Access denied: Tokyo Sexwale’s attempts to have the company he chairs investigated privately by senior advocate Geoff Budlender have been met by a wall of resistance.
A bid by Tokyo Sexwale to have a private legal team delve into state capture claims against Gupta-linked company Trillian Capital Partners has backfired.
Sexwale is the independent nonexecutive chairperson of Trillian. Investigators appointed by the company are being stonewalled in their efforts to gather information, which was hoped would clear Trillian executives of claims that they had had prior knowledge that President Jacob Zuma was going to fire former finance minister Nhlanhla Nene, and that they had cashed in on it.
The Mail & Guardian has established that Trillian, through its lawyers, has refused to hand over the laptop, iPad and telephone of Trillian chief executive Dr Eric Wood.
The company has also blocked efforts to have experts mirror the content. It has also repeatedly failed to comply with requests for information sent to the company by investigators between January 17 and March 23.
Sexwale announced the appointment of respected senior advocate Geoff Budlender in November to investigate a string of allegations that put the company and some of its executives at the centre of the damaging state capture scandal.
A source familiar with the matter said: “Budlender is being stonewalled. His efforts have been frustrated and I think he has been very shocked to find that he is having to rely on media reports to glean information that should be coming out of Trillian.”
Budlender confirmed the M&G’s information, saying, although he would not normally do so, he owed the public an explanation in view of his appointment having been made in public.
He said he had had to ask Sexwale “a few times” to intervene when it became clear that access to information would be tricky.
Trillian had co-operated with his initial request for information in November, he said, but nothing had been forthcoming since. “I had that initial information analysed and on January 17 I requested additional information emanating from that. I have been waiting since then.”
Four other attempts to get information from the company have been unsuccessful.
Budlender confirmed that he had asked for access to Wood’s laptop, iPad and telephone. Instead, Trillian lawyers said those were not necessary for the investigation — contradicting initial claims that the board-backed investigation would be independent.
Budlender said the investigation has made some progress; they have been able to interview other people who have knowledge on the matters under investigation. And he had now “again” been told that he would get information by the end of this week.
Sexwale, asked to comment, said Budlender’s appointment had been “very well considered”.
“Therefore everything will be done to ensure that there is maximum co-operation with the investigation. Because of the nature of the investigation, which is completely independent, only Adv Budlender’s report will be relied upon.”
Trillian earned several mentions in the public protector’s State of Capture report — including allegations that it, and two of its associate divisions, had paid a total
R235-million payment towards the Gupta family’s purchase of Optimum mine.
The terms of reference for the Budlender investigation included whether the Gupta family had any form of ownership in the company. Trillian Capital Partners is majority owned by a Gupta-family business associate, Salim Essa, who holds a 60% stake, and Wood, who has 25%. Staff members and othe shareholders hold the remaining 15%.
Sexwale was appointed as chair of the newly formed company early last year — months after a furious internal drama that saw one of Wood’s former employees, Mohammed Bobat, installed as an adviser to Des van Rooyen, Nene’s replacement as finance minister. Van Rooyen held the position for just four days.
When the investigation was first announced, it was met with significant scepticism, with critics questioning the limited powers of a privately conducted probe.
Budlender and his team were always going to have to rely on the goodwill of potential witnesses and co-operation from the very people implicated in the scandal, a second source said. “Would you help if you were Eric Wood? It’s like digging your own grave.”
A third source said: “It unravelled because Budlender started asking the tough questions.”
The M&G previously asked Trillian and Sexwale how this investigation would be done, as it has no legal powers to compel witnesses to provide information. They did not respond to this or to a question about whether the findings would be made public.
Sexwale last year said the Trillian board had passed a “special resolution” to investigate the veracity of the state capture allegations. The board, according to the company’s website, is made up of Sexwale, Tebogo Leballo, the company’s group chief financial officer, and Wood.
Wood is central to the allegations that formed part of the terms of reference, which included:
• Whether he knew and told executives that Zuma was going to fire Nene;
• Whether he told any other person in the company and whether they acted on the information for commercial gain;
• Whether the Gupta family has ownership in the company in any form; and
• Whether government matters that should have been the sole preserve of the president — such as firing Nene — ended up in business circles, including with Trillian.
Trillian responds
Delays have not been at the instance of Trillian, but were caused by the need to change lawyers as a result of a conflict of interest.
The company said it had initially hired Cheadle Thompson & Haysom (CTH) to brief advocate Geoff Budlender and that Trillian had provided considerable and extensive information to CTH.
“Over the past few weeks it became apparent to Trillian and its board that CTH had an inherent conflict of interest in accepting the brief and Trillian immediately asked them to withdraw from the matter, in order that Trillian might appoint a new attorney to continue to brief Advocate Budlender, so that the inquiry is completed as a matter of urgency.”
The company said while it is committed to finalising the inquiry, the new lawyers are required to ensure it is conducted without taint or conflict.