By Lehlohonolo Lehana.
The first of three parts of the report from the Judicial Commission of Inquiry into Allegations of State Capture was on Tuesday handed over to President Cyril Ramaphosa by the commission’s chairperson, Acting Chief Justice Raymond Zondo.
Volume one deals with South African Airways (SAA) and its associated companies, SAA Technical and SA Express.
Volume two, due to be given to Ramaphosa at the end of January, comprises of topics such as The New Age, advertisements, breakfast shows and briefings with various state-owned enterprises and government departments which entered into contracts with the Gupta company that owned the publication, TNA Media.
Volume three, deals with the South African Revenue Service and public procurement in South Africa.
More than 350 witnesses have appeared before the panel head by Zondo since August 2018, with some portraying how state coffers and companies were looted during former President Jacob Zuma’s almost nine-year tenure and others denying their complicity.
Ramaphosa published the first part of three of the state capture inquiry report on Tuesday.
The State Capture Commission has recommended that former Transnet CEO Brian Molefe should be prosecuted by the NPA for fraud and contravening the PFMA for his role in facilitating irregular contracts between Gupta-owned The New Age and the parastatal.
In the first part of its report, the commission recommended similar action be taken against former Eskom CEO Colin Matjila.
The Commission noted that Molefe’s efforts to justify millions of rands of state funds being irregularly spent on advertisements in The New Age did not hold water.
On Eskom’s conrtacts with TNA, the report said: “As with Eskom, more junior personnel were asked to justify decisions already taken by their superiors by preparing recommendations that made it look as though proper processes were being followed and that the superiors were merely approving a proposal by their subordinates, rather than driving the process themselves.
“The report recommended that the law enforcement agencies should investigate a possible crime of corruption against Tony Gupta on the basis of (former SAA chief executive),(Vuyisile) Kona’s evidence that he offered him initially R100 000 and later R500 000 in their meeting at Saxonwold on or about 29 October 2012.
These matters should therefore be handed over to law enforcement agencies for further investigation and, where warranted, prosecution.”
On The New Age (TNA), the investigation conducted by the Commission has shown that contracts concluded between TNA and Transnet, Eskom and SAA were not only irregular but wasteful, too.
The Commission noted: “The TNA investigation shows that state capture thrived at our country’s SOEs despite the fact that the necessary laws to prevent it were in place. The PFMA clearly and definitively made every one of the TNA contracts unlawful. State capture thrived because the people given power and authority in the SOEs simply flouted its terms.
“One way to prevent this in the future is to ensure that those who ignored their legal obligations are held to account for their conduct.”
The Commission has also recommended that numerous former senior SAA officials, including its ex-chairperson Dudu Myeni, be investigated by law enforcement agencies and the National Prosecuting Authority for corruption and fraud.
The report found the airline was “racked by corruption and fraud” during the tenure of Myeni, who is close to Zuma.
In addition to recommending that the NPA probe Myeni for fraud and corruption, the first part of the State Capture Inquiry report made findings against a host of other senior officials, including former SAA Technical procurement head Nontsasa Memela, former Airports Company South Africa group treasurer Phetolo Ramosebudi, and ex SAA board member Yakhe Kwinana.
Former SARS head Tom Moyane must be charged with perjury in relation to his false evidence to Parliament, the Commission has recommended.
The inquiry also wants law enforcement agencies to investigate the US management consulting company Bain’s “unlawful” role at SARS.
In addition, all Bain’s contracts with state departments and other state bodies must be re-examined for compliance with the relevant statutory and constitutional provisions, the report recommended. It also wants legislation to be amended to provide for an “open, transparent and competitive process” for the appointment of Commissioner of SARS.
The Commission also find Zuma’s role in capturing of SARS is front and centre in the inquiry’s report.
The Commission said the capture of SARS “is a clear example of how the private sector colluded with the Executive, including [former president] Zuma, to capture an institution that was highly regarded internationally and render it ineffective.” Zuma promised the job of SARS commissioner to Moyane well ahead of the appointment being made, and they promised consultancy Bain the job of overhauling SARS, even though it was unnecessary.
Zondo came under fire from Zuma allies and other critics for interpreting his mandate far too broadly and for seeking multiple extensions to the commission’s tenure, which was initially supposed to last for just six months.
He’s also faced accusations that he’s dealt inconsistently with witnesses, with some being cross-questioned for days and others only making brief appearances.
Some of those who were most deeply implicated in the shenanigans escaped interrogation. Zuma appeared for just a few hours, but his lawyers frustrated the panel’s attempts to cross-examine him, and he flouted a court order to testify again – defiance that earned him a 15-month jail sentence.
The prisons department freed him on medical parole after less than two months, a decision that’s still being contested in court.
The infamous Gupta brothers, who were the alleged masterminds behind much of the theft, fled the country and the commission refused their offer to testify remotely. The US and UK have imposed asset freezes and other sanctions against them, but efforts to bring them to face justice in South Africa have failed.
You can read the full report here:Judicial Commission of Inquiry into State Capture Report_Part 1.