SA State Capture rears its head in German Bundestag

By Marianne Merten 22 January 2020
A charred train carriage at Cape Town train station, 28 September 2018. Photo: Leila Dougan

A parliamentary question from Die Linke party about German companies fingered in State Capture, particularly at the Passenger Rail Agency of South Africa, showed the German federal justice ministry is still waiting for the South African authorities to make contact. But it may not quite play out like that amid vows to step up the pressure.

The official response to the parliamentary question in eight parts on German companies fingered in State Capture from Die Linke MPs Fabio De Masi, Jorg Cezanne and Klaus Ernst has dropped in the Bundestag, dated 2 January 2020.

In it, the German Federal Ministry of Justice and Consumer Protection says it was “aware of media reports alleging corruption by German companies” as part of State Capture in South Africa, but the federal government itself had “no further knowledge” of such — or direct knowledge of any prosecutions or convictions.

Nor had the German government received a request for mutual legal assistance, according to the federal justice ministry’s parliamentary reply 19/16297.

However, State Capture had been raised in discussions with German companies represented in South Africa, and others.

“Representatives of the foreign missions (in) Pretoria and Cape Town have had several discussions (on State Capture) as well as with German companies represented in South Africa,” according to an English translation of the original parliamentary reply also provided to Daily Maverick.

“The issues of State Capture and corruption regularly turn up in talks between the embassy and representatives of the South African government, parties and non-governmental organisations.”

The official response has disappointed Die Linke MP Fabio De Masi.

“South Africa must bring to justice those who make its citizens suffer. This requires swift action of the South African government to request cross border assistance on prosecuting the management of Vossloh. The visit of Chancellor Angela Merkel in February is an important opportunity to discuss those matters,” Masi told Daily Maverick in an emailed response.

“Germany has a legal obligation under international law to assist in prosecuting corruption committed in South Africa by companies headquartered in Germany. Germany has no corporate criminal law. Only people, not companies can be held to account. But the proceeds from corruption can be skimmed. Profits from corruption must be paid back to the people of South Africa instead of filling the pockets of shareholders.”

The parliamentary question in the Bundestag is the second time South Africa’s State Capture has been raised in another country’s parliament.

In mid-October 2019 during a House of Lords question session British Lord Peter Hain called for action against the Guptas and to hold British companies implicated in State Capture responsible. Hain followed this up in late November 2019 with his testimony at the State Capture commission, again putting international companies squarely into the State Capture spotlight.

The Bundestag parliamentary question came in the wake of civil society organisation #UniteBehind’s “Fix Our Trains” campaign.

Alongside calling for safer and reliable trains, #UniteBehind also demands the prosecution of those companies implicated in State Capture and the repayment of State Capture gains, including by German companies implicated in corruption in the acquisition of locomotives for the Passenger Rail Agency of South Africa (Prasa).

Central to the locomotive debacle at Prasa, which has received a disclaimed audit for the 2018/19 financial year, is a locomotive tender involving Swifambo and Vossloh España, the sister company of Vossloh, a German-based company acquired in 2016 by the Swiss Stadler Rail.

Complicated? Possibly, but maladministration and corruption in the Prasa locomotive tender was raised as far back as the 2015 “Derailed” report by then public protector Thuli Madonsela. While Swifambo has gone through the courts to appeal against a 2017 judgment that it got the 2013 locomotive deal through a “corrupt tender process” that set aside the R3.5-billion contract, it ran out of track in May 2019 when the Constitutional Court ruled it had no grounds to further appeal.

Coincidentally, German IT company SAP, which also has been linked to State Capture, particularly in dealings at Eskom and Transnet, publicly acknowledged what it called compliance breaches and indications of misconduct as far back as March 2018.

Reuters at the time reported an SAP internal probe found the company had paid millions to intermediary Gupta-linked companies. Three suspended executives resigned.

#UniteBehind’s Fix Our Trains approach to Germany began in July 2019 with a protest at its Cape Town consulate, followed by correspondence in August 2019 and a meeting at the German Embassy in Pretoria in November 2019.

The parliamentary reply confirms the official diplomatic correspondence of 6 December 2019 expressing concern about State Capture and corruption, adding the German federal government did not comment on confidential correspondence and discussions.

That correspondence from the deputy mission head and head of Economics and Global Missions, Dr Rüdiger Lotz, seen by Daily Maverick, reiterates the meeting’s discussion, including shared concern over State Capture and corruption.

“If German companies should have been involved, the South African authorities should duly investigate the facts and, if need be, start judicial procedures,” Lotz writes.

“Corruption and bribe [sic] are also criminal acts under German penal law, no matter whether committed in Germany or abroad.

“We consider cases of alleged corruption very serious(ly). We have therefore forwarded your complaint to the foreign ministry in Berlin that is examining the information.”

The parliamentary reply from the German Federal Ministry of Justice and Consumer Protection has confirmed a draft act to review the company sanctions law. This is still being processed at the departmental level and had not yet been published.

On Tuesday, the National Prosecuting Authority (NPA) indicated Prasa was not part of State Capture investigations by the special prosecution division under advocate Hermione Cronje. The Hawks on Tuesday did not respond to questions regarding a request for comment on a mutual legal assistance application to Germany.

Veteran activist Zackie Achmat of #UniteBehind Fix Our Trains said the German government was obliged to act given that it had signed the United Nations and European conventions to fight corruption and transnational crime.

“They can not abdicate responsibility. There is nothing in German law to stop them approaching South Africa,” he said, adding it was “a corrupt formalism” that action was reliant on South African authorities.

“We are confident if the German government doesn’t act, we will rely on allies internationally to bring an action in Germany against these companies.”

And there would be support.

“My possibilities to pursue the issue further in the German parliament are limited as long as the South African authorities do not act,” De Masi told Daily Maverick in reference to the German legislative context.

“However, I am happy to assist NGOs such as #UniteBehind with taking legal action in Germany.” DM


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