Court dismisses Zwane’s bid to be reinstated to Necsa board

A High Court judge has severely criticised the National Development Agency’s (NDA’s) chief financial officer for working as a director of the Nuclear Energy Corporation (Necsa) on the agency’s time and accepting payment for it.

Judge Letty Molopa-Sethosa dismissed an application by NDA chief financial officer Phumlani Zwane to force Energy Minister Tina Joemat-Pettersson to reinstate him as a director of Necsa’s board. She also dismissed Zwane’s bid to be reimbursed for the board fees of all the Necsa meetings he missed since he was fired in October 2014.

The judge said Zwane’s conduct of accepting the appointment as Necsa director without permission from the NDA, attending NECSA board meetings on NDA’s time and then claiming and receiving payment of more than R200 000 for his NECSA duties amounted to “misconduct of the highest nature”.

Zwane was in November 2012 appointed as nonexecutive director and chairperson of the Audit and Risk committee of NECSA Joemat-Pettersson’s predecessor Dipuo Peters, but Joemat-Pettersson fired him barely five months after she took office. She also instructed NECSA to initiate legal proceedings to recover the “fraudulent remuneration” paid to Zwane.

Judge Molopa said as a chartered accountant and full-time employee of the state-owned NDA, Zwane must have been aware that he was not entitled to be paid for his services on the Board of Necsa and no doubt received circulars from National Treasury that public servants could not be paid for their services in respect of any other public entities.

She accepted a statement by NDA CEO Dr Vuyelwa Nhlapo that Zwane had obtained a backdated letter authorising him to be on NECSA’s board fraudulently and never took unpaid leave to attend to Necsa business. The Judge said it was highly probable that Zwane knew from the start that the NDA had not authorised him to be on the NECSA board, that he was not allowed payment for the sittings of NECSA meetings and found that he had “misled everyone, including the court, to suit his case”.

Once Zwane’s unlawful conduct came to the minister’s attention she had to act in order to prevent unlawful abuse of public funds and her decision could not be faulted, she added.

The minister contended Zwane should never in the first place have been appointed to Necsa’s board, but Judge Molopa said she was not prepared to make such a finding, as it was for the minister and her department to “get their ducks in a row” and formulate a policy to ensure consistency within the department.