Top law firm Mncedisi Ndlovu & Sedumedi Attorneys (MNS), which is investigating state capture at Transnet, has been linked to alleged kickbacks involving a former board member of the parastatal in an audio recording obtained by City Press this week.
The 2018 recording is of a conversation between fired Transnet board member Seth Radebe and MNS chairperson Mncedisi Ndlovu.
It was made when Radebe was fighting his axing from the board by Public Enterprises Minister Pravin Gordhan – a case Radebe lost in court.
The recording appears to be of a suspicious conversation that casts doubt on the lawfulness of appointing MNS to assist Transnet with the investigation and prosecution of those linked to state capture.
The discussion also deals with an unexplained payment of R2.2 million by MNS to Radebe, who allegedly initiated the appointment of MNS at the parastatal.
The recording comes just weeks after reports emerged that law enforcement agencies were ready to start prosecuting those implicated in state capture at the parastatal.
Several investigations by MNS have led to the sacking and suspension of a number of Transnet executives, including former chief executive officer (CEO) Siyabonga Gama, former chief financial officer Anoj Singh, former head of freight rail Ravi Nair, and former senior managers Lindiwe Mdletshe and Thamsanqa Jiyane.
The investigations form a critical part of the much-anticipated state capture prosecutions, and any indications that the law firm’s work may be tainted could reverse progress in bringing those accused of corruption to book.
Radebe told City Press on Friday that he was “not aware” of any recording or any conversation between him and Ndlovu.
“I will be unable to confirm anything as I have no record of such, and I have moved on from Transnet as you may be aware that I have duly lost my case in court,” he said.
But after listening to the recording, Radebe yesterday disputed its authenticity “as it appears to be doctored and tampered with to fit a certain narrative”.
“I am not even sure that the voice is mine in a few instances. I had met Ndlovu on a few occasions to discuss various issues pertaining to my work then ... but the recording herewith is totally a resemblance of fake news.”
"The fact that I continued with my case [against Gordhan] should be an indication that I am incorruptible. I have never received any money from MNS," he said.
On Friday, Ndlovu initially said: “I have never had any discussion with [Radebe] on the issues that you have mentioned.”
He later disputed “the existence of such a discussion”, after listening to the audio recording.
But, yesterday afternoon, shortly before going to print, City Press received a letter from MNS in which Ndlovu said that, after listening and reviewing the recording, he “disputes the authenticity of some parts of the alleged audio recording”.
He confirmed meeting Radebe on various occasions while the latter was disputing his removal from Transnet’s board, but he disputed any “conclusions and insinuations” of wrongdoing.
Ndlovu said his relationship with Radebe arose out of professional work carried out at Transnet.
Part of the letter sent to City Press from MNS managing partner Tshiamo Sedumedi reads as follows: “After his removal from Transnet, our client and Radebe explored other business initiatives outside of Transnet that they might jointly pursue. It is on the basis of this relationship that Radebe was able to solicit our client’s views on the litigation that Radebe had brought to challenge his removal from the Transnet board.”
Radebe was appointed as a Transnet board member in December 2017 by former public enterprises minister Lynne Brown, and was then made chairperson of the board’s audit committee.
Gordhan terminated his services after accusing the board of not acting on the recommendations of a report by Werksmans Attorneys that certain executives be charged for their role in the controversial 1 064 locomotive tender – from which Gupta family-linked businesses scored billions of rands in kickbacks.
The value of the contract to supply the locomotives rose from R38 billion to R54.5 billion.
Radebe had said that the Werksmans report was incomplete, and refused to act on its recommendations – including referring it to law enforcement agencies. Instead, he brought in MNS to “finalise outstanding issues” in Werksmans’ scope of work.
The recorded meeting precedes September 2018, when Radebe lost his case.
From the recording, it is evident that the speakers had met on a number of occasions and also had an “original discussion” about MNS allegedly paying certain amounts to Radebe and about allegedly appointing sub-contractors preferred by him, while he was a board member.
In the recording, the speaker identified as Radebe informs the speaker identified as Ndlovu that in his affidavit in the legal battle of the sacking of the board, Gordhan mentioned that he was not happy with MNS’ work.
During the conversation, Radebe also ostensibly warns Ndlovu that the MNS report on Transnet could be taken on review by those implicated, including Gama.
“If anyone wants to take us on review, we are ready,” says Ndlovu. “Our task is to assess whether there was compliance with the law. Our report is on the law and we are not saying Mr So-and-so stole money.”
Ndlovu says MNS does not need Radebe’s protection and also warns him against trying to “dictate” the work of MNS.
“Just because you appointed us, you think you have got to control our lives?”
Radebe is adamant that the report will be found wanting because it has implicated people who were not given a right of reply.
In the recording, Ndlovu also complains about the subcontractors that Radebe had “given” to MNS. He says MNS does not agree with their fees and “we cannot be spectators when they overcharge”.
Radebe then says he also wants to discuss his unexplained payment arrangement, but Ndlovu says he is unhappy with the court challenge against Gordhan.
“And the next thing, you are asking for money. You ask money for this and ask money for this. But how, when you fight the people that are supposed to pay us?” the voice described as Ndlovu’s says.
“If something worse was to appear about your shenanigans or whatever, whether corrupt activities or whatever, you will be destroyed forever,” Ndlovu warns Radebe. “Whether in regard to our appointment or [the] appointment of the other subcontractors that you have worked with, then that is the end of it.”
Ndlovu goes on to accuse Radebe of taking money from subcontractors, to which Radebe later counters: “What about the money from you?”
“Yah, I mean all that,” responds Ndlovu, adding that Radebe cannot claim that he is also not corrupt.
In his letter, Sedumedi told City Press that MNS appointed subcontractors of its own volition and that it was “not uncommon for clients to recommend subcontractors”.
In the recording, Radebe claims that MNS owes him a “balance” of R2.2 million in terms of the “original discussion”. But Ndlovu is not persuaded.
“I don’t know, but I do not promise that,” says Ndlovu.
“I really do not promise to pay you 2.2. [sic] I do not know why I must pay you 2.2. [sic] But let’s keep discussing.
“But I want you to come back to me about your case.”
He gives Radebe an ultimatum that if he drops the case against Gordhan, they can negotiate his claim for a R2.2 million payment.
“I cannot sit here and you asking me for 2.2 million [sic], but at the same time you are fighting the minister that is giving us work. I do not agree with the 2.2 million [sic]; it is something that we will discuss, but it is fine.
“Just come back to me and I meet with you on a sensible ground. I don’t want to be meeting you in some dark corner and scared that who is watching us; who is taking us videos [sic]. And the next thing, the videos are out there and that’s it.”
Ndlovu continues: “Just listen to me; just stop this thing and see how we can do other things. Just listen to me; just settle with Pravin. Just settle. Just settle.
“Just go to your lawyer and say: ‘Look here, guys, I’m tired of this thing, it is draining me financially and what have you. I want to settle with the minister.’
“And make peace with it. Just make peace with the minister. Finish and klaar.”
In the letter to City Press from Sedumedi, Ndlovu denied allegations of bribery or any insinuation of a payment obligation towards Radebe for the services that MNS rendered.
“There was absolutely no need or basis for our client to have a corrupt relationship with Radebe as MNS was appointed purely on its expertise and competence. At that stage, no relationship of whatever nature existed between Radebe and our client or MNS.”
He said it was also “clear” in the recording that Ndlovu “categorically denied any pre-existing relationship between himself/MNS and Radebe; or agreement on payments or obligations that he had towards Radebe”.
Asked in the recording whether Transnet had extended MNS’ mandate, Ndlovu says that Radebe’s “people inside are trying to sabotage this thing”.
He mentions the CEO and head of legal, Ndiphiwe Silinga, who was also opposed to the appointment of MNS.
However, Ndlovu says MNS had found a way to help the board “circumvent” the legal approvals that Silinga complained about.
In the letter from Sedumedi, Ndlovu said claims that the appointment of MNS at Transnet was irregular were incorrect.
“It is, however, common knowledge that there were certain persons within Transnet who incorrectly held the view that the MNS appointment was irregular. It is on this basis that MNS had a legal opinion to address the purported obstacles that were raised to justify [an] alleged irregular appointment.”
- This story has since been updated on January 21 2020 to correct a statement that former chief procurement officer Garry Pita was amongst those suspended or sacked by Transnet. Pita was neither suspended nor sacked, but resigned voluntarily from Transnet who accepted his resignation.
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