/ 24 March 2021

Zondo dismisses Bain’s request to publish its affidavit to commission

Deputy Chief Justice Raymond Zondo called the second postponement of former Ipid head Robert McBride's testimony 'unacceptable'.
Acting Chief Justice Raymond Zondo. (Gulshan Khan/AFP)

Deputy Chief Justice Raymond Zondo on Wednesday dismissed an application by Bain & Company for written permission to publish an affidavit it filed to refute damning testimony by a former employee on its ties with the Zuma administration.

Senior counsel for the Boston-based consulting firm argued on Tuesday that it would suffer unfair prejudice if not allowed to release its affidavit, or a summary of it, filed in response to allegations by Athol Williams.

These included that Bain’s managing partner for South Africa, Vittorio Massone, cultivated a relationship with then president Jacob Zuma with a view to extending its role in state entities well beyond the South African Revenue Service (Sars) and Telkom.

Williams said he had seen emails that pointed to plans not only to intervene in Eskom, but restructure the South African economy in line with resolutions taken by the ANC under Zuma.

Alfred Cockrell SC argued that Bain did not know when its application to cross-examine Williams would be heard, or if it would be granted.

Hence, there was a possibility that only Williams’s version would be public and the company would suffer prejudice “in perpetuity”.

But Zondo said that Bain had created its own predicament by never applying to testify before the commission. 

Had it done so, its evidence would likely have been heard on the same day, or at least shortly after that of Williams, putting the company’s narrative in the public domain next to his.

Therefore, he said the company could not argue that it was put in an unfair position by his reluctance to bend rule 11(3)(a) of the Commissions Act and allow it to publish an affidavit that now formed part of the commission’s documentation.

To allow any witness or party to publish its affidavit, the act required that there be special circumstances that supported this.

“There is nothing special that Bain relies on really to ask for permission. Its counsel indicated that it provided comprehensive affidavits, but I do not think that is a feature that makes its request special,” he said.

As for unfairness, Zondo said, he did not see any.

But if Bain felt it were in an unfair position, it could have mitigated this by applying to give evidence. 

The deputy chief justice noted that even in Bain’s latest pleas to the commission, such an application was still absent.

The commission would have made arrangements to accommodate testimony from the company, he added.

“Its version could have been articulated by its own witness the same day… [but] this is not going to happen because Bain elected not to make that application.

“That that arrangement was not done flows from the fact that Bain did not apply to testify or to adduce evidence,” Zondo concluded.

On Wednesday, Williams said he believed that Bain’s eventual apology for its hand in the destructive hollowing out of institutional capacity at Sars was far from honest.

The company has publicly said the damage wrought by its work with Sars stemmed from serious errors of judgment, and has self-reported on the episode to the department of justice in the US.

But Wiliams said the restructuring plan that saw 200 Sars employees summarily shifted from their posts and a key unit closed down, was carefully drafted before Tom Moyane became the commissioner of the revenue service, and was not the result of an unfortunate lapse of judgment.

“For me to say they were shocked and were unwitting participants, just does not accord with the evidence I have seen,” he said.

He said Bain could have made a full disclosure of its role to Judge Robert Nugent in 2018, but instead offered the excuse that only Massone could have known what happened, and that he was no longer in South Africa.

Williams said he had evidence that this was not true, but that Bain actively plotted with Moyane to inflict “damage” on the revenue service.

He was employed at the time as a consultant by Bain to oversee an independent investigation it had commissioned from Baker McKenzie and ensure proper reporting on it to Nugent, who was probing governance at Sars during Moyane’s tenure.

But, in the end, Wiliams said the company reneged on giving him the report. He said the situation became so risible that he was told the report would be read to him over the phone, but he was not allowed to have a copy.

In his testimony relating to Massone, Williams claimed that the managing partner met with Zuma and key officials more than 12 times, and made every effort to know about potential changes at the helm of state-owned entities.