Appeal court rejects Siyangena’s R5.5 billion appeal bid

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The SCA on Tuesday rejected Siyangena Technologies’ offer to appeal. File photo of Siyangena’s so-called ‘fast gates’ at Cape Town railway station. Photo: Kim Reynolds

The Supreme Court of Appeal (SCA) has dismissed with costs a bid by Siyangena Technologies Pty Ltd to overturn a finding by the High Court in Pretoria that it was complicit in bribery when it secured contracts worth $200,000. approximately R5.5 billion from the Passenger Rail Agency of South Africa (PRASA)

The SCA ruled on Tuesday that the company was not an “innocent party”, as it claimed, and that it would be “inconsistent with notions of justice and fairness” if it were allowed to profit from the contracts. illegal supplies.

The court also said the High Court was correct in ordering that an independent engineer be appointed to assess the financial value of the work carried out by Siyangena to determine whether she should repay any money.

The contracts, according to the High Court, had been awarded to the company during the “tyrannical” rule of former PRASA Group CEO Lucky Montana before the 2010 FIFA World Cup and after.

The contracts were for the supply and maintenance of “integrated secure access management systems” at various stations. The equipment included public address installations, speed lanes and electronic display boards intended to make the public commuter rail system safer and more efficient.

The high court found that the contracts were tainted with corruption, that Siyangena representatives held private meetings with Montana, that proper procurement processes were not followed, that budget concerns raised by officials of PRASA had been ignored and that the documentation had been “manipulated” to hide the wrongdoing. .

She reviewed and canceled the contracts, finding them illegal.

Acting SCA Judge Mahendra Chetty, who wrote Tuesday’s ruling, said in the appeal that Siyangena had essentially challenged the reparations order.

“He argues that it is inconsistent with the Constitution because, he claims, he was in the position of an innocent party. Consequently, he should not be deprived of all the rights to which he would have been entitled under the contract, had it not been for the declaration of invalidity.

“In her written submissions, she admitted that she could not contest the High Court’s numerous findings that PRASA had failed to comply with the requirements of the procurement procedures in respect of the three contracts. Rather, his position is that at all times he had no knowledge of the inner workings of PRASA and was merely an innocent contracting party and not an accomplice to the wrongdoing.

Judge Chetty said it was a newly constituted PRASA board that approached the High Court to have the contracts annulled after Montana resigned “under a cloud” in July 2015.

Siyangena had argued that she had been severely crippled in demonstrating her innocence because the high court wrongly decided to disregard the affidavits of certain witnesses, including those who had been implicated in the wrongdoing.

Judge Chetty said the High Court was correct and had the right under the law to disregard the affidavits.

He said that if there is evidence of bribery, an order declaring the contracts unconstitutional should follow.

“The High Court’s factual findings show that there was a concerted effort to downgrade almost every aspect of the procurement process…to Siyangena’s benefit.

“The High Court inferred the existence of corruption…that remains the only plausible inference. Nothing has been placed before us that warrants altering this finding,” Judge Chetty said.

He said that despite the High Court’s opinion that Siyangena was not the innocent entrepreneur she claimed to be, the High Court had crafted a remedy that was deemed fair to both parties.

He ordered that an independent engineer be appointed to assess the work carried out. If the company had been underpaid, PRASA would have had to make up the shortfall. Conversely, if he had been overpaid, he would be forced to repay the money.

The suburban activist group #UniteBehind was admitted to the appeal as amicus curiae and joined PRASA in opposing any changes to the appeal.

“In my view, Siyangena has failed to show that the High Court failed to exercise its discretion judicially…or that it was inconsistent with the law,” Judge Chetty said.

“Siyangena was rightly found by the High Court to be complicit in corruption, irregularities and maladministration. It is inconsistent with notions of justice and fairness to allow it to profit from illegal public procurement. »

“The appeal must fail,” he said, ordering the company to pay the application fee.

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