Overview
The General Counsel is responsible for the Legal, Governance, Compliance and Fraud Risk Management Department. The Department comprises the following four main and distinct components:
In order to serve the specialized needs of Transnet Freight Rail "Legal" into three portfolios, i.e. Commercial Law, Litigation and Administrative Law and RSR, Security Law and General Legal Matters.
Compliance
The primary responsibility of the Compliance function is to assist and support management in the implementation of a compliance risk management framework.
The function further assists management to discharge their responsibility to comply with regulatory requirements (examples of regulatory requirements that Transnet Freight Rail (“TFR”) need to comply with, are the National Railway Safety Regulator Act, 2002, National Environmental Management Act, 1998 and Basic Conditions of Employment Act, 1998. In total, TFR need to comply with 101 Regulatory Requirements. An effective Compliance function depends on the on going awareness of compliance matters, which should be addressed by using the Compliance Framework as a point of departure.
The Compliance Framework serves as a source of reference for TFR in the development and management of the Compliance function.
The department provides a comprehensive range of legal services required for the commercial law needs of the organisation. With the broad range of activities engaged in within TFR, and between TFR and its external stakeholders, there is invariably a wide range of agreements and other activities that are entered into which require legal input.
Agreements advised on include: Transport, Property (including leases), Procurement, Information Technology (IT), Telecommunications, Engineering and Project Management, Sponsorship and other Corporate Social Investment (“CSI”), Finance (including Guarantees), PPP transactions, and other miscellaneous agreements. The Legal Department also provides advice and guidance on Competition Law issues such as Pricing and Abuse of Dominance.
General legal advice is also provided on all facets of the abovementioned agreements, including negotiating, perusing, drafting, amending, advising on contractual disputes, and advice regarding the regulatory and compliance regime that applies to them.
With the Legal Department being a key role-player in the Contract Lifecycle Management (“CLM”) Project, the Commercial stream signs-off on the contracts that are allocated to it in terms of CLM.
In addition, the Commercial stream attends to all Intellectual Property (“IP”) issues, including registrations and renewals of the various forms of IP. Intellectual property includes Trade Marks, Patents, Designs and Copyright. We also advise on opposing applications by third parties for registration of intellectual property that is in conflict with TFR’s portfolio of IP.
The purpose of Fraud Risk Management is to enable the organisation to prevent, discover, reduce and take action when fraud or misconduct is occurring. Section 29.1.1 of the Treasury Regulations prescribed under the Public Finance Management Act 1999, (Act No. 1 of 1999), requires State Owned Companies, such as Transnet, to prepare and implement a Fraud Risk Management Plan in order to:
- Understand the fraud risks TFR is exposed to in its normal operations;
- To set the proper tone at the top;
- Monitor internal controls in order to identify fraud risks; and
- Set reactive protocols in the event that fraud is suspected.
The Components of the TFR Fraud Risk Management Plan comprise the following:
- Fraud Prevention e.g.: Fraud Awareness Training;
- Fraud Detection e.g.: Whistler Blower or Tip – Off Anonymous; and
- Investigation e.g.: All matters reported to the fraud hotline is investigated.
Good corporate governance promotes accountability of management and improves transparency and disclosure. It involves systems, policies and processes for ensuring proper accountability, probity and openness in the conduct of an organisation’s business. It is our mission to ensure that TFR manifest elements of good corporate governance in its dealings with all its stakeholders.
A regular review of governance processes is carried out including a review of the TFR Governance Committees (“Committees”) and policies and procedures. Regular awareness and training of management focusing on key governance areas including procurement processes is of utmost importance.
TFR’s reporting process is based on the King Code of Governance for South Africa (“King IV”) which specifies duties, ethical considerations as well as financial accountability structures. Records management is the integral part of good governance.
We provide Secretariat services to the following TFR Committees: Executive, Risk, Operations, Sub-Audit, Central Safety, Policy and Acquisition Councils and implement the Delegation of Authority framework.
Our primary function is to assist and support Management in identifying the legal risks relating to Labour, Regulatory (Railway Safety Regulator) & Security matters, and to address these in the best interest of TFR.
All legal developments in these disciplines are brought timeously to the attention of Management and are appropriately attended to.
Regulatory requirements and Case Law are the primary source of reference in the management of this function.
The litigation function is regarded as a critical area within Legal, Governance and Compliance Services.
Within its ambit rests the overall responsibility of protecting the interests of TFR in the event of litigation or when the possibility of litigation is imminent.
Due to the size and nature of the organisation, a significant amount of litigation is generated. The matters have their genesis in various departments, Property, Supply Chain Services, Operations, Corporate Safety and Communications to name a few.
Litigation matters are varied in their size and complexity, ranging from a simple eviction, to complex contractual interpretations and multi-million rand damages claims. All matters necessitate detailed attention and strategic input at various stages.
The litigation function may instruct external legal representatives to employees should the relevant policy permit such instruction.