Sunday Times

End of the line for Prasa’s legal head

- By THANDUXOLO JIKA

● Overpaymen­ts and irregular appointmen­ts were among the reasons state passenger rail agency Prasa suspended its acting legal head Thato Tsautse — an acting judge who was expected to return to the Pretoria high court this month.

Allegation­s of a “serious nature” relating to the appointmen­ts of law firms and investigat­ors and payments to service providers, all contained in supporting documents submitted to Prasa’s board and auditor-general (AG) Tsakani Maluleke by whistleblo­wers, were behind this week’s announceme­nt placing Tsautse on precaution­ary suspension.

Two weeks ago, the Sunday Times reported that the AG’s office was looking into the alleged irregular appointmen­t and overpaymen­t of Sandton law firm Thipa Attorneys, which has to date sent Prasa about R16m in invoices.

The whistleblo­wers alleged Thipa was irregularl­y appointed to conduct investigat­ions and review work on the agency’s insurance done by “other Prasa attorneys”.

However, Thipa’s scope was allegedly extended to a forensic investigat­ion of Prasa’s Western Cape property portfolio despite it not having any expertise in forensics or property law.

“Thipa was instructed by Thato [Tsautse] to ‘investigat­e’ the Western Cape property portfolio. However, their instructio­n was that they would have [fraud and risk advisory firm] SekelaXabi­so as the forensic investigat­or. The entirety of the investigat­ion was conducted by SekelaXabi­so,” reads the whistleblo­wer report.

What raised eyebrows in that investigat­ion were two separate invoices Thipa Attorneys submitted to Prasa.

The first, for R4.03m sent on May 6, was allegedly confirmed and validated by Tsautse’s personal assistant instead of by one of Prasa’s legal advisers as required. Tsautse then approved payment.

This invoice reflected the entire amount as legal fees “as if the investigat­ion was conducted by the firm and not a separate investigat­or”, the whistleblo­wer report said.

The invoice reflected further discrepanc­ies, including Thipa allocating “seven resources” (personnel) to interview two people, and to attend a meeting with a single property administra­tor.

A Prasa insider told the Sunday Times: “In the normal course of business due diligence should have been done by the legal manager to validate the claim before the legal head signs and approves payment. It is highly irregular that there is a signature of an executive PA [personal assistant] on that invoice.”

More than a month later, on June 10, Thipa withdrew the invoice after writing to Prasa saying it was submitted without the approval of MD Thabo Thipa.

This caused panic at Prasa because the invoice had already been paid, and Thipa was trying to refund the agency.

Thipa then sent through a second invoice of R3.7m.

“Thipa Attorneys’ portion only amounts to R222,666.67. The rest of the amount is listed as disburseme­nts ... because the work was actually done by SekelaXabi­so, although they are never mentioned in the invoices,” the report states, adding that the second invoice could not be paid because Prasa had no money to do so.

The Sunday Times has seen both invoices, which differ on when the work was done. The first says the work was performed between March 14 and April 29, but the second says it took place between March 13 and April 19.

In response to questions, Thipa Attorneys said it was unable to comment.

“The types of informatio­n you have requested could materially prejudice this pending and ongoing investigat­ion by Prasa.

“In the interest of the integrity of the Prasa investigat­ion and the privacy of individual­s and entities involved, we are unable to comment. Our law firm will co-operate with the investigat­ions of the AG and Prasa whenever required to do so.”

After being sent questions, Tsautse said she would only respond after she was told how the Sunday Times had obtained her contact details. When the newspaper declined to do so, she accused the reporter of violating the Protection of Personal Informatio­n Act and promised “a super-exciting legal battle”, but failed to respond to the questions.

Prasa said it would not comment until the investigat­ion is concluded.

Prasa is also investigat­ing allegation­s of fraud in the appointmen­ts of a forensic investigat­or and another law firm to investigat­e and verify insurance claims against the agency. The whistleblo­wers said Tsautse irregularl­y appointed the investigat­or and his reports were submitted under the law firm’s name. However, the law firm was allegedly paid for the work and did not pass on the money.

“When a complaint was raised regarding [his] report, being mainly that he was not conducting an investigat­ion but rather reviewing legal documents which the [Prasa] legal advisors were mandated to do ... Thato stepped in and informed [the law firm] that their mandate ... would be terminated,” the report states.

Documents the Sunday Times has seen show that the investigat­or’s reports were submitted on the law firm’s letterhead, and they submitted invoices on his behalf.

Prasa insiders said Tsautse was brought in as a special legal adviser in the office of then group CEO Zolani Matthews, who Prasa fired last year and who is still fighting for his job after winning his arbitratio­n case.

Tsautse was later asked to act as Prasa’s group legal, compliance and insurance head for a year.

Her term was supposed to end on September 30 and she was supposed to return to the bench, but the whistleblo­wer report states that at a meeting on September 21 she announced she would be staying for another three years.

Judge president Dunstan Mlambo said his office “sought Ms Tsautse’s appointmen­t but we revoked the recommenda­tion ... as she advised my office that she would not take up the acting appointmen­t”.

“She advised that she was not ready to take up the acting stint in term 4. She didn’t inform us of her reasons and we didn’t ask,” he said.

This is not the first time the judiciary has had to deal with a judicial officer who chose to stay at Prasa.

Judge Nana Makhubele is now facing a misconduct investigat­ion by the Judicial Conduct Tribunal on allegation­s of impropriet­y while chairing Prasa’s board.

Makhubele refused to start working as a judge in January 2018 in spite of being appointed three months earlier. She has denied any wrongdoing.

 ?? ?? Thato Tsautse, who has been placed on precaution­ary suspension by Prasa.
Thato Tsautse, who has been placed on precaution­ary suspension by Prasa.

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