t h e r c o m p a n y a n d t h e y f o r m e d t he Co nso rti um of U mj anji. No w, cle arly, you kn o w, t h a t a s w e l l , yo u k n o w, f r o m a p r o c u r e m e n t p e r s p e c t i v e c a nn o t b e c o r r e c t b e c a u s e I d o recall that when the approval was sought from the group CEO, Mr M o n t a n a, t hat P rova nt ag e wa s t he su ccessfu l win ne r. He ind icat e d t h at h e i s n o t h a p p y a b o u t t h e B E E c o m p o n e n t o f P r o v a n t a g e a n d t h e n the , Consortium was t h e n f o r m e d w h i c h w a s t h e n c a l l e d U m j a n j i . N o w w h e n Prime Media challenges this whole tender process, it also challenges it on the basis that the party that had tendered was Provantage and not 20 Umjanji Consortium a s h a d b e e n t h e c a s e a f t e r t h e a w a r d o f t h e c o n t r a c t and so those were some of the issues that Provantage had raised as a concern for them to say this process was flawed because the parties that p a r t i c i p a t e d i n t h e t e n d e r p r o c e s s w e r e r e a l l y a t t h e e n d o f th e da y d i s r e g a r d e d i f o n e c o u l d j u s t s i m p l y fo rm sep ara te en titie s ou t s i d e t h e procurement process. Page 25 of 210 16 MARCH 2020 – DAY 224 ADV VAS SONI SC : Now when you say that Prime Media challenged the award was it through a court application? M I S S NGOYE : Th at i s co rre ct, Ch a irpe rson. In fa c t t h e m a t t e r h a s s t i l l n o t b ee n f i n a l i z e d . CHAIRPERSON : M I S S NGOYE : Why after so long? I t is a c omple x issu e , Ch a irpe rson, I mean i t h a s b e e n a n i s s u e w h e r e , f o r i n s t a n c e w i t h t h e i n v o l v e m e n t a l s o o f S t r a w b e r r y Wo r x f i g h ti ng f or th ei r ri ghts . T he re were quite a number of compa n i e s i n f a c t t here w ere th r e e c o m p a n i e s w h e r e U m j a n j i h a d t o s e e d t h e i r r i g h t s t o . S o 10 we had Umjanji, we had a company called Siyathembana and then we had a c o m p a n y c a l l e d S t r a w b e r r y Wo r x s o i n d e a l i n g w i t h t h i s m a t t e r we foun d t hat ea ch part y th en w a n t e d t o b e r e p r e s e n t e d , w a nte d to ta ke pa rt in the litigation and that is why it prolonged, but also, Chairperson, one must mention that we had a challenge internally with the lawyers that were a s s i s t i n g u s a t t h e t i m e . We h a d b r ie f e d H o g a n L o v e l l s , f o r in s t a n c e , t o a s s i s t u s w i t h t his part ic u lar ma tte r, bu t y o u k n o w, d u r i n g t h e r u n n i n g o f t he mat t er it wa s fe l t t hat Ho gan Lo vells wa s no t do ing its wo rk an d it wa s c r i t i c i z e d e x t e n s i v e l y a n d w e w e r e i n s t r u c t e d r a t h e r t o a p p o in t a n o th e r l a w f i r m t o d e a l w i th t h e m a t t e r. S o , y o u k n o w, th e st op a nd sta rt is wh at 20 f r us t rat ed t he p roc es s . CHAIRPERSON : M I S S NGOYE : Yes . When y ou s ay it was felt, who felt that way ? Mr Montana, for instance. I received a call from Mr M o n t a n a t o s a y, he y, M a r t h a , y o u n e e d t o c h a n g e l a w y e r s y o u k n o w an d I was like, b u t w h y, b e c a u s e t h e l a w y e r s a r e d o i n g w h a t t h e y a r e s u p p o s e d t o be d oin g. No, no, no, no. They are not defending the interests of Page 26 of 210 16 MARCH 2020 – DAY 224 PRASA properly I di d not a g ree with it, you kn ow, C ha i r p e r s on , b e c a u s e I was i n s t r u m e n t a l l y i n v o l v e d i n th e ru nn ing o f th at matt er so I kne w wh a t was at stake and a n d when that instruction came I refused t o c a r r y i t o u t . I said to Mr Montana in any event the company that you want us to brief i s n o t e v e n o n o u r P a n e l , y o u k n o w t h a t ’s a n i s s u e f o r m e a n d a l s o what is going to happen to all the costs that we have already incorrect in the work that Hogan Lovells had done, we’re briefing a new firm, so I just wasn’t comfortable with doing that and I just decided not to heed the call and I left it at that. 10 A D V VA S S O N I S C : I f y o u l o o k a t p a r a g r a p h 1 5 . 6 o f y o u r a ff i d a v i t M s Ngoye you raise another matter concerning expenditure or the nature of the expenditure that changing lawyers would entail, the first sentence of paragraph 15.6 MS NGOYE: T h a t ’s c o r r e c t C h a i r p e r s o n . A D V VA S S O N I S C : And would you tell the Chairperson what that was? MS NGOYE: Chairperson it was precisely around you know the changing of lawyers midstream and ...(intervenes). CHAIRPERSON: 20 Maybe before you proceed you should tell me b e c a u s e I s e e i n y o u r a ff i d a v i t a t p a r a g r a p h 1 5 . 5 , w h a t f i r m M r M o n t a n a wanted to be instructed? MS NGOYE: There was a firm called BBM Attorneys, I don’t know what the acronym stands for Chairperson, but they call themselves BBM Attorneys and we were supposed to state the matter to BBM for them to run with it. Page 27 of 210 16 MARCH 2020 – DAY 224 CHAIRPERSON: MS NGOYE: A n d w e r e t h e y o n P R A S A’s P a n e l o f A t t o r n e y s ? No Chairperson they were not. CHAIRPERSON: What was the position about law firms that were on P R A S A’s P a n e l o f A t t o r n e y s , w a s t h e p o s i t i o n t h a t w h e n P R A S A instructs attorneys it had to confine itself to those attorneys who were on the Panel all the time or was the position that in certain circumstances attorneys who were not on the Panel could be briefed by PRASA and if so what would be those circumstances? MS NGOYE: 10 Chairperson it was very clear within PRASA that if a law firm is not on the Panel it cannot be briefed, I mean this was also making sure that you know when the AG comes, the Auditor General, comes and audits the organisation we can then produce a list of attorneys and they can obviously look at who we have briefed, so it was a known fact a known fact within PRASA that unless a law firm is on the Panel of PRASA it cannot be briefed and that was the position, you know the reality was that we did not want to fall foul of those processes as well in our policies internally when we made sure that we only spec with those companies that are on the Panel. CHAIRPERSON: 20 Well was this position part of PRASA policy that is written down and existed somewhere? MS NGOYE: T h a t ’s c o r r e c t C h a i r p e r s o n CHAIRPERSON: MS NGOYE: And it was clear? Ye s i t w a s v e r y c l e a r C h a i r. CHAIRPERSON: Ye s , o k a y, a l r i g h t . Ye s y o u m a y c o n t i n u e . A D V VA S S O N I S C : I n f a c t j u s t t o m o v e t o t h e r e l a t e d b u t d i ff e r e n t Page 28 of 210 16 MARCH 2020 – DAY 224 point when Werksmans was appointed to do the investigation the AG raised the question that that was an irregular appointment because they w e r e n o t o n t h e l i s t o f P R A S A’s a t t o r n e y s i s t h a t n o t c o r r e c t ? MS NGOYE: Well I guess the AG raised it, Werksmans was on our Panel, let me start by saying that, so they were on our Panel but the issues that the AG had raised were primarily around the type of work that Werksmans was undertaking for the organisation and they felt that at the time PRASA ought to have gone out on tender because this was a n i n v e s t i g a t i o n r e a l l y a t t h e e n d o f t h e d a y a n d t h a t ’s w h e r e t h e 10 challenge was, but at the end of the day Werksmans had been on P R A S A’s P a n e l w h e n t h e d e c i s i o n w a s t a k e n t o w o r k w i t h W e r k s m a n s , so there as d i ff e r e n t appreciation or understanding Chairperson between what was really required and what had been done by the Board in the appointment of Werksmans. CHAIRPERSON: A n d b e f o r e a n y l a w f i r m c o u l d b e p l a c e d o n P R A S A’s Panel I take it that there was some accreditation process that would be undertaken by PRASA, is that correct? MS NGOYE: T h a t ’s c o r r e c t C h a i r p e r s o n , t h e P a n e l c o m p r i s e d o f t h o s e firms that had participated ...(intervenes). 20 CHAIRPERSON: MS NGOYE: T h a t ’s i t . CHAIRPERSON: MS NGOYE: That meet certain criteria. Is that right? T h a t ’s c o r r e c t C h a i r p e r s o n . CHAIRPERSON: O k a y. A D V VA S S O N I S C : And they would bid to be on the Panel? Page 29 of 210 16 MARCH 2020 – DAY 224 MS NGOYE: Ye s , y e s C h a i r p e r s o n . A D V VA S S O N I S C : Now just so that we are not at cross-purposes at some later stage you talk about a PRASA Panel of Attorneys, you indicated that this was a contract the Strawberry Worx contract was between Intersite and Strawberry Worx. MS NGOYE: H’mm. A D V VA S S O N I S C : Was the Panel that Intersite used the same as P R A S A’s P a n e l ? MS NGOYE: 10 Ye s C h a i r i n f a c t h o w i t w o r k s w i t h i n P R A S A t h e G r o u p i s that the legal function is central so the legal function sits at Head O ff i c e a s a s u p p o r t f u n c t i o n s o a l l t h e s u b s i d i a r i e s o f P R A S A w o u l d then go to the legal function to ask for assistance there, the budgets of that work would sit in the corporate function with the Legal Department, so none of the subsidiaries had a budget for legal work. A D V VA S S O N I S C : Can we turn to the instruction that you must dis- appointment Hogan Lovells and appoint BBM, what happened to that instruction? MS NGOYE: Well Chair as I indicated I didn’t understand the rationale for the instruction from Mr Montana but it was a serious issue and we – 20 one can safely say that we were really under strain to justify why we should not be using BBM, you know one would have thought that it is what it is at the end of the day when you have a law firm that is not e v e n o n t h e P a n e l a n d t h e r e ’s a n i n s i s t e n c e t h a t w e g i v e i t w o r k a n d a t the end of the day we were also looking at the monies that the organisation had spent with Hogan Lovell so it just didn’t make sense Page 30 of 210 16 MARCH 2020 – DAY 224 to us that we just move this on instruction because somebody there says Hogan Lovell is not representing and looking out for the interests of PRASA accordingly so you know it was just one of those things that we just – we were just not comfortable doing. CHAIRPERSON: MS NGOYE: Is Mr Montana a lawyer? N o t t h a t I k n o w o f C h a i r. CHAIRPERSON: Ye s . A D V VA S S O N I S C : MS NGOYE: 10 No, no your answer is either yes or no. Okay he is not a lawyer Chairman. CHAIRPERSON: But of course if you don’t know you can’t say he is not. MS NGOYE: Well that is the other thing. CHAIRPERSON: If you don’t know whether he is or he is not then you can tell me you don’t know whether he is or not. MS NGOYE: Well I don’t know if he is Chair ja. CHAIRPERSON: J a , j a , o k a y, a l r i g h t . Did you say to him but Mr Montana how can you say we must instruct a law firm that is not on our Panel, you know what the policy position is and if you did what did he say to that? 20 MS NGOYE: Ye s C h a i r M r M o n t a n a w a s a w a r e y o u k n o w t h a t i t i s j u s t not possible, one wanted – I wanted to find out really what the rationale is for this request from him. CHAIRPERSON: MS NGOYE: What did he say? And his explanation was no, Hogan & Lovell is not looking after the interests of PRASA, we need to move this to another Page 31 of 210 16 MARCH 2020 – DAY 224 law firm. CHAIRPERSON: So that might explain moving the work from Hogan Lovell but it can’t be explained why a firm that is not on the Panel should be the one to which the work must be moved, so did he give you an answer as to why a firm that is not – that was not on the Panel of PRASA should be used? MS NGOYE: T h e r e w a s n o e x p l a n a t i o n C h a i r, w e w e r e j u s t t o l d m o v e , move it to this law firm. CHAIRPERSON: 10 MS NGOYE: Ye s . A n d t h a t ’s i t . CHAIRPERSON: Now with regard to Hogan Lovells with regard to t h e m d i d h e s a y, d i d h e g i v e y o u d e t a i l s a s t o w h a t i t i s t h a t h e s a i d they had not done well. MS NGOYE: It was a general statement Chairperson, it was very general, about protecting ...(intervenes). CHAIRPERSON: MS NGOYE: That they were not protecting PRASA/ Ja, in the interests of PRASA they are not doing well and t h a t w a s n o t s u ff i c i e n t . CHAIRPERSON: 20 But you as the Head of the Legal Department you were satisfied with the work of that firm? MS NGOYE: Ye s t h a t i s c o r r e c t C h a i r p e r s o n . CHAIRPERSON: MS NGOYE: Yo u h a d n o p r o b l e m s ? No. CHAIRPERSON: O k a y, t h a n k y o u . A D V VA S S O N I S C : As it pleases. Now eventually though what was Page 32 of 210 16 MARCH 2020 – DAY 224 the solution devised by Mr Montana to ensure that Hogan Lovells was removed? Yo u w o u l d n ’ t a c t o n t h a t i n s t r u c t i o n a s I u n d e r s t a n d i t ...(intervenes). CHAIRPERSON: Mr Soni I think you should put the question d i ff e r e n t l y, w e h a v e n ’ t h e a r d f r o m t h e w i t n e s s w h e t h e r a n y s c h e m e w a s devised. What did Mr Montana do when you refused to remove the work from Hogan Lovells to BBM? MS NGOYE: Well Chair I can safely say that Mr Montana was not happy and I spoke earlier of a meeting that I was summonsed to with 10 the representatives of Strawberry Worx. Now for me it was very clear because really at that meeting those representatives of Strawberry Worx that were there had come to tell me as well to move Hogan Lovells as the attorneys for PRASA and in fact what I was told was that they would make sure that the advertising portfolio is moved from Intersite and is going to be run at Corporate, so you know at the end of the day what also transpired was that Mr Montana he had not communicated to me really what he was going to do but I just saw you know it would unfold, for instance I was you now at Intersite and the n e x t t h i n g I k n e w C h a i r p e r s o n w a s t h a t M r M o n t a n a ’s s p e c i a l l e g a l 20 a d v i s o r, h e h a d a s p e c i a l l e g a l a d v i s o r b y t h e n a m e o f M a l i n i N a i d o o , c a m e t o t h e o ff i c e s o f I n t e r s i t e a n d s t a r t e d r e m o v i n g t h e f i l e s . CHAIRPERSON: MS NGOYE: Removing the files. CHAIRPERSON: MS NGOYE: Started? Removing the files. The files in relation to the advertising portfolio. Page 33 of 210 16 MARCH 2020 – DAY 224 CHAIRPERSON: MS NGOYE: Ye s . Obviously I found that very strange and when I enquired as to you know where the instructions come from I received a very hostile response from Ms Naidoo who you know for instance told me t h a t s h e w a s a n o ff i c e r o f t h e c o u r t , s h e w a s h e r e t o r e m o v e t h e f i l e s , she was instructed by Mr Lucky Montana to do so and found it you know rather amazing that I was refusing to release the file and started accusing me of corruption, right there, you know her words were what is it that you are hiding, that you don’t want these files to be removed. 10 Remember at the time there was no instructions from Mr Montana to say look I am going to remove these files from Intersite, it just happened like that, that people just came in, led by Ms Malini N a i d o o , w h o w a s M r M o n t a n a ’s s p e c i a l a d v i s o r, s h e j u s t c a m e a n d removed the files. CHAIRPERSON: D i d s h e s a y s h e w a s d o i n g s o o n M r M o n t a n a ’s instructions? MS NGOYE: Ye s C h a i r, s h e t o l d m e t h a t , i n f a c t s h e – h e r a t t i t u d e w a s you can ask whoever you want, but Mr Montana is the one that said we must come and remove these files. 20 CHAIRPERSON: How long did – how long after your discussion with Mr Montana did this happen? MS NGOYE: I t w a s a b o u t t w o / t h r e e m o n t h s a f t e r C h a i r. CHAIRPERSON: MS NGOYE: Ye s . That you know there was this rash move. CHAIRPERSON: And in the interim during that three or so months you Page 34 of 210 16 MARCH 2020 – DAY 224 he had not come back to you to say look I heard what you said but I am going to instruct people to come and remove the file? MS NGOYE: N o h e h a d n ’ t C h a i r, i n f a c t w h e n t h a t h a p p e n e d I p h o n e d Mr Montana to want to know what is going on, but I didn’t find him, so I then phoned – we had a Lead Independent Director because Mr Montana was the Group CEO and Chairperson as well of Intersite and when I phoned Mr Bennie Butshelo and I said Mr Butshelo what is going on, I am not advised of this instruction, the mandate of advertising from the PRASA Board sits with Intersite and there is no resolution that I 10 know of that removes that portfolio from Intersite back to Corporate, what is going on and Mr Butshelo was puzzled, he didn’t know what was going on and he indicated to me that he will find out from Mr Montana, b u t e ff e c t i v e l y C h a i r t h a t ’s w h a t t r a n s p i r e d a n d w h e n I m e t M r M o n t a n a the following day I basically said to him but Mr Montana how can you s e n d p e o p l e t o c o m e a n d a t t a c k m e , I r e m e m b e r t h a t ’s e x a c t l y w h a t I said, to come and attack me and I report directly to you, you know in terms of the structure, why is it that you did not tell me that you are sending people to Intersite to come and remove the files. Yo u c o u l d have told me, I even said to him so I must just be aware because 20 maybe people will come in and attack me and I wouldn’t know about it. Mr Montana said well he didn’t know anything about it, he didn’t know anything about the removals of those files, he didn’t instruct anybody and then I requested that we then schedule a meeting you know with the individuals that had come and represented that he w a s t h e o n e t h a t i n s t r u c t e d t h e m , b u t t h a t m e e t i n g t o o k a d i ff e r e n t f o r m Page 35 of 210 16 MARCH 2020 – DAY 224 Chairperson CHAIRPERSON: W e l l m a y b e y o u n e e d t o t e l l u s t h a t d i ff e r e n c e b e c a u s e t h a t ’s p a r t o f t h e r e m o v a l o f t h e f i l e s a n d w h a t h a p p e n e d t o them. MS NGOYE: Sure. CHAIRPERSON: MS NGOYE: Ye s . Yo u k n o w C h a i r w e m e t i n t h a t m e e t i n g w i t h M r M o n t a n a , m y s e l f , M r T i r o H o l e l e , M r T i r o H o l e l e w a s t h e s t r a t e g y o ff i c e r i n t h e o ff i c e o f t h e G r o u p C E O , t h e n w e h a d M s M a l i n i N a i d o o , t h e a d v i s o r, 10 Special Advisor to Mr Montana, then we had the late ...(indistinct) M z i n g e w h o w a s r e s p o n s i b l e f o r t h e C o r p o r a t e A ff a i r s p o r t f o l i o w i t h i n the organisation. Now I went there wanting really to find out how Mr Montana could then have given this instruction and then come back and say he didn’t and I thought that you know Mr Montana would reprimand the people that just basically came to Intersite and removed the file. didn’t happen like that. It In fact within minutes of that meeting Mr M o n t a n a ’s w o r d s w e r e y o u s e e i f y o u g u y s h a d l i s t e n e d t o w h a t I h a d said to you we would not be sitting here and ...(intervenes). 20 CHAIRPERSON: MS NGOYE: If you guys had listened to who? To w h a t h e h a d s a i d t o u s , a b o u t t h e a d v e r t i s i n g p o r t f o l i o ...(intervenes). CHAIRPERSON: The guys here, the reference to the guys here being a reference to who? MS NGOYE: Mr Holele and myself. Page 36 of 210 16 MARCH 2020 – DAY 224 CHAIRPERSON: MS NGOYE: O k a y. Mr Lindikaya Zede, who was the company secretary at the time, also you know knew about the instruction to remove the files, s o M r M o n t a n a e ff e c t i v e l y s a i d t o u s w e w o u l d n ’ t b e s i t t i n g h e r e i f y o u people, referring to the three of us, had listened to what I said and therefore he wants these files to be removed, so we didn’t deal in that meeting with the fact that he had said he didn’t authorise the removal of those files. In fact there were lots of accusations that were levelled against me by Ms Malini Naidoo in the presence of Mr Montana you 10 know accusing me of corruption, accusing me of maladministration and y o u k n o w a t t h e e n d I s a i d t o M r M o n t a n a w e l l i f t h a t ’s t h e c a s e t h e n suspend me, so that you can conduct your investigations but I don’t agree with what is being is said and the issue here was about the removal of the files and the instruction that you had given, so clearly now you are going against the word that you had told me that you had no knowledge of this instruction and now it appears that you are actually supporting what was done. Yo u k n o w t h e m e e t i n g w a s a h o r r i b l e m e e t i n g C h a i r p e r s o n . I n fact in that meeting what Mr Montana decided was there was a Martin 20 Chauke, who was responsible for running the advertising portfolio within Intersite, an instruction was given to say call Mr Chauke and s u s p e n d h i m a n d t e l l h i m t o b r i n g y o u n o w P R A S A’s e q u i p m e n t . This was around 22:00 at night Chairperson and we had to do that and I was very clear I wasn’t going to suspend Mr Chauke because I just didn’t agree with how you know things were done and Ms Holtzinger together Page 37 of 210 16 MARCH 2020 – DAY 224 with Ms Malini Naidoo then decided to draft the letter and to suspend M r M a r t i n C h a u k e , s o w e h a d t o c a l l M r C h a u k e i n t o t h e o ff i c e a n d h e arrived roundabout 23:00 at night to be told that he is being suspended and that the portfolio in any event has moved to the Corporate function and I must state Chairperson that the issue around the governance processes of that removal were also a concern because what we had said is then give us then a resolution from the PRASA Board that d i r e c t s t h a t w e n e e d t o d o t h i s . I t n e v e r c a m e y o u k n o w s o t h a t ’s h o w things worked. 10 CHAIRPERSON: So you didn’t get – Mr Montana didn’t say at that meeting I never – I had not given instructions in the past that the files be removed as such but his utterances at the meeting suggested to you that he had actually given the instruction is that right? MS NGOYE: T h a t ’s c o r r e c t C h a i r p e r s o n . CHAIRPERSON: MS NGOYE: Ye s . In fact what ...(intervenes). CHAIRPERSON: Certainly at the meeting he was fully in support of the removal of the files? MS NGOYE: 20 That is correct Chairperson. CHAIRPERSON: Ye s , o k a y. A D V VA S S O N I S C : C h a i r p e r s o n I s e e i t i s 11 : 1 5 a n d a t t h e r i s k o f ...(intervenes). CHAIRPERSON: Ye s . A D V VA S S O N I S C : There are a number of issues that arises and I w a n t t o j u s t t i e u p t h i n g s s o t h a t I c o u l d t e l l y o u i n t h e a ff i d a v i t w h e r e Page 38 of 210 16 MARCH 2020 – DAY 224 t h e s e m a t t e r s a p p e a r. CHAIRPERSON: N o t h a t ’s f i n e l e t u s d e a l w i t h t h e m a f t e r t h e t e a break, let us take the tea break, we will resume at half past. We adjourn. REGISTRAR: All rise. I N Q U I RY A D J O U R N S I NQ UI RY RE SUM E S CHAIRPERSON : Yes , let us proc eed. Your mic and y our v oic e. ADV VAS SONI SC : Yes . Ms Ngoy e, the ev idenc e y ou hav e giv e n j u st 10 b e f o r e w e b r o ke , w o u l d I b e co rrect th a t it is all set o ut in pa ra gra p h 15 which has 17 subparagraphs to it? M S N G O Y E: Th at i s c o rrect Ch a irperso n. ADV VAS SONI SC : Th is is o ff yo u r affid avit ca lled SS7B . M S N G O Y E: Th at i s c o rrect Ch a irperso n. ADV VAS SONI SC : Now j u s t t o t ie u p a f e w s m a l l p o i n t s . R e e ff e c t o f – wh a t w a s t h e e ff e c t o f t h a t m e e t i n g i n r e g a r d t o w h e r e t h e p o r t f o l i o – t h e a d v e r t i s i n g p o r t f o l i o , c o n c e r n i n g S t r a w b e r r y Wo r x w a s ? M S N G O Y E: I t ha d mo ved t o t he co rpora te fun ctio n o f PR ASA . CHAIRPERSON : 20 Di d t h a t m e a n th a t I nt ersite wo u ld h a ve not hing to do with it or did it mean that Intersite would still have something to do with it but you as CEO maybe and your team at Intersite would not have anything to do with it? M S N G O Y E: No Chair, i t wa s very cle ar. It wa s r e m o v e d a l l t o g e t h e r f or m I nt ers i te s o eff ect iv ely a ll o f u s a t I nte rsit e wo uld have n ot hin g t o do with that portfolio. Page 39 of 210 16 MARCH 2020 – DAY 224 CHAIRPERSON : But Intersite would remain a party to that agreement. M S N G O Y E: Th at i s corre ct C h airpe rso n. CHAIRPERSON : But t he ma n ag em e n t a t I n t e r s i t e w o u l d h a v e n o r o l e t o p l a y. M S N G O Y E: Th at i s ri ght Ch airpe rso n. CHAIRPERSON : O k a y. ADV VAS SONI SC : Th ank you . Th e ne xt qu estio n is .. .(int e rven es). CHAIRPERSON : I am s orry Mr So n i. I am terrib ly so rry. Di d t h a t m e a n t ha t diff ere nt p e o p l e w o u l d b e t h e p e o p l e t o i n s t r u c t a t t o r n e y s ? 10 M S N G O Y E: Th at i s c o rrect Ch a irperso n. CHAIRPERSON : Yes . M S N G O Y E: I n f act , t hat is wh at ha p pen ed. CHAIRPERSON : Th at i s w ha t h a pp en e d? M S N G O Y E: H’ m m y e s . CHAIRPERSON : O k a y a l r i g h t . A t th at t ime , yo u w e r e a t I n t e r s i t e a n d n o t i n t h e L e g a l D e p a r t m e n t o f P R A S A . B u t o n c e i t w a s – th e s e f i l e s w e r e a t corporate services, did that mean they would fall under the Legal Department o f P R A S A o r n o t n e c e s s a r i l y ? M S N G O Y E: Not nece s s a r i l y C h a i r p e r so n . 20 CHAIRPERSO N: O k a y. M S N G O Y E: I n f ac t , t h ey we re run from t he o ff ice o f M r Lucky M o nt a n a t he Grou p CE O. CHAIRPERSON : Yes . M S N G O Y E: His special advisor Ms M a l i n i Naidoo. CHAIRPERSON : Yes . Page 40 of 210 16 MARCH 2020 – DAY 224 M S N G O Y E: Became the person that ran with t h e p r o c e s s . CHAIRPERSON : Yes . T his migh t ju st be someth ing as an asid e, d id you say Ms Naidoo was a legal advisor to Mr Montana? M S N G O Y E: Th at i s c o rrect Ch a irperso n, specia l le g al ad viso r. CHAIRPERSON : Special legal advisor. M S N G O Y E: Th at i s c o rr e c t Ch a irp erso n . CHAIRPERSON : You may or may not be able to ans wer this . Would t here hav e been a n ee d f or a spe cial le ga l a dvisor t o t h e Gr ou p CEO in – f o r PRASA in circumstances where PRASA had a L e g a l D e p a r t m e n t which 10 was supposed to provide legal advic e to PR ASA? An d I wo uld ima g in e including the Group CEO. M S N G O Y E: Well I did not think so Chairperson because as the Group Executive responsible for legal one would have thought that there is no need for a special legal advisor for Mr Montana. But you know these t hi n gs I su ppos e . . .(i nt erv e ne s). CHAIRPERSON : Do you know whether there was provision in the instruments of PRASA, policies or organogram or whatever that made space for the appointment of a special legal advisor to the Group CEO? M S N G O Y E: No Chair, there wa s n o t a n y. 20 CHAI RPE RS ON: Th ere wa s no t a n y? M S N G O Y E: No. CHAIRPERSON : O k a y. ADV VAS SONI SC : Now in regard to – we l l i f I c o u l d j u s t f o l l o w u p f r o m what the Chairperson has asked. You are the Head of Legal now at PRASA, you have been s i n c e 2 0 1 4 – Au g us t 2 0 1 4 . Page 41 of 210 16 MARCH 2020 – DAY 224 M S N G O YE: Th at i s corre ct C h airpe rso n. ADV VAS SONI SC : How many lawyers including yourself work in your Department ? M S N G O Y E: Well now the number has dwindled Chairperson. I think now t here is four l eg al adv is ors lef t bu t w e w e re at one point s e v e n l e g a l advisors that were part of the team. ADV VAS SONI SC : And at the time of the – th i s i n c i d e n t w h e n t h e portfolio was taken from you, from Intersite, how many legal advisors were there at PRASA head office? 10 M S N G O Y E: Th ere were ro u g h l y 5 / 6 C h ai r p e r s o n . ADV VAS SONI SC: And in your view they had the necessary experience t o deal wi t h a l l matt ers c on ce rnin g PR ASA and p erh a p s CEO? M S N G O Y E: Yes Chairpers on. I believ e that all of them in fac t are admitted attorneys so. CHAIRPERSON : When these fi l e s w e r e a t I n t e rs i t e w h e n y o u w e r e s t i l l t he CEO of I nte rs i te, w ere t h ey be ing h and led wit h t he g u id a n ce of t h e Legal Department of PRASA? M S N G O Y E: No Chair, they were in the office of the Group CEO Mr M o n t a n a a n d b e c a u s e . . .(i n terve n es) . 20 CHAIRPERSON : I me an be fo re th e y w e r e r e m o v e d f r o m I n t e r s i t e . T h a t is what I am talking about. M S N G O Y E: Yes , y es Chair. CHAIRPERSON : Where – b efo re th ey we re re move d f rom In tersit e . .. (i nt erv enes ). M S N G O Y E: Yes . Page 42 of 210 16 MARCH 2020 – DAY 224 CHAIRPERSON : Were they being handle d w i t h t h e g u i d a n c e o f t h e L e g a l Department o f P R A S A ? M S N G O Y E: Th at i s c o rrect Ch a ir. CHAIRPERSON : Yes . M S N G O Y E: Yes . CHAIRPERSON : O k a y b u t y o u s a y a f t e r t h e y w e r e r e m o v e d f r o m I n t e r s i t e t hat c hange d. M S N G O Y E: Yes , that is c orrec t Chair. CHAIRPERSO N: O k a y. 10 ADV VAS SONI SC : Now i n y o u r a ff i d a v i t S S 7 B a t p a r a g r a p h 1 5 . 4 y o u refe r – t h i s i s a m e e t i n g t o w h i c h y o u r e f e r r e d e a r l i e r. O n e o f t h e p e o p l e whom you name as being at the meeting is Mr Maraj. Do you see that? M S N G O Y E: Th at i s c o rrect Ch a ir p e r so n . ADV VAS SONI SC : And then i f y o u l o o k a t 1 5 . 6 y o u s a y t h e l a s t attorneys who handled the matter was Maraj Attorneys. Is there a relationship between Maraj Attorneys and Mr Maraj? M S N G O Y E: I t w as on e an d th e sa me perso n C ha irpe rso n. ADV VAS SONI SC: And beside s n o w a c t i n g f o r P RASA whom were Maraj Attorneys acting for in the dispute with Prime M e d i a ? 20 M S N G O Y E: Chairperson, effectively they were acting for both PRASA a n d S t r a w b e r r y Wo r x . CHAIRPERSON : So, let us get this right. As at the time w h e n t h e file s we re removed from PRASA – fro m I n t e r s i t e t h e a t t o r n e y s b e i n g u s e d b y I nt ers it e/ P R AS A w ere H oga n L ovells. M S N G O Y E: Th at i s c o rrect Ch a ir. Page 43 of 210 16 MARCH 2020 – DAY 224 CHAIRPERSON : Once the files were removed and place at corporate s e r v i c e s a t P R A S A w h e r e t h e a t t o r n e y s d e a l i n g with the m a t t e r o n b e h a l f o f I nt ers it e/ P RA S A c ha nge d. M S N G O Y E: Yes Chair, in fac t Hogan Lov ells was remov ed from the brief. CHAIRPERSON : Yes . M S N G O Y E: Yes . CHAIRPERSON : And who was instructed to handle the matter on behalf of Intersite/PRASA? 10 M S N G O YE: M r Ma r a j . CHAIRPERSON : M r M a r a j – M a r a j A t t o r n e y s . M S N G O Y E: M a r a j A t t o r n e y s , y e s . CHAIRPERSON : And you say Maraj Attorneys was also acting for Strawberry Worx. M S N G O Y E: Th at i s c o rrect Ch a ir. CHAIRPERSON : And at the time that the matter was still b e i n g h a n d l e d b y I n t e r s i t e b e fo r e t h e r e m o v a l o f t h e f i l e s , w a s M a r a j d u r i n g t h a t t i m e a c t i n g f o r S t r a w b e r r y Wo r x ? M S N G O Y E: Th at i s c o rrect Ch a ir. 20 CHAIRPERSON : Strawberry Worx alone in this dispute but later on , h e a c t e r f o r b o t h S t r a w b e r r y Worx and Int e r s i t e/PR ASA? M S N G O Y E: Th at i s c o r r e c t C h a i r p e r s o n . CHAIRPERSON : O k a y a l r i g h t . ADV VAS SONI SC : Now much earlier Ms Ngoye you said that this dispute is still ongoing. Page 44 of 210 16 MARCH 2020 – DAY 224 M S N G O Y E: H’ m m . ADV VAS SONI SC : You rec all Ms Ngoy e? M S N G O Y E: Th at i s c o r r e c t Ch a i r p erson. ADV VAS SONI SC : Who a c t s f o r P R A S A a t p r e s e n t i n t h a t d i s p u t e ? M S N G O Y E: Hogan Lovells acts for PRASA Chairperson. ADV VAS SONI SC : And for Strawberry Worx? M S N G O Y E: I t hi nk i t is still Mr Maraj. I co u ld b e w rong Ch air pe rson but we remov e d t h e i n s t r u c t i o n s f r o m M r M a r a j b e c a u s e o f t h e c o n f l i c t obviously that was there and we took the matters back to Hogan Lovells 10 and they continue to run. ADV VAS SONI SC: We have not gotten there. So, at the time you are at I nt ers it e, Ma raj At t orney s a r e a c t i n g f o r b o t h P R A S A a n d S t r a wb e r r y Worx. M S N G O Y E: Th at i s c o rrect Ch a irperso n. ADV VAS SONI SC: When did you put an end to Maraj Attorneys – o r when did Maraj Attorneys instructions to appear to represent PRASA end? M S N G O Y E: I t hi nk i t w a s t w o m o n th s w ith in my a rriva l with in th e l e g a l f unc t ion w here my s e lf togeth er wit h the Ge nera l M an a ge r Mr Din g iswa y o agreed that we could not have a situation where an attorney for a supplier 20 is also acting for PRASA. And also, we were not seeing traction as far as t hi s m a t t e r w a s c o n c e r n e d a n d we b e l i e v e d t h a t w e n e e d e d t o g i v e t h e m n o t i c e t o s a y t h e y a c c u m u l a t e d – a nd a l s o C h a i r p e r s o n I m u s t s t a t e t h a t M a r a j w a s a l s o n o t o n PRASA’s P a n e l a t t h e t i m e t h a t t h e y w e r e instructed. S o , w e h a d t o d e a l w i t h al l t h o s e i s su e s j u s t t o b r i n g s o m e semblance of order within the legal function. Page 45 of 210 16 MARCH 2020 – DAY 224 CHAIRPERSON : O k a y. ADV VAS SONI SC : Just to complete that part of the picture. As I u n d e r s t a n d i t , w h e n t h e m a t t e r w a s t a k e n f r o m I n t e r s i t e M s M a l i n i Naidoo was effectively t he leg al a d v i s o r f o r P R A S A i n r e l a t i o n t o th a t ma tt er? M S N G O Y E: Th at i s c o rrect Ch a irperso n. ADV VAS SONI SC: When you got to PRASA Head Office in August 2014, y o u t h e n r e m o v e d M a r a j A t t o r n e y s a s P R A S A’s i n s t r u c t e d a t t o r n e y s . M S N G O Y E: Th at i s c o rrec t Ch a irp ers o n . ADV VAS SONI SC : At that sta g e w h e r e w a s t h e f i l e – t h e S t r a w b e r r y 10 Worx file in terms of the legal part? M S N G O Y E: Th e f i les h ad b ee n a t t he corpo rate fun ction . The files wer e also with Mr Maraj so we naturally had to pay Mr Maraj to get our files b ac k be c a u s e o b v i o u s l y h e w o u l d n o t release the files until his fees were paid. So that is what we needed to do and that is what we did. ADV VAS SONI SC: I s t ha t th e co nd itio n h e pu t to ret urnin g the f ile s to you? M S N G O Y E: Yes . ADV VAS SONI S C: Now in r e g a rd t o M r C h a u k e h e i s s u d d e n l y suspended, was any reason given to him to your knowledge for why he 20 was suspended? M S N G O Y E: His letter said it was insubordination Chairperson so . .. (i nt erv ene s ). CHAIRPERSON : What were the details of the al l e g e d i n s u b ordin a t i o n ? M S N G O Y E: Th e fa c t . . .(in te rve ne s). CHAIRPERSON : As you understood them. Page 46 of 210 16 MARCH 2020 – DAY 224 M S N G O Y E: Yes . The fac t that he was - what Mr Martin Chauke was actually accused of was working with a supplier at the detriment of PRASA and effectively wha t ha d ha pp e n e d at th e time C h airpe rso n wa s t h a t b o t h M s Ma l i n i Naidoo as well as the late Ms Hope Zinde had not understood because they had just come into that process not long. They h a d m i s u n d e r s t o o d t h e c o m mu n i c a t i o n b e t w e e n M r C h a u k e a n d o n e o f t h e s e rv i c e p r o v i de r s wh e r e h e i n s i s t e d t h a t c e r t a in t h i n g s w a s s u p p o s e d t o be done in a particular way as far as the contract was concerned because he was managing that contract. 10 So, they took that correspondence to m e a n t h a t M r C h a u k e w a s w o r k i n g a g a i n s t P R A S A a n d c o n n i vi n g wi t h Prime – Pro v a n t a g e . So , i t j us t d id no t make se n se an d wh en I in tha t mee ting wit h M r Montana tried to explain that, it became an issue of saying, no, well that is not how things work. And because the meeting was so tense you then could not even find a way of saying let us step back and really understand what it is that we are talking about. But they had created this impression that, no, Mr Martin Chauke is working with the opposition and t heref or e he m us t be removed. ADV VAS SONI S C: How long was h e s u s p e n d e d f o r ? 20 M S N G O Y E: Mr Chauke was suspended for a period of about 2 years Chairperson without being charged. ADV VAS SONI SC : And was he .. .(in terve n es). CHAIRPERSON : Th at wou ld ha ve be e n fro m w hen to w he n in t e rms of y e a r s 2 0 1 5, 2014? M S NG O Y E: No, it was 2014 so he came b a c k i n 2 0 1 6 . Page 47 of 210 16 MARCH 2020 – DAY 224 CHAIRPERSON : H’ m m . M S N G O Y E: H’ m m . CHAIRPERSON : You do not remember the month or when the s us pens ion started? M S N G O Y E: No. CHAIRPERSON : Wa s i t t h e e n d o f t h e y e a r ? M S N G O Y E: No, it was not th e en d of t h e ye a r C h a i r. It was around J u n e , I t hin k. CHAIRPERSON : O k a y. 10 M S N G O Y E: O f 2 0 1 3 . CHAIRPERSON : Yes . M S N G O Y E: Yes . CHAIRPERSON : O h 2 0 1 3 ? M S N G O Y E: Yes . It was 2013. CHAIRPERSON : J a . M S N G O Y E: When Mr Martin Chauke was asked to leave. So, the who l e o f 2014 , 20 15 h e wa s not a t w ork. He only came back in 2016. CHAIRPERSON : Yes . M S N G O Y E: J a . So, it was over 2 years effectively. 20 CHAIRPERSON : Yes . And do y ou k now why no c harging’s were brought f or s o lon g? M S N G O Y E: Well Chairperson I mea n I g ue s s fo r me it w as very cle a r t hat t here were no charges. People could not put the charges together to – i n f ac t he w as l ik e a fo rgot ten sou l. He is o u t t he re and th ere f ore i t does not matter anymore. Page 48 of 210 16 MARCH 2020 – DAY 224 CHAIRPERSON : H’ m m . M S N G O Y E: Because the e x p e c t a t i o n th a t o ne wo uld h ave h a d is t h at I mean if you are accusing somebody of that, you would immediately prepare the charges but it was not done. CHAIRPERSON : Yes , thank y ou. ADV VAS SONI SC: Now at paragraph 15.17 of SSAB, that is this a ff i d a v i t t hat w e are de a l i n g w i t h , y o u s a y t h a t w h a t y o u h a v e n a r r a t e d i s b e i n g d o n e t o s h o w t h e p o w e r o f m i s te r o r t h e i n f l u e n c e o f M r R o y Moodley at PRASA. 10 M S N G O Y E: Th at is c orr ect C ha ir. C ha ir yo u will reca ll I had in dica t ed t hat I did not k now Mr M oodle y. So , b u t w h e n I t he n g o t t o u n d e r s t a n d what was happening within Intersite with this advertising portfolio and the instructions that were given, it really became clear to me that Mr Moodley was very powerful. Because what I was told at the meeting was, we a re g o i n g t o r e m ov e t h e s e f i l e s , w e a r e g o i n g t o r e m o v e th i s p o r t f o l i o f r o m I nt ers it e. An d i t hap pened. So , t o me it w as ve ry cle a r t ha t , wo w, we have got somebody who is clearly very powerful who can give those instructions and they carried out. ADV VAS SONI SC : Now why d o y o u c o n n e c t M r M o o d l e y, R o y M o o d l e y, 20 with Strawberry Worx? M S N G O Y E: His son Chairperson Selvan Moodley was really instrumental in running that portfolio. So, he managed that portfolio and that relationship obviously father and son f o r m e w a s v e r y cl e a r t h a t e v e n t houg h Mr Moo dle y w as not i n v o l v e d , t h e s o n w a s i n v o l v e d . CHAIRPERSON : Wa s S t r a w b e r r y Wo r x M r R o y M o o d l e y s o n ’s c o m p a n y a t Page 49 of 210 16 MARCH 2020 – DAY 224 it were? M S N G O Y E: Yes . Yes Chairpers on. CHAIRPERSON : O k a y. ADV VAS SONI SC : And you say that on th e ba sis o f wh a t ? M S N G O Y E: Well Chairperson this the – I was made to understand that t hat is t he c as e w here S t raw berry Worx wa s re a lly – I th ink it w as o n e o f t he Directors a t S t r a w b e r r y Wo r x a n d s o i t f o l l o w e d . ADV VAS SONI SC : And in your view .. .(in te rve ne s). CHAIRPERSON : 10 Did you ever – I a m s o r r y. Did you ever see c o r r e s p o n d e n c e f r o m S t r a w b e r r y Wo r x t h a t m a y b e w a s s i g n e d b y h i m o r anything like that? M S N G O Y E: I n m os t i ns t a nces th e corre spon den ce fro m Str awb er ry Wo rx was singed by Mr Ashveer. So , he w ou ld b e the o n e t h a t d o e s a l o t o f t h e l e t t e r s t o P R ASA/Intersite. But the company document has Mr Selvan M o o d l e y. CHAIRPERSON : Yes . M S N G O Y E: As a Director i n t h e c o m p a n y. CHAIRPERSON : So, Mr Roy Moodley’s son was reflected as one of the Directo rs i n t h e c o r r e sp o n de n c e . 20 M S N G O Y E: Yes Chairpers on. CHAIRPERSON: O k a y. ADV VAS SONI SC : And just finally when on that issue. When you were m a n a g i n g t h e S t r a w b e r r y Wo r x p o r t f o l i o a s t h e C E O o f I n t e r s i t e , d i d y o u h a v e i n t e r a c t i o n s w i t h M r S e l v a n M o o d l e y? M S N G O Y E: Yes , I d i d C h a i r. I t w a s i n t h a t m e e t i n g w h e re I w a s Page 50 of 210 16 MARCH 2020 – DAY 224 constantly told that I do not know what I am doing and I was told that I n e e d e d – i n f ac t I w as gi ve n in stru ct ions o f h o w to ru n t he po rt fo lio a nd o b v i o u s l y I w a s n o t g o i n g t o t a k e t h a t . An d o n e t h i n g I ma d e pe r f e c t l y c l e a r t o M r M o o d l e y a n d t h e t ea m t h a t h a d c o m e t o h i m – wi t h h i m t o t h e m e e t i n g w i t h t h a t , I d o n o t r e p o r t t o y o u . I r e p o r t t o t h e Board o f I n t e r s i t e so I am not sure why it is that you can have so much confidence in the m e e ti n g t o t e l l m e h o w t o run the function. I took exception to i t Chairperson. ADV VAS SONI SC : And what was his reaction to that? 10 M S N G O Y E: Well Chairperson I guess for me the reaction was, well we will see what will happen what will prevail. Because i m m e d i a t e l y a f t e r t hat we left the meeting and this whole nois e a r o u n d S t r a w b e r r y Wo r x a n d t he la wy e rs int en si f ied c oming fro m Mr Mo nt an a . So , f or me it be ca me very clear that they clearly went back to report back to Mr Montana and i n s i s t e d o n h o w t h i n g s sh o u l d b e d o n e a nd f i n al l y t h e i r w i s h e s w e r e m e t . ADV VAS SONI SC: Th e ne xt issue s th a t you de al wit h in your aff ida v i t Ms Ngoye is your interactions and perhaps relationship with Mr Lucky M o n t a n a a n d y o u d e a l w i t h t h i s f r o m p a r a g r a p h 1 6 o f y o u r a ff i d a v i t . Will y o u t e l l t he C h a i r p e r s o n p l e a s e w h a t i s i t t h a t i s r e le v a n t t o t h e q u e s t i o n 20 of State Capture in regard to the matters you write? M S N G O Y E: Well Chairperson Mr Montana was the – I first e n cou nt ered M r M o n t a n a i n f a c t a t I n t e r s i t e , h e w a s t h e Chairpe rson o f t h e Boar d o f I n t ers i te an d h e wa s a lso th e Group C EO a t In te rsite so – I m e a n a t PRASA. So effectively I mean when I joined, I got to meet Mr Montana a n d b e c a u s e h e w a s t h e Chair p e r s o n o f t h e Board o f I n t e r s i t e a s w e l l , I Page 51 of 210 16 MARCH 2020 – DAY 224 i n t e r a c t e d e x t e n s i v e l y w it h Mr Mon ta n a at th e time . And in fact when I was asked to le a v e I n t e r s i t e t o g o t o P R A S A , Mr Montana said to me, Martha we have a need for a strong Legal Department f or P R AS A s o th ere fo re be cause o f your b a ckg ro u nd I wou l d l i k e - s u g g e s t t h a t y o u m o v e – we m o v e y o u E x te r n a l G r o up E x e c u t i v e p o s i t i o n , w e m o v e y o u f r o m th e CEO o f I nte rsite to go a nd b uild t he le g al f unc t ion at c orp orate . Wh ich I d id no t see an yt hin g wro n g with . I ju s t knew that as an executive you could be asked to do any work anywhere a nd i t w a s f i n e w it h me. 10 ADV VAS SONI SC : One key including issues is that you moved from I nt ers it e t o P RA S A at M r Mo n ta n a’s requ est. M S N G O Y E: Th at i s c o rrect Ch a irperso n. ADV VAS SONI SC : But you had this ugly encounter with Mr Montana relating to Straw b e r r y Wo r x . I am j u s t s a yi n g – e x p l a i n h o w w e s i t t i n g o u t s i d e s h ou l d u n d e r s t a n d t h a t ? M S N G O Y E: Th at i s how it ha pp e ned C hair. I mean I – s o me o f t h e t hi n gs I a m afra i d I c anno t e xplain but yes, t h e e nco u nt e r w it h St ra wbe rr y Worx with Mr Montana was a v e r y u n p l e a s a n t o n e . A n d t h en y e s i n d e e d he then asked me to go and lead the legal function, I could not refuse 20 Chairperson. So, I agreed to then go across to the L e g a l D e p a r t m e n t. S o as to – I guess one also as far as Mr Montana was concerned my a p p r o a ch i s , w e a r e w o r k i n g t o g e t h e r. And I d o not b are gru dg e s an d would n o t h a v e t a k e n t h a t a s a n i s s u e t h a t I n e e d e d t o c a r r y w i t h m e a l l t he t im e. I a c c epte d what hap pen ed and I moved on. CHAIRPERSON : Now would this move on your part act as a request have Page 52 of 210 16 MARCH 2020 – DAY 224 b e e n a p r o m o t i o n o r n o t n e c e ss a r i l y ? M S N G O Y E: I t w as a la te ral mo v e . CHAIRPERSON : I t w as a la te ral mo ve . M S N G O Y E: I t w as a la te ral mo ve Ch airp e rson . CHAIRPERSON : Your s alary and other benefits remained the s ame? M S N G O Y E: Th at s t ay ed t h e sa me . CHAIRPERSON: O k a y. ADV VAS SONI SC: And I suppose this professional lev e l i t w a s w i t h i n t he f iel d fo r w hi c h y ou had be en train ed an d stu d ied . 10 M S N G O Y E: Th at i s c o rrect Ch a irperso n. ADV VAS SONI SC : Now you then go to .. .(int e rven es). CHAIRPERSON : Well it m a y b e n e c e s s a r y – M r Soni, I a m s o r r y. ADV VAS SONI SC : H’ m m . CHAIRP ERSON: Would it be fair to look at his request to you to move to Head of the Legal Department , w ou ld it be fa ir t o lo ok at th at ag ainst t he b a c k g r o u n d o f y o u r w h a t a p p e a r s t o h a v e b e e n a s e r i o u s d i s a greement a b o u t removal of the files? Would it be fair t o l o o k a t i t a s t w o professionals who accepted that they did not agree on certain issue but otherwise their working relationship just continued on other matters? 20 M S N G O Y E: Yes , c orrec t Chair. I just b e l i e v e d t h a t we – th a t a lot o f i n s t a n c e s d i d n o t a g r e e with Mr Montana. But at the end of the day it was a t a s k – a f ac t tha t I wa s re qu ire d to d o b e cau se t he Board o f I n t e r s i t e a l s o h a d t o a g r e e t o r e l e a s i n g m e t o g o a n d w o r k f o r P R A S A’s l e g a l f unc t ion . CHAIRPERSON : H’ m m . Page 53 of 210 16 MARCH 2020 – DAY 224 M S N G O Y E: So, it was just one of tho s e t h i n g s w h e r e y o u s a y, w e a r e professionals and we just need to do what is in the best interest of the organisation. CHAIRPERSON : O k a y. ADV VAS SONI SC : And soon after you mov e d t o t h e – t o He a d i n t h e l e g a l a t P R A S A M r M o n t a n a a s k s y o u t o d o a n i m p o rta nt job . Wo uld yo u t el l t he Chai rpe rs on w hat th at wa s? M S N G O Y E: Chairperson in December – J a n u a r y – 2 0 1 4 D e c e m b e r, 2 0 1 5 J a n u a r y, M r M o n t a n a t o o k l e a v e f o r t w o m o n t h s a n d h e t h en a p p r o a c h e d 10 m e a n d r e q u e s t e d m e t o ac t i n h i s s t e a d d u r i n g t h a t p e r i o d o f t w o mo n t h s . So, I was then able to take over the role of the Action Group CEO whist he was a way and that is what happened. CHAIRPERSON : Well I guess that following up on the ques tio n I aske d e a rl i e r o n , c r e d i t s h o u ld b e g i v e n b o t h t o y o u a n d h i m t h a t a t l e a st at tha t stage whatever disagreements the two of you may have had, you were not – b o th o f y o u w e r e n o t a l l o w i n g t h a t t o a ff e c t y o u r w o r k i n g r e l a t i o n s h i p . M S N G O Y E: Th at i s c o rrect Chairperso n . CHAIRPERSON : Becau s e n o w h e w a s a s k i n g y o u t o s t a n d i n f o r h im i n t o be Acting Group CEO. 20 M S N G O Y E: Th at i s c o rrect Ch a ir. CHAIRPERSON : He would not – I would imagine he would not want to do t hat t o wi th so m eb ody t hat h e did n o t tru st o r w i t h s o m e b o dy h e d i d n o t t hi n k w ou l d b e u p t o t h e j o b a n d s o o n . M S N G O Y E: Th a t i s c o r r e c t C h a i r p e r s o n . CHAIRPERSON : Yes ok ay. Page 54 of 210 16 MARCH 2020 – DAY 224 ADV VAS SONI SC : M s N g o y e y o u m i g h t r e m e m b e r m u c h e a r l i e r i n y o u r e v i d e n c e y o u w e r e t a l k i n g a b o u t o r y o u w e r e r e l a t i n g y o ur role as Head o f Legal in contracts that PRASA concludes and what advise you were given a n d s o o n . Yo u m e n t i o n e d t w o m a t t e r s a t t h a t s t a g e , a Swifa m b o m a t t e r a n d t h e P r o d i g y m a t t e r. M S N G O Y E: Th at i s c o rrect Ch a ir. ADV VAS SONI SC : Now how did they bec o m e r e l e v a n t t o what happened s o o n a f t er you assumed duties in around May 2015? M S NGOYE : Chairperson as I have indicated, the issue around Swi f a m b o 10 was just not working where the legal function was concerned. We believed that the contract had forgone and the advises that we were given were n o t r e a l l y b e i n g l i s t e n e d t o . W h e n w e a s k e d th e qu est io n to say we cannot continue with this contract if these things have not been met. The conditions precedent have not been met. Anybody would know that u n l e s s y o u m e e t t h e c o n d i ti o n s p r e c e d e n t t h e c o n tract does not come into be. So, when we asked these questions and we interrogated the contract, we received a lot of push back. We then wrote Mr Dingiswayo and myself t hen we wrot e t o M r Monta na effect ively in dica ti n g t h a t w e w i l l n o t b e a b l e t o p a r t i c i pa t e i n t h e i s s u e o f Swifambo . 20 When it ca m e t o P r o d i g y, M r D i n g i s w a y o i s t h e o n e t h a t d e a l t with the Prodigy contract and I worked very closely with Mr Dingiswayo, h i m b e i n g m y d i r e c t r e p o r t a n d h e h a d i n d i c a t e d t o m e t h a t , l o o k t hi s i s t he s c ena rio a nd t his i s t he e -m a i l th a t I a m g oin g to se nd to Mr Mon ta n a a n d t h e t e a m t h a t h a d i n s t r u c t e d u s o n t h e m a t t e r. B e c a u s e w e d i d n o t agree that there was proper process that will follow so we think that – Page 55 of 210 16 MARCH 2020 – DAY 224 that e-mail to Mr Montana and the team that had instructed us and you know we thought that we would be engaged accordingly about the advices that we had given but we were not. A D V VA S S O N I S C : L e t u s j u s t s t a r t o ff w i t h t h e S w i f a m b o m a t t e r. MS NGOYE: H’mm. A D V VA S S O N I S C : W h e n y o u b e c o m e a H e a d o f L e g a l a t P R A S A t h a t is now one of the matters on your table I think. MS NGOYE: Ye s i t c a m e t o m y t a b l e . It was the amendment – the intended amendment of the Swifambo contract. 10 Because the contract had already been concluded so we were looking at amending the contract with the possibility of also increasing the value of the contract to R5 billion. A D V VA S S O N I S C : When you say we who initiated that process of increasing the value of the contract? MS NGOYE: It was a discussion that was happening within the o r g a n i s a t i o n C h a i r. I u n d e r s t o o d t h a t t h e i n s t r u c t i o n w a s c o m i n g f r o m you know Mr Lucky Montana and obviously he would need to have taken that instruction back to the Board. So we understood as the legal function that that was the intention – that is where the organisation was 20 going and the necessary approvals would be obtained to increase the value from R3.5 billion to R5 billion. So it is something that we understood. A D V VA S S O N I S C : A n d f r o m t h e p e r s p e c t i v e o f l e g a l w a s t h a t g o i n g to create hurdles for PRASA or problems for PRASA? M S N G O Y E : W e l l i t w o u l d h a v e C h a i r. H a v i n g c o n s i d e r e d t h e c o n t r a c t Page 56 of 210 16 MARCH 2020 – DAY 224 and the issues that we had raised you know with the contract itself we were not comfortable. I mean this – this matter was huge. R3.5 billion f o r i n s t a n c e t h e a p p r o v a l o f N a t i o n a l Tr e a s u r y. questions. We asked those And the fact that those things were not being attended to you know created a very serious problem for us you know from a compliance perspectives and we just did not see this contract you know being beneficial to PRASA. And when we raised our concerns it was not received favourable. A D V VA S S O N I S C : S o – b u t l e t u s j u s t h a v e s o m e d e t a i l . W h e n y o u 10 say we raised our concerns what – who specifically and with whom and thereafter what were the nature of the concerns you raised? MS NGOYE: Chairperson Mr Montana as far as this particular contract was concerned had sought the legal advice of a Ms Brenda Malongete who was a consultant at the time. And she had been the one that had you know been running with the drafting of the contract. So Mr Dingiswayo and myself had had a number of meetings with Ms M a l o n g e t e w h o w a s e ff e c t i v e l y t h e l e g a l a d v i c e f o r P R A S A a n d w h e n w e raised the concerns because the issues – when we read the contract we wanted to know – we saw gaps in the contract as an example R3.5 20 billion is above the materiality you know of PRASA and in terms of Legislation we knew what needed to be done. And we asked whether the – for instance the necessary approvals were in place she was not able to give us. We asked about the necessary approvals you know in t e r m s o f Tr e a s u r y, i n t e r m s o f t h e D LT a n d w e w a n t e d t o s e e a l l t h o s e and we also wanted to understand exactly what the Board of PRASA Page 57 of 210 16 MARCH 2020 – DAY 224 had approved. Because it was not clear at the time whether the Board had approved the stay or the lease of the locomotives and the number that was you know branded at the time was between 70 and 80 so we needed clarity in terms of you know those issues in the contract and the material ones obviously being compliance. A D V VA S S O N I S C : A n d y o u h a v e r e a d t h e j u d g m e n t o f J u s t i c e F r a n c i s and then Justice Lewis in the SCA. MS NGOYE: H’mm. A D V VA S S O N I S C : S o m e o f – t h o u g h t h e i s s u e s t h a t t h e y d e c i d e d i n 10 their respective judgments matters that you had raised. MS NGOYE: Ye s C h a i r. precedent yes we did. I mean the issues around the conditions And I guess at the time Chair when we were instructed to assist with the Swifambo contract you know we did not have a lot of information. I mean some of the work that was picked up through the investigation was not things that were at our disposal. For instance in terms of really pulling out the fact that you know out of the number of guarantees that were required we did not even get all the number of guarantees that were there. But we saw this at face value – we were just asking questions you know just to make sure that 20 everything has been complied with. A D V VA S S O N I S C : T h e n c a n I j u s t s a y y o u t a l k a b o u t a n i n v e s t i g a t i o n you must please tell the Chairperson what investigation you are talking about? MS NGOYE: Chairperson this is the forensic investigation that was conducted by the firm of attorneys Werksmans from the instructions of Page 58 of 210 16 MARCH 2020 – DAY 224 the Board. So when they did their investigations and looked at these contracts they were then able to find out that a lot more had been amiss. A D V VA S S O N I S C : S o t h i s i s a f t e r M r M o l e f e ’s B o a r d h a d t a k e n o ff i c e ? MS NGOYE: That is correct Chairperson. A D V VA S S O N I S C : A n d w h o w a s – w h a t w a s M r M o n t a n a ’s p o s i t i o n a t PRASA at that time? MS NGOYE: Well Mr Montana left in 2015 so the – so he was no longer 10 there at the time that really this investigation process commenced. A D V VA S S O N I S C : B u t a t t h e t i m e y o u w e r e r a i s i n g i n 2 0 1 5 n o w y o u were raising questions the investigation had not started or had it started? MS NGOYE: That is correct Chair it had not started. A D V VA S S O N I S C : S o e v e n b e f o r e t h e i n v e s t i g a t i o n s y o u w e r e r a i s i n g questions in relation to the possible extension of the contract from R3.5 billion to R5 billion? MS NGOYE: That is correct Chairperson. A D V VA S S O N I S C : 20 Now the other contract that you mention in p a r a g r a p h 1 9 i s a c o n t r a c t r e l a t i n g t o P r o d i g y. CHAIRPERSON: H’mm. MS NGOYE: That is correct Chairperson. A D V VA S S O N I S C : Now why would Prodigy be such an important player in PRASA? MS NGOYE: Chairperson we knew that – in fact it was spoken of Page 59 of 210 16 MARCH 2020 – DAY 224 internally that whoever touches Prodigy you know is not – will not receive a favourable you know response from Mr Montana. We had been communicating with a lot of people internally and they had i n d i c a t e d t o u s t h a t t h i s w a s M r M o o d l e y ’s c o n t r a c t a n d t h e r e f o r e w e needed to do you know what we have been instructed to do. A D V VA S S O N I S C : The Mr Moodley you talking about is? A D V VA S S O N I S C : M r Wa y n e M o o d l e y. A D V VA S S O N I S C : T h e n y o u r e f e r t h e n t o a n a n n e x u r e w h i c h i s N N 2 at page 317 of that bundle. 10 M S N G O Y E : Ye s C h a i r. A D V VA S S O N I S C : If you could just summarise for the Chairperson what the issue is that is raised near …(indistinct). CHAIRPERSON: Before that tell us who the e-mail came from and to whom it was addressed and what the subject was that it was dealing w i t h a n d t h e d a t e a n d t h e n y o u s u m m a r i s e t h e i s s u e s t h a t w a y. A D V VA S S O N I S C : Sorry Mr Chairperson I understand my learned f r i e n d w a n t s t o r a i s e a m a t t e r. C H A I R P E R S O N : Ye s . UNKNOWN COUNSEL: Thank you Chair and my learned friend for the 20 indulgence. C H A I R P E R S O N : Ye s . UNKNOWN COUNSEL: Chair I just want to bring to the attention of yourself that we have not received these annexures and this – these – t h i s p a r t o f t h e a ff i d a v i t C h a i r. CHAIRPERSON: Oh is that so. Page 60 of 210 16 MARCH 2020 – DAY 224 UNKNOWN COUNSEL: We have limited information to work with. C H A I R P E R S O N : Ye s . UNKNOWN COUNSEL: May I ask for a short stand down and if my learned friend can oblige me with a few copies we can then proceed. It will be a very short. C H A I R P E R S O N : Ye s . UNKNOWN COUNSEL: I cannot follow because I do not have copies. C H A I R P E R S O N : Ye s . UNKNOWN COUNSEL: 10 If I am indulged with a set I could follow along. C H A I R P E R S O N : Ye s . N o t h a t i s f i n e . UNKNOWN COUNSEL: T h a n k y o u C h a i r. CHAIRPERSON: Let – Mr Soni. A D V VA S S O N I S C : M r C h a i r p e r s o n f i r s t l y i f t h a t h a s h a p p e n e d I a m must accept responsibility for that and I apologise. It is as you well k n o w d o n e b y a d i ff e r e n t D e p a r t m e n t . I o b v i o u s l y w o u l d o k a y i t a n d I a m s o r r y. B u t w e w i l l m a k e a v a i l a b l e t o m y l e a r n e d f r i e n d t h e r e l e v a n t annexures that he wants now Chairperson. CHAIRPERSON: What should happen is before anybody sends a n y t h i n g t o a n y b o d y t h e E v i d e n c e L e a d e r s m u s t o k a y t h a t t o s a y, i s t h i s 20 the right thing to send? Is everything that should be sent included? A D V VA S S O N I S C : Ye s . CHAIRPERSON: And so the Evidence Leaders must make sure that other people do not decide for them. A D V VA S S O N I S C : Ye s . CHAIRPERSON: What is to be sent? The Evidence Leaders must Page 61 of 210 16 MARCH 2020 – DAY 224 identify what is to be sent and other people can then collect and bring to the Evidence Leaders to say these are the things we have identified. Yo u c h e c k t h a t t h e y a r e f i n e a n d t h e n t h e y d o n o t g e t s e n t u n t i l y o u s a y this is okay it can go. A D V VA S S O N I S C : Ye s . CHAIRPERSON: Okay how much time should – five minutes? A D V VA S S O N I S C : W e w i l l n o t n e e d m o r e t h a n f i v e m i n u t e s . CHAIRPERSON: Five minutes? A D V VA S S O N I S C : Ye s . 10 CHAIRPERSON: H’mm. A D V VA S S O N I S C : A b o u t f i v e m i n u t e s p l e a s e . CHAIRPERSON: About five minutes. Okay we will adjourn for five minutes. Adjourned. REGISTRAR: All rise. I N Q U I RY A D J O U R N S I N Q U I RY R E S U M E S CHAIRPERSON: Ye s , l e t ’s p r o c e e d . Yo u r m i c i s n o t o n . A D V VA S S O N I S C : Sorry Chairperson. There has been made available to my learned friend the annexure in concern – in issue. 20 CHAIRPERSON: Ye s , o k a y, o k a y, t h a n k y o u . A D V VA S S O N I S C : Ms Ngoye can you please tell the Chairperson what the gist of this document – well as ...(indistinct) who sent it, what the gist is and so on? MS NGOYE: Chairperson this e-mail was from Mr Lucky Montana, it w a s a d d r e s s e d t o M s N h l a n h l a K o n d o w e w h o w a s , e ff e c t i v e l y r u n n i n g Page 62 of 210 16 MARCH 2020 – DAY 224 with the prodigy contract at the time, Mr Fani Dingiswayo and Mr Sidney Khuzwayo who is in the SEM Portfolio, I was copied, one of the people that was copied on the e-mail. CHAIRPERSON: MS NGOYE: And this e-mail is marked MM2, is that right? T h a t ’s c o r r e c t C h a i r p e r s o n . C H A I R P E R S O N : Ye s , o k a y w h a t w a s t h e s u b j e c t o f t h e e - m a i l ? MS NGOYE: Chair the complaint – I saw this as a complaint from Mr Montana. CHAIRPERSON: Ah yes. 10 MS NGOYE: Yo u k n o w, e ff e c t i v e l y i t ’s a b o u t t h e M y S t a t i o n P r o g r a m m e w h i c h i n v o l v e s P r o d i g y a n d C h a i r t h i s w a s d o n e , o b v i o u s l y, a f t e r a s t h e l e g a l f u n c t i o n w e h a d g i v e n t h a t a d v i s e t o s a y, w e b e l i e v e that this contract is irregular and should not be continued with. He t h e n w r i t e s t h i s m e m o t o u s , e ff e c t i v e l y s a y i n g t h a t t h e r e i s n o t h i n g wrong with the appointment of Prodigy nor the extension of their c o n t r a c t . Yo u k n o w i n a n u t s h e l l , t h i s e - m a i l , C h a i r p e r s o n e ff e c t i v e l y, is Mr Montana being outraged and believing that there are forces within PRASA that are working against him, you know when you read the email he says: 20 “This is well co-ordinated strategy that started in November 2014 when I went on leave.” Now this is a time when I was acting, you know at the time, so I e ff e c t i v e l y t h o u g h t , o k a y t h i s h a s g o t t o d o w i t h m e s o m e h o w, y o u k n o w, i n w h a t w o r k I d i d i n h i s a b s e n c e a n d y o u k n o w, h e s a y s , t h e extent of opportunism by some of our managers really amazes me. So Page 63 of 210 16 MARCH 2020 – DAY 224 you can see from the language that Mr Montana has used in the e-mail that he was ready to go to war with whoever was standing in his way as f a r a s t h e s e m a t t e r s a r e c o n c e r n e d b e c a u s e h e r a i s e s t h a t t h e r e ’s a couple of contracts which are seen to be irregular and so on and I understood, at the time, that he was referring to the work that we had done around Swifambo as well as now around Prodigy that he believed that we were working against him …(intervenes). C H A I R P E R S O N : M a y b e t h e e - m a i l m i g h t b e s u ff i c i e n t l y i m p o r t a n t j u s t by reading it, just read it, before that Ms Nhlanhla Kondowe was part of 10 t h e L e g a l Te a m o r L e g a l D e p a r t m e n t ? MS NGOYE: N o C h a i r, s h e ’s w i t h i n H R a n d t h i s i s w h e r e t h e c o n t r a c t was placed within the organisation. CHAIRPERSON: Oh Alright, just read the e-mail in then you can comment. MS NGOYE: O k a y. CHAIRPERSON: Ja. MS NGOYE: So he says – he addresses the e-mail to Nhlanhla, he says: “There is nothing wrong with the appointment of Prodigy 20 nor the extension of their contract. I’m not surprised because this is part of a much bigger agenda which has targeted certain contracts and appointments and projects t h e s e a s b e i n g i r r e g u l a r. Some of the contracts had already been leaked to external auditors and the media as part of a strategy to discredit the Group CEO and Page 64 of 210 16 MARCH 2020 – DAY 224 create a cloud before he steps down at the end of the y e a r. ” It then goes on to say: This is a well co-ordinated strategy that started in November 2014 when I went on leave. I will, at the most appropriate time, act against all those who are involved in this dirty campaign. The investigation they are starting is unlawful and part of a plot I am well aware of. The extent of opportunism by some of our managers 10 really amazes me. A manager like Sidney Khuzwayo should by start first cleaning the many irregular appointments he has party to within SEM which I have been trying to address and even explaining some of t h e s e t o t h e o ff i c e o f t h e P u b l i c P r o t e c t o r. S o m e o f t h e managers are excited by the new Board and are feeding all sorts of wrong information so that they could carry favour with the Board, they will be the biggest losers at the end of this process. The decision to partner with Prodigy on the training of customer services remains 20 s o u n d s a n d t h e e x t e n s i o n o f t h e c o n t r a c t i s s t i l l i n o r d e r. Please allow them to continue with this strategy which is bound to fail, kind regards, Lucky Montana.” CHAIRPERSON: Ye s i n t h e s e c o n d p a r a g r a p h h e r e f e r s t o t h e investigation that he said – that he says is unlawful, what investigation was he talking about there? Page 65 of 210 16 MARCH 2020 – DAY 224 MS NGOYE: I don’t know Chairperson, I wouldn’t be able to say because I’m not aware of any investigation that was …(intervenes). C H A I R P E R S O N : Ye s a n d h e s a y s t h a t t h i s , w e l l c o - o r d i n a t e d s t r a t e g y started in November 2014 when he was on leave, that is when you were standing in for him, is that right? MS NGOYE: T h a t ’s c o r r e c t C h a i r p e r s o n . CHAIRPERSON: Okay now with regard to the Prodigy contract there has been much evidence about it, just remind me again what it was about and to the extent that he talks about its extension, what actually 10 the extension was? MS NGOYE: Chairperson the Prodigy contract was about – it is a t r a i n i n g c o n t r a c t e ff e c t i v e l y w h e r e P r o d i g y w o u l d p r o v i d e , y o u k n o w, training to the customer services unit within PRASA so a number of e m p l o y e e s w i t h i n P R A S A w o u l d b e t r a i n e d b y P r o d i g y. S o t h e c o n t r a c t had come to an end …(intervenes). CHAIRPERSON: They would be trained to do what or to be what? MS NGOYE: I n r e l a t i o n t o c u s t o m e r s e r v i c e s w h a t e v e r w a s , y o u k n o w, within customer services space, I don’t have the details of the contract here, I just surmise to say certain things but what I know is that it was 20 around training within customer services. C H A I R P E R S O N : Ye s . MS NGOYE: And various employees of PRASA would then be able to go there and then Prodigy would then be able to charge PRASA for services rendered in relation to that training. So it needed to be a m e n d e d b e c a u s e w e w e r e i n c r e a s i n g s c o p e f u r t h e r. Page 66 of 210 16 MARCH 2020 – DAY 224 CHAIRPERSON: A n d t h e – w h e n y o u s a y, n e e d e d t o b e a m e n d e d , i s that the extension? MS NGOYE: Ye s , t h e c o n t r a c t i t s e l f w e n e e d e d t o t h e n o b v i o u s l y include more scope of what Prodigy was supposed to do. C H A I R P E R S O N : S o t h e e x t e n s i o n t h a t h e ’s t a l k i n g a b o u t r e f e r s t o a n amendment of the contract to give it more a wider scope? MS NGOYE: T h a t ’s c o r r e c t C h a i r p e r s o n . C H A I R P E R S O N : O k a y, a l r i g h t . MS NGOYE: 10 Chairperson just for your reassurance Mr Dingiswayo is going to be the next witness who will deal with this contract in more detail. C H A I R P E R S O N : Ye s , n o t h a t ’s f i n e . A D V VA S S O N I S C : Now this is sent to you, among others you and Mr Dingiswayo? M S N G O Y E : T h a t ’s c o r r e c t C h a i r p e r s o n . A D V VA S S O N I S C : A n d i n r e g a r d t o t h e c o m p l a i n t t h a t t h e r e ’s n o t h i n g w r o n g w i t h t h e c o n t r a c t , t h i s i s M o n t a n a ’s c o m p l a i n t , w h a t p r o m p t e d him to raise that issue? M S N G O Y E : W e l l I d o n ’ t k n o w C h a i r, I t h i n k f o r m e b e c a u s e i t w a s a 20 known fact within the organisation that you don’t mess with the Prodigy c o n t r a c t , w e k n e w, I m e a n w e s p o k e a s c o l l e a g u e s … ( i n t e r v e n e s ) . C H A I R P E R S O N : Yo u d o n ’ t w h a t ? MS NGOYE: Mess or you don’t interfere with it, you know and we knew of colleagues that had tried to raise their objections to the Prodigy contract and how they were dealt with by Mr Montana. Page 67 of 210 So, 16 MARCH 2020 – DAY 224 e ff e c t i v e l y, w e k n e w t h a t , y o u k n o w, w h a t w e w e r e d o i n g w a s p r o b a b l y g o i n g t o l a n d u s i n t o t r o u b l e b u t i t ’s o u r j o b , w e h a d t o d o i t . A D V VA S S O N I S C : N o w i f y o u l o o k a t w h a t y o u s a y w a s t h e t a i l e n d of paragraph 19 you talk about the advice that Mr …(intervenes). C H A I R P E R S O N : P a r a g r a p h 1 9 o f h e r a ff i d a v i t . A D V VA S S O N I S C : O f S S 7 A , 7 B s o r r y C h a i r p e r s o n . CHAIRPERSON: Ja SS7B? A D V VA S S O N I S C : Ye s , y o u s a y t h a t M r D i n g i s w a y o ’s a d v i c e d i d n o t accord? 10 MS NGOYE: T h a t ’s c o r r e c t C h a i r. A D V VA S S O N I S C : J u s t e x p l a i n t o t h e C h a i r w h a t t h e c i r c u m s t a n c e s were, Mr Dingiswayo will obviously come and give more details? MS NGOYE: T h e i n s t r u c t i o n C h a i r, w a s r e v i e w t h e c o n t r a c t , t h e amendment and okay it from a legal perspective because there was nothing wrong with it, as far as Mr Montana was concerned but because we went – after Mr Dingiswayo looked at the agreement and after discussing it with me, we both believed that we could not support the e x t e n s i o n o f t h e c o n t r a c t a n d a d v i s e a c c o r d i n g l y. S o w h e n o n e s a y s i t d i d n o t a c c o r d w i t h h i s i n s t r u c t i o n s , i t c l e a r l y m e a n s t h a t , y o u k n o w, h e 20 w a s h o p i n g t h a t h e w o u l d g e t t h e g o - a h e a d f r o m P R A S A L e g a l Te a m which did not happen. C H A I R P E R S O N : J u s t t o g o b a c k t o M r M o n t a n a ’s e - m a i l t h a t w e d e a l t with one minute ago, when he says in that e-mail that there was nothing wrong with the Prodigy contract as at that time, did you, yourself know what the position was and if so was it your position that there was Page 68 of 210 16 MARCH 2020 – DAY 224 something wrong with that contract? MS NGOYE: Chairperson on reading the contract, you know – because this issue of Prodigy once again was not a matter that went past the Legal Department and these are some of the things that happened quite f r e q u e n t l y w i t h i n t h e o r g a n i s a t i o n y o u k n o w, s o m e t h i n g s c o m e t o u s after they have been entered into. So it was one of those where at the e n d o f t h e d a y, w h e n i t c a m e t o u s n o w f o r a m e n d m e n t w e a s k f o r t h e e n t i r e f i l e , w e a s k f o r t h e p r o c e s s t h a t w a s f o l l o w e d y o u k n o w, s o t h o s e are the things we requested Ms Nhlanhla Kondowe to give to us so that 10 w e c a n t h e n s e e w h e t h e r t h e r e ’s r e g u l a r i t y i n t h e c o n t r a c t i t s e l f a n d w h e n t h o s e t h i n g s w e r e n o t f o r t h c o m i n g y o u k n o w, w e r e a l i s e d t h i s must be a problem and we didn’t want to be party to something, condoning something within the organisation that did not follow process. CHAIRPERSON: So is the answer that, at the time of that e-mail, your attitude was that there seemed to be something wrong with it but you may not have been definite, you may not have been certain because you had not been given the contract or the whole file? MS NGOYE: 20 T h a t ’s c o r r e c t C h a i r p e r s o n . C H A I R P E R S O N : Ye s , o k a y. A D V VA S S O N I S C : N o w a s a r e s u l t o f – o r a f t e r t h e e - m a i l w a s s e n t what dramatic event happened? MS NGOYE: Chairperson the e-mail was sent on the 18th of May 2015, t h e – I t h e n r e c e i v e d a c a l l f r o m M r D i n g i s w a y o t o s a y, l o o k , I ’ v e b e e n c a l l e d b a c k t o t h e o ff i c e , t h i s i s a r o u n d 7 o ’ c l o c k o n t h e e v e o f t h e 1 8 t h Page 69 of 210 16 MARCH 2020 – DAY 224 – yes it was the 18th and when – that Mr Montana wanted to see him. S o M r D i n g i s w a y o l e f t h o m e a n d w e n t b a c k t o t h e o ff i c e i n P r e t o r i a t o have this meeting with Mr Montana. What I then understood from Mr Dingiswayo was that when he gave me the call after the meeting, he said to me, listen I have been fired by Mr Lucky Montana and I found it very strange and I asked, what was the reason, what did he say to you was the reason for dismissing you and one of the allegations that Mr Montana had made against – this is what Mr Dingiswayo tells me and h e ’ l l s p e a k t o t h a t C h a i r, h e s a i d t o m e t h a t M r M o n t a n a t h o u g h t t h a t h e 10 was leaking information to the Board and he just didn’t understand what that meant because if anybody could possibly leak – and I don’t know how you’d leak information to the Board, would have been me because I am the person that would then sit in some of the Board Committee meetings because of the role that I play within the organisation and you k n o w, i t w a s j u s t a v e r y q u i c k m e e t i n g a s I u n d e r s t a n d i t f r o m M r D i n g i s w a y o t h a t M r M o n t a n a s a i d t o h i m , l o o k h e ’s c l e a r l y n o t w o r k i n g w i t h h i m a n d h e ’s w o r k i n g a g a i n s t h i m a n d t h e r e f o r e h e ’s f i r e d . A D V VA S S O N I S C : And this followed the evening after the day he sent the e-mail …(intervenes). 20 MS NGOYE: T h a t ’s c o r r e c t C h a i r p e r s o n , y e s . A D V VA S S O N I S C : Ye s , w h e n M r D i n g i s w a y o t o l d y o u t h i s , w h a t d i d you do? CHAIRPERSON: I’m sorry Mr Soni can I take you back Ms Ngoye to that e-mail, what page was it again? A D V VA S S O N I S C : P a g e 3 1 7 C h a i r. Page 70 of 210 16 MARCH 2020 – DAY 224 CHAIRPERSON: Oh 317, look at the last few sentences of paragraph 3 of that e-mail, in those sentences Mr Montana says to Ms Kondowe: “Some of the managers are excited by the new Board and are feeding all sorts of wrong information so that they could carry favour with the Board. They will be the biggest losers at the end of this process.” How did you understand those two sentences? MS NGOYE: Chairperson …(intervenes). CHAIRPERSON: 10 MS NGOYE: No they did. CHAIRPERSON: MS NGOYE: Or did they not attract your attention at the time. Ja how did you understand them? I u n d e r s t o o d i t , b e c a u s e , y o u k n o w, w h e n M r M o n t a n a went on leave there was an issue around the Prodigy report that needed to have been presented to the Board, now I was acting at the time and obviously it would have been me who then communicated to t h e B o a r d , t o s a y, w e d o n o t h a v e t h i s P r o d i g y r e p o r t t h a t M r M o n t a n a had promised the Board and I think he took exception to that, I mean, the way I understood it was, he felt that he was the trade at the time b u t f o r m e i t w a s a n i s s u e o f s a y i n g , y o u k n o w, d o w e h a v e t h i s t h i n g o r 20 d o w e n o t h a v e i t a n d I k n o w d e f i n i t e l y, I a m t h e o n e t h a t t h e n w e n t b a c k t o t h e B o a r d t o s a y, w e d o n ’ t h a v e i t I h a d e n q u i r e d . S o w h e n I read this statement – and also in relation to the Board, I knew very well that he was talking about me because there were issues that were raised in his absence that the Board had raised with me and that I had t o r e p o r t o n w h i c h o b v i o u s l y, I g u e s s , h e d i d n ’ t l i k e w h a t I h a d t o t h e n Page 71 of 210 16 MARCH 2020 – DAY 224 tell the Board in his absence. CHAIRPERSON: And did you know of any other managers that you think he was talking about in that sentence when he said some of the managers are excited by the new Board and they are feeding all sorts of information, one, I understand you to be saying you thought you were one of the people he was talking about, is that right? MS NGOYE: Ye s C h a i r. CHAIRPERSON: Were there other managers that you thought he was talking about there? 10 MS NGOYE: I knew definitely that he was talking about Mr Dingiswayo because …(intervenes). CHAIRPERSON: Ye s a n d w h y d i d y o u t h i n k h e w a s t a l k i n g a b o u t M r Dingiswayo? MS NGOYE: Because the subject matter of this e-mail, talks to Prodigy and Mr Dingiswayo was the one that was dealing with the Prodigy matter in the organisation. C H A I R P E R S O N : O k a y. MS NGOYE: So I definitely knew that somehow there was an attack on the legal function as far as the work we’ve been doing. 20 CHAIRPERSON: Did you attach any meaning to the last sentence in that paragraph: “They will be the biggest losers at the end of this process.” MS NGOYE: Ye s I d i d . CHAIRPERSON: What did you understand that to mean? Page 72 of 210 16 MARCH 2020 – DAY 224 MS NGOYE: I understood either that we were going to be disciplined, y o u k n o w, f o r a d v i c e t h a t w e h a d g i v e n b u t I u n d e r s t o o d i t t o m e a n t h a t we were at the wrong end of the stick where Mr Montana was c o n c e r n e d a n d I g u e s s C h a i r, w i t h i n P R A S A y o u d i d n o t w a n t t o b e o n the wrong end of the stick where Mr Montana was concerned and I knew we were in trouble. CHAIRPERSON: What happened if you did? MS NGOYE: Well he took exception to it Chairperson, I mean the behaviour within PRASA was that, not a lot of people would challenge 10 Mr Montana on the things that he would say and if anything I think I was probably one of those people within the organisation that would challenge Mr Montana if I didn’t agree with things and I found that, you k n o w, f o r m e i t w a s a w o r k i n g r e l a t i o n s h i p t h a t w e n e e d e d t o h a v e b u t t h e r e w a s a s e n s e o f f e a r, I m e a n I h a d s o m e o f m y c o l l e a g u e s c o m e t o m e t o s a y, y o u h a v e t o b e o n t h e r i g h t s i d e o f M r M o n t a n a , y o u m u s t n ’ t challenge Mr Montana in the Exco meetings that we have and I just t h o u g h t , b u t w h y a r e w e h e r e , y o u k n o w, b e c a u s e w e n e e d t o d o t h i n g s that are proper and – so that culture within the organisation was there t o s a y, y o u d o n ’ t c h a l l e n g e M r M o n t a n a . 20 CHAIRPERSON: T h e n t h e r e w a s t h e r e ’s t h e s e c o n d s e n t e n c e i n t h e second paragraph: “I will at the most appropriate time act against all those who are involved in this dirty campaign.” Did you have an idea of who he may have been talking about there? Page 73 of 210 16 MARCH 2020 – DAY 224 MS NGOYE: I believe it was the Legal Department, I believe it was between Mr Dingiswayo and myself and Mr Sidney Khuzwayo within the procurement space. CHAIRPERSON: Ye s a n d w h y d i d y o u t h i n k , e v e n i n t h a t p a r a g r a p h h e ’s s t i l l t a l k i n g a b o u t y o u a n d M r D i n g i s w a y o ? MS NGOYE: Because Chairperson it was immediately after the advice that we had given which obviously just annoyed Mr Montana it was just immediately after that that he wrote this and I knew – I mean I even said to Mr Dingiswayo I said, you’re not going to respond to this e-mail, 10 l e a v e i t b e c a u s e w e a r e r e a l l y b e i n g a t t a c k e d h e r e a n d l e t ’s j u s t s e e what is going to happen but to me, at the time, it was very clear that this e-mail was intended for the Legal Department. CHAIRPERSON: Okay thank you, Mr Soni I interrupted you. A D V VA S S O N I S C : M s N g o y e m a y I t a k e u p a p o i n t t h a t – a s r e l a t i n g to the e-mail, if you look at the second paragraph of that e-mail it has three sentences. The Chairperson has dealt with the first two, may I ask you to look again at the third sentence, it says: “The investigation they are starting is unlawful.” What did you understand by that, firstly what investigation was 20 he talking about? MS NGOYE: I – Chair I didn’t know what he was talking to because clearly at the end of the day I knew I wasn’t part of any investigations you know that was involved or investigating Mr Montana at the time. So I really didn’t know what he was talking about. C H A I R P E R S O N : B u t a s y o u s i t t h e r e n o w, a f t e r t h e l a p s e o f t i m e t h a t Page 74 of 210 16 MARCH 2020 – DAY 224 has happened, are you able to relate to any investigation that you later found out was happening at that time that he may have been talking about or not really? MS NGOYE: N o t r e a l l y C h a i r, I c o u l d n ’ t . CHAIRPERSON: Okay thank you. A D V VA S S O N I S C : A n d a t t h a t s t a g e , j u s t f o r t h e s a k e o f t i m e l i n e s , the appointment of ...(indistinct) had not come into being? MS NGOYE: T h a t ’s c o r r e c t C h a i r. A D V VA S S O N I S C : 10 And in regard to what you earlier called the investigations that had been started by the new Board, those too had not started? MS NGOYE: T h e y h a d n o t s t a r t e d C h a i r. A D V VA S S O N I S C : Then you say that – sorry we’re going back to n o w, M r D i n g i s w a y o b e i n g d i s m i s s e d a n d t h a t ’s S S 7 B p a r a g r a p h 2 0 , what did you do when Mr Dingiswayo told you that he’d been dismissed? MS NGOYE: Chairperson immediately after speaking to Mr Dingiswayo I phoned Mr Montana because I didn’t understand why he would – at least not speak to me as somebody that reports to him directly about 20 somebody that reports to me. So I phoned him, Mr Montana and I said, look I understand that you have just fired Mr Dingiswayo, do you care to tell me why and his response to me was look, I can fire Mr D i n g i s w a y o i t ’s w i t h i n m y p o w e r s t o d o t h a t . I s a i d t o h i m , l o o k I w o u l d rather preferred that you speak to me about it because in any event whatever Mr Dingiswayo give to you from a strategic perspective would Page 75 of 210 16 MARCH 2020 – DAY 224 have been something that is sanctioned by me. I did not understand why it is that you felt the need to fire Mr Dingiswayo. So I had that exchange with Mr Montana on the phone and one thing I did also say to Mr Montana is that, you know what Mr Montana, you’re taking me back to the times of Intersite where you basically did the same thing with Martin Chauke why are you doing these things, you know and he was rushing on the phone you know and I said to him, look I’m the person that reports to you why is it that you cannot tell me what it is that you’ve got issues with because I would have thought that I 10 would have been the one that takes the rap if things go pear-shaped within the legal function. He wasn’t willing to have that discussion and he felt that I was challenging his authority and at that time, I then said to him, well can I have a meeting with you to discuss this thing because I clearly do not understand how it is that you can summarily dismiss an employee and a key employee at that, within the organisation and we a g r e e d t o a m e e t i n g f o r t h e f o l l o w i n g d a y. A D V VA S S O N I S C : B e f o r e y o u g e t t o t h a t m e e t i n g M s N g o y e , m a y I ask you …(intervenes). C H A I R P E R S O N : Yo u r v o i c e h a s b e e n l o w e r e d a g a i n . 20 A D V VA S S O N I S C : I a p o l o g i s e C h a i r p e r s o n . M a y I a s k y o u t h i s , y o u received the e-mail – you and the others receive the e-mail and then you are told by Mr Dingiswayo, I’ve been fired, did you see a connection between the two? MS NGOYE: Ye s I d e f i n i t e l y d i d C h a i r, I d i d , I s a w t h e c o n n e c t i o n b e t w e e n t h a t e - m a i l a n d e ff e c t i v e l y w h a t h a d j u s t h a p p e n e d t o M r Page 76 of 210 16 MARCH 2020 – DAY 224 Dingiswayo. C H A I R P E R S O N : A n d y o u s a i d , a c t u a l l y, M r D i n g i s w a y o ’s d i s m i s s a l w a s on the same day as the e-mail, is that right? MS NGOYE: E ff e c t i v e l y y e s . CHAIRPERSON: MS NGOYE: Ja but it was in the night, later in the night? It was at night he had to come back from home Chairperson and when he asked, is it really necessary can it not wait f o r t h e f o l l o w i n g d a y, h e w a s t o l d n o M r M o n t a n a w a n t s t o s e e y o u n o w. CHAIRPERSON: 10 Ye s l e t ’s g o b a c k , i n t e r m s o f w h a t M r D i n g i s w a y o told you as the reason that was given to him or by Mr Montana, did he say that Mr Montana has said it was because he had leaked information or what reason did he say Mr Montana had given? MS NGOYE: He said to me the meeting did not even last five minutes, he said to me the one thing that Mr Montana said was that, yes he was l e a k i n g i n f o r m a t i o n t o t h e B o a r d a n d h e w a s p u z z l e d y o u k n o w, h e doesn’t know how that comes about because he doesn’t even deal with t h e B o a r d y o u k n o w. C H A I R P E R S O N : Ye s . MS NGOYE: 20 S o t h a t ’s w h a t e ff e c t i v e l y h e t o l d m e , t h e m e e t i n g d i d n ’ t last long and he just told me that I’m working against him. CHAIRPERSON: And when you had that telephone conversation with Mr Montana, apart from saying that it was within his power to fire Mr Dingiswayo did he tell you the actual reason? MS NGOYE: N o h e d i d n ’ t C h a i r. CHAIRPERSON: He did not at that stage but you agreed to meet the Page 77 of 210 16 MARCH 2020 – DAY 224 following day? MS NGOYE: T h a t ’s c o r r e c t C h a i r p e r s o n . CHAIRPERSON: O k a y. A D V VA S S O N I S C : Ye s l e t ’s g o t o t h a t m e e t i n g , w h a t h a p p e n e d t h e following day? MS NGOYE: Chairperson I had agreed to meet with Mr Montana early in the morning but the meeting only took place round about 18:00 in the e v e n i n g , s o I w a i t e d t h e w h o l e d a y. I m u s t a l s o s a y t h a t o u r m e e t i n g d i d n o t e v e n l a s t f i v e m i n u t e s . A s I w a l k e d i n , y o u k n o w, i n t o h i s o ff i c e 10 – and in fact he was standing up at the time that he was talking to me, he said to me in the ...(indistinct, African Language) meaning, you k n o w, m o t h e r y o u a r e i n s o l e n t . C H A I R P E R S O N : Yo u w h a t ? MS NGOYE: Insolent, so – and he said that to me, he said you are fired. So I then said, okay Mr Montana I then …(intervenes). CHAIRPERSON: Is that – was that the first thing he basically said at the start of the meeting? MS NGOYE: Ye s C h a i r h e d i d n ’ t e v e n s i t d o w n , h e w a s s t a n d i n g u p a n d t h e n t h a t ’s w h a t h e s a i d t o m e a n d w h a t I f o u n d i s t h a t p e r h a p s h e 20 w a n t e d t o h u m i l i a t e m e a l s o y o u k n o w, a t t h e t i m e b e c a u s e h e h a d h i s PA t h e r e , h i s d o o r w a s o p e n a n d h e ’s l e g a l a d v i s o r M s N a i d o o w a s h a n g i n g a r o u n d t h e r e a n d M s K o n d o w e w a s a l s o t h e r e b u t , e ff e c t i v e l y, I was called in to be told that I’m insolent and I’m fired and I basically s a i d , n o t h a t ’s f i n e I ’ l l l e a v e a n d h e s a i d t o m e , w a i t f o r y o u r l e t t e r, I s a i d t o h i m , n o I ’ m n o t g o i n g t o w a i t f o r m y l e t t e r, i n f a c t I ’ l l g e t m y Page 78 of 210 16 MARCH 2020 – DAY 224 letter tomorrow when I come to pick up my things and I left. CHAIRPERSON: So after the telephone discussion that you had, had with him the previous evening when you had phoned him to ask about M r D i n g i s w a y o ’s d i s m i s s a l a n d t h e c o m m e n c e m e n t o f t h i s m e e t i n g t h e following day at 18:00 pm had there been any discussion between the two of you on anything? MS NGOYE: N o C h a i r p e r s o n w e h a d n ’ t s p o k e n t h a t d a y. CHAIRPERSON: And the only thing that you had spoken to him about, the previous evening when you called about Mr Dingiswayo was why he 10 had fired Mr Dingiswayo? MS NGOYE: T h a t ’s c o r r e c t C h a i r p e r s o n . C H A I R P E R S O N : Ye s , o k a y. A D V VA S S O N I S C : S o t h i s m e e t i n g , y o u s a y, d i d n ’ t e v e n l a s t f i v e minutes? MS NGOYE: T h a t ’s c o r r e c t C h a i r p e r s o n . A D V VA S S O N I S C : N o w h e t h e n g a v e y o u t h e d i s m i s s a l l e t t e r w h i c h y o u d i d n ’ t w a i t f o r b u t y o u p i c k e d u p t h e n e x t d a y, t h a t a p p e a r s a s Annexure NN3 at page 319. CHAIRPERSON : 20 M a y b e b e f o re we get to the letter you can go to it a n d – b u t I w a n t t o a s k s y o u t h i s q u e s t i o n b e f o r e y o u – M r Soni, ask you the q u e s t i o n a b o u t t h e l e t t e r, b u t g e t t o t h e l e t t e r s o t h a t y o u h a v e g o t t h e page. M I S S NGOYE : CHAIRPERS O N: Yes . O k a y. A s a t t h e t i m e when Mr Montana was telling you t hat y ou we re f ire d and th a t you we re inso le nt , wh at w as you r Page 79 of 210 16 MARCH 2020 – DAY 224 understanding of why you were being fired? M I S S NGOYE : Chair, t he fa ct t ha t I qu e stione d h i s d e c i s i o n . The fact t hat I c hall e ng ed hi m a b o u t a d e c i s i o n t h a t h e m a d e a s t h e g r o u p ’s C E O which is something that, you know, was never done, really, at PRASA as I i n d i c a t e d e a r l i e r, h e f e l t t h a t I r e a l l y u n d e r m i n e d t h e p o s i t i o n t h a t h e w a s holding and that he was not going to have it. CHAIRP ERSON: So that is wh a t w a s i n y o u r m i n d i n t e r m s o f w h y y o u were being fired? M I S S NGOYE : 10 CHAIRPERSON : Yes . O k a y. C o n t i n u e , M r S o n i . ADV VAS SONI SC : Th ank yo u, sp e ak e r. Chairperson, but you have raised something that, may I pursue that as we l l ? CHAIRPERSON : Yes . ADV VAS SONI SC: You had s pok en to him the night before after y ou h a d b e e n t o l d t h a t M r D i n gi s w a y o h a d b e e n f i r e d ? M I S S NGOYE : Th at i s corre ct , Ch a ir. ADV VAS SONI SC : Did he a t t h a t m e e t i n g i n d i c a t e t h a t t h e s a m e f a t e p r ob a b l y a w a it ed y ou? M I S S NGOYE : 20 No, he did not. I did not know that I was going to be f i r e d t he f oll owi ng da y. ADV VAS SONI SC : And when you agreed or when he a g r e e d t o t h e meeting on, on that evening, what did you understand would happen at t he me e t ing ? M I SS NGOYE : Chair, I really – I th o ug ht tha t Mr Mo n tan a w ou ld sit and t hr as h th is i s s u e out . I re ally belie ved t h at I cou ld ma ke some se nse o f Page 80 of 210 16 MARCH 2020 – DAY 224 what he had done . I t hou gh t th a t we cou ld sit an d d i s c u s s i t b e c a u s e m y, m y i n t e n t i o n really a t t h e t i m e w a s t o s a y t o h i m , n o , l o o k . D o n o t a c t s o rushy because this is what Mr Ding i s w a y o d i d . We were trying to protect y o u a s t h e g r o u p C EO , y ou kno w a n d th a t w as what was in the opinion of M r D in gi s w ay o t o s a y, I be lie ve th at th e g ro up C EO is misled be cau s e p rocesses were not followed. We are advising you. We are not working against you. Th at w as t h e ba sis on wh ich I th oug ht I wo u ld eng age Mr, Mr M o n t a n a a n d a l s o s a y t o h i m , n o , m a n , y o u k n o w, r e t r a c t t h i s d i s m i s s a l . 10 I t w as no t int en de d a n d a l s o d e a l w i t h t h i s , t h e e -m a i l to say, wh a t i s i t t hat y ou m eant . Why did you mea n th ese t h ing s b e ca u se I b elieve t h a t t hey are at tri bu te d to us. I w an te d t o ta lk to h i m s o t h a t I c o u l d u n d e r s t a n d where his mind was but he had decided, I guess, that he was going to fire me. ADV VAS SONI SC : And at the time he informed you that you had been dismissed, he did not give you any reason except to say you were i n s o l e n t? M I S S NGOYE : Correct, Ch a i r. ADV VAS SONI SC: 20 Can we, on that note then, turn to a n n e x u r e M N ( 3) SSA p a g e 3 1 9 . W i l l y o u s u m ma r i z e f o r t h e C h a i r p e r s o n w a s i s c o n t a i n e d in that letter? M I S S NGOYE : Chair, the letter effectively contains t h e t e l e p h o n e c a l l – h e r e f e r s t o t h e t ele phone ca ll th at, t h at I made to h im th e p re viou s n ig h t a nd h e w a s s a y i n g t h a t I i n s i s t e d o n s p e a k i n g t o h i m e v e n a f t e r h e h a d s a i d t o m e t h a t h e w a s i n a m e e t i n g a n d h e s a i d e ff e c t i v e l y i n t h a t l e t t e r Page 81 of 210 16 MARCH 2020 – DAY 224 t hat bec aus e I h ad dare d h im to f ire me , I was really insolent and challenged his decision. ADV VAS SONI SC : M I S S NGOYE : him. Now, sorry. Is th at co rrect ? Well, I did not dare him. I did not dare him I spo ke t o I s p o k e t o h i m a n d I s a i d t o h i m , I am t h e p e r s o n t h a t y o u a r e s u p p o s e d t o b e d e a l i n g w i t h . W h y d o y o u n o t t a l k t o m e , y o u k n o w, a b o u t resources within my area. What is so difficult? You k now a n d I gu ess h e ju st d id no t like it . H e did not like t h e f ac t t ha t I co uld q ue s ti on h is, his d e c i s i o n . 10 ADV VAS SONI SC : I n t he la s t s e n t e n c e o f t h e f i r s t p a g e o f M N3 , if you c o u l d r e a d t hat i nt o t he re cord a n d t hen I w i l l j u s t r a i s e s o m e o f t h e issues I want in relation to what he says there. The one that is starting “Be that as it may.” M I SS NGOYE : I t s ay s : “Be that as it m a y, i n l i g h t o f y o u d a r i n g m e t o r e q u e s t y o u t o f i re y o u, I i n m y c a p a c i t y a s t h e g r o u p C E O o f you , yo ur daring as an act of repudiation of your employment which I e l e c t t o a c c e p t. ” ADV VAS SONI SC : 20 M i s s s o r r y. If yo u cou ld stop t here . He i s s u g g e s t i ng t h a t t h e q u e s t i o n o f y o u r d i s m i s s a l w a s r a i s e d i n t h e c o n v e r s a t i o n t h e n i g h t b e f o r e . D i d t ha t h a p p e n ? M I S S NGOYE : No, it did not happen, Chairperson. ADV VAS SONI SC : And then in the following page, he th e n a s k e d y o u t o put gri eva nc e s i n w ri t i ng. Did you raise grievances with him? M I S S NGOYE : No, I did n o t, Ch airp erso n. Page 82 of 210 I g uess fo r me, when I 16 MARCH 2020 – DAY 224 received this letter i t w a s a d a y, y o u k n o w, a p a r t a n d i f y o u s a y h e s a i d t hat I s ho ul d put my grievan ces in writing. He had not said that to me a n d, y o u k n o w, I w a s j u s t t h i n k i n g , I a m n o t s u r e , w h e n I w ou l d h a v e p u t t hes e g riev a nc e s t o hi m so it j u s t d i d n o t m a k e s e n s e t o m e t h a t h e p u t t hat in wri ti n g i n h i s l et ter. CHAIRPERSON : O f c o u r s e y o u d i d s a y t h a t when you spoke to him on t he ev eni ng o n w hi c h M r D i n gi s w a y o w a s f i r e d , y o u d i d r e f e r t o w h a t h a d h a p p e n e d t o M r C h a u k e w h e n y o u w e r e a t I nte rsite . M I S S NGOYE : 10 Th at i s corre ct, C h air. CHAIRPERSON : I n t he con t ext o f sa ying , in eff ect, as I und erst and y o u r e v i d e n c e , M r M o n t a n a y o u a r e n o w r e p ea t i n g w h a t y o u h a d d o n e b e f o r e . I s tha t r ight ? M I S S NG O Y E: Th at i s corre ct, C h airp erson . CHAIRPERSON : O k a y. ADV VAS SONI SC : Th en h e says in th e secon d last , o r t he t hird la st p a r a g r a p h: “The level of i n s o l e n c e . ” So that is what he had said to yo u a t t h e s t a r t o f t h e m e e t i n g ? M I S S NGOYE : 20 Th at i s c o r r e c t , C h a i r. ADV VAS SONI SC : “You have And t h e n h e s a y s: repeatedly remind me to terminate your e m p l o y m e n t w h i c h y o u r e p e a t e d a t o u r b r i e f m e e t i n g t hi s e v e n i n g. ” Did that happen first l y i n t h e c o n v e r s a t i o n a n d t h e n t h a t e v e n i n g ? M I S S NGOYE : No, it did not happen, Chair. As I say, I had s a t d o w n , h e Page 83 of 210 16 MARCH 2020 – DAY 224 s t o o d u p a n d s a i d , g rand, grand. Martha Ngoye , y o u a r e f i r ed a n d t h a t was it so I am n o t s u r e w h e n I w o u l d h a v e , y o u k n o w, i n s i s t e d th a t h e f i r e s m e. I c oul d bare ly s ay t wo w ord s in th a t me et in g with h im. ADV VAS SONI SC : Th en h e sa ys t h e t r u s t r e l a t i o n s h i p h a s i r r e t r i e v a b l y broken down. M I S S NGOYE : ADV VAS Th at i s corre ct. SONI SC: Th en he says your dismissal is e ff e c t i v e i m m e d i a t e l y. M I S S NGOYE : 10 Yes , Chair. ADV VAS SONI SC: Now, first you went to th at yo u w ere – y o u a n d M r Di n g i s w a y o were dismissed on successive days. M I S S NGOYE : Yes , in fac t we rec eiv ed o u r l e t t e r s o n t h e s a m e d a y s o M r Dingiswayo was dism i s s e d o n t h e 1 8 t h a n d I w a s d i s m i s s e d o n t h e 19th. O n t he 20 t h when we came to collect our stuff, we received the l e t t ers wh ic h were da ted th e 2 0 t h . CHAIRPERSON : Th at date is 2 0 t h M a y. Yo u k n o w, o n p a g e 3 2 0 , b e l o w M r M o n t a n a ’s s i g n a t u r e , i n m y e y e s t h a t l o o k s l i k e 2 0 / 0 8 b u t i t c a n ’ t b e e i g h t be c a u s e h e h a d l e f t .. .(int e rven es). M I S S NGOYE : 20 CHAIRPERSON : M I S S NGOYE : CHAIRPERSON : Yes . By t h e n s o i t i s f i v e . Yes . Yes , Chair. O k a y. ADV VAS SONI SC: I f I ca n just p oin t ou t, Chairperson , i t clea rly d oe s look like eight but if you look at page 319 you can see the date it is received. Page 84 of 210 16 MARCH 2020 – DAY 224 CHAIRPERSON : Yes . Yes , y es . Thank y ou. ADV VAS SONI SC : O k a y, s o y o u w e r e d i s m i s s e d f o r w h a t b y Mr Montana? What happened next? CHAIRPERSON : And may b e b e f o r e t h a t . He repeatedly says here in t hi s l et t er of y our d i s mi s s al th at you – h e s a i d y o u a s k e d t o b e d i s m i s s ed . M I S S NGOYE : CHAIRPERSON : Yes , Chair. Did you not in the course of some o f t he o r g a n i z a t i o n s you had been in, say anything that he could have interpreted as you a s k i n g t o b e d i s m i s s e d l i k e we l l i f y o u w a n t t o d i s m i s s m e , g o a h e a d o r 10 s o m e t h i n g l i ke t h a t . M I S S NGOYE : CHAIRPERSON : M I S S NGOYE : CHAIRPERSON : M I S S NGOYE : CHAIRPERSON : No, Chair. No. Nothing. Are you sure about that? Yes , I am v ery s ure, Chair. Yes . O k ay. ADV VAS SONI SC: And again, if I may just ask for emphasis , on t h e night before you were dismissed in your telephone call, the question of your dismissal simply did not arise? 20 M I S S NGOYE : CHAIRPERSON : I t di d n o t , C h a i r. Of course, you appreciate that when you say you did n o t d a r e h i m t o d i s m i s s y o u o r a n y t h i n g l i k e t h a t a s h e s a y s i n t h i s l e t t e r. So, effectively, you are saying, well, h e i s f a b r i c a t i n g t h a t p a r t o f t h e letter? M I S S NGOYE : Th at i s c o rrect, C ha ir. He is sa ying th a t. J a . Page 85 of 210 16 MARCH 2020 – DAY 224 CHAIRPERSON : O k a y. ADV VAS SONI SC: After, oh, sorry, again, j u s t p u t t i n g i t i n c o n t e x t , a t t hi s t ime i n Mr M ol e fe’s Bo ard w as t he acco un t ing a u t h o r i t y a t P R A S A , would that be right? M I S S NGOYE : Th a t i s c o r r e c t , C h a i r. ADV VAS SONI SC : What did you do to protect your interests after you were dismissed? You an d M r Dingiswayo . M I S S NGOYE : Chairperson, the first thing that we did, we a p p r o a c h e d t he CC M A and , yo u k now ob viously a s a n u n f air la b o u r p r a c t i s e t o 10 s u m ma r y d i s m i s s a l n o process. So we went to the CCMA to lodge a c o m p l a i n t a n d a f t e r t h a t w e t h e n w r o te t o t h e B o a r d , y o u k n o w a n d basically advising the Board what had transpired and putting it to the attention of the Board to say we do not understand the basis of which we could be fired and also the fact that it was summary dismissal without any p r o c e d u re . And I think for me what baffled me was that we were the legal a d v i s o r s o f t he organi z at io n an d this is how w e a re d e alt wit h , yo u kn o w a n d we raised the risks that were a s s o c i a t e d w i t h M r M o n t a n a ’s a p p r o a c h i n d e a l i n g w i t h u s a n d w e f l a g g e d i t w i t h t he Board a n d r e q u e s t e d t h e 20 intervention. ADV VAS SONI SC : M I S S NGOYE : t he Bo a r d. And what happe n e d p u r s u i n g t o t h a t ? I u nders t an d Chair that M r M o n t a n a w a s t h e n a d v i s e d b y I n f ac t , whe n h e wa s aske d to exp lain th e r ea sons f o r d i s m i s s i n g u s , h e s a i d we h a d c o m mi t t e d g r o s s m i s c o n d u c t . S o , w h a t I u n d e r s t o o d h a d h a p p e n e d w a s th at th en t he Board s a i d , n o , t h a t i s f i n e . Page 86 of 210 16 MARCH 2020 – DAY 224 You need to foll o w p r o c e d u r e . I f t h e y h a v e c o m m i t t ed g r o s s m i s c o n d u c t , d i s c i p l i n e t h e m . We a r e n o t s a y i n g y o u s h o u l d n o t , b u t a t t h e e n d o f t h e d a y p r o p e r p r o c e s s e s m u s t b e f o l l o w e d a n d e ff e c t i v e l y w h a t t h e n h a p p e n e d w a s t h a t h e t h e n r e t r a c t e d t h e d i s m i s s a l l e t t e r a n d requested t hat we c o me b ac k to work . ADV VAS SONI SC : M I S S NGOYE : CHAIRPERSON : M I S S NGOYE : 10 CHAIRPERSO N: M I S S NGOYE : CHAIRPERSON : So, this is Mr Montana himself? Th at i s corre ct, C h a i r. How long after the dismissal did the retraction h a p p e n ? I t w as ab ou t a w ee k, C ha ir. Yes . Yes , Cha i r. Before the retraction happened had you had occasion t o wri te t o him t o d e n y s o m e o f t h e t h i n g s t h a t y o u s a y h e s a i d i n h i s letter of your dismissal that were not true? M I S S NGOYE : CHAIRPERSON : No, Chair. I did n o t d o i t . N o . O k a y. ADV VAS SONI SC : Did you refer to it in your CCMA application that letter in which he alleged that you had dared him to dismiss you. M I S S NGOYE : 20 I t hi nk I make re fe ren ce to it to o . I ca nn ot act ua lly recal l i f we attached it, but we did, we d i d s a y i t w a s f o l l o w i n g . CHAIRPERSON : O k a y. ADV VAS SONI SC : Right, so he now – s o rry, h o w d o e s h e c o m mu n i c a t e t o y ou t he re tra c ti on o f y our dismissa l ? M I S S NGOYE : We received a telephone call from one of the HR m a n a g e r s w h o t h e n , y o u k n o w, e ffe c t i v e l y s a i d t o u s , l o o k y o u r d i s m i s s a l Page 87 of 210 16 MARCH 2020 – DAY 224 h a s b e e n r e t r a c t e d . Yo u n e e d t o c o m e a n d r e p o r t t o wo r k, you kn ow a n d I guess we just did that. ADV VAS SONI SC : Now when you were told that your dismissal has b e e n r e t r ac t e d , w h a t d i d y o u u n d e r s t a nd w o u l d h a p p e n n e x t ? M I S S NGOYE : Chair, I understood that because the dismissal had been retracted perh a p s t h a t M r M o n t a n a h a d , y o u k n o w, r e c o n s i d e r e d t h e d e c i s i o n s t h a t h e h a d m a d e a n d t h a t w e w o u l d b e c o m i n g b a c k t o w o r k f or work. ADV VAS SONI SC : 10 I n fa ct, th at is wh at you h ad b een told , yo u m us t c o m e b a c k t o w o r k . W h a t h a p p e n e d w h e n y o u g o t b a c k t o work? M I S S NGOYE : We got back to work, Chairper s o n a n d w e w e r e d e n i e d a c c e s s t o t h e s y s t e m . I n f a c t , a s w e g o t b a c k , we were told then to give reasons why we should not be suspended. And it was to happen within 1 2 t o 2 4 h o u r s , y o u k n o w a n d I t he n re que s t e d a n e x t e n s i o n t o s a y, y o u k n ow, I do not have a laptop, I will need to go and find some place to wor k f o r a n d t o p u t t h i s t h i n g t o g e t h e r b e c a u s e I d o n o t h a v e a c c e s s t o my equipment. It is reje c te d, so e ff ect ively we sat d own and it was M r Dingisway o a n d I , h e d i d h i s l e t t e r, I d i d m i n e a n d I g u e s s t h e 20 a p p r o a c h t h a t h e t o o k a t t h e t i m e w a s t h a t M r M o n ta n a d i d n o t h a v e a u t h o r i t y t o s us pen d u s beca u se he wa s frivo lou s you kno w a n d w e s a i d y o u c a n n o t , t h i s i s t h e s a m e i s s u e , y o u k n o w, y o u h a v e w i t h d r a w n the dismissal and now you want to suspend us and we said, you are . .. (i n d i s t i n c t ) a n d h e t o o k e x c e p t i o n t o t h a t . ADV VAS SONI SC : Chair p e r s o n , I s e e i t i s 1 3 : 0 0 o ’ c l o c k , b u t I h a v e Page 88 of 210 16 MARCH 2020 – DAY 224 o n e m o r e q u e s t i o n , i f I c a n , j u s t r e l a t e d t o t h i s n o w .. .(int e rven es). CHAIRPERSON : Ja. ADV VAS SONI SC: Th e q u e s t i o n t h a t y o u – s o rry, Mr Montana says to y o u t h e d i s m i s s a l s a r e – y o u a r e t o l d y o u r d i s m i s s a l s a re retracted. Then you are saying Mr Montana suspended you. Why do you say it was he, h o w d i d t h a t – h o w w a s t ha t co mm u n i c a t i o n m a d e t o y o u ? M I S S NGOYE : Ag a i n , h e u s e d a – h e s e n t a m a n a g e r w i t h i n H R t o c o m e a n d g i v e u s t h e l et t ers tha t sa id to u s we m u s t g i v e r e a s o n s w h y w e should not be suspended and he advised that that instruction comes from 10 M r M o n t a n a. ADV VAS SONI SC : M I S S NGOYE : And who signed those letters? Mr Montana signed the letters. ADV VAS SONI SC : CHAIRPERSON : Chair p e r s o n , w o u l d t h i s b e a n a p p r o p r i a t e l u n c h ? Yes , ok ay. We will tak e the lunc h adjournment. We will resume at 1 4 : 0 0 o ’ c l o c k . We a d j o u r n . REGISTRAR : All rise. I NQ UIRY ADJOURNS I NQ UI RY RE SUM E S CHAIRPERSON : L e t u s c o n t i n u e . S w i t c h o n y o ur mic. 20 ADV VAS SONI SC : Ms Ngoye we broke at the stage where you were s a y i n g y o u h a d n o w b e e n s u s p e n d e d a n d t h e r e c a l l e d . W h a t h a pp e n e d – s o rry, you have been dismissed and recalle d . T h e n y o u w e r e s u s p e n d e d ? M S N G O Y E: Th at i s c o rrect Ch a ir. ADV VAS SONI SC: And how long did th at su spe n sion last? M S N G O Y E: Th e sus p ensio n la sted for 3 mo n th s. Page 89 of 210 16 MARCH 2020 – DAY 224 CHAIRPERSON : Did you – wh a t w e r e y o u t o l d w a s t h e r e a s o n f o r y o u r suspension? M S N G O Y E: Th e reas on fo r the su spe nsion w as t he inso lence . CHAIRPERSON : Th e same .. . (intervenes). M S N G O Y E: Yes . CHAIRPERSON : I s su e. M S N G O Y E: As the letter, j a . CHAIRPERSON : And that was stated in the letter o f s u s p e n s i o n ? CHAIRPERSON : Yes , it was s tated in th e let te r so . 10 CHAIRPERSON : O k a y. ADV VAS SONI SC : And in – h o w is it tha t you ca me ba ck to wo r k ? M S N G O Y E: Chairperson, Mr Montana left in July right at the end of July s o w e c a m e b a c k a t a b o u t – i n a b o u t A u g u s t w h e r e t h e Board h a d a p p o i n t e d a n A c t i n g CEO Mr Nathi Khena. What I understand transpired was the Board h a d i n s t r u c te d M r N a t h i K h e n a t o lo o k i n t o t h e m a t t e r s t h a t Mr Montana had been dealing with especially around the suspensions and t o mak e s u r e t h a t h e d e a l s w i t h a l l t h o s e a n d f i n a l i s e s t h e s us p e n s i o n s . What then transpired where I am concerned is that I received a c a l l f r o m M r N a t h i Kh e n a w a n t i n g t o t a l k t o m e a b o u t t h e i s s u e s t h a t h a d 20 been raised relating to my suspension. But what was interesting Chairperson, in my case, was that after M r Montana had left there were c h a r g e s t h a t w e r e b r o u g h t f o r w a r d a g a i n s t m e . Th ose ch a rge s inclu d e d m e h a v i n g a u t h o r i s e d t w o c o n t r a c t s e ff e c t i v e l y d u r i n g t h e t e n u r e o f m y CEO role of about 10 million Ran d i n o n e r e s p e c t a n d t h e o t h e r o n e w a s 5 0 / 5 8 / 5 9 m i l l io n Rand . S o a s pa rt o f th e inve stig a tio n s t hat Mr Kh ena Page 90 of 210 16 MARCH 2020 – DAY 224 was inclusive of t h a t . A n d I u n d e r s t o o d fro m h im t hat wh e n he so ug h t evidence from the colleagues internally including people from HR, the CEO of PRASA Rail at the time because those contracts were i m p a c t i n g t hat b us ines s . They i ndica ted t o h im t h at th ey we re n o t su re of what Mr M o n t a n a h a d a ll u d e d t o i n t h e c h a r g e s . So, I mean nobody could give e v i d e n c e t o t h e – wh a t i s t h e w o r d I a m l o o k i n g f o r – th e c h a r g e s t h a t w a s laid against me. And after t h a t M r N a t h i K h e n a q u e s t i o n e d m e a r o u n d t h o s e p a r t i c u l a r c o n t r a c t s a n d o b v io u s l y – t h e o n e I d i d no t e v e n k n o w, t h e 1 0 10 million, I did not even know that I had even dealt with a 10 million and the o t h e r o n e I h a d a n e x p l a n a t i o n t o g i v e t o h i m a s t o w h a t h a d tra n sp ire d . I t w as not an a ut ho ri ty tha t w as given by me , it b elo ng e d t o a n o t h e r b u s i n e s s u n i t . So, on that basis he then decided to say, look I do not – I cannot find evidence that p i np o i n t to you having done any maladministration or wrong things as far as those contracts are concerned and he asked me to come back. CHAIRPERSON : M r M o n t a n a l e f t o n th e 15 t h o f J u l y. M S N G O Y E: Yes . CHAIRPERSON : Before he left you were already on suspension. 20 M S N G O Y E: Th at i s c o rrect. CHAIRPERSON : But had you been told b e f o r e h e l e f t w h a t c h a r g e s y o u were going to face or were being – we re to b e b r o u g h t a g a i n s t y o u ? M S N G O Y E: I wa s n ot t ol d Ch airp e rs on . CHAIRPERSON : Th ere ha ve be e n no comm u n i c a t i o n a t a l l s i n c e y ou r s u s p e n s i o n o t h e r t h a n t h e l e t t e r t e l l i n g y o u a b o u t y o ur suspension. Page 91 of 210 16 MARCH 2020 – DAY 224 M S N G O Y E: Th ere had b ee n no n e. CHAIRPERSON : Th ere had b ee n n o t h i n g . M S N G O Y E: H’ m m . CHAIRPERSON : And nobody had phoned you to speak to you and tell y o u w h a t w a s g o i n g o n i n t e r m s o f th e – a n i n v e s t i g a t i o n a b o u t y o u r suspension? M S N G O Y E: No t hin g Ch airp erso n. CHAIRPERSON : Yes . And the is s ue of the two c ontrac ts , you o n ly b e c a m e a w a re o f i t w h e n ? 10 M S N G O Y E: When I saw the draft charges that were sent to me. CHAIRPERSON : Were you ev e r g i v e n d r a f t c h a r g e s o r w e r e – d i d y o u s i m p l y s e e t h e m w h e n t he Act ing GC EO, is it Mr Kh ena ? M S N G O Y E: M r K h e n a , y e s . CHAIRPERSON : M r K h e n a w a s t a l k i n g to yo u in ve stig at ing w h at happened. M S N G O Y E: J u s t b e f o r e M r K h e n a h a d b e e n r e q u e s t e d t o a c t , I t h in k i t i s a day or two before that, I then received these charges and he obviously did not know about them and that is why he needed to investigate those c h arges. 20 CHAIRPERSON : Who had sighed the charges? M S N G O Y E: Th ey we re no t sig n ed Ch air. CHAIRPERSON : Were they in final form? Were they draft charges? M S N G O YE: Th ey l ook ed fin al. CHAIRPERSON : What were their status? M S N G O Y E: Th e y l o o k e d f i n a l b u t th e y w e r e n o t s i g n e d . Page 92 of 210 16 MARCH 2020 – DAY 224 CHAIRPERSON : Who gave them to you? How did they reach you? M S N G O Y E: An ER m a n a g e r w i t h i n P R A S A . CHAIRPERSON : And what is an ER manage r? M S N G O Y E: An Employee Relations manager. CHAIRPERSON : Yes . M S N G O Y E: Within HR, his name i s M r S e l l o M a l u l e k e . CHAIRPERSON : Yes . He gav e them to y ou. M S N G O Y E: He gave them to me. In fa c t , h e s e n t t h e m v i a m y e -m a i l address. 10 CHAIRPERSON : And did h e s a y a n y t h i n g a b o u t t h e m t o y o u ? M S N G O Y E: No, nothing was comm u n i c a te d . CHAIRPERSON : He ju s t s e n t t h e m t o y o u ? M S N G O Y E: Yes Chair. CHAIRPERSON : And it did not indicate for what purpose t h e y w e r e b e i n g sent to you? M S N G O Y E: No, I just received the m i n m y e -m a i l b o x . CHAIRPERSON : Yes . Did they indic ate a date by when – a d a t e f o r t h e disciplinary hearing? M S N G O Y E: No, they had not. They had not indicated a date. 20 CHAIRPERSON : Yes . An d a f t e r r e c e i v i n g t h e m , d i d y o u s p e a k t o a n y b o d y a b o u t t h e m o r t o th e on e w ho se nt the m to you? M S N G O Y E: Th e one t hin g th a t I sa id t o M r M a l u l e k e i s t h a t I th ink I believe I will engage the services of an attorney of an external attorney s h o u l d t h i s m a tt er proc eed . CHAIRPERSON : H’ m m . Page 93 of 210 16 MARCH 2020 – DAY 224 M S N G O Y E: Th at i s all I said . CHAIRPERSON : Now did the charges relate only to the two contracts y o u a r e t a l k i n g a b o u t o r di d t h e y i n c l u d e t h e a l l e g a t i o n s o f i n s o l e n c e ? M S N G O Y E: No, they were only in respect of the two c o n t r a c t s . S o , m y s u s p e n s i o n l e t t e r d i d n o t a c c o r d t h e c h a r g e s th a t w e r e l e v e l l e d a g a i n s t me. CHAIRPERSON : H’ m m . M S N G O Y E: So, when I lo oke d at th e t wo I t h o u g h t b u t t h i s i s n o t w h a t I was suspended for if anything. 10 CHAIRPERSON : O k a y, t h a n k y o u . ADV VAS SONI SC : J u s t t o c o m p l e t e t h e p i c t u r e , w h a t h a p p e n e d t o M r Dingi s w a y o ? M S N G O Y E: As far as Mr Dingiswayo was concerned because Mr Dingiswayo reports to me , w ha t Mr Khe n a said to me is th a t, you a r e g o i n g t o h a v e t o d e a l w i t h t h e s e a l l e g a t i o n s t h a t w e re l e v e l l e d a g a i n s t M r Dingiswayo. And Mr Dingiswayo’s return to wor k w a s s u b j e c t t o h i m n o t b e i n g f o u n d w a n t i n g a s f a r a s t h e a l l e g a t io n s i s c o n c e r n e d . What Mr Khena also did is that he requested the - o u r i n t e r n a l a u d i t o r M r R a s h i k Z h a mad t o l ook i nt o t he i s s u e s t h a t w e r e r a i s e d i n M r D i n g i s w a y o ’s l e t t e r s 20 a n d t o a d v i s e ac c o r d i n g l y. And Mr Zhamad could not find anything untoward that M r Dingiswayo had done b e c a u s e a l s o M r D i n g i s w a y o ’s l e t t e r w a s v e r y v a g u e i n t e r m s o f t h e i s s u e s t h a t w e r e r a i s e d t h e r e . Th at he is bu sy ta lkin g t o t he Board a n d l e a k i n g i n f o r m a t i o n t o t h e Board . He d id no t kn ow s p e c i f i c i t i e s o f t h o s e i s s u e s s o I g u e s s it be came very d ifficu lt to p in p o i n t Page 94 of 210 16 MARCH 2020 – DAY 224 what exactly he was accused of. CHAIRPERSON : O k a y. ADV VAS SONI SC: Well it indeed would be strange and I am making a c o m me n t t h a t i f s o m e b o d y p a s s e s i n f o r m a t i o n t o t h e Board o f Control o f a n O r g a n o f State t hat perso n w o u l d b e c h a r g e d w i t h m i s c o n d u c t . M S N G O Y E: Th at is co rre ct Ch air. I mea n it w as somet h ing we d id n ot u n d e r s t a n d a n d we did not understand how you leak information to the Board . I t j u s t d i d n o t m a k e s e n s e . ADV VAS SONI SC : And about when did he ret u r n t o w o r k ? 10 M S N G O Y E: M r D i n g i s w a y o r e t u r n e d a t t h e s a m e t i m e t h a t I d i d , w h i c h was August. CHAIRPERSON : When was it? M S NGOYE : I n A ug us t 201 5. CHAIRPERSON : O k a y. Yo u r e m e m b e r t h e d a te b y a n y c h a n c e ? M S N G O Y E: I thi nk round ab ou t th e 15 t h o f A u g u s t 20 1 5 . CHAIRPERSON : O k a y. ADV VAS SONI SC : Now you will recall that Mr Dingiswayo’s dismissal a n d t h e n y o u r d i s m i s s a l o n t h e f o l l o w i n g d a y f o l l o w e d t h e e -m a i l a t S S 7 B p a g e 3 1 7 . T h a t i s t h e e -m a i l y o u r e a d i n t o t h e r e c o r d . Yo u r e c a l l t h a t ? 20 M S N G O Y E: Th at i s c o r r e c t C h a i r. ADV VAS SONI SC : And that you say that e -m a i l was prompted by advice y o u a n d M r D i n g i s w a y o h a d g i v e n in r e g a r d t o t h e Swifambo a n d t h e Prodigy contracts. M S N G O Y E: Th at i s c o r r e c t C h a i r. ADV VAS SONI SC: Now just in relation to those c o n t r a c t s i n t h i s p a r t o f Page 95 of 210 16 MARCH 2020 – DAY 224 your evidence, what is the status of those? M S N G O Y E: We are still in litigation with Prodigy C h a i r p e r s o n a n d Swifambo I gues s h as be en d e alt w ith b y the co urt s an d i t h a s b e e n f i n a li se d. B u t th e P rodi gy ma tt er is still in lit iga t i o n , i t h a s n o t b e e n finalised. CHAIRPERSON : I s y our e viden ce t ha t Mr Mon tan a reject ed y ou r a dvic e t hat th e tw o c on trac t s w e re p ro ble ma tic? M S N G O Y E: Yes Chair. CHAIRPERSON : Yes . 10 M S N G OYE: Chair, I started by saying there are some areas within the o r g a n i s a t i o n t h a t a p p r e c i a te d t h e w o r k t h a t t h e l e g a l f u n c t i o n w a s d o i n g . But obviously those that were not interested in c o m p l y i n g w i t h t h e l a w s and so saw us as a nuisance to the organisation and to be treated as such. CHAIRPERSON : Who are some of the p e o p l e t h a t y o u b e l i e v e d t re a t e d t he L e g a l D e p a r t m e n t i t w a s a n u i s a n c e ? M S N G O Y E: Chair, Mr Montana obviously being one a n d I a m t a l k i n g about people in authority here. CHAIRPERSON : Yes . 20 M S NGOYE: And I remember also during Dr Popo Molefe’s tenure the re was a Chairperson o f t h e Audit Comm i t t e e f o r i n s t a n c e – I fo rg et h e r n a m e n o w, w h o h a d a l s o t a k e n i s s u e w i t h t h e f a c t th a t w e h a d c h a l l e n g e d her decision to incorporate. I n f a c t , s h e w a n t e d to in corp ora te a no the r p a r t y i n t o a c o n t r a c t a n d w e f o u n d i t n ot t o b e p ro pe r. raised the objections, they took serious issue toward us. Page 96 of 210 An d wh en we 16 MARCH 2020 – DAY 224 So, that is quite a number of p e o p l e e v e n a f t e r M r M o n t a n a h a d left that you found that the people in authority did not appreciate the advice that we gave. S o m e o l d Chairperson th ey d id n o t t o th e la s t Chairperson – t o t h e l a s t Board th a t wa s a t PRASA, we gave me rite d advice and I they just did not like the advice that we were giving. CHAIRPERSON : Th ere p e o p l e t h a t y o u a r e t a l k i n g a b o u t t h a t y o u p u t u n d e r t h i s c a t e g o ry o f p e o p l e w h o t h o u g h t t h e – wh o a c t e d i n a m a n n e r t hat m ade y o u th ink that the y t h ou g ht th e L e g a l D e p a r t m e n t was a n u i s a n c e . O b v i o u s l y, y o u d o n o t t h i n k t h a t w h e r e t h e y d i s a g r e e d w i t h t h e 10 L e g a l D e p a r t m e n t’s v iews or su g gest ion s, yo u d o n ot t h in k th a t t he y w e r e a c t i n g i n g o o d f a i t h? O r w e r e t h e y a c t i n g i n g o o d f a i t h b u t j u s t d i d n o t agree with you? M S N G O Y E: Now the goo d f a i t h w a s n o t t h e i r C h a i r p e r s o n . F o r m e i t i s o n e t h i n g t o d i s a g r e e w it h so meb o dy a nd fo rm a n op inion persp ective we c a n d i s a g r e e a b o ut w hat t h e ou tco me o f th e op i n i o n i s . But in most i n s t a n c e s r e a l l y, w e f o u n d t h a t t h e r e w a s n o – t h e r e w a s m a l f i d e i n fac t where we gave advice and they just did not like the advice that we wo u l d have given. CHAIRPERSON : H’ m m . 20 M S N G O Y E: And in fact, in m a n y i n s t a n c e s w e w e r e o s t r ac i s e d a s t h e Legal Department and not engaged when we ought to be engaged. So, t he peop le really internally that appreciated us were our colleagues in the b u s i n e s s t ha t w o u l d k n o w, w e n e e d t h e L e g a l Te a m to a ssist u s wit h c e r t a in m a t t e r s a n d s o o n . B u t w h a t w e f o u n d i s t h a t t h e a u t h o r i t i e s i n t he org ani sat i on di d not like it if w e t old t he m th i n g s t h a t t h e y d i d n o t Page 97 of 210 16 MARCH 2020 – DAY 224 like. CHAIRPERSON : A Department s u c h a s a L e g a l D e p a r t m e n t i s s u p p o s e d t o be a hel pfu l Department . M S N G O Y E: Th at i s c o r r e c t C h a i r. CHAIRPER SON : To g i v e a d v i c e a n d g u i d a n c e t o e v e r y b o d y t o m a k e s u r e t hat th ing s are do ne l egal ly. M S NGOYE : Th at i s c o rrect Ch a ir. CHAIRPERSON : Why would this category of pe o p l e n o t h a v e a p p r e c i a t e d t hi s i mpor t an t ro l e of t he L e g a l D e pa r t m e n t? 10 M S N G O Y E: I do not kn ow Ch air a nd it wa s very fru strat ing to u s b e c a u s e I t h i n k w h a t w e w e r e t r y i n g t o d o a s th e L e g a l D e p a r t m e n t a n d what we continue to do as the L e g a l D e p a r t m e n t i s to loo k o ut f o r t h e interest of PRASA. All we do is that and if there is a way of achieving a p a r t i c u l a r e n d , w e a d v i s e t h e o r g a n i s a t i o n a c c o r d i n g l y. So, we do not j u s t s a y, t h i s c a n n o t b e d o n e a n d t h a t i s i t . We t h e n a d v i c e o f a m a n n e r in which we can achieve the same results. But we found at various i n s t a n c e s , t he L e g a l D e p a r t m e n t, wo ul d j u s t b e e x c l u d e d b e c a u s e w e complicate things. They would say we complicate things. CHAIRPERSON : H’ m m . 20 M S N G O Y E: J a . CHAIRPERSON : When it was excluded was there an a l t e r n a t i v e b a s e t o which people went to get legal advice i n s t e a d o f t h e L e g a l D e p a r t me n t o f PRASA? M S N G O Y E: Well yes Chair, I can think of instances where in one of the i n s t an c e s w h e r e w e w e r e d e a l i n g w i t h Chairperson M a k u b e l a. Page 98 of 210 She w as 16 MARCH 2020 – DAY 224 g o i n g t o a n o t he r l a w f i r m w h i c h w a s a l s o n o t o n o u r Panel a n d g o t a d v i c e t h e r e t o t h e e x c l u s i o n o f l eg a l f u n c t i o n . S o , I g u e s s t h e y w o u l d d o i t a s t hey plea s ed. CHAIRPERSON : I s y ou an swe r t h at so me time s t he y d id somet ime s t he y d i d n o t . . .(i nt erv ene s ) . M S N G O Y E: Th at i s c o rrect Ch a ir. CHAIRPERSON : Th ey wo uld g o e lse wh ere? M S N G O Y E: Yes Chai r. CHAIRPERSON : O k a y. 10 ADV VAS SONI SC : Just on the question of d i s a g r e e m e n t s o r t h e di ff e r e n c e b e t w e e n t h o s e t w o . good faith and I n t h e Swifambo m a t t e r i n w h i c h t h e r e w e r e i n v e s t i g a t i o n s d o n e be f o r e t h e m a t t e r w a s t ak en t o c ourt. Wha t was t he p o sitio n i n r e g a r d t o d o c u m e n t s t h a t were desist and determining what had happened and the validity of the d i ffe r e n t s t e p s t a k e n ? M S N G O Y E: Chairperson the issue around information at PRASA is a m i n e f i e l d. E ffe c ti v el y there is n ot prop e r reco rd ke e pin g whe re PRAS A’s d o c u m e n t m a n a g e m e n t p r oc e s s a r e c o n c e r n e d . We d o n o t h a v e a d o c u m e n t m a n a g e m e n t s y s t e m s o e ff e c t iv e l y a t t h e t i m e t h a t t h e 20 investigations were being conducted it was a real tall order to find information from people. And I guess people were scared I gu ess f o r lack o f a b ett er word as to what would be found where they are concerned. Such that the part of the investigation process was to take all our computers and image the c o m p u t e r s o t h a t i n f o r m a t i o n c a n b e r e t r i e v e d i n t h a t m a n n e r. Page 99 of 210 But 16 MARCH 2020 – DAY 224 h o w e v e r, if one w ent ou t to a sk f or d o c u m e n t s f r o m a p a r t i c u l a r a r e a within the organisation that you would have e x p e c t e d t o b e r e t a i n i n g t h a t d o c u m e n t a t i o n , i t w a s r e a l l y d i ff i c u l t t o f i n d i n f o r m a t i o n . ADV VAS SONI SC : And when for example in the Swifambo m a t t e r an d we will come to that in regard to the Siyangena matter. Were you able to p i e c e t o g e t h e r w h a t h a d ha p p e n e d , w h a t d e c i s i o n s w e r e t a k e n , w h a t t h e y were based on, on the basis of proper records? M S NGOYE: Yes Chair, ev entually we were able to get informat i o n t h a t allowed us as part of the investigation process as well because the legal 10 f unc t ion was ins tru m e n t a l i n t r y i n g t o a s s i s t t h e i n v e s t i g a t o r s i n g e t t i n g i n f o r m a t i o n s o w e w e r e a b l e t o t h e n u nd e r s t a n d w h a t h a d t r a n s p i r e d a n d l o o k f o r t h e d o c u m e n t s i n t h e r i g h t a r e a s . B e c a u s e b e fo re e ve ryth in g w a s everywhere and we did not know where to find them so. ADV VAS SONI SC : Th at is in re g ard t o Swifambo ? M S N G O Y E: Th at i s c o rrect Ch a ir. ADV VAS SONI SC: And with regard to Siyangena which we will get to in a moment. M S N G O Y E: Siyange n a w a s v e r y d i ff i c u l t . I t w a s v e r y d i ff i c u l t t i l l t h e l a s t a ff i d a v i t s t h a t we had to do. People did not want – e m p l o y e e s w i t h i n 20 PRASA really did not want to be associat e d with assisting the o r g a n i s a t i o n i n d e a l i n g w i t h t h e i s s u es p e r t a i n i n g t o S i y a n g e n a . In fa c t, t here we re v e ry f ew of our co lleag ues th at ag re e d t o p a rt icip at e i n g i v i n g a ff i d a v i t s a n d c o n f i r m i n g w h a t h a d t r a n s p i r e d i n r e l a t i o n t o t h e s e c o n t r a c t s w h e n t he y w e r e i n v o l v e d . B u t i t w a s r e a l l y d i ff i c u l t . P e o p l e I g ue s s w e r e j u s t n o t w a n t i n g to a s s i s t a n d i t h a s b e e n d i ff i c u l t r e a l l y. Page 100 of 210 16 MARCH 2020 – DAY 224 And I think it continued to b e d i ff i c u l t r i g h t u n t i l t h e l a s t a ff i d a v i t s t h a t w e h a d t o f i l e . S o , I g u e s s C h a i r p e r s o n w h a t I am t ryin g t o a l s o s a y i s t h a t b e c a u s e t h e s e i n v e s t i g a t i o ns h a d i d e n t i f i e d a l o t o f p e o p l e i n t e r m s o f m a l a d m i n i s t r a t i o n a n d i r r e g u l a r i t y, p e o p l e j u s t d i d n o t want to participate at all. ADV VAS SONI SC : So, we will come back to the Siyangena matter wh i c h y o u d e a l w i t h i n y o u t h i r d a ff i d a v i t w h i c h i s S S 7 C . M S NGOYE : Yes Chair. ADV VAS SONI SC : 10 I n t h e me an time, righ t ca n w e ret urn t o th e affid av i t t hat i s SS7B and turn to the next topic you deal with and that is Mr M a b u n d a a n d t h e S o r S i y a y a G r o u p of comp an ie s. M S N G O Y E: Yes Chair. ADV VAS SONI SC: Fi rstly, cou ld yo u te ll the C h airpe r s o n v e r y b r i e f l y why Mr Mabunda turns out to be such a significant figur e i n P R A S A operations? M S N G O Y E: Chairperson Mr Mabunda had – t h e r e w e r e a l o t o f c o n t r a c t s I must say that he managed wo be involved in were PRASA was c o nc e r n e d e s p e c i a l l y i n t h e e ng i n e e r i n g Department o f P R A S A . I mean he as far as I can remember there is a signal in contracts of PRASA the 20 d e a d p o o l d e s i g n , i s s u e s o f P R A S A a n d a l l t h o s e c r i t i c a l co n t r a c t s M r Mabunda was the company that was involved. In fact, in this particular i n s t anc e w ha t on e fo und is t hat wh en the y sue d us t h ey su ed us f o r s i x c o n t ra c t s s e p a r a t e w h e r e t h e y h a d b e e n d o i n g d i ff e r e n t t y p e s o f w o r k within PRASA. So, it is somebod y t h a t y o u k n e w a t P R A S A t o h a v e a l o t o f Page 101 of 210 16 MARCH 2020 – DAY 224 a t t e n t i o n a c t u a l l y where he – wh e n h e c o m e s t o PRASA. And he was very a l s o i n f l u e n t i a l a t P R A S A w h e n e v e r h e c a m e p eo p l e w o u l d t a l k a b o u t h i m t hat , t hat is M r M ab und a , th er e h e is co min g. And he would be give n t he a t tent i on t hat he n eed ed . So, it is somebo dy th at we knew was o b v i o u s l y a n i m p o r t a n t p e rson within the organisation that was treated with that k i n d o f r e s p ec t . CHAIRPERSON : Had you known of him even before you headed the L e g a l D e p a r t m e n t? M S N G O Y E: No, I d i d n o t k n o w o f h i m C h a i r p e r s o n . 10 CHAIRPERSON : O h , y o u o n l y g o t t o k n o w h i m w h e n y o u go t t o t h e L e g a l Department ? M S N G O Y E: Yes , that is c orrec t Chair. CHAIRPERSON : O k a y. Yo u s a y h e h a d a l o t o f c o n t r a c t s . M S N G O Y E: Yes . CHAIRPERSON : You want to giv e m e a n i d e a o f m o r e o r l e s s w h a t – h o w m a n y c o n t r a c t s e v e n i f y o u a r e n o t a b l e t o s p e c i fy, g i v e t h e m n a m e s . M S N G O Y E: I f I c an s ay Ch air it is more tha n 7 c o n t r a c t s a n d m a j o r contracts. CHAIRPERSON : Yes . 20 M S N G O Y E: Th at Mr M abu nd a h a d. In fact , t he inve s tig at ion s re ve aled t hat t he am oun t of money th at ha ve b ee n p a i d b y P R A S A t o t h e S G r o u p o f c o m p a n i e s w h e r e M r M a b u n d a w a s c o n c e r n e d i s c l o s e t o a b i l l i o n Ra n d at a particular point. So, there was a lot of work that he was doing. CHAIRPERSON : O k a y. ADV VAS SONI SC : And do you know whether he played any role in th e Page 102 of 210 16 MARCH 2020 – DAY 224 Swifambo c o n t r a c t ? M S N G OYE: Yes . Yes , Chairpers on in fac t he did play a huge role in the Swifambo c o n t r a c t b e c a u s e w h a t w e u n d e r s t o o d w a s t h e c o m p a n y, h e w a s a Director o f t h e c o m p a n y, Swifambo . CHAIRPERSON : H’ m m . M S N G O Y E: Yes . So that too was one o f t h e b i g c o n t r a c t s t h a t h e w a s involved in and we knew that even though at the end of the day Ms Mashaba, Oswald M a s h a b a, appears to be the person that was i n s t r u m e n t a l . B u t f r o m t h e s t r u c t u r e o f th e comp an y Mr Ma bu n da w as t he 10 p e r s o n t h a t w a s t h e o w n e r o f Swifambo . ADV VAS SONI S C: Now you say that in all the S Group of companies were paid near l y a b i l l i o n Rand b y P R A S A . M S N G O Y E: Yes . ADV VAS SONI SC : Fo r d iffe re nt con tra cts. M S N G O Y E: Yes Ch a i r. ADV VAS SONI SC : But there is one small group of – o r well there is one group of contracts that was the subject of litigation between PRASA and the S Group. M S N G O Y E: Th at i s c o rrect Ch a ir. 20 ADV VAS SONI SC : What was the nature of the dispute? M S N G OYE: Th e dis put e re vo lve d arou nd wo rk do ne a nd not pa id f o r. So n a t u r a l l y t h e c o n t r ac t , t h e s c o p e w o u l d b e s e t u p t o s a y t h i s i s t h e s c o p e o f t h e c o n t ra c t a n d t h i s i s w h a t y o u a r e l i m i t e d t o . But what we then f ound bec aus e rem ember a s th e L e g a l D e p a r t m e n t Chairperson, we get i n f o r m a t i o n f o r t h e b u s i n e s s . W h a t we h a d f o u n d i s t h a t t h e b u si n e s s w a s Page 103 of 210 16 MARCH 2020 – DAY 224 s a y i n g t h e w o r k t h a t w a s d o n e b y t h e S G r o u p o f c o m p a n i es w a s n o t p r o m is e d. And in certain instances, part of the litigation that the cases that t hey w er e s u i n g u s f o r w a s t h e r e w a s a d i s p u t e a s t o t h e a m o u n t s t ha t t hey were pai d. S o, there were various elements of these various c o n t r a c t s . A n d i m me d i a t e l y a f t e r M r M o n t a n a l e f t t h e 6 s u m mo n s e s c a m e f r om Siy a y a i n rela ti on to th e se va riou s co nt ra ct s t ha t th e y h a d b e e n doing for PRASA. CHAIRPERSON : I am s orry. I d i d n o t h e a r. T h e w h a t c a me ? 10 M S N G O Y E: I beg y our pa rdo n Ch a ir. CHAIRPERSON : I d id no t he ar t h e f i r s t p a r t o f y o u r l a s t s e n t e n c e . Yo u said as soon as Mr Montana had left, what happened? M S N G O Y E: Th e li t iga ti o n, so the summ o n e d u s . We j u s t r e c e i v e d a b a r r a g e o f s u m mo n s e s . CHAIRPERSON : Yes . M S N G O Y E: After that and it was all coming from Siyaya . CHAIRPERSON : Yes . M S N G O Y E: H’ m m . CHAIRPERSON : 20 Why had the summ o n s n o t b e e n i s s u e d w h i l e M r M o n t a na w a s t h e r e ? M S N G O Y E: We do not know Chair because the s e i s s u e s o b v i o u s l y h a d existed at the time that Mr Montana was there. CHAIRPERSON : Yes . M S N G O YE: But imm e d i a t e l y a f t e r h e h a d l e f t 6 s u m mo n s e s a r r i v e d a t PRASA. Page 104 of 210 16 MARCH 2020 – DAY 224 CHAIRPERSON : But who was going to i s s u e i n s t r u c t i o n s a s t o t h e i s s u i n g o f t h e s u m mo n s ? Was i t – d i d i t h a v e t o b e t h e G C E O ? M S N G O Y E: Remember they are coming from Siyaya’s side so Siya y a sued us. CHAIRPERSON : So they were coming to .. .(int e rven es). M S N G O Y E: Th at i s i t , t o PR ASA. CHAIRPERSON: Th ey we re ag a in st PRASA. M S N G O Y E: Th at i s i t . CHAIRPERSON : O h o k a y. 10 M S NGOYE : So Siyaya was suing us for payment of services they said t hey rendered and so on. CHAIRPERSON : O k a y. ADV VAS SONI SC : Now prior to the issue of these summ o n s e s o n PRASA, had there been any legal disputes between Siyaya a n d – o r any d i s p u t e s t h a t en d e d u p i n c o u r t s b e t w e e n S i y a y a a n d P R A S A ? M S N G O Y E: Th ere had no t b e e n a n y C h a i r. ADV VAS SONI SC : Now what did the amounts involved in respectively of t hes e 6 s umm o n s e s ? M S N G O Y E: I t was v ari ous a mo u nts C hair. Th e tot al I c a n – I m e a n I d o 20 not have specific details. The total would amount to about 56 million that Si y a y a w a s s u i n g u s f o r. ADV VAS SONI SC : Now if I ask you to look at NN4 which you referred to i n …(intervenes). CHAIRPERSON : I s th at a t pa ge 3 22 ? ADV VAS SONI SC : As you pl e a s e C h a i r p e r s o n . Page 105 of 210 16 MARCH 2020 – DAY 224 CHAIRPERSON : Yes . ADV VAS SONI SC : You refer to that at pa ragraph 35 of this affidavit SS7B. M S N G O Y E: Paragraph 35? ADV VAS SONI SC : Yes . M S N G O Y E: Yes Chair. ADV VAS SONI SC : You hav e read thos e doc ume n t s ? M S N G O Y E: Yes , I hav e Chair. ADV VAS SONI SC: 10 I s th at clea rly s u m m a r i z e d what the nature of the disputes between the Siyaya Group in respect of each of the contracts was and PRASA? M S N G O Y E: Th at i s c o rrec t Ch a ir. CHAIRPERSON : O k a y. ADV VAS SONI S C: Now …(intervenes). CHAIRPERSON : Well, let us get more details about M and O. If it is a l e t t e r, f r o m whom it was to whom was it addressed. ADV VAS SONI SC : Yes Chairpers on. CHAIRPERSON : What was the date? What was the subject matter? ADV VAS SONI SC : 20 Yes , as y o u p l e a s e s i r. CHAIRPERSON : H’ m m . So we le ave it. ADV VAS SONI SC : What is NN4 Ms Ngoy e ? M S N G O Y E: Chair NN4 is the letter that we had received from our a t t o r n e y s w h o w e r e a c t i n g f o r P R A S A i n re l a t i o n t o a l l t h o s e c o n t r a ct s . DL Mogaswa Attorneys, we have the attorneys on a brief that had assisted PRASA in relation to all those contracts. Page 106 of 210 16 MARCH 2020 – DAY 224 ADV VAS SONI SC : And …(intervenes). CHAIRPERSON : DL – I a m s o r r y. D L …(intervenes). M S N G O Y E: M o g a s w a . CHAI RPERSON : M o g a s w a , w a s t h a t PRASA’s attorneys? M S N G O Y E: I t w as PR ASA’s a tto rne ys. CHAIRPERSON : O h o k a y. M S N G O Y E: So, when they prepared this d o c u m e n t , t h e y h a d p r e p a r e d t he doc um ent on t he reque st o f the Chairperson . CHAIRPERSON : Yes . 10 M S N G O Y E: Wh o wanted to know what had tra n s p i r e d i n t h e s e m a t t e r s . CHAIRPERSON : Yes . M S N G O Y E: So, this was the summ a r y t o t h e Chairperson to say th is i s whe re the matters are and this is what possibly these are the chances of our success. CHAIRPERSON : And what dat e i s t h e l e t t e r M S N G O Y E: Th e l e t t e r i s d a t e d 2 1 N o v e m b e r 2 0 1 7 . CHAIRPERSON : Yes . It is addres s ed to PRASA Hous e and an e -m a i l F a n i D in gis wa y o, i s t h a t r i g h t ? M S N G O Y E: Th at i s c o rrect Ch a ir. I t is add ressed to …(intervenes). 20 CHAIRPERSON : J a , f or th e a t t e n t i o n o f M r Fa ni Ding i s w a y o a n d M S N G O Y E: Shumi. CHAIRPERSON : M s S h u m i M a g o d i . M S N G O Y E: M a g o d i . T h a t i s c o r r e c t C h a i r. CHAIRPERSON : Yes . A nd the sub je ct is; R epo rt o n Progre ss o n Siyay a f i l e. I s t hat righ t? Page 107 of 210 16 MARCH 2020 – DAY 224 M S N G O Y E: Th at i s cor rect Chair. CHAIRPERSON : Ye s o k a y. ADV VAS SONI SC : And in instance the attorneys s u m m a r i z e d what the n a t u r e o f t h e d i s p u t e s i s i n r e s p e c t o f e a c h o f t h e c a s es t h a t w e r e n o w before court. M S N G O Y E: Th at i s c o rrect Ch a ir. ADV VAS SONI SC : And may I ask y o u w e r e t h e m a t t e r s t o b e ev e n t u a l l y t he mat t e r i s t o b e re solv ed b y the co urts or we re t h ey t o b e re so lve d b y some other tribunal? 10 M S N G O Y E: Chairperson, the p a r t i e s a g r e e d b e t w e e n u s a n d S i y a y a w e a g r e e d t o r e f e r t h e m a t t e r s t o a r b i t r a t i o n a n d t h a t w a s o n e p r o c e s s tha t we had agr e e d t o b e c a u s e a f t e r t h e s u m mo n s e s w e c a m e t o g e t h e r a n d agreed that we rather deal with these matters through an arbitration p r o c e s s. T he a greeme nt s p rovid e f or t h at dispu te re solu t io n me cha n is m and in the matter were then referred to arbitration. A D V VA S S O N I S C : N o w i n r e g a r d t o f o r e x a m p l e t h e S w i f a m b o m a t t e r. MS NGOYE: H’mm. A D V VA S S O N I S C : P R A S A h a d c h a l l e n g e d t h e v a l i d i t y o f t h e c o n t r a c t and therefore asked the court to review and set aside the contract? 20 M S N G O Y E : T h a t i s c o r r e c t C h a i r. A D V VA S S O N I S C : In regard to the Siyaya disputes was it simply a matter of disputing the amounts claimed or did it go to the heart of the contracts? MS NGOYE: Well it was just around the monies claimed and the s e r v i c e s r e n d e r e d C h a i r. Page 108 of 210 16 MARCH 2020 – DAY 224 A D V VA S S O N I S C : And that is why it was possible or it was acceptable that the dispute – the arbitration? M S N G O Y E : T h a t i s c o r r e c t C h a i r. C H A I R P E R S O N : T h e d i s p u t e a b o u t t h e a m o u n t c l a i m e d w a s P R A S A’s contention that there was not work that had been done which justified that claim? M S N G O Y E : Ye s i n s o m e o f t h e c a s e s C h a i r. CHAIRPERSON: In some of the cases. MS NGOYE: The instruction that we received was that no these monies 10 have been paid. CHAIRPERSON: Ja. M S N G O Y E : Yo u k n o w w e d o n o t o w e … ( i n t e r v e n e s ) . CHAIRPERSON: Ja. M S N G O Y E : S i y a y a a n y. C H A I R P E R S O N : Ye s . MS NGOYE: And in others that we were told that no they did work that they were not authorised to do and obviously the colleagues were feeling that it was – because it was beyond and there was no variations. 20 CHAIRPERSON: H’mm. M S N G O Y E : To t h e c o n t r a c t . CHAIRPERSON: H’mm. MS NGOYE: They just felt that it was not proper to just you know pay Siyaya in relation to those matters. C H A I R P E R S O N : O k a y. Page 109 of 210 16 MARCH 2020 – DAY 224 A D V VA S S O N I S C : T h e d i s p u t e w i t h S i y a y a s t a r t e d w h i l e M r M o l e f e ’s B o a r d w a s s t i l l i n o ff i c e . M S N G O Y E : T h a t i s c o r r e c t C h a i r. A D V VA S S O N I S C : And at the time of this letter a NN4 the 21 N o v e m b e r w h a t w a s t h e s t a t u s o f M r M o l e f e ’s B o a r d ? MS NGOYE: Mr Molefe had left the Board of Mr Molefe had you know finished their term and so there was a new Board that was present at that time. S o i t w a s – t h i s m a t t e r w a s – t h i s l e t t e r w a s e ff e c t i v e l y t o deal with the enquiry that was coming from the Chairperson of the new 10 Board, Ms Makubela. A D V VA S S O N I S C : N o w y o u d e a l w i t h t h a t a t p a r a g r a p h 3 2 o f S S 7 B and you set out the date of the new Board and so on. Are those all correct? M S N G O Y E : T h a t i s c o r r e c t C h a i r. A D V VA S S O N I S C : Ye s . Now after this dispute it came around to what – soon after she was appointed to the Board what was the interaction between you and Ms Makubela? MS NGOYE: Chairperson my first interaction with Ms Makubela was around you know my Portfolio as legal and it was also around 20 understanding what had transpired in relation to the Werksmans contract who had appointed Werksmans and how it was appointed and so on because what she indicated to us what that she was required and also in relation to Parliament to have to go and explain to Parliament how Werksmans was appointed at PRASA. So that was the first really meeting that I had where I explained to her the structure of the legal Page 110 of 210 16 MARCH 2020 – DAY 224 function and I advised her that we are not acting at the time and so you know that really it was a short meeting with Ms Makubela. A D V VA S S O N I S C : A n d i n r e l a t i o n t o t h e S i y a y a c o n t r a c t s ? MS NGOYE: Well in relation to the Siyaya contracts Chairperson I was called in again by the Chairperson and because I operate at a strategic level I then called Mr Dingiswayo who would have more detail on the matters to come with me to the meeting so that we can explain these contracts accordingly to the Chairperson and you know what became alarming for me in that meeting was you know when the Chairperson 10 said, at this time perhaps I must say Chairperson the Siyaya contracts they had applied for liquidation. Right and the liquidation process was – it was voluntary liquidation of this Siyaya Consulting Engineering Company which was one of the companies that had sued us. So she said that she had received information from a colleague of hers Ms …(indistinct) and that you know you have PRASA had made concessions in the liquidation proceedings that warranted Siyaya to be paid and she said she had a particular report as well that was talking to that fact. So when we asked for the report she did not share it you know with us. She said no she was not supposed to share that report 20 with us it was for her information and so therefore she wanted to see how she could best deal with these matters. A D V VA S S O N I S C : Now what was your reaction I mean here is the Chairperson of the Board dealing with legal matters? How did you react to that and what was perception of her receiving information from outside sources? Page 111 of 210 16 MARCH 2020 – DAY 224 M S N G O Y E : C h a i r p e r s o n i t i s o b v i o u s l y – i t i s u n h e a r d o f . Yo u k n o w for me it really was unheard of and I would have thought my first impression was you know try and understand exactly what is happening with the organisation. A Chairperson can ask questions and can ask for you know explanations that was not a problem. But to have already made a decision that says yes I have got this report and PRASA people had conceded in the litigation – in the liquidation proceedings and therefore we need to see how we settle these matters. That for me was a c o n c e r n . Yo u k n o w b e c a u s e I t h o u g h t I a m n o t s u r e h o w f a r t h i s g o e s 10 because as far as I am concerned these matters were matters that as PRASA we knew we had defences. And so I do not quite understand why it is now that we would be now put into a position to settle these matters and this was driven by the Chairperson. So it took me – you know it took me back and I thought to myself okay we will have to see how this thing pans out. Because I had thought also that the Chairperson would work with us as the Legal Department to make sure that we are all alike. That that not – that was not to be Chairperson because she excluded us altogether from the deliberations of this m a t t e r. 20 In fact she preferred to deal with the external attorneys of PRASA in this matter and not the legal – the internal legal function within PRASA. CHAIRPERSON: Would this have been 2016? M S N G O Y E : 2 0 1 7 C h a i r. CHAIRPERSON: 2017. MS NGOYE: That is correct. Page 112 of 210 16 MARCH 2020 – DAY 224 C H A I R P E R S O N : J a o k a y. A D V VA S S O N I S C : N o w t h e – s h e w i l l s a y a n d t h e r e i s a n i s s u e t h a t comes up. Mr Montana as understand it did not have legal qualifications but Ms Makubela? MS NGOYE: Ye s . counsel and ja. I understood Ms Makubela to be SC – senior So she definitely had the legal background. And in fact we were quite excited that we have got a Chairperson who is a lawyer you know and would help us deal with all these matters. A D V VA S S O N I S C : A n d s o w h e n s h e a s k e d – s o r r y – w e d e a l t w i t h 10 NN4 and you will see that that is dated the 21st of November 2017. That is the report back which the attorneys had given. Am I correct? MS NGOYE: That is correct. A D V VA S S O N I S C : And which you said clearly reflected what the n a t u r e o f t h e d i s p u t e s w e r e a n d w h a t P R A S A’s d e f e n c e s w e r e t o e a c h of the cases? MS NGOYE: T h a t i s c o r r e c t C h a i r. A D V VA S S O N I S C : W h a t h a p p e n e d n e x t i n r e l a t i o n t o t h a t d i s p u t e ? MS NGOYE: Well Chair as I eluded you know the Chairperson decided to deal with our attorneys, the external attorneys as well as the 20 attorneys of Siyaya and a form of a settlement agreement you know was entered into. I am summarising Chairperson. At the end of the day what we understood was that you know she had given instructions a s t o h o w t h e m a t t e r s m u s t b e s e t t l e d . Yo u k n o w a n d t h o s e i n s t r u c t i o n s n o w n e e d e d t o b e e ff e c t e d a n d t h e n e x t t h i n g w e k n e w a s t h e L e g a l Department was that there was going to be an application to make that Page 113 of 210 16 MARCH 2020 – DAY 224 the settlement agreements you know an order of court so that PRASA c a n p a y. B u t b e f o r e t h a t C h a i r w h a t t r a n s p i r e d i s t h a t w e t h e n e n g a g e d our attorneys, the external attorneys that we had briefed and we said, look you said …(intervenes). CHAIRPERSON: And who were these attorneys? MS NGOYE: Diale Mogale. CHAIRPERSON: Oh same as …(intervenes). MS NGOYE: Mogashoa yes. C H A I R P E R S O N : J a o k a y. 10 MS NGOYE: We said – because our – all our attorneys know Chairperson that we do not deal with the business without the legal function being present and we stressed that upon all our attorneys. So you know we expressed that concern with the attorneys and the response we got was something else. And the attorney Mr Diale – Mogashoa said to us that he was barred by the Chairperson of the Board from speaking to the Legal Department. CHAIRPERSON: And the Chairperson of the Board at that time was Ms Makubela. MS NGOYE: Ms Makubela yes. 20 C H A I R P E R S O N : O k a y. MS NGOYE: So we left it at that. So we said okay that is fine but already one could see that there is something amiss with what was happening and we were very concerned about it. CHAIRPERSON: H’mm. A D V VA S S O N I S C : M s N g o y e b e f o r e y o u g o o n a f t e r s h e r e c e i v e d o r Page 114 of 210 16 MARCH 2020 – DAY 224 P R A S A r e c e i v e d N N 4 i f y o u l o o k a t y o u r a ff i d a v i t y o u r e f e r t o a document prepared by the Chairperson. M S N G O Y E : Ye s . A D V VA S S O N I S C : And you will find that at paragraph 35 and the document you talk about …(intervenes). CHAIRPERSON: What page? A D V VA S S O N I S C : O h s o r r y M r C h a i r p e r s o n . CHAIRPERSON: What page? A D V VA S S O N I S C : A t p a g e 2 9 4 o f t h e a ff i d a v i t a t p a r a g r a p h 3 5 a n d 10 the annexure is at page …(intervenes). CHAIRPERSON: Hang on one second. 235? A D V VA S S O N I S C : T h a t i s r i g h t C h a i r. S o r r y 2 9 4 . MS NGOYE: 294. CHAIRPERSON: 294. A D V VA S S O N I S C : Ye s . C H A I R P E R S O N : Ye s p a r a g r a p h 3 5 ? A D V VA S S O N I S C : T h a t i s s o C h a i r p e r s o n . C H A I R P E R S O N : O k a y. A D V VA S S O N I S C : 20 And then you refer to NN5 which Chairperson appears at page 338 of SS7. CHAIRPERSON: 338? A D V VA S S O N I S C : 3 3 8 C h a i r p e r s o n y e s . C H A I R P E R S O N : Ye s . A D V VA S S O N I S C : N o w d i d y o u r e g a r d t h i s a s a n i m p o r t a n t d o c u m e n t relating to …(intervenes). Page 115 of 210 16 MARCH 2020 – DAY 224 CHAIRPERSON: Just identify it once again in what document it is, from whom it was? A D V VA S S O N I S C : A s i t p l e a s e s C h a i r p e r s o n y e s . CHAIRPERSON: To w h o m i t w a s s e n t a n d w h a t w a s t h e s u b j e c t matter? A D V VA S S O N I S C : W e l l f i r s t o f a l l w h o i s t h e d o c u m e n t a d d r e s s e d t o ? MS NGOYE: The document is addressed to Mr Zede, Mr Lindikaya Z e d e w h o w a s t h e a c t i n g C h i e f E x e c u t i v e O ff i c e r a t t h e t i m e . A D V VA S S O N I S C : A n d f r o m w h o m i s i t ? 10 MS NGOYE: It is from the Chairperson of the PRASA Board at the time A d v o c a t e Ta n M a k u b e l a S C . A D V VA S S O N I S C : A n d w h a t i s t h e d a t e o f t h e d o c u m e n t ? MS NGOYE: The date is 28 November 2017. A D V VA S S O N I S C : A n d w h a t i s t h e s u b j e c t m a t t e r o f t h i s d o c u m e n t ? MS NGOYE: S i y a y a C o n s u l t i n g E n g i n e e r s P T Y LT D i n l i q u i d a t i o n . Enquiry in terms of Section 417(1) and 418(2) of The Companies Act 61 of 1973. A D V VA S S O N I S C : R i g h t . N o w i n p a r a g r a p h 3 6 y o u r e f e r t o a n u m b e r of concerns that that document prompted. 20 MS NGOYE: H’mm. A D V VA S S O N I S C : C o u l d y o u … ( i n t e r v e n e s ) . C H A I R P E R S O N : W e l l I a m s o r r y. A D V VA S S O N I S C : Ye s C h a i r. CHAIRPERSON: Before we go to what it prompted let us have the gist of what the ...(intervenes). Page 116 of 210 16 MARCH 2020 – DAY 224 A D V VA S S O N I S C : Ye s . CHAIRPERSON: Letter says. A D V VA S S O N I S C : A s i t p l e a s e s M r C h a i r p e r s o n . C H A I R P E R S O N : Ye s . MS NGOYE: Chairperson …(intervenes). CHAIRPERSON: Ja what was the gist of what that letter was talking about? MS NGOYE: The gist Chairperson was around the settlement of the Siyaya contract. 10 C H A I R P E R S O N : Ye s . MS NGOYE: I think what the Chairperson in this memorandum advises is that you know she had been in contact with the liquidators of Siyaya who gave her a report you know that was subject to the liquidation proceedings. And also in the memorandum you know she then indicates that she is not sure why our attorneys say that they did not have that report because as far as she was concerned the report was available. So – and also in terms of the memorandum she speaks to t h e l e t t e r t h a t D i a l e M o g a s h o a h a d m a d e a v a i l a b l e t o h e r. remember she asked for information. 20 Because We gave her information requesting Diale Mogashoa to summarise the matters. So she refers to that report and refers to the subpoenas that our colleagues had received in relation to the litigation. In fact it speaks to the liquidation processes Chairperson. CHAIRPERSON: H’mm. MS NGOYE: And then she talks to the report you know the interim Page 117 of 210 16 MARCH 2020 – DAY 224 report of the Commissioner that the witnesses that testified in this – in the hearing and the inquiry you know acknowledged that PRASA owed S i y a y a m o n e y. CHAIRPERSON: H’mm. MS NGOYE: So this is in a nutshell what she talks to. She talks to that report. CHAIRPERSON: H’mm. MS NGOYE: She said witnesses made major concessions in regards to the liability of PRASA. 10 CHAIRPERSON: H’mm. MS NGOYE: So she writes this because she said she needed to have this report ready for the Board. CHAIRPERSON: H’mm. MS NGOYE: And also she was preparing also to go to the Portfolio Committee CHAIRPERSON: H’mm. A D V VA S S O N I S C : Before we go on can I just ask you to look at paragraph 5 of NN5 which appears at page 339 and will you read into the record what she says that the circumstances in which she acquired 20 this liquidation report? MS NGOYE: She says: “ Yo u are aware that attorneys acting for Siyaya Consulting Engineers in liquidation approached on or about 14 November and that they provided me with a copy of an interim report of the Page 118 of 210 inquiry into the 16 MARCH 2020 – DAY 224 Companies Act that was prepared by the Commissioner and dated 15 September 2017. They also attached copies of e-mail communications between Mr Madimpe Mogashoa and Mogashoa Diale and Advocate Francois Botes SC. The e-mail communication is also attached in Mogashoa Diale Attorneys Report.” A D V VA S S O N I S C : N o w w h o i s A d v o c a t e F r a n c o i s B o t e s ? MS NGOYE: Advocate Botes was acting for the – was in the liquidation proceedings. So she – he was the one that got ...(intervenes). 10 A D V VA S S O N I S C : For whom was a he acting for? MS NGOYE: He was acting for Siyaya. A D V VA S S O N I S C : S o i n r e l a t i o n t o h o w M s M a k u b e l a s a y s s h e g o t the information what was your understanding? MS NGOYE: Chair I was taken aback because I – the little I understand at least about liquidation proceedings is this – things like this do not – you do not just give reports out without necessarily following procedure. But also when she said at the time she said because of collegiality you know I was able to get – they gave me this report. 20 So from that onwards I knew that this was obviously not s o m e t h i n g t h a t w a s d o n e p r o p e r l y. E s p e c i a l l y a f t e r e n q u i r i n g f r o m o u r attorneys in clauses that they did not have the report. So you know it became surprising how she could then have that report and as our attorneys could not have it. A D V VA S S O N I S C : But in terms of communications between her in looking at what she says and the fact that she refers to the report from Page 119 of 210 16 MARCH 2020 – DAY 224 whom did she get the report? MS NGOYE: Sorry Chair which report are we …(intervenes). A D V VA S S O N I S C : The report she was talking about. The interim report of the liquidator at paragraph 5. MS NGOYE: W e l l t o m e s h e s a i d i t w a s c o l l e g i a l i t y. Yo u k n o w a colleague of hers who seems to be with a – deals with this type of matters in the Pretoria Bar that had been the person that had given her the report. I did not quite ask you know who that was but she referred to collegiality and I just accepted it for what it is. 10 A D V VA S S O N I S C : Well if you look at paragraph 5 it seems that between the word approached and on in the second line the word me appears to be missing if one wants to read things into that? M S N G O Y E : Ye s . T h a t i s c o r r e c t C h a i r. A D V VA S S O N I S C : So where would – I mean based on what she is saying in paragraph 5 where would she have got the report from? MS NGOYE: She would have gotten it from the attorneys acting for Siyaya Consulting Engineers. Perhaps may I also say she is writing to the Group CEO at the time …(indistinct) and perhaps she had had this discussion with Mr Zede and that is why she is saying you are aware 20 because it if referencing you know her discussions perhaps with Mr Zede. That when I engaged with her you know she did not tell me she j u s t s a i d c o l l e g i a l i t y. A D V VA S S O N I S C : Well if you look at paragraph 36 you suggest something else. C H A I R P E R S O N : T h a t i s g o i n g b a c k t o h e r a ff i d a v i t . Page 120 of 210 16 MARCH 2020 – DAY 224 MS NGOYE: Oh sorry Mr Chairperson. CHAIRPERSON: Ja. A D V VA S S O N I S C : To h e r a ff i d a v i t . C H A I R P E R S O N : Ye s . A D V VA S S O N I S C : A t p a g e 2 9 4 M s N g o y e . M S N G O Y E : Ye s C h a i r. A D V VA S S O N I S C : Yo u a r e s a y i n g e x a c t l y w h a t t h a t l e t t e r s a y s t h a t she was approached by the attorneys. MS NGOYE: 10 W e l l y e s C h a i r. That – because that was what was startling for me you know as I indicate in the paragraph. That she had been approached by the attorneys of Siyangena. That I get from obviously the memorandum that she had prepared. A D V VA S S O N I S C : Ye s . A n d w h a t a f t e r t h a t a p p r o a c h w h a t h a d t h e y done? MS NGOYE: They gave her this interim report. A D V VA S S O N I S C : R i g h t . M S N G O Y E : O f t h e i n s o l v e n c y e n q u i r y. A D V VA S S O N I S C : A n d w h a t d i d s h e s a y a b o u t P R A S A’s a t t o r n e y s i n the memorandum which you summarise. 20 MS NGOYE: Let me just …(intervenes). A D V VA S S O N I S C : S u m m a r i s e a t p a r a g r a p h 3 6 . MS NGOYE: 36. Oh she says that she was – she did not necessarily b e l i e v e t h a t t h e P R A S A a t t o r n e y s w o u l d n o t h a v e t h e r e p o r t . Yo u k n o w some of the things that she alleges in that memorandum. A D V VA S S O N I S C : Ye s . A n d t h e n s h e m a d e t h e p o i n t t h a t s h e h a d Page 121 of 210 16 MARCH 2020 – DAY 224 made previously that she was told that PRASA employees had made major concessions. M S N G O Y E : T h a t i s c o r r e c t C h a i r. A D V VA S S O N I S C : N o w w h a t w a s y o u r r e a c t i o n t o t h e c o m m u n i c a t i o n between her as Chairperson and the opposing attorney? MS NGOYE: C h a i r p e r s o n i t i s u n h e a r d o f . Yo u k n o w I m e a n I f o r a s long as I think I have been an attorney one knows what the boundaries are. Yo u k n o w w h e n y o u h a v e a t t o r n e y s o n B o a r d e a c h s i d e t h e a t t o r n e y s a r e t h e o n e s t h a t s p e a k o n b e h a l f o f t h e i r c l i e n t s . Yo u k n o w 10 you do not do it like that. So for me it was alarming you know that here we have a Chairperson of the Board who is a senior counsel for that m a t t e r y o u k n o w w h o w o u l d c o n d u c t h e r s e l f i n t h a t m a n n e r. Yo u k n o w it was just something that we frowned upon. But we left it Chairperson because we were not wanted in that whole sphere but we recognised what was happening. A D V VA S S O N I S C : S o r r y d i d y o u s a y y o u w e r e ? CHAIRPERSON: When you say you recognised what was happening what was happening? MS NGOYE: 20 Well the fact that now she is communicating directly to attorneys of the other side. Yo u k n o w t o t h e e x c l u s i o n o f t h e L e g a l Department. CHAIRPERSON: H’mm. MS NGOYE: She was running with the matter herself. CHAIRPERSON: H’mm. M S N G O Y E : Yo u k n o w a n d f o r u s i n t h e L e g a l D e p a r t m e n t t h a t i s n o t – Page 122 of 210 16 MARCH 2020 – DAY 224 t h e C h a i r p e r s o n d o e s n o t h a v e t h a t a u t h o r i t y. CHAIRPERSON: H’mm. MS NGOYE: F i r s t a n d f o r e m o s t y o u k n o w. A n d i f a n y t h i n g w e w o u l d have thought that she would rely on the internal team to advise us to what is happening. But she ran with the matter herself. CHAIRPERSON: H’mm. A D V VA S S O N I S C : N o w d i d y o u p r o t e s t y o u o r t h e L e g a l D e p a r t m e n t ? MS NGOYE: Protest we did Chairperson but we did not protest to her b e c a u s e w e d i d n o t h a v e a c c e s s t o h e r. 10 CHAIRPERSON: H’mm. MS NGOYE: We went to the acting Group CEO at the time Mr Lindikaya Zede and we said to him, what is this that is happening as far as this matter is concerned? That the Chairperson is now engaging the o t h e r s i d e a n d a s a l e g a l f u n c t i o n w e a r e e x c l u d e d f r o m t h e m a t t e r. W e even said to Mr Zede. We said but you know how it works within the organisation why is it that you are not advising the Chairperson accordingly? And his response was simple you know the Chairperson is doing what he wants – she wants and wanting to approach this matter i n t h i s w a y. 20 S o w e l e f t i t C h a i r. A n d I t h i n k w e g o t t o a p o i n t w i t h i n PRASA where we understood that in this case we were a nuisance and therefore we needed to be side-lined. A D V VA S S O N I S C : Now there are a few developments and we can either go into them or Mr Chairperson the submission I make is they j u s t d e a l w i t h t h e s a m e m a t t e r. It simply is a continuation of that process which leads to what I want to raise with the witness. I do not Page 123 of 210 16 MARCH 2020 – DAY 224 know if you want me to deal with annexure NN6 and NN7? My submission is they are not required. CHAIRPERSON: No just go ahead as you see fit. A D V VA S S O N I S C : Ye s . CHAIRPERSON: I think it is fine ja. A D V VA S S O N I S C : Now in regard to the communication with your Department and the Board or the Chairperson of the Board what was the nature of the communication in relation to Siyaya? MS NGOYE: 10 We advised the Chairperson about the matters and how we believed that PRASA had you know high prospects of succeeding in the matters. And we basically told her what Diale Mogashoa had also indicated and it was basically to say well we do not believe that these matters should be settled because we can win them. And that was in a n u t s h e l l e ff e c t i v e l y w h a t o u r r e p o r t w a s s a y i n g a n d a l s o s h e h a d wanted to know who we had advised and so on. So we gave her that feedback. A D V VA S S O N I S C : N o w t h e n e x t d e v e l o p m e n t i s t h a t y o u f i n d o u t t h a t you have been excluded and when I say you the Department, the Legal Department has been excluded from the litigation process. 20 M S N G O Y E : T h a t i s c o r r e c t C h a i r. A D V VA S S O N I S C : N o w d i d t h a t c o m e a b o u t ? MS NGOYE: Well you know I think Chair when you were – the environment we knew what we were rather as the Legal Department that matters would eventually come to us. So when the settlement agreement was going to be made at order of court we knew that the Page 124 of 210 16 MARCH 2020 – DAY 224 papers would have to be served on us as the legal function. CHAIRPERSON: I am sorry to interrupt you. Let us go back a little bit. There was a time when your felt the need to go to the acting Group CEO Mr Zede. M S N G O Y E : T h a t i s c o r r e c t C h a i r. CHAIRPERSON: And you raised your concerns with regard to the role that was being played by the then Chairperson Ms Makubela? M S N G O Y E : T h a t i s c o r r e c t C h a i r. CHAIRPERSON: Now you recall more or less when that was when you 10 went to raise this issue with the acting Group CEO or are you not able to remember? M S N G O Y E : I t w a s a r o u n d y o u k n o w N o v e m b e r. I t w a s a t t h e t i m e t h a t …(intervenes). C H A I R P E R S O N : Ye s . MS NGOYE: That the Chairperson was making inquiries. C H A I R P E R S O N : Ye s . M S N G O Y E : Yo u k n o w i n t o t h i s m a t t e r. A n d – b e c a u s e t h e r e w e r e a number of meetings that were held in fact. C H A I R P E R S O N : Ye s . 20 MS NGOYE: Diale Mogashoa. C H A I R P E R S O N : Ye s . MS NGOYE: We bumped into him in the corridors of PRASA and we would ask him, what are you doing here? C H A I R P E R S O N : Ye s . M S N G O Y E : Yo u k n o w a n d i t w o u l d b e t h e n u m b e r o f m e e t i n g s t h a t h e Page 125 of 210 16 MARCH 2020 – DAY 224 was holding with the Chairperson. C H A I R P E R S O N : Ye s . M S N G O Y E : S o i t w a s a r o u n d t h a t t i m e C h a i r N o v e m b e r / D e c e m b e r. CHAIRPERSON: As I recall what is in the documentation the Chairperson had just been appointed is it not? M S N G O Y E : T h a t i s c o r r e c t C h a i r. CHAIRPERSON: At that time. M S N G O Y E : S h e w a s a p p o i n t e d I t h i n k i n O c t o b e r. C H A I R P E R S O N : Ye s . 10 MS NGOYE: Ja. So this was the first matter that she dealt with. CHAIRPERSON: O k a y. At the time you went to speak to the acting Group CEO had you come to the conclusion that you – the Legal Department was being excluded from any dealings with this matter or not yet? M S N G O Y E : N o C h a i r. CHAIRPERSON: Not yet. MS NGOYE: Everything was fine before the intervention of the Chairperson. CHAIRPERSON: Everything was still fine? 20 MS NGOYE: Ye s . The Legal Department was left to run with the m a t t e r s a n d t o r e p o r t a c c o r d i n g l y. C H A I R P E R S O N : Ye s . M S N G O Y E : Ye s . CHAIRPERSON: O k a y. T h e n c o n t i n u e a n d t e l l m e a t w h a t s t a g e y o u felt that the Legal Department was being excluded? Page 126 of 210 16 MARCH 2020 – DAY 224 M S N G O Y E : A t t h e t i m e – s o r r y. CHAIRPERSON: Or did you speak at cross purposes? MS NGOYE: No, no we did not. C H A I R P E R S O N : O k a y. L e t m e a s k a g a i n . O r M r S o n i . A D V VA S S O N I S C : M a y I b e g – b e c a u s e t h e r e i s a n i s s u e t h a t d o e s arise relating to that issue Mr Chairperson. C H A I R P E R S O N : Ye s o k a y a l r i g h t . A D V VA S S O N I S C : Another question of your feeling what happened o n t h e 1 5 t h o f D e c e m b e r i f y o u l o o k a t p a r a g r a p h 4 0 o f y o u r a ff i d a v i t ? 10 MS NGOYE: On the 15th Chair Mr Dingiswayo phoned. I was with Mr Dingiswayo because we were concerned about the dealings of Diale Mogashoa with the Chairperson and them not coming to talk to us. Because the least we expected was that even after they engaged with t h e C h a i r p e r s o n t h e y w o u l d s a y, l o o k t h i s i s w h e r e w e a r e w i t h t h i s m a t t e r, t h i s i s w h a t w e h a v e d i s c u s s e d w i t h t h e C h a i r p e r s o n . A n d w h e n we realised that that was not happening we then suggested to call – this is Mr Dingiswayo and myself – to call Mr Diale – I mean Mogashoa and he frankly said to us, look I had been barred from speaking to the Legal Department by the Chairperson of the Board. 20 And we left it at that because we did not want to put him in trouble. C H A I R P E R S O N : Ye s . MS NGOYE: So we just said okay and we left it. C H A I R P E R S O N : O k a y. A D V VA S S O N I S C : But was that not I mean really well I mean from your point of view how would PRASA benefit if the Legal Department Page 127 of 210 16 MARCH 2020 – DAY 224 would be excluded in this fashion? MS NGOYE: It just complicates things Chairperson. I think as an internal legal function we have a role to play as well and you know in terms of briefing attorneys as well. We understand the business and we would know what is happening better than the attorneys themselves. So you know it was obviously unadvisable that we would be left out and our attorneys proceed with the matters. In fact they took instructions from us you know for them to be able to deal with the mattes on behalf of PRASA as the legal function. 10 And we obviously having you know being in the field we understood what issues were important and what not. So when that did not happen it was a concern for us. A D V VA S S O N I S C : T h e n o n t h e 1 5 t h o f D e c e m b e r a l e t t e r w a s w r i t t e n to Ms Mogashoa? MS NGOYE: No. A D V VA S S O N I S C : W h a t w a s t h a t l e t t e r b u t i f y o u l o o k a t p a r a g r a p h 4 2 o f y o u r a ff i d a v i t . MS NGOYE: Ja. T h i s l e t t e r C h a i r p e r s o n e ff e c t i v e l y w a s a l e t t e r advising Mr Mogashoa about the settlement – what you call it agreement that would have to be made in relation to each case. 20 CHAIRPERSON: Do we have this letter somewhere, because if it is t h e r e l e t ’s g o t o i t . MS NGOYE: I d o n ’ t h a v e t h e l e t t e r. A D V VA S S O N I S C : CHAIRPERSON: It isn’t in the documents It is not in the document, is there no access to it, so that we have some complete picture? Page 128 of 210 16 MARCH 2020 – DAY 224 MS NGOYE: I c a n f i n d t h e l e t t e r C h a i r. CHAIRPERSON: MS NGOYE: Yo u c a n f i n d a c o p y ? Ye s I c a n f i n d t h e l e t t e r a n d m a k e i t a v a i l a b l e . CHAIRPERSON: J a o k a y, o k a y b u t t e l l m e w h a t t h e l e t t e r w a s s a y i n g and who it was from, who it was to. MS NGOYE: Chairperson Mr Zede was advised, obviously Mr Zede was the Acting CEO at the time and he had been very close to the Chairperson. So Mr Zede was advising Diale Mogashoa, our attorneys on the instructions of the Chairperson, how the Chairperson would have 10 wanted these matters to be settled in respect of each case. So – and b a s i c a l l y s p e a k s t o M s M a k u b e l a ’s i n s t r u c t i o n s w h e r e s h e t h e n l i s t s t h e r e s p e c t i v e c a s e s a n d t h e a m o u n t s t h a t t h e c a s e s n e e d t o b e s e t t l e d f o r. S o s h e d e a l s w i t h a l l t h o s e i n t h a t l e t t e r. A D V VA S S O N I S C : MS NGOYE: Ja are those details in paragraph 42? T h a t ’s c o r r e c t C h a i r. S o y o u c a n s e e t h e r e C h a i r p e r s o n , at the top of page 21 the matter was to be settled for the amount of …(intervenes). CHAIRPERSON: MS NGOYE: 20 At page? 297 the matter is to be claimed for – settled for an amount of R7 million the other one – so these were the instructions that were coming from the Chairperson in relation to all those matters that …(intervenes). CHAIRPERSON: Ye s d o y o u w a n t t o j u s t r e a d t h a t i n t o t h e r e c o r d , those amounts how they were to be settled and the case numbers? MS NGOYE: Ye s . Page 129 of 210 16 MARCH 2020 – DAY 224 CHAIRPERSON: W e l l i f t h a t ’s t h e p r e v i o u s – j a t h e l e t t e r g o e s o n t o confirm, I think start from there and read up to the end of the paragraph. MS NGOYE: T h e l e t t e r g o e s o n t o c o n f i r m M s M a k u b e l a ’s i n s t r u c t i o n s as follows: “Case 74281/2015 instructions. be settled was to be pended until further In respect of case DB2 the matter was to for the amount claimed, namely R7 098 481.66. Case DD1 the matter was to be settled 10 for the amount claimed, namely R8 095 950.00. case DB3, the matter was to be settled for the amount claimed, R50 371 739.87, the Siyaya case the amount claimed was R21 million but it was to be settled at R19 583 778.42 in respect of interest this should be reckoned from the date of the summons. The letter concluded as follows, DM Attorneys were to make the f o l l o w i n g o ff e r s t o p a y t h e l i q u i d a t o r s o f C I A R a i l R30 566 171.53 plus interest and to pay the attorneys representing CIA Rail R90 583 788.42 plus interest.” 20 CHAIRPERSON: Now the – what you have read there, according to y o u r a ff i d a v i t , w a s h o w M s M a k u b e l a h a d s a i d , a c c o r d i n g t o t h e l e t t e r the various claims by CI against PRASA should be settled, is that correct? MS NGOYE: T h a t ’s c o r r e c t C h a i r. CHAIRPERSON: Okay am I right to say that those that she said Page 130 of 210 16 MARCH 2020 – DAY 224 s h o u l d b e s e t t l e d a c t u a l l y, i t w a s n ’ t a m a t t e r o f t h e m b e i n g s e t t l e d , i t was a matter of the instructions to pay whatever amount was claimed, that seems to be what it says, is that correct? MS NGOYE: T h a t ’s c o r r e c t C h a i r. CHAIRPERSON: It was not a compromise or a settlement agreement, it was, pay the amount demanded? MS NGOYE: T h a t ’s c o r r e c t C h a i r. CHAIRPERSON: In respect of all those where she said, settle the amount as claimed. 10 MS NGOYE: T h a t ’s c o r r e c t C h a i r. CHAIRPERSON: And then the last sentence of paragraph 42 of your a ff i d a v i t s a y s : “The letter concluded as follows, DM Attorneys were to m a k e t h e f o l l o w i n g o ff e r s , t h a t i s n o w P R A S A’s a t t o r n e y s were being instructed.” MS NGOYE: T h a t ’s r i g h t . CHAIRPERSON: “ To o ff e r t o p a y t h e l i q u i d a t o r s o f S i y a y a R30 566 171.53 plus interest.” Do you know whether that amount – where that amount came 20 from? MS NGOYE: I think it was part of …(intervenes). CHAIRPERSON: W a s i t – m a y b e l e t ’s s t a r t w i t h t h i s , w h a t w a s t h e t o t a l o f t h e a m o u n t s – t h e t o t a l a m o u n t t h a t s h e w a s s a y i n g P R A S A’s lawyers should agree to pay in regard to all the claims mentioned there? Page 131 of 210 16 MARCH 2020 – DAY 224 MS NGOYE: It was over – just over R56 million. CHAIRPERSON: MS NGOYE: Just over R56 million? T h a t ’s c o r r e c t . CHAIRPERSON: Okay and then there is that amount of R 3 0 5 6 6 1 7 1 . 5 3 i n r e s p e c t o f w h a t w a s t h a t d o y o u k n o w, b e c a u s e y o u r p a r a g r a p h h e r e d o e s n ’ t s a y w h a t t h a t w a s f o r. MS NGOYE: I guess it was the amount that was claimed also by Siyaya so she wanted us to pay the liquidators that amount of money to settle that. 10 CHAIRPERSON: Ye s , b u t w e r e n ’ t a l l t h e s e c l a i m s w e r e – t h e c l a i m a n t was Siyaya isn’t it? MS NGOYE: T h a t ’s c o r r e c t C h a i r. CHAIRPERSON: So why would some amount be paid to the liquidators and not the whole amount? MS NGOYE: C h a i r t h i s i s w h a t w a s c o n f u s i n g , y o u k n o w, w i t h t h i s whole matter …(intervenes). CHAIRPERSON: Because if a company is in liquidation then whatever the company was owed must be paid to the liquidators. MS NGOYE: 20 T h a t ’s c o r r e c t C h a i r. CHAIRPERSON: MS NGOYE: Ye s i s t h i s o n e o f t h e t h i n g s t h a t p u z z l e d y o u ? I t d i d C h a i r, b e c a u s e I m e a n , C h a i r, l i q u i d a t i o n w e understand that the liquidator is the one that takes over and you deal with the liquidator and not the party itself but in this particular case, y o u k n o w, t h a t w a s n o t t h e c a s e . CHAIRPERSON: Now – so this R30 million in the last sentence of Page 132 of 210 16 MARCH 2020 – DAY 224 your paragraph, you say was part of the R56 million or so? MS NGOYE: Ye s . CHAIRPERSON: MS NGOYE: Ye s . CHAIRPERSON: MS NGOYE: Ye s ? So the total amount was just over R56 million. T h a t ’s c o r r e c t C h a i r. CHAIRPERSON: And out of that R56 million plus she was saying R30 million must be paid to the liquidators. MS NGOYE: 10 T h a t ’s c o r r e c t C h a i r. CHAIRPERSON: And then to pay the attorneys representing Siyaya, one would have thought that such attorneys as they would have been to pursue these claims would be attorneys of the liquidators. MS NGOYE: T h a t ’s c o r r e c t . CHAIRPERSON: MS NGOYE: And not Siyaya. That is correct. CHAIRPERSON: Ye s , s o d o y o u k n o w w h e t h e r, a s a t t h i s t i m e t h e r e were attorneys instructed by the liquidators and there were attorneys who had previously been instructed by Siyaya or was it the same attorneys? 20 MS NGOYE: I t w a s n o t t h e s a m e a t t o r n e y s C h a i r. CHAIRPERSON: MS NGOYE: It was not the same attorneys? No it was not the same attorneys, the liquidator had its own attorneys and Siyaya had its own but in this case we were not d e a l i n g w i t h t h e l i q u i d a t o r s ’ a t t o r n e y s w e w e r e d e a l i n g w i t h S i y a y a ’s attorneys. Page 133 of 210 16 MARCH 2020 – DAY 224 CHAIRPERSON: By this time, how long had Siyaya been under liquidation, do you remember? MS NGOYE: They actually applied for their liquidation in 2016 so the process, I think, had started at that time. CHAIRPERSON: But is the position that through the Chairperson of t h e B o a r d o f P R A S A , P R A S A w a s e ff e c t i v e l y d e a l i n g w i t h t h e a t t o r n e y s – the previous attorneys of Siyaya, I’m saying previous because I don’t think they should have been representing Siyaya once they were liquidators, is that the position? 10 MS NGOYE: Ye s , I m e a n , s o e ff e c t i v e l y w h a t w e u n d e r s t o o d w a s t h e n , b e c a u s e t h e i n t e r a c t i o n s w e r e w i t h t h e a t t o r n e y s o f S i y a y a , y o u k n o w, t h e i s s u e s a r o u n d l i q u i d a t i o n w e r e b a s i c a l l y y o u k n o w, p u t a s i d e i n terms of having to comply with the manner in which you would run this type of case where a liquidator is involved. So she calls the attorneys of Siyaya and started talking to them. CHAIRPERSON: her Board were Do you remember whether at the time that she and appointed the liquidators attorneys were in c o r r e s p o n d e n c e w i t h P R A S A o r P R A S A’s a t t o r n e y s ? MS NGOYE: 20 They were Chair CHAIRPERSON: MS NGOYE: They were. So the liquidators would speak to Diale Mogashoa. CHAIRPERSON: Ye s , d o y o u k n o w w h e t h e r, p r i o r t o h e r a p p o i n t m e n t a n d t h e a p p o i n t m e n t o f h e r B o a r d , t h e s o - c a l l e d S i y a y a ’s a t t o r n e y s were continuing to be in correspondence with PRASA? MS NGOYE: Ye s C h a i r, i n t e r m s o f t h e A r b i t r a t i o n p r o c e e d i n g s , y e s w e Page 134 of 210 16 MARCH 2020 – DAY 224 were in communications. CHAIRPERSON: MS NGOYE: Ye s , i n r e s p e c t o f t h a t . T h a t ’s c o r r e c t C h a i r. CHAIRPERSON: Ye s , b u t w h y w a s t h a t n e c e s s a r y o n c e S i y a y a w a s i n liquidation because I would have imagined even with regard to that, that should have been under the liquidators’ control. MS NGOYE: In terms of the Siyaya S Group had a number of companies so Engineering – Consulting Engineering is what they had put under liquidation and the others remained as part of that group. 10 CHAIRPERSON: MS NGOYE: So the arbitration related to other entities. The other as part of the S Group yes. CHAIRPERSON: Not the one under liquidation? M S N G O Y E : T h a t ’s c o r r e c t C h a i r. CHAIRPERSON: So is it possible, therefore, that some of these amounts that she was giving instructions on did not relate to the entity that was under liquidation? MS NGOYE: T h a t ’s t o t h e o n e s t h a t w e r e i n a r b i t r a t i o n w i t h u s , t h a t ’s c o r r e c t C h a i r. CHAIRPERSON: 20 MS NGOYE: T h a t ’s c o r r e c t ? Ye s . CHAIRPERSON: So in that case, then except for the fact that she being Chairperson of the Board was getting involved in these matters, t h e r e w o u l d b e n o p r o b l e m w i t h d e a l i n g w i t h S i y a y a , S i y a y a ’s a t t o r n e y s insofar as they represented entities that were not under liquidation? MS NGOYE: T h a t ’s c o r r e c t C h a i r. Page 135 of 210 16 MARCH 2020 – DAY 224 CHAIRPERSON: Ye s , s o d o y o u k n o w w h e t h e r t h e a m o u n t t h a t s h e s a i d s h o u l d b e p a i d t o S i y a y a ’s l i q u i d a t o r s w h e t h e r t h a t w o u l d h a v e related to the only claim or claims that related to the entity that was under liquidation? MS NGOYE: It would have been to the claim that related to the company that was in liquidation. CHAIRPERSON: Ye s , o k a y s o i n s o f a r a s s h e t a l k s a b o u t a m o u n t s t h a t related to entities that were not under liquidation, somebody at PRASA would have been entitled to deal with those attorneys? 10 MS NGOYE: T h a t ’s c o r r e c t C h a i r. CHAIRPERSON: Insofar as she talks about amounts that related to the entity that was under liquidation, somebody at PRASA would have been entitled to speak to the liquidators’ attorneys? MS NGOYE: T h a t ’s c o r r e c t C h a i r. CHAIRPERSON: O k a y. A D V VA S S O N I S C : Mr Chairperson, if I could be helpful in regard to the figure of R30 566 171.53, you’ll see Mr Chairperson that, that is the sum total of the first three amounts reflected on page 297. CHAIRPERSON: 20 O k a y. A D V VA S S O N I S C : Then you add R7 million, R8 million and R15 million, you’ll get the R30.56 million. CHAIRPERSON: O k a y. A D V VA S S O N I S C : And then of course the R19 million is the one that w a s t h e f o u r t h f i g u r e , t h a t ’s h o w i t ’s d i v i d e d . CHAIRPERSON: Okay thank you. Page 136 of 210 16 MARCH 2020 – DAY 224 A D V VA S S O N I S C : N o w, t h e C h a i r p e r s o n i n s t r u c t s – g i v e i n s t r u c t i o n s of how the matters are to be settled but what happens next and you d e a l w i t h t h a t a t p a r a g r a p h 4 3 o f y o u r a ff i d a v i t M r N g o y e ? MS NGOYE: I n p a r a g r a p h 4 3 I t a l k a b o u t a l e t t e r t h a t S i y a y a ’s a t t o r n e y s w r o t e t o o u r a t t o r n e y. A D V VA S S O N I S C : MS NGOYE: Ye s . R i g h t , i n f a c t i n t h a t l e t t e r C h a i r p e r s o n S i y a y a ’s attorneys complained about the proposal that was made by our a t t o r n e y s r e f l e c t i n g , e ff e c t i v e l y t h a t t h a t ’s n o t w h a t t h e y u n d e r s t o o d t o 10 be the instruction coming from the Chairperson. CHAIRPERSON: Okay I’m sorry I’m just going to ask you to start afresh on that. MS NGOYE: N o p r o b l e m C h a i r, t h i s l e t t e r t h a t S i y a y a ’s a t t o r n e y s wrote to our attorneys, right, they complained about the fact that what o u r a t t o r n e y s h a d r e p r e s e n t e d a s a n o ff e r o f s e t t l e m e n t w a s n o t a t r u e reflection of what they understood to be the case. CHAIRPERSON: Okay now we skipped something. Did DM Attorneys carry out these instructions as per the instructions given in that letter? MS NGOYE: 20 Ye s C h a i r t h e y d i d . CHAIRPERSON: They did in accordance with the amounts given there? MS NGOYE: T h a t ’s c o r r e c t C h a i r. CHAIRPERSON: Okay and then what happened? S i y a y a ’s A t t o r n e y s came back ...(intervenes). MS NGOYE: Came back and complained that no, these amounts that Page 137 of 210 16 MARCH 2020 – DAY 224 you are reflecting as settlement amounts are not what we understood to b e t h e o ff e r c o m i n g f r o m P R A S A . CHAIRPERSON: Ye s a n d h a v e w e g o t t h a t l e t t e r h e r e ? A D V VA S S O N I S C : CHAIRPERSON: MS NGOYE: W e d o n ’ t M r C h a i r. Ye s . W e w i l l p r o v i d e t h e l e t t e r C h a i r. CHAIRPERSON: J a , o k a y, i t s h o u l d b e p r o v i d e d . Ye s a n d w h a t happened then? A D V VA S S O N I S C : 10 Sorry Mr Chairperson maybe just – in fact they d o n ’ t s a y i t i s i n t e r m s o f t h e o ff e r b u t i f y o u r e a d w h a t t h e y ’ r e s a y i n g and if you put that in inverted commas. MS NGOYE: The attorneys complained that the tender made did not correspond with ...(intervenes). CHAIRPERSON: MS NGOYE: I’m sorry where are you reading from? P a r a g r a p h 4 3 C h a i r. A D V VA S S O N I S C : CHAIRPERSON: MS NGOYE: MS NGOYE: Paragraph 43? Ye s , o n p a g e 2 9 6 . CHAIRPERSON: 20 Paragraph 43. O k a y. It says after the tender was made: “Siyaya Attorneys complained that the tender made did not correspond with PRASA specific and express specific and instructions.” CHAIRPERSON: And you have quoted instruction, that was in their letter? Page 138 of 210 express 16 MARCH 2020 – DAY 224 MS NGOYE: Ye s . CHAIRPERSON: MS NGOYE: O k a y, w h i c h y o u s a w ? Ye s C h a i r. CHAIRPERSON: Ye s , o k a y. A D V VA S S O N I S C : And what is your comment about that – the fact that they knew what the specific and express instruction was? MS NGOYE: A bit odd Chairperson that the attorneys of the other side would have been advised you know by somebody in PRASA of what the specific instructions were. We found that improper in fact to say how is 10 t h a t t h e y s e e m t o k n o w, o u r l a w y e r s i n a n y e v e n t h a d w r i t t e n w h a t t h e y t h o u g h t t h e y u n d e r s t o o d t o b e t h e c a s e b u t i n t h i s r e g a r d S i y a y a ’s Attorneys come back and say no those are not the express instructions, so in our mind it was very clear that they were communicating you know w i t h t h e C h a i r p e r s o n a r o u n d t h e s e m a t t e r s a n d t h a t ’s w h y . . . ( i n d i s t i n c t ) i t i s n o t w h a t w a s o ff e r e d . A D V VA S S O N I S C : Alright, as a consequence then forgetting all of these concerns that you raise and I am not saying they are not important, but just to take the process forward, what happened next insofar as having the matter settled at the arbitration proceedings? 20 MS NGOYE: T h e o ff e r – o u r a t t o r n e y s t h e n r e v i s e d t h e o ff e r s t o a c c o r d w i t h w h a t S i y a y a ’s A t t o r n e y s h a d c o m m u n i c a t e d t o t h e m a n d that is what was then sent to the arbitrators to be made ...(intervenes). CHAIRPERSON: MS NGOYE: We are skipping. O k a y. CHAIRPERSON: O k a y, i t s e e m s n a t u r a l t h a t t h e a t t o r n e y s f o r S i y a y a Page 139 of 210 16 MARCH 2020 – DAY 224 would have been asked by your attorneys where are you getting this from, didn’t they ask this? MS NGOYE: I don’t know Chair one would have expected that but as to whether it happened I can’t. CHAIRPERSON: I would have expected you to ask DM, I know that they had said that you – they were barred from talking to you so maybe t h a t i s t h e r e a s o n w h y. MS NGOYE: J a , w e . . . ( i n d i s t i n c t ) C h a i r. CHAIRPERSON: 10 Ye s , b u t i n t e r n a l l y w i t h i n P R A S A d i d a n y b o d y a s k who knows anything about what these attorneys are talking about, did anybody ask? MS NGOYE: Well we knew that Mr Zede who was close to the process would know what was involved. CHAIRPERSON: MS NGOYE: So you know – and ...(intervenes). CHAIRPERSON: MS NGOYE: 20 But you left it. Now we left it at that. CHAIRPERSON: MS NGOYE: H’mm. In a role. Ja. CHAIRPERSON: Ye s , o k a y a n d y o u h a v e n o w t a l k e d a b o u t P R A S A’s a t t o r n e y s s e n d i n g a r e v i s e d o ff e r a n d – b u t y o u a r e s k i p p i n g , s o m e b o d y w i t h i n P R A S A m u s t h a v e g i v e n t h e m i n s t r u c t i o n s , t h a t a d v i c e t o o ff e r, how did that come about? MS NGOYE: They were speaking to Mr Lindikaya Zede at the time who was the acting ...(intervenes). Page 140 of 210 16 MARCH 2020 – DAY 224 CHAIRPERSON: MS NGOYE: Group CEO. Group CEO, there was a point where Mr Zede became t h e a c t i n g – n o t h e C o m p a n y S e c r e t a r y. H i s o ff i c i a l p o s i t i o n i n t h e o r g a n i s a t i o n w a s C o m p a n y S e c r e t a r y. CHAIRPERSON: MS NGOYE: Ye s . But at this time when these negotiations started he was the Acting ...(intervenes). CHAIRPERSON: MS NGOYE: 10 Acting CEO. T h a t ’s r i g h t a n d t h e n l a t e r o n I t h i n k h e w a s r e m o v e d r o u n d a b o u t D e c e m b e r, b u t h e w a s t h e o n e t h a t h a d e n g a g e d q u i t e extensively in the meetings that the Chairperson had with our attorneys ...(indistinct), so he would have known and he would be the one that we understood that he was the one that then communicated to our a t t o r n e y s t o s a y f i x t h e o ff e r. CHAIRPERSON: Do you know whether he would have been part of whatever meeting the Chairperson had with whoever in this regard to these matters? MS NGOYE: Ye s h e w a s C h a i r. CHAIRPERSON: 20 MS NGOYE: We took issue with him to say you know how we work. CHAIRPERSON: MS NGOYE: He was? Ye s . Why are you not advising accordingly you know so he d i d , h e w a s b a s i c a l l y, e v e n w h e n h e b e c a m e C o m p a n y S e c r e t a r y I suppose from a Board relationship he continued to be part of those meetings. Page 141 of 210 16 MARCH 2020 – DAY 224 CHAIRPERSON: H ’ m m , o k a y, a l r i g h t . S o h e i n s t r u c t e d P R A S A’s a t t o r n e y s t o s e n d a r e v i s e d o ff e r ? MS NGOYE: To r e v i s e t h e o ff e r. CHAIRPERSON: A r e y o u a b l e t o i n d i c a t e h o w t h e r e v i s e d o ff e r l o o k e d like or not really? MS NGOYE: W e l l I g u e s s C h a i r p e r s o n t h e r e v i s e d o ff e r w o u l d b e i n accordance with the letter that Advocate Makubela ...(intervenes). CHAIRPERSON: Just on the – what room there was to revise the o ff e r s w h e n t h e a m o u n t s t h a t t h e a t t o r n e y s – P R A S A’s a t t o r n e y s h a d 10 b e e n i n s t r u c t e d t o o ff e r w e r e t h e a m o u n t s c l a i m e d ? MS NGOYE: Ja, I think it was around the interest, when interest will be calculated, you know Chair because you will recall in the letter that the Chairperson writes ...(intervenes). CHAIRPERSON: MS NGOYE: T h a t ’s c o r r e c t C h a i r p e r s o n . CHAIRPERSON: MS NGOYE: It does state from the date of summons. Ye s . S o t h e y w a n t e d i t e a r l i e r t h a n t h a t ? E x a c t l y. CHAIRPERSON: And then the instructions were given to say they must make it earlier than that? 20 MS NGOYE: T h a t ’s i t . CHAIRPERSON: Oh and do you know whether by chance do you know whether in the summonses they claimed interest from a date earlier than the summonses? MS NGOYE: N o C h a i r. CHAIRPERSON: It would have been from the date of the summons? Page 142 of 210 16 MARCH 2020 – DAY 224 MS NGOYE: T h a t ’s c o r r e c t C h a i r. CHAIRPERSON: Ye s , i s t h a t s o m e t h i n g t h a t y o u a r e s u r e a b o u t because you had a look or ...(intervenes). MS NGOYE: Ye s I a m s u r e C h a i r, y e s . CHAIRPERSON: Ye s , s o t o t h e e x t e n t t h a t t h e y m a y h a v e w a n t e d interest to ...(intervenes). MS NGOYE: From the beginning. CHAIRPERSON: To r u n f r o m d a t e s e a r l i e r t h a n t h e d a t e s o f s u m m o n s they were claiming something that they were not entitled to. 10 MS NGOYE: T h a t ’s c o r r e c t C h a i r. CHAIRPERSON: MS NGOYE: Which is something we would have opposed. CHAIRPERSON: MS NGOYE: For litigation. Which you would have opposed. T h a t ’s c o r r e c t C h a i r. CHAIRPERSON: J a , o k a y. A D V VA S S O N I S C : N o w t h e r e v i s e d o ff e r i s m a d e a n d w a s t h a t r e v i s e d o ff e r a c c e p t e d ? MS NGOYE: T h a t ’s c o r r e c t C h a i r, i t w a s a c c e p t e d . A D V VA S S O N I S C : 20 And first you went to that settlement in respect of the arbitration how was that brought to – or purportedly brought to an end? MS NGOYE: Well in terms of – on the 7th of February Advocate Botes and Mr Mogashoa approached ...(intervenes). CHAIRPERSON: MS NGOYE: Don’t step away from the mic. S o r r y, s o r r y. Page 143 of 210 16 MARCH 2020 – DAY 224 CHAIRPERSON: MS NGOYE: Ja, look at me. I f o r g o t f o r a m i n u t e t h e r e C h a i r. The attorneys for Siyaya as well as our attorneys then approached Judge Brandt who was dealing with the arbitration process, requesting ...(intervenes). CHAIRPERSON: MS NGOYE: Ye s . CHAIRPERSON: MS NGOYE: He was the arbitrator? Ja. And to make the terms of the agreement you know to award a settlement agreement. 10 CHAIRPERSON: Was there a written settlement agreement that had been concluded? MS NGOYE: T h a t ’s c o r r e c t C h a i r t h e r e w a s . CHAIRPERSON: Ja, so they – the parties agreed that the settlement agreement should be made an arbitration award by consent? MS NGOYE: T h a t ’s c o r r e c t . CHAIRPERSON: T h a t ’s c o r r e c t C h a i r. O k a y. A D V VA S S O N I S C : Now just for the record Ms Ngoye when we’re talking about Judge Brandt we are talking about the retired Judge of the Supreme court of Appeal? 20 MS NGOYE: T h a t ’s c o r r e c t C h a i r. A D V VA S S O N I S C : MS NGOYE: Sitting with the hat of arbitrator? T h a t ’s c o r r e c t C h a i r. CHAIRPERSON: Wasn’t he the – on the arbitrator or there were two or three arbitrators? MS NGOYE: I n t h e S i y a y a m a t t e r h e w a s t h e a r b i t r a t o r C h a i r. Page 144 of 210 16 MARCH 2020 – DAY 224 CHAIRPERSON: MS NGOYE: Ja. It is in the Siyangena matter where we had two judges. CHAIRPERSON: Ye s , o k a y. A D V VA S S O N I S C : Then what is the next development following the order being made – I mean an award being made in terms of the settlement agreement? MS NGOYE: C h a i r p e r s o n S i y a y a ’s a t t o r n e y s t h e n b r o u g h t a n application to have that award made an order of court, so that you know i t w o u l d b e e a s y t o p a y o n c e i t ’s a c o u r t o r d e r. 10 A D V VA S S O N I S C : MS NGOYE: And when was that? It was in March 2018 Chairperson, we actually didn’t know as the legal function that this was happening, in fact somebody from outside advised us of that fact and we were able to then you know intercept that process of making the order ...(intervenes). CHAIRPERSON: MS NGOYE: Making the settlement an order of court. The settlement an order of court. CHAIRPERSON: Actually it was to make the award an order of court, because it was now an award. MS NGOYE: 20 Ye s i t w a s a n a w a r d n o w C h a i r. CHAIRPERSON: Ja. A D V VA S S O N I S C : Now Ms Ngoye you knew that the award had been made in terms of what Ms Makubela had said ...(indistinct) that now is – an attempt is made to make that into an order of the court, on what basis could you – or what authority would you have to oppose that application to make the award an order of the court? Page 145 of 210 16 MARCH 2020 – DAY 224 MS NGOYE: Chairperson as the Head of the Legal Function and also in terms of the delegations of authority that have been given to me by the Board you know in terms of these type of matters I knew also in terms of the delegations of authority who has authority to do what and in relation to this settlement, which was negotiated by the Chairperson for me it was clear that the Chairperson did not have authority to be negotiating settlements with parties, also to the exclusion of the legal function. In fact the delegations of authority do not provide for that. So – and also knowing very well that there is no ways that PRASA 10 could have settled these matters, because we know our prospects of success was quite high and also taking into consideration the fact that you know our attorneys told us that you are barred from being part of this thing, so you know you put all those issues together and you r e a l i s e t h a t y o u k n o w c l e a r l y t h i s t h i n g w a s n o t d o n e p r o p e r l y, i t w a s outside of the authorities and we could not as a legal function allow it to proceed. So we then you know engaged another set of attorneys to the exclusion of ...(indistinct) to go and defend this matter for us and oppose it. 20 CHAIRPERSON: MS NGOYE: This was 2018. CHAIRPERSON: MS NGOYE: 2018 when? March. CHAIRPERSON: MS NGOYE: Yo u s a i d t h i s w a s a r o u n d w h a t t i m e a n d w h i c h y e a r ? March? March yes, 2018, Page 146 of 210 16 MARCH 2020 – DAY 224 CHAIRPERSON: MS NGOYE: Ye s h e w a s . CHAIRPERSON: MS NGOYE: Was Mr Makubela still the Chairperson? O k a y, b u t y o u d e c i d e d t o i n t e r v e n e n e v e r t h e l e s s ? Ye s I d i d . CHAIRPERSON: Ye s , o k a y, c o n t i n u e . A D V VA S S O N I S C : Chairperson just for you I want to ask Ms Ngoye to look at something on page 298 in that unnumbered paragraph on the s e c o n d l i n e t h e r e ’s a d a t e a n d t h a t d a t e i s t h e 9 t h o f M a y 2 0 1 8 , w h a t i s the correct date? 10 MS NGOYE: No the settlements were made in March Chairperson, this was the date for the hearing of the award being made an order of court. A D V VA S S O N I S C : CHAIRPERSON: MS NGOYE: So ...(intervenes). Well it looks like ...(intervenes). T h e a p p l i c a t i o n w a s s e t d o w n f o r t h e 9 t h o f M a y. CHAIRPERSON: It looks like you may have skipped something important in the preceding paragraph, 45 on page 298. Yo u s a i d y o u i n s t r u c t e d a d i ff e r e n t f i r m o f a t t o r n e y s , y o u d i d n ’ t t e l l m e w h i c h f i r m a n d so on. MS NGOYE: 20 The firm of attorneys we instructed was Bowman Gilfillan Chairperson. CHAIRPERSON: Ye s , c o n t i n u e M r S o n i . A D V VA S S O N I S C : A n d t h e r e a s o n y o u a p p o i n t e d a d i ff e r e n t f i r m o f attorneys was that related to the fact that DM Attorneys had played a role in having the agreement made an award. MS NGOYE: Ye s C h a i r, w e f o u n d t h a t D L M a g a s h a w a s c o n f l i c t e d i n Page 147 of 210 16 MARCH 2020 – DAY 224 this regard. CHAIRPERSON: MS NGOYE: H’mm. And we decided that we are not going to continue with them, because they were party to the process. CHAIRPERSON: MS NGOYE: H’mm. A n d s o w e w e n t w i t h a d i ff e r e n t l a w f i r m a n d w e c h o s e Bowman Gilfillan to oppose the application. A D V VA S S O N I S C : But you say – because this date is going to be important Ms Ngoye, I am going to ask you now to look at paragraph 46 10 and you say there at the hearing on the 9th of March but you then say earlier in the second line on that page it was set down for the 9th of M a y. S u r e l y b o t h d a t e s c a n ’ t b e r i g h t . MS NGOYE: N o t h a t ’s c o r r e c t C h a i r t h e r e m u s t b e a t y p o , I t h i n k i t ’s ...(intervenes). A D V VA S S O N I S C : MS NGOYE: So what is the correct date? It is – let me just go back, the matter was set down in M a y s o i t w o u l d b e t h e 9 t h o f M a y. A D V VA S S O N I S C : MS NGOYE: 20 No it was set down for March. Let me just remember Chairperson. In Ma rch 20 we b e c a m e a w a r e t h a t Si y a y a h a d b r o u g h t a n a p p l i c a t i o n , s o t h a t i s w h e n w e became aware CHAIRPERSON : M I S S NGOYE : CHAIRPERSON : M I S S NGOYE : I n Mar c h? I n Marc h 2 01 8 Yes Right, Page 148 of 210 16 MARCH 2020 – DAY 224 CHAIRPERSON : Ja you do say in paragraph 45 it was set down for 9th May? M I S S NGOYE : CHAIRPERSON : M I S S NGOYE : CHAIRPERSON : Yes , it was set down for 9 t h M a y. Second senten c e, seco nd se nt e nce o n p age 29 8? Th at i s corre ct Chair Yes , but there is s omething that is important that I want y o u t o d e a l w i t h a b o u t t h e p o w e r o f a t t o r n e y a n d S i y a ya ’s a t t e n d a n c e c h a l l e n g i n g B o w m a n ’s , B o w m a n d i ff e r e n c e a u t h ori ty, te ll me a bo u t t ha t? M I S S NGOYE : 10 CHAIRPERS O N: Chairperson. After you had instructed Bowman’s Gilfillan then what happened? M I S S NGOYE : We were advised if fact by th e a t t o r n e y s o n t h e o t h e r s i d e t h a t t h e C h a i r p e r s o n h a d w r i t t e n t o t h e m a d v i s in g t h e m t h a t w e d i d n o t h a v e a u t h o r i t y t o a p p o i n t l a w y e r s a n d t h e re f o r e B o w m a n G i l f i l l a n w a s not authorised, you know to act on behalf of PRASA . In terms of the d e l e g a t i o n s o f a u t h o r i t y C h a i r p e r s o n , t he a u t h o r i t y t o a p p o i n t a t t o r n e y s i s g i v e n t o t h e Head o f t he L e g a l F u n c t i o n which is myself. And so when a Rule 7 Notice w as issu ed re q ue stin g au tho rity I t hen p repar ed t he P ow er o f Atto rney to Bowma n yo u k n o w i n f l i c t i n g t h a t 20 t hey we re a ut hori s ed t o a ct a n d t h e y a l s o a t t a c h e d t h e d e l e g a t i o n s o f a u th o r i t y t o s h o w t h a t y o u k n o w I w a s a b l e t o d o t h a t . But you k n o w, t h e C h a i r p e r s o n h a d a d v i s e d t h e o p p o s i t i o n t h a t we did not have authority to act and we therefore did not have authority t o appo int B owm an Gi l f i l l a n . CHAIRPERSON : Now you say you g o t o h e a r t h i s f r o m S i y a y a ’s Page 149 of 210 16 MARCH 2020 – DAY 224 attorneys, is that right? M I S S NGOYE : CHAIRPERSON : M I S S NGOYE : CHAIRPERSON : No, the issue of y e s i n t e r m s o f …(intervenes). Th e c h alle ng e. Th at i s it …(intervenes). Th e c h a l le n g e t o B o w m an G i l f i l l a n ’s a u t h o r i t y a n d y o u r authority to appoint them. M I S S NG O Y E: CHAIRPERSON : Th at i s corre ct C h air. Now was that in a letter that Siyaya’s attorneys sent to Bowman? 10 M I S S NGOYE : CHAIRPERSON : M I S S NGOYE : CHAIRPERSON : M I S S NGOY E: I t w as an in a te le ph o n e me ssa ge . A m e s s a g e s e n t to y o u ? Ja. Th ey s e nt to yo u? Yes , we s aw the mes s age their attorney s in fac t s ent us a n e x c e r p t o f t h a t c o m mu n i c a t i o n t h a t t h e y h a d w i t h t h e …(intervenes). CHAIRPERSON : M I SS NGOYE : J a t hat is n ow th e at torn e y f rom Bowman ’s. Th e at t orne ys f rom Bo w ma n’s we re give n t h is e xce rp t b y t he at t orne y s S iy ay a s o t he y se n t it t o u s. CHAIRPERSON : 20 Yes , y es and what did the tex t mes s age ac tually s ay j u s t r e p e a t t h a t . D i d i t s a y t h a t B o w m a n ’s h a d n o a u t h o r i t y to r e p r e s e nt PRASA? M I S S NGOYE : Yes , s omething to that affec t Chair. I c annot p a r a p h r a s e i t p r o p e r l y – e ff e c t i v e l y i t s a i d …(intervenes). CHAIRPERSON : Yes , but effec tiv ely that – j a . No that is fine and what d i d y o u d o a f t e r l e a r n i n g a b o u t t h i s c h a l l en g e ? Page 150 of 210 16 MARCH 2020 – DAY 224 M I SS NGOYE : No we said to Bowman’s they must continue, they must c o n t i n u e to g o t o c o u r t b e c a u s e w e d i d n o t a g r e e w i t h w h a t t h e Chairperson h a d i n f o r m e d t h e m a n d w e t h o u g h t b a s e d o n y o u k n o w t h e documentations that we had given in support of the authority and the p o w e r t o a c t t h a t i t w o u l d b e s u ff i c i e n t o t h e c o u r t to sh ow tha t n o w e d o h a v e t h e n e c e s s a r y a u t h o r i t y. CHAIRPERSON : And did you report this to anybody else and what did or t hi s whol e i s s ue ? M I S S NGOYE : 10 CHAIRPER SON : M I S S NGOYE : Yes , we did Chairperson . Who did y o u r e p o r t t o ? I n fa ct w he n a ll th is was h app e nin g we wrote to the Board M r Dingiswayo wrote to the Board to say we are – a r e y o u a w a r e o f t h i s a n d h a s t h e B o a r d a u t h o r i s e d t h e Chairperson to b e co nd uct ing and c o n c l u d i n g s e t t l em e n t a g re e m e n t s bu t w e g o t n o r e s p o n s e f r o m t h e B o a r d y o u k n o w a n d w h a t w e a l s o d i d …(intervenes). CHAIRPERSON : Before that when you say you wrote to the Board did y o u w r i t e t o e v e r y M e m b e r o f th e Board ? M I S S NGOYE : CHAIRPERS O N: 20 M I S S NGOYE : CHAIRPERSON : Every M e m b e r o f th e Boa rd . And not a si n g l e o n e r e s p o n d e d ? Not a single one responded Chair. Not a single one of them called you in response to th a t letter? M I S S NGOYE : CHAIRPERSON : M I S S NGOYE : Not a single one Chairperson . Th ey s a id no th ing . Th ey s a i d n o t h i n g . Page 151 of 210 16 MARCH 2020 – DAY 224 M I S S NGOYE : CHAIRPERSON : Ja. O k a y a n d w h o e l s e i f t h e r e i s a ny b o d y e l s e y o u d i d y o u report this to? M I S S NGOYE : At the same time Chairperson , so w he n o n e le tte r w as g o i n g t o t h e B o a r d , I w r o t e a l e t t e r t o t h e M i n i s t e r a s w e l l …(in t e r v e n e s ) . CHAIRPERS O N: M I S S NGOYE : CHAIRPERSON : M I S S NGOYE : 10 CHAIRPERSON : M I S S NGOYE : And who was the Minister at the time? M r B l a d e Nzimande . Yes . At the time he was. He was Minister of Transport. Th at i s i t , h e h ad just come int o office . So, I wrote to the Minister explaining to the Minster that we are sadden with this issue and n e e d i n t e r v e n t i o n . We a l s o w r o t e t o t h e P o r t f o l i o C o m mi t t e e o f Tr a n s p o r t t o s ay loo k he l p u s , w e go t th e sit uat ion wit hin PRASA a nd we d o no t k n o w w h e r e t o g o . S o th o s e l e t t e r s w e r e s e n t t o t h e v a r i o u s p e o p l e t h a t we thought we could escalate the mat te r t o. CHAIRPERSON : Do you find any joy with both parties namely the M i n i s t e r a n d t h e P o r t f o l i o C o m mi t t e e . M I S S NGOYE : 20 Well, the Minister came back to us Chairperson . In fa c t t he M ini s t er rea lly c a me fo rw a rd and ca lled a me e tin g t ha t pe rh a ps I ma y s a y Chairperson when we were in c o u r t t h e c o u r t – th e Jud g e yo u know upheld the fact we did not have authority to act so granted default judgment against us. S o w e w e r e a ll s a y i n g t o t h e M i n is t e r s g i v e u s a u t h o r i t y t o a p p l y f o r r e s c i s s i o n o f t h i s m a t t e r b e ca u s e t h e – wa s s t i l l t here an d s he w as n ot ac t ually inte reste d in u s ap plying f or re scissio n, so Page 152 of 210 16 MARCH 2020 – DAY 224 we needed some form of authority. So when we raised that Mr M i n i s t e r Bl a d e M a i m a n e h e c a l l e d a m e e t i n g i m me d i a t e l y a f t e r h e h a d r e c e i v e d t h e l e t t e r t o e n g a g e b o t h p a r t i e s a n d w e h a d …(intervenes). CHAIRPERSON : M I S S NGOYE : Both parties being? Being the Chairperson o f t h e B o a r d , i n f a c t i t was the Chairperson o f t he B oard a n d t h e l e g a l f u n c t i o n o f P R A S A t o g e t h e r w i t h t he act in g C E O a t t h e t i m e M r P o m e t M o l e p o a n d t h e c o m p a n y s e c r e t a r y was there as well, so the Minister wanted us to you know obviously speak 10 t o h im a bout th i s matt er and ad v i s e w h a t h a d t r a n s p ired cause clearl y y o u had conflicting you know views from the same entity around a matter that required PRASA to pay monies to a supplier. CHAIRPERSON : Well you may as well for the completeness tell us the m e e t i n g t o o k p l a c e …(intervenes). M I S S NGOYE : We l l t h e m e e t i n g to o k pla ce Chairperson i t w a s v e r y c l e a r i n t h e m ee t i n g t h a t t h e Chairperson was offended. …(intervenes). CHAIRPERSON : M I S S NGOYE : O ff e n d e d b y w h a t ? By the Minister having asked her to come to a meeting with m a n a g e r s o f P R A S A w i t h o u t t h e M i n i s t e r h a v in g e n g a g e d w i t h h e r 20 f i r st b ec aus e t ha t w as the first e n c o u n t e r t h a t t h e Chairperson h a d a n d i n t hat m eet i ng Chairperson th e Min ste r a fte r the n hea ring b oth sides yo u k n o w f r o m t h e Chairperson a n d f r o m m y s e l f y o u k n o w t h e Chairperson fe l t t hat s h e d i d n o t wa n t t o g o i n t o t h e m e r i t o f t h e m a t t e r. S h e was not t here f or th at an d s he di d no t w an t me t o go int o th e me rit o f th e ma t te r as well as she would rather have reports drafted so the Minister then Page 153 of 210 16 MARCH 2020 – DAY 224 requ e s t e d . CHAIRPERSON : M I S S NG O Y E: CHAIRPERSON : M I S S NGOYE : CHAIRPERSON : M I S S NGOYE : She woul d r a t h e r h a v e w h a t ? Reports. A report e r ? A report drafted to the Minister. O h o k a y. Yes , s o the Minis ter then s aid ok ay I will then need a report that com e s f r o m P R A S A o n t h i s a n d I s ai d t o t h e M i n i s t e r y o u k no w with the greatest respect I do not thi n k I c a n d o a r e p o r t w i t h t h e 10 Chairperson , I rat he r s u g gest th at the Chairperson d o e s h e r o w n r e p o r t and we as the legal function do our own report and the main issue for us i s f o r y o u a l s o t o gi v e us a uth o rity to a p p l y f o r r e s c i s s i o n o f t h e m a t t e r and you know we left the meeting on the basis each party given a specific date would then go then and prepare the report. So, we as the legal function myself a n d Dingiswayo p u t a r e p o r t t oge t her f or th e M i ns t er an d we su b m i t t e d t h e r e p o r t t h e Chairperson d i d not produce the report at all. In fact and we then got a letter from the M i n i s t e r a n i n s t r u c t i o n f r o m t h e M i n i s t e r t o s a y d e f e n d P R A S A’s i n t e r e s t a c c o r d i n g ly i n t h i s a n d t h a t i s w h e n w e rushed to interdict the Sheriff fro m 20 p a y i n g t h e m o n i e s t h a t t h e S h e r i ff h a d a l r e a d y a t t a c h e d s o e ff e c t i v e l y i m m e d i a t e l y a f t e r t h e s u m m a r y j u d g m e n t w a s g i v e n t h e S h e r r i ff w e n t a n d a t t a c h e d o u r b a n k a c c o u n t a n d w o u l d o n l y r e l e a se t h e m o n i e s w i t h i n 3 0 d a y s o f t h a t . S o , w e w e r e h o p i n g w e wo u l d r e c e i v e i n s t r u c t i o n f r o m th e Minister and we did and so we were able to then challenge the release of t he m o n i e s b y t h e S h e r r i ff a n d w e w e r e s u c c e s s f u l i n t h a t r e s p e c t . Page 154 of 210 16 MARCH 2020 – DAY 224 CHAIRPERSON : I am s orry Mr So n i. ADV VAS SONI SC : CHAIRPERSON : I n e e d e d t o j u s t h e a r t h e wh o l e p a r t . ADV VAS SONI SC : CHAIRPERSON : No, n o , n o . Absolutely Chair. Okay you may continue. ADV VAS SONI SC : I j ust w an t to place so th a t wh en you loo k at t h e d o c u m e nt Chairperson d i s p l a y e d o n r e c o r d i f y o u l o o k a t p a g e 2 9 8 t h a t i s t h e u n n u m b e r e d p a r a g r a p h o f y o u r a ff i d a v i t y o u w i l l s e e t h e r e t h a t t h e r e i s a r e f e r e n c e t o a n n e x u r e N M8 Is th at you r le tte r to th e Ministe r in wh ic h 10 you ask for the meeting and ask him to intervene. M I S S NGOYE : Th at i s corre ct Chairperson . ADV VAS SONI SC : M I S S NGOYE : And you have al ready indicated he did intervene. Th at i s corre ct Chairperson . ADV VAS SONI SC: I n y o ur le tte r yo u t h en say to him and yo ur let t er i s d a t e d t h e 1 6 t h o f M a r c h a n d y o u s a y to h i m t h a t t h e a p p l i c a t i o n b r o u g h t b y S i y a y a w a s g ranted and the a rbitration award was made in order of c o u r t? M I S S NGOYE : So, you are referring to the date of March Chairperson I may be getting my dates mixed up Chair I must concede. 20 CHAIRPERSON : Well i f t h e l e t t e r i s h e r e l e t u s g o t o i t . ADV VAS S O NI SC : CHAIRPERSON : What page is it? ADV VAS SONI SC : CHAIRPERSON : Yes . Page 263 Chairperson. 263? ADV VAS SONI SC : Sorry page 364. Page 155 of 210 16 MARCH 2020 – DAY 224 CHAIRPERSON : 364? ADV VAS SONI SC : CHAIRPERSON : M I S S NGOYE : CHAIRPERSON : At 3 6 3 s o r r y C h ai r. Yes . Yes . I s ee the l e t t e r i s w r i t t e n b y t w o p e o p l e y o u r s e l f a n d M r Dingiswayo . M I S S NGOYE : CHAIRPERSON : Th at i s corre ct C h air. And it is addressed to the Minister of Transport, M r Bongisi Nzimande . Yes. 10 M I S S NGOYE : CHAIRPERSON : I t i s M ar ch. Continue. ADV VAS SONI SC : I n esse nce wh at d id you sa y to th e Min iste r in thi s letter? M I S S NGOYE : We basically complained to the Minister of Transport you k n o w s t a t i n g t h e f a c t t h a t t h e Chairperso n o f t h e B o a r d y o u k n o w e x c e e d e d h e r a u t h o r i t y e ff e c t i v e l y i n s e t t l in g t h e s e m a t t e r s a n d t h a t t h e rescission we would request the Minster to approve that we apply for the rescission for the judgment that was taken against us. ADV VAS SONI SC : 20 I j u st wa nt yo u t o l o o k a t p a r a g r a p h t w o . Sorry M I S S NGOYE . J us t read th a t i n to t h e r e c o r d p l e a s e . M I S S NGOYE : “The Chairperson o f t h e i n t e r i m B o a r d i s c o r r e c t t o s ay t hat th e matt er in qu e stio n is by all a cco un ts a s m a l l m a t t e r i n t h e c o n t e x t o f P R A S A. ” ADV VAS SONI SC: Now we dealt with the amounts and we know whatever it is . I t i s i n t he re gio n of 5 0 to 6 0 m i l l i o n Rand . Page 156 of 210 16 MARCH 2020 – DAY 224 M I S S NGOYE : Yes . ADV VAS SONI SC : M I S S NGOYE : And would you regard it as a small matter? Well in the bigger scheme of things Ch a i rp e r s o n I me an I g u e s s 5 6 m i l l i o n Rands when we deal with bi l l i o n s a t P RASA is a very small amount you know and I think what concerned one was one …(intervenes). CHAIRPERSON : M I S S NGOYE : Th at i s a lo t o f mo ne y to the ta xpaye r. I t i s a lo t o f m o n e y to th e t axp aye r Chairperson i n t e r m s o f y o u k n o w d e a l i n g w i t h m a tte rs th a t w o u l d c o n c e r n t h e Chairperson y o u 10 know obviously from a focus perspective this is what one was referring to b e c a u s e i f y o u l o o k a t t h e d e l e g a t i o n o f t h e G r o u p CEO at th e time . H is d e l e g a t i o n w a s o n e 1 0 0 m i l l i o n s o 5 8 m i l l i o n r e al l y w o u l d n o t b e something th a t the Board would really saddle themselves with …(intervenes). CHAIRPERSON : M I S S NGOYE : We would need to go to the Board. Th at i s i t , th at is it. Th at i s t h e c o n t e x t w i t h i n w h i c h w e s o r t t h a t , i n d e e d y o u k n o w i t i s a s m a l l a m o u n t o f m o n e y w h e r e t h i ng s a r e concerned within PRASA and therefore we did not understand why she h a d p l a c e d s o m u c h e m p h a s i s a n d i m p o r t a n c e o f t h e m a t t e r. 20 ADV VAS SONI SC : But i s n o t t h a t r e a l l y t h e i s s u e t h a t o n t h e o n e h a n d s h e s a y s i t i s a s m a l l a m o u n t a n d t h a t i s w h a t i s re fle cte d in t he le tte r bu t on the other hand she spent so much of time getting information from p e o p l e , g i v i n g t h e s e i n s t r u c t i o n s , r e v i s i n g t h e i n s t r u ctio n a n d w h y w o u l d a Chairperson o f a B o a r d d o t h a t ? M I S S NGOYE : Well Chai r I mean it was a question th a t w e ha d a s w el l Page 157 of 210 16 MARCH 2020 – DAY 224 and it was suspicious at the end of the day to say how is it that so much t i me by t he Chairperson o f t h e B o a r d a n d i t i s t h e p ort o f call re ally wh er e t he Chairperson was concerned to then deal with this m a t t e r a n d t o t h e n d e a l w i t h i t i n t he man ner th at she h a d de alt wit h it you kn ow f o r h er sel f t o c onc ede th at i t was a small a mo unt w e a g re ed . Yo u t h e n d o n o t c o n c e r n y o u r s e l v e s with m a t t e r s o f t h i s n a t u r e a n d i n a n y e v e n t a s a …(intervenes). CHAIRPER SON : You do not hav e authority to s e tt le ag re eme nt s o n b e h a l f P R A S A a n d t h a t c o m e s f r o m t h e d e l e g a t i o n o f a u t h o r i t y. T h a t i s 10 prepared by the Board itself. CHAIRPERSON : Did yo u e v e r get to know and maybe Mr Soni wants to – g o i n g t o a s k y o u a b o u t t h i s wh e t h e r t h e B o a r d h a s a u t h o r i s e d t h a t t h e s e c l a i m s b e “ s e t t l e d” a n d i n t h e m a n n e r s h e h a d s a i d t h e a t t o r n e y s f o r PRASA should be instructed to settled that. M I S S NGOYE : No Chair, we a c t u a l l y i n q u i r e d a n d a s I s a i d t h e r e w a s n o response from the Board and o n e o f t h e B o a r d M e m b e r s M r X h o l i l e George we engaged with him because he was a long standing Member of t he Boa rd a nd we w en t t o him, w e sa id b ut wh at is h ap p en ing , h ave yo u a s t he B o ard given authority to the Chairperson to d e al w ith t his ma tte r 20 a n d h e s a i d n o . S o , w e k n o w Chairperson th at t h i s w a s s o m e t h i n g t h a t t he was runn ing h ers e lf . CHAIRPERSON : And as you sit there you know that definitely there were no such resolutions. M I S S NGOYE : Th ere was no n e, Chairperson . ADV VAS SONI SC : And it was n o t e v e n m e n t i o n e d a c c o r d i n g t o t h e Page 158 of 210 16 MARCH 2020 – DAY 224 p e rson you spoke to i t w a s n o t e v e n m e n t i o n e d a t t h e B o a r d m e e t i n g . M I S S NGOYE : No, Chair. No a n d th e n t he lett e r t h at the Chairperson wri t e s , w a s t o b r i e f t h e B o a r d , b u t a s t o w h e t h e r, y o u k n o w, i t h a p p e n e d i s a n o t h e r q u e s t i o n , b u t w h a t w e k n e w, b e c a us e t h a t w a s o n e o f t h e issues that we had requested from Mr Zede as the company secretary at t hat t im e t o s a y, g i v e u s t h e r e s o l u t i o n o f t he Bo a r d t h a t a u t h o r i z e s t h e Chairperson t o en te r in to t he se ttle me nt a gre e me n t h a v i n g r e g a r d t o t h e d e l e g a t i o n s o f a ut h o r i t y. CHAIRPERSON : 10 M I S S NGOYE : CHAIRPERSON : What had Mr Zede ’s re spo nse b ee n to it? He said there was not any. Did you ever – y o u s a i d e a r l i e r o n t h a t M r Z e d e was c l o s e t o t h e Chairperson , is t ha t righ t? M I S S NGOYE : CHAIRPERSON : Th at i s corre ct, C h air. And I think you have suggested that he also would have b e e n w i t h t h e Chairperson i n w h a t e v e r m e e t i n g s t h e Chairperson m a y have had with various parties relating to this case. M I S S NGOYE : CHAIRPERSON : Th at i s c o r r e c t , C h a i r. Did you ever a s k h i m , wh y a r e y o u g e t t i n g i n v o l v e d i n t hes e m at te rs i n this way wh en you kno w it is no t righ t ? 20 M I S S NGOYE : CHAIRP ERSO N: M I S S NGOYE : We did, Chair. And what was his response? We asked him a n d h i s r e s p o n s e r e a l l y w a s a l o n g t h e l i n e s t hat y ou k n o w t he Chairperson wants to deal with these matters in this way. We really took serious issue with Mr Zede , Chairperson . H e w as a colleague. Page 159 of 210 16 MARCH 2020 – DAY 224 CHAIRPERSON : M I S S NGOYE : Yes . We had worked with him an d w e h a d a p a r t i c u l a r w a y o f working a n d we told h i m , w e sa id to h im, i t is in te re sting tha t yo u spe n d s o m u c h t i m e w i t h t h e Chairperson a n d y o u a r e b u s y i n s t r u c t i n g l a w y e r s o n t h e i n s t r u c t i o n s o f t h e Chairperson . You a re n ot eve n co ming to u s . We are i n t h e s a m e c o r r i d o r w i t h y o u . Why are you not spe a k i n g t o u s ? So we took issue with Mr Ze de o n t h i s t h i n g a n d w e s a i d t o h i m , we a r e n o t h a p p y a n d w e a r e n o t i n g w h a t i s h a p p e ni n g within the organization as f ar as t hes e is su es c onc ern e d. M r Z e d e was b e f o r e m e a l e g a l a d v i s o r f o r 10 PRASA before he came, beca m e th e comp an y’s secre tary so h e is a l a w y e r. H e u n d e r s t a n d s t h e i s s u e s a s w e l l a n d w e r e a l l y d i d t e l l h i m t h a t we are not h a pp y w i t h h o w h e a s w e l l w a s c o n d u c t i n g h i m s e l f w h e r e t h e Chairperson was c o n c e r n e d . CHAIRPERSON : As you sit there are you quit e cl e a r i n y o u r o w n m i n d t hat Mr Ze de k n e w t h a t w h a t w a s h a p p e n i n g w a s w r o n g ? M I S S NGOYE : I am s ure. CHAIRPERSON : M I S S NGOYE : An d h e c o n t i n u e d t o p a r t i c i p a t e ? Yes , Chair. Sure. Sure, h e k n e w. CHAIRPERSON : 20 O k a y. ADV VAS SONI SC : As you a l ready please, Chairperson , ma y I ju st a s k t he i s sue of – s orry the matter comes in c o u r t. Wh a t h ap p en s in c o u r t i n rela t i o n t o t h e p o i n t t a k e n a b o u t P R A S A’s l a c k o f a u t h o r i t y ? M I S S NGOYE : application Well t he – wh e n w e w e n t t o c o u r t to o p po se the th a t t hey ha d mad e, the jud ge ob viously, yo u kno w, recognized that the instruction coming from the Chairperson o f t h e B o a r d Page 160 of 210 16 MARCH 2020 – DAY 224 we i g h s m o r e t h a n j u s t w h a t t h e P o w e r o f A t t o r n e y w a s s a y i n g a n d t heref or e , you k now, he de cided the ma tt er in favo u r o f Siya ya a nd a ga i n s t P R A S A a n d w e w e r e o b v i o u s l y, y o u k n o w, s a d d l e d w i t h h a v i n g t o n o w a p p l y f o r t h e r e s c i s s i o n a n d t a k i n g t h e m a t t e r f o r wa rd, Chairperson . ADV VAS SONI SC: But Miss Ngoye is there not a pr o b l e m w i t h t h e w a y t he m at t er w as de alt w it h w hich eve r fa ult i t i s i t d o e s n o t m a t t e r. On y o u r v e r s i o n a n d I a m no t sayin g it is wro ng, t he Chairperson h a d n o authority to conclude the agreement or to agree to the agreement. M I S S NGOYE : 10 Th at i s cor rect, Chair. ADV VAS SONI SC : Secondly, the Chairperson h a d n o a uth o rit y to contract lawyers on behalf of PRASA. That was your function, that is in t er ms of t he del ega ti on. M I S S NG O Y E: Th at i s corre ct, C h air. ADV VAS SONI SC : M I S S NGOYE : Wa s t h a t p o i n t ed o u t t o t h e j u d g e ? Well, I guess Chair o u r a t t o r n e ys , y o u k n o w, f o u n d t hem s elv es in t he b ac k foot . Re me mb er we cam e t o h e a r a b ou t th i s m a t t e r j u s t b e f o r e i t w a s g o in g t o c o u r t s o w e n e e d e d t o a c t s p e e d i l y a n d brief the lawyer speedily so we did not have enough time, I guess, to talk t o our at t orney s properly a r o u n d t h e i s s u e s o f a u t h o r i t y a n d s o o n 20 b e c a u s e n a t u r a l l y w i t h t h e R u l e 7 Notice , you kn ow, on ce the Power o f Attorney has been granted it suffices a n d t h a t i s w h a t w e t h o u g h t wo u l d help us deal with the matter as far as authority was concerned, but that n o t e c o m i n g f r o m t h e Chairperson weighed against PRASA and I guess t he ju dge lo ok ed at i t on the b a s i s th a t she is t he Chairperson o f P R A S A a n d t h e r e f o r e i t m u s t b e t h a t th ese pe op le d o no t ha ve a u th o rity. Page 161 of 210 16 MARCH 2020 – DAY 224 ADV VAS SONI SC : M I S S NGOYE : I t i s an a ctin g jud ge , t h o u gh . Th at i s corre ct, C h air. ADV VAS SONI SC : Th e a rbit ratio n a wa rd is the n mad e a n o r de r o f c o u r t. M I S S NGOYE : Th at i s corre ct, C h air. ADV VAS SONI SC : Where – wh a t h a p p e n e d h e r e f r o m S i y a y a ’s p o i n t o f v i e w o n c e i t h a d g o t a n o r d er o f c o u r t. M I S S NGOYE : Chairperson , th e sh e riff w as th en instru cted by Siya ya i n f ac t , i m m e d i a t e ly t o g o a n d a t t a c h o n e o f t h e b a n k a c c o u n t s o f P R A S A . I f 10 I re c a l l I t h i n k i t w a s a n ABSA bank account that was attached a n d o b v i o u s l y w i t h a c o u r t o r d e r, y ou k n o w, t h e s h e r i ff c o u l d d o s o . ADV VAS SONI SC: Now, in the meantime, all of thi s i s h a p p e n i ng , y o u are acting in the best interests of PRASA given the delegations and so o n . T h e Chairperson h a s o b v i o u s l y c o m m u n i c a t e d t o t h e o t h e r s i d e e v e n t hat y o u d o n o t h a v e o r p u r p o r t e d l y d o n o t h a v e a u t h o r i t y. Wa s t h e r e a n y c o m mu n i c a t i o n b e t w ee n y o u a n d t he Chairperson i n r e l a t i o n t o h o w t h i s matter on the 9th of March is dealt with in court? M I S S NGOYE : No, Chair, there was not. In fact, I think the re l a ti o n s h i p was strained at that time. In fact, what I then understood from the group 20 CEO a t t h e t i m e was that we as the legal function were not authorized to g o a n d d e f e n d t h a t m a t t e r. In fact, that was the instruction that I received from the group CEO a n d I wa s ve ry clea r, yo u kno w, I said to t he g r o u p C E O , l o o k , M r C r o m e t M o l e p o a t th e t ime at Exco , I sa id, I d o no t t ak e on unl aw f ul i n s truc t i on s. No t fro m a nyb od y a nd I am go ing to de fen d t hi s m oney of P RA S A be cau se we d o no t owe Siyaya th is amo un t o f Page 162 of 210 16 MARCH 2020 – DAY 224 m o n e y ’ a n d i t w a s d u r i n g t h a t d a y t h a t , Chairperson th a t a ll th e s e c o m mu n i c a t i o n s were happeni n g b e t w e e n t h e Chairperson a n d t h e o t h e r s i d e a n d I r a i s e d t hat wi t h M e m b e r s o f E x c o. I ev e n s aid to th e exe cu tive s t ha t w ere resp o nsib le fo r the c o n t r a c t o n w hi c h Siyaya had sued us to say, a re you aware that this is h a p p e n i n g , a r e yo u a w a r e t h a t th e con tra cts a re no w b ein g se ttle d? So t hey t he ms el v es d i d n o t k n o w t h a t t h e r e w a s a s e t t l e m e n t p r o c e s s t h a t was happening. So, t he re lat io nsh ip b et we en me a nd t he ju d g e was s t r a i n e d , I m e a n a n d t he Chairperson , w as st rain ed at th e t i m e a n d i n 10 f ac t , what th e Chairperson h a d t h e n s a i d i s t h a t I s h o u ld b e d i s c i p l i n e d . CHAIRPERSON : M I S S NGOYE : CHAIRPERSON : M I SS NGOYE : You s hould be dis c iplined? Th at i s corre ct. Fo r w ha t? Fo r ha v ing a cte d w ith out h er co n sen t in t erms of b r i e f i n g t he a t t o r n e y s a n d a l s o t h e f a c t t h a t I k n e w t h a t s h e w a s s a d d le d w i t h d e a l i n g w i t h t h i s m a t t e r. CHAIRPERSON : But your a n d what – s h e d i d n o t s a y t h i s t o y o u , s h e said it to somebody else and you heard from somebody else? M I S S NGOYE : 20 CHAIRPERSON : M I S S NGOYE : Th is was to th e g rou p CEO wh o t he n advise d me . Yes . Yes , that the Chairperson wants me to, y o u k n o w, . .. (i nt erv ene s ). CHAIRPERSON : M I S S NGOYE : CHAIRPERSON : To b e d i s c i p l i n e d . Ye s , C h a i r. Yes . What was y our rea c t i o n t o th is n ew s? Page 163 of 210 16 MARCH 2020 – DAY 224 M I S S NGOYE : I wa s f in e, C h air. I said, f i n e a n d t h e n w e w i l l h a v e t o deal with the disciplinary action as and when it comes. I even said to h i m , l o o k , i t i s n o t t h e f i r s t t i m e t h a t I w ou ld b e discip lined fo r d oing t he right thin g w i t h i n PRASA. CHAIRPERSON : So, you ha d fro m w ha t yo u h a d to ld me y o u h a d b e e n subjected to dismissals and suspensions or a dismissal and a suspension d u r i n g M r M o n t a n a ’s t i m e t h a t was coming from the g ro u p C E O . N o w y o u – t he re was a threat o f t his rea ction eman at ing from t he Chairperson o f t he Bo ard. 10 M I S S NGOYE : CHAIRPERSON : M I S S NGOYE : CHAIRPERSON : Th at i s corre ct, C h air. Yes . Agains t y ou. Yes , Chair. So a n d o n b o t h o c c a s i o n s y o u , w e l l c e rta inly in re gar d t o th e fi rs t o n e , y o u u l t i m a t e l y, n o t h i n g w a s s h o w n t o h a v e j u s t i f i e d t h e suspension and dismissal as far as you are concerned. M I S S NGOYE : CHAIRPERSON : Yes , Chair. And in regard to this new threat as far as you were c o n c e r n e d yo u were just doing your job. M I SS NGOYE : 20 CHAIRPERSON : I was jus t do ing my job , C ha ir. You were ac tin g on t he b asis o f a d ele g at e d au tho rity t hat had bee n is su ed by the Board a n d i t h a d n o t b e e n r e v o k e d . M I S S NGOYE : CHAI RPERSON: M I S S NGOYE : CHAIRPERSON : Th at i s corre ct, C h air. Yes . All we we re doing was protecting PRASA. And you were pr o t e c t i n g . Page 164 of 210 16 MARCH 2020 – DAY 224 M I S S NGOYE : Th e i nt erests of PRASA. CHAIRPERSON : PRASA’s interests. That is what I was going to say. And your point was either all o r s o m e o f t h e s e t h i n g s f r o m S i y a ya t h a t t he CHAIRPERSON h a d s a i d s h o u l d b e p a i d a n d w e r e n o t o w n e d a t a l l. M I S S NGOYE : Th at i s corre ct. CHAIRPERSON : And t ha t w as you r p ositio n . ADV VAS SONI SC : Of course, you were saying we cannot settle this m a t te r g i v e n w h a t w e k n o w a b o u t t h e m a tt er a nd w ha t o u r la wyers hav e t ol d u s. 10 M I S S NGOYE : Th at i s c o r r e c t , C h a i r. ADV VAS SONI SC : Now the sheriff then attaches 5 9 m i l l i o n R a n d o f PRASA’s money, which the Chairperson d i d n o t t h i n k w a s a l a r g e s u m o f m o n e y a n d I am j u s t s a y i n g i t b e c a u s e I a m s t i l l s u r p r i s e d t h a t 5 9 m i l l i o n Ran d i n a n O r g a n o f State i s n o t r e g a r d e d a s a l a r g e s u m o f m o n e y a n d I wonder what the auditor general’s view of that statement would be, but t hat i s a di ff ere nt p oi nt . Wha t hap p e n ed n ex t i n t h e p r ote ctio n of PRASA’s interests? M I S S NGOYE : t he M ini s te r. 20 Chair, so the s h e r i ff a t t a c h e s , r i g h t a n d we then allege T hat was th e time t hat we h ad re q u est e d t h e Min ist e r t o c o m e t o o u r a i d , s o w e w a i t e d , y o u k n o w, f o r t h e M i n i s t e r t o s a y y e s , p l e a s e r e s c i n d t h e m a t t e r f o r P R A S A a n d a l s o a t t h e t i m e th a t w e g o t t h e go ahead from the Minister to defend PRASA and defend the interests of PRASA, we h a d r e a l l y r u n o u t o f t i m e . I t hink it was a b o ut a d a y or tw o be fore t he she riff w a s a u t h o r iz e d t o rel eas e t he mon ie s to t he o th e r side so we h a d t o ru sh a n d Page 165 of 210 16 MARCH 2020 – DAY 224 t o brin g th e ap pl ic a ti on o n an u rgen cy b asis, yo u kno w, t o sa y we w a n t t hi s t o not proc eed . And obviously we knew that we were going to be challenged around issues of urgency because it could be argued that the urgency is b r o u g h t o n b y o u r s e l v e s an d t h e r e f o r e t h e m a t t e r w a s n o t u r g e n t , b u t y o u k n o w, w e w e r e t h e n a b l e t o r e a l l y c o n v i n c e t h e c o u r t b a s e d o n t h e p a p e r s t hat we p ut fo rw ard th at t he re wa s so me t hin g un t owa rd wi t h t h e m a n n er in which t h e s e t t l e m e n t a g r e e m e n t w a s a w a r d e d a n d t h a t w e would want the s h e r i ff t o b e i n t e r d i c t e d f r o m p a y i n g o u t t h e m a t t e r s o t h a t w e c a n d e a l 10 with the rescission of the matter following th a t p ro cess. So their idea was to get back th e mo ne y f o r PRASA and make s u re that it does not go because we knew t h e m i n u t e i t l e a v e s t h e S h e r i ff we would never see it. ADV VAS SONI SC : Th e – y o u e ff e c t i v e l y t o o k t w o s t e p s . T h e f i r s t w a s t o s ec ure an i nt erd i ct res train ing t he she riff f ro m t r a n s f e r r i n g th e mo ney to Siyaya. M I S S NGOYE : Th at i s corre ct, C h a i r. ADV VAS SONI SC : M I S S NGOYE : 20 Th at i s corre ct, C h air. ADV VAS SONI SC : M I S S NG O Y E: Wa s t h e i n t e r d i c t a p p l i c a t i o n g r a n t e d ? Th e i nt erdi c t a p p l i c a t i o n wa s g r a nte d, C ha ir. ADV VAS SONI SC : M I S S NGOYE : And the next was to bring a rescission application. And the rescission application? Th e res c issio n ap p lica tio n wa s also gra n te d in f a vou r o f PRASA. CHAIRPERSON : And at the time of the granting of the interdict and the Page 166 of 210 16 MARCH 2020 – DAY 224 – we l l , t h e g r a n ti n g o f t h e i n t e rd i c t , what kind of time in 2018 wer e w e t al ki ng ab out? A rou nd March , April? M I S S NGOYE : CHAIRPERSON : M I S S NGOYE : CHAIRPERSON : M I SS NG O Y E: CHAIRPERSON : M I S S NGOYE : 10 CHAIRPERSON : M I S S NGOYE : CHAIRPERSON: Yes , it was around. May? I am get t ing my d ate s wro ng , m ixed up , Chairperson . But somewhere around M a r c h , A p r i l ? Th at i s it . T ha t is i t. And the rescission happened. I t ha ppen ed la te r. Much later? Yes , bec aus e we dealt firs t with the interdic t. J a . O k a y. . ADV VAS SONI SC: When did Miss M a k u b e l a l e a v e t h e B o a r d o f PRASA? M I S S NGOYE : I t hin k i t w as a ro un d a bou t Jun e, Chairperson . Le t m e j u s t g e t m y f a c t s , I k n o w I s t a t e d .. .(int e rven es). ADV VAS SONI SC : Wa s i t n o t t h e 1 7 t h o f o r t h e 2 7 t h o f M a r c h ? M I S S NGOYE : me Let just see. What I k n o w, Cha i r p e r s o n. . .. (i nt erv ene s ). 20 CHAIRPERSON : M I S S NGOYE : CHAIRPERSON : I thi nk it must ha ve be e n a rou n d e ith e r March or Apr il. M a r c h/ April. I t hi nk I h ave se en so me th in g like tha t bas e d b y M a y o r J u n e s h e w a s n o l o n ge r t h e r e. M I S S NGOYE : I t w a s a ft er M a r c h , Chairperson b e c a u s e t h e 2 5 t h o f A p r i l we held a meeting with the Department of Transport. Page 167 of 210 No, no, no I am 16 MARCH 2020 – DAY 224 looking. ADV VAS SONI SC : You will find it at page 299 paragraph 5 1 o f t h e a ff i d a v it . M I S S NGOYE : Sorry, I wa s lo o kin g at t h e wro ng – y e s , o n t h e 2 3 r d o f M a r c h t h e r e s i g n a t i o n f r o m t h e Board was announced on the 23 r d o f March. ADV VAS SONI SC : But with effect from when? M S N G O Y E: With effect from the 16 t h o f M arch 2018. CHAIRPERS O N: With effect fro m? 10 M S NGOYE : Th e 16 t h o f M a r c h 20 1 8 . CHAIRPERSON : Wa s i t k i n d o f b a c k d a t e d ? M S N G O Y E: Th at i s c o rrect Ch a ir. CHAIRPERSON : Th at i s i n tere stin g. Ye s. ADV VAS SONI SC : Chairperson, I see it is 1 6 :0 0 o ’ c l o c k . T h e r e is s t i l l a b i g b i t on t h i s t o b e d e al t wi t h . I d o n o t k n o w w h e t h e r y o u wa n t t o continue. CHAIRPERSON : I ex pec t t he re is still a lo t t o b e d ealt w ith . ADV VAS SONI SC : Yes . CHAIRPERSON : By this witness, is that right? 20 ADV VAS SONI SC : Yes . CHAIRPERSON : Because we have no t – s h e h a s n o t gi v e n e v i d e n c e relating to the two oth e r a ff i d a v i t s . ADV VAS SONI SC : Affidavits, yes. But this fortunately, this affidavit is nearly done Mr Chairperson. CHAIRPERSON : Th is one is n ea rly do n e Page 168 of 210 16 MARCH 2020 – DAY 224 ADV VAS SONI SC : Yes . CHAIRPERSON : I f – h o w lo n g d o y o u t h i n k i t wo uld ta ke u s to fin ish th i s one? ADV VAS SONI SC : Chairperson it raises a number of issues for e x a m p l e , w h a t M s M a k u b e l a’s role is. Not only this but how she got a p p o i n t e d t h e n w h a t s h o u l d h a v e h a p p e n e d i n b e t w e e n . And I suspect it will take at lea s t 4 5 m i n u t e s t o a n h o u r t o d e a l w i t h th at as a w ho le Chairperson. CHAIRPERSON : 10 O k a y. S o a n d th a t w ou ld t he n b e the end o f th i s a ff i d a v i t ? ADV VAS SONI SC : I t w ou ld be t he e nd th is a ff idavit . CHAIRPERSON : Yes . And t h e s e o t h e r o n e s , t he r e s t o f h e r e v id e n c e might need how much time? ADV VAS SONI SC: Chairperson, the next affidavit I deal with which is t he one th at Ms N goy e made yeste rday, is re ally su mm a r i s i n g f o r y o u t h e m a i n a s p e c t s i n t h e S i y a n g e n a m a t t e r. CHAIRPE RSON : H’ m m . ADV VAS SONI SC : Th e p ap e r s a r e b e f o r e y o u . CHAIRPER SON : H’ m m . 20 ADV VAS SONI SC : She just highlights. CHAIRPERSON : Yes . ADV VAS SONI SC : So that I suspect will be quite expeditious Chairperson. CHAIRPERSON : Yes . ADV VAS SONI SC : And th e n t he DBSA matter we are g o i n g t o c u t it Page 169 of 210 16 MARCH 2020 – DAY 224 d o w n t o t h e f i n e s t de t a i l s r e v o l v i n g a n d d i s c u s s t h a t . CHAIRPERSON : Yes . ADV VAS SONI SC : Now I do not think Ms Ngoye will be more than about 2 a n d a h a l f h o u r s n o w. CHAIRPERSON : Yes ok ay. That is onc e we s ta rt with the o t h e r . .. (i nt erv e n e s ) . ADV VAS SONI SC : Yes . CHAIRP ERSON: Affidavits. ADV VAS SONI SC : No, all together. 10 CHAIRPERSON : Excluding finishing on this one? ADV VAS SONI SC : Yes . CHAIRPERSON : Excluding finishing on this one? ADV VAS SONI SC : Ye s . CHAIRPE RSON : O k a y. I am t r y i n g t o s ee w h e t h e r- a n d t h e n M r Dingiswayo you said he is coming tomorrow. ADV VAS SONI SC : He – M s N g o y e h a s d e a l t w i t h m a n y o f t h e m a t t e r s . CHAIRPERSON : J a . ADV VAS SONI SC : So, it will be to some extend confirmatory. CHAIRPERSON : J a . 20 ADV VAS SON I S C: He wil l j u s t d e a l i n a l i t t l e m o r e d e t a i l w i t h t h e Prodigy matter. CHAIRPERSON : J a . ADV VAS SONI SC : Because he dealt with the contract itself. CHAIRPERSON : J a . ADV VAS SONI SC : But that would be the main crust of his a ff i d a v i t . Page 170 of 210 16 MARCH 2020 – DAY 224 CHAIRPERSON : Ye s . ADV VAS SO NI SC : He deals quite a b i t w i t h t h e S i y a y a s e t t l e m e n t . CHAIRPERSON : Yes . ADV VAS SONI SC: O r p u r p o r t e d s e t t l e m e n t a n d s o i n a s e n s e w e c a n just get him to confirm it. CHAIRPERSON : What is your estimate of how m u c h t i m e m i s t e r – we m i g h t n e e d fo r M r D in g i s w a y o ? ADV VAS SONI SC: I d o no t th in k more t h an 2 an d a half ho u rs a t maximum. 10 CHAIRPERSON : So, we should be able to finish both of them tomorrow? ADV VAS SONI SC : Yes . CHAIRPERSON : And then you have Mr Popo Mole fe a n d Ms K weyama. ADV VAS S O N I S C: Th at is so Cha irp erso n. CHAI RPE RS ON: M r P o p o M o l e f e w i l l b e a b o u t w h a t 2 h o u r s ? ADV VAS SONI SC : About 2 hours Chairperson, yes, CHAIRPERSON : Th en Ms Kw e ya ma wo uld b e your last wit ne ss f or now t hi s s es s i on . ADV VAS S O N I S C: We l l a n d t h e n w e h av e g o t Mr Achmat Za kia . CHAIRPERSON : O h , w e h a v e g o t M r Achmat . 20 ADV VAS SONI SC : Can I in relations to Mr Achmat M r C h a i r p e r s o n . CHAIRPERSON : H’ m m . ADV VAS SONI SC : I t i s t o a la rge e xten d – h i s a ff i d a v i t r e p l i c a t e s t o a l a r g e ex t en d w h a t h e s a i d to t h e Port fo lio C ommitte e . CHAIRPERS O N: H’ m m . ADV VAS SONI SC: And so, in that sense it is not details of first -h a n d Page 171 of 210 16 MARCH 2020 – DAY 224 knowledge. CHAIRPERSON : Yes . ADV VAS SONI SC : I t is t he sort of t h in g o n e ca n say, w ell we know you h a v e s a i d t hi s , y o u h a v e s a i d th is. CHAIRPERS O N: J a . ADV VAS SON I SC: And what influences can be drawn from it. CHAIRPERSON : I t i s a lrea dy th ere . ADV VAS SONI SC : Yes . CHAIRPERSON : So, there is no need to be long with him. 10 ADV VAS SONI SC : I do no t t hin k so Ch ai rp e r s o n . CHAIRPER SON : J a . I wa s wondering whether w e s h o u l d s t o p f o r t h e d a y now or whether we should take maybe like another 30 minutes or so and s e e i f w e – i f y o u c a n f i n i s h w i t h h e r o n t h i s a ff i d a v i t o r w h e t h e r w e s h o u l d j u s t a d j o u r n . W h a t d o y o u s a y? ADV VAS SONI SC : Chairperson I kn ow th e w itne ss ha s h a d a l o n g d a y because a number of matters that she was not expecting to be probed, we probed. I a m j u s t a s s e s s i n g f r o m m y – wh a t I a m s e e i n g f r o m t h e witness. CHAIRPERSON : Yes . 20 ADV VAS SONI SC : I do n o t k n o w w h e t h e r .. .(in terve n e s ) . CHAIRPERSON : M s Ng o y e , h o w d o y o u f e e l a b o u t – d o y o u f e e l y o u c a n still go on, if I say let us go on? Or you feel exhausted now? M S N G O Y E: I ca n g o on C ha ir. CHAIRPERSON : You c an go on. M S N G O Y E: Yes . Page 172 of 210 16 MARCH 2020 – DAY 224 CHAIRPERSON : J a . M a y b e l e t u s ta ke a 5 min u te s b rea k. ADV VAS SONI SC: Yes . CHAIRPERSON : And then let us see whether we might be abl e – y o u m i g h t b e a b l e t o f i n i s h h e r e v i d e n c e i n r e l a t i o n t o t h i s a ff i d a v i t . A n d t h e n we proceed. Is that fine with you, I forgot to ch e c k w i t h y o u . T ha t i s f i n e , o k a y. L e t u s t a k e a 5 mi n u t e s a d j o u r n m e n t . ADV VAS SONI SC : As you please. CHAIRPERSON : We adjourn. REGISTRAR : All rise. 10 I NQ UI RY AD JOU RN S I NQ UI RY RE SUM E S CHAIRPERSON : O k a y, l e t u s p r o c e e d . ADV VAS SONI SC : Now in relation to t he re scissio n a p p l i c a t i on t h a t w a s granted, what did you use as the basis on which you persuaded the court t o res ci nd t he order grante d b y th e a ctin g ju dge ? M S N G O Y E: We obviously put the affidavits together Chairperson that s p e l l s o u t t h e c o n d u c t a ls o o f t h e Chairpe rson d u r i n g th e p ro cess a n d a l s o r e fl e c t i n g t h e i s s u e s a r o u n d l a c k o f a u t h o r i t y o f t h e Chairperson t o having concluded the settlement agreement on behalf of PRASA. And the 20 m a n n e r i n w h i c h t h e Chairperson h a d a l s o e n g a g e d w i t h t h e o t h e r s i d e ’s a t t o r n e y s t o t he d et rim e n t o f P R A S A w h e r e i t s h ou l d h a v e n o t b e e n . S o t hos e w ere s ome o f t he argu me n ts tha t w e pu t t o ge t h er in ou r ca se. ADV VAS SONI SC : And you .. .(in terve n es). CHAIRPERSON : I am s orry. As b e prior t o this st age , th e st a ge wh e r e y o u a p p l i e d f o r an i n t e r d i c t a n d y o u a p p l i e d f o r t h e rescission of the Page 173 of 210 16 MARCH 2020 – DAY 224 argument. And particularly as the events were unfolding at PRASA and a s f a r a s y o u w e r e c o n c e r n e d t h e L e g a l D e p a r t m e n t was excluded from t he S iy ay a me et ing s by th e Chairperson . D o yo u k n o w w h e t h e r t h e Chairperson was aware that you were s a y i n g t h e d e l e g a t e d a u t h o r i t y o r i n s t r u c t i n g a t t o r n e y s w a s w i t h y o u a n d n o t w i t h t h e Chairperson o f t h e Board ? M S N G O Y E: Chair in fact as far as that is concerned, I mean where I was s i t t i n g , I w o u l d h a v e e x p e c t e d t h e Board a t l e a s t t h e Board Chairperson t o ha v e f ami l i ari s e d h ers elf wit h w hat wa s co nt a ine d in t he d e le g a tio ns of 10 a u t h o r i t y. CHAIRPERSON : H’ m m . M S N G O Y E: Now one of the issues that came up at the time was for me t o be c hall e ng ed a bo u t t hi s p a r t i c u l ar delegation of au th or it y th a t I ha v e . CHAIRPERSON : H’ m m . M S N G O Y E: So, it was raised vehemently by her together with the Group CEO at the time Mr Cromet M o l e p o s a y i n g I d i d n o t h a v e a u t h o r i t y a n d I m y r e s p o n s e w a s , t h i s i s a d o cu m e n t t h at co me s fro m t he Board tha t i n d i c a t e s t h e a ut horit i es . I t is n o t my d ocumen t. CHAIRPERSON : H’ m m . 20 M S N G O Y E: But because that particular document was last approved d u r i n g t h e t e n u r e o f D r P o p o M o l e f o ’s Board . Th is p articu lar Board I g u e s s h a d n o t n e c e s s a r il y f a m i l i a r i s e t h e m s e l v e s w i t h th e d e l e g a t i o n s o f a u t h o r i t y. CHAIRPERSON : H’ m m . M S N G O Y E: Th at is wh y I t h in k th e Chairperson d i d n o t h a v e a n Page 174 of 210 16 MARCH 2020 – DAY 224 appreciation of the fact that she did not have that authority to enter into t he c ont rac t s . CHAIRPERSON : Bu t m y q u e s t i o n i s w h e t h e r y o u a r e a wa r e w h e t h e r s h e knew that actually there was an existence that delegated authority from t he Board i n f a v o u r o f t h e Head o f t h e L e g a l D e p a r t m e n t? M S N G O Y E: She knew Chair. CHAIRPERSON : She knew. M S N G O YE: She did know. CHAIRPERSON : And . . .(i nte rve ne s). 10 M S N G O Y E: Because she engaged with the documents absolutely, yes. CHAIRPERSON : She engaged with the documents. M S N G O Y E: Yes . CHAIRPERSON : At what stage was that? M S N G O Y E: I t w as du ring th is p roces s C h a i r p e r s o n . CHAIRPERSON : But prior to .. .(in terve n e s ) . M S N G O Y E: So the matters is, yes. CHAIRPERSON : I nt erdic t a nd so. M S N G O Y E: Th at i s i t Ch air. CHAIRPERSON : And is that because you were in a discussion with her 20 t hat is h ow y ou k n ow s he knew o f th e do cume nt ? Or i s t h a t b e c a u s e y o u were in discuss i o n w i t h s o m e b o d y e l s e w h o w a s i n d i s c u s s i o n w i t h h e r and based on that you know that she knew about the document? M S N G O Y E: I t was Ch air t he – I th ink t he q u ery wa s ra ise d b y th e Gro u p CEO with me to sa y t h e Chairperson wants to know where it is that you believe you get this delegation of authority from. So, I knew at the time Page 175 of 210 16 MARCH 2020 – DAY 224 t hat t hey w ere d is c us s i ng the issu es aro und t he de le ga t io n s o f au t h or it y and I – for me I took it that the interpretation perhaps is not understood i n t h e m a n n e r t h a t I h a d u n d e r s t o o d t h e d e l e g a t i o n s o f a u t h o r i t y. A n d s o , I k new t ha t s h e h ad w an te d cla rity aro und it a n d re q ue st ed th e Gr ou p CEO at the time Mr Cromet Molepo to request me to explain why I believe I h av e got aut hori ty. CHAIRPERSON : An d y o u h a d e x p l a i n e d w h e r e y o u b e l i e v e d y o u g o t t h e authority from? M S N G O Y E: Fro m t he dele g atio n s of au tho rity, yes. And wh at I ind icat e d 10 Chairperson was this was a Board d o c u m e n t . CHAIRPERSON : Yes . M S N G O Y E: I t w as no t my d o cume nt. CHAIRPERSON : Th at ’s t h a t , j a . M S N G O Y E: And also, w h at I ha d in d ica te d is th at it is very ea sy sho u ld t he Board t ak e aw ay t ha t de le g a tio n . CHAIRPERSON : J a . M S N G O Y E: I t i s s t i ll t he ir amb it to d o so . CHAIRPERSON : Yes . M S N G O Y E: But for as long as it ex i s t e d , t h e n i t m e a n t t h a t I w a s t h e 20 person that was authorised. CHAIRPERSON : Yes . So, y our res pons e to the G roup CEO was I h av e g o t d e l e g a t e d a u t h o r i t y. M S N G O Y E: Yes , in terms of the Board o f – i n te rms of th e de leg a tion of authority document. CHAIRPER SON : Yes . Page 176 of 210 16 MARCH 2020 – DAY 224 M S N G OYE: And I pointed out .. .(in t e r v en e s ) . CHAIRPERSON : And he knew what you were talking about? M S N G O Y E: Th at i s c o rrect Ch a ir. CHAIRPERSON : And did you subsequently have any discussion with him t hat s ugge s te d t hat he ha d con veyed th is t h r o u g h t h e Chairp e r s o n y o u have said. M S N G O Y E: I h a d – we l l w e d i d n o t h a v e a d i s c u s s i o n a s s u c h Chairperson. CHAIRPERSON : Yes . 10 M S N G O Y E: But I have written to him. CHAIRPERSON : Yeah, y ou hav e written to him, oh .. .(int e rven es). M S N G O Y E: Yes , with th e h o p e t h a t w e w ou l d t r a n s f e r i t t o t h e Chairperso n . CHAIRPERSON : So, this was in an e -m a i l ? M S N G O Y E: Th at i s c o rrect Ch a irperso n. CHAIRPERSON : I s th e e -m a i l h e r e .. .(int e rven es). M S N G O Y E: I ca n a ls o retrie ve tha t. CHAIRPERSON : Please get it. Had h e w r i t t e n t o y o u a n d y o u a r e responding or have yo u j u st spo ken t o him? 20 M S N G O Y E: He had written to me Chairperson. CHAIRPERSON : So please get all of that. M S N G O Y E: O k a y, I w i l l . CHAIRPERSON : J a . So, but you would have expected him to then have e i t h er passed on your re s p o n s e t o t h e Chairperson . M S NG O Y E: Th at i s ri ght. Page 177 of 210 16 MARCH 2020 – DAY 224 CHAIRPERSON : O r s h o u l d h a v e t o l d t h e Chairperson o f t h e g i s t o f y o u r response. M S N G O Y E: Th at i s c o rrect Ch a irperso n. CHAIRPERSON : And so, after that the chair – b u t a f t e r t h a t s t i l l the Chairperson c o n t i n u e d t o d e a l w i t h t h e m a t t er on t h e b a s i s t h a t s h e w a s o n e w h o h a d a u t h o r i t y. M S N G O Y E: Th at i s c o rrect Ch a ir. CHAIRPERSON : And that you did not have authority. M S N G O Y E: Th at i s c o rrect Ch a irperso n. 10 CHAIRPERSON : But you never got to kno w wh at th e b a s i s w a s f o r t h a t view? M S N G OYE: No , I d i d n o t . I mean there was a point where I had requested to have a meeting with the Chairperson h e r s e l f . CHAIRPERSON : Yes . M S N G O Y E: And she just refused. CHAIRPERSON : Yes . O k ay, thank y ou. So in ot h e r w o r d s – I a m s o r r y Mr Soni. ADV VAS SO NI SC : No, it is fine. CHAIRPERSON : Are you able to say as you sit there that as far as you 20 a r e c o n c e r n e d t h e r e i s n o w a y t h e Chairperson c o u l d s a y s h e w a s n ot a w a r e o f t h e d el e g a t i o n o f a u t h o r i t y i n y o u r f a v o u r. M S N G O Y E: Th at i s c o rrect Ch a irperso n. CHAIRPERSON : Yes . She might hav e s ome other c ontention but not t hat . M S N G O Y E: Th at i s c o rrect Ch a irperso n. Page 178 of 210 16 MARCH 2020 – DAY 224 CHAIRPERSON : O k a y. ADV VAS SONI SC : Ms Ngoye you may have said this and I am just t r ying t o de te rmi n e w h e n y o u t a l k e d t o m i s t e r – i s i t M a l o g i ? M S N G O Y E: M o l e p o . M r C r o m e t M o l e p o . ADV VAS SONI SC : Yes . If it was he who was c oming to y ou to s ay the Chairperson wants to know. M S N G O Y E: Th at i s c o rrect Ch a i r p e r s o n . ADV VAS SO N I S C: Now .. .(int e rven es). M S N G OYE: I n f ac t , if I may Ch airp erson . M r M o l e p o c a m e t o m e a n d 10 s a i d t h e Chairperson was upset with the fact that we had interfered in a m a t t e r t h a t s h e w a s d e a l i n g w i t h . S o , s h e r a i s e d t h a t a n n o y a n c e wi t h M r M o l e p o a n d M r Molepo comm u n i c a t e d t h a t t o m e . A n d r e q u e s t e d t h a t I t hen exp lai n my s e l f a s t o w h a t t h e b a s i s o f m y i n v o l v e m e n t w a s i n t h e matters. CHAIRPERSON : Did you by any chance attach to your response a copy of the delegation? M S N G O Y E: I did Chairperson. CHAI RPERSON: You did? M S N G O Y E: Yes . 20 CHAIRPERSON : O k a y. ADV VAS SONI SC : I t w as g o in g to b e my q uest ion Ch airp e rson . CHAIRPERSON : Yes . So, let us get that tomorrow. The c omplete s tuff t hat y ou se nt to t he Group CEO. ADV VAS SONI SC : No w t h e r e i s a m a tte r that I should have taken u p . You i n d i c a t e d t h a t t h e Chairperson th a t to ld t he C EO t ha t yo u must b e Page 179 of 210 16 MARCH 2020 – DAY 224 disciplined. M S N G O Y E: Th at i s corre ct C h airpe rso n. ADV VAS SONI SC : And what were you going to be disciplined for? M S N G O Y E: Well I d o n o t k n o w C h a ir. I wa s w aitin g to see w ha t I w ill be d i s c i p l i n e d f o r. M a y b e i t w a s f o r n o t t a k i n g i n s t r u c t i o n s a s I w a s t o l d n o t t o d ef end t he m at ter on beh alf of PRASA. I d o n o t kn o w. Be cau se o n e t hi n g t h at I wa s c e rt ain of is th at w ha t I d id w as i n t h e b e s t i n t e r e s t o f t h e o r g a n i z a t i o n a n d I w o u l d h a ve d o n e i t a g a i n f a c e d w i t h t h e s a m e circumstances so. 10 ADV VAS SONI SC: Were it through circumstance or subsequent circumstances or for other reasons, you were not disciplined. M S N G O Y E: No, I was not d i s c i p l i n e d C h a irp e r s o n . I think when the Chairperson t hen res i gned th e ma tt er f izzled aw a y a n d i t i s w h a t i t w a s . ADV VAS SONI SC: Now let us just take the Chairperson . She i s a p p o i n t e d o n t h e 1 7 t h o f O c t o b e r. M S N G O Y E: Th at i s c o rrect Ch a ir. ADV VAS SONI SC : At tha t time , sh e wa s a sen io r cou ncil. M S NG O Y E: Th at i s c o rrect Ch a ir. ADV VAS SONI SC : Now in terms of what I was out in the public space, 20 what was going to happen to her practice from what was in the public space in October? M S N G O Y E: Wel l i n t h e p u b l i c s p ac e i n O c t o b e r C h a i r w e k n e w t h a t s h e h a d b e e n a p p o i n t e d a s a j u d g e t o a ct as a jud g e – I m e a n t o b e c o m e a judge not act as well. So, it was something that was spoken of and we were looking – i n f ac t we asked o urse lves q uest ion s aro und h o w p o s s i b l e Page 180 of 210 16 MARCH 2020 – DAY 224 i s i t t h a t s he cou ld t ake o n the Chairmanship o f t h e P R A S A Board when s h e w a s go i n g t o b e a j u d g e . So that was in the public domain at the t i me. ADV VAS SONI SC: Th e an no u nce men t – we l l I t h i n k i t i s c o m m o n k n o w l e d g e t h e p r o c e s s t h a t i s f o l l o w e d i s b e f o r e a j u d ge i s a p p o i n t e d t here are hea ri ng s be fo re the JSC. The JSC make recomm e n d a t i o n s a n d t hen a m emb er t he Pre s iden t t hen ap poin ts. M S N G O Y E: Th at i s c o rrect Ch a ir. ADV VAS SONI SC : 10 At the time Ms M a k u b e l a was appointed to the Board , had any o f t h o s e p r o c e s s es ta ken place ? M S N G O Y E: Chairperson I th ink she h a d g o ne t hrou gh the i n t e r v i e w i n g process and identified as a candidate. I think the last leg of it was where t he Pre s ide nt w ou ld t hat co nfe r th e ju dg e ship o nt o h er. ADV VAS SONI SC : She th e n – we l l b e f o r e t h e n w h a t w a s t h e f e e l i n g i n PRASA ab o u t a p e r s o n w h o h a s b e e n n o m i n ate d b y t he JSC to b e a p p o i n t e d a s a j u d g e t o t a k e u p a p o s i t i o n o f t h e Chairperson o f a s t a t u t o r y b o d y e ff e c t i v e l y a n e x e c u t i v e p o s i t i o n . M S N G O Y E: We did not understan d i t C h a i r p e r s o n b e c a u s e w e s a w a b i t o f a c o n f l i c t r e al l y i n t h a t r e s p e c t t o s a y, s h e i s g o i n g t o b e t h e 20 Chairperson o f P R A S A a n d s h e i s g o i n g t o b e c o m e a j u d g e . How is it going to look because the appointment had already happened and when I a m t a l k i n g a b o u t t h e a p p o i n t m e n t b ef ore th e Pre sid en t conf ers it on h e r. I t was c omm o n k n o w l e d g e th a t …(intervenes). CHAIRPERSON : Th e rec omm e n d a t i o n . M S N G O Y E: Th e rec om m e n d a t i o n . Page 181 of 210 16 MARCH 2020 – DAY 224 CHAIRPERSON : I t m igh t be imp o rta nt th at we g e t t his right . M S N G O Y E: Th e t e r m s . CHAIRPERSON : I se e e v e n i n o t h e r s o u r c e s i t i s m i s u n d e r s t o o d . ADV VAS SONI SC : Yes . CHAIRPERSON : Th e J u dicial Se rvice Co mm i s s i o n i n t e r v i e w s c a n d i d a t e s a n d t h e n i n t h e c a s e o f a p p o i n t m e n t s t o h i g h c o u r ts i t a d v i s e s t h e President who to appoint. Th at is t he co rrect term ino l o gy. M S N G O Y E: O k a y. CHAI RPE RS ON: I t adv is e s th e Pre sid ent w ho to ap p o i n t . A n d t h e n t h e r e 10 is usually a period between the time the JSC advises the President and t he ann ounc em ent b y the Pre siden t t hat h e h as a pp o in t e d. So, when the J S C a d v i s e s t h e P r e s id e n t , t h e c a n d i d a t e i s n ot yet a jud g e. M S N G O Y E: O k a y C h a i r. CHAIRPE RSON : And when the President appoints the person as a judge …(intervenes). M S N G O Y E: I t i s o nly t hen . CHAIRPERSON : I f th e ap po int me n t is wit h a ff e c t f r o m t h e 8 t h o f l e t t e r o f t he P re si d e n t , t h e n t he ap p oint me n t is with imme d i a t e e ff e c t . I f t h e – b u t u s u a l l y t h e l e t t e r o f t h e P r e s i d e n t w i l l i n d i c a t e w i t h e ff e c t f r o m w h e n t h e 20 appointment is so you could have an announcement by the Presidency t ha t so a nd s o i s ap poi nt ed as a jud g e b ut w it h a ff e c t f r om a m o n t h f r o m n o w o r s o m e t h i n g l i k e t h a t . S o , t h e r e i s th a t p ro cess. M S N G O Y E: Sure. CHAIRPERSON : So a n d th e pe rson can n o t start p e rfo rmin g t he du ties of a j u d g e , c a n n o t a s s u m e t h e j o b u n t i l w h e n th e ap p oin tme n t sa ys th is is Page 182 of 210 16 MARCH 2020 – DAY 224 t he day f rom wh e n t h e y d o th a t. Oka y. M S N G O Y E: Th ank y ou. ADV VAS SONI SC : As i t ple ase s Ch airp erso n. Ms N goye can I ask yo u t o pl eas e loo k a t paragraph 5 1 be cause a ll th e se sma ll issu e s – we l l s e e m i n g l y s m a l l i s s u e s a r e qu i t e i m p o r t a n t . So, I am going to ask you q u e s t i o n s r el a t i n g t o t h e p r o c e s s t h a t t h e C h a i r p e r s o n h a s o u t l i n e d . And y o u – wh e r e d i d y o u g e t t h i s i n f o r m a t i o n i n r e s p e c t o f p a r a g r a p h 1 5 – 5 1 f r om? M S N G O Y E: Chairperson as I indicated …(intervenes). 10 CHAIRPERSON : What paragraph? ADV VAS SONI SC : O h , s o rry Chairperson. Paragraph 51 page 299. CHAIRPERSON : O k a y. ADV VAS SONI SC : O f S S 7 B . CHAIRPERSON : O k a y, t h a n k y o u . M S N G O Y E: Chairperson it was – I th ink f o r me it wa s co mm u n i c a t e d . We got to h e a r a b o u t i t i n t h e m e d i a a n d I r e m e m b e r t h e r e w a s a t i m e when UniteBehind as well had captured this and had started quest i o n i n g t he Chairperson s h i p o f Ms M a k u b e l a. So , it w as so meth in g th at w as i n t he me dia t ha t w as c om m u n i c a t ed . 20 CHAIRPERSON : Well firs t te ll me w ha t it is th at you say in 5 1? M S N G O Y E: O h , i n p a r a g r a p h 5 1 C h a i r I j u s t b a s i c a l l y m e n t i o n w h e n t h e Chairperson was nominated to be a judge which was in July 2017 …(intervenes). CHAIRPERSON : Th at wa s be fore she w as app o int ed to ch a i r t h e P R A S A Board ? Page 183 of 210 16 MARCH 2020 – DAY 224 M S N G O Y E: Th at i s co rrect C ha irp e rson so in July a l r e a d y t h e nominations had happened. And then she takes up the chairmanship in t he Board i n O c t o b e r …(intervenes). ADV VAS SONI SC : No, no. M S N G O Y E: I n …(intervenes). ADV VAS SONI SC : Sorry Ms Ngoye. Sorry, c a n I j u s t d o i t i n s e q u e n c e ? M S N G O Y E: O k a y. CHAIRPERSON : Yes . ADV VAS SONI SC : So we have the correct o r d e r. 10 CHAIRPERSON : Yes . ADV VAS SONI SC : She is nominated in July. M S N G O Y E: Yes . ADV VAS SONI SC : When is she recomm e n d e d f o r a p p o i n t m e n t b y t he j u d i c i a l s e r v i c e s c o m mi s s i o n . M S N G O Y E: I t i s o n th e 4 t h o f O c t o b e r. ADV VAS SONI SC: Yes . Then when i s s h e a p p o i n t e d a s Chairperson o f t he Board ? M S N G O Y E: O n t h e 1 9 t h o f O c t o b e r. ADV VAS SONI SC: Now a few things would have happened in regard to 20 t h a t a p p o i n t m e n t . T h e f i r s t i s t h e M i n i s t e r would have had to make the a p p o i n t m e n t . Wo u l d t h a t b e c o r r e c t ? M S N G O Y E: Th at i s c o rrect Ch a ir ADV VAS SONI SC: And he would have known that she is alread y nominated. M S N G O Y E: Th at i s c o rrect Ch a ir. Page 184 of 210 16 MARCH 2020 – DAY 224 ADV VAS SONI SC : Well one would assume he would k n o w. M S N G O Y E: O n e w o u l d a s s u m e C h a i r. ADV VAS SONI SC: And she would have had to accept the appointment a s Chairperson o f t h e Board . M S N G O Y E: Well I guess s o C h a i r. I m e a n I a m t a k i n g i t f r o m t h e f a c t t hat s h e – t h e n o m i n a t i o n s h a d a l r e a d y h a p p e n e d . CHAIRPERSON : Yes . M S N G O Y E: And that – a n d t h e n s h e g e t s a p p o i n te d a s th e Chairperson o f t h e Board . 10 CHAIRPERSON : Yes . M S N G O Y E: I do not kn ow w h at he r f ram e o f m i n d w a s …(intervenes). CHAIRPERSON : J a . M S N G O Y E: At the time to accept the chairmanship w h e n t h e p r o c e s s o f becoming a judge was in place. CHAIRPERSON : J a . ADV VAS SONI SC : But I am just putting it as a matter of comm o n s e n s e . I a m no m i n a t e d f o r a p o s i t i o n b y a M i n i s t e r a n d I s a y t o t h e M i n i s t e r th at I h a v e a d i ff i c u l t y. I c a n n o t a c c e p t t hi s n o m i n a t i o n b e c a u s e I a m l i k e l y t o b e a j u d g e i n J a n u a r y. S o , i n o r d e r f o r m e t o a c c e p t t h e a p p o i n t m e n t I 20 would have to indicate to the M i n i s t e r th a t the re a re n o ob sta cles to my b e i n g a p p o i n t e d a s a Cha i r p e r s o n o f t h e Board . M S N G O Y E: Th at i s c o rrect c h a i r. O n e w o u l d e x p e c t t h a t t h a t h a p p e n s . ADV VAS SONI SC : An y w a y, s h e i s n o m i n a t e d o r a p p o i n t e d o n t h e 1 9 t h . M S N G O Y E: Th at i s c o rrect Ch a ir. ADV VAS SONI SC : You s ay thereafter s he ac c epted the a p p o i n t m e n t . Page 185 of 210 16 MARCH 2020 – DAY 224 CHAIRPERSON : And actually, she is appoint e d a s – th e l a s t a p p o i n t m e n t y o u w e r e t a l k i n g t o i s a p p o i n t m e n t to t he Board o r a s a j u d g e ? ADV VAS SONI SC : O h , s o r r y C h a i r p e r s o n …(intervenes). M S N G O Y E: Th ere are t wo a p p oint me nts so we n e e d t o c l a r i f y w h i c h o n e we are talking about. ADV VAS SONI SC : Ye s a b s o l u t e l y. S h e i s a p p o i n t e d a s Chairperson o f t he in te rim Board o n t h e 1 9 t h o f O c t o b e r. M S N G O Y E: Th at i s c o rrect Ch a ir. CHAIRP ERSON: Yes ok ay. 10 ADV VAS SONI SC : And when you make a p o i n t a b o u t h e r a c c e p t i n g t h e appointment, yes. M S N G O Y E: As the Chairperson ? ADV VAS SONI SC : Yes , as the Chairperson , yes? M S NGOYE : Yes , s he ac c epted that appointment bec aus e s he c ame and b e c a m e t he Chairperson o f P R A S A . ADV VAS SONI SC : O k a y. A n d y o u s a y t h a t s u r p r i s e d y o u . M S N G O Y E: Well after a while when you s t a r t u n d e r s t a n d i n g C h a i r p e r s o n what is involved one would not h a v e t h o u g h t t h a t s o m e b o d y w h o i s r e a l l y going to be appointed at the bench would want to still be involved in 20 running a State -O w n e d E n t e r p r i s e. I t is ju st fo r me it is just commo n s e n s e b u t I g u e s s w e d o n o t l o o k a t t h i n g s t h e s a m e w a y. CHAIRPERSON : We l l w e w i l l h e a r. S h e w i l l c o m e a n d s h e w i l l p u t h e r s i d e o f t h e s t o r y. M S N G O Y E: O k a y. CHAIRPERSON : But it does look quite s t r a n g e . Page 186 of 210 16 MARCH 2020 – DAY 224 M S N G O Y E: Yes . CHAIRPERSON : Th at af te r she h a d be e n t o th e i n t e r v i e w a n d s h e m u s t h a v e k n o w n s o o n a f t e r t h e i n t e r v i e w s th at t he JSC w a s g oing to ad vise t he Pre s ide nt to app oi nt he r. beginning of October 2 0 17 So , if th e JSC in te rviews w ere aro und and she accepts an appointment as Chairperson o f t h e Board o n 1 9 O c t o b e r 2 0 1 7 o r t h e r e a b o u t s h e w o u l d h a v e k n o w n t h a t h e r a p p o i ntme nt w as imm i n e n t . ADV VAS SONI SC : I ndee d. CHAIRPERSON : Well I thin k i t i s – m a n y p e o p l e w o u l d k n o w t h a t I h a v e 10 been a judge for many years. I have been to the JSC many times and I h a v e n o re c o l l e c t i o n o f a n y P r e s i d e n t i n t h e l a s t 2 0 y e a r s o r s o w h o ha v e rejected advise from the JSC to say so and so should be appointed as a judge. I t n o r m a l l y j u s t h a p p e n s i f t h e J S C a d v i s e s th e Pre sid e nt, we f ound s o a nd s o s ui table, ap poin t, w e a dvise yo u t o a p p o i n t . The President would just appoint. So, it is so m e t h i n g t h a t o n e w o u l d l o o k f o r w a r d t o . How she d e a l s w i t h i t b e c a u s e if t h e int ervie ws we re in Octo ber a lso it must h a v e b e e n t hat wh at eve r ap poi nt me nt as a jud g e wo uld ha pp en would likely t o t a k e p l a c e t o b e w i t h e ff e c t f r o m e a r l y i n t h e f o l l o w i n g y e a r i f n o t b e f o r e 20 t he en d of t hat y ear. S o, a ccep tan ce of th e Chairmanship a t t h a t s t a g e u n d e r t h o s e c i r c u m s t a n c e s i s r a t h e r s t r a ng e . ADV VAS SONI SC : I nd ee d. No w yo u t hen sa y t hat t here w as a p a rt ic ul ar d at e on wh i ch t he Presid e ncy a n nou n ced t ha t Ms M a k u b el a h a d been appointed as a judge. M S N G O Y E: Th at i s c o rrect Ch a ir. Page 187 of 210 16 MARCH 2020 – DAY 224 ADV VAS SONI SC : Now what was that date? M S N G O Y E: I t w as t h e 2 n d o f N o v e m b e r 2 0 1 7 . ADV VAS SONI SC : And when was her appo i n t m e n t a s a j u d g e t o t a k e e ff e c t ? M S N G O Y E: Th e appo int me nt wa s t o b e e ff e c t i v e f r o m t h e 1 s t o f J a n u a r y 2018. ADV VAS SONI SC: Now y o u t h e n r e c o r d t h a t s h e d i ff e r e d t h e appointment. M S NG O Y E: Th at i s c o rrect Ch a ir. 10 ADV VAS SONI SC : Until when? M S N G O YE: Until the 1 s t o f A p r i l 2 0 1 8 . ADV VAS SONI SC : 2 0 1 8 . M S N G OYE: Yes . ADV VAS SONI SC : I s t he re an y re a so n tha t you know o f tha t s h e d i ff e r e d t h e a p p o i n t m e n t ? M S N G O Y E: Chair, I am s u r m i s i n g , a n d I t h i n k f o r m e r e a l l y i n m y- having seen what transpired during that period. In my mind I believe that the Chairperson wanted to see this particular matter through before she went to the bench. So it – that is my explanation of it that she needed 20 to finalise this matter and before it was finalised she was not able to leave. That is why for me I think I think that is why the resignation c a m e i n M a r c h y o u k n o w a f t e r t h e S h e r i ff h a d a t t a c h e d a n d r e m o v e d and so – and this is what I believe that I guess maybe that she thought that her task was done and therefore she can move on. CHAIRPERSON: But your – what you think in this regard would not be Page 188 of 210 16 MARCH 2020 – DAY 224 consistent would it be with this matter involving a small amount? M S N G O Y E : W e l l C h a i r I d o n o t k n o w. L o o k C h a i r I t h i n k a t t h e e n d o f the day I mean one thing that I also – we battled – you know this matter i n v o l v e d M r M a b u n d a . Yo u k n o w a n d M r M a b u n d a w a s s o m e b o d y w h o was you know known at PRASA and influential at PRASA. So when you try and put the pieces together you then say this is yet again one of those matters where you know we have this particular person who knows exactly what is supposed to happen but who is now going to be a s s i s t e d y o u k n o w a g a i n . A n d t h a t w a s t a b o o f o r u s y o u k n o w t o s a y, 10 can the Chairperson really come to PRASA only to have this matter settled because of whatever relationships that she had. We spoke about it Chair and that is how we saw it because it was too obvious for u s . To s a y y o u d o n o t c o m e i n t o a n o r g a n i s a t i o n i n t h e c i r c u m s t a n c e s where you have been appointed as a Judge – as a Chairperson of the Board and pick this particular matter up and run with it to its conclusion a n d t h e n r e s i g n w h e n y o u t h i n k t h a t i t i s o v e r. So for us it was just something that was obvious. CHAIRPERSON: Well I know Mr Soni I think you said you will deal with this I am quite interested in it as well. 20 A D V VA S S O N I S C : Ye s . CHAIRPERSON: The question of what other business of PRASA the Chairperson during her tenure was interested in what other tasks or whatever? What other issues were dealt with by the Chairperson of her Board during her tenure? A D V VA S S O N I S C : I w i l l d e a l w i t h t h a t r i g h t n o w C h a i r p e r s o n . O n e o f Page 189 of 210 16 MARCH 2020 – DAY 224 the questions you have raised is that in her short stay of five months as you say at the end of paragraph 51 this is the one matter that you dealt with? M S N G O Y E : T h a t i s c o r r e c t C h a i r. A D V VA S S O N I S C : Are there any other matters, disputes between contractors and PRASA that she involved herself? MS NGOYE: No Chair this was the only one. CHAIRPERSON: How many meetings did her Board have during her tenure are you able to remember? 10 MS NGOYE: I do not remember the exact number Chair but there was quite a number of meetings. CHAIRPERSON: H’mm. MS NGOYE: That the Board was having. CHAIRPERSON: H’mm. MS NGOYE: In fact the Chairperson also spent a lot of time at PRASA u s i n g t h e o ff i c e a t P R A S A y o u k n o w o n a d a i l y b a s i s . S o t h e m e e t i n g s w e r e n o t q u a r t e r l y y o u k n o w. CHAIRPERSON: H’mm. MS NGOYE: As one would have thought in relation to Board matters. 20 CHAIRPERSON: H’mm. M S N G O Y E : Yo u k n o w t h e y w o u l d c a l l s p e c i a l m e e t i n g s . B u t a s t o t h e n u m b e r C h a i r I w o u l d n o t b e a b l e t o s a y. CHAIRPERSON: Well she was appointed as Chairperson of the Board in October 2017 is that right? M S N G O Y E : T h a t i s c o r r e c t C h a i r. Page 190 of 210 16 MARCH 2020 – DAY 224 CHAIRPERSON: And she resigned. MS NGOYE: In March. C H A I R P E R S O N : I n M a r c h a b o u t t w e n t y s o m e t h i n g b u t w i t h e ff e c t f r o m the 16th, is that right? MS NGOYE: The 23rd of March. CHAIRPERSON: 23rd of March. So that would be about what four months? MS NGOYE: Five months. CHAIRPERSON: Five months? 10 M S N G O Y E : Ye s . CHAIRPERSON: Five months. Normally in a five month period in your experience the Boards at PRASA would have met how often? MS NGOYE: Well Chair normally the first port of call would also be the induction. CHAIRPERSON: Ja. MS NGOYE: For the Board and that you do not regard as a Board Meeting. CHAIRPERSON: Ja it is the new Board. M S N G O Y E : Ye s . A n d o n e o f t h e m e e t i n g s a t l e a s t t h a t s h e h a d w a s 20 w i t h t h e e n t i r e s t a ff . B u t t h i s w a s h e r n o t t h e B o a r d . CHAIRPERSON: H’mm. Ja. M S N G O Y E : Yo u k n o w a s f a r a s t h e B o a r d w a s c o n c e r n e d I g u e s s t h e y w o u l d n o t n e c e s s a r i l y l i m i t i t t o t h e q u a r t e r l y. CHAIRPERSON: H’mm. MS NGOYE: They would want to try and understand you know the Page 191 of 210 16 MARCH 2020 – DAY 224 business of PRASA. CHAIRPERSON: H’mm. M S N G O Y E : B e f o r e t h e f i r s t q u a r t e r i s o v e r. S o i n v a r i a b l y t h e y w o u l d call meetings Chair at least in my experience you know not long after the appointment and call a Board Meeting to try and understand and have executives explain to them what it is that they are doing in their respective roles that each one you know would be involved in. So it would not necessarily be a Board Meeting as such but it would be the Board trying to understand the business of the organisation. 10 CHAIRPERSON: H’mm. MS NGOYE: So I guess it was not something that was surprising to see the Board engaging you know often. CHAIRPERSON: H’mm. MS NGOYE: At the time. CHAIRPERSON: Now you have said as far as you know she dealt with this – the Siyaya matter or matters. M S N G O Y E : Ye s C h a i r. CHAIRPERSON: And nothing else or not much else, is that right? M S N G O Y E : N o C h a i r. T h i s w a s t h e o n l y l i t i g a t i o n o r d i s p u t e d m a t t e r 20 within PRASA. C H A I R P E R S O N : Ye s . MS NGOYE: That she had an interest in. CHAIRPERSON: But you did say that she spent a lot of time in PRASA? M S N G O Y E : T h a t i s c o r r e c t C h a i r. Page 192 of 210 16 MARCH 2020 – DAY 224 CHAIRPERSON: And one would expect that she would be doing something at PRASA. M S N G O Y E : W e l l t h a t i s c o r r e c t C h a i r. CHAIRPERSON: Ye s . But when I asked you whether she concerned herself about any other matters I was not talking it was simply about litigation matters. MS NGOYE: Oh. CHAIRPERSON: I am talking about other issues that might have needed the attention of the Board and her attention as far as you 10 know? M S N G O Y E : Ye s C h a i r t h e r e w e r e a c o u p l e o f m a t t e r s y e s . CHAIRPERSON: There were other matters? MS NGOYE: That she dealt with yes. C H A I R P E R S O N : Ye s t h a t s h e d e a l t w i t h . M S N G O Y E : T h a t i s i t C h a i r. CHAIRPERSON: And the Board? M S N G O Y E : Ye s C h a i r. C H A I R P E R S O N : Ye s . B u t i n t e r m s o f l i t i g a t i o n s . MS NGOYE: This was the only one. 20 CHAIRPERSON: But were there other litigation matters other than this one that were in existence during her tenure? M S N G O Y E : M a n y C h a i r. CHAIRPERSON: There were many? M S N G O Y E : Ye s . CHAIRPERSON: Did she show any interest in the other ones? Page 193 of 210 16 MARCH 2020 – DAY 224 M S N G O Y E : N o C h a i r. CHAIRPERSON: When you say namely can you help give me some idea 10 others, 20 others? MS NGOYE: Chairperson as we sit currently PRASA has got litigations more than 100 cases. CHAIRPERSON: More than 100 cases. M S N G O Y E : Ye s t h a t i t i s d e a l i n g w i t h . I t i s e i t h e r s u i n g o r i t i s b e i n g sued. C H A I R P E R S O N : Ye s o r b e i n g s u e d . 10 MS NGOYE: Reviewing contracts. C H A I R P E R S O N : Ye s . MS NGOYE: And so there is a lot of work that gets done within the litigation space at PRASA. CHAIRPERSON: Was that more or less the number even at that time or would you say it might not have been hundred but certainly not less than fifty or? M S N G O Y E : Ye s c o r r e c t C h a i r p e r s o n . CHAIRPERSON: So …(intervenes). MS NGOYE: There was not less than 50. 20 CHAIRPERSON: So there were tens of other matters. M S N G O Y E : Ye s C h a i r. CHAIRPERSON: Which were pending in courts. M S N G O Y E : Ye s C h a i r. CHAIRPERSON: And this Siyaya matters were the only matters where she was – in which she was interested? Page 194 of 210 16 MARCH 2020 – DAY 224 M S N G O Y E : T h a t i s c o r r e c t C h a i r. CHAIRPERSON: Alright. A D V VA S S O N I S C : M s N g o y e i f t h e … ( i n t e r v e n e s ) . C H A I R P E R S O N : I a m s o r r y. I a m s o r r y M r S o n i . A D V VA S S O N I S C : N o , n o C h a i r. CHAIRPERSON: Just to tie – to complete this. In regard to – was the position that in regard to all the other matters she did not challenge your authority to represent PRASA and to instruct attorneys? M S N G O Y E : S h e d i d n o t C h a i r. I n f a c t i f a n y t h i n g a f t e r I h a d d e p o s e d 10 t o t h e S i y a n g e n a a ff i d a v i t s o m e o f m y c o l l e a g u e s M r C h r i s M b a t h a a s well as Mr …(indistinct) Hube wrote to her complaining about you know the allegations that were contained in the Siyaya contract – I mean S i y a y a a ff i d a v i t . She once again you know wanted me to explain m y s e l f a s f a r a s d e p o s i t i o n o f t h a t a ff i d a v i t w a s c o n c e r n e d . CHAIRPERSON: H’mm. But never in regard to all the other matters? M S N G O Y E : N o C h a i r. CHAIRPERSON: And she was aware you would be dealing with them is that correct? M S N G O Y E : T h a t i s c o r r e c t C h a i r. 20 C H A I R P E R S O N : Ye s . MS NGOYE: Because also we – whenever we sat with the Board we would report. C H A I R P E R S O N : Ye s . MS NGOYE: On legal matters. C H A I R P E R S O N : Ye s . Page 195 of 210 16 MARCH 2020 – DAY 224 MS NGOYE: That the company was involved in. CHAIRPERSON: And that would be in her presence? M S N G O Y E : T h a t i s c o r r e c t C h a i r. CHAIRPERSON: And in terms of amounts that the other matters may have involved were they much more less than the R56 million or so involved here? M S N G O Y E : T h e y d i ff e r e d C h a i r. S o m e a m o u n t s a r e s m a l l . C H A I R P E R S O N : Ye s . M S N G O Y E : Yo u k n o w s o m e a m o u n t s a r e b i g . 10 C H A I R P E R S O N : Ye s . MS NGOYE: We have got like the R2 billion that we talk about. R4 billion. It was this hundreds of thousands, others is millions. So they w o u l d v a r y. CHAIRPERSON: But are you able to say – are you able to remember whether among the matters that you say she did not show any interest there may have been matters with much more. M S N G O Y E : Ye s C h a i r. CHAIRPERSON: Amounts than R56 million? M S N G O Y E : Ye s C h a i r. 20 CHAIRPERSON: And is there a figure that comes to mind? MS NGOYE: About – you know from about R100 million to up. CHAIRPERSON: Oh upwards? MS NGOYE: Ja. CHAIRPERSON: But there was no interest? M S N G O Y E : N o t h e r e w a s n o i n t e r e s t C h a i r. Page 196 of 210 16 MARCH 2020 – DAY 224 C H A I R P E R S O N : O k a y. A D V VA S S O N I S C : N o w i n r e g a r d t o t h e S i y a y a m a t t e r s s h e k e p t y o u r section, legal section, out of the picture? M S N G O Y E : T h a t i s c o r r e c t C h a i r. A D V VA S S O N I S C : I f s h e h a d d o n e t h a t i n r e g a r d t o a n y o t h e r m a t t e r would you have been aware of it? MS NGOYE: Ye s w e w o u l d . We would Chair because we – when we deal with legal matters we obviously are the custodians of all the cases. So invariably anybody that asks anything would have to come to 10 us first to say you know what is happening in this matter and we would have to advise? So if any other matter – but also the way we worked within the organisation Chair was that everybody understood the role of legal within the organisation. So if anybody would ask about a legal matter that was dealt with at a particular business unit the person responsible for briefing legal at the time would then come to us and s a y, l o o k t h e s e a r e t h e q u e s t i o n s t h a t I h a v e h a d t o d e a l w i t h c o m i n g from whoever it is? For instance in this particular of Siyaya when the colleagues that had given evidence at the liquidation proceedings were a s k e d t o p u t t h e i r s t a t e m e n t s t o g e t h e r. T h e C h a i r p e r s o n t h e y c a m e t o 20 us and they said, why have we been asked to do this? Why are you guys now all of a sudden you know asking that we put this together for the Chairperson? So they were concerned because that request was a request that was made obviously via the Chairperson directly to those people. CHAIRPERSON: Now when the Chairperson was appointed the Page 197 of 210 16 MARCH 2020 – DAY 224 litigation between PRASA and Siyaya had been going on for some time, is that correct? MS NGOYE: T h a t i s c o r r e c t C h a i r. In fact it started in 2015 so we were sitting two years. C H A I R P E R S O N : Yo u s a i d g o i n g o n f o r a b o u t t w o y e a r s . M S N G O Y E : T h a t i s c o r r e c t C h a i r. CHAIRPERSON: And during that time your Legal Department had been handling it through the attorneys? M S N G O Y E : T h a t i s c o r r e c t C h a i r. 10 CHAIRPERSON: When she then came and then showed interest in it and started playing the role that she played and you say that you – your Department was excluded did she ever complain that maybe the Legal Department had failed to handle it properly as far as you know? MS NGOYE: She did allude to that. CHAIRPERSON: H’mm. MS NGOYE: She did allude to the fact that she did not think that we h a d h a n d l e d t h i s m a t t e r p r o p e r l y. C H A I R P E R S O N : Ye s . MS NGOYE: 20 She said that she believed that the matter could have been settled long ago. C H A I R P E R S O N : Ye s . M S N G O Y E : Yo u k n o w b u t o b v i o u s l y w h e r e w e w e r e s i t t i n g t h e r e w a s no need to settle because we did not believe that we owed Siyaya. C H A I R P E R S O N : Ye s . MS NGOYE: And Chair I must say that as a legal function we do not Page 198 of 210 16 MARCH 2020 – DAY 224 defend all matters that come our way we weigh what the facts are and whether the company has got a you know a good case. CHAIRPERSON: Defence or case ja. M S N G O Y E : To d e f e n d . C H A I R P E R S O N : Ye s . MS NGOYE: We take them on that basis. C H A I R P E R S O N : Ye s . MS NGOYE: And the instructions that we had received from the business units was solid you know as far as those issues were 10 concerned. CHAIRPERSON: But did she say in what respect she thought you had – your Department had failed to handle this matter properly in her view? MS NGOYE: She linked it to the liquidation process Chairperson. C H A I R P E R S O N : Ye s . MS NGOYE: And she said because our people – our colleagues had conceded in the liquidation process that we owed Siyaya. She believed t h a t w e h a d n o t h a n d l e d t h i s m a t t e r p r o p e r l y. But when we engaged with the colleagues Vincent Gabue for instance Mr Vincent Gabue and 20 asked what had transpired. But also Diale Mogashoa was representing us at the time Chairperson and even though they were not allowed to participate in the liquidation proceedings they were there and they could themselves come back to us and tell us how you know what transpired at the sessions. So you know when she came with that report saying a colleague of hers you know gave her this report and we Page 199 of 210 16 MARCH 2020 – DAY 224 m a d e c o n c e s s i o n s w e d i s a g r e e d w i t h h e r. B u t s h e p r o c e e d e d w i t h i t . CHAIRPERSON: But as a matter of fact were there any concessions that are relevant to settling these particular claims that had been made by your colleagues at the inquiry? M S N G O Y E : N o C h a i r. N o C h a i r. T h e y w r o t e . CHAIRPERSON: And that you know that as a fact? M S N G O Y E : Ye s t h e y w r o t e C h a i r. CHAIRPERSON: Ja. M S N G O Y E : B e c a u s e t h e y h a d t o w r i t e t o h e r. 10 C H A I R P E R S O N : Ye s . MS NGOYE: And explain. C H A I R P E R S O N : Ye s . M S N G O Y E : A n d i n t h e i r e x p l a n a t i o n s t h e y d o s a y. C H A I R P E R S O N : Ye s . MS NGOYE: That they do not concede. CHAIRPERSON: And do you know whether once they had written she accepted that they had not made any such concessions? M S N G O Y E : N o C h a i r. C H A I R P E R S O N : Yo u d o n o t k n o w ? 20 MS NGOYE: Ja Chair I think the way things happened. CHAIRPERSON: Ja. MS NGOYE: Is that even though they wrote I guess she did not like w h a t t h e y w r o t e a n d w a n t e d t o p r o c e e d w i t h s e t t l i n g t h e m a t t e r. CHAIRPERSON: We have here in the bundle of copies of e-mails or whatever statements that they wrote to her? Page 200 of 210 16 MARCH 2020 – DAY 224 M S N G O Y E : I c a n a t t a c h t h e m C h a i r. I h a v e n o t . C H A I R P E R S O N : Yo u c a n g e t t h e m f o r u s ? MS NGOYE: Ja there is quite of information we removed from them. CHAIRPERSON: Okay thank you. So she had complained that she did n o t t h i n k t h a t t h e L e g a l D e p a r t m e n t h a d h a n d l e d t h e m a t t e r p r o p e r l y. M S N G O Y E : T h a t i s c o r r e c t C h a i r. CHAIRPERSON: But as far as you understood her point it was about the – it was because she said the matter should have been settled? M S N G O Y E : T h a t i s c o r r e c t C h a i r. 10 CHAIRPERSON: And – should have been settled because of alleged confessions that she said …(intervenes). M S N G O Y E : T h a t i s c o r r e c t C h a i r. CHAIRPERSON: She had been been made. M S N G O Y E : T h a t i s c o r r e c t C h a i r. C H A I R P E R S O N : O k a y. A D V VA S S O N I S C : Now with regard to the cases Chairperson we asked how long they have been …(indistinct). Chairperson if you look at DN4 and I am not giving evidence – NN4 at page 3 – it starts at page 322 you will see that the cases are from 2015 and 2016. 20 C H A I R P E R S O N : Ye s . MS NGOYE: Ja. C H A I R P E R S O N : Ye s , y e s . A D V VA S S O N I S C : That would give an indication of when the litigation had started. CHAIRPERSON: Ja. Page 201 of 210 16 MARCH 2020 – DAY 224 A D V VA S S O N I S C : Now as – when Ms Makubela resigned what happened to the rest of the Board Members? MS NGOYE: If I recall Chair they – you know some of them stayed and there was no Chairperson so it was an anomaly that existed at PRASA at the time. And I think for me what I had understood from the Minister at the time, Minister Blade Nzimande was that you know he was going to make his own appointment of an interim Board again. So the rest – the Board Members I think if it was – it I recall one of the Board Members was then playing the role of the Chairperson and I think it was 10 Doctor Scheepers at the time who was a Board Member who just took on that role. But at the time again Chairperson if you look at the composition of the Board it was not compliant because you know there were other Members that are required in terms of statute that were not in the Board. CHAIRPERSON: But had that been the position even during her tenure? MS NGOYE: It was the case Chairperson. C H A I R P E R S O N : O k a y. MS NGOYE: So I mean and there was a lot of attack coming from the 20 likes of UniteBehind on the Board that had been appointed by Minister Masangwana to say it is not compliant with the Legal Succession Act. C H A I R P E R S O N : Ye s . I j u s t – b e f o r e M r S o n i p r o c e e d s I j u s t w a n t u s t o d e a l w i t h t h i s . Yo u t o l d m e t h a t t h e C h a i r p e r s o n d i d s a y t h a t s h e d i d not think that the Legal Department had handled the Siyaya matter p r o p e r l y. What is your response to that criticism of the – of your Page 202 of 210 16 MARCH 2020 – DAY 224 Department? M S N G O Y E : I d i d n o t a g r e e w i t h t h e C h a i r p e r s o n C h a i r. C H A I R P E R S O N : Ye s . MS NGOYE: I really did not agree with her and I made it known to her t h a t I d o n o t a g r e e w i t h h e r. Because in my view and what had been reported to me was that we have good prospects of success. CHAIRPERSON: H’mm. MS NGOYE: So when she said that I was taken aback and I was not sure how it is that she could come in and within such a short space of 10 time be able to make that assessment without necessarily engaging fully with the matters. So I just thought now I do not know what the C h a i r p e r s o n i s t a l k i n g a b o u t b u t I j u s t d i d n o t a g r e e w i t h h e r. C H A I R P E R S O N : H ’ m m o k a y. A D V VA S S O N I S C : Can I ask you this – sorry Ms Makubela left in March 2018 and the Rescission Judgment was granted soon thereafter would I be correct? M S N G O Y E : T h a t i s c o r r e c t C h a i r. A D V VA S S O N I S C : In regard to that arbitration where is the matter sitting at the moment? 20 MS NGOYE: successful W e l l I n e e d t o r e m i n d m y s e l f C h a i r. with the interdict and we were So we were successful with the a r b i t r a t i o n , t h e r e s c i s s i o n o f t h e m a t t e r. I t h i n k t h a t w a s t h e e n d o f t h e m a t t e r C h a i r i f I r e c a l l p r o p e r l y. A D V VA S S O N I S C : But the – all that was rescinded was the agreement. Page 203 of 210 16 MARCH 2020 – DAY 224 M S N G O Y E : T h a t i s c o r r e c t C h a i r. A D V VA S S O N I S C : O r t h e a w a r d t h a t w a s i s s u e d . M S N G O Y E : T h a t i s c o r r e c t C h a i r. A D V VA S S O N I S C : B u t t h e d i s p u t e a s I u n d e r s t a n d i t w o u l d c o n t i n u e to exist. CHAIRPERSON: The merits of the case. MS NGOYE: The merits of the matter yes we proceeded with that Chairperson and …(intervenes). CHAIRPERSON: In arbitration? 10 M S N G O Y E : Ye s . CHAIRPERSON: H’mm. MS NGOYE: No in court. CHAIRPERSON: H’mm. Did it move from arbitration to court? MS NGOYE: So remember we had Part A and Part B Chairperson of when we brought the application. CHAIRPERSON: Ja. MS NGOYE: For the interdict as well as the rescission. CHAIRPERSON: Oh ja. MS NGOYE: And then it also had to do with the facts surrounding you 20 know the conduct of the Chairperson and how it got to us having had to approach the court. CHAIRPERSON: Part A was the interdict? MS NGOYE: Part A was the interdict. CHAIRPERSON: What was Part B? MS NGOYE: Part B was the rescission. Page 204 of 210 16 MARCH 2020 – DAY 224 CHAIRPERSON: Rescission. M S N G O Y E : Ye s . C H A I R P E R S O N : Ye s b u t w h a t C o u n s e l i s a s k i n g i s a r e s c i s s i o n o n c e granted all it would have meant is that the order of the court making the arbitration award an order of court would rescinded. M S N G O Y E : Ye s C h a i r. CHAIRPERSON: That would mean the arbitration award remains. M S N G O Y E : Ye s C h a i r. C H A I R P E R S O N : Te c h n i c a l l y. 10 M S N G O Y E : Ye s . CHAIRPERSON: As an arbitration award as no longer as an order of court. M S N G O Y E : Ye s . CHAIRPERSON: So in other words the arbitration award is its status a s a n o r d e r o f c o u r t i s t a k e n a w a y. M S N G O Y E : T h a t i s c o r r e c t C h a i r. CHAIRPERSON: So it remains simply as an arbitration award. M S N G O Y E : Ye s C h a i r. CHAIRPERSON: Now the question he is asking is what happened after 20 that? Was the award itself set aside and if it was, was the claim – original claims that had been pursued by Siyaya not pursued anymore? MS NGOYE: Well they have not pursued the claims Chairperson. CHAIRPERSON: They did not pursue it? MS NGOYE: They did not pursue the claims. CHAIRPERSON: But what – do you remember whether the actual Page 205 of 210 16 MARCH 2020 – DAY 224 award was also set aside? MS NGOYE: I cannot remember if that award was set aside. CHAIRPERSON: Or you only remember the order? MS NGOYE: Ja but the – I cannot remember if that one was set aside. C H A I R P E R S O N : Ye s b u t t h a t n e v e r p u r s u e d ? MS NGOYE: That they did not pursue the matters Chairperson. C H A I R P E R S O N : O k a y. A D V VA S S O N I S C : I s i t t w o y e a r s s i n c e t h e – a t l e a s t t w o y e a r s s i n c e the court order was rescinded? 10 M S N G O Y E : T h a t i s c o r r e c t C h a i r. A D V VA S S O N I S C : A n d t h a t i f I m a y p o i n t o u t w i l l g o t o w h e t h e r t h e defence was a good defence or not a good defence. M S N G O Y E : T h a t i s c o r r e c t C h a i r. A D V VA S S O N I S C : H a v i n g p u r s u e d i t . M S N G O Y E : T h a t i s c o r r e c t C h a i r. A D V VA S S O N I S C : N o w y o u f i n a l i s e t h i s p a r t o f y o u r a ff i d a v i t i n relation to the Siyaya matters by pointing out that …(intervenes). CHAIRPERSON: Before that …(intervenes). A D V VA S S O N I S C : T h a t i n f a c t – s o r r y … ( i n t e r v e n e s ) . 20 CHAIRPERSON: Maybe before that Mr Soni. J u d g m e n t b y J u d g e Tu c h t e n ? M S N G O Y E : Tu c h t e n y e s . CHAIRPERSON: H’mm. M S N G O Y E : Ye s C h a i r. CHAIRPERSON: Is that the one for rescissions? Page 206 of 210 Wa s t h e R e s c i s s i o n 16 MARCH 2020 – DAY 224 MS NGOYE: I did not get the …(indistinct) that is one. C H A I R P E R S O N : O k a y. A D V VA S S O N I S C : M r C h a i r p e r s o n w e c a n m a k e i t a v a i l a b l e t h i s a s part of the …(intervenes). CHAIRPERSON: It should be part of also of the papers. A D V VA S S O N I S C : W h a t i n r e l a t i o n t o n o w J u d g e M a k u b e l a w h a t h a s happened as a result of all these developments that you have summarised in your evidence this afternoon? MS NGOYE: 10 Well Chair I am aware that you know a complaint was lodged with the JSC on the conduct of Judge Makubela and I think for m e a l s o c o m i n g f r o m t h e d e c i s i o n o f J u d e Tu c h t e n w h i c h w a s s c a t h i n g really on Judge Makubela she obviously took exception to that and was challenging that at that judgment and – so where one is sitting now I am aware that it has been referred to the Judicial Services Commission and this was referred by UniteBehind – #UniteBehind again you know a n d s o I a m n o t s u r e w h e r e t h e p r o c e s s i s r i g h t n o w. CHAIRPERSON: H’mm. MS NGOYE: But I know there is a challenge. C H A I R P E R S O N : O k a y. 20 A D V VA S S O N I S C : Chairperson may I just make this point for completeness sake so when eventually you are looking at everything you would know what the various developments are. Following Judge Tu c h t e n ’s j u d g m e n t i n w h i c h s h e s e t a s i d e t h e j u d g m e n t g r a n t i n g e ff e c t i v e l y unopposed – granting the application unopposed Ms M a k u b e l a c o m p l a i n e d t o t h e J S C t h a t J u d g e Tu c h t e n h a d r a i s e d m a t t e r s Page 207 of 210 16 MARCH 2020 – DAY 224 in his judgment that ought not to have been raised. That matter was considered by the JSC and there is a decision of the JSC. So we have all of that. C H A I R P E R S O N : Ye s . A D V VA S S O N I S C : A n d w e w i l l m a k e t h a t a l l a v a i l a b l e t o y o u C h a i r. C H A I R P E R S O N : O k a y. O k a y. A D V VA S S O N I S C : T h a t w i l l j u s t g i v e y o u a c o m p l e t e p i c t u r e . C H A I R P E R S O N : Ye s . A D V VA S S O N I S C : O f w h a t h a s h a p p e n e d . 10 C H A I R P E R S O N : O k a y. A D V VA S S O N I S C : B u t o f c o u r s e a s p o i n t e d o u t h e r e i t i s M s – i t i s the complaint that UniteBehind brought against Judge Makubela that is now before the JSC. CHAIRPERSON: No that is fine. The – I think it would be a judgment or decision of the Judicial Conduct Committee. A D V VA S S O N I S C : I t i s . CHAIRPERSON: Which I think can be said to be a baby of the JSC. A D V VA S S O N I S C : A l b e i t s o r r y, s o r r y, y e s . C H A I R P E R S O N : Ye s t h e J S C J u d i c i a l C o n d u c t C o m m i t t e e j a . 20 A D V VA S S O N I S C : Ye s . C H A I R P E R S O N : O k a y. I s t h a t w h e r e … ( i n t e r v e n e s ) . A D V VA S S O N I S C : T h i s i s w h e r e w e e n d . CHAIRPERSON: Are we done with this part? A D V VA S S O N I S C : F o r t h i s p a r t . CHAIRPERSON: Ye s . Ye s . Okay we are going to adjourn then for Page 208 of 210 16 MARCH 2020 – DAY 224 t o d a y. W e w i l l r e s u m e t o m o r r o w a t 1 0 : 0 0 . A D V VA S S O N I S C : T h a n k y o u M r C h a i r p e r s o n . CHAIRPERSON: We will resume at 10:00 so we will then continue. We adjourn. A D V VA S S O N I S C : A s i t p l e a s e s . REGISTRAR: All rise. I N Q U I RY A D J O U R N S T O 1 7 M A R C H 2 0 2 0 10 20 Page 209 of 210 16 MARCH 2020 – DAY 224 TRANSCRIBER’S CERTIFICATE FOR COMMISSION OF INQUIRY INTO STATE CAPTURE HELD AT BRAAMFONTEIN CHAMBERS DATE HELD : 2020-03-16 DAY: : 224 TRANSCRIBERS : B KLINE; M NETTA; D STANIFORTH; B DODD; D BONTHUYS Audio’s are typed verbatim, as far as audible/possible Page 210 of 210