Limits: President Cyril Ramaphosa listens to National Director of Public Prosecutions Shamila Batohi. Photo: Jairus Mmutle/GCIS
President Cyril Ramaphosa came to power promising to reverse the decline of both the state and the ruling party.
What his supporters eagerly read into this at the time was a commitment to ending the corruption rife in both. Five years later, they and the president have learnt that there are limits to tackling corruption in the top echelons of the ANC and that this risks seeing corruption continue apace within the state machinery.
The National Prosecuting Authority (NPA) has not — despite the wealth of criticism and weaknesses on display in court — been asleep at the wheel. It has enrolled 29 state capture cases in court but to date only one has reached the trial stage.
The Nulane Investments fraud and money-laundering trial got underway in the Bloemfontein high court last week, with former Transnet board member Iqbal Sharma among those in the dock. But, at this stage, there is no cause for optimism that his better-known fellow accused, Atul and Rajesh Gupta, might be surrendered to South Africa before 3 March, when the trial is due to end.
The department of justice is still waiting for a response to a note verbale it sent to Dubai in early December to ask for confirmation that Emirati authorities have all the information they need to process an extradition request filed in July.
The indictment provides an explanatory note on what state prosecutors term the “Gupta enterprise”, listing under a sub-heading titled “individuals abroad” Ankit Jain and Ramesh Bhat, directors of a money-laundering vehicle called Wone Management; Jagsish Parekh, a director at Pragat Investments and Oakbay Investments and Ashu Chawla, who played various roles at Sahara Computers, Oakbay, Islandsite Investments and Tegeta Resources.
Interpol red notices have been issued for all four. They are due to be tried separately on the same charges — which stem from the Free State provincial government bending the rules to allow Sharma’s outfit to perform a bogus feasibility study for R24.9 billion — should they eventually be extradited.
From the outset, the Nulane case has illustrated the level of defence that can be expected when state capture suspects are able to brief expensive counsel. The manner in which defence lawyers questioned the credibility of the state’s first witness, forensic auditor Siphiwe Mahlangu, refers. It has also been a reminder that prosecuting grand corruption will prove an agonisingly slow process, particularly when many suspects have decamped to Dubai and elsewhere.
The Gupta supporting cast identified by the NPA is extensive, and includes Salim Essa, who was implicated in the Zondo report for industrial-scale corruption at Eskom and Transnet. Essa, too, is widely believed to be in the United Arab Emirates and is reported as having said he has no intention to return.
Although it is understood the NPA will eventually seek his surrender too, that process is yet to start. Ajay Gupta and his brothers’ wives, Chetali and Arti, remain free agents, despite the fact that the spouses are wanted for trial in the Nulane case.
It is a precursor to the R280 million Estina fraud case, where the Guptas are eventually set to face further charges for again using Gateway to launder money fleeced from the Free State government, thanks to the process initiated by Nulane.
The three accused include former cabinet minister Mosebenzi Zwane — the only minister past or present who has been arrested on state capture charges so far — and the pre-trial has been postponed until April. The Estina scam has spawned a second case in which two associates of the Gupta brothers are set to go on trial next month for customs fraud totalling R37.7 million.
So far, two Transnet cases have been enrolled. Former CEOs Brian Molefe and Siyabonga Gama; former CFO Anoj Singh; Niven Pillay; Gary Pitta and Litha Nyonhya were charged with fraud of R398 million in December. In the second case, Kuben Moodley and seven co-accused face fraud charges involving R93 million.
In October and November, three Eskom cases were enrolled. Two involve corruption at Kusile power station, while the other relates to the raiding of the rehabilitation trust for the Optimum and Koornfontein mines to the tune of R1.75 billion to benefit the Gupta’s commodities venture, Tegeta Resources. Again, the whereabouts of one of the accused, Ravindra Nath, is not known.
The undertakings Ramaphosa gave in response to the findings of the Zondo commission included making the Investigating Directorate (ID) a permanent entity and, more vaguely, the redesign of the country’s “anti-corruption architecture”.
The ID has yet to be given permanency but, on 9 December, Justice Minister Ronald Lamola gazetted a notice declaring that members of the ID would henceforth have the power to arrest suspects and to conduct search-and-seizure operations in corruption investigations, bringing the entity a step closer to emulating the defunct Scorpions.
Ramaphosa made good on his promise of more funding for the NPA, with the treasury saying in October it would get a slice of the unprecedented additional allocation of R8.9 billion for safety and security due in the national budget to be tabled later this month.
But it is reliably understood his plan to remove political oversight of the prosecuting authority from the justice ministry is off the cards. A well-placed source said there had been a rethink and the ministry would retain the power to give broad direction to the NPA. Likewise, the ministry would continue to allocate its budget.
“There is that political relationship between the NPA and the political principal; there must be a level of oversight over what the NPA does, though perhaps it must be transparently defined,” he said.
“This must not be conflated with political meddling. The minister cannot direct the NPA to prosecute a particular person but the minister must be able to convey the priorities determined by the ruling party, for example, saying that it must prioritise state capture and gender-based violence cases.”
Ramaphosa’s commitment to his renewal and reform agenda faces further tests in party and government.
The Phala Phala scandal sparked by the alleged cover-up of the theft of millions of allegedly undeclared US dollars from the president’s game farm — which gave Ramaphosa’s anti-corruption stance a serious knock — is still under investigation by law enforcement agencies.
An investigation into the matter by the public protector has been concluded and a report is expected soon, while Ramaphosa will face further attacks from the opposition in parliament, despite the failure of the attempt to trigger an impeachment process last year.
Adverse findings by Chief Justice Ray Zondo against a number of sitting cabinet members — including minerals and energy minister and ANC national chairperson Gwede Mantashe, one of his most important allies — present an additional test for Ramaphosa’s reform credentials.
Zondo recommended that Mantashe be investigated for corruption for allegedly having a security system installed at three of his private homes by facilities company Bosasa, free of charge, while he was serving as ANC secretary general.
The commission found that nearly 200 people linked to the ANC had been involved in various forms of corruption.
Mantashe has challenged the findings, as has ANC first deputy secretary general Nomvula Mokonyane, while Zondo requested the payments from Bosasa to, and on behalf of, the two be investigated by law enforcement.
The governing party has also committed to having the newly elected NEC “process” the Zondo findings in parallel with the investigation by state agencies, with secretary general Fikile Mbalula.
Inside the ANC, Ramaphosa is arguably at his strongest since first becoming president of the party in 2017, when he took charge of a heavily divided NEC in which his renewal agenda faced fierce opposition.
With the top seven, the NEC and the national working committee dominated by his supporters, and previously hostile provincial leaderships such as KwaZulu-Natal, supporting him, Ramaphosa’s power is consolidated.
Whether or not he uses it to deal with the unfinished business of the Zondo report remains to be seen.
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