Analysis

Nugent and Zondo inquiries: Where Meandos go to die — flushing out lies, waffle and BS in State Capture project

By Marianne Thamm 1 October 2018
Caption
File photo: Judge Robert Nugent at the Judicial Service Commission (JSC) on June 9, 2012 in Johannesburg, South Africa. (Photo by Gallo Images / Sunday Times / Simphiwe Nkwali)

The terms of reference for the Nugent Commission of Inquiry into SARS and the Zondo Commission into State Capture leave little room for waffle, bullshit or that uniquely South African decoy, the Meando. Former SARS executive, Luther Lebelo, as well as retired judge Frank Kroon discovered last week that Meandos do not baffle legal brains. Lebelo had to leave early for a little lie down when the questions became too specific.

You come with meandos I answer with meandos… easy… ask me a question I will answer the question”… Jacob Zuma November 2017

Retired judge Frank Kroon’s admission to the Nugent Commission of Inquiry last week that a South African Revenue Services Advisory Board (SAB) he chaired should not have found that the SARS High Risk Investigative Unit was unlawful, has placed former Sunday Times editor, Phylicia Oppelt, as well as her ex-husband, advocate Rudolf Mastenbroek, firmly in the spotlight.

The board/panel was appointed by former Minster of Finance, Nhlanhla Nene, in 2015 to look into allegations of an alleged SARS rogue unit after the Sunday Times had published a series of articles which the newspaper was later forced to retract. The board was comprised of Jonas Makwakwa, Mastenbroek, advocate Selby Mbenenge, Mmakgolo Maponya, Bonga Mokoena and former SARS CFO Matsobane Matlwa.

At least 26 senior and experienced SARS employees lost their jobs in then Commissioner Tom Moyane’s massive and almost mortal purge of the revenue service, and in the wake of these unfounded allegations.

Judge Kroon told the Nugent commission last week that it was Mastenbroek — who once headed the Criminal Investigations unit in SARS — who had drafted a 2015 release for the (SAB) media briefing announcing the findings.

These, said Judge Kroon, could not have been true or accurate as they had been based only on the Sikhahkane Report and submissions from Moyane, his second in command, Jonas Makwakwa, and the now disgraced Bain consultancy. None of those implicated in the rogue unit allegations had been interviewed, Judge Kroon admitted.

The Mastenbroek connection was first revealed in 2015 by journalist Pearlie Joubert who had been part of the Sunday Times investigative unit from 2013 to 2015.

Joubert had written to Nene to alert him that Mastenbroek’s appointment to the “Kroon Board” posed a serious conflict of interest considering allegations that he had been at least one of the sources for the Sunday Times “rogue unit” stories and that he had previously been married to the newspaper’s editor, Phylicia Oppelt.

Nene did not respond to Joubert or act on the information.

It was Joubert also who had submitted, in another SARS matter, an explosive affidavit in which she revealed that Mastenbroek had been one of the Sunday Times sources, an allegation he has repeatedly publicly denied.

In her affidavit Joubert, who had known Mastenbroek since their student years, said that she had resigned from the Sunday Times in January 2015 (the stories about the “rogue unit” were published in August 2014) as she had not been “willing to be party to practices at the Sunday Times which I verily believed to have been unethical and immoral”.

Joubert charged the stories that had been published were false and appeared to have been “an orchestrated effort by persons to advance untested allegations in a public arena”.

The Sunday Times later denied this and said its reports, by journalists Stephan Hofstatter, Mzilikazi wa Afrika and Piet Rampedi, had been based on the now retracted and withdrawn findings of the KMPG report, written by forensic auditor Johan van der Walt.

Van Der Walt and Mastenbroek go back to when Mastenbroek helped establish the Asset Forfeiture Unit in the then Scorpions. He also acted as a legal adviser to the country’s first Director of Public Prosecutions, Bulelani Ngcuka. He later headed a criminal investigations unit in SARS.

Van Der Walt had been commissioned by the then Scorpions to audit Shabir Shaik and give expert evidence during Shaik’s fraud and corruption trial. Van der Walt’s work in that matter is due to be presented in Zuma’s upcoming fraud and corruption trial.

Judge Kroon’s revelation of Mastenbroek’s hand in the SAB report and the press release certainly warrants Mastenbroek coming forward to offer an explanation, to testify or for the commission to call him. If he does not, he will be associated with the vicious attack on SARS.

In response to questions from Daily Maverick, Mastenbroek responded that “the views publicly expressed by the advisory committee were deliberated and agreed upon by all members of the committee”.

He added: “I have nothing further to state to you on the subject matter, apart from my warning that I will take legal action if you repeat the lie that I was the source of the Sunday Times investigation into the rogue unit story.”

The tight terms of reference of the Nugent Commission has seen many stand tall and others crumble in its laser-like focus. It has been able to cleave open, in public, the various layers and subterranean dealings on Moyane’s watch.

Last week, Moyane’s right-hand man Luther Lebelo felt the commission’s burn when he arrived with Meandos and very few facts.

The concept of the Meando entered the South African political lexicon in 2017 at the height Jacob Zuma’s political project, otherwise known as State Capture.

It was defined shortly afterwards by one of South Africa’s most successful exports — Nandos — as “for those incapable of saying it like it is”.

Meandos falls quite neatly into philosopher Harry G Franfurt’s definition of bullshit as set out in his lucid 2005 essay On Bullshit. The difference between lies and bullshit is that the liar misrepresents, knows and is covering up a truth, while the bullshitter deals not in falsity but in pure “fakery” (more or less).

The bullshitter may not deceive us, or even intend to do so, either about the facts or about what he takes the facts to be. What he does necessarily attempt to deceive us about is his enterprise. His only indispensably distinctive characteristic is that in a certain way he misrepresents what he is up to,” wrote Franfurt.

Bathabile Dlamini showed her prowess at wielding one of the most effective weapons in the arsenal of those who deal in bullshit and Meandos — piles of files that look official and important that you can flick through while avoiding a direct question that might implicate you or those you are protecting.

But in the end, away from social media, press conferences and public platforms and in the context of a legally constituted commission of inquiry — questions will be asked (yes Mr Zuma we have heard you), and will have to be answered clearly and without embellishment or obfuscation.

Legal questioning in a commission of inquiry or a court is very different from the free-fall, organic truth politicians and officials can often spin and get away with at press conferences.

It was Meandos that sunk Dlamini at the Section 38 hearing ordered by the Constitutional Court to determine her personal liability for legal costs in the Sassagate debacle.

Dlamini, like Lebelo, arrived with lever-arch files. In the end Lebelo’s files were unable to buttress or help him chart a course through the Meandos surrounding the false SARS “rogue unit” narrative.

Lebelo had eventually to be excused to have a little lie down.

There has always been a cast of thousands to keep track of in the shameful capture of SARS by a political clique. It has taken months to unpick the mess and make it public using the scalpel of the Nugent Commission and also over at the Zondo Commission of Inquiry into State Capture.

While those implicated in the SARS mess have attempted to use the unconfined space of the public realm to peddle an alternative narrative and calling the truth “fake”, the Nugent Commission of Inquiry places, in one bright arena, all of those who played along, who didn’t do the right thing, who were too cowardly to stand up to those higher up the food chain.

It has also given a public space to those who risked their careers and their lives to help haul South Africa back from a fiscal and economic precipice.

In March 2015 a detailed submission by former SARS spokesperson, Adrian Lackay found its way to Yunus Carrim, chairperson of the Standing Committee on Intelligence and Cornelia September, chairperson of the Joint Standing Committee on Intelligence.

Lackay began with the first hit on SARS — a complaint lodged by SSA agent, Pretoria attorney Belinda Walter. Blood had been drawn and from there various protagonists swooped.

Lackay’s memorandum is still worth a read as he told us way back then what is being proved true now:

I believe that the by-product of this sequence of affairs is that there are now multiple agendas, being advanced by multiple groupings in different ways, sometimes in tandem or concert, sometimes not, sometimes individually so and sometimes in collusion. The lack of reaching a conclusion on the true facts has harmed and continues to harm SARS as an institution, its public credibility and ultimately the fiscal prospects of the country.”

Last week, Johann van Loggerenberg, head of the SARS investigative unit from 2008 to 2015, said he believed Judge Kroon should have spoken out sooner.

I wrote to him (Judge Kroon) on two occasions during 2015, asking to be heard. One such request was simply ignored, and the second warranting the reply ‘I shall revert if necessary’. Judge Kroon never reverted to me and I must assume that at the time and ever since then, he did not consider doing so as necessary,” said Van Loggerenberg.

While Judge Kroon had apologised to Pravin Gordhan, Van Loggerenberg said he could assist him with the contact details “of the other 26 people and their families who were harmed as a result of the Kroon Advisory Board statement should he be inclined to consider apologising to them too”.

He urged the other members of the Kroon Board “to follow their former chairperson and do what is right. You owe it to the country and its citizens and those harmed. Above all, you owe it to yourselves as professionals”. DM

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