Suspended Transnet Engineering chief executive Thamsanqa Jiyane’s future hangs in the balance after he was found guilty late last month of three out of nine counts relating to five disciplinary charges.
Jiyane was charged in connection with awarding a tender for 1 064 locomotives from which Gupta-linked companies allegedly received R5 billion in kickbacks.
Jiyane was charged following an investigation by law firm Mncedisi Ndlovu & Sedumedi Attorneys.
Now he has vowed to appeal the findings of the chairperson of the disciplinary hearing, Advocate Kameshni Pillay SC, and head to the state capture commission to “correct” Transnet’s testimony.
A copy of Pillay’s judgment, dated June 27, which City Press obtained, shows that the first charge against Jiyane related to the tender for 95 locomotives.
He was accused of waiving the BEE requirement.
He wrote a memorandum recommending that the requirement be waived, which was later signed by former Transnet executives Brian Molefe and Siyabonga Gama.
Pillay found that Jiyane “breached his contractual and/or statutory fiduciary duties by failing to ensure that Transnet procured lawfully and in its best interests”.
Regarding the acquisition of the 1 064 locomotives, Jiyane was charged with four counts, including recommending to the company’s board acquisition and disposal committee that the tender be split between four companies, which increased the cost by R2.7 billion.
Pillay found Jiyane not guilty of this charge.
Transnet withdrew the second count, and Jiyane was found not guilty on count three, which was failing to ensure that the post-tender negotiations complied with Transnet’s Procurement Procedure Manual.
The fourth count related to Jiyane’s alleged failure to ensure the disqualification of China North Rail, Bombardier Transportation SA and China South Rail (CSR) for their noncompliance with local content thresholds.
He was found not guilty on this count.
The third charge Jiyane faced related to the confinement of 100 Class 20E locomotives to CSR.
He was charged with failing to convey a warning from a colleague about the risks of switching the confinement from Mitsui to CSR, which caused the costs to increase.
Pillay found Transnet had failed to establish whether Jiyane was obliged to pass on the warning.
However, on charge 3A, Jiyane was found guilty of instructing that Transnet pay CSR R1.3 million when the company failed to provide the required guarantee.
Jiyane conceded this at his hearing.
Pillay found Jiyane guilty of the fourth charge of forwarding, or causing to be forwarded, an invoice for R11.4 million from Trillian Capital Partners to former Transnet chief financial officer Garry Pita.
But Trillian hadn’t done any work for the money, and Pillay found that Jiyane “ought reasonably to have known that there was no contract in place with [Trillian] and that there was thus no lawful basis on which to pay them”.
Pillay found Jiyane not guilty of the fifth charge which related to the 1 064 locomotive tender for the increase in cost from R38.6 million to R54 million.
Molefe concluded the contracts with the four locomotives’ manufacturers and a week later, he, then chief financial officer Anoj Singh and Gama recommended that the board ratify the increase.
Transnet charged that Jiyane did nothing to bring the 41.1% hike in the project’s cost to the attention of then public enterprises minister Malusi Gigaba.
“There was a dearth of evidence on this charge. I agree with the submissions made on behalf of Jiyane that Transnet failed to demonstrate that he was under obligation to advise the minister or the South African public of the 41.1% increase,” Pillay said.
No sanction for Jiyane has yet been recommended.
But Jiyane said through his lawyers that he would pursue all his options to challenge the findings “once the process has been finalised, given that there are many inaccuracies, oversights and, in particular, evidence that has not been taken into account”.
“Such process will include any internal appeal processes and/or reviews to the appropriate high court,” he said.
“Most importantly, I have critical evidence that I intend to ventilate at the Zondo state capture commission to demonstrate that factually incorrect and misleading evidence has been presented to the commission with regards to the Transnet locomotive transactions.
“I have requested Transnet’s assistance to enable me to provide the commission with all relevant information – as I am currently on suspension – and I am waiting for Transnet to finalise its internal processes for me to have access to critical documents which will provide the commission with a comprehensive picture.”
Jiyane said he was surprised that City Press was informed of the outcome of the disciplinary process, which he said was “sub judice and both parties are in the process of making submissions to the chairperson hence the matter has not been finalised”.
No sanction has yet been recommended against him.
“Of the nine charges/counts brought by Transnet against me, I was exonerated on six. The three charges of which I was found guilty relate to incidents, such as alleged breaches of my fiduciary duties. There is no finding whatsoever of corruption or dishonesty against me,” Jiyane said.
Transnet declined to comment on internal disciplinary matters.