In 2012, public protector Thuli Madonsela investigated 37 complaints against the state rail agency Prasa, its management and group chief executive officer Lucky Montana.
Madonsela released her damning report titled ‘Derailed’ in August last year, but now Montana wants the Pretoria High Court to review and set aside her report, claiming it lacked any legal basis and its findings were not supported by substantial evidence.
He argues there were glaring discrepancies pertaining to the findings Madonsela made in her provisional report and the final report, without any explanation, as required by the law.
Below we highlighted 10 of the public protector’s findings and Montana’s arguments in his affidavit.
Original complaint: Prasa improperly incurred an over expenditure of R2.2 billion on Prasa’s operations budget in 2009/2010 financial year.
Public protector Madonsela’s report: In her provisional report, Mandosela found no evidence indicating that Prasa exceeded its budget by R2.2 billion, but by R554 092 766.00. In the final report, the Public Protector concluded that Prasa exceeded its budget by R 523 792 767.00, less than what her provisional report had found.
Montana’s response in his affadavit: These findings don’t make mathematical sense and ignored the fact that the Public Finance Management Act (PFMA) does address ‘approval of over expenditure’ in relation to Prasa. Montana says Audited financial statements of Prasa within that period did not reflect expenditure which was not authorised by the board.
Complaint: Prasa incurred rental for a building in Jorissen Street, Braamfontein, Johannesburg after vacating it 24 months before the expiry date of its lease resulting in fruitless and wasteful expenditure.
PP report: Madonsela found that the actions of Prasa management and its board regarding the move to a new building (Umjantshi House) and payment of vacant premises in Braamfontein, for about 20 months and failing to mitigate the loss by renting the building, amounted to fruitless and wasteful expenditure.
Montana: Madonsela’s report failed to take into consideration that Prasa’s group ICT functions, which are very important to supporting Prasa as a business, continued to occupy Jorissen Place even after Umjantshi House was procured. Prasa therefore submitted that its actions were reasonable in the circumstances.
PP report: Mandosela found that Prasa’s termination of the contracts and irregular replacements constituted maladministration, abuse of power and improper conduct. Montana’s conduct with regard to the termination of the contracts the cleaning companies, 7 in total, was inconsistent with the provision of Prasa Supplier Chain Management (SCM) policy.
Montana: The public protector is desperate to attribute blame and personal liability to me, when in actual fact the contracts were terminated by Prasa Cres, a division of Prasa after a surprise visit to Park Station where general poor condition in cleanliness, and lack of hygiene meant that contracted cleaning companies failed to deliver on their contract obligations.
Complaint: Prasa through its GCEO improperly appointed security companies, Sidas Security to replace National Force Security without a proper tender process.
PP report: Madonsela found that Sidas Security was improperly appointed to replace National Force Security, but no evidence could be found that the alleged improper appointment was done on the instructions of Lucky Montana.
Montana: Sidas was appointed on an “emergency basis” by Tshwane regional Metrorail, a division of Prasa. It was Prasa’s management team which discovered the irregular appointment, terminated the contract and took necessary action against the relevant staff members.
Complaint: Prasa improperly appointed a media company owned by former Prasa employee and ANC bigwig, Pule Mabe to produce Hambanathi/Kwela magazine for R30 million over 5 years.
PP report: Mandonsela found that Prasa’s appointment of KG media for the production of Hambanathi magazine without a competitive and transparent process was in violation of Prasa’s SCM policy.
Montana: Pule Mabe, owner of KG media presented the ‘unique’ concept of Hambanathi to Prasa. Then Prasa acted within its right in terms of its SCM policy which allows for single sourcing and confinement as the concept belonged to Pule Mabe.
Complaint: Prasa improperly awarded a tender to Umjanji Consortium for the media, advertising and broadcasting concession agreement.
PP report: in her provisional report, Madonsela found that the appointment of Umjanji Consortium was irregular and amounted to maladministration. While in her final report, Umjanji Consortium was improperly awarded a tender because it was formed after the closing date for submissions of tenders, and contravened Prasa’s SCM policies.
Montana: The tender invited media companies to bid for the right to source and manage advertisers across the Prasa group, in terms of established Prasa SCM policy prescripts. Since the inception of the complaint the matter was before the Court and sub judice; the Public Protector does not have the right to investigate such matters.
Complaint: Prasa group CEO Lucky Montana allegedly improperly appointed Edwin Lekota on a R10-million tender for the development of a contingency emergency preparedness programme for Metrorail.
PP report: Prasa and its group CEO were found to have acted improperly by awarding the tender to Edwin Lekota for the ‘emergency preparedness programme’ for Metrorail.
Montana: Prasa does not require a tender process when appointing any board of inquiry and the work amounted to about R4.5 million. Rail technical experts were appointed and not just Lekota to investigate the root cause of trains failures after the burning of six trains in Pretoria.
Complaint: Prasa group CEO Lucky Montana improperly terminated the contracts of executives resulting in fruitless and wasteful expenditure estimated at R 5-million. Montana also improperly suspended employees resulting in labour dispute settlements amounting to R3.35-million, constituting fruitless and wasteful expenditure.
PP report: Madonsela found that Prasa group CEO Lucky Montana suspended employees without following proper disciplinary procedures and he ignored HR policy of Prasa. The documents relating to suspension were not provided to determine if the suspensions amounted to fruitless and wasteful expenditure.
Montana: Mandonsela ignored submissions made on suspended employees, and she also failed to review the issue on a case by case analysis. In each case the immediate supervisors were consulted and each case was determined on its merit, the Prasa board was also consulted on the decisions.
Complaint: Did Prasa group CEO improperly take a blue train to Cape Town together with ten females companions in September 2009, retiring on SAA flight at an estimated cost of R170 000, amounting to fruitless and wasteful expenditure.
PP report: Mandonsela’s provisional report found that the group CEO had improperly taken the trip and that it amounted to fruitless and wasteful expenditure.
Montana: Had Madonsela considered submissions in response to the complaint, she would have found that there was never such a trip. The trip was in fact a different one on a Premier Class train with different costs and travel expenses.
Complaint: Prasa allegedly failed to deal with staff members involved in fraudulent electronic funds transfer to an amount of R8.1 million from Metrorail Durban and Tshwane Regions bank account.
PP report: Madonsela found that group CEO Lucky Montana failed to take disciplinary steps against employees involved.
Montana response: Prasa did take disciplinary action against employees with a final written warning issued against one of the employees. Madonsela did not take into consideration Prasa’s responses in her findings, and that makes her decision irrational.