Johannesburg - Suspended public enterprises director-general Kgathatso Tlhakudi this week submitted a protected disclosure letter to the speaker of Parliament and President Cyril Ramaphosa, asking them to investigate minister Pravin Gordhan for corruption.
Tlhakudi, in his letter to Nosiviwe Maposa-Nqakula and the president, seen by Sunday Independent, maintains that Gordhan suspended him when he “started seeing me as an obstacle to the programme that he was embarking on of disposing of state-owned enterprises (SOE) and their assets in a fraudulent and corrupt manner.”
Tlhakudi also claims that on Thursday, he and his lawyers were denied parking and entrance at the state building where they were supposed to attend his disciplinary hearing.
He also claims that when his lawyer phoned to ask for parking and report entrance problems, he was “rudely scolded and they dropped the phone on him.”
“The denial of entry was done in a manner that encroaches on our rights to dignity,” Tlhakudi wrote in his protected disclosure letter.
He added that this conduct “shows the minister is hell-bent by all means to exclude me from the very process that seeks to hear the charges of misconduct against myself.”
After the alleged lockout of Tlhakudi and his legal team on Thursday, his disciplinary hearing resumed on Friday. The majority of the day was spent arguing whether the chairperson, Advocate Rataga Ramawele SC, has jurisdiction over the matter after he was made aware that the DG submitted the protected disclosure letter to the president and Speaker of Parliament.
Advocate Mahlape Sello, who appeared on behalf of the president, strongly argued that Tlhakudi’s protected disclosure submission must be dismissed because it was filed on Thursday this week long after he was suspended and charged.
But Tlhakudi’s lawyer, Advocate Macgregor Kufa, argued that his client had first submitted the protected disclosure in May when he had several meetings with Baleni.
Whenever there is a disciplinary hearing and the inquiry established that the employee was suspended after submitting a protected disclosure, the matter is then referred to an arbitrator at the bargaining council.
Advocate Ramawele is expected to make a ruling about the matter tomorrow (Monday) morning.
In the letter, the DG maintained that the bone of contention was how “the sale of South African Airways (SAA) had been processed.”
“The SAA transaction was, now in my considered view, a template for how the rest of the SOE portfolio was intended to be disposed to the detriment of the South African citizens, who are the ultimate shareholder of the state-owned assets,” the letter states.
Tlhakudi added that the sale of SAA was “ill-conceived” and also “an opportunity to benefit a few privileged individuals who were favoured by the minister in an irregular manner.”
Tlhakudi claims that before penning his protected disclosure letter, he also communicated the facts in “informal meetings” with the DG in Ramaphosa’s office, Phindile Baleni, in May this year, long before he was suspended or charged with misconduct.
The Department of public enterprises (DPE) signed the purchase agreement to sell SAA to Takatso Consortium for a 51% stake in the airline in February this year. The DG last month filed an affidavit in the labour court in Pretoria claiming that his suspension was unlawful and unconstitutional.
He claims he was forced to do a “protected disclosure due to the delinquent behaviour of minister Gordhan” on the issues surrounding the SAA business rescue matter.
Tlhakudi denied the department’s claim that he was part of the process that disposed of 51% of the government’s shareholding in SAA to a strategic equity partner (SEP) last year. The department had earlier issued a statement, shortly after he was suspended, claiming that Tlhakudi was part of the process.
Tlhakudi claims Gordhan excluded him in a crucial SAA business rescue meeting in December 2019 “in a deliberate and suspicious manner” and replaced him with his subordinate, Advocate Melanchton Makobe, even though he arrived earlier at the venue “in anticipation of the meeting.”
He added that his “grave sin” was to question SAA directors he found at the venue, “on the board’s recommendation to place the business under rescue when the path to the recapitalisation of the airline and its restructuring had been clearly set out and if implemented, had cost much less than the business rescue, sadly the prognosis is good about the minister was then to embark on.”
The DG said the department eventually signed the deal with Takatso even though they “were not on the shortlist” of suitable strategic equity partners. Tlhakudi further stated that Gordhan decided around the first quarter of 2021 “that I should not lead the SAA SEP transition discussion and brought in Nosipho Damasane, the advisor to the minister, and Senge Mxenge, who was a deputy director level secondment from Investec, later given a short contract in the department to sanitise his unlawful and irregular employment.”
“This team would report directly to the minister and I would occasionally be invited to meetings where they would give feedback.”
Tlhakudi added that “the introduction of Takatso was problematic to me on another level.”
Tlhakudi said he raised his concern after he found out that there was something odd with the Share Sales and Purchase Agreement (SPA) “specifically the undervaluation of SAA assets, the unconscionable purchase price and the unfair distribution of the transaction risk to the state.”
He added after the signing of the SPA in March 2022, the department was unable to provide the R900-million that was supposed to go into an escrow account.
“This means that the SPA was signed without confirming the availability of funding to cover the commitments made, which is a violation of the PFMA. I had raised these concerns in a meeting and in writing to the negotiating team and impressed upon the perception in the public arena that the transaction will be received. In the meeting, the minister tried to silence me when he raised his concerns, as it was clear that the DPE negotiating team had informed him of my position. I had stood my ground as I believe that my position was correct.”
Tlhakudi believes that it was possibly his position on the matter that “might have irked minister Gordhan and made him prefer the charges of misconduct against me, it was clear that minister Gordhan was using back channels to assert his authority. The litany of charges (against me) is not what the real issues are.”
The sale and purchase agreement was signed by acting DG Jacky Molisane on February 22 this year while Tlhakudi was on sick leave.
Tlhakudi says “the use of friends and minister’s connections” in the transaction undermine the due process also envisaged by the PFMA.
“There would be no transparency or accountability.”
He added that Gordhan’s conduct “is riddled with improprieties in violation of his constitutional duties to observe administrative justice and legality, which succumbs to the constitution.”
Tlhakudi was suspended with pay in June after Public Service Commission received an anonymous call reporting the DG for alleged “unethical behaviour.”
The caller claimed Tlhakudi recommended the appointment of a friend, who didn’t have the required experience and qualifications, to a senior position in the department. The caller also reportedly claimed that Tlhakudi rejected a suitable candidate recommended by the interviewing panel.
Tlhakudi said Gordhan called him to a meeting on May 3, 2022, after the Public Service Commission brought the matter to his attention, directed him to go on special leave and assured him that the matter would be dealt with within 10 days.
Tlhakudi said Gordhan’s “conduct was intended to deceive and ensure that proper procedures are not followed in dealing with my matter.”
“The conduct of the minister is reprehensible and undermines the constitution. The charges are easily gleaned as trumped up because I had failed to assist the corrupt intentions of the minister.”
Ramaphosa eventually suspended Tlhakudi on June 14 and delegated powers to justice minister Ronald Lamola to start the disciplinary process against the DG. The labour court on October 14 dismissed Tlhakudi’s application with cost.
Judge Andre van Niekerk, in his judgement, said Tlhakudi’s attack on Gordhan “by and large compromises strong and unsubstantiated allegations.”
Gordhan’s spokesperson, Richard Mantu, in a press statement said the “government is vindicated by the judgement.”
“This is confirmation that justice prevails even when people in a position of authority and accountability threaten the right of others through unsubstantiated and untested pronouncements,” the statement reads.
Tlhakudi has now appealed the judgement and taken the matter to the Constitutional Court because he believes Judge Van Niekerk has erred.