The Nkonki Pact, Part 1 – How the Guptas bought themselves an Auditor
In a fronting deal, Gupta lieutenant Salim Essa provided R107-million for the “management buyout” of a pioneering black audit firm. By Stefaans Brümmer and Susan Comrie for AMABHUNGANE.
As winter gave way to spring in 2016, Mitesh Patel made his Faustian pact.
To the world he would own Nkonki Inc, the pioneering black accounting firm where he had risen through the ranks. But he would not be his own man. He agreed to front for others who were tied to the Gupta crime family.
Gupta lieutenant Salim Essa, who funded Patel’s management buyout, might have considered it a masterstroke in the dark art of State Capture. What front better than in that model of independence and probity, the auditing profession, to profit from state contracts and bend compliance procedures your way?
Nkonki instantly landed new work at Eskom, the state utility whose board and executive were under the sway of Gupta deployees. There, it stood to earn hundreds of millions in consulting fees.
Nkonki also gave “independent” advice attempting to clear Gupta ally Matshela Koko when he was facing disciplinary charges at Eskom. It did the same for Essa when he sought clearance to buy a bank.
Essa and the Guptas did not answer requests for comment.
Patel insisted he did not know the true identity of his funder until it was too late. He also said through his attorneys that “to now claim that there was a fronting arrangement is not only insulting but highly defamatory”.
Pioneer turned prey
Sindi Zilwa, born Nkonki, was the second black woman in South Africa to qualify as a chartered accountant (CA), in 1990. Two years later she started started her own accounting firm, a precursor to Nkonki Inc, in Mthatha.
It was a lonely time for black CAs, who despite significant growth remain outnumbered three to one by their white counterparts. Zilwa and her CA brother, Mzi Nkonki, soon joined forces. A 1996 merger to form Nkonki Sizwe Ntsaluba, the first national black accounting firm, faltered before Nkonki took its present shape.
The public sector has been Nkonki and other black auditing firms’ bread and butter.
Forbes quoted Zilwa in 2013:
“As a black firm you are more inclined to get public sector work because you get more support from there. All the medium-sized firms are owned by the white middle class so they tend to get private sector business more.”
But the racially skewed exposure to large state accounts made Nkonki vulnerable.
In 2013, Transnet outsourced its internal audit function to three firms including Nkonki. Income from the transport utility soon dwarfed that from Nkonki’s other clients. In fiscal 2015, Transnet accounted for 45% of Nkonki’s R161-million revenue, internal records show.
But in 2016, income from Transnet fell sharply. In the cash-flow crunch that followed, millions of rand in employee tax deductions were not paid over to the South African Revenue Service, exposing Nkonki to penalties and reputational risk.
Nkonki needed a way out. Patel showed a way.
Out of the frying pan
We met Patel, who brought his lawyer, in early February. His rough-and-ready looks and suit straining at the seams gave him more the air of one of the boys than the CA of 15 years’ standing he was.
Patel told us his story, which started with Eric Wood approaching him around August 2016 with an offer “on behalf of a black CA” to buy Nkonki. He claimed Wood would not name the CA.
Wood was then, as now, the chief executive of Trillian Capital Partners, a financial advisory firm that was gaining in notoriety.
The Sunday Times had revealed three months earlier that Trillian was 60% owned by Essa, the Gupta lieutenant. Late that August, amaBhungane published the first of many exposés on Trillian’s unusual ability to profit from state companies that had fallen under Gupta sway.
Patel said that he “felt a little uncomfortable” about the potential buyer not being named but discussed it with Zilwa and Nkonki, who rejected the offer. They then owned 81.8% of Nkonki Inc and were its chief executive and chair respectively.
But terms for a new deal were agreed that September, Patel told us. He would buy out Zilwa and Nkonki. Trillian would act as transaction adviser and arrange third-party funding for him.
This, Patel claimed, was exactly how things played out, although with a twist around the identity of the lender.
Trillian introduced a Bermuda company, Centaur Ventures Ltd, to lend Patel the money for the buyout. He signed a loan agreement with it. The first of what should have been three equal tranches was paid over to the exiting shareholders via Trillian’s attorneys in late October 2016.
But after that the payments tapered off.
“Sindi [Zilwa], Mzi [Nkonki] and I were concerned.”
In the third week of January 2017, Patel claimed, he learnt from Trillian’s attorneys that the money was coming from Trillian, not Centaur. He was shocked. In February, Centaur cancelled the loan agreement and he was asked to sign a substitute agreement with Trillian.
That, Patel said, was how it remained a year later.
He had bought control of Nkonki, by default with Trillian money. He did not have a valid loan agreement with Trillian or Centaur. He had not repaid the money as he had “begged” Zilwa and Nkonki to reverse the deal, to no avail. And he had not repaid in part because under the defunct Centaur agreement the first instalment was due only after Nkonki paid dividends this year.
“I have lost complete control,” Patel told us in apparent reference to his conundrum. He insisted that “I run this business clean” and that he was not tied to Essa or the Guptas.
Stretching our sympathy
It was hard not to feel sympathy for the man. But one by one, the protagonists challenged his version.
Trillian, now no longer owned by Essa, contradicted Patel’s account of how it all started, saying in a written response that Wood “was not directly involved in the preliminary discussions with Mr Patel”.
Zilwa and Nkonki denied Patel had consulted them about Wood’s alleged offer on behalf of an unnamed black CA.
“Mr Patel did not disclose this information to us… Mr Patel approached us to see if we were willing to sell our shareholding.”
About Patel “begging” them to reverse the deal, they confirmed that “he requested a new agreement that would nullify our sale of shares agreement” – but said it was only at the end of January 2018. By then, amaBhungane had already triggered alarm at Nkonki by asking to inspect the firm’s share register.
Trillian’s then attorneys, Stein Scop, denied Patel was shocked to hear the money was from Trillian.
“There were certainly no attempts made by ourselves or client [Trillian] to disguise the nature or source of the payments and all parties were aware that the funds were from Trillian. So much so that when funds were late we were asked to chase up Trillian for payment.”
And then there was our incredulity at some of what Patel had said:
One: Patel claimed he was shocked to hear the money was from Trillian, yet used it as transaction adviser. Similarly, he had no qualms about the money coming from Centaur – whose Gupta links were not that hard to discover either.
In follow-up questions, we put it to Patel via his attorneys that “an elementary due diligence would have revealed one of [Centaur’s] directors and shareholders to be Mr Aakash Garg, the Gupta son?in?law who got married at the infamous Sun City wedding”.
The attorneys answered:
“Again, your assertions are … ill founded because our client had no reason to know who Mr Garg was. Mr Garg is not a well-known celebrity.”
It is hard to imagine a CA not researching exactly who is lending him millions – after all, this occupies auditing firms in their work for clients. But even if Patel did not look for answers, it should have slapped him in the face.
A fortnight before Patel signed with Centaur in late October 2016, then-public protector Thuli Madonsela published her State of Capture report. It alleged that Centaur’s local associate company, Centaur Mining South Africa, contributed the better part of R1-billion when the Guptas, Essa and Duduzane Zuma controversially bought Optimum Coal.
Madonsela’s report helpfully added that Centaur’s directors included “Aakash Garg Jahajgarhia (Indian citizen), married to the daughter of Anil Kumar Gupta”.
The #GuptaLeaks showed Garg owning 50% of Centaur.
Two: Despite, on his version, discovering in the third week of January 2017 that the money was from Trillian, Patel did not stop Trillian from making three further payments the following month, February. These totalled R53-million.
Patel’s attorneys answered:
“When our client discovered that Trillian and not Centaur was the funder, he indicated his discomfort at the time which resulted in [Centaur] cancelling the agreement. What more do you expect of our client?”
They added that “the payment made during February 2017 had already occurred on the same date when [Centaur] cancelled the agreement and unbeknown to our client, payment was effected directly to the shareholders, the sellers. Your allegations defy logic.”
We fail to appreciate the attorneys’ logic. Why did Patel not stop Trillian payments in February after hearing of them in January?
Three: Consider the amount involved against the absence of a valid loan agreement. Leaked bank data and confidential source interviews show that Trillian transferred just short of R107-million.
Would anyone, let alone a CA, cross two year-ends – February 2017 and 2018 – owing a lender, and one they do not approve of to boot, so much money without a firm contractual basis?
Was there in fact an agreement too damning to disclose or even commit to paper?
Before we get to the raw nerve we seem to have touched by putting that to Patel’s attorneys, let us follow the money.
Each tranche flowed from Trillian Capital Partners or one of its subsidiaries via their attorneys’ trust account to Zilwa and Nkonki, the exiting shareholders:
25-29 October 2016: R24,000,000 + R19,626,667 = R43,626,667
20 December 2016: R5,000,000 + R5,000,000 = R10,000,000
1-3 February 2017: R6,000,000 + R4,000,000 = R10,000,000
23 February 2017: R43,000,000
But was Trillian transferring its own money?
To know this, one would have to look at Trillian’s accounting treatment. Three confidential sources with direct knowledge of the transaction told us that Trillian had “booked” it to Trillian Holdings – the company through which Essa held a controlling stake in Trillian – or that Trillian had paid on behalf of Essa.
We put this to Trillian, which confirmed it paid on Essa’s behalf:
“Where [Trillian] paid funds on behalf of its controlling shareholder it sometimes did so against the controlling shareholder’s loan account. This transaction is one of those circumstances.”
But back to whether there was an agreement that was too damning to disclose or commit to paper.
Patel’s attorneys answered:
“You appear to forget that the [Centaur] agreement was cancelled … and having learnt of the actual identity of the lender, our client was not intent on having anything whatsoever to do with Trillian and that resulted in no new loan agreement being concluded with it…
“[Y]our persistent allegation that it could not be committed to paper is not only demeaning but highly defamatory… [S]hould you continue along this vein, legal consequences will follow.”
The problem with litigation is that records can be subpoenaed. We have seen key documents or gleaned their content from direct sources. And they show that Patel participated in negotiating a legal framework for him to act as a nominee for the “beneficial owner”.
The gem was a “relationship agreement”, which was drafted with Patel’s input over the course of weeks after the money started flowing that October.
The drafts recorded matter-of-factly:
“The Parties hereby record that of the 818 Shares acquired by Mitesh [Patel] in terms of the Sale Agreement, 650 shares constituting 65% of the total issued share capital of the Company … are held by Mitesh as Party 2’s nominee.”
So only 168 shares, or 16.8% of Nkonki, would be Patel’s. He would hold the rest, a controlling 65% stake, on behalf of Party 2, the “beneficial holder”.
Party 2, whose identity was yet to be inserted in the drafts, was to call the shots.
The drafts required Patel to appoint a management consultant nominated by Party 2 help him run the business. They also stripped him of the right to make decisions on matters including hiring and firing senior staff. For these, Patel would need Party 2’s consent.
Patel’s attorneys offered a flat-out denial, relying on a legal construct – a court’s power to deem a provision “as though it had not been written” – to undo what their client had done:
“In the absence of any signed agreement, such agreements are regarded in law as being pro non scripto. In similar vein, no relationship agreement was negotiated nor was our client required to participate in any negotiations by any party.”
We have no evidence that Patel finally signed the relationship agreement, just as we have no evidence that he signed a substitute loan agreement with Trillian or Essa after the Centaur loan agreement was cancelled.
But it is common cause that he signed the Centaur agreement.
When we met Patel in early February, we asked him for a copy so that we could confirm its terms were commercial. He and his lawyer refused, saying it was subject to a non-disclosure agreement.
The Centaur loan agreement, when we got to see it, was not one but two. Damningly, they mirrored the framework that the relationship agreement drafts had spelled out. And because Patel had signed them, he could not say they were only drafts.
Both loan agreements were effective 31 October 2016. The first related to a 65% share parcel – the same stake the relationship drafts said would be beneficially owned by Party 2. The second related to a 16.8% share parcel – the same stake that remained for Patel.
We checked whether the terms were commercial.
The repayment terms of 16.8% agreement may be described as that. To buy that parcel of shares, Centaur was to lend Patel R26.88-million. He was to repay the capital plus interest from the dividends to which the shares entitled him.
But the terms of the 65% loan were all but. To buy this parcel, Centaur was to have lent Patel R104-million. Here, the capital was to attract interest according to a “variable interest rate” formula that happened to match 65% of Nkonki dividends. And Patel had only to pay that interest – no capital.
Put differently: In respect of this 65% controlling stake in Nkonki, Patel would never pay off the loan and the lender would be entitled to all dividends – the fruits of ownership – ad infinitum.
Centaur and Garg, the Gupta son-in-law who owned half of Centaur, did not respond to detailed requests for comment.
We put it to Patel’s attorneys that the loan agreements confirmed fronting.
“This was, in other words, no more than a fig leaf for the transfer of 65% of total dividends to the lender, suggesting that not Mr Patel, but [Centaur] or the actual intended lender (Mr Essa) would be the beneficial owner of the 65%.”
Patel and his attorneys, seemingly calculating that we had not seen the agreements, denied it flatly:
“We question your lack of logic when you claim that one agreement does not provide for repayment of capital, when it does and which you complained we have not furnished you a copy of, which leads to the irresistible conclusion that you have not seen the agreement.”
He who pays the piper
As Patel volunteered in respect of the Centaur “agreement”, both Centaur loan agreements were cancelled in late February 2017. After this, agreements were prepared naming Trillian, alternatively Essa’s Trillian Holdings, as the lender. There is no indication that they were signed.
We can also see from Nkonki Inc’s share register that by early March 2017 only 66% of Nkonki’s shares had been transferred to Patel, not the envisaged 81.8%. This was consistent with the about R107-million paid to the exiting shareholders, short of the about R131-million total envisaged in the loan and other agreements.
So the buyout did not unfold quite as intended. From confidential sources we have indications of some but not all pieces of the puzzle.
The Centaur agreements became problematic when it dawned that because Centaur was an offshore company, the financial flows needed Reserve Bank approval. The bureaucratic delay or fear of an uncaptured institution looking too closely may have been powerful disincentives.
The Auditing Profession Act has provisions to secure the independence of auditing firms. These include that all shareholders must be registered auditors and directors of the firm. Similarly, no profit from an audit may be shared with a non-auditor.
Fronting for a non-auditor would fall foul of the Act, as presumably would the sharing of dividends with Centaur (as the 65% Centaur loan agreement envisaged in all but name). Loan agreements with Trillian or Essa would have come up against the same hurdle.
Perhaps the legal effort to “paper” the fronting arrangement – to embody it contractually – became too much or too risky.
Which leaves the question, again, whether it persisted informally after the Centaur agreements were cancelled in February 2017.
Patel’s fronting intention is clear. He participated in the relationship agreement drafting and signed bifurcated loan agreements that gave effect to the same scheme.
The Gupta network’s involvement in the purchase is equally clear. Trillian, then 60% Essa-owned, was transaction adviser and lined up Centaur as lender, which had a financial relationship with the Guptas and was half-owned by one of their own. Then it routed the funds on Essa’s behalf.
Did Patel throw off the yoke when he “refused” to sign with Trillian?
Our guess is not. Money talks, whether legally papered or not.
Patel went ahead with the second half of the purchase after even on his version he learnt that the funds were from Trillian. Then he did nothing about it for a year. His request for the sellers to “nullify” their deal came only after amaBhungane raised the alarm.
Intervening events appear to confirm an alignment of Nkonki and Gupta interests during and after the buyout.
At Eskom, things just kept going right for Nkonki. Eskom added it to a panel of “supplier development” partners, after which it threw very lucrative work at consulting firms that chose to partner with it.
Although eventually stopped, the consulting firms stood to earn billions and Nkonki, via them, hundreds of millions.
Nkonki also lent its professional opinion in ways that served Gupta and Essa interests, intentionally or not.
Eskom had it appointed to conduct an investigation into the Impulse International conflict-of-interest allegations on which Koko, the acting Eskom boss and Gupta acolyte, had been suspended. It tried to clear him.
Separately, it supplied an “independent” opinion the Reserve Bank required when Essa sought clearance to buy a bank. The Bank did not bite.
Patel, via his attorneys, denied these allegations too.
For more on the Eskom, Koko and bank episodes, read the next installments of the Nkonki Pact. DM
Additional reporting by Craig McKune.
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