The IPP interdict: Transform RSA's murky management
Cape Town – Following a last-minute court bid, Energy Minister Jeff Radebe has agreed with two applicants to postpone signing several Independent Power Producers (IPP) agreements until March 27.
But the legal case brought by Transform RSA may face a hurdle that could scupper its part in court proceedings.
Transform RSA and the National Union of Metalworkers of South Africa (Numsa) applied for an urgent last-minute interdict against Radebe's signing of 27 IPP agreements that was due to take place on Tuesday.
Although Radebe has clarified that no interdict was granted, the signing of the IPP agreements was postponed until the matter is heard later this month.
But, just who is Transform RSA, one of the parties to the application?
In Transform RSA's founding affidavit, Adil Nchabeleng confirms he is the president of "Transform RSA NPC". There are no company records for "Transform RSA NPC" and it is also not listed as a non-profit organisation on the Department of Social Development's website.
It gets murkier.
Publicly, Transform RSA is headed by Nchabeleng, a frequent guest on the Gupta-linked ANN7 news channel. Both its Facebook and Twitter accounts frequently show Nchabeleng appearing in his capacity as the president of Transform RSA.
Nchabeleng is also a director of at least 33 other companies, although Transform RSA is not one of them.
In November 2016, Transform RSA lodged an application to join a case brought by the Helen Suzman Foundation (HSF) and Freedom Under Law (FUL), which involved the appointment of National Prosecuting Authority (NPA) head Shaun Abrahams. It attempted to join as an amicus curiae (friend of the court) in support of the appointment of Abrahams and the NPA.
At the time, court papers showed that Transform RSA was under the direction of Thabang Nkunyane, but no official record of his appointment as a director exists in company records.
Photographs taken at court show Nkunyane was accompanied by Tshepo Kgadima, axed PetroSA head and another regular on ANN7.
Transform RSA argued that the suspension of Abrahams would amount to political interference, and that the application brought by FUL and HSF were aimed at bringing the NPA into disrepute.
Earlier this year, Transform RSA threatened to take legal action against the ANC's national executive committee (NEC) if it proceeded to discuss then president Jacob Zuma's recall during its meeting that day.
In the letter, drafted by attorneys on behalf of Transform RSA, it claimed that it was a registered legal entity called Manovision.
Manovision is a not-for-profit shelf company registered July 20, 2016. Manovision company records reflect that it has the same directors as Shelf Company Warehouse.
Chris Gouws, chief executive of Shelf Company Warehouse, confirmed that they sold Manovision to an undisclosed client. He did not wish to disclose further information on the transaction. He confirmed that the listed directors were not involved with Transform RSA in any way.
It has since been established that Nchabeleng bought Manovision on August 17, 2016.
The buyers were required to change the directorship of the company with the Company and Intellectual Property Commission (CIPC) within nine months. However, this does not appear to have happened.
So, on what basis have the attorneys acting for Transform RSA been taking instructions?
Legally, only the directors of a company can take any action that binds the company. This would include instituting legal action or instructing attorneys. In the absence of such authorisation, the actions taken by such individuals are considered ultra vires (beyond legal authority) and therefore jeopardise the basis of any court proceedings it entered into.
This is a legal principle aimed at preventing unauthorised individuals from entering into binding agreements on behalf of companies.
In addition, Section 21 of the Financial Intelligence Centre Act (FICA) requires law firms to establish and verify the identity of their clients, as well as their authority to act on behalf of a company. It is unclear if and how law firms involved with Transform RSA did this.
Maubane Mhlaphela Inc is on record for Transform RSA in both the IPP interdict application and the letter to the NEC earlier this year.
Following detailed questions, News24 was contacted by an irate Mabitsele Maubane, demanding to know where News24 had obtained his email address. His e-mail address is easily accessible on the website of the Law Society of the Northern Provinces.
Despite undertaking to respond to questions on whether his firm complied with FICA requirements and his client's authority to act on behalf of Transform RSA, no response was forthcoming. Follow-up emails were also not responded to.
The attorneys of record for Transform RSA in the HSF and FUL matter were Thekisho (Lucky) Inc Attorneys, which also not respond to repeated requests for comment.
Nchabeleng has also not responded to requests for comment.