A former Passenger Rail Agency of South Africa (PRASA) executive, who was found to have lied about his qualifications, has lost his bid to appeal a High Court order that he should pay back R5.7-million he received from PRASA since 2010.
The Gauteng High Court in Johannesburg on Friday dismissed "Dr" Daniel Mthimkhulu's application for leave to appeal the September judgment, in which it was found that he had misrepresented his qualifications and, as a result, secured a promotion.
Judge Leoni Windell held that her previous finding that Mthimkhulu made fraudulent representations was not made lightly, saying that she had weighed up the evidence and was satisfied that another court would not come to a different conclusion.
She awarded costs, including the costs of two counsel, to PRASA and its attorneys, Werksmans.
The Supreme Court of Appeal previously found that Mthimkhulu played a central role in the unlawful R3.5-billion tender awarded to Swifambo Rail Leasing for the supply of trains in 2013 – the so-called "tall trains" scandal.
Swifambo and PRASA have been embroiled in years of litigation following a forensic investigation by Werksmans, which also uncovered Mthimkhulu's misrepresentations.
It is believed Werksmans saved the state-owned company in the region of R2-billion, which was not paid to service providers.
According to court documents in September 2010, Mthimkhulu's salary was increased to R2.8-million a year by then-group CEO Lucky Montana, after Mthimkhulu presented him with a purported offer letter from DB Schenker – a German company.
According to the September 2019 judgment, Montana then authorised a counter-offer matching the salary, which Mthimkhulu accepted.
Mthimkhulu denied receiving a job offer from DB Schenker, claiming that he was given an increase on the basis that a different German company, P-Tech Systems, had made him an offer of 200 000 euros.
This is despite evidence before the court that two letters from DB Schenker were found in his personnel file during an investigation into his qualifications.
Mthimkhulu alleged that his HR file was tampered with, in an attempt to "destroy his career".
But, as the court found, this was not Mthimkhulu's first fraudulent misrepresentation. He had in fact, it emerged, lied about his qualifications to obtain the position in the first place.
In April 2010, PRASA appointed Mthimkhulu as Executive Manager: Engineering Services.
PRASA alleged that he represented, through his CV prior to March 31, 2010, that he had a national diploma and a bachelors' degree from Vaal University of Technology (VUT).
The degrees were a minimum requirement for the position.
"It is common cause that Mr Mthimkhulu, at the time of his appointment, did not hold a National Diploma and Bachelors' Degree from the VUT and only had a matric qualification. Mr Mthimkhulu accepted that any statement made before July 2015 that he had completed a National Diploma and a bachelors' degree from the VUT would be incorrect. He however denied that he ever made such a statement," Windell's judgment reads.
But Mthimkhulu's CV, found in his personnel file, clearly stated he had obtained the VUT degrees in 2010, and held a doctoral degree in "engineering management", obtained in 2010.
Mthimkhulu "vehemently" denied that the CV was his, or that he was responsible for the information in it.
Mthimkhulu told the court that many people PRASA employed, who were intent on destroying his career, had fabricated the CV and placed it in his personnel file.
A key element of Mthimkhulu's evidence before court was that there was never any advert for the position of Executive Manager: Engineering Services, to which he was appointed in 2010, and that he was promoted through the ranks for his experience and skill.
But the court found that the evidence confirming there was an advert for the position was "overwhelming".
If there was an advert there must have been an application form and a CV submitted by Mthimkhulu, but the file surrounding the recruitment process for his position went missing, the court heard.
"I am satisfied that Mr Mthimkhulu falsely represented to PRASA that he held a national diploma and a bachelors' degree from the VUT. This false representation induced PRASA to appoint him in the position of Executive Manager: Engineering Services," Windell found in September.
Mthimkhulu appeared on ENCA just seven days after the scathing judgment was handed down, and maintained he had evidence that he had in fact obtained his matric and diploma from VUT.
"I would like to take this opportunity to admit that I do not have a PhD and I failed to correct the perception that I have it," Mthimkhulu told ENCA host Xoli Mngambi.
"I just became comfortable with the title, I did not foresee any suffering or damages as a result of this because I got to be known at the time after I was appointed in the position of the executive manager in 2010," he said.