South Africa

HIGH COURT JUDGMENT

Mbalula’s appointment of Prasa administrator declared unlawful

Mbalula’s appointment of Prasa administrator declared unlawful
Activists from #UniteBehind join a train ride with Minister of Transport Fikile Mbalula (not pictured) on 25 June 2019. (Photo: GroundUp / Ashraf Hendricks)

Transport Minister Fikile Mbalula’s appointment of Bongisizwe Mpondo as the administrator of the Passenger Rail Agency of South Africa was declared unlawful and set aside on Tuesday.

On Tuesday 25 August in the Western Cape High Court, Judge Nathan Erasmus set aside the appointment of Bongisizwe Mpondo as the administrator of the Passenger Rail Agency of South Africa (Prasa). The application was brought by activist coalition #UniteBehind, who said there was no legal provision for the appointment of an administrator by a minister under the laws that govern Prasa. 

According to Tuesday’s judgment, Mbalula must appoint a board of control within 60 days and the National Treasury, which is listed as a respondent in the case, is directed to approve or instruct another functionary of a public enterprise to be Prasa’s accounting authority. 

In March, the activist coalition launched a court application to overturn Mpondo’s appointment. In #UniteBehind’s application before the court, the coalition’s organising secretariat, Zackie Achmat, said there is no provision in the Legal Succession Act – which governs Prasa – that empowers a minister to appoint an administrator in the place of a board of control. Prasa can have an administrator through an act of Parliament or through the judiciary.

The two parties – the coalition and the legal representatives of Mbalula – had been asked to settle in May by Erasmus, but this did not happen. 

On Tuesday, Erasmus ruled in the coalition’s favour and set aside Mpondo’s appointment.

The ruling, the coalition said in a statement, “paves way for the immediate appointment of a permanent and competent Board of Control to stabilize Prasa and begin the process of fixing our trains. #UniteBehind has been calling for its appointment for the past two years.” 

The coalition said the judgment gave Prasa a chance to “return to legality and avoid the risks posed by decisions that do not follow the provisions of the law. The tragic irony of this is that the ongoing hearings at the Zondo Commission, on Prasa and other state entities, have shown how much the disregard of the law costs the public.”

At the Zondo Commission of Inquiry into Allegations of State Capture, there has been evidence of how tenders were diverted to company executives amid infighting between boards and management, all while infrastructure has been destroyed and commuters left without a safe and reliable form of public transport. More testimony on Prasa is expected in the next few weeks, with Achmat, former interim chairpersons of the board Khanyisile Kweyama and Judge Tintswalo Annah Nana Makhubele as well as former group CEO Lucky Montana still due to testify. 

Erasmus ruled that the minister of transport should carry the costs of the application. However, he ruled that the judgment against Mpondo’s appointment be suspended until the Treasury appoints a functionary as an accounting authority.

“The litigation, where there should not be any, comes at a cost to public money,” said #UniteBehind. “It remains our considered view that individual public officials should be held directly liable for legal costs… taxpayers’ money should not continue to be used in paying for pointless litigation.” 

In his response, Mbalula said during his Level 2 update on Tuesday evening, “I note today’s order by the Western Cape High Court. I await a full written judgment and would peruse same, apply my mind and make a pronouncement.” 

Addressing journalists, Mbalula said he has no intention to undermine the law. “My intention is to get things going at Prasa,” said the minister. “The process of the board is under way”. DM

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