South Africa

South Africa

The List, Part Two: The people and businesses the State Capture Commission recommends for prosecution by the NPA

Informal structures on the railway line in Philippi on the Cape Flats, on June 11, 2021 in Cape Town, South Africa. It is reported that the Passenger Rail Agency of South Africa (PRASA) stated that it would approach the courts to assist in removing people who had occupied the train tracks on the Central Line. (Photo: Gallo Images/ER Lombard)

In the second volume of Judge Raymond Zondo’s report on State Capture, more than 20 individuals are recommended for prosecution by the National Prosecuting Authority – doubling the NPA’s to-do list after the release of the first instalment.

he second volume of the State Capture report advises the NPA to consider prosecutions against more than 20 individuals and multiple firms implicated in State Capture around Transnet and Denel.

This is roughly the same quantum as was recommended for prosecution by the Zondo Commission in the first instalment of the report.

With only one volume to come, certain trends from the commission’s findings are becoming clear – as are some worrying omissions.

There are a number of individuals who pop up as implicated in State Capture across different state-owned enterprises (SOEs), suggesting that their involvement in the national corruption project was particularly conscious – and arguably deserving of particular condemnation. One is Phetolo Ramosebudi, who is accused of corruption relating to both SAA and Transnet so far. Another is Regiments director Eric Wood, similarly implicated in both SAA and Transnet capture.

On the other side of the coin, there are the names noticeable by their absence.

The sole Gupta directly implicated in the two reports so far is Rajesh “Tony” Gupta, who was named in the first report as potentially worth prosecuting by the NPA on the basis of evidence from former SAA CEO Vuyisile Kona that Gupta offered him a bribe initially of R100,000 and later R500,000, which Kona rejected.

In the latest volume, none of the recommendations explicitly names a member of the Gupta family as worthy of plausible pursuit by the NPA. The same holds for former president Jacob Zuma – despite the fact of the Gupta family and Zuma having “arguably been implicated the most number of times by witnesses at the commission”, as Daily Maverick’s Jessica Bezuidenhout wrote in April 2021.

The second report on the findings of the Zondo Commission was released in the same week as commission chairperson Judge Raymond Zondo appeared before the Judicial Service Commission (JSC) to be interviewed for the position of Chief Justice.

During his interview, Zondo gave some previously unheard context to the work of the commission. He said that he had only accepted the role of commission chair effectively out of a sense of patriotic duty after multiple other judges had turned down the role – and that the four years of the commission’s proceedings had been so taxing that at times Zondo would work straight through the night with no sleep.

Few 61-year olds would envy this fate. But the sheer volume of work is possibly making itself felt in the slightly inconsistent handling of the Zondo Commission “workstreams” in these final reports. How else to explain why the sections on Transnet and SAA make such specific recommendations as to prosecutions, while the sections on Denel and SARS are so much vaguer – merely advising prosecuting unnamed individuals responsible for the awarding of various contracts?

In his JSC interview, Judge Zondo said he fully expected the report to be legally challenged by numerous individuals and companies after the release of all three volumes. As the deadline for the final instalment approaches, the report drafters would do well to ensure their findings are expressed in as airtight a manner as possible.

  • TRANSNET

People or companies the NPA should consider prosecuting for fraud or corruption:

  • Salim Essa and his companies, including Regiments Asia, Tequesta, JJ Trading FZE and Century General Trading FZE;
  • The “relevant functionaries” of Chinese train companies CSR Zhuzhou Electric Locomotives Co, CNR and CRRC;
  • Regiments Capital;
  • Regiments Fund Managers;
  • Eric Wood, Regiments director (previously recommended by the Zondo Commission for prosecution with regards to SAA corruption);
  • Kuben Moodley, Gupta fixer;
  • Anoj Singh, former Transnet CFO;
  • “Any persons associated with” Wood, Essa, Moodley and Singh in “illegal conduct”;
  • Brian Molefe, former Transnet CEO;
  • Former Cabinet minister Malusi Gigaba, described at one point as a “dupe who would do [the Guptas’] bidding”;
  • Siyabonga Gama, former Transnet CEO;
  • Garry Pita, former Transnet CFO;
  • Former Transnet CEO Thamsanqa Jiyane;
  • Langa Attorneys, with regards to a R1,399,307,11 payment from Transnet in April 2015;
  • “Any member of the board or any official of Transnet” involved in the Chinese locomotive purchase at inflated costs;
  • Majority directors of CNRRSSA;
  • Majority directors of BEX;
  • Mark Shaw, transaction adviser;
  • Integrated Capital Management;
  • Confident Concepts;
  • Former Transnet head of freight rail Ravi Nair;
  • Albatime (Kuben Moodley’s company);
  • Sahara Computers (Guptas’ IT company);
  • Phetolo Ramosebudi, ex-Transnet treasurer (previously recommended by the Zondo Commission for prosecution with regards to SAA corruption, in Ramosebudi’s other prior role as former Acsa group treasurer);
  • Trillian;
  • Stanley Shane, former Transnet board member;
  • Dave Reddy, CEO of Development and Engineering Consultants (DEC);
  • Nalen Padayachee, MD of PM Africa Project Management;
  • Homix;
  • Neotel;
  • Homix CFO Taufique Khan;
  • Former Neotel manager Francois van der Merwe;
  • Former Neotel CEO Sunil Joshi; and
  • Former Transnet director Zainul Nagdee.
  • Attempts to recover funds:
    • Transnet should attempt to recover from board members in position in 2011 the amount of R17-million paid to Siyabonga Gama as a settlement.

    Key quote: “The evidence establishes convincingly that State Capture occurred at Transnet in the period between 2009 and 2018.”

    • DENEL

    People or companies the NPA should consider prosecuting for fraud or corruption:

    • Those responsible for the awarding of the Hulls contract, the DLS Single Source Contract and the DVS Single Source Contract; and
    • Denel board members.

     Professional bodies asked to sanction members:

    • Application should be brought to have Daniel Mantsha and the 2015 Denel board members declared delinquent directors; and
    • Legal Practice Council should investigate whether Mantsha is “fit and proper” to practise as an attorney.

    Other important recommendations:

    • A body should be established to recommend suitable individuals as board of state-owned enterprises, as well as CFOs and CEOs for those SOEs: further details in this regard will be given in the final Zondo Commission report; and
    • The government should consider making it a criminal offence “for any person vested with public power to abuse public power vested in that person by intentionally using that power otherwise than in good faith for a proper purpose”.

    Key quote: “In my view, there is no innocent explanation of the fact that Ms [Lynne] Brown talked on the telephone with Mr [Salim] Essa while she was Minister of Public Enterprises on eight occasions during the period that the Guptas were putting into effect their scheme to capture Eskom.” DM

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