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Gama heads to court to fight

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Siyabonga Gama. Picture: Lindile Mbontsi
Siyabonga Gama. Picture: Lindile Mbontsi

Transnet group chief executive Siyabonga Gama is heading to court this week to interdict the state rail company from firing him.

In the draft labour court papers that are expected to be filed on Tuesday, Gama seeks to interdict the board from terminating his employment, and he also asks the court to declare his “termination notice null and void”.

Gama is seeking an urgent declaratory order confirming that his employment contract details a disciplinary code and procedure that first has to be undergone before he is dismissed.

Read: Gama threatens to take Transnet board to court

In his court papers, Gama quotes the board’s letter – in which it states that “the information about your conduct has resulted in a loss of trust and confidence by the board in your ability to manage Transnet at the highest level and to lead in line with its corporate culture” – as a clear indication that the board already decided to fire him without due process, and without affording him an opportunity to tell his side of the story.

“As a general rule and except where exceptional circumstances of an individual case exist, an employee shall not be disciplined without first being afforded the opportunity of stating his/her case,” he writes.

Gama further insists that, in his case, there are “no exceptional circumstances that justify a deviation” from disciplinary rules.

“A decision to dismiss me has already been taken – at least by [Transnet board chair Popo Molefe]. Transnet may only dismiss an employee after a formal inquiry is held.

"At such an inquiry and before a decision is taken to dismiss an employee, consideration must be given to all relevant aggravating and mitigating circumstances such as the employee’s previous disciplinary record, personal circumstances, length of service and the circumstances of the misconduct itself,” he states.

He says the notice of termination he received “denies me this opportunity, which involves, among other things, an opportunity to cross-examine those who are making these allegations against me”.

“That violates the basic principle of natural justice. In fact, the notice tends to promote injustice,” he said.

City Press has learnt that the board intends to oppose Gama’s interdict.

Read: Transnet board digs in its heels, tells Gama to go fly

It also accuses him of having caused a breakdown in the relationship between himself and the board during the course of the investigation into the 1 064 locomotives tender, from which companies linked to the Gupta family received more than R5 billion in kickbacks.

The board has already sought legal opinion from labour lawyers Nazeer Cassim SC and Riaz Itzkin, who advised that Gama could be summarily dismissed.

In their opinion, which City Press has seen, the advocates argue that, after having checked Gama’s employment contract, Transnet may fire him without notice if the reason relates to serious misconduct, a gross failure to meet performance standards, any material breach of his obligations, or gross negligence.

“Transnet would be entitled in law to terminate the employment contract of Mr Gama on the basis of a breakdown of trust and a loss of confidence in him.

"This is a basis for termination generally recognised in law as being adequate, and Mr Gama’s employment contract does not detract from this and, in fact, gives recognition to this,” the opinion states.

Read: The allegations against Gama

The lawyers also pointed out “that, although we understand from our instructions that it is envisaged that any termination of Mr Gama’s employment contract would be on six months’ notice, it is Transnet’s case that it is entitled to terminate Mr Gama’s employment summarily”.

Cassim and Itzkin added that their opinion was “informed by the seriousness of the misconduct alleged to have been committed” and “that summary dismissal is permissible in certain circumstances”.

Gama and Transnet Engineering chief executive Thamsanqa Jiyane, as well as former supply chain manager Lindiwe Mdletshe, Transnet Group Treasury official Danie Smit and executive finance manager Yousuf Laher were implicated in the locomotive deal.

The five have all denied wrongdoing.

Corporate law firms Mncedisi Ndlovu & Sedumedi Attorneys and Werksmans Attorneys found that the cost of the tender to build the 1 064 locomotives rocketed from R38.6 billion to R54 billion.

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