The Guptas’ poisonous legacy: How State Capture hobbled Alexkor (Part One)
The Guptas’ poisonous legacy still haunts the diamond coast of the Northern Cape. Alexkor, the state diamond mine at the mouth of the Orange River, ‘has been destroyed by corruption and State Capture’ its miners say.
‘Classic State Capture,” is how Gavin Craythorne described events at diamond miner Alexkor — events that made the state-owned company the subject of scrutiny at the State Capture commission in January this year.
Craythorne is a marine diamond miner — one of many who operate as small-scale contractors for Alexkor. He has been a thorn in the side of Alexkor executives for years now, describing himself as a whistle-blower calling attention to the rot and capture of the state diamond miner.
Appearing before the commission, Craythorne detailed allegations of how Alexkor’s plans to expand into coal mining were part of a ploy by the Gupta family to benefit their companies.
He also elaborated on longstanding allegations that the Guptas attempted to capture the Alexkor diamond marketing chain through a company called Scarlet Sky Investments (SSI).
But over time, he paid a heavy price: shut out of mining concessions, slapped with a defamation suit by SSI and finally forced to sell his ocean diamond mining vessel.
To his detractors, he is driven by ulterior motives.
When it comes to Craythorne, SSI’s director, Daniel Nathan, doesn’t mince his words, claiming Craythorne “is motivated only by his desire to profit from the marine mining activities in Alexander Bay and his desire to somehow acquire the marine mining rights or the proceeds thereof for himself”.
Nathan, through his lawyers, told amaBhungane that allegations that SSI was involved in State Capture are “untrue” and “defamatory”.
Yet some parts of Nathan’s own account of what happened appear questionable, as we shall see.
The Alexkor matter appears to have fallen by the wayside at the commission, which has had to deal with evidence related to a dizzying range of State Capture cases and was beset by delays.
This has left questions about SSI’s appointment and its links to Gupta associates hanging over the company and Alexkor.
So too are there unanswered questions around the coal strategy (unrelated to SSI), and what appears to have been, in that case, an audacious plan to expand the Gupta State Capture machine.
There is an important tale in all of this not only about the machinations of high-level State Capture, but in what it means for ordinary people in an impoverished corner of the country, the remote, barren Richtersveld.
Though the coal plans were ultimately thwarted, the infighting and Machiavellian politics of the State Capture years left Alexkor and its joint venture with the local Richtersveld community in disarray.
The Pooling and Sharing Joint Venture (PSJV), owned 51% by Alexkor and 49% by the community, is the effective custodian of the mineral wealth that belongs to the community and should have been its crown jewel, but ordinary people have seen little in the way of diamond wealth trickle down to them.
Craythorne is by no means the only victim in a saga that has left a community divided and a company in disarray.
Diamonds in the rough
The Northern Cape diamond mining coast has the feel of a rough and tough frontier — arid and dusty, and dotted with small decrepit towns endlessly battered by the Atlantic winds.
For nearly 100 years, the state has been mining diamonds on this corner of the country. Though South Africa is no longer the leading global producer of diamonds that it once was, the industry remains important, especially for local employment.
In the late 1990s, the community lodged a claim to the narrow strip of land along the West Coast known as the Richtersveld, which had been expropriated by the colonial state after the discovery of diamonds there in the 1920s. It was on this land that Alexkor had its mining operations.
Only in 2003, after a protracted legal battle against the state and Alexkor, did the Richtersveld community win its land back — and the mining rights that went along with it were later ceded to them. Alexkor was left with its marine mining rights.
In 2011, the PSJV was set up as a joint venture between Alexkor and the Richtersveld Mining Company, the community’s mining vehicle. It combined the community’s land rights and Alexkor’s marine rights, and became the vehicle through which the diamonds were sold.
Alexkor and the PSJV do no actual mining. Instead, it is outsourced to private contractors, mostly to small boat-based marine divers who dredge the seabed using hand-operated suction devices. The contractors deliver diamond-bearing gravel to processing plants and the diamonds are then sold by the PSJV with the help of a diamond marketer.
In November 2014, SSI submitted a tender to the PSJV to be the sole agent to market and sell its diamonds.
In 2018, amaBhungane wrote about SSI in the wake of the #GuptaLeaks, detailing circumstantial evidence that it could have been a vehicle for the Guptas’ planned capture of Alexkor. There were vehement denials of any link to State Capture.
Since then, however, Craythorne’s testimony at the Zondo commission, further information uncovered by Zondo investigators and amaBhungane’s own efforts have raised further questions about the Guptas’ designs on Alexkor and SSI’s role.
Back when it applied for the tender, SSI did not have a significant trading history — it was a shelf company bought for the purposes of the tender.
Online company records show that effective December 2014, Nathan was registered as a director alongside Kuben Moodley, with Moodley owning a 60% stake through his company Kimomode. The other 40% was owned by Nathan’s company, Daniel Nathan Trading.
Moodley is widely known as a Gupta associate whose company, Albatime, has featured prominently in media reports about Gupta-linked state capture. He has been accused of being a “fixer” for the family and was arrested in connection with alleged money laundering in September this year on his way to Dubai.
The alleged money laundering relates to the proceeds from contracts that were improperly awarded by state-owned Transnet to Gupta-linked consulting companies Regiments and Trillian.
On affidavit, Nathan told the commission, “I have no relationship with Mr Moodley other than our previous association in SSI which ended in and during August of 2015. I have known Mr Moodley since approximately 2001 when we played golf together.”
He said that when he became aware of the Alexkor tender he contacted Moodley to come in as his BEE partner: ”I knew that he had the financial standing, business experience and acumen that would contribute to the business if the tender was successful.”
Two months after Moodley and Nathan were registered as directors, SSI had the tender in the bag when the PSJV board signed off on it, completing a questionable bid adjudication process, as amaBhungane has previously reported.
That marked the start of a bitter dispute over the SSI contract, with Alexkor’s partners in the PSJV and contractors like Craythorne crying foul.
Part of the problem lay in the unusual way in which the PSJV was set up, with the non-executive chairperson of Alexkor occupying the same position in the joint venture, whereas no executive from Alexkor sat on the PSJV’s board.
Percy Khoza, Alexkor’s chief executive at the time, said that he arrived at Alexkor to find that the company’s memorandum of incorporation barred its executives from having direct oversight of the PSJV.
He said that the board’s chair, Rafique Bagus, allowed him to sit on the PSJV board as an observer, but Khoza had no vote and no ultimate control over what was essentially his main operating company.
Team Gupta on speed dial?
The Bagus board had been appointed in 2012 by Gupta-linked Minister of Public Enterprises, Malusi Gigaba, though Gigaba has denied being captured by the Guptas and told the Zondo commission Bagus had been appointed on the basis of “a very good record in the public service”.
But Bagus was well known to the Guptas and was among a long list of politicians and public officials who made a pilgrimage to the Guptas’ infamous Sun City wedding.
Before, during, and after his time at Alexkor, which he left in 2015, Bagus had many phone conversations with the Guptas and their associates, according to an affidavit by an investigator for the state capture commission, Peter Bishop.
Bishop alleges that there were about 26 calls between Bagus and Ajay Gupta between July 2015 and March 2016, and about seven between him and Rajesh Gupta between May 2015 and March 2016.
There were approximately 60 calls between Bagus and Gupta associate Iqbal Sharma, currently facing charges of fraud and money laundering related to the failed Estina dairy scheme — one of the Guptas’ most notorious state capture projects.
The affidavit also mentions approximately eight calls between Bagus and another key Gupta associate — Ashu Chawla.
Bagus, in response to questions, said he did not recall Chawla, but admitted his familiarity with the Guptas and Sharma. He said he knew Sharma from their time together at the department of trade and industry, adding, “I have had several engagements with him over the years, mostly social.”
“As a former civil servant, I am often called for advice. I have not discussed my work at Alexkor with any of these people.”
Bishop’s affidavit also alleges regular calls between Moodley and the chief executive of the PSJV, Mervyn Carstens.
Between September 2015 and May 2017 Carstens was allegedly in contact with Moodley 97 times.
For most of this period Moodley was not a director of SSI. He resigned in November 2015, but retained his shareholding through Kimomode until April 2017.
After resigning from SSI, Moodley went to work as an advisor for then minister of mineral resources, Mosebenzi Zwane, who has been implicated in the Guptas’ state capture project and was the Free State MEC of Agriculture at the time of the Estina scandal. As MEC, Zwane’s department had oversight of the project.
Alexkor’s chief legal officer, Zarina Kellerman, later joined Moodley as an advisor to Zwane.
Bishop’s affidavit also claims that Carstens was in phone contact with Gupta associate Stanley Shane about 10 times between February and July 2016.
Responding to questions about the calls, Carstens said:
“As for me calling Mr Moodley about 97 times, first and foremost I did not call him 97 times. He called me. If I missed his call, I called him back. I have no recollection of what was discussed on any of the calls with Mr Moodley… I had no reason to need to speak to him.
“At one stage, Mr Moodley was interested in becoming an actual mid-water mining contractor or purchasing an outfit and called me to enquire as to some of the background. I recall there were several conversations about this however eventually he did not put in any proposal and certainly made no purchases in this regard. It appeared to me that he had lost interest.”
Carstens said he did recall speaking with Moodley about golf, and that after the #GuptaLeaks and Moodley’s connection to the Guptas became “evident”, “I blocked his number and did not take his call or reply to any of his efforts to reach me”.
“Calling Mr Stanley Shane is also one of those things which I simply have no recollection of, however, any conversations with him would have been around mining. As the CEO of the PSJV I got a lot of these calls on a daily basis.”
Shane was a director, together with Marc Chipkin and Clive Angel (who resigned in 2019), of a company that has been linked to State Capture — Integrated Capital Management (ICM).
This company, Bishop’s affidavit reads, was “intimately involved with [Gupta associate Salim] Essa and the establishment of the Trillian Group of Companies, which was used to capture consulting work from Transnet and Eskom from the end of 2015”.
Innocent or integrated?
Alongside Chipkin, Angel and Shane at ICM was Selwyn Nathan — Daniel Nathan’s father — whose role in the company is more obscure.
Daniel says in his own affidavit, “My father was the honorary chairman of ICM… [he] resigned from that position on 2 November 2015.”
However, a share register and declaration for December 2017 showed that a company of which Nathan senior was the beneficial owner still held a 21.97% share in ICM at that time.
It was Selwyn Nathan who arranged for a R50-million letter of comfort that Scarlet Sky relied on for its bid.
When ICM’s role in supporting Trillian was first exposed by former Trillian Management Consulting chief executive Bianca Goodson, the then-attorney for the ICM grouping, Billy Gundelfinger, objected strongly.
In a 2017 complaint to the Press Ombud, he said ICM was merely an “arm’s-length service provider” and emphatically denied that the company took part in any state capture actions.
Since then the linkages between people associated with the Guptas and people associated with ICM have become slightly clearer.
As early as July 2018 amaBhungane revealed ICM’s role in helping a shelf company linked to Essa extract R647-million from Transnet for changing the venue for local locomotive manufacture from Pretoria to Durban.
Goodson has also since given damning and seemingly unchallenged testimony at the Zondo commission in relation to ICM, alleging that Angel, in particular, was aware of the way in which Essa’s extraordinarily ambitious business model was based on exerting influence over decision-makers.
This included Angel’s knowledge of a November 2015 email which set out Trillian’s plan to capture R10-billion in consulting income from Eskom over just three years.
Shane did not respond to calls and WhatsApp messages. Gundelfinger, on behalf of Angel and Chipkin, told us his clients had instructed him that they did not wish to engage with us.
Daniel Nathan, in his own affidavit to the State Capture commission, has attempted to put distance between SSI and ICM.
According to Nathan, ICM was brought in by SSI to “assist it in preparing and submitting its tender submission document to the PSJV”.
Nathan insisted, “SSl’s engagement of ICM was on an entirely arms-length and professional basis for the purposes as aforesaid.”
But was that true?
As we’ll see, Nathan’s attempt to rubbish Bishop’s state capture commission affidavit led him to proffer a bank document that he must have known contained misleading information.
That, unfortunately, may cast some doubt on his other assurances.
Selwyn Nathan, ICM, Investec and SSI
The process by which SSI was selected as preferred bidder was problematic, an issue to which we’ll return, but it was approved subject to a due diligence check.
A due diligence and verification report on SSI’s and its bid was conducted by the CEO, Carstens, and Zarina Kellerman, the chief legal officer of the PSJV, and submitted to the board in late January.
But the due diligence exercise does not appear to have scrutinised the R50-million issue noting only that “Scarlet Sky has a bank guarantee of R50-million with Investec”.
Had it done so, it might have picked up some anomalies.
Bishop’s affidavit notes that “the commission has subsequently established that lnvestec has no record of any guarantee that was applied for and provided”.
Daniel Nathan hit back at Bishop’s claim in his own affidavit.
According to him, “my father advised [Bishop] that Investec Bank had provided a letter confirming that SSI was an Investec Bank client and that SSI had funds available to it of R50-million”.
As proof of this, Nathan attached a January 2015 letter from Investec stating that it “confirms that Scarlet Sky Investments… is a client of Investec and holds various Investec accounts in their name”.
“We further confirm that as at the date of this letter, Scarlet Sky has an amount of R50,000,000.00 available in their accounts, for use at their own discretion.”
The problem for Nathan, however, is that the information appears to be false. SSI was not a client of Investec and held no accounts with the bank — something he must have known.
Investec told us, “Investec categorically denies any association with Scarlet Sky Investments 60 (Pty) Ltd (“Scarlet Sky”). Investec further confirms that Scarlet Sky was never a client of the bank and that it [Scarlet Sky] at no stage held any accounts with the bank.
“A 2015 letter, intended to convey confirmation of the availability of funds on behalf of two long-standing clients, erroneously recorded that Scarlet Sky was a client of Investec. This was incorrect. Furthermore, the letter clearly stated that it was not a letter of guarantee. No payment was facilitated by Investec for or on behalf of Scarlet Sky.
“Investec has deposed an affidavit to the Zondo Commission of Inquiry detailing the misstatement of fact in the 2015 letter.”
Investec and the Nathans also part ways on the exact circumstances under which this “misstatement” came about but they both try to characterise it as not being material.
amaBhungane sent questions to the Nathans regarding Daniel Nathan’s reliance on the Investec letter and the impression that there may have been an attempt to mislead the commission.
In response, their lawyers labelled our questions “consistent with (and are a further perpetuation of) your previous discourteous, accusatory, reckless and defamatory engagements with our client”.
Regarding the Investec Bank letter, the Nathans’ lawyers said it contained “immaterial inaccuracies (by Investec Bank and not our clients)” — and that there had always been sufficient funds available to SSI, inter alia through Selwyn Nathan’s relationship with Investec.
SSI’s tender was initially intended to be a short-term gig, so in 2016 the tender process was renewed. Again, SSI was appointed, this time for five years.
By now, a new board was in charge. Bagus had resigned and been replaced by Hantsi Matseke, the Free State Development Corporation’s (FDC’s) chair.
There are traces of evidence in the appointment of SSI for a second term that suggest Gupta-linked Trillian had something to do with tender number two.
Two pieces of information suggest Trillian involvement.
The first is an email sent on 28 March 2016, two days before bids for the second tender closed, from a Trillian employee. SSI’s proposal for bid number 02/2016 — the second diamond marketing contract — was attached to the email and included Daniel Nathan’s CV.
The employee wrote in her email: “I’ve done a grammar check and added the health and safety statement to the proposal. Please find attached all the information required… Please add pictures under the relevant sections and potentially use graphics to enhance layout.”
The second exhibit that points to Trillian involvement is slightly more faint — two emailed meeting notifications.
The first notification, with the subject “Diamond Tender discussion”, was scheduled for 16 March at 10:15am at ICM’s Melrose offices. It was sent by ICM’s Chipkin to Daniel Nathan, and two Trillian employees.
The second notification for a meeting on 22 March was sent to the same group of people.
The Nathans, through their lawyer, flatly denied that they knew the Trillian employees, or that ICM was in any way involved in the second tender.
“Mr Daniel Nathan has no links whatsoever to the Guptas or their associates,” they said.
One of the Trillian employees, who asked not to be named, told us: “Clive Angel, whom I met due to the move to Trillian, asked… if my colleague… and I could assist with collating a proposal for Scarlet Sky.
“Mr Angel introduced us to Scarlett Sky management, whose persons were previously unknown to me, at the ICM offices in Melrose Arch. Our role was to collate the proposal using information primarily provided to us by Mr Nathan, at the ICM offices. Once we were done, there was no further involvement from my side.”
More Gupta fingerprints
In amaBhungane’s initial story, we reported that only three people sat on the panel to decide on the final selection in the first tender — they were Bagus, longtime Alexkor director Roger Paul, and Duncan Korabie, one of the independent directors representing the community on the joint venture’s board.
Korabie gave SSI a full 100% score which, as our initial article noted, “is normally regarded as an attempt to skew a panel score in favour of one bidder”.
The issue of SSI’s scoring became even more charged when Korabie fell out with Alexkor. He later submitted a complaint to the Public Protector alleging various irregularities in the tender, despite his own 100% score.
Representatives of the community in the Richtersveld Mining Company, Alexkor’s partner in the PSJV, were also concerned.
After a complaint by the RMC in late 2015, Lynne Brown, who had replaced Gigaba as minister, tasked Alexkor’s audit and risk committee with investigating the tender.
The committee concluded its investigation and came back to the board in February to say that all was well. There were no major problems with the tender.
But based on what we now know, the committee either did not look hard enough, or was wilfully blind to the problems.
One of the three committee members was Trevern Haasbroek, whose appointment as a board member of Alexkor in August 2015 bore the Guptas’ fingerprints again.
In a now-familiar pattern in the Guptas’ State Capture enterprise, the month before Haasbroek’s appointment, Minister Brown’s personal assistant sent an email to [email protected]. The address was prominent in the #GuptaLeaks and is now known to have almost certainly belonged to Essa.
The email, titled “Trevern’s CV”, is addressed to “Saleem” — clearly a misspelling of Essa’s first name.
In it, the PA writes: “Herewith cv for Alexkor board as discussed.”
Haasbroek did not respond to a request for comment.
At the Zondo commission, Brown denied influencing board appointments in favour of the Guptas and said she was unaware of her PA sending emails to the infoportal1 (Essa) address.
A festering sore
The SSI tender became a festering sore on Richtersveld diamond mines.
Craythorne and some other marine diving contractors claimed that the company was ill-suited to the task of valuing, marketing and selling the joint venture’s diamonds.
They claimed SSI’s appointment was not transparent, that the company did not have the requisite experience, and that diamonds were being undervalued and miners short-changed.
Claims about the undervaluing of diamonds and anomalies in the diamond sales process have been laid out in detail at the State Capture commission, and have been met with vehement and at times compelling refutations by both Nathan and the joint venture chief executive, Carstens.
Both have also pointed to detailed separate reports on the SSI operation issued by two diamond industry experts and another Alexkor mining contractor.
All three said that SSI appeared to run an effective marketing and selling operation that extracted good value for Alexkor — in contradiction to the claims by Bishop and Craythorne.
Nathan alleged the commission investigators had made grievous errors.
“[They] made statements of fact and have arrived at conclusions in their affidavits concerning me, SSI and DNT which are untrue, inaccurate and unsubstantiated, defamatory and reckless,” he said in his own affidavit.
His lawyers told us: “If, as you record, amaBhungane really wants to understand ‘what happened at Alexkor’, then perhaps you should be reporting on the fact that during SSI’s tenure as the entity to market, sell and beneficiate the PSJV’s diamonds, the PSJV’s diamond revenue from sales convened by SSI increased from R276-million in 2014 (the year prior to SSI’s appointment) to R414-million in year 1.
“amaBhungane should perhaps be considering what became of this diamond revenue (which SSI actually generated in terms of its agreements with the PSJV) as opposed to unjustly interrogating our clients.”
That the Alexkor issue appears to have been left in limbo by the commission has not helped in getting to the bottom of a very complicated matter.
A more clear-cut problem, as far as the contractors are concerned, seems to be in the lack of transparency of the diamond sales made through SSI, which has only fuelled the contractors’ suspicions that they are being short-changed.
A report by forensic accounting firm Gobodo, which was submitted to the department of public enterprises in late 2019, underscores these concerns.
Though the report was criticised by Zondo for its sloppiness, it did raise some noteworthy points around the lack of transparency in the marketing and selling of the diamonds.
The Gobodo report claims that SSI kept important information about this classified, even from the PSJV, on whose behalf it was selling the diamonds.
In the rush to complete their report, Gobodo’s team appears to have made a number of errors and ignored some evidence that contradicted their findings.
One thing that stands out, however, is their findings concerning the assessments of the bids and how bidding companies were scored in the original tender process that selected SSI.
The report notes that the weighting of various categories of scores was changed after three bidders, including SSI, were shortlisted. Notably, the weighting of scores for local economic development, job and ownership commitments was reduced.
The report states that “the changing of the points and evaluation criteria is irregular and constitutes an unfair and uncompetitive practice”.
Between mid-2015 and mid-2019, the year before SSI’s contract was eventually cancelled, Gobodo calculated that over R1.5-billion worth of PSJV diamonds passed through Nathan’s company.
Given the huge turnover, the original 2014 procurement process that led to SSI’s appointment appears to have been, at best, extraordinarily amateurish.
The relations between the small-scale contractors and the joint venture’s board and management became so strained that several contractors, including Craythorne, did not have their contracts renewed.
In January 2018, a team from the Department of Public Enterprises (DPE) stepped in to attempt to resolve what had become an intractable conflict.
One of the issues that the contractors “raised vigorously” was the SSI contract.
The contractors also questioned the prices that the diamonds were fetching and the lack of transparency in the marketing and sales of the stones.
The DPE team compiled a briefing report of their engagements with the parties, which left no doubt as to who the team felt was more to blame for the falling out — it was scathing of the board and management team.
“There seemed to be a determination to manage by fear in order to drive home the message to contractors that no dissent shall be tolerated.”
The team found that the board had been “economical with the truth” when it claimed that its decision not to renew some mining contracts was based on a legal opinion.
They also drew attention to what was at stake for diamond contractors like Craythorne, who says he has now lost everything.
“The contractors have substantial skin in the game. The contractor literally mortgages all they have to be on the sea during the sea days with an expectation that they will have a good mining day and be able to cover their costs.”
The problems that the department’s team had seen up close, only worsened. In September of the following year, Alexkor was under administration.
When, in 2020, the administrator reported to parliament on the state of Alexkor, he said many of Alexkor’s problems were traced to weak governance.
The administrator noted: “Because the PSJV is an Unincorporated Joint Venture, it has significant governance challenges, as it does not have to comply with the Companies Act and/or the Public Finance Management Act (PFMA), neither has it adopted any of the best practices contained with either of the Acts mentioned above.”
Carstens, the PSJV CEO, relied on precisely this argument — that the joint venture was not beholden to the PFMA — to explain the decisions taken in appointing SSI.
“The allegations of apparent irregularities in the tender process stems from a mistaken view that the PSJV is somehow obligated to comply with the PFMA.
“The PSJV most certainly had a procurement process which was adopted by the Board of the PSJV [which] allowed for the Board to be flexible in its approach.”
Others, including departmental officials, were uneasy with this freestyling approach.
The departmental team had said that the PSJV, “by virtue of the fact that it is an unregistered entity which utilises Alexkor SOC Limited legal status to trade and conduct its business… is bound by the same standards of conduct expected of a state-owned business.
“Moreso, as the resource that is being exploited by the affected miners is the marine diamond deposit whose mining right belongs to Alexkor SOC Limited and by extension the State.”
But to the state capture crowd, the loopholes created by the PSJV structure seemingly represented just another opportunity.
Years later Alexkor and its issues continue to drive a wedge through what was an already divided community.
On 19 May this year, the parliamentary committee on public enterprises reported on their oversight visit to Alexkor, noting a concern about government’s failure to facilitate the election of legitimate community structures and a perception that they were still subject to divide and rule tactics.
The committee also consulted mining contractors on their challenges with Alexkor.
“The contractors raised a number of concerns which included the following: the company has been destroyed by corruption and State Capture… There is a high unemployment rate and lack of development programmes for young people in the community, and that has given rise to high levels of poverty, drug and alcohol abuse.”
The Richtersveld land claim settlement was supposed to deliver justice and development, but its intended beneficiaries seem to have been left as high and dry as the windswept dunes. DM