Tembeka Ngcukaitobi says Siyabonga Gama claims he is innocent. Processes to find out if he is have not taken place Photo: Delwyn Verasamy
Axed Transnet chief executive Siyabonga Gama on Thursday brought urgent contempt of court proceedings against the state entity, asking board members to say why they should not be imprisoned for 90 days or fined.
In the Labour Court, Gama’s counsel Tembeka Ngcukaitobi argued that Judge Graham Moshoana’s judgment last week — in which he ordered that Gama’s disciplinary dispute with the board should go to arbitration — should be interpreted to mean that the status quo at the time of the judgment must hold until the arbitration process is over.
Moshoane’s judgment was handed down on Friday. Gama was fired on Sunday, despite the court order.
In court on Thursday, Transnet argued that the court order did not prevent the board from terminating Gama’s employment and for this reason the board was not in contempt.
“In any event the board has not disregarded the order deliberately or in bad faith. It issued the termination notice after taking advice from two senior counsel. Both advised that the board was entitled to terminate,” reads an affidavit from Transnet chairperson Popo Molefe.
Ngcukaitobi said his client’s employment was terminated because of misconduct, but he was not given a hearing before Transnet concluded that there was a loss of trust.
“It is in bad faith to tell an employee that they are guilty of misconduct and then when you think that it will take too long to fire him, then you say there is a breakdown of trust,” he said.
Gama is implicated in investigation reports that suggest that he may have acted unlawfully in the purchase of more than 1 000 trains costing about R54-billion.
There are also allegations of kickbacks to the Gupta family and associates.
“We believe that he, Mr [Anoj] Singh and Regiments Capital colluded to procure an undue overpayment of R166-million from Transnet to Regiments. He [Gama] is going to be sued for the repayment of that amount. There will be litigation between him and Transnet,” said Transnet’s counsel, Tim Bruinders SC.
Bruinders added that Gama was “living in Alice in Wonderland” because in this financial year alone there was irregular expenditure of R8.1-billion.
Gama is being paid six months’ notice pay. Transnet has agreed to an expedited arbitration should he wish to refer the termination notice to arbitration.
Transnet argued that Gama could ask for reinstatement at the arbitration, but the arbiter would not award that remedy because of the breakdown of trust and confidence.
“But the arbitrator can award him contractual damages, including his remuneration and benefits for the remainder of his fixed-term employment contract,” reads Molefe’s affidavit.
Ngcukaitobi argued that the reason the board wanted him gone was not a breakdown in the relationship but misconduct, and Transnet should go through the disciplinary process to determine his guilt and the breakdown in trust.
“Mr Gama protests his innocence; he could be guilty, but the process has not taken place to find out if he is,” said Ngcukaitobi.
Judgment was reserved.