<\/p>\n
An affidavit by activist Zackie Achmat in a Constitutional Court application sheds new light on the role of whistleblowers Martha Ngoye and Tiro Holele in attempts to prevent widespread looting at the Passenger Rail Agency South Africa (Prasa).<\/p>\n
Ngoye, who was head of legal, risk, and compliance, and Holele, who was head of strategy, were fired by Prasa in early 2021. The Labour Court ordered their reinstatement, but the Labour Appeal Court overturned the ruling. The Constitutional Court declined to hear an appeal.<\/p>\n
Listen\/read:
The organisation protecting whistleblowers may shut its doors
Prasa whistleblowers make last bid to reclaim their jobs<\/p>\n
Ngoye and Holele have now applied to the Constitutional Court to rescind its decision not to consider their appeal. This is the last possible option in their five-year battle to have their whistleblower status recognised, and be reinstated at their workplace.<\/p>\n
Activist organisation #UniteBehind, of which Achmat is a director, has applied to intervene in the court case, or be admitted as amicus curiae (friend of the court).<\/p>\n
\u2018Staunch resistance to corruption\u2019<\/p>\n
Achmat states in his affidavit that the organisation\u2019s struggle over the past decade to \u201carrest the rot at Prasa\u201d has been \u201cinextricably intertwined with the specific facts around Ms Ngoye\u2019s and Mr Holele\u2019s whistleblowing\u201d and their \u201cstaunch resistance to corruption\u201d.<\/p>\n
\u201cTheir fight is our fight. In this respect, we are less interested in the abstract legal theories that resulted in the current disjuncture between right and remedy on an individual level,\u201d stated Achmat in his affidavit.<\/p>\n
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He said Ngoye and Holele were dismissed for their honesty and refusal to \u201cturn a blind eye to corruption\u201d within Prasa.<\/p>\n
Neither the Labour Appeal Court nor the Constitutional Court had \u201ctaken proper account of this larger picture when they closed the doors on the applicants,\u201d he said.<\/p>\n
He said if #UniteBehind is granted leave to intervene, the organisation intends to argue in terms of Section 172 of the Constitution, which allows the court to declare any law or conduct inconsistent with the Constitution as invalid, or, alternatively, lean on the Promotion of Administrative Justice Act to order Ngoye and Holele be reinstated at Prasa with back pay.<\/p>\n
According to Achmat, #UniteBehind\u2019s work has often relied on whistleblowers, such as Prasa\u2019s former board chairperson, Popo Molefe, who provided information in 2017, including National Treasury reports into about 300 unlawful contracts known as #PrasaLeaks.<\/p>\n
The board under Molefe, from 2014 to 2017, had \u201cmade slow but admirable progress\u201d in cleaning up the looting and corruption of the Lucky Montana era in which billions of rand were siphoned from the rail agency.<\/p>\n
It was Molefe who introduced #UniteBehind to Ngoye and Holele, among others.<\/p>\n
Read: Activist group\u2019s seven-year push for accountability at Prasa<\/p>\n
Ngoye, appointed in 2014 under Molefe\u2019s board, was in charge of all Prasa\u2019s litigation to set aside unlawful contracts and decisions, and to recover money lost to corruption.<\/p>\n
The most well-documented is Ngoye\u2019s attempt to prevent the then interim board chair, Nana Makhubele, from settling with corruption-impugned company Siyaya to the tune of nearly R60 million.<\/p>\n
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Makhubele, who was at the same time appointed a judge in the Gauteng High Court, has since been found guilty of gross misconduct by the Judicial Service Commission.<\/p>\n
Action against DPCI<\/p>\n
Achmat states that under Molefe\u2019s board, Prasa made \u201cabout 39\u201d reports to the Directorate for Priority Crimes Investigation (DPCI) in terms of Section 34 of the Prevention and Combating of Corrupt Activities Act (Precca).<\/p>\n
Section 34 of Precca makes it a duty of any senior executive or manager to report corrupt activity involving R100 000 or more to the police.<\/p>\n
When #UniteBehind took action against the DPCI and National Prosecuting Authority for their failure to act on these reports, they were introduced to Ngoye and legal services general manager Fani Dingiswayo.<\/p>\n
Read: Claims of tender rigging in explosive letter from Prasa \u2018board member\u2019<\/p>\n
Ngoye and Dingiswayo gave #UniteBehind a \u201cfull briefing\u201d on the case against the DPCI and NPA, including that the DPCI and NPA had challenged the authority of Molefe, Ngoye, and Prasa\u2019s attorneys (Werksmans) to conduct the litigation.<\/p>\n
After Molefe\u2019s term as board chair, the interim board headed by Makhubele \u201cimmediately started efforts to undo the progress of the Molefe board and to paralyse the parts of Prasa driving this recovery.\u201d<\/p>\n
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\u201cSince much of the course-correcting work involved litigation, the legal department under Ms Ngoye\u2019s leadership was an obvious and immediate target.\u201d<\/p>\n
Prasa effectively abandoned the case against the DPCI and the NPA, and it has since been taken up by Open Secrets.<\/p>\n
Achmat said Ngoye and other whistleblowers worked to protect Prasa\u2019s interests, including frustrating a bid by Siyangena Technologies to overturn a finding by the Pretoria High Court that it was complicit in corruption when it scored contracts valued at about R5.5 billion from Prasa.<\/p>\n
He said while Ngoye helped protect Prasa\u2019s interests, she \u201cwas visited with more trials and tribulations that led to her unlawful dismissal\u201d, and \u201chonesty and competence\u201d put targets on the whistleblowers\u2019 backs.<\/p>\n
He argues Ngoye and Holele were dismissed for resisting corruption and the Labour Appeal Court turned a blind eye to the public interest \u201csimply because the matter was adjudicated primarily as a labour dispute\u201d.<\/p>\n
\u201cIf the Labour Appeal Court applied the correct test, then we submit that the test is inconsistent with the Constitution and with South Africa\u2019s international law obligations, and must be developed.\u201d<\/p>\n
Struggle for reinstatement<\/p>\n
Prasa fired Ngoye, Holele, and Khena in early 2021.
\nPrasa said they were dismissed because their five-year contracts had expired.
\nThe dismissal was challenged in the Labour Court, which ruled in the whistleblowers\u2019 favour. Ngoye returned to work, but was then suspended on disciplinary charges related to Prasa contracts with Swifambo and SA Fence & Gate. She was later cleared of these charges.
\nPrasa meanwhile successfully took the original Labour Court ruling on appeal before the Labour Appeal Court, which ruled in March 2024 that although their contracts were unlawfully terminated, Ngoye, Holele and Khena should not be reinstated. They were also ordered to pay Prasa\u2019s costs.
\nThe court found that because the axed employees had relied on the provisions of the Basic Conditions of Employment Act in the litigation, and not the Labour Relations Act, the only relief to which they would be entitled was specific performance or damages \u2013 and they had not proven any damages. (Read the LAC judgment here and GroundUp\u2019s reporting here.)
\nNgoye and Holele then approached the Constitutional Court, seeking leave to appeal this ruling. But, in December 2025, the court declined to hear the matter, saying \u201cthere were no prospects of success\u201d and that the issues raised were already settled in law.
\nNgoye and Holele have now applied to the Constitutional Court to rescind that decision and hear the appeal. This is the last available recourse to the whistleblowers.
\n#UniteBehind is seeking to intervene or be admitted as amicus curiae (friends of the court).<\/p>\n
\u00a9 2026 GroundUp. This article was first published here.<\/p>\n
#Whistleblowers #activists #join #forces #fight #Prasa #looting<\/p>\n","protected":false},"excerpt":{"rendered":"
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