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The intense battle between Transnet chief executive Siyabonga Gama and the state’s rail and freight company board is far from over.
On Friday, Labour Court Judge Graham Moshoana ruled that he could not stop the board from dismissing Gama as chief executive, but ordered that the matter be taken on arbitration.
However, City Press understands the board has no intention of going to arbitration and that board members held a round-robin vote late on Friday to press ahead with the decision to fire Gama.
A source, who is aware of the late votes, yesterday said a decision would soon be communicated to Gama on his future at the parastatal.
Following the ruling on Friday, Gama said he had “no choice but to approach the labour court to stop Transnet from terminating my employment contract in breach of its terms and provisions. We have today succeeded in persuading Transnet that they must abide by my employment contract and the Transnet disciplinary code in my case, and that the parties must refer any dispute to an arbitrator”.
Gama had approached the labour court to seek an interdict against the Transnet board from acting on its intention to fire him.
READ: Gama heads to court to fight
In his ruling, Moshoana said “the applicant has no right to not to be dismissed. The right to be dismissed after following the procedure set out... has not been made clear. The parties are in dispute and their dispute in that regard can only be resolved by an arbiter as they agreed in 2016. For those reasons, I am unable to interdict the respondent.”
Moshoana agreed with Gama, saying there was urgency to hear the matter and that the “application remains stayed, pending a referral to arbitration”.
Gama had asked the court to interdict the board from firing him and he also asked the court to declare his “termination notice null and void”.
The termination notice was sent on October 1. It followed a letter of intent to suspend, which the board had sent to Gama on August 15.
READ: D-Day for Gama as Transnet board digs in its heels
In his court papers, Gama quotes the board’s letter of intent to fire him – 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 wrote.
The Transnet board has accused Gama 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’s change of action – from suspension to termination – followed a legal opinion sought from Mncedisi Ndlovu & Sedumedi (MNS) Attorneys and two labour lawyers, Nazeer Cassim SC and Riaz Itzkin, which 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.
Gama and several executives of Transnet were implicated in misconduct in the awarding of the highly inflated locomotive deal. They have all denied wrongdoing.
The MNS report found that the cost of the tender to build the 1 064 locomotives rocketed from R38.6 billion to R54 billion.
The report found that the R15.4 billion increase in the cost of the tender “appears inexplicable, unreasonable and excessive”.
