Former board members of the Passenger Rail Agency of SA (Prasa) have gone to court to review and set aside the findings of the State Capture Commission chaired by Chief Justice Raymond Zondo.
In a statement issued by the ex-board members on Wednesday, they said the application filed in the Gauteng Division of the High Court was to review and set aside the findings and recommendations concerning Prasa as detailed in Part 5 Volume II of the Final Report of the State Capture Commission.
The five applicants are former Prasa chairperson Sfiso Buthelezi, Dr Bridgete Gasa-Toboti, the former chairperson of the board’s committee on finance, capital investment and procurement (FCIP), Mmatebogo Nkoenyane, who served on the FCIP Committee, Nkosinathi Khena, who served on the audit and risk management committee (ARM) and Lucky Montana, former Prasa group chief executive.
Buthelezi, the spokesperson of the former board members, said: “We are convinced the report is reviewable on numerous grounds, including the selective application of the commission’s rules and regulations, factual inaccuracies, disregard of the evidence, and the fact that Justice Zondo relied, during public hearings and in his final report, on untested information provided at the commission by various persons without any opportunity being afforded to some of the applicants to present their version and confront their accusers under oath at the time of their presenting the untested information to the commission.
“The findings by Justice Zondo on both Swifambo and Siyangena are not only erroneous but factually incorrect and not rationally connected to the terms of reference of the commission. We have seen the commission under Justice Zondo acting in violation of its terms of reference.
“We are of the view that had Justice RMM Zondo given serious and proper consideration to the evidence before his commission and allowed testifying to various persons against whom he knew the commission intended to make adverse findings, he would not have come to the same findings he has reached and the recommendations he has made in his final report.”
Buthelezi said they were taken aback by Zondo’s recommendation that the National Prosecution Authority (NPA) consider possible prosecution against certain directors for violation of the Public Finance Management Act (PFMA). He said there was no evidence showing any breach of the PFMA by the board.
“To make matters worse, Justice Zondo recommends the NPA should consider prosecuting some of the Directors for violating the PFMA but leave out others. The law says the board acts as one, is appointed to act in unison, and is guided by the law, Shareholder Mandate, the PFMA, and Board Charter. There is no basis for Justice Zondo’s recommendation for selective prosecution and leaving out others.
“Throughout the life of his Commission, Justice Zondo never undertook any evaluation of the performance of the Prasa board during our tenure yet he makes adverse findings against the directors of this board without having allowed this board to put its version to him. We affirm ours has been the most successful board since the establishment of Prasa in March 2009.
“We did not only build Prasa as a new public entity but had overseen the implementation of an ambitious program to modernise passenger railways in our country and the extension of rail and bus services to citizens. We are proud of our contribution.”
In his report, Zondo listed various other individuals who benefited “handsomely” from the Prasa contracts and ordered that action should also be taken against them.
“I worry that If I don’t make a general recommendation about these matters, it is unlikely that Prasa will recover.
“Having given anxious consideration to the issues, I have decided that a special commission of inquiry be appointed to examine specifically the following matters: why Prasa was allowed to slide into almost total ruin, who should be held responsible for that, and who could have benefited from the unacceptable state of affairs," Zondo said
However, Buthelezi said that during their tenure as the board, Prasa commuter services averaged 541 million passenger trips per annum while after their term, everything collapsed with passenger numbers dropping to below 20 million passenger trips.
The recent information presented by Prasa to Parliament showed that Prasa lost more than 80% of its capacity to deliver passenger service in the last seven years, with dire consequences for poor households dependent on public transport.
“Capital expenditure during our term averaged 92% and it has been below 20% during the tenure of the boards of Popo Molefe and Khanyisile Kweyama. In respect of revenue management, Prasa collected over R3.8 billion (excluding government subsidy) during our term in 2014 but this declined to approximately R1.6 billion during the tenure of the boards after us.
“Prasa during our tenure built the underground station and Rail-Link as part of the Bridge-City mixed development to benefit the areas of Inanda, Ntuzuma, and KwaMashu (INK) in KwaZulu-Natal, doubled the rail tracks and a new station in Mamelodi reducing travel times for commuters and constructed new-generations stations for the 2010 Fifa World Cup and beyond. Safety in operations was at its highest ever.”
He said: “It was during our tenure that new-generation commuter trains dubbed the ‘People’s Train’, modern locomotives, and the latest signalling technologies were acquired by Prasa. It was our board that made it possible for South Africa to build the new train factory in Dunnottar, Nigel, as part of industrialisation, localisation, job creation, and skills development as well as to revitalise the rail engineering sector.
“We were determined to use the investment in the new-built programme as a catalyst to revive the engineering firms lying dormant in large parts of Ekurhuleni. This was our work. The new trains are being rolled out daily and the factory is showcased to investors, yet the people behind this massive programme are criminalised through manufactured lies.”
Furthermore, Buthelezi argued that for 10 consecutive years during their term, Prasa received unqualified audits from the auditor-general.
“The major gains made by our country in the sphere of passenger railways were reversed within 18 months of some of us leaving Prasa. Unfortunately, the ‘butchers’ of Prasa have been protected in Justice Zondo’s final report,” said Buthelezi.
The former board members also alleged that there was evidence that the appointment of the board with Popo Molefe as chairman was unlawful, and accused Zondo of turning a blind eye to this.
During his appearance at the Zondo commission, former Prasa CEO Montana testified and presented evidence that under Molefe and his then board, certain companies contracted to Prasa had their scope of work irregularly and unlawfully increased and claimed that these companies had in turn made “donations” to Molefe through his Foundation Trust, which according to Buthelezi, constituted “serious conflict of interest”.
“Lucky Montana had asked the commission to subpoena the accounts of Popo Molefe, his wife, and his Foundation Trust but these were ignored.”
In conclusion, the former board said that there was no evidence in the final report showing the commission had investigated the allegations, which it was obliged to do.