/ 27 November 2017

Acsa lawyer seeks board’s removal for failure to discipline CEO

In September this year the Supreme Court of Appeal ordered Acsa to honour a much-contested 2009 tender award to Big Five Duty Free
In September this year the Supreme Court of Appeal ordered Acsa to honour a much-contested 2009 tender award to Big Five Duty Free

The suspended group legal counsel for the Airports Company (Acsa) has asked the high court in Pretoria to remove Acsa’s non-executive directors for failing to take action against its CEO.

But first he wants Acsa to explain to the government just why that CEO has not faced disciplinary action on a list of allegations that include undermining a corruption investigation.

Acsa has since February failed to act on its own decision to investigate its CEO Bongani Maseko, says suspended Acsa in-house lawyer Bonginkosi Mfusi in papers lodged with the high court. That amounts to a failure of their duty by the non-executive directors charged with overseeing Acsa, he says.

Mfusi is bringing the application in his personal capacity. He was suspended as in-house lawyer for Acsa in September, and currently faces a disciplinary inquiry himself.

That suspension was an attempt by Maseko “to divert attention” from his own costly mistakes and to “victimise” him, says Mfusi.

In September this year the Supreme Court of Appeal ordered Acsa to honour a much-contested 2009 tender award to Big Five Duty Free, a tenant at its three international airports. Mfusi calculated that the legal loss would see Big Five pay R234-million in rent — instead of a R400-million out-of-court settlement he says Maseko refused.

Mfusi was suspended on complaints later detailed as not considering an appeal to that SCA judgment, then making an “indirect attack” on Maseko by describing the matter as a lesson in settling disputes out of court. This, according to a charge sheet, Mfusi followed up with a more “direct attack” in a subsequent letter to the minister of transport.

Mfusi is challenging his suspension in the labour court.

Maseko’s disciplinary charge sheet — despite which he remains at work — lists payments he was responsible for totalling R20.5-million outside of tender rules, some services that were “for your personal benefit”. He was also said to have “attempted to undermine” efforts to investigate allegations relating to corruption.

Criminal charges relating to Maseko’s alleged breaches are still under investigation, Mfusi says. Yet Acsa “has not given effect to its board resolution” in February to suspend him.

This, Mfusi insists, warrant an explanation to the government that owns Acsa and the removal of its directors under both public finance management law and the Companies Act.

Mfusi has not argued that his application is urgent, and it is only likely to be heard in March or beyond.