Did Judge Jerome Ngwenya condone suspect business practices? Evidence presented by him suggests he did.
A high court judge knew about what he took to be an irregular attempt by his own company to win an airports tender — but there is no evidence he tried to stop it.
Until he ascended the Cape Bench in 2000, Judge Jerome Ngwenya was a shareholder in Khuselani Security and Risk Management, controversially axed late last year from its R99-million contract to provide security at South Africa’s main airports. The company is now subject to a multimillion-rand tax investigation in which the judge’s brother, Khuselani CEO Noel Ngwenya, has been arrested.
As if this was not enough to worry the judge, there have also been questions about his three-year business relationship, starting in 1996, with Vuyo Ndzeku, a fugitive from justice at the time. Ndzeku failed to report to jail in 1995 when he lost an appeal on a drugs trade conviction. He was arrested and served his sentence in 2000.
The controversy has threatened to harm Ngwenya’s standing as a judge. Earlier this month parties to a civil suit asked that he recuse himself, arguing he was not fit to preside. Judge Ngwenya rejected their plea.
Judge Ngwenya and Ndzeku were partners in three companies: Khuselani, Swissport South Africa and Zwelibanzi. Swissport, a ramp-handling company, handles baggage, cargo and aircraft at South African airports. It was started in January 1998 as a joint venture between the Swissair group and Zwelibanzi.
When Swissport South Africa was formed, the board consisted of Swiss and local representatives, with Judge Ngwenya as chair and Ndzeku an alternate director. The Swiss brought money and experience to the deal while the Zwelibanzi component, represented by Judge Ngwenya and Ndzeku, brought empowerment credentials and connections.
Before it could start operating, Swissport needed a ramp-handling licence from Airports Company South Africa (Acsa). During March 1998 Acsa began a tender process to award these licences. But the Swiss, it seems, were impatient and wanted early reassurance Swissport would not be left out.
Earlier this month, in an attempt to set the record straight on his earlier business relationship with Ndzeku, Judge Ngwenya faxed the Mail & Guardian a letter he wrote to his Swiss partners in August 1998. The letter informed the Swiss that the relationship with Ndzeku was being terminated, among other reasons because Ndzeku was a fugitive from justice ”and has failed to remedy the situation”.
But the same letter also sheds light on an extraordinary attempt to obtain a guarantee that Swissport would get its ramp-handling licence — and Judge Ngwenya’s knowledge of this attempt.
Judge Ngwenya wrote to his Swiss partners: ”During January 1998, [Ndzeku] claimed to all of us that he was able to secure a letter from the minister of transport in terms of which Swissport South Africa was guaranteed a licence. Against this he demanded a sum of R10 000 claiming that same was payment to the officials in the ministers’ office.
”On the contrary the truth is that the letter is a product of fraud and the minister bears no knowledge thereof. The money advanced to Mr Ndzeku was pocketed by him.”
Judge Ngwenya’s letter also claimed that Ndzeku had ”demanded a sum of R6 000 from Swissport South Africa to compensate some officials in the deputy president’s office”.
If indeed there was a plan to get ministerial assurance of a licence while an open tender process was yet to follow; and if indeed ”compensation” was paid, it would have been corruption pure and simple. That raises serious questions about the conduct of Ndzeku, Judge Ngwenya and Swissport as a whole.
Ndzeku denies the role ascribed to him by Judge Ngwenya, saying there ”was no letter” from the minister and that he had neither bribed officials nor pocketed cash provided for this purpose. ”If both allegations are true, give me the facts.”
But even if the irregular attempt to gain a licence took place, Judge Ngwenya seems to have had no problem with it. His letter to the Swiss reflects no outrage at the plan itself — only at what he claimed was Ndzeku’s misrepresentation. There is no evidence that Judge Ngwenya did anything to stop what he thought Ndzeku was doing — strange behaviour for a man who was appointed a judge only two years later. He has declined to answer questions.
- Acsa concluded its tender process in October 1998 but Swissport was not among the companies awarded licences. After court and arbitration proceedings brought by Swissport, Acsa overturned that decision and awarded a licence to a newly constituted Swissport. The company is under new ownership.