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Opinionista

Let’s shed our pessimism about corruption – the orange overall brigade is growing by the day

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Oscar van Heerden is a scholar of International Relations (IR), where he focuses on International Political Economy, with an emphasis on Africa, and SADC in particular. He completed his PhD and Masters studies at the University of Cambridge (UK). His undergraduate studies were at Turfloop and Wits. He is currently a Deputy Vice-Chancellor at Fort Hare University and writes in his personal capacity.

There is a widespread belief that President Cyril Ramaphosa is moving far too lethargically in combating corruption. But when we start adding up all the cases that are underway, and the huge sums of money recovered, there is room for great optimism.

Ignoring our tragic history, we have become too accustomed to the blame game – pointing fingers at each other, as if this will resolve the deep structural challenges in our country. Unemployment, poverty, and inequality are the enemies of our nation and quite frankly, this is what we should concentrate on moving forward.

Needless to say, when there are elements in our society that are taking advantage of us and our generosity by engaging in corruption, State Capture and other illicit activities at the expense of our people, we must effectively deal with them and bring them to book. The long arm of the law must take its course and the perpetrators must be punished.

The 2008/09 global financial crisis saw the global economy take a punishment never seen before in recent history. Then, just as we began to see a recovery in many economies, the Covid-19 pandemic hit the world and had devastating consequences on us all. The combination of the previous crisis plus this pandemic rendered many economies catastrophic and we in South Africa are no different.

So one can fully appreciate and understand the frustration, anger and helplessness on the part of our people. Both events were not of our own making and yet the blame game continues, and the ANC is at the receiving end of the blame it seems. Social media has gone viral with the ineptness of the ruling party in managing this pandemic and the corruption that has obviously gone with it has reinforced people’s view (at least on social media pages) that the ANC and by extension the government cannot manage the crisis and in fact have actively contributed to it by not arresting people, not prosecuting people and not ensuring that culprits find themselves in prison orange overalls.

And yet nothing can be further from the truth.

A recent analysis from a friend of mine, JP Landman, demonstrates this reality so very succinctly. He states, for example, that on the corruption front “there is palpable anger in the land about corruption. The anger is largely focused on what the ANC is doing and failing to do about the scourge. If we separate party and state, it is useful to look at the scoreboard of what the state has achieved so far in fighting corruption.”

He then sets out his analysis, starting with the much-needed changes required at the top in various critical institutions. He indicates that: “President Ramaphosa, 10 months after coming into power, fired erstwhile South African Revenue Service (SARS) commissioner Tom Moyane in November 2018. Moyane fought mightily to keep his job, all the way to the Constitutional Court, who sent him away empty-handed. By May 2019 new Commissioner Edward Kieswetter was in office. Four senior SARS executives left in the next three months, bringing the total senior executive departures to seven. Now, a year later, SARS seems on its way back.”

He continues that “at the Public Investment Commission (PIC), no fewer than 17 board members and senior executives left in the nine months between June 2018 and April 2019. Some have already received summonses to repay money and I suspect more summonses will be issued.”

As we all know, the problems besetting our electricity provider have had and continue to have far-reaching implications for our country. As such, Landman reminds us that: “Eskom retrieved R1-billion from McKinsey and R150-million from Deloitte. (Two Deloitte directors also resigned.) Eskom cancelled a coal contract of R3.7-billion with Tegeta, the erstwhile Gupta company, as well as a R14-billion oil supply agreement. Other contracts are being investigated. On 3 August 2020, Eskom and the Special Investigating Unit (SIU) launched proceedings to recover R3.8-billion from 12 individuals, including the Guptas, a former minister, former senior executives and former board members. In its investigations at Eskom, the SIU notified the board of wrongdoers – some resigned before disciplinary hearings started. There are consequences, even if we don’t see orange overalls yet. (As an aside, 300 managers left Eskom with voluntary severance packages.)”

Wow, who knew – all this going on and yet there remain many in our country spreading the pessimistic message that nothing is being done by our government. In fact, they go as far as saying that the president is doing nothing to combat corruption.

It is now also known that: “At Transnet, a new board was put in place and 15 senior executives left over a period of 12 months. South China Rail has repaid R618-million; the two Transnet pension funds recovered R1.168-billion from Gupta entities; and assets worth R232-million from a former Gupta associate were frozen.”

More must and will have to be done, and not everyone has yet answered for their complicit role in State Capture and corrupt practices. “Not all institutions were cleaned up as successfully. The Passenger Rail Agency of South Africa (Prasa) remains a mess and is now thankfully under administration. Gratifyingly, SARS attached some of former CEO Lucky Montana’s private properties.

“The Land Bank had to be bailed out with R3.5-billion, but three people have been sent to jail for fraud at the bank – one for 20 years. Mercifully, South African Airways is on its way out (unless a benefactor appears) and SA Express is in liquidation. Denel also saw a clean-up and has a new and very competent board, but it can probably no longer be saved from the ravages of earlier corruption – the military procurement environment has changed too much.”

As for the much-spoken-about National Prosecuting Authority (NPA), Landman tells us: “In August 2018, Ramaphosa fired previous National Director Shaun Abrahams (like Moyane, Abrahams challenged his dismissal in court, but he too was eventually sent away empty-handed). In October 2018, Ramaphosa suspended the two deputy directors, advocates Nomgcobo Jiba and Lawrence Mrwebi. Following the commission’s report, they were fired in April 2019. Like Moyane and Abrahams, Jiba challenged her dismissal in court. She threatened hellfire and brimstone, but eventually simply abandoned her case and went into oblivion. New permanent deputies have been appointed.”

In the meantime, “several investigative agencies have been pulled together in a ‘fusion centre’ to work on Covid-19 corruption, creating precisely the integration of skills and a more enduring capacity President Ramaphosa was looking for”.

We then see in February 2019, while these clean-up processes played out, Shamila Batohi assumed her position having been recruited from The Hague.

Also, in February 2019, Ramaphosa announced in his State of the Nation (SONA) speech that a special investigative unit would be created inside the NPA to prosecute State Capture cases. The unit would combine prosecutorial and investigative capabilities like the Scorpions used to have. Ramaphosa promised that skills from “within government and the private sector” will be brought in. He also left the door open for “a more enduring (anti-corruption) solution” to be developed.

“The unit was gazetted in April, and in May 2019, Hermione Cronjé was duly appointed from outside the NPA to head this new unit. In October 2019, Treasury allocated R38-million to get the special unit going; a further R25-million was allocated to appoint private sector practitioners to assist the NPA (there is Ramaphosa’s promise of ‘private sector skills’); and R102-million was allocated to fill vacancies at the NPA.”

And finally, to conclude on this NPA renewal process: “In February 2020, 800 posts at the NPA were advertised. More positions were advertised in August 2020.” This clearly tells us that the president and the minister of justice are very serious about putting in place the right people, structures and tools to correctly fight this anti-corruption fight as promised in his campaign leading up to the 2019 general elections.

In July 2020, the regulations on the Zondo Commission were changed to allow the NPA to use evidence from the commission in criminal prosecution as well as to use the services of people currently working for the commission. This was not possible under the commission’s previous regulations. One must remember that the Zondo regulations were promulgated by Zuma just before he left office, and it was a balancing act to protect people’s right to remain silent, but still get the stories out. That balancing act now favours the NPA.

During August 2020, “the ANC’s National Executive Council (NEC) has resolved that ‘government (must) urgently establish a permanent multidisciplinary agency to deal with all cases of white-collar crime, organised crime and corruption’. Later, Justice Minister Ronald Lamola confirmed ‘it is clear, the country needs a permanent structure’. This sounds much like Ramaphosa’s SONA speech of February 2019 where he left the door open ‘to develop a more enduring (anti-corruption) solution’. Looks like he knows where he wants to go and is playing the long game,” according to Landman.

In the meantime, “several investigative agencies have been pulled together in a ‘fusion centre’ to work on Covid-19 corruption, creating precisely the integration of skills and a more enduring capacity President Ramaphosa was looking for”.

Criminal prosecutions can still follow a successful civil claim. Criminal cases require “beyond all reasonable doubt” while civil claims require the less strenuous test of “on a balance of probabilities” (as we are seeing with some of the VBS accused being both sequestrated and now also charged criminally).

I reckon we will soon reap the benefits of this initiative too.

As for the much-vaunted prosecutions: “16 months ago… I tried to temper expectations for quick prosecutions. I wrote that prosecutions will only happen in 2020. Legal processes take time, simple as that.”

In the meantime, Jacob Zuma has suffered a number of setbacks in various courts. As he is discovering, the wheels of justice turn slowly, but they do turn. “The Hawks are investigating 250 cases of municipal fraud of which 93 are already before the courts,” Landman writes. “More people will discover that the wheels of justice actually turn, if slowly.”

Landman also does not forget about the VBS saga. “In June 2020, nine suspects were arrested for the VBS Mutual Bank saga. In the meantime, five of the nine VBS accused, including the former chair, chief executive officer, chief financial officer and chief operations officer, were sequestrated and their assets seized to repay monies to the bank. Two directors were declared delinquent and cannot be company directors again. Consequences are following, even without jail sentences.”

We must remember that the SIU is a division of the NPA with the mandate to investigate and recover public monies through civil claims – it is not a prosecutorial body. Where the SIU comes across evidence of criminal wrongdoing, it is referred to the prosecutors at the NPA. (For example, it laid criminal charges against three companies in Gauteng and identified two senior officials as “enablers of corruption” relating to Covid-19.)

Criminal prosecutions can still follow a successful civil claim. Criminal cases require “beyond all reasonable doubt” while civil claims require the less strenuous test of “on a balance of probabilities” (as we are seeing with some of the VBS accused being both sequestrated and now also charged criminally).

“To speed up civil litigation by the SIU, Ramaphosa created a Special Tribunal to adjudicate in the civil proceedings the SIU brings against alleged wrongdoers. It became operational on 1 October 2019 and consists of eight judges under the chairmanship of Judge Thami Makhanya. Currently, 22 cases are before the tribunal. They include, among others, luxury car purchases, dodgy scholar transport claims and inflated government contracts. In two cases, the tribunal ruled that the pension of suspects be frozen, giving the SIU the opportunity to seize the money. (Resigning and running with one’s pension has just become more difficult.)”

We saw how the Special Tribunal seized the assets of a suspended Transnet executive, including a “luxury home in Dainfern, two farms and… 35 motor cars! Transnet was also prohibited from paying out any pension benefit to the executive. The SIU has R14.7-billion in cases ready that it wishes to submit to the tribunal.”

Ramaphosa is slowly, but surely coming to the realisation that to attempt unity with such hyenas in his party is fruitless. They remain like the scorpion in the scorpion-and-frog story, where the scorpion wanted to cross the river and invoked the help of the frog to carry him across.

As for the Asset Forfeiture Unit (AFU), well this is an old division of the NPA and was established in President Nelson Mandela’s time. According to Landman, “it is an old workhorse that was deliberately restrained in the Zuma era. It now seems to have a new lease of life. In the last reported year, it recovered nearly R2-billion from economic crimes against a mere R180-million the previous year. Over the five years to 2019, the AFU has recovered R11.8-billion in 2,707 cases. The AFU focuses on 10 specific crimes, including fraud, cash smuggling, human trafficking, counterfeit fraud and drug-related offences.”

Who knew? An example: In the current Covid-19 corruption saga, the AFU seized a bank account two weeks ago with R700,000 siphoned-off UIF money meant for unemployed workers.

So, why am I outlining all these activities so eloquently expressed by JP Landman? Well, because the pessimism is getting me down. It simply does not help anyone if we are constantly referring to the glass being half empty and never wanting to acknowledge all this great work that has taken place. Yes, we want to see the so-called big guns behind bars, but we will get there, of this I’m certain.

Ramaphosa is slowly, but surely coming to the realisation that to attempt unity with such hyenas in his party is fruitless. They remain like the scorpion in the scorpion-and-frog story, where the scorpion wanted to cross the river and invoked the help of the frog to carry him across. The frog insisted that it wouldn’t work because the scorpion was bound to sting him and they would subsequently both die. The scorpion assured his companion that no such fate would befall him. As they set out across the water, and with the other side in sight, the scorpion stung the frog and as they started drowning, the frog asked: “Why did you do it, scorpion?” To which the scorpion replied: “It’s in my nature to sting.”

And so, even during a pandemic with all the devastating consequences that our people have to endure, the loss of loved ones and all the other consequences of Covid-19, they still find ways and means to steal and plunder – why? Because it’s in their nature. These thieves will not get away with it and they will ultimately be brought to book. And if we are to find comfort from the above and the many other things that are being done to fight corruption, I am confident that similarly, these scorpions will suffer what they must.

Landman concludes: “As the timeline clearly shows, getting rid of people, replacing them with better ones and building up institutions takes time. A lot of action is being taken through civil proceedings (sequestration, asset seizure and civil claims). This does not have the drama of orange overalls, but there are still consequences for the perpetrators and public money is being recovered.

“Progress has been made with some state-owned enterprises (certainly most of the big ones), however, most of the current Covid-19 corruption seems to take place at a provincial and local government level.”

He says: “One must distinguish between what the state is doing and what the ANC is doing or not doing. Ramaphosa has clearly put the state on a new trajectory. It is important that the ANC now follows suit.”

I concur with my friend’s sentiments and enjoin our ordinary citizens to not be too pessimistic and to see through some of the sensational headlines going forward. DM

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