STATE CAPTURE OP-ED
Why Bain & Co should not get a free pass
While Bain & Company remains barred from doing business with the state in South Africa after it was implicated in a gross example of State Capture, the UK has lifted a three-year ban on the Boston-based consultancy less than eight months after it was imposed.
The UK government says Bain has cooperated with its investigation and has provided “considerable additional information on their self-cleaning actions”. Bain has also said in a statement it regrets the mistakes it made in South Africa for which it has apologised. “However, there is no evidence that Bain colluded with SARS or engaged in any corrupt and fraudulent practices.”
Both these statements are false. There is ample evidence that Bain colluded with the South African Revenue Service (SARS) and engaged in corruption. And the way it continues to use PR spin to obfuscate the real story of its involvement in South Africa undermines its claim of “self-cleaning actions”.
Bain & Company has not only been tainted by South Africa’s political corruption but has been found to have been an integral part of it. Two commissions headed by respected judges have now implicated Bain in gutting SARS, responsible for tax collection and compliance, of skills, integrity and structural soundness.
The Nugent Commission in 2018 looked at how a world-class agency, was remodelled, according to a Bain plan, to become a shadow of its former self. “What SARS was, and what it has become, is sufficient proof in itself that integrity and governance failed on a massive scale,” wrote Justice Nugent.
The Zondo Commission of Inquiry released its reports this year and found that Bain colluded with Zuma and a former SARS commissioner, Tom Moyane, to “seize” SARS and weaken it “deliberately”.
“SARS offers one of the clearest demonstrations of State Capture,” said Chief Justice Raymond Zondo.
Lord Peter Hain from the UK House of Lords, who pushed for the ban in the first place, said in a statement that the fact Bain has not been prosecuted is “no indication of innocence, only an indication of an overstretched justice system that is creaking under the weight of corruption to which Bain has contributed”.
Less than transparent
To say Bain has consistently been less than transparent and open and honest is an understatement. During both commissions of inquiry, Bain’s modus operandi was to avoid the scrutiny of these commissions and then, when they are over, to publicly deny some of their findings. It was a bad start for Bain at the Nugent Commission when the former managing partner at Bain’s South African office, Vittorio Massone, came under fire. He dashed off to Italy shortly thereafter, apparently ill, and never returned to appear again.
The judge writes: “What followed was a period of obfuscation and evasion by Bain, as partners rushed from abroad to control the damage” and having dumped documents, “Bain decamped.”
Not one Bain partner or employee appeared at the Zondo Commission of Inquiry into State Capture. Bain’s lawyers objected strongly to the testimony of a former employee and whistle-blower, Athol Williams, and applied to cross-examine him, but ultimately, Bain withdrew this application. The rules would have required the consultancy to give a full version of its account first and subject itself to questioning.
Bain’s general refusal to play open cards flies in the face of its self-proclaimed commitment to transparency. Both commissions concur that Bain is withholding meaningful information and has not told the whole truth. Judge Nugent commended Bain for paying back the fees it earned at SARS but said much more was needed:
“What the South African people want to know is what happened to their country’s institutions, and the information Bain has will help to find that out. If Bain wants truly to make reparation, then it should give to South Africans what they want, and not what Bain thinks they should have, which it has steadfastly refrained from doing. Payment of money without prior disclosure of the truth is not reparation but is marketing instead.”
Bain has admitted to making “serious mistakes” but denies the finding of the Zondo commission that it acted “unlawfully.” It also denies it was willingly involved in State Capture. Its language suggests that Bain was dragged into a situation by one bad apple, Massone, but the evidence suggests there were more.
Bain has also not been open about what senior officials in the US knew about the situation in South Africa. While the Nugent commission said it could not determine the culpability of the head office in Boston, by the time the Zondo Commission turned its eye to Bain, Williams had come forward as a whistle-blower and handed over emails showing that much of what Massone did was explicitly or tacitly condoned.
Williams had a previous history with Bain and he worked with the company from September 2018, initially as an independent consultant, to oversee an investigation initiated by Bain into its work at SARS.
In his book, Deep Collusion: Bain and the Capture of South Africa, Williams admits that he agreed to join Bain as a part-time partner in May 2019 even though the company had reneged on its commitment to provide him with information and he suspected a major cover-up. Regardless of whether Williams was co-opted or, as he says, “conned” by Bain, he resigned that same year. He says it was only then that he discovered the value of a trove of emails that the company had given him earlier.
The emails and documents shed light on a company culture that could accept Bain’s dubious entry into SARS, and they even suggest that Bain may have been aware of a secret plan that went well beyond SARS.
A plot comes together
In 2013, Bain was gunning for state business in South Africa and Massone seemed willing to resort to any means to get it. In November he signed a contract with a company known as Ambrobrite, headed by a TV producer and a creative artist. The contract said Ambrobrite had “intelligence” about opportunities coming up in the public sector and would help guide Bain’s brand positioning and strategy.
It was odd that two artists were advising a global consultancy on strategy and Bain’s own due diligence raised red flags. Ambrobrite had no website and no financial statements and, ironically, SARS suspected that its tax certificate was forged. The global head of marketing, Wendy Miller, raised serious concerns about political risk and Bain’s reputation. The director of finance in Bain’s London office, Geoff Smout, wrote in an email: “This whole situation seems very dodgy.” Despite these concerns, the deal was done.
It appears that Ambrobrite’s actual job was to provide access to the then president, Jacob Zuma, and it did this well. It later emerged that Zuma and Massone met no less than 17 times between August 2012 and July 2014. The meetings were conducted after hours and none were in official workplaces.
During these pow-wows, Zuma must have given Massone insight into his plans for SARS. In December 2013, Massoned revealed for a performance review that Bain had prepared a “strategic turnaround” of SARS which had been presented to the president by Tom Moyane, who was likely to get the job. In February 2014, Massone sent a “confidential” email to three other Bain partners including Fabrice Franzen saying, “It really seems [Tom] is getting that job after elections.”
Massone was therefore aware of the appointment of Moyane as SARS commissioner at least nine months before it happened in September 2014.
As Nugent observed, the SARS work had begun before either Moyane or Bain had “set foot in SARS”. Now they had to find a way to formalise the arrangement so Bain could earn the fees.
A ‘sham’ tender process
Before Bain was appointed at SARS in 2015, emails show the parties went back and forth looking for a way to get around South Africa’s state procurement laws.
There was first talk of “piggybacking” off a contract that Bain had with the telecommunications company Telkom, which would have avoided a proposals process. When that failed, SARS issued the first “request for proposal” (RFP) in December 2014 for a six-week piece of work called a diagnostic. It should have been a fair platform for all bidders. A witness from the Treasury at the Nugent Commission, however, said it appeared that Bain had, rather miraculously, prepared its bid in only one day.
In an email, Franzen told another Bain partner that the consultancy had met with the head of internal audit, Jonas Makwakwa, several times before the RFP was released. Makwakwa, it appears, was passing on sensitive SARS information, which would have been illegal. The Zondo Commission also saw a document that Franzen wrote in October 2014, three months before the bid opened. It was a draft RFP prepared for SARS!
Bain was appointed and Massone and Franzen were the partners on the team despite them having no demonstrable expertise in tax affairs. After Bain had completed “phase one” of the project, the tenders to follow never went to market. For “phase two”, the Treasury granted a deviation from normal procurement only allowed in the case of an emergency or if there is only one supplier. Justice Nugent concludes that the arguments made to the Treasury must have been fraudulent.
In June 2016, the issue of extending the contract came up again and Massone admitted in an internal email that “if we do go to the market, we know will lose.” It appears that Bain was involved in making the argument to Treasury that phase three could only be done by it. Bain offered a “loss leader” to get its foot in the door and then increased its fee for phases two and three.
The Nugent Commission found the entire tender process was a “sham.”
The death of tax collection
Before Bain arrived, SARS was a well-functioning organisation that had attracted international attention. Witnesses at the Nugent Commission used the example of SARS being found to conform to “good international practice” in most categories of the IMF’s Tax Administration Diagnostic Tool in 2014. SARS had undergone a modernisation programme and online filings had gone from almost nothing to 99% in a few years, with processing times reduced from months to seconds.
Both commissions conclude there was not even a need for consultants at SARS, let alone the radical overhaul that went ahead.
Bain’s plan not only failed to help SARS, but it also undid years of efficiency and effectiveness gains. The restructuring undermined governance and revenue collection and some predictions around the hole in tax collection were as high as R100-billion.
High-performing divisions were crushed or fragmented. Before the restructuring, SARS had created the Large Business Centre which was designed to provide “one-stop” services to corporates which accounted for about 30% of revenue collected. It was convenient for taxpayers, and it gave SARS managers a birds-eye view of the affairs of one taxpayer or the performance of one industry. Nugent found the centre had been “eviscerated.” Staffers were separated out into legal, auditing or other siloed divisions. Tax practitioners told the commission how SARS became increasingly frustrating to willing taxpayers after that.
Some of the saddest numbers are related to customs and trade. “Inspection processes are said now to be the longest they have been in seven years: 23 days compared to two days in 2013,” said Nugent in 2018.
One of the hallmarks of State Capture is the removal of good people, and Moyane’s tenure at SARS was marked by a breathtaking purge. While Bain has tried to suggest that its plan had been distorted upon implementation, militaristic language in the turnaround plan links Bain to the removals. The plan that was drafted by Bain and approved by Moyane spoke about identifying people to “neutralise”. In one of its written explanations, Bain said this meant moving detractors to people who were neutral toward the plan, but Justice Zondo rejects this. “The clear intention signified in plain language was to identify people within SARS to get rid of.”
One of the people who resigned within months of Moyane’s arrival was the chief operating officer, Barry Hore. Moyane claimed his resignation was voluntary, but Zondo sees this as one example of a forced departure. The Bain plan included words like “test BH the COO” and Hore was one of those Moyane was advised to “neutralise”.
Rather than seeming shocked that very senior officials with institutional knowledge were being driven out so quickly, Bain partners seemed to be in awe. Franzen wrote to Massone:
“Goodbye Barry Hore…Now I am scared by Tom. This guy was supposed to be untouchable and it took just Tom just a few weeks to make him resign.”
Bain’s SARS “insider”, Makwakwa, took Hore’s place.
Just two weeks after taking over, Moyane disbanded the entire Executive Commission on the basis of an exposé in the Sunday Times. The reports claimed a “rogue unit” in SARS was spying on targets illegally and had bugged Zuma’s home. It was even accused of running a brothel. More than 30 articles were written about the unit over a period of a year and a half starting in August 2014, just before Moyane arrived.
South Africans are very familiar with the rogue unit claims that have been put down several times, only to resurface, only to be put down again. Two early panels commissioned by SARS had lent credence to the claims. Then, in October 2014, an intelligence dossier emerged implicating officials from the High-Risk Investigations Unit — the real name of the alleged “rogue” unit — in the strange illegalities reflected in the media. Later, KPMG also wrote a report that was leaked to the press which added fire to the flames.
The claim that the High-Risk Investigations Unit was “rogue”, however, has now been roundly debunked. The Sunday Times has withdrawn all the articles and admitted the newspaper had been used as part of a project to cause harm to state institutions. It also emerged that KPMG had written its report with input from a SARS lawyer and no input from the people involved. It ultimately withdrew its conclusions. In 2020, a high court found there was no evidence the unit was unlawful and the Zondo Commission declared that that was the end of the debate.
When Moyane came in, he may have had reason to be concerned about the unit. However, witnesses from SARS testified that he made no effort to hear the side of his own officials or defend them. Justice Zondo concludes that Moyane used the “rogue unit” as a ruse and even says, “The fact that he kept quiet suggests he knew well where the allegations were coming from.”
The High-Risk Investigations Unit fell under Johann van Loggerenberg who oversaw several enforcement units that were aimed at finding and detaining people smuggling drugs, illegal cigarettes or other illicit goods. SARS data shows that the enforcement units were working and the illicit economy was shrinking. Excise collected by the tobacco sector grew by more than 20% in the two years until 2014. After the restructuring, however, the sale of illicit cigarettes grew by 15% from 2015 to 2017.
Van Loggerenberg testified that the more successful SARS enforcement units were, the more intelligence “dossiers” arrived, implicating him and others. After being suspended and not being able to defend himself from very public claims, he resigned. By the end of 2015, the entire executive had been hollowed out. The restructuring ultimately displaced around 200 managerial employees from their jobs and many landed up in superfluous roles with no work to do. Some didn’t even have job descriptions. Moyane stopped the modernisation programme in its tracks and the Chief Officer: Digital Information Services and Technology told the Zondo Commission she remained “only to keep the lights on”.
To what end?
In many recorded instances of State Capture, the beneficiaries were the Guptas and possibly Zuma, whose son was employed by them. For example, a bribe was offered and SAA officials were pressurised to close a direct flight to Mumbai, while a Gupta-linked airline was standing by to take up the route. State-owned companies were persuaded to advertise in and by the Gupta newspaper, The New Age, regardless of the content, and then buy copies to increase its circulation. There was a raft of deals at Eskom such as a prepayment of coal to a Gupta-linked company that allowed it to buy the mine that would produce the coal from Glencore.
The beneficiaries of the capture of SARS are harder to identify, although the clear winners were cigarette smugglers and those involved in the illicit economy. Zondo noted that, of the cases that were negatively affected, “Virtually every single one of them had connections to politicians and politics” and that “all of them allegedly involved state intelligence operatives”.
A Tobacco Task Team was set up during Moyane’s tenure but, as the Nugent Commission notes, its target was not actually the illicit tobacco trade but rather it “investigated instead investigators of the trade”.
Ultimately, SARS was a prize for anyone trying to loot from the state.
Reshaping the economy
The first time Massone met Zuma was on 11 August 2012 at a meeting that was set up by Sipho Maseko. Several months later, Maseko would be announced as the new CEO of Telkom and he would give Bain a multimillion-rand restructuring contract. He has denied anything untoward but many commentators have noticed a pattern was forming whereby Zuma (with or without Bain) would earmark a candidate, Bain would coach him, and once he was in place Bain would receive a multimillion-rand project in an uncompetitive process. The model for SARS had been tested.
Massone disclosed in his affidavit that this meeting related to a project called Phoenix which was aimed at Bain getting business in not just one or two but all of South Africa’s public institutions. Telkom, it seemed, would be the springboard for a restructuring of the telecommunications sector and then the project would widen across the economy.
Between 2012 and 2015, Bain created a series of documents called “reshaping the South African economy”, encompassing entire sectors like ICT, energy and infrastructure. It appears that Zuma was keen on Bain developing a delivery agency and a procurement system that would sit outside any other executive control and be centralised in the Presidency. State Capture looting was exclusively around procurement and Zondo finds that “in the light of the critical role that procurement abuse has played in state capture in the evidence before the Commission, this focus takes on an extra significance”.
Then Bain presented plans to overhaul the whole of government and even plans to restructure the governing party, the ANC. Quite bizarrely, it is clear from the evidence that the president — who often railed against private businesses — also wanted Bain’s input on implementing a new manifesto for the governing party. There’s also some evidence suggesting that Bain paid for an ANC Youth League party.
The evidence suggests that, unlike other companies implicated in corruption in South Africa, Bain did not only exploit irregular tender processes but seemed to be a willing participant as the designer of a grand, ambitious plan to capture an entire country.
Signs of a cover-up
Following Massone’s testimony at the Nugent Commission, in early September 2018, Bain said it had tasked the global law firm Baker McKenzie to conduct a probe into its dealings with SARS. It also announced that Williams would lead a committee of partners to oversee the investigation and that “Bain’s contact with Mr Williams calls for him to do what is right for South Africa without restrictions”.
After turning whistle-blower, Williams has claimed that not only did he have restrictions but he was “handled” and witnessed a major cover-up that was centralised and controlled from Bain’s head office in the United States.
Williams was meant to receive the final report from Baker McKenzie at the same time as Bain received it. However, he says one of his reasons for resigning was that Chris Kennedy, the legal head of Bain’s EMEA region, refused to share the findings. Increasingly he used the argument that Bain needed to keep the findings “legally privileged” to protect itself if it was investigated in South Africa or the US or if anyone bought a lawsuit.
By December 2018, Williams became aware that Baker McKenzie was in a conflicted role because, while it was “investigating” Bain in South Africa, it was also “advising” Bain in the United States. Kennedy told him that the global head of legal affairs had decided that Bain would self-report to the US Department of Justice (DoJ) in September primarily because there is a discount on any fine for early disclosure. He was told the decision was based on rumours that Massone had bought cattle for Zuma as a gift.
Williams was told in December 2018 that there would be no written report as Baker McKenzie was preparing a PowerPoint presentation for the DoJ. Only after the Nugent Commission had wrapped up its work, was he given sight of the findings relating to SARS, although it didn’t have much detail since it was part of a bigger report designed to deal with the possible concerns of the Americans. This may be a snippet of the report that has now been released publicly by Bain on its South African website.
Williams says that Baker McKenzie was not only tasked with investigating SARS but also Bain’s dealings with other funding institutions as well as the national airline, SAA, and Telkom. He says a local partner of the law firm told him the findings regarding Telkom were even more problematic than those around SARS and were “embarrassing”.
Rather than respecting his independence and the company’s commitment to “do right”, Williams said Kennedy even suggested that Baker McKenzie should approve the wording of his final report. He says over time his calls for openness in South Africa were a mere annoyance and several partners copied in on emails — Tiaan Moolman, Greg Hutchinson and John Senior, who would soon be appointed as the new managing partner in South Africa — were all “going along” with the approach that Bain was taking.
It’s now clear that both Massone and Bain not only withheld information but lied to the Nugent Commission.
Bain told the commission that “At this time, Bain believes there is no one other than Mr Massone who can provide meaningful information.” Nugent was scathing of the fact that other partners at Bain such as Fabrice Franzen or Stephane Timpano were not put forward to answer questions. Franzen submitted a statement but did not testify and, according to Williams, he soon followed Massone out of the country. He’s currently listed on the Bain website as a partner in the Middle East.
Williams’ evidence shows that, in preparing for its own investigation, Bain had identified 67 individuals who had been involved in the work at SARS between 2015 and 2017 and 37 were still at the company. Some were interviewed more than once suggesting they did indeed have meaningful information.
Bain has never allowed its partners to speak publicly, and they have never taken the initiative to do so. In Williams’ trove, there is also evidence that at least two Bain consultants spoke up, and Bain has also not been open about this evidence. One consultant said that the work at SARS was “effectively a sham” because it was apparent the Bain team was “not, in fact, creating any value for the client”. She says she reported her concerns twice to people overseas during the course of the contract, but they were brushed aside.
Bain admits Massone lied to the commission and to the company. The Nugent Commission was told he had resigned. In his book, Williams says Massone was given a settlement that took three months to negotiate. It’s unclear why Bain settled with the man guilty of putting its global reputation at risk rather than charging or firing him. Williams concludes: “He certainly held some leverage or power over members of the global leadership.”
Following the release of the Nugent Commission report, Bain has made various concessions and it has apologised for its role at SARS. In December 2018 the company released a statement saying: “It has become painfully evident that the firm’s involvement with SARS was a serious failure for South Africa, for SARS and clearly for Bain too.” It admitted that Massone seemed to know about Moyane’s appointment as SARS commissioner well in advance and that the firm had prior knowledge of the RFP.
Bain also admitted to “overstating” the case for change at SARS. For the full extent of the damage, however, it blamed Moyane, saying when he “disregarded our proposed organisational structure changes and developed his own answer, we should either have walked away or at least ensured that our scope for the next phase of work was broad enough to ensure a workable operating model was put in place.” Bain says it was a mistake not to walk away when — by late 2016 — it should have been clear that Moyane “had a different agenda”.
Bain was adamant, however, that it was an “unwitting participant” in the process that damaged SARS. It did not accept that its representatives “knowingly participated in an effort to damage SARS”.
On its South Africa website, Bain has now dedicated several pages to a response to the SARS claims. It again apologises for “serious mistakes” but it continues with the same line that its representatives did not knowingly participate in any effort to damage SARS or State Capture. Parts of Bain’s apology, however, are simply disingenuous.
It is unclear how Bain can rule out nefarious motives on the part of Massone whom it admits lied to the firm itself, and how it can claim to know the mind of the other partners. When it says Moyane clearly had a different agenda and admits that Bain still played along, surely this does not rule out State Capture. Massone and other officials must have been aware of the implications of centralising procurement under the president as the grand plan made provision for. And it’s worth noting that, even in 2012, Zuma had been implicated in corruption since his financial adviser, Schabir Shaik, had been convicted of soliciting a bribe for Zuma in 2005.
Bain has consistently denied what was done in its name.
The Zondo Commission and the Nugent Commission have both rejected the argument that Bain was not aware of where SARS was heading since the email that says “goodbye Barry Hore” even suggests admiration for the implementation of its plan. “Mr Massone and his local partners knew precisely what was going on, though perhaps they were not initially conscious of how brutal the process would be,” said Nugent.
In its web response, Bain says that Nugent concluded it was not motivated by a desire to weaken or damage SARS, but this is incorrect. Bain quotes a section of the Nugent report that says the company and Moyane acted “each in pursuit of their own interests that were symbiotic, but not altogether the same. Mr Moyane’s interest was to take control of SARS. Bain’s interest was to make money.”
If Bain had quoted the very paragraph it picked from in full, it is indeed clear that Nugent believed Bain wanted to hurt SARS, by being involved in a “premeditated offensive”.
“We think what occurred can fairly be described as a premeditated offensive against SARS, strategised by the local office of Bain & Company Inc, located in Boston, for Mr Moyane to seize SARS, each in pursuit of their own interests that were symbiotic, but not altogether the same. Mr Moyane’s interest was to take control of SARS. Bain’s interest was to make money. This was not a plan for mere succession in public service.”
Even now, Bain continues to deny this evidence that it was involved in corruption or fraud. It says: “While we acknowledge that Bain SA was aware of the request for proposal (RFP) before it was formally issued, we have found no evidence, nor has any been produced, that Bain manipulated the procurement process in any way to exclude other bidders or specifically advantage Bain. This process was wholly run by SARS.”
This response completely ignores the evidence that Bain partner Franzen was the author of a draft RFP and the emails that show Bain was actively working with officials to try to find ways around the tender process and to dupe the Treasury. “Bain had certainly known the proposal was in the offing, for four months or more. Indeed, it had been its architect,” found Nugent.
The new commissioner of SARS, Edward Kieswetter, often tells the public that SARS is “rebuilding”. On Bain, Kieswetter says: “I would continue to believe they have a case to answer to. They’ve paid back R216-million of the money they earned through the appointment at SARS. They’ve made a public and private apology.
“But they haven’t fully disclosed the extent and nature of their involvement. There are far too many unanswered questions which we can only know if Bain is prepared to make a full disclosure which is significantly beyond making a public apology.
“And my view is, until Bain makes such a disclosure, then South Africa will know the extent of their involvement in State Capture, what cases they have to answer to and whether or not they should be permitted to return and do business with the state.”
Academics have noted the difference between genuine apologies and pseudo-apologies when companies respond to corporate crises. A pseudo-apology like Bain’s says, “I’m sorry”, but also includes many attempts to deny blame or spread the blame. Bain offers explanations and commitments to transparency and “making things right” on the one hand, but on the other, it continues to protect the people involved. If Massone received a payoff and Franzen is still a partner, it seems clear that no action was taken against anyone involved in a project that was devastating for South Africa and Bain’s reputation too.
If Baker and Mckenzie found “embarrassing” evidence related to Telkom and other companies, South Africans also deserve to have more information about how State Capture played out. When the stakes are as high as they are in South Africa, an apology or “self-cleaning” efforts cannot be real without this sort of full candour. The country, and Bain’s clients around the world, should still demand much more. DM