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The battle between the Transnet board and its axed group chief executive, Siyabonga Gama, is on.
In the latest turn of events, Transnet is expected to issue summons against Gama, demanding that he repay the company an amount of R166 million.
The details of the lawsuit are contained in a replying affidavit by Transnet board chairperson Popo Molefe filed in the labour court this week.
Molefe was replying to an urgent interdict brought by Gama in which he asked the court to set aside his dismissal and declare the board in contempt of court of an earlier ruling that said the parties should resolve their dispute at the labour court.
Molefe told the court that the relationship between Molefe and the board had broken down irretrievably.
“It would be extremely undesirable for the board to have the man at helm of Transnet whom it is suing for R166 million... he did not protect Transnet’s interests in the 1064 Locomotives Tender,” the papers read.
Molefe added: “The board will this week resolve to issue summons against Mr Gama for the repayment of an overpayment of R166 million (excluding VAT) made to Regiments Capital. Mr Gama recommended, solicited, approved and colluded in procuring the overpayment when he was the acting GCE (Group Chief Executive).”
The board chairperson said a letter of demand was served to Gama’s lawyers earlier this month.
In the urgent court interdict heard on Thursday, Gama accused the board of acting in contempt of court as opposing parties were ordered to resolve the dispute at arbitration.
He asked the court to find the board members in contempt of the earlier court ruling, and asked that each be found guilty and sentenced to 90 days suspended imprisonment and to personally pay costs for his court application.
Gama approached the Labour Court last week seeking an interdict against the Transnet board from acting on its intention to fire him.
The board decided to fire him on Sunday.
In his court papers, Gama quoted 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, the advocates argued 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”.
