Protector has it in for me, says Montana
ALLEGED “errors in law” committed by the office of Public Protector Thuli Madonsela, have been painstakingly recorded in the court challenge against her by Lucky Montana, former CEO of the Passenger Rail Agency of SA (Prasa).
The list of mistakes allegedly made in Ms Madonsela’s findings — released last month after a threeyear-long investigation — is contained in Mr Montana’s application to the High Court in Pretoria , filed on Wednesday. He is seeking to have her report, titled “Derailed”, reviewed and set aside.
The report details maladministration and improper conduct at the agency during Mr Montana’s tenure. Ms Madonsela is due to release a second report largely focusing on tender irregularities and corruption that could not be covered in the first report.
This legal battle will be watched with interest, especially as Mr Montana is also seeking clarity on the limits of Ms Madonsela’s power regarding recommended remedial actions. The limits of Ms Madonsela’s powers are already the focus of two other cases — one brought by the Economic Freedom Fighters and the other between the Democratic Alliance and the SABC.
Mr Montana has spent the past month placing sticks of dynamite into all possible cracks in the incendiary report, with the clear intention of discrediting it and how the investigation was conducted.
According to his 57-page affidavit, he is seeking to show that Ms Madonsela did not apply the correct legislation and was biased.
Her report “contains many factual inaccuracies but having regard to the importance of the matter, I will only be able to deal with these… once I have access to the full record, namely all the documentation which… (the public protector) has in its possession and upon which the report is based”.
The public protector based “its entire findings in the report on alleged contraventions of the supply chain policy of… (Prasa), contraventions of section 38 of the (Public Finance Management Act) PFMA, contraventions of the… (Preferential Procurement Policy Framework Act) PPPFA and contraventions of section 217 of the Constitution”.
Ms Madonsela “repeatedly referred to breaches of section 38 which cannot be applied to Prasa because of the type of state entity it is, as classified by the finance minister,” Mr Montana added. “Prasa is a National Government Business Enterprise: a schedule 3B entity in terms of the PFMA.”
According to Mr Montana, Ms Madonsela had “misunderstood and misapplied the provisions of the PFMA (and) … therefore departed from the wrong premises of the applicable law”.
All findings made regarding contraventions of the PFMA should be reviewed and set aside as these were “materially influenced by an error of law”.
Mr Montana also alleges that Ms Madonsela had “refused or failed” to make any findings against the Prasa board.
“This is an indication that (Ms Madonsela) was biased in the investigation against me, or (Ms Madon-
I am specifically singled out as if I have personally taken the actions that were the subject of the complaint
sela) was materially influenced by irrelevant considerations.”
Mr Montana goes as far as saying contraventions of Prasa’s procurement policy were “an internal function” and outside the competence of the public protector.
Any noncompliance with its own supply chain management policy “does not attract statutory or regulatory sanction”.
“In the findings made by the (public protector) it seems that I am specifically singled out as if I have personally taken the actions that were the subject of the complaint.” This was an indication of Ms Madonsela’s bias.
Contacted for comment, Ms Madonsela said: “It is a pity that Mr Montana didn’t want to engage with me first before going the court route because we would have helped him understand how we arrived at our findings. Nevertheless, we will defend the matter.”