State Capture and the failure to implement the Zondo Commission’s recommendations

News Op-ed State Capture Profiteers Zondo Commission

July 30, 2025

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  Letlhogonolo Letshele

The Zondo Commission provides a valuable framework to eradicate State Capture and we must begin implementing its recommendations. We simply cannot afford another nine wasted years.

This year marks nine years since advocate Thuli Madonsela released the “State of Capture” report and three years since the “State Capture Commission” came to an end. R1-billion was spent on the State Capture Commission, yet we still have no significant progress in addressing State Capture cases.

What we do have is multiple excuses from institutions tasked with implementing the commission’s findings and recommendations. The Civil Society Working Group on State Capture has been tracking the implementation of the findings of the commission, and what we have found is a generally lacklustre approach to addressing State Capture.

How can we expect corruption and State Capture to be eradicated if we are failing to implement the most basic of recommendations that were set out in the commission’s report?

The Zondo Commission

The Zondo Commission, led by Former Chief Justice Raymond Zondo, was a commission of inquiry into allegations of State Capture, corruption and fraud in the public sector, including organs of State. It came about from the findings of former public protector Madonsela, who looked into allegations of crooked appointments of Cabinet ministers, directors and awarding of state contracts and other benefits.

Her key recommendation was the appointment of a judicial commission of inquiry headed by a judge. The terms of reference of the Zondo Commission were very broad in scope, with the commission being appointed to investigate matters of public interest concerning allegations of State Capture, corruption and fraud.

The commission found that State Capture did indeed take place between 2009-2018, the so-called “nine wasted years” of the Jacob Zuma administration. The commission made extensive recommendations, some specific and focused and others much broader and far-reaching, including recommendations for the investigation and potential prosecution of some individuals and reform of various government processes and institutions.

During this year’s State of the Nation Address, President Cyril Ramaphosa revealed some of the progress being made in addressing State Capture. According to Ramaphosa’s address, the SIU and Asset Forfeiture Unit had recovered R10-billion in State Capture-related cases.

Ramaphosa also said that Parliament would introduce two key pieces of legislation relating to State Capture, one on combating money laundering and the other on protecting whistle-blowers.

What is being done to ensure State Capture is addressed?

Asset Recoveries

The commission recommended coordinated action from various law enforcement entities including the Asset Forfeiture Unit (AFU), the Independent Police Investigate Directorate (Ipid), the Hawks, the Financial Intelligence Centre, South African Revenue Service (Sars), Reserve Bank, and the Special Investigating Unit (SIU) to achieve the recovery of monies lost to State Capture.

The progress in recoveries is very slow – only R10-billion has been recovered from State Capture investigations. The money that the state spent that was tainted by State Capture amounted to R57-billion, with Eskom and Transnet’s fraudulent contracts making up the biggest chunk.

Of this money, the Guptas received R15-billion. Some estimate that the true cost of State Capture and corruption during that period is in fact R500-billion. So the recoveries are a really small fraction of the cost of State Capture and corruption.

Combating money laundering

At the end of 2022, Parliament passed the General Laws (Anti-Money Laundering and Combating Terrorism Financing) Amendment Act, to avoid the “greylisting” of South Africa by the Financial Action Task Force (FATF). This was an important move toward ensuring financial transparency.

However, the challenge is ensuring the beneficial ownership register is functional, accurate and accessible. This year, the President said South Africa would strengthen the legislation with further legislative and systemic improvements. It should include these elements.

Whistle-blower protection

Most of the evidence from the Zondo Commission came from whistle-blowers, and the commission was very clear in its recommendations relating to whistle-blowers, detailed in Part I Volume 4. However, to date, the whistle-blower legislation framework remains incomplete.

In July 2023, the Department of Justice released a discussion document outlining proposed reforms. While the document includes several commendable proposals aligned with the Zondo Commission recommendations and civil society submissions, it fails to consolidate the existing complex and inconsistent legal framework, which remains a major obstacle for whistle-blowers.

Additionally, it dismisses the idea of offering incentives to whistle-blowers. Civil society has argued that the proposed legislation is inadequate, and the outcome of the legislation to be introduced remains uncertain.

Read Civil Society’s Collective Response to the Zondo Commission

During this year’s State of the Nation Address, President Cyril Ramaphosa revealed some of the progress being made in addressing State Capture. According to Ramaphosa’s address, the SIU and Asset Forfeiture Unit had recovered R10-billion in State Capture-related cases.

Ramaphosa also said that Parliament would introduce two key pieces of legislation relating to State Capture, one on combating money laundering and the other on protecting whistle-blowers.

What is being done to ensure State Capture is addressed?

Asset Recoveries

The commission recommended coordinated action from various law enforcement entities including the Asset Forfeiture Unit (AFU), the Independent Police Investigate Directorate (Ipid), the Hawks, the Financial Intelligence Centre, South African Revenue Service (Sars), Reserve Bank, and the Special Investigating Unit (SIU) to achieve the recovery of monies lost to State Capture.

The progress in recoveries is very slow – only R10-billion has been recovered from State Capture investigations. The money that the state spent that was tainted by State Capture amounted to R57-billion, with Eskom and Transnet’s fraudulent contracts making up the biggest chunk.

Of this money, the Guptas received R15-billion. Some estimate that the true cost of State Capture and corruption during that period is in fact R500-billion. So the recoveries are a really small fraction of the cost of State Capture and corruption.

Combating money laundering

At the end of 2022, Parliament passed the General Laws (Anti-Money Laundering and Combating Terrorism Financing) Amendment Act, to avoid the “greylisting” of South Africa by the Financial Action Task Force (FATF). This was an important move toward ensuring financial transparency.

However, the challenge is ensuring the beneficial ownership register is functional, accurate and accessible. This year, the President said South Africa would strengthen the legislation with further legislative and systemic improvements. It should include these elements.

Whistle-blower protection

Most of the evidence from the Zondo Commission came from whistle-blowers, and the commission was very clear in its recommendations relating to whistle-blowers, detailed in Part I Volume 4. However, to date, the whistle-blower legislation framework remains incomplete.

In July 2023, the Department of Justice released a discussion document outlining proposed reforms. While the document includes several commendable proposals aligned with the Zondo Commission recommendations and civil society submissions, it fails to consolidate the existing complex and inconsistent legal framework, which remains a major obstacle for whistle-blowers.

Additionally, it dismisses the idea of offering incentives to whistle-blowers. Civil society has argued that the proposed legislation is inadequate, and the outcome of the legislation to be introduced remains uncertain.

Parliament

The commission highlighted how parliamentarians failed in their duty to hold the executive accountable and prevent State Capture. Despite the commission’s damning findings, MPs continue to neglect their responsibilities, prioritising party loyalty over the public good.

Once again, we see most MPs not implementing the commission’s recommendations and essentially not recognising the importance of the process to strengthen democracy. Many seem unaware that they play an important oversight role over the Presidency and the appointment to SOEs and legislative reform.

Outa has closely monitored parliamentary activities and believes that Parliament’s ongoing failure to combat State Capture and entrenched corruption remains a major threat to democracy. Some of the accused in the State Capture Commission, like Lucky Montana, Brian Molefe and Siyabonga Gama, are serving as MPs in Parliament for the uMkhonto Wesizwe party.

Cedric Frolick, David Mahlobo and Malusi Gigaba serve as MPs for the African National Congress (ANC). These MPs oversee the institutions they are accused of collapsing and oversee the implementation of the Zondo Commission recommendations. Only a small number, such as Zizi Kodwa, have been held accountable, though with limited consequences.

Criminal Justice System (National Prosecutions Authority)

Most of the recommendations of the Zondo Commission were for further investigations and prosecutions. No high-profile politician or corporation has been successfully prosecuted. Even with enough evidence, the NPA has failed to prosecute major State Capture cases like Prasa, Transnet and Eskom.

Moreover, the collapse of the extradition of the Gupta brothers and the implosion of the Nulane case raise serious concerns around the NPA’s effectiveness in handling State Capture cases. The bungling of high-profile State Capture cases is unfortunate, because it shows that elites can get away with impunity because the state is failing.

Read more: NPA secures major State Capture win: Gupta associates and Free State officials face retrial

What should we be doing?

Without fully addressing State Capture at all levels, we continue a cycle of establishing commissions of inquiry without making the systemic change needed for non-repetition. We need to ensure that State Capture is fully addressed. For this to happen, all state parties need to come on board and do their part.

As for civil society, we will continue to apply pressure to state institutions and corporations to take accountability and redress their role in State Capture. The Civil Society Working Group on State Capture will continue tracking the implementation of Justice Zondo’s recommendations, and we will be coordinating campaigns on whistle-blower legislation and keeping an eye on the upcoming NDPP appointment process.

We simply cannot afford another nine wasted years. We need to spotlight the anniversary of the Zondo Commission to track the progress of State Capture and to keep the conversation concerning State Capture on the national agenda.

The true impact and cost of State Capture will never be understood. Its severe impact will continue to be felt by the most vulnerable in our society for years to come. The Zondo Commission provides a valuable framework to eradicate State Capture, and we ought to begin implementing its recommendations now.

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The post State Capture and the failure to implement the Zondo Commission’s recommendations appeared first on Open Secrets.

The principles established in the MTN-Turkcell case will have far-reaching consequences for the fight to hold corporations accountable for wrongdoing.

By Jane Borman and Ra’eesa Pather

First published in Currency News – June 30, 2025

In April, the Supreme Court of Appeal (SCA) delivered a landmark judgment against the MTN Group, giving the green light for South African courts to hear allegations that it acquired a telecommunications licence in Iran through bribery and corruption.

Behind the shocking allegations and complex legalese are important questions: should South African courts be able to adjudicate matters that involve allegations against South African corporations and foreign governments? And if not, how will this impact the fight for corporations to be held to account for human rights violations?

These questions have become more urgent in the wake of Israel and the US’s latest attacks on Iran in recent weeks. Iran shut down internet access amid the Israeli airstrikes in June, putting civilians in even greater danger. Open Secrets, in its report #ShutdownsEverywhereYouGo, documented how MTN, through its minority stake in Iranian telecoms provider Irancell, was complicit in shutting down internet services in Iran during periods of political unrest. Recent data on Iranian internet shutdowns shows that MTN Irancell continued to shut down internet services across the country between June 18 and June 25, the time of writing.

As Iranian civilians face increased danger, it is becoming vital that allegations of MTN’s corruption in securing its Iranian contract be finally tested to determine whether the company’s Iranian contract flouted law, and if MTN has any legitimate reason to have business in a country where it is also facing accusations of human rights violations.

Who, what, where?

The legal saga between the MTN Group, headquartered in South Africa, and Turkish telecoms operator Turkcell dates back to 2003, when the Iranian government advertised a mobile services tender that would culminate in Iran’s first private cellular network. Initially, the East Asian Consortium (EAC), a subsidiary of Turkcell, was awarded the $31.6bn deal. But in late 2005, the Iranian government changed tack and signed a 15-year renewable mobile licence contract with the MTN Group.

The deal handed the MTN Group, through its subsidiaries, a 49% stake in MTN Irancell, while entities linked to the Iranian government owned a 51% majority.  The licence was extremely lucrative: in its first year of business, the MTN Group earned R144m in profits. But Turkcell did not leave the deal quietly.

Since 2005, Turkcell has launched several legal actions against the MTN Group and the Iranian government in courts in Tehran and the US, as well as before international tribunals. Turkcell’s arguments include serious allegations against the MTN Group of bribery of public officials and leveraging political networks to secure the Irancell deal.

As a result, Turkcell is seeking damages for billions of US dollars in losses arising from its ousting from the contract. However, jurisdiction issues – a legal question around where a case can or should be heard – have meant that no court or tribunal has yet adjudicated Turkcell’s evidence of bribery and corruption against MTN.

In 2013, Turkcell  approached the South African courts and now its evidence may finally be heard in a court of law. Unless the Constitutional Court decides otherwise.

The South African case

While Turkcell ultimately seeks a verdict on whether the MTN Group obtained the Iranian licence unlawfully, the preliminary question before the South African courts is whether they can hear the merits of the matter at all.

MTN has raised three separate arguments for why the South African courts should not do so. The argument with the most far-reaching consequences for corporate accountability goes as follows: due to the need to respect foreign countries’ sovereignty and autonomy, South African courts should not hear matters related to South African-headquartered transnational corporations (TNCs) and their business dealings with foreign governments.

While the high court agreed with the MTN Group – that to hear this case would result in the Iranian government’s actions being “scrutinised and judged by South African courts” and which went against the relationships between nations – the SCA overturned this ruling. Instead, it stated that competing values and interests must be weighed against one another. In this case these values include the importance of respecting foreign governments’ sovereignty and autonomy versus the constitutional imperative on the state (including courts) to address corruption and uphold the rule of law. The SCA ultimately found that the constitutional rights and duties in question outweighed other considerations.

Why does this matter for human rights?

Recent decades have seen increasing scrutiny on the conduct of TNCs, many of which wield enormous power. There is also an ever-increasing blur between the public and private spheres as government entities procure often essential services from private sector actors, Daniel Nyberg writes in “Corporations, Politics, and Democ­racy” in Organisational Theory. However, the development of laws and regulations to hold TNCs legally accountable for their wrongful conduct – at both a national and international level – have often not kept pace.  

One of the key barriers to accountability is the structure of TNCs themselves. TNCs usually comprise a network of companies spanning multiple countries with some form of centralised control – most often a parent company headquartered in one country.  Those in charge – the C suite and board of directors – are often able to plausibly distance themselves from actions taken by subsidiaries in different countries, leading to real challenges in holding parent companies and the ultimate decision-makers liable.

For many, the MTN Group represents a reliable and ubiquitous cellphone network, with cheerful advertising and billboards plastered with sunny yellow. However, it is also a multinational behemoth operating in more than a dozen countries mainly across Africa and the Middle East, and with significant influence. Even its chair, Mcebisi Jonas, has now joined the South African government’s envoy to the US – a marker of the close ties between TNCs and state governments.

While MTN has been lauded as a trailblazing TNC – exemplifying South Africa’s post-apartheid global economic agenda – Open Secrets reporting details credible allegations of internet shutdowns and associated human rights abuses perpetrated by MTN in co-operation with foreign governments in the Middle East and Africa.

Though the particular question of internet shutdowns and their impact don’t make up the current case against MTN, this matter will be a litmus test for how our  courts choose to regulate South African TNCs. In a powerful judgment, judge David Unterhalter, writing for the SCA majority, recognised what was at stake. He stated that that while Turkcell “brings a private law claim for damages … it seeks to hold to account defendants […] in respect of a powerful group of South African companies, which are alleged to have corrupted the government of South Africa for private commercial gain”.

He also elaborated on the courts’ role in providing oversight to TNCs, stating: “When a court has before it a case in which defendants are alleged to have committed serious acts of corruption involving high officials of the South African and Iranian governments, which, if proven, are deeply inimical to our constitutional order, it must consider the importance of adjudicating such a case in the interests of affirming the rule of law and upholding constitutional supremacy, as its primary duty … The allegations … are matters our courts will not lightly retreat from adjudicating upon. That is so because conduct of this kind, if proven, is corrosive of our constitutional order.”

While the financial losses of a Turkish telecommunications conglomerate may not keep you up at night, the principles established in this case will have far-reaching consequences for the fight to hold corporations accountable for their wrongdoing. If MTN is ultimately successful, then South African TNCs will be immune from legal scrutiny in South African courts for any unlawful activities, so long as they did their wrongdoing in collaboration with a foreign government. This would be a step back for the global fight against transnational corporate accountability as well as the promotion and protection of South Africa’s constitutional order.

MTN has now filed for leave to appeal the SCA’s judgment in the Constitutional Court, signalling that this particular legal fight is not over yet.

Jane Borman is an attorney at Open Secrets and Ra’eesa Pather is a senior investigator at Open Secrets.

Open Secrets is a non-profit organisation which exposes and builds accountability for private-sector economic crimes through investigative research, advocacy and the law. To support our work, visit Support Open Secrets.

The post The R74bn MTN lawsuit – a litmus test for corporate accountability appeared first on Open Secrets.

Despite loud claims to the contrary, some form of wealth tax in South Africa — especially of the very wealthiest — is both the right thing to do, and possible to achieve.

Published in Daily Maverick

By Michael Marchant

Following the unprecedented delay to the tabling of the Budget in February, there has been an inevitable flurry of opinions on where the state can find more revenue and where it can cut spending.

One of the most vocal arguments, especially in the pages of business media, has been a blanket and scathing dismissal of any kind of wealth tax. This argument not only ignores important realities in South Africa, but also glosses over recent global debates around the continued need to tax the very wealthiest, and how to do so.

Why the wealthiest can pay

The statistic cited the most often over the past two weeks is that 235,000 people (0.3% of the population) pay about a third of all personal income tax. As a result, the argument goes, a wealth tax is a non-starter because it would simply squeeze an overtaxed group too much, and many of this group would either emigrate or find ways to avoid paying.

This statistic is a disturbing one. It reminds us that the country’s tax base is vanishingly narrow, and that the economy urgently needs to grow and create jobs. But using this statistic to end discussions about a wealth tax is problematic for two reasons.

First, a high tax burden on people earning more than R1.5-million a year is not the most important injustice in South Africa. I would argue that a more important statistic is that the six wealthiest South Africans have a total wealth of R553-billion, while about 14 million people do not have the R27 a day needed to be above the food poverty line. We should not lose sight of the fact that inequality is the fundamental injustice that South Africa’s economic policy must address.

And second, the argument blurs the lines between high income earners and the wealthy, especially when it comes to tax. The 2024 Global Tax Evasion Report by the EU Tax Observatory shows that global data suggests that income tax actually becomes regressive and even converges to zero at the very highest percentile of income.

Put simply, most billionaires around the world pay negligible income tax relative to their economic income, and are thus undertaxed.

There are many reasons for this, including that wealthy individuals avoid paying income tax through various corporate or trust structures available to them where they live. As the report argues: “The fundamental problem is that income flows are difficult to measure and tax for very wealthy individuals, who can easily structure their wealth so that it does not generate much taxable income.”

Tax avoidance strategies

In 2021, ProPublica released Internal Revenue Service data showing how the world’s wealthiest men (Jeff Bezos, Elon Musk, Michael Bloomberg, Warren Buffet and George Soros) managed to regularly pay no federal income taxes due to tax avoidance strategies. Buffet and Soros are among the billionaires who have since called for a wealth tax.

In response to the rampant tax avoidance of the world’s wealthiest individuals, the EU Tax Observatory has called for an internationally coordinated mechanism to tax high net worth individuals who have at least $1-billion in wealth. The recommendation, which was presented to the G20 last year under Brazil’s presidency, calls for an annual tax equal to 2% of these individuals’ wealth, not just their reported income. The report estimates that this could generate global revenues of up to $250-billion per year from just 3,000 individuals.

It is instructive to look at South Africa’s six high net worth individuals (those with more than $1-billion in wealth). They are Johann Rupert, Nicky Oppenheimer, Koos Bekker, Patrice Motsepe, Michiel le Roux, and Christo Wiese. Together, these six individuals and their families are worth about R553-billion, according to latest estimates by Forbes.

A 2% annual tax on this wealth would bring in about R11-billion to South Africa’s fiscus, equal to more than two years of the National Prosecuting Authority’s annual budget.

Importantly, this would pale in comparison to the nearly R80-billion growth in these individual’s collective wealth last year, indicating that such a tax would not be unsustainable.

This is an important observation of the EU Tax Observatory — the global average “pre-tax rate of return to wealth for ultra-high-net-worth individuals (net of inflation)” over the past 40 years has been 7.5%, indicating that these individuals could absorb the higher effective tax rate.

Notably, a group of 260 billionaires wrote an open letter to world leaders at the World Economic Forum in Davos in 2024, calling for them to be taxed more fairly. They wrote: “Our request is simple: we ask you to tax us, the very richest in society. This will not fundamentally alter our standard of living, nor deprive our children, nor harm our nations’ economic growth. But it will turn extreme and unproductive private wealth into an investment for our common democratic future.”

This is not to say that only these six dollar-billionaires should be subject to a South African wealth tax. Any such tax should be broader than that. However, it does illustrate the problem with the blanket claim that the wealthiest in South Africa are overtaxed and could not absorb a wealth tax.

Why a global solution is necessary, and possible

The other argument commonly used to negate calls for a wealth tax is that it is too easy to avoid or evade. There is an element of truth to this. The use of shell companies, secrecy jurisdictions, and other murky corporate vehicles to avoid or evade tax is commonplace.

As noted above, the current reason that the wealthiest are undertaxed is largely because of their ability to structure wealth to avoid paying tax. Despite this, global research suggests that tax-driven migration to other countries is often overstated.

However, the bigger flaw with this argument is that it treats global financial secrecy as a fixed variable. As the EU Tax Observatory notes, “tax evasion is not a law of nature, but a policy choice” — multilateral and domestic action can be used to change the rules of the game to reduce tax avoidance.

A powerful example is found in the 2024 Global Tax Evasion Report, which shows that multilateral action to ensure automatic exchange of bank information has dramatically decreased offshore tax evasion by a factor of three in just 10 years.

This coordinated challenge to banking secrecy was once thought unthinkable, but it has been a significant success, even as other global efforts such as a minimum tax rate for corporations have been watered down.

The kind of global cooperation required is the reason Brazil brought the argument for a global minimum tax on high net worth individuals to the G20. As noted in the report commissioned by the G20 Presidency, getting sufficient buy-in to a global minimum tax standard would add significant value to domestic efforts to tax the wealthy.

The purpose of tax

A tax on high net worth individuals or other forms of wealth tax in South Africa are not a standalone solution to the current budget crisis. As argued by the Institute for Economic Justice, it is one in a host of possible options that could be used to generate more revenue, avoid austerity, and be utilised in the pursuit of more equitable and sustainable growth.

It is easy to get drawn into a narrow discussion about revenue figures and spending cuts that will “balance the books”. But we should not lose sight of the fact that who pays tax and how much is a question fundamental to our democracy, and the kind of society we want to live in.

We can choose a more equitable future, and how we tax the wealthiest in our society is central to that choice.

The post Nibble the rich? A case for taxing the wealthiest South Africans appeared first on Open Secrets.

Published in the Mail & Guardian

By Michael Marchant

The ongoing failure of South Africa’s investigative bodies and prosecuting authority to secure accountability for high-level corruption and economic crime is one of many serious risks to the country’s future. While reforming these agencies will take more than money, the government’s commitment to austerity risks undermining efforts to challenge the impunity currently enjoyed by the wealthy and powerful.

The Zondo Commission’s final report made strong findings on the systemic causes of state capture, and called for institutional and legislative reform. But it also called for criminal investigation and prosecution of hundreds of politicians, companies, and fixers that facilitated and benefitted from corrupt deals during the era of Gupta-led state capture. I am writing this just shy of two years on from the release of the first volume of the report. In that time, while several high profile criminal cases have been enrolled by the National Prosecuting Authority (NPA), no convictions have been secured. The first high profile case to reach trial – the Nulane case in the Free State – spectacularly fell apart. The case was dismissed without the accused having to present a case, and the judge excoriated the NPA and police’s failings. In other instances, cases have been enrolled but repeatedly delayed, often at the NPA’s request.

One of the causes for these ongoing failures is a key characteristic of state capture that the Zondo Commission elected not to address. This was the decades long interference and capture of key law enforcement institutions, including the NPA and the Directorate for Priority Crimes Investigation (DPCI) – the Hawks. Some of this interference, including the disbanding of the Scorpions and interference at the NPA, predated Jacob Zuma’s presidency. However, evidence was presented to the Commission that showed how this pattern continued during the Zuma administration.

Senior officials were appointed to the NPA and the Hawks to act as deliberate bottlenecks to slow down or undermine cases. In a report on this issue – Bad Cops, Bad Lawyers – Open Secrets showed how these bottlenecks instituted charges against corruption fighters without sufficient evidence and unduly delaying important high-profile cases. The report argued that holding these officials accountable was vital for any true reform of these agencies.

Austerity adds a hurdle

Given the above, it will take more than money and resources to reform these agencies. Yet properly resourcing them is still an essential part of empowering them. Unfortunately, the government’s steadfast commitment to austerity puts this at risk.

In a statement on the recent Medium-Term Budget Policy Statement (MTBPS), the Institute for Economic Justice (IEJ) described government’s pursuit of growth by continuously cutting spending on basic services and other important areas as akin to “trying to drive uphill with the handbrake on”. The IEJ’s argument is that an obsession with cutting spending ignores the potentially catastrophic social and economic consequences that will result in the short and long term.

This metaphor of trying to drive uphill with the handbrake on is apt when considering government’s stated support for accountability alongside its failure to adequately resource the Hawks and NPA. Over the last few years, these agencies have repeatedly argued that real-term declines in their budget allocations have left them with insufficient skills and resources to do their work. In 2021, the NPA warned that it would not have sufficient budget to pay the prosecutors that it needed to undertake its work. In 2022, it called for more than R2 billion extra over three years in order to “successfully prosecute state capture cases”. In September 2023, following further budget cuts, it abruptly announced the suspension of any intake for the 2024 aspirant prosecutor programme due to “government wide budget cuts”.

In its 2020-2025 strategic plan, the NPA explicitly says that budget cuts and austerity have ‘dented’ initiatives to improve skills and strengthen the organisation. While the government has argued that making the Investigating Directorate (ID) a permanent institution is a key part of its efforts to address corruption, there are serious concerns that there will be no money available to properly resource it when it is made permanent.

It is a similar story when it comes to the Hawks. The Hawks is in theory the elite police unit tasked with undertaking investigations into the most complex and important cases linked to corruption, corporate criminality, illicit financial flows, and organised crime. In 2022, the Hawks told parliament that it was operating with less than half the staff it required, and that it had insufficient investigators to take on complex cases. This came a year after it was revealed that Steinhoff had provided R30 million towards the investigation of the fraud at the company because the NPA and Hawks didn’t have the budget for such a complex investigation. Not only did this mean that the investigation was “irretrievably contaminated by conflicts of interest”, but there has still been no criminal charge brought against Markus Jooste, the former Steinhoff CEO who masterminded the fraud and who has been indicted in Germany.

Government’s failure to provide these institutions with adequate resources reflects two important facts about the status quo. The first is this government’s poor and sometimes bizarre prioritisation. In the current financial year, the state is shelling out R3.76 billion for VIP protection services for a couple of hundred prominent politicians. It is only providing R2.2 billion for the Hawks. This is just one example. Over the last ten years, the state has spent nearly R50 billion on bailing out the chronically mismanaged state airline South African Airways, while spending on law enforcement agencies and other social spending has plateaued or been cut in real terms.

The second is the government’s short-termism that ignores the real long term cost of weakened law enforcement institutions. In purely monetary terms, skilled and resources law enforcement agencies are better able to retrieve stolen assets and recover the proceeds of crime for the state. By February 2023, the NPA had obtained R13 billion in freezing orders, nearly triple the NPA’s annual budget. Ensuring that all of these assets are subsequently forfeited to the state requires the NPA to be properly resourced. Further, delayed investigations and prosecutions allow other stolen assets to be dissipated and undermine the chance of recovery.

There are also important systemic benefits to having law enforcement agencies able to investigate and prosecute the powerful and well resourced. It breaks cycles of impunity and disrupts the corrupt and criminal networks who themselves are integral to efforts to undermine and capture law enforcement agencies. It is also essential to rebuild public trust in the state. Further, while individual prosecutions can’t bring about immediate systemic change, regular convictions of private and public actors is vital in changing the calculus for those engaged in crime by ensuring consequences for criminal conduct.

We should also not forget the international consequences for the country as a result of South Africa’s law enforcement failures. Speaking in November 2023, Finance Minister Enoch Godongwana admitted that the single most important obstacle to South Africa’s removal from the Financial Action Task Force (FATF) ‘grey-list’ is the ongoing failure to demonstrate that the country can investigate and prosecute complex money laundering and other financial crimes, and to recover the proceeds of those crimes.

Inequitable results

As I have argued above, more money alone will not turn around agencies like the NPA and the Hawks. Both are undermined by their lack of institutional independence from the executive, as Open Secrets and others in civil society have recently argued to parliament. Neither have shown sufficient desire to get their own houses in order and pursue accountability for their own who are implicated in malfeasance and a failure to do their jobs. Nonetheless, the evidence suggests that any efforts at reform are also undermined by the government’s programme of austerity.

As with all the consequences of austerity, this has inequitable outcomes. The greatest beneficiaries of weakened law enforcement are powerful politicians, large corporate actors, and their executives who are implicated in often complex economic crimes and state capture. While they often bemoan state failure, they benefit from a continued failure to investigate and prosecute their conduct. The wealthy and powerful are also better able to protect themselves from the other negative consequences of the failure of law enforcement and prosecuting agencies.

South Africa’s history lays bare the price of impunity for economic crimes. Treasury insists the country can’t afford to properly fund these institutions. It should ask if we can afford not to.

The post Injustice and Impunity: Crime and corruption in austerity’s wake appeared first on Open Secrets.

Hennie van Vuuren | Daily Maverick

In the past week, Open Secrets has challenged both the South African Presidency and the US government to make public details of the mysterious cargo of the Russian vessel Lady R which docked in Simon’s Town in December 2022. The public has the right to know if arms were loaded on to the Lady R and who will use these.

Arms have always been the Achilles’ heel of the powerful in South Africa. During apartheid, they were the lifeblood of the regime. In the first years of democracy in SA, an arms deal with European powers thoroughly corrupted our politics and paved the way for State Capture and what followed. Nearly every major arms transaction in South Africa has been mired in scandal and cover-ups.

A bloody business

As recent Open Secrets investigations show, arms deals are also mired in murder, including that of innocent civilians in the Rwandan genocide where a South African arms dealer, Ters Ehlers, facilitated an arms deal with a bloody legacy.

In the past decade, weapons manufactured in South Africa have been used to target civilians in a bloody war in Yemen. Our investigations show a direct correlation between a rising body count in that country and an international order book of weapons from Saudi Arabia and the United Arab Emirates. These weapons have been supplied by many countries seeking to profit from misery, including South Africa and Nato member states like the US and the UK.

It is therefore fair for South Africans to be circumspect about the claim and counter-claims concerning the cargo that was loaded on to the Lady R in early December 2022.

A sanctioned Russian ship docking in South Africa’s most important naval base rightly set off alarm bells. What was loaded off the ship is less relevant than the cargo that was onboarded and whether it was destined for the war zone in Ukraine or any hot conflict in Africa. While South Africa’s minister of defence, Thandi Modise, has been reduced to arguing in expletives, we need evidence to substantiate facts — on all sides.

South Africans’ national interest

South Africans’ interest in this matter are two-fold: More than two decades ago we created laws and institutions which are meant to ensure that weapons from South Africa are not used to harm human rights across the globe. There is no doubt that South Africa’s National Conventional Arms Control regime is routinely abused, and civil society is working to fix this.

Importantly though, we have a legal commitment to ensure that weapons are not sold to bad actors who seek to undermine human rights. Russia, which invaded Ukraine and routinely bombs civilians there, is no ordinary regime. Any weapons sales to Moscow at this time not only undermine South Africa’s stated policy of neutrality but would also suggest allyship with an abuser.

Second, South Africa has become a target of ire from the US whose ambassador has “bet his life” on the fact that South Africa did load weapons on to the Lady R. This is no storm in a teacup, as his comments on behalf of the US government led to a weakening of the rand and an exacerbation of economic hardship for many South Africans during a troubled time.

Read Daily Maverick’s coverage of the Lady R in South Africa

The Lady R shipment is therefore about more than just international intrigue — it is harming people’s lives and hence we have the right to know the truth behind these allegations.

Washington, free the secrets 

On 2 June, Open Secrets submitted Freedom of Information requests to US government departments and agencies which we believe should have records which can show what, if anything, was loaded on to the Lady R.

Using the US Freedom of Information laws, we have asked the US State Department and three key intelligence agencies for access to such material, namely, the Central Intelligence Agency, National Security Agency, and Defense Intelligence Agency.

We have specifically asked them to provide us and the South African public with any records which reference allegations and evidence of any materials loaded on to the Lady R while she was docked in Simon’s Town. This includes weapons, ammunition and any other equipment.

We wrote to Brigety on the same day requesting that instead of wagering his life on public claims of an international conspiracy he works with his government to ensure that such information is made public given the US adage, “Sunlight is the best of disinfectants.”

We know that the US has a history of playing fast and loose with facts when it comes to so-called national security issues. There are not enough candles on Henry Kissinger’s 100th birthday cake to commemorate each US-instigated cover-up and action which has resulted in civilian tragedy, from the bombing of Cambodia to the bombing of Iraq.

If President Joe Biden’s administration wishes to commit to an international rules-based order — and not rumours — then it should release evidence of what was indeed loaded aboard the Lady R.

Conjecture and speculation risk souring South Africa’s international relations and tarnishing its integrity.  They also play into the hands of disinformation warriors and are bad for democracy.

Pretoria, we demand an open and independent inquiry

US Justice Damon Keith, an African American who fought against racial injustice, was responsible for landmark rulings which stopped US administrations, from Richard Nixon to George W Bush, undermining that country’s constitutional order. In a famous 2002 judgment concerning secret hearings which were being used to illegally deport US residents in the wake of 9/11, he warned: “Democracy dies behind closed doors.”

In the past few days we have learnt that the South African Presidency plans to backtrack from its commitment to an open process and thorough investigation of the Lady R matter led by a three-person panel chaired by retired Judge Phineas Mojapelo.

Instead, the work of the inquiry, we have now learnt, will take place in secret. If true, this will be a charade which must be roundly rejected. Why would the Presidency need a committee to give it a secret report when the hundreds of spies the South African government employs should have been able to provide the President with an answer months ago? This reeks of a cover-up.

Open Secrets wrote to the Presidency on 5 June expressing our concern that the current approach conceals important matters which are in the public interest behind a veil of secrecy without sufficient justification, and purportedly because of the broadly defined conception of “national security”.

We have drawn the Presidency’s attention to simple remedies which can be applied to ensure that access to material which is not relevant to this inquiry can be restricted.

Our immediate concerns include:

• That there are no regulations proclaiming the establishment of the independent panel, presumably as a commission of inquiry, in terms of section 84(2)(f) of the Constitution, read with the Commissions Act 8 of 1947.
• That the independent panel will have unknown authority and powers, particularly regarding private actors.
• That the terms of reference of the independent panel will not be made public.
• That the proceedings and evidence led before the independent panel will be shielded from public scrutiny.
• That the findings of the independent panel will not be made public.
• That the independent panel will only report their findings directly to the Presidency, and there is no commitment that the independent panel’s findings will subsequently be made public.

We call on the Presidency to urgently make known the terms of reference of the independent panel public and ensure that civil society is allowed to engage in an open process which seeks to serve the public interest. Should the Presidency remain committed to a closed process, Open Secrets will consider approaching the courts with a request that it open the doors and preserve the public’s right to know.

The post Democracy dies behind closed doors — open the Lady R inquiry appeared first on Open Secrets.

Transnet and the SIU must do a U-turn on their outrageous settlement with Liebherr

by Open Secrets

First published in Business Live

In January this year, the Special Investigating Unit (SIU) and Transnet issued a joint statement. The statement confirmed that they had entered into a preliminary settlement agreement with the Swiss multinational firm Liebherr on the final day of 2022. The settlement is an outrage and lets a key corporate participant and beneficiary from state capture off the hook. It must be rejected.

Liebherr was one of the companies that benefited from the extraordinary corruption at Transnet at the height of the Gupta-led State Capture period. Liebherr’s South African subsidiary was awarded a contract to supply 18 rubber gantry cranes to Transnet at a cost of R841m in 2014. The value of an earlier contract, awarded in 2013, has not been made public.

The #Guptaleaks revealed that Liebherr won its business with Transnet with the assistance of the Guptas, which Liebherr belatedly admitted. The #Guptaleaks showed that Liebherr paid the Guptas’ Dubai based shell company, Accurate Investments, a total of $3,232,430.88 between July 2013 and May 2014. Evidence presented by civil society organisation Shadow World Investigations (SWI) at the Zondo Commission showed that a good deal of this money was ultimately laundered back into the accounts of Gupta companies in South Africa.

The Zondo Commission made damning findings on Liebherr and Accurate Investments. It confirmed that ‘the Gupta-leaks and Dubai ledgers in particular show that Accurate Investments was beneficially owned and controlled by the Gupta enterprise, and its function was to act primarily as a vehicle through which kickbacks could be laundered.’ The Commission additionally found that ‘it is difficult to conceive of any legitimate payments that could have been made by Liebherr to a “sales agent” in respect of a cranes contract that ought to have been awarded by a fair, competitive and transparent process.’ 

Second, the amount paid by Liebherr is so small that not only will it not be a deterrent, but the company also will likely still end up making a profit on its dodgy contracts. Indeed, the Transnet-SIU statement confirms that the Liebherr cranes will continue to be operated by Transnet. The result is that, over the life-time of the cranes, Transnet will pay Liebherr substantial sums to maintain and service them. So, Liebherr can still expect to make a profit on a deal they got by paying off the Guptas.

Third, it is deeply disturbing that the SIU and Transnet are saying that, despite the contracts being irregular, it found no corruption. Clearly, considering the Zondo Commission findings, neither the SIU nor Transnet could have tried particularly hard to find it.

Why would the SIU and Transnet choose to ignore #Guptaleaks evidence that emerged at the Zondo Commission? This evidence showed that confidential Transnet procurement documents related to the contracts won by Liebherr were being shared and distributed by the Gupta enterprise. One confidential internal memo was even shared with an employee of the Indian money laundering group that the Guptas used to launder billions of rands in kickbacks on the 95, 100 and 1064 locomotive contracts at Transnet.

Fifth, this statement could have a material impact on criminal investigations into Liebherr in South Africa and abroad. If the NPA now wants to investigate and bring charges, it will have to explain to a court why it came to such a different conclusion to the SIU. But most importantly, Liebherr can now present this half-baked and ill-considered statement to law enforcement in Switzerland and other jurisdictions to halt investigations there.

This last fact is extremely important. The only thing that Liebherr will truly fear is a criminal investigation and conviction for corruption in South Africa or Switzerland. Liebherr have repeatedly stated that they employ ‘sales agents’ like Accurate Investments around the world. If their offices were raided in Switzerland, how many other questionable payments would be found that mirrors their engagement with the Gupta enterprise?

And if they were convicted, Liebherr could face debarment from contracts in the EU and other countries. This could cost Liebherr tens of billions of euros. Arguably, considering their conduct, this is exactly the sort of punishment that Liebherr deserves – and fears the most.

Finally, this sort of settlement is not just a snub in the face of South Africans: it sends a powerful message to the many multinational companies operating in South Africa that paying bribes works. Moreover, it confirms that, even if these multinationals are caught, they can simply negotiate a sweetheart deal that avoids accountability, kills investigations abroad, and guarantees long-term excessive profits.

Transnet and the SIU still have to go to High Court or Special Tribunal to get this deal officially approved. They must not do so, and instead should scrap this capitulation. However, if they decide to continue down this path, any settlement must achieve two things, at a minimum.

First, the settlement must ensure that Liebherr cannot make anything approaching a profit on its contracts in the long-term, or even be allowed to break even. Indeed, it is more appropriate for Liebherr to pay a substantive  fine that properly quantifies the horrific damage caused to South Africa’s social, political and economic fabric through its indulgence of the Guptas. Money cannot undo social damage – but it is a start.

Second, the settlement must also withdraw any claims about not finding corruption or fraud – this is simply a get-out-of-jail free card that protects Liebherr from criminal sanction, and a statement that the SIU and Transnet must know cannot stand up to any real scrutiny. Corporations like Liebherr are not the publics allies in stopping state capture – they are the architects of corruption and will happily continue to make corrupt unless we stop them.

South Africans must send a clear message to multinational companies around the world: you can no longer bribe your way to contracts, enable corrupt political elites, kill off domestic competitors and destroy our institutions. You will be rewarded for such crimes with meaningful accountability and prosecution.

We’ll make sure you get away with it.

The post How Not to Fight State Capture appeared first on Open Secrets.

By Open Secrets and Black Sash

Published in the Daily Maverick

With a reputation of being incapable of managing the technical constraints of its internal systems, it must be questioned why the South African Social Security Agency and the South African Post Office would make Postbank the preferred partner to take over the administration of social grant payments.

Postbank’s technical ‘glitches’ are nothing new

Postbank officially took over the social grants payment system from Sapo on 31 October 2022 and its system immediately experienced technical failures that disrupted grant payments.

In December 2022, Postbank announced that ATM use for the Postbank/Sassa gold card had been suspended for December and that beneficiaries using these cards should collect their grants at retail stores. The reason given was the uncovering of attacks on the Postbank system by criminal elements “determined to commit systematic ATM card fraud-related crimes on Postbank payments” which required further investigation. Many retail stores ran out of cash, leaving beneficiaries unpaid.

PostBank had an emergency meeting with Sassa in December 2022 in an effort to resolve the issues, but the Postbank CEO was noticeably absent from the meeting, since he was on leave in a time of a crisis.

Postbank explained the suspension of ATM use as risk mitigation against fraud. Despite Postbank’s undertaking to inform stakeholders upfront of any action taken, Postbank was noticeably quiet in the media regarding the challenges with grant payments which continued in January 2023.

Despite the promise that these issues would be resolved in December, Postbank faced similar problems in January 2023, with recipients not being able to access their grants. All of this indicates that Postbank was ill-prepared to take on the responsibility of managing social grant payments. Yet, such issues have been persistent throughout the state entity’s existence.

In November 2022, the Mail & Guardian reported that Postbank’s irregular expenditure had risen by R118-million and that it had not reached its 2021-22 target of acquiring a commercial banking licence. Senior manager at the Auditor-General of South Africa, Joyce Nkonyane, told Parliament’s Portfolio Committee on Communication that the inappropriate spending came from various contracts.

The article reported that one of the major irregularities was that Postbank failed to safeguard the issuing of bank cards for its client, Sassa, which resulted in the loss of R68.8-million in cards that were not accounted for. These Postbank cards were meant for Sassa grant recipients who used Postbank accounts for their grant payments.

Additionally, Postbank’s failure to protect its internal systems and manage the cards led to stolen Sassa cards being used to commit fraud amounting to R13.6-million.

Moreover, in March 2022, Postbank confirmed that a cybercrime attack had resulted in a financial loss of about R90-million, though it claimed no customers had been affected by the loss.

AmaBhungane reported that “between 16 and 28 October last year (2021) individuals presumed to be either employed by Postbank or by a Postbank contractor stole at least R89,459,330 in physical cash through Sassa accounts. The brazen fraud involved illicitly crediting grant beneficiary accounts with large sums and then emptying these accounts out at ATMs.”

It was not the first time Postbank had suffered a cybercrime attack. In 2012, a hacker stole R42-million from the state entity when an employee’s computer was used to transfer money from the bank’s main server.

There have also been technical glitches within the Postbank system leaving recipients of the R350 Social Relief of Distress grant unable to get their grants. This problem was eventually resolved, but it highlighted concerns about Postbank’s ability to maintain adequate protections in its internal digital systems.

There has been little accountability for any of these issues, with the Auditor-General telling Parliament that it had noted a clear “failure of having enough consequence management efforts and no internal process established to deal with consequence management”.

What next to protect grant recipients?

With a reputation of being incapable of managing the technical constraints of its internal systems, it must be questioned why Sassa and Sapo would deem Postbank the preferred partner to take over the administration of social grant payments.

It has become evident over the past three months that Postbank may not be suitable to maintain the critical responsibility of making grant payments. It certainly raises even greater concern about the secretive nature of and lack of public engagement on the decision.

If Postbank is to remain Sassa’s preferred partner, then questions need to be raised as to how and when Postbank will address its internal control failures and fraud problem. Sassa, Sapo and Postbank must also be more transparent on the details and implications of Sapo ceding its responsibilities to Postbank. The public needs urgent answers to the following:

• What informed the decision to cede Sassa’s contract with Sapo to Postbank?
• Why was no notice of the proposed cession given to the public, particularly social grant beneficiaries?
• Why were beneficiaries not kept updated about the reasons for the delays in payments and how Postbank planned to address the issues?
• Given the experiences of grant beneficiaries over the past three months, is Sassa and the minister of social development satisfied that Postbank is able to fulfil the functions required of it in terms of this agreement?
• What measures have Sassa and the Postbank taken to protect grant beneficiaries from the effects of Postbank’s lack of expertise and capacity to fulfil the obligations to administer and pay the grants?; and
• What oversight mechanisms are currently in place between the Department of Social Development, Sassa and Postbank to ensure the efficient payment of social grants?

The post Social grant payments are a mess – and the public needs answers from Sassa, Sapo and Postbank appeared first on Open Secrets.

By Luvo Mnyobe

Published in City Press

This is how democracy dies.

These were my thoughts as I scrolled through Twitter and saw a shameful video of Hlaudi Motsoeneng trying to humiliate senior SABC News journalist Francis Herd. Motsoeneng was appearing on Full View, a prime-time news programme, to give his view of the Judicial Commission of Inquiry into Allegations of State Capture’s final report, which focused on corruption and fraud at state-owned enterprises.

Less than a week after the Zondo commission report was released, the SABC invited Motsoeneng for a live interview. The broadcaster explained in its blurb on YouTube that it thought it wise to interview him because “he’s implicated; he’s willing to speak to us”.

But this reasoning is not enough to carry an interview with an individual implicated in state capture, especially by a public broadcaster that has a duty to provide quality and accurate news.

In the final volume of the Zondo commission report, Chief Justice Raymond Zondo found that controversial former SABC chief operating officer Motsoeneng, along with former SABC group CEO Lulama Makhobo, must be investigated with a view to possible criminal prosecution “for possible violation” of the Public Finance Management Act (PFMA). This relates to a finding that the pair may have violated a part of the PFMA related to the SABC’s partnership with The New Age newspaper’s business breakfast briefings, which were platforms for prominent individuals.

Not much to add

The interview had little value other than to give Motsoeneng the opportunity to bully Herd and manipulate the facts. On numerous occasions during the interview, Motsoeneng suggests that he did her a favour by hiring her at the SABC. He suggests that she should thank him because her children are fed through his generosity of giving her the job when he was still in charge.

This attack was an attempt to silence Herd and to sully the crucial questions that he has to answer regarding his role in looting at the SABC.

As chief operating officer, Motsoeneng introduced a policy for the SABC not to broadcast “violent” protests in South Africa in 2016. At the time, the SABC 8 – a group of senior journalists who resisted the interference with their work – stood against these attempts to censor their news coverage and frustrate their journalistic independence. The journalists were victimised through continued intimidation and death threats. One example is of Suna Venter, who was shot in the face with a pellet gun, resulting in surgery to remove metal pellets from her face.

Manipulating Facts

At the beginning of the interview, Motsoeneng offers to lecture Herd on the PFMA. When she challenges him on this, he goes on to claim that Zondo did not write the commission’s report, suggesting that there is a third force that is attempting to tarnish his good name. This claim is baseless and should have been reason enough to cut the interview.

Continuing the broadcast of a live interview with a guest intent on dishing up falsehoods only serves to fuel misinformation. This is evident in the comments on Twitter and YouTube – where the clip has gone viral – that have been celebrating “proof” that journalists are spreading “propaganda” and not reporting on facts.

“He completely destroyed this so-called commentator,” said one viewer, referring to Herd. One can only imagine how many other viewers Motsoeneng managed to convince of his falsehoods.

Investigative Exposés

A few years ago, it was popular to say that it was the work of journalists that saved our democracy from being plunged into darkness. Through investigative exposés that resulted in things such the bringing to light of the Gupta brothers’ incriminating emails (known as the Gupta leaks), journalists helped lift the veil of secrecy that allowed the Guptas, emboldened by then president Jacob Zuma, to set up a parallel state in South Africa, enriching themselves and a few political elite along the way.

Today, broadcasters have seemingly abandoned their fierce and valiant effort to defend our democracy from those implicated in state capture. Many of those implicated in state capture have been offered unfettered access to broadcasters such as Newzroom Afrika, eNCA and SABC News to stain the tireless work done to unmask the criminal network that enabled state capture.

Motsoeneng is one of many implicated in state capture who have been given platforms by South African media. Former Passenger Rail Agency of SA (Prasa) CEO Lucky Montana was also given a platform on Full View to sanitise his image. Audaciously, he accused the Zondo commission of “failing to unite South Africans”. One wonders what the nearly 80% of commuters lost by Prasa think of his role in uniting South Africa.

Wanted: The State Capture Conspirators

In the latest investigative report by Open Secrets, a nonprofit organisation that tracks data on campaign finance and lobbying, titled Wanted: The State Capture Conspirators, we argue that the National Prosecuting Authority must prosecute Montana for possible violation of the Prevention and Combating of Corrupt Activities Act by accepting payments in relation to the Siyangena security systems contract.

The Zondo commission also found that he should be investigated and prosecuted for his role in the looting at Prasa. Instead of answering questions about his role, Montana went on a rampage, claiming that the commission’s report was destructive to South Africa.

Stop The Interview

In the coming months, President Cyril Ramaphosa will release his response to the commission. There is no doubt that many who are implicated will make the news. Broadcasters must use the time until then to frame how they will cover those implicated in state capture.

There is no reason for implicated parties known to be truth-averse to be given 30 minutes to ramble on live TV. Rather, they should be interviewed in a controlled environment, like a pre-recorded interview, and live interviews should be ended if the interviewee insists on spewing bile and falsehoods.

It should not be that the media uncritically participates in the rebranding of people who stand unaccountable for crimes due to lacklustre law enforcement. In the absence of real legal accountability from law enforcement, the media must hold these individuals to account. Doing so is an act of service that is mandatory to journalism.

Mnyobe is a campaigner at Open Secrets and a master’s candidate in journalism at Rhodes University. His research focuses on economic journalism and financial literacy programmes using self-representation on YouTube.

The post When the media lets state capture rogues peddle falsehoods appeared first on Open Secrets.

By Lucas Nowicki

Published in the Daily Maverick

In its final report, the Zondo Commission concluded that it is unlikely that the Passenger Rail Agency of South Africa will recover without urgent interventions to arrest a culture of whistle-blower victimisation and corruption cover-ups. Unfortunately, whistle-blowers continue to be targeted within Prasa, and there is little evidence of effective reform. The result is that working-class commuters continue to be let down by failing infrastructure and almost non-existent rail services.

South Africa’s rail system is a mess. A central reason for this is more than a decade of systemic corruption at the Passenger Rail Agency of South Africa (Prasa). 

The Zondo Commission dedicated numerous weeks of hearings to allegations related to Prasa, and its final report includes 240 pages picking apart the evidence. The commission highlighted two major themes that explain the decline of the rail agency. 

The first was a chronic lack of compliance with procurement regulation, in that many individuals who were associates or relatives of executives or other influential individuals unduly benefited from billions of rands worth of corrupt or irregular Prasa contracts. 

Open Secrets has just released an investigative report – Wanted: The State Capture Conspirators. The report examines in detail some of the largest corrupt contracts at Prasa. The report makes the case that a host of individuals and companies can and should be urgently prosecuted by the National Prosecuting Authority (NPA). 

Accountability for those implicated is one vital part of cleaning up Prasa, but there is a second important element that must be addressed.

The second theme that emerges from the Zondo Commission’s report is a pattern of whistle-blower victimisation, where “a few men and women tried to resist this [corruption] and insist on compliance” at Prasa were “unfairly dismissed, suspended or lives made difficult”. 

Prasa – under its new board headed by Leonard Ramatlakane – says that it is reforming and rebuilding after years of instability. However, the Zondo Commission warns of worrying signs that the new board is “harking back to the Montana style of leadership”, adding that “it is unlikely that Prasa will recover” without intervention. 

Among the signs the report is referring to, is the new board’s decision to fire and sue Prasa whistle-blower Martha Ngoye for R45-million, and fire long-time executives Tiro Holele and Zolani Matthews – Prasa’s first permanent CEO in six years. 

It has also been dropped by law firm Werksmans as its lawyers on the eve of important litigation regarding setting aside corrupt contracts which cost Prasa billions due to non-payment. These decisions appear to reflect the continuation of an entrenched culture of whistle-blower victimisation, opaque governance and corruption cover-ups at the state-owned railway company.

CEO Montana ‘ruthlessly’ abuses his power

In her 2015 investigation into Prasa, Derailed, then Public Protector Thuli Madonsela confirmed a pattern of unfair dismissals and heavy-handed leadership style from then CEO Lucky Montana. 

She found that Montana unlawfully terminated five executives’ contracts between 2009 and 2013 – no disciplinary procedure was followed – resulting in R5-million in irregular expenditure from labour dispute settlements.

The Derailed report gave an idea of how Montana would treat those who got in his way; however, it was only at the Zondo Commission that the public heard detailed allegations of his tyrannical leadership style and the impact it had on whistle-blowers. 

Prasa’s evidence stream was first introduced at the Zondo Commission in March 2020. Three Prasa executives testified – Tiro Holele, Martha Ngoye and Fani Dingiswayo – as did former Prasa board chairperson Popo Molefe. 

They presented evidence that revealed how Prasa was captured by a network of politically connected businessmen enabled by Montana, a group of executives and the board of control (BOC), as documented in Open Secrets’ Unaccountable series. The testimony revealed how corruption and maladministration became institutionalised within the procurement process during Montana’s reign from 2009 to 2015.

Fani Dingiswayo, a former executive in the legal risk compliance department at Prasa, testified that Montana “ruthlessly abused his power” as Prasa GCEO. 

Dingiswayo alleged that Montana used arbitrary suspensions and dismissals, creating a climate of fear which made executives turn a blind eye to procurement irregularities, blatant corruption and maladministration. 

Dingiswayo was one of the few executives who spoke out against corruption at Prasa during Montana’s six years as GCEO. In early 2015, Dingiswayo picked up serious irregularities in the extension of a contract with Prodigy Business Solutions, a company linked to politically connected businessman Roy Moodley. Moodley was said to have extensive influence over Prasa’s internal affairs, largely through his relationship with Montana and a select group of executives. 

When Dingiswayo raised these serious procurement irregularities with Montana, he was called into Montana’s office late one evening and accused of “working against the interests of Prasa”.

After Dingiswayo tried to protest his innocence, Montana allegedly stated:

“No, I don’t want to hear anything from you … All I brought you here to tell you is that you no longer work here … We can talk about how much I pay for you to leave your employment.” After Dingiswayo told Montana that he was not interested in having that discussion, Montana fired him on the spot. 

The next day, on 19 May 2015, Dingiswayo’s boss in the legal risk department, Martha Ngoye, called Montana in an effort to understand why Dingiswayo had been fired so abruptly. She told him that he should go through her first, because Dingiswayo’s actions were sanctioned by her. Ngoye asked to have a meeting with Montana to iron out the issues, according to her affidavit submitted to the Zondo Commission.

“The meeting started by 18:00. By 18:05, Mr Montana told me he was dismissing me with immediate effect. I received my dismissal letter on 20 May,” Ngoye testified.

Popo Molefe had replaced Sfiso Buthelezi as board chair at this time, in an effort to transform the deeply compromised parastatal. Molefe rejected the dismissals but despite this, Montana still placed Ngoye on suspension until August 2015.

Montana defended these actions at the Zondo Commission, arguing that labour laws allowed for summary dismissal “when you think a lot is at stake”, and that Dingiswayo and Ngoye were working against the interests of Prasa.

The commission did not make a final conclusion on this specific evidence, but its final report summary on Prasa said:

“Those … pursuing acts of maladministration and corruption at Prasa were so determined not to be disturbed in their agenda that when a few men and women tried to resist this and insist on compliance, they were unfairly suspended, dismissed or their lives made difficult.”

A brief transformation

The Public Protector’s 2015 report, Derailed, instructed the National Treasury to commission independent forensic investigations into all contracts entered into by Prasa worth more than R10-million between 2012 and 2015. 

These investigations, along with those undertaken by law firm Werksmans at Prasa’s request, concluded that several large contracts were tainted by corruption and should be set aside. Of 216 contracts worth about R15-billion that were investigated, only 13 were above board.

Molefe’s new board acted swiftly, taking two megatenders – the Swifambo tall trains contract and Siyangena Technologies contracts – to court. These contracts, worth more than R8-billion combined, were declared corrupt and set aside by the South Gauteng High Court and the North Gauteng High Court in 2017 and 2020, respectively. 

The court cases were major victories for Prasa, preventing billions in public funds from being lost to corruption. Ngoye and Dingiswayo – who were reinstated after Montana left – played an integral role in these court proceedings as part of Prasa’s legal team.

In 2017, Molefe’s board also successfully took the Hawks to court for failing to investigate the corruption in relation to the Swifambo and Siyangena contracts, after it became clear that law enforcement was stalling.

The cover-up: Silencing whistle-blowers and corruption-busters

These were significant steps to bring about both accountability and transparency. However, instead of supporting the board’s attempts to address the corruption and maladministration documented in the forensic reports, the new board had no political support. 

The Department of Transport and its minister, Dipuo Peters, attacked Molefe’s board for the amount of money they spent on the investigations. This culminated in Peters firing the entire Molefe board in early 2017. Molefe’s board successfully overturned the decision in court, allowing it to finish its term.

Then president Jacob Zuma appointed Joe Maswanganyi in March 2017 to replace Peters. Molefe testified at the commission that Maswanganyi continued where Peters had left off, isolating the board by leaving vital positions empty until their term expired at the end of 2017.

Molefe wrote to Parliament in early 2017 requesting an urgent parliamentary investigation into corruption and governance issues at Prasa, following the finalisation of the Werksmans and Treasury reports. 

The parliamentary committee on transport, led by chair Dikeledi Magadzi, initially shelved the proposed inquiry. However, on 14 November 2017, the committee suddenly called a hearing to discuss corruption at Prasa. Railway activist coalition #UniteBehind attended the meeting and reported that the minister and the committee were more interested in targeting investigators than addressing corruption at Prasa. 

#UniteBehind was so concerned about what happened in that hearing that it submitted a report to the Standing Committee on Public Accounts and the Finance Committee in Parliament. In it, the coalition described the meeting in the following terms: “The Transport Minister, egged on by the Committee Chairperson Dikeledi Magadzi, wanted to focus on the investigators [Werksmans] hired by former board chairperson Popo Molefe, rather than on Sfiso Buthelezi and the billions lost to corruption… The Transport Committee appeared to start a whitewashing process that would target those wanting to expose corruption and weaken or conceal the findings of the Treasury Investigations.” 

The minutes from the November 2017 meeting show how Maswanganyi, Magadzi and other ANC members on the committee chose to focus on Werksmans and Prasa’s board, attacking the decision to hire private investigators which they argued Prasa could not afford, and did little to interrogate the serious evidence of corruption. Notably, one of the ANC members on that committee was current Prasa board chair Leonard Ramatlakane.

Back to the old ways: Mpondo’s appointment

In 2018, Fikile Mbulula was appointed Minister of Transport. Instead of stabilising Prasa by appointing a permanent CEO and board, he appointed Bongisizwe Mpondo as the sole administrator and accounting officer in November 2019. Mpondo would act as both the CEO and the entire board. 

#UniteBehind took the decision to court, and Mpondo’s appointment was overturned in the Western Cape High Court in August 2020. The day before the court ruled his appointment was unlawful, Prasa made Mpondo a permanent employee and paid him R3.17-million – more than R600K a month – according to a 2020 amaBhungane investigation.

In his fiery resignation letter leaked to the public in early 2021, Prasa legal executive and whistle-blower Fani Dingiswayo wrote that “those who understand the law … knew that this decision [the appointment of Mpondo] was unlawful and had no prospects of saving Prasa”.

The scathing exit letter accused Mpondo of continuing where Montana left off by “unlawfully suspending about 20 employees, including me”, and “appointing people without a process that was open and transparent, including people with known associations to Mpondo.”

Dingiswayo wrote that although leaders like Mpondo and current board chairperson Ramatlakane speak out against corruption in public, “the true corruption-busters are loathed and insulted every day by those who seek to hide the historical corruption at Prasa”.

“There are a number of employees holding the broken pieces of Prasa together. They are everywhere in the organisation. They are united for their unreserved love for the railways in general and Prasa in particular. The corrupt love to hate these people … these people are hounded like prey with the sole intention of driving them out of the organisation,” Dingiswayo said in his exit letter.

Old habits die hard

In October 2020, Mbalula appointed a new board to lead Prasa after Mpondo’s appointment was declared unlawful by the courts. Leonard Ramatlakane was elected as Prasa’s board chairperson. As already discussed, Ramatlakane was part of the Transport Portfolio Committee in Parliament which ignored the independent forensic reports and frustrated the accountability processes pushed forward by Popo Molefe’s board.

Ramatlakane and the BOC have, in many ways, continued where Mpondo and Montana left off; publicly criticising Prasa employees who testified at the commission, and trying to fire the whistle-blowers. 

Months into their appointment, Ramatlakane announced that Martha Ngoye, Tiro Holele and two other Prasa executives had been fired for overstaying the terms of their contracts. This came eight months after Ngoye and Holele testified at the Zondo Commission. Prasa’s board also accused Ngoye of unlawfully approving a payment of R58-million to a company called SA Fence and Gate, which Prasa had contracted to supply lighting.

The executives successfully overturned their dismissals in the Johannesburg Labour Court in March 2021. Prasa appealed but were unsuccessful, with acting judge Moses Baloyi describing Prasa’s reasoning as “grossly misconceived”.

Her dismissal did not stop Ngoye from continuing to speak out on how whistle-blowers were victimised at Prasa. 

After the Labour Court judgment, Ngoye appeared at the Zondo Commission one last time to respond to accusations levelled at her by ex-GCEO Lucky Montana. She requested that an “affidavit on the plight of whistle-blowers” be submitted as evidence. Ramatlakane’s board attempted to block her affidavit, arguing in a submission that it was out of the Commission’s jurisdiction. Zondo disagreed and admitted it as evidence.

In the affidavit, Ngoye, like Dingiswayo, alleged that individuals who testified at the Commission were “regarded as villains by the main actors [at Prasa]” and were “pushed out of their jobs for the stance they took on State Capture”. 

Ngoye added that many of these whistle-blowers struggle to find jobs when they leave state employment because “capture is collusion between the public and private sector”, leaving them financially isolated for their opposition to corruption.

“This is where I find myself. Unlawfully dismissed by Prasa, being smeared by Prasa, and Prasa doing all to ensure I am financially frustrated, including refusing to pay my leave pay.”

The affidavit details how Ngoye has been targeted at Prasa for her resolute position on corruption, and how the current board under Ramatlakane has continued to use Montana’s strategy of arbitrarily firing and suspending officials who question the status quo. The board then uses millions in public funds to defend these unlawful dismissals in court. 

Ngoye states that the narrative Ramatlakani’s board used to dismiss her relied “on lies that are peddled by the discredited Lucky Montana on Twitter and not in these formal reports”. 

Ngoye was vindicated in a recent arbitration judgment between Prasa and SA Fence and Gate, which she initiated when she was the head of legal at Prasa. SA Fence and Gate, rather than Ngoye, was ordered to pay R45-million back to Prasa after the arbitrator found it had failed to supply lighting for that amount. This judgment undermined the reasons given for her dismissal by the board.

Despite this, two months after Ngoye appeared at the Zondo Commission to protest Prasa’s treatment of her and other whistle-blowers, a GroundUp article reported that Prasa was suing Ngoye for R45-million. The suit alleges that Ngoye effected an irregular payment for the SA Fence and Gate contract while she was acting GCEO in 2015 – despite the arbitration judgment clearing her of wrongdoing. 

Ramatlakane submitted an affidavit to the Zondo Commission defending the board’s decision to fire Ngoye and Holele, this time alleging that it was because they were involved in the procurement process for the corrupt Swifambo locomotive contract. This is disputed by Ngoye and Holele, and the report does not come to a conclusion regarding the matter, on the basis that the allegations were made too late for the Commission to interrogate them. 

The commission does, however, call for a criminal investigation into everyone who is alleged to have signed off the Swifambo contract, including Ngoye and Holele.

Crucially, the Zondo Commission also found that the board likely acted unlawfully in targeting the executives in question. The final report notes the scathing Labour Court judgment following the unfair dismissals of Ngoye, Holele and Matthews. 

It states that Ramatlakane’s board “appears to have acted without care in causing expenditure arising from the dismissals of the three executives in early 2021 and in opposing their court applications” without merit. 

The report indicates that the money spent on dismissing the executives could be classified as a violation of section 51 (1) (b) (ii) of the Public Finance Management Act, which details the responsibility of preventing wasteful expenditure.

False dawn

The board has chosen to use Prasa’s seemingly limited funds to fight Prasa’s whistle-blowers in the Labour Court, including through the appeals process. At the same time, it failed to pay Prasa’s lawyers at Werksmans on the eve of the hugely important Siyangena court case appeal, which is due to be heard in the Supreme Court of Appeals this year. 

This failure led to Werksmans withdrawing as Prasa’s lawyers in the matter. Siyangena is hoping to overturn the high court judgment which set aside its contract with Prasa, and Prasa is on record as exploring a settlement with Siyangena on the matter, despite receiving a legal opinion urging them not to do so.

Taken together, the conduct of Prasa’s new board casts serious doubt on its assurances to the public that it is getting itself back on track and dealing with legacy issues of corruption. 

Any talk of reform at the parastatal needs to address the systemic culture of whistle-blower victimisation and corruption cover-ups that have been deeply embedded in its governance framework, first by Montana and then perpetuated by Parliament, various transport ministers – including Peters and Mbalula – the administrator, the director-general of transport and, most recently, by the board chaired by Leonard Ramatlakane. 

Without these necessary reforms, Prasa will not be able to tackle its core mandate of delivering functioning rail services. Working-class commuters will continue to be stranded and forced to bear the cost of more expensive forms of public transport.

The post Prasa’s legacy of whistle-blower victimisation and corruption cover-ups is off the rails appeared first on Open Secrets.

By Ra’eesa Pather and Michael Marchant

Published in Amandla Magazine and Africa is a Country

The Zondo Commission has made serious findings of criminality against individuals, politicians, and private companies that enabled and benefited from state capture in South Africa. State capture refers to the handing over of the levers of the economy and policymaking to private interests, most notably the Guptas, a powerful Indian business family (its two leading brothers, Atul and Rajesh, were arrested in Dubai earlier this month, but the South African government is stalling with their extradition). The findings show that South Africa’s ruling party, the African National Congress (ANC) directly facilitated corruption and financially gained from it. Notably, the ANC’s deployment committee recommended that corrupt actors be awarded board positions at various public entities. In addition, the proceeds of corrupt tenders flowed directly to the ANC. The governing party is now in a period of self-proclaimed “renewal.” But as pressure increases for the party to change, it appears steadfast on protecting both its deployment committee and the sources of its funding.

When ANC President Cyril Ramaphosa appeared before the Zondo Commission (the government commission of inquiry headed by Chief Justice Raymond Zondo) in April 2021, he was asked to explain the role of the ANC’s deployment committee and to address the party’s political funding sources. Evidence from the commission shows that the ANC directly benefited from tender corruption, receiving kickbacks and bribes as a form of party funding. The governing party is now scrambling to resist transparency legislation, which forces South African political parties to declare their donors.

Meanwhile, the ANC’s deployment committee has come under scrutiny at the commission over its interference in various state-owned entities (SOEs). The deployment committee is a branch of the ANC that recommends candidates for various positions in the public sector, including SOEs. But the ANC’s insistence on deploying its own cadres has done more damage than good, and it has shown little willingness to change.

Establishing the deployment committee

The origins of the ANC’s official policy on cadre deployment can be traced back to the party’s Kabwe Conference in 1985. But it was only in 1998 that its national deployment committee was established and in 1999 that it adopted an official deployment policy. In an affidavit to the Zondo Commission in 2021, ANC chairperson, Gwede Mantashe, explained that the committee evolved to serve the ANC’s transformation project in the public sector after apartheid: “Strategic deployment of ANC cadres played an important role in the ANC taking control of the post-liberation state.”

Today, the committee is headed by the party’s deputy president, David Mabuza. It consists of 15 members of the ANC, who are mostly from the party’s highest structure—the National Executive Committee (NEC). During the height of state capture, in the years from 2012 to 2017, the head of the committee was ANC Deputy President Cyril Ramaphosa. It is now the Ramaphosa-led party that has to consider the final recommendations of the Zondo Commission. These include a finding in the final report of the commission that it is unlawful and unconstitutional for the President, any minister, or any other senior government official to take the ANC’s deployment committee recommendations into account when making appointments. The ANC’s response to date has been mixed. Initially, party Chairperson Gwede Mantashe derided the recommendation and vowed that the party would fight any attempt to challenge the role of the committee and cadre deployment more broadly. However, the party has now indicated that it will “review” its deployment policy, amongst others.

The cadres and the SOEs

In its report on Eskom (the national power utility), the Zondo Commission questioned whether the ANC had done its due diligence to ensure “people of integrity” were recommended for positions at Eskom. It found that the deployment committee likely knew that Ben Ngubane would be appointed chairperson of Eskom, Brian Molefe would become the power utility’s chief executive officer, and Anoj Singh would be its chief financial officer.

Ngubane, Molefe and Singh were found by the commission to be the key enablers of capture at Eskom. They allowed dodgy procurement deals to proceed at the expense of Eskom’s performance and for the benefit of Gupta-linked companies. The commission also suggested that the ANC’s role in board appointments made it culpable for what transpired at the SOEs—like Eskom—where it had interfered. “The question that the people of South Africa are entitled to ask is: where was the ANC as the Guptas took control of important SOEs such as Transnet, Eskom and Denel? Where were they?” the Zondo Commission asked in its report on Eskom.

At Transnet (the state owned rail company), meanwhile, the commission found it “reasonable to infer” that the deployment committee had played a role in the appointment of the public entity’s former group chief executive officer, Siyabonga Gama. Gama was linked to irregular contracts worth billions being unduly awarded to the Gupta patronage network. Gama was arrested and charged in connection with state capture at Transnet in May 2022.

Since the Zondo Commission released these findings, new allegations have emerged against the deployment committee. The official opposition, Democratic Alliance, obtained the minutes of ANC deployment committee meetings from 2018 until 2020, through legal action from the Zondo Commission. The minutes show that the governing party had, worryingly, discussed appointments to the judiciary and Chapter 9 institutions, including the South African Human Rights Commission. The DA has now applied to court, in light of the final Zondo Commission report, to have the ANC’s deployment policy declared unconstitutional.

Significantly, Ramaphosa told the Zondo Commission in April 2021 under oath that he was not aware that the deployment committee discussed candidates for judicial posts. However, the minutes of a committee meeting from March 22,  2019 show that the party did precisely that. This is concerning evidence that the ANC has intended to influence appointments that should be independent of political influence.

These examples from the Zondo Commission report, and the ANC meeting minutes, show that cadre deployment is linked to corruption. It is a network through which politically appointed board members at SOEs enable corrupt procurement contracts which, in turn, lead to the near-collapse of these SOEs.

But cadre deployment is only one piece of how the party’s policies have enabled capture.

The ANC’s corrupt funds

While Ramaphosa insists only individuals within the ANC have acted corruptly, findings from the Zondo Commission show how the party as a whole benefited from corrupt activity—most notably through its party funding coffers. The findings of the commission demonstrate that the proceeds of corrupt tenders were used to fund the ANC itself.

The Zondo Commission found that in the Free State, a company called Blackhead Consulting was corruptly awarded a R255 million (nearly 16 million USD) tender in 2014. The company also made donations amounting to millions of rand to the ANC between 2013 and 2018. The ANC also partly funded its 2016 Gauteng local government election campaign through the corrupt solicitation of R50 million from the company EOH. Bosasa, another company that used bribery to access tenders (government contracts), was also one of the ANC’s big funders for more than a decade.

The ANC’s promise of renewal is now being tested, but it is failing. The Political Party Funding Act (PPFA) is a major new law introduced in 2021. It promotes transparency around how political parties are funded. The law requires political parties to report all donations over R100,000 made to them in a year, and limits donations by a single donor to R15 million per year. It requires transparency in the hopes of preventing funding by corrupt sources. The law came into effect after pressure was applied by civil society organizations, including My Vote Counts.

Yet, after just one year, and despite the Zondo Commission calling for the strengthening of the PPFA, the ANC is intending to weaken it. The party proposes to increase the thresholds for reporting donations so that far fewer donations are made public. It also wants to raise or even remove any limit to donations made by one donor in a year. The ANC is desperate for donations because it faces a financial crisis. The governing party is more than R200 million in debt, cannot pay its employees, and owes SARS more than R100 million in taxes. It is now attempting to undermine the PPFA to increase its funding, even if it means inviting the proceeds of crime into the organization.

The ANC’s latest reported donations in terms of the PPFA show that the party continues to accept dubious funds. The Independent Electoral Commission (IEC), the body responsible for reporting in terms of the PPFA, reported that the ANC received just one donation in the first quarter of 2022. It was R10 million from a company called United Manganese of Kalahari (UMK)—a majority owned by a group of companies that includes Chancellor House. Last year, Chancellor House admitted that it was owned by a trust linked to several tender corruption scandals. The trust had the ANC as its sole beneficiary. Another investor in UMK is Viktor Vekselberg, a Russian businessman with close links to President Vladimir Putin, who is subject to US sanctions. Clearly, the ANC has little concern about where its funding comes from, despite the findings of the Zondo Commission.

In its final report, the Zondo Commission pointed to another way in which dirty money has compromised the ANC, and our politics more broadly. This is because money has played a defining role in influencing internal ANC leadership contestation. The commission concluded that this “contributed to the conditions in which corruption and State Capture could take place,” and that “patronage relationships do not have to involve donations to the party itself in order to flourish.”

If the ANC continues to undermine party funding transparency, its promises of renewal and change will remain empty. Similarly, the party’s lack of willingness to stop its policy of cadre deployment is an indication that it values its own power more than the public interest. The governing party should be prioritizing the removal of corrupt influences from its structures and finances, but at present it seems unwilling to change.

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