A SECOND court application aimed at enforcing corporate governance at the Nuclear Energy Corporation of SA (Necsa) has been launched.
This time, the aim is to have CE Phumzile Tshelane removed from his post and for him and the remaining directors to be declared delinquent under the Companies Act.
Mr Tshelane already faces sanction under the act for behaviour inconsistent with his duties as a director. The Companies and Intellectual Property Commission (CIPC) applied last month to the High Court in Pretoria for him to be placed on probation after he failed to refund the company for the private use of a company car.
Now former Necsa director Medi Mokuena, whose term ended in October, has also brought a court application to the same court, seeking action against the directors.
Ms Mokuena was one of several independent directors who resigned or whose term ended last year, following conflict with Energy Minister Tina Joemat-Pettersson.
Necsa, which hopes to play a leading role in SA’s multibillion-rand nuclear energy programme, is in disarray.
It has not finalised its annual financial statements for 2014-15 and is without a full board or a permanently appointed CE.
In her affidavit, Ms Mokuena discloses that although the board had decided to dismiss Mr Tshelane summarily in July last year for "gross misconduct", Ms Joemat-Pettersson had nonetheless extended his contract a week later.
At the time, Ms Joemat-Pettersson was also aware that the CIPC planned to seek sanctions against Mr Tshelane and have him placed on probation.
Since the end of July last year, Mr Tshelane’s contract has been extended on a month-by-month basis. Ms Mokuena contends that this is not provided for in the Nuclear Act, which allows for the CE to be reappointed for a fixed term, in consultation with the board.
Ms Joemat-Pettersson did not apply her mind to the extension, she says, as she failed to take Mr Tshelane’s misconduct into account.
Ms Mokuena also states that during his three-year tenure as head of Necsa, Mr Tshelane had on several occasions usurped the powers of the board or undermined its authority.
He had also, during this time, failed to submit himself for security clearance from the State Security Agency — a precondition for his continued employment — and a fact Ms Joemat-Pettersson was aware of.
As well as seeking to have Mr Tshelane removed, Ms Mokuena wants him and Necsa chairman Mochubela Seekoe and the Department of Energy’s head of nuclear energy to be declared by the court to be delinquent.
This would prohibit them from being company directors in the future.
Mr Tshelane should be declared delinquent on the grounds that he acted ultra vires in making certain appointments; he misled the board; he failed to inform it that he had not obtained security clearance; he appointed a chief financial officer who had been suspended from his former position for procurement irregularities; he provided funds to the African National Congress without the consent of the board; he acquired a company luxury vehicle which he used for personal purposes; and would not co-operate with the auditor-general in providing the necessary documentation.
The grounds against the other directors are less comprehensive. In the case of Mr Seekoe, for instance, it is alleged in a separate complaint that he neglected his duties and ran board meetings in an arbitrary manner.
Mr Mbambo, says Ms Mokuena, "acted fraudulently with Mr Tshelane and Mr Seekoe by purporting to have held a board meeting" at which he was appointed a director.
However, she says, the meeting would not have been "legally, factually possible", as it lacked a quorum.
It appears that at the time that the board took a decision to dismiss Mr Tshelane, the energy department’s representative on the board — Jeetesh Keshaw — had participated in the decision. However, he was then recalled by Ms Joemat-Pettersson and replaced with Mr Mbambo.
Ms Joemat-Pettersson has indicated that she will oppose Ms Mokuena’s application. Her spokesman Malusi Ndlovu said that the "legal actions currently under way are receiving the minister’s urgent attention".
The minister had taken note of recent developments and reports in the press.
"Given the sensitivity and the need to handle staffing and board matters with those concerned, it would not be helpful at this stage to make any comments.
"A press statement will be issued once the situation has been normalised," Mr Ndlovu said.
OPPOSITION: Energy Minister Tina Joemat-Pettersson has indicated that she will oppose Ms Mokuena’s application.
Picture: TREVOR SAMSON
A SECOND court application aimed at enforcing corporate governance at the Nuclear Energy Corporation of SA (Necsa) has been launched.
This time, the aim is to have CE Phumzile Tshelane removed from his post and for him and the remaining directors to be declared delinquent under the Companies Act.
Mr Tshelane already faces sanction under the act for behaviour inconsistent with his duties as a director. The Companies and Intellectual Property Commission (CIPC) applied last month to the High Court in Pretoria for him to be placed on probation after he failed to refund the company for the private use of a company car.
Now former Necsa director Medi Mokuena, whose term ended in October, has also brought a court application to the same court, seeking action against the directors.
Ms Mokuena was one of several independent directors who resigned or whose term ended last year, following conflict with Energy Minister Tina Joemat-Pettersson.
Necsa, which hopes to play a leading role in SA’s multibillion-rand nuclear energy programme, is in disarray.
It has not finalised its annual financial statements for 2014-15 and is without a full board or a permanently appointed CE.
In her affidavit, Ms Mokuena discloses that although the board had decided to dismiss Mr Tshelane summarily in July last year for "gross misconduct", Ms Joemat-Pettersson had nonetheless extended his contract a week later.
At the time, Ms Joemat-Pettersson was also aware that the CIPC planned to seek sanctions against Mr Tshelane and have him placed on probation.
Since the end of July last year, Mr Tshelane’s contract has been extended on a month-by-month basis. Ms Mokuena contends that this is not provided for in the Nuclear Act, which allows for the CE to be reappointed for a fixed term, in consultation with the board.
Ms Joemat-Pettersson did not apply her mind to the extension, she says, as she failed to take Mr Tshelane’s misconduct into account.
Ms Mokuena also states that during his three-year tenure as head of Necsa, Mr Tshelane had on several occasions usurped the powers of the board or undermined its authority.
He had also, during this time, failed to submit himself for security clearance from the State Security Agency — a precondition for his continued employment — and a fact Ms Joemat-Pettersson was aware of.
As well as seeking to have Mr Tshelane removed, Ms Mokuena wants him and Necsa chairman Mochubela Seekoe and the Department of Energy’s head of nuclear energy to be declared by the court to be delinquent.
This would prohibit them from being company directors in the future.
Mr Tshelane should be declared delinquent on the grounds that he acted ultra vires in making certain appointments; he misled the board; he failed to inform it that he had not obtained security clearance; he appointed a chief financial officer who had been suspended from his former position for procurement irregularities; he provided funds to the African National Congress without the consent of the board; he acquired a company luxury vehicle which he used for personal purposes; and would not co-operate with the auditor-general in providing the necessary documentation.
The grounds against the other directors are less comprehensive. In the case of Mr Seekoe, for instance, it is alleged in a separate complaint that he neglected his duties and ran board meetings in an arbitrary manner.
Mr Mbambo, says Ms Mokuena, "acted fraudulently with Mr Tshelane and Mr Seekoe by purporting to have held a board meeting" at which he was appointed a director.
However, she says, the meeting would not have been "legally, factually possible", as it lacked a quorum.
It appears that at the time that the board took a decision to dismiss Mr Tshelane, the energy department’s representative on the board — Jeetesh Keshaw — had participated in the decision. However, he was then recalled by Ms Joemat-Pettersson and replaced with Mr Mbambo.
Ms Joemat-Pettersson has indicated that she will oppose Ms Mokuena’s application. Her spokesman Malusi Ndlovu said that the "legal actions currently under way are receiving the minister’s urgent attention".
The minister had taken note of recent developments and reports in the press.
"Given the sensitivity and the need to handle staffing and board matters with those concerned, it would not be helpful at this stage to make any comments.
"A press statement will be issued once the situation has been normalised," Mr Ndlovu said.
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