Daily Maverick

Analysis: Like the Nazis, the State Capture culprits have left a paper trail for all to see

State Capture relies on the guise of legality to establish the infrastructure of enriching a politically connected few. And so there is a plethora of board minutes, ministerial letters or electronic communications few thought would ever see the light of day in relation to dodgy dealings at State-owned Entities (SoEs). The parliamentary inquiry into Eskom State Capture since last year has seen those in charge of governance, finances and procurement explain away such documents amid claims of amnesia and a determinedly blinkered, technisist view of responsibilities. But the paper trail remains. By MARIANNE MERTEN.

The Nazis’ meticulous recordkeeping of mass murder, genocide, torture and brutality by functionaries and officials was key to the successful Nuremburg trials convictions –and even in present-day prosecutions. Today many of these documents form a public repository of information that has also allowed survivors and their families access to information.

When the Berlin Wall fell in 1989 the unravelling East German administration revealed scrupulously detailed files kept by the Stasi, despite the secret police’s efforts to destroy records. As part of the reunification process, citizens were allowed since 1991 to access files that showed the extent and depth of its informant network, with family members and neighbours spying on each other. Many still access files today, and efforts are under way to reconstruct those records the Stasi tried to destroy.

Although apartheid military and other agencies did their damndest to shred records ahead of the 1994 democratic transition – the Truth and Reconciliation Commission (TRC) also discovered that key Cabinet documents had disappeared – apartheid documents and records were key to the TRC process, alongside the public testimony of survivors, relatives of those the apartheid regime killed and the agents of such killings, be it police, soldiers or askaris. With many of the apartheid military record now reaching the 25-year threshold for declassification, the window is opening to shed further light on the apartheid pursuits.

The #GuptaLeaks, the tens of thousands of leaked emails, show how contracts at Eskom, Transnet, Denel and elsewhere were facilitated to certain companies, usually associated with the Gupta family and their associates, including President Jacob Zuma’s son Duduzane. Initial responses to the leaked emails in 2017 seemed to cast aspersions on their validity, amid calls on the Hawks to investigate their veracity. But significantly, much of what has been reported on the basis of #GuptaLeaks, such as the McKinsey/Trillion arrangements, is being verified publicly.

The parliamentary Eskom State Capture inquiry has hauled out documents, be these official SoE policies and memorandums of incorporation (MOIs) with Public Enterprises Minister Lynne Brown, contracts of coal deals and agreements for so-called signature fees, effectively millions of rand spent for introductions, legal opinions on procurement and contracts, rules of the Eskom pension fund where former Chief Executive Brian Molefe was registered as a permanent employee and allocated a R30-million pension payout, and board minutes.

Or invoices of Dubai hotel stays that brought together then still Eskom Chief Financial Officer Anoj Singh, at least some of the Gupta brothers, Eskom head for generations Matshela Koko, Gupta business associate Salim Essa and others. On Tuesday Singh acknowledged he may have seen one of the Guptas “in passing”. On Wednesday, Koko simply denied such travels even when DA MP Natasha Mazzone read out his hotel reservation, flight booking and even named the driver who collected him at the airport.

The bookings were done through Sahara Computers, a firm of the Guptas who are also involved in Tegeta, to which Eskom not only prepaid for coal and for which Eskom discounted a R2.1-billion penalty to R577-million as part of the Optimum mine deal.

There is an ethical obligation to declare such connections, known as related parties transactions, to prevent conflicts of interest. That’s according to accounting practice and in terms of the King Good Governance framework, as it is practice to also publish such related parties transactions in annual reports. The inquiry heard that’s not the case at Eskom, in terms of that SoE’s policies, and therefore it’s not done. Effectively governance becomes a box ticking exercise.

There’s again been talk over the past two days of “the Eskom version”, or a somewhat more passive-aggressive response to evidence leader Advocate Ntuthuzelo Vanara of “on your version”, to questions over, among others, the Tegeta deal. Singh, who repeatedly was asked to speak into the microphone rather than mumble on, used phrases like “in my understanding” or “in my recollection”. It’s a classic tactic to create the distance and murkiness to avoid responsibility, and to introduce legalistic doubt by suggesting there could be different, and competing, versions.

Or put differently: It wasn’t me. I didn’t know.

Koko’s statement submitted to the parliamentary inquiry provides insight into the SoE governance mindset. In relation to the mid-2016 interview he gave to Carte Blanche, in which he denied Eskom’s coal prepayment as the deal to sell Glencor’s Optimum mine to Tegeta was under way, Koko maintains: “I did not lie on camera at all.”

He points out that the interviewer had asked whether Eskom had prepaid Optimum for coal. “I responded that it did not. That response was quite correct. Eskom did not prepay Optimum for coal. The agreement that the BTC (Eskom’s board tender committee) approved on 11 April 2016 was for prepayment for coal to Tegeta, which was an entity distinct from Optimum, for coal that Tegeta was able to secure and source from Optimum,” said Koko’s written statement to the inquiry. “It would have been irregular for Eskom to have paid Optimum for coal… Eskom had no contract with Optimum for the supply of coal…”.

A day earlier Sigh told MPs, with regards to this R600-million pre-payment deal, that it took two days after it had been signed off by the Eskom board for details to be finalised. However, it also emerged that the officials’ meetings to thrash out the details were not minuted: “It didn’t occur to us to keep minutes,” he said, adding later the details had been agreed and reduced to a contract.

It can be a grind. But amid officialdom’s arrogance and the blinkered box-ticking approach to governance, legal and professional responsibilities that has been playing itself out before the parliamentary inquiry since last year – and will most likely also do before the pending State Capture commission of inquiry under Constitutional Court Judge Raymond Zondo – the documents are there for everyone to see. DM

Photo: Embattled Eskom executive Matshela Koko testifies at the Parliamentary Inquiry into state capture at Eskom on January 24, 2018. Photo: Leila Dougan

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