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Why there are no orange jump suits for the crooks

Law enforcement is ill-equipped and overburdened, and the legal process creates incentives to fight to the death.
The lack of legal and financial penalties for corruption leaves it to the press to bring reputational harm to those deserving of it. Image: Supplied

Apart from a smattering of arrests on charges of corruption, a battalion of crooks walks around undisturbed.

The Zondo Commission of Inquiry into State Capture provides ample sport for an outraged public, but no convictions as yet. It will take years before prosecutors and investigators disgorge themselves of the Everest of paperwork accumulated during the inquiry.

There were eight arrests related to the VBS Bank heist, and four more among Tubular Construction and former Eskom executives accused of corruption related to the Kusile Power Station.

Read:

Civil society stepped in where Dudu Myeni is concerned. She was recently declared a delinquent director by the Pretoria High Court for dishonesty, negligence and recklessness while occupying the chair at South African Airways (SAA), which is now under business rescue.

Former SAA chair Dudu Myeni, was declared a delinquent director for life by the high court on May 27. Image: Moneyweb

It was the Organisation Undoing Tax Abuse (Outa) and the South African Airways Pilots Association (Saapa) that brought the legal suit against Myeni – not the responsible minister or National Treasury, which had to dole out roughly R50 billion to keep the airline afloat.

One might have thought that Treasury, presumably representing the interests of citizens, might have raised a whimper of concern over her destructive rampage when the bailout figure got to, say, R30 billion.

In the Tubular case, it was forensic investigator Paul O’Sullivan who appears to have kicked the case into high gear.

Why such a meagre body count for a corruption orgy that Open Secrets estimates cost the economy R5 trillion over five years due to state capture?

Legal deficiencies in SA

At a recent anti-bribery and corruption webinar, Herbert Smith Freehills director for corporate crime and investigations Cameron Dunstan-Smith highlighted key deficiencies in the SA legal landscape – key among them the deferred prosecution agreements (DPAs) that are so common in jurisdictions like the US, UK and Canada. These allow prosecutors to grant amnesty to defendants in cases such as fraud, provided they fulfil certain conditions, such as payment of a fine and implementation of compliance programmes designed to prevent any repetition of wrongdoing.

“South Africans may not like to hear of companies getting away with what they perceive to be such light penalties, but the reality is that these DPAs have proven themselves to be effective in changing corporate behaviour for the better and forcing wrongdoers to pay hefty fines – without having to admit guilt,” says Dunstan-Smith.

As a consequence, companies accused of wrongdoing find it more fruitful to defend allegations of corruption and wrongdoing to the highest court in the land. That can take years and cost millions.

Unlike well-resourced law enforcement and investigatory agencies in the UK and US, South Africa lacks the kind of enforcement resources with the right forensic and prosecutorial skills to bring wrongdoers to court. Companies are able to drag the legal process out for years, using the best lawyers money can buy. You need deep pockets to embark on any legal offence against corporate SA.

Deloitte in the crosshairs

A case in point is the disciplinary inquiry brought by the Independent Regulatory Board of Auditors (Irba) against Deloitte for its involvement in the failure of African Bank in 2014. This is an audit inquiry operating in a quasi-legal setting that has gone on since 2018 and reportedly cost millions of rands so far in legal fees.

Irba has a limited legal budget, which must surely blunt its enthusiasm for the fight against other auditors charged with wrongdoing.

Read: How the auditors keep dodging the fraud bullet

Since November 2018 it has also been investigating KPMG and its then-external auditor Sipho Malaba over the VBS heist. The maximum sanction currently allowed by law is R200 000, though far larger fines will likely be legislated in terms of amendments to the Irba Act currently under consideration.

The paucity of legal and financial penalties for corruption leaves it to the press to bring reputational harm to those deserving of it.

The one benefit of the Zondo Commission is the reputational damage visited on those hauled before the inquiry, even if the alleged wrongdoers have not yet had a chance to put their side of the story forward.

Foreign corruption in SA

For international companies accused of wrongdoing in SA, the reality is they may face far harsher penalties in their home country than they do here. A case in point is Hitachi, which in 2015 agreed to pay $19 million to settle claims brought by the US Securities and Exchange Commission on charges of violating the Foreign Corrupt Practices Act. It had inaccurately recorded improper payments to SA’s ruling political party in connection with contracts to build Eskom’s Medupi and Kusile power plants.

Read: Hitachi to settle US charges it paid ANC

Last month the US toughened its anti-corruption guidelines by evaluating whether a company’s anti-corruption compliance programme was effective at the time of an offence being committed and when a charge is brought.

US regulators pay scrupulous attention to whether companies’ anti-bribery and corruption programmes are adequately resourced and empowered to function effectively. In times of economic hardship, the temptation is for companies to divert resources from compliance programmes to more ‘worthy’ causes.

France set up an Anti-Corruption Agency in 2017 and has since launched 90 investigations, resulting in a number of trials.

Last year the UK passed the Overseas Production Orders Act, which gives UK law enforcement agencies the power to apply for an ‘Overseas Production Order’. Such an order requires an overseas communications service provider to supply or give access to electronic data it holds in relation to investigations of corruption. Refusal to do so constitutes contempt of court. These orders are only applicable where the UK has a cooperation agreement with the country in question.

Commissions no longer ‘token’ inquiries

Fiorella Noriega Del Valle, senior associate in the corporate crime and investigations practice at Herbert Smith Freehills, said one of the anti-corruption tools available under the Constitution and the Commission Act in South Africa is the power vested in the president to launch commissions of inquiry.

“Commissions of inquiry were previously seen as token inquiries, such as the one we had into the police force suppressing political opponents, but they are now seen as more credible because they focus on maladministration and corruption.”

She adds however that: “The recommendations [of the commission] are not binding, and the terms of reference not often as precise as indictments. Witnesses have limited protection, and there is no automatic right to legal representation. You can apply, but this is up to discretion of commission.”

Another problem arising from commissions of inquiry is that witnesses can expose themselves to criminal and civil proceedings, as happened to former Bosasa chief operating officer Angelo Agrizzi, who was charged by his former employer of theft after giving testimony to the Zondo Commission. Also charged for an alleged theft of R37.5 million was former Bosasa chief financial officer Andries van Tonder, who also gave testimony to Zondo claiming widespread corruption at the facilities management company.

Arsenal for the fight
To win the war on corruption, Dunstan-Smith says SA law enforcement agencies need an army of highly trained investigators, ranging from accounting to legal and data specialists, backed by prosecutorial teams capable of framing cases that are capable of success in court.

Another tool that would advance the fight against corruption is DPAs, which would short-circuit protracted court battles.

“There is still an attitude in SA that if you haven’t been found guilty of anything, why should you pay a fine even if you don’t have to admit guilt,” says Dunstan-Smith.

“The attitude overseas is quite different. Our law does not make allowance for DPAs, which is something that would definitely help in curtailing bribery and corruption.”

Read: SA’s war on graft is picking up speed. But will anyone go to jail?

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South Africa is now notoriously famed for its dysfunctional political and justice systems. This corrupt and greedy government with its high propensity for consumption rather than capital formation has further decimated the economic,health and education systems. The incohesion that exists in our social societies are plagued by a pornography of social ills that are engineered by corruption from conception to birth to the current state.
IT IS ENOUGH! IT WAS ENOUGH 10YEARS AGO!

‘He who calls the Piper calls the tune.’
Alternatively stated, the person who provides the money for something has the right to determine how it’s spent.
Taxpayers finance the government’s expenditure and it’s as such, we the taxpayers command Pied Piper(The relevant prosecutorial body) to lure all those who bear guilt, destroyed the economy and ruined the lives of millions, straight to prison.
Ambitious much but worth a shot!

On top of that in 2018 it was estimated that R700,000,000,000 was lost to corruption.

In simple analysis that means:
20% of the public procurement
Or
At R500,000 per job, 1,400,000 jobs either lost to corruption or potentially not created.

Vote again for your slave masters…

a battalion of crooks walks(governs) around undisturbed!

Sorry, but tax payers hold a minority view and it is not the minority that elect the government.

Maybe we should have a separate house for the tax payers so that they can have equal say.

I’ve often thought that South Africa being so diverse as it is can never elect a single person who fully represents all the various groups of people.

Either have it race, cultural , religious, or tax payer Party/ political house with each group having equal say and call their Leaders the Councillors Of South Africa.

This would truly be Unity in Diversity.

Excuses, excuses. The real reason for this is that the majority in SA simply don’t understand concepts like integrity, accountability and honesty, so there is no political risk in being corrupt.

Whilst agreeing with you, I would like to hear from so-called “majority” whether those preconceived ideas are a matter of fact.

A good indication would be who the majority votes for. Do they elect corrupt people? Between the corrupt ANC and the bank robbing EFF, a large majority of the voters seem to have no moral issue with corruption whatsoever.

yeah…and spitting and pi$$ing on the street is a privilege.

When you run a criminal state the orange jumpsuits are reserved for petty criminals.

Dear Moneyweb is the only way is to shame people. Please put together a list of everyone that seems to be reasonably implicated in Zondo. Their names and previous and current positions and an estimate of the amount stolen. Then perhaps we can shame them if you name them?

Great idea, thank you.

@Moneyweb, please consider adding:
– professional memberships;
– Alma Maters;
– Linkedin profiles.

Not one single cent needs to be spent on policing people who have values and integrity. But that is the problem. Our people simply don’t have any values. The moment they get access to public money, they steal. But the worst is that they will steal to the point where an institution like SAA or Eskom actually collapses and there is nothing left. Then they will simply hide in the collective and say “Everybody did it. Why must I be prosecuted?”

I once had an Uber driver from Zimbabwe that told me he had an acquaintance that is a government employee there…she told him she has to steal too coz “everybody is doing it”….this made me realize we are going the same way.
Withhold everything you legally can from this government until they prove themselves via change.

Hopefully they’ll be punished in death

I don’t know about being punished in or after death. I am not religious, but what my common sense and logic tells me is that this incredible experience called life and the universe cannot simply be an accident or co-incidence. Thousands of enlightened sages, gurus and wise men have taught that we are here to learn the lessons and grow in enlightenment. What I also know is that by being a taker rather than a giver, by being corrupt, by being malicious, by being a thief, by being a disgrace to humanity runs counter to the purpose for your existence and there is a price for everything – whether you know it or not. There are immediate costs in this life which you will not even be aware of because you cannot connect the dots. They are not labeled and are usually hidden as consequences. Your actions run counter to your conscience. That leads to a useless, wasted, ungrateful life resulting in suffering in this life and maybe also in the next. Do unto others as you would like them to do unto you is the basis of all religions and humanity. Run counter to this golden rule at your peril.

Beautifully written!

Do you really tbelieve that these people have a conscience?

They can’t avoid Karma, and its coming for everyone. The good, honest people will just get good karma.

Forget the legal process . It’s totally ineffective. Tax assessments on stolen or ill gotten is the most efficient
route . SARS still remains SA’S most effective government department. USE IT ! Your tax debt doesn’t get
suspended sentence……..

While I agree with your sentiments about SARS, I am not so sure that they are still so effective. If they had been they would have teams going after those implicated by the Zondo commission. They can raise estimated assessments based on the testimony given and then it is up to the taxpayer to prove that it did not happen. Lifestyle audits should be done on all ANC politicians and their family to the third degree of consanguinity and any trusts or companies which are connected parties. It would pay SARS to hire staff as there seems to be a lot of money that has been stolen. It would also be worthwhile checking the ANC’s records to see where big donations came from and do lifestyle audits on any big contributors. These are obvious areas requiring investigation but has SARS done anything? The DA or other opposition parties should be asking questions in parliament to show stats on these investigations.

SARS reports to the government in the final analysis – forget about SARS chasing ANC politicians.

The ANC government is the epitome of institutionalised incompetence.

We are supposed to have the best constitution on earth. A constitution that guarantees human rights, safety, service delivery and freedom. The one major flaw in this constitution negates all the positives. The constitution does not protect the citizens against the powers that they handed to the least capable and the most unscrupulous among them. The constitution enables the abuse of power by the government. There are zero checks and balances. The system is out of control. The power that the constitution gives to the new elite, the priveledges class of the self-serving politically connected cadre, enables them to render the criminal justice system impotent. We have a judiciary, but the judges sit in Luthuli House.

“Nearly all men can stand adversity, but if you want to test a man’s character, give him power.”
― Abraham Lincoln

The Constitution has been degraded by the ANC to be nothing more than a crumpled piece of paper, lying in the dirt outside a pit latrine somewhere in rural KwaZulu-Natal. We have been “decolonised” to become a chieftainship once again.

“There is no justification for the belief that, so long as power is conferred by democratic procedure, it cannot be arbitrary…it is not the source but the limitation of power which prevents it from being arbitrary.”- Friedrich Hayek

I see the photo of a yellow mattress made it onto the page

Time to smell the roses guys n gals.

This bunch of crooks had all their time to plan this on Robin Island. Everyday conversation was about how to get back and get back super rich.

Zuma set the scene, Schaik was his first fall guy, then the two airforce people with the Gupta wedding landing. Farm murders, EWC, WMC, BEE, they were so clever they even got Bell Pottinger on their side.

The law enforcement agencies were purged of all the straight people, the judiciary was also cleansed, the PP was cleaned out, SARS was cleaned out, The NPA was also set up with their people. Any department that needed to be sorted out to delay, bend, lie etc was all sorted out.

Then Zuma et al left, along with Mokonyana, Mosebenzi, Joy Matt etc. They left a few to clean up and keep others in line, Ace, Mabuza, NDZ, Thulas, Jesse etc.

Now they sit on the sidelines laughing, delaying and going missing.

Commissions, all appointed before Zuma left are huge expensive smoke screens and consumers of paper and money. Talk shows of the blame game, apartheid, Feminism, the poor little me show.

In a nut shell we have been played, screwed.
There is nothing we can do.

Agreed. Like your summary.

Dont forget Cyril. They made Billions for him for basically doing nothing.

At the moment it looks like Cyril is doing some feather dusting and letting his Command Council take care of the loose ends.

Cyril has no spine..

Ace the champ is in charge…
Do not be surprised ….
Viva Zimboland, here we come…
Ta ta Rand…. cash in for International Currency and move your stash…
Viva ANC

I once met a struggle veteran that is both honest and poor…he said that when he questioned one of the enriched of his past struggle veteran comrades, the guy bluntly said, “I didn’t do this to be poor”. That says it all…even if you say well its fair that people who sacrificed shouldn’t be poor, the problem is that the tapeworm never stops…enough is never enough.

This behaviour is unfortunately everywhere. There is no altruism… and the people who preach it seem to have a double agenda. I guess its survival.
There will always be a few good men.

Put them in pink Like Sheriff Joe Arpaio

pink is just too near to / too much associated with cancer awareness, otherwise it would have been an excellent choice – simply can’t miss it

Maybe time to go and arrest NDZ for killing smokers as well. Just seen a report of a study that concluded the sharing of cigarettes has increased by 430%.

CR is not innocent in this either.

The level of stubbornness is amazing. They will just continue killing people with no regard.

He does not have the guts to fix his mistakes. Sickening.

….ANC knows pandemics like this, not frequent are a wonderful chance to fill up the party treasury… and my bets on Cyril Rama is in on the government extortion to muscle in on sectors of the economy

Locked down sectors such as cigarettes and alcohol sales are obvious choices, after Al Capone (mafia) made millions this way through the prohibition

Governments lie …and the ANC are experts at it. The ban stinks of government theft of a sector of the economy as cigarettes and alcohol are still accessible but at a premium and truck loads are ongoing from north of the border

Speculation but as the saying goes “..if there is doubt, then there is no doubt”

Agreed.

Construction is also a favorite mafia sector.

You would have noticed with what gusto CR is pushing the whole infrastructure spend. That includes continental. The free trade logistics and infrastructure thing.

When you look a bit deeper you will find lots of connecting dots. Portions of the big five that was sold off is a good place to start. Sold off for very little in some cases I might add.

Look at new shareholders and who they previously worked for etc.

Don’t trust this guy one bit. John Gotti was also a very likable guy.

I reckon at a time like this, we need to even be looking very carefully at some of our savings funds that are managed by big institutions who are beholden to the government.

Lets not even contemplate whether or not CR is innocent or not, he moves in circles and high places that discuss and plan this type of thing. He was not shipped in innocent as the driven snow from Siberia at the last minute, oblivious to anything happening in SA.

He is more than complicate he is central with a bunch of others.

Extra-legal options exist in MassMovement. Say Jooste or Mokonyane – public decides prosecution taking too long.

Force their bank to stop serving them under threat of losing thousands of their clients in the MassMovement. If another bank does take them, then same pressure on that bank. Same with any other service providers : lawyer, accountant, business partners, golf course, gym, school, etc.

In a few short months nobody will do anything with them, not even the pest control company.

I am not on social media but imagine twitter or facebook can be used for a campaign to (1) recruit masses (2) find and name cogs in the target’s machine (3) through actual and online protest shame the cogs. Repeat and repeat the public info of misdeeds.

Ok Johan, I agree fully.
So how do we work this? If every commentator on this site for this article agreed and wrote to (apologies, but I don’t know offhand the NGO’s and journos that have been doing so much to raise awareness of state abuse) Outa, Solidarity, Gerrie Nel, Ground-Up, amaBhungane, all the others, their family and friends and colleagues, the companies, the banks (they need to get in line – their individual, business and corporate clients keep them afloat and if they close down will destroy them – but they have the power to close accounts or just not do business with corrupt officials and the government.
There are many ANC members who do not agree with the current leadership and we somehow need to start a local Covid/Azanian/Safrican Spring – call it whatever – but it needs to happen and to awaken young black and white South Africans who recognize that the crap of collectivism/socialism/ of the current anc NEC and the crap of raw capitalism of the Steinhoff gang and others in the banks and large companies is not going to work. We need to rid ourselves of the thugs in government, provincial and local administration, the taxi industry, trade unions, black and white business. We need a new movement that embodies the best of what made this country great but without the baggage of the past – we all have an inherent sense of decency and know what is right and wrong and we need to start naming and shaming all the thugs among us – I’ll join you, will the other commentators?

And yet it seems so strange that climbing the “Everest” of paperwork and overcoming the other seemingly insurmountable hurdles was not a problem for our intrepid law enforcers to arrest Agrizzi without whose co-operation the real maleficence would have remained largely unknown!

In the SA govt mafia, “snitches get stitches”
They either went after him because he broke ranks / broke the silence or because someone who confesses is the easiest to punish and use to make it look like you’re doing something.

I returned to SA in 1997 after 2 years away and I sensed a culture and vibe of greed, materialism and a get what you want in life any way you can.
I should have listened to that feeling and caught the next plane anywhere.

Note the difference between a third world country like S.A., and a first world country like New Zealand.
In the last few days, a New Zealand government minister has been fired for having an affair with a lady who constituted a “conflict of interests”. In South Africa, a DG hires his girlfriend, twenty years younger with his child, and nothing happens.
The whole S.A. legal system is not fit for purpose and the moral integrity of the government (and probably the majority of the population) is at rock bottom levels.
Where else in the world are ambulances high jacked? Where else in the world are hospital patients robbed? Where else in the world are kids murdered on a daily basis?

It is interesting that the focus in this article and others is on the private sector involvement in corruption with nary a mention of the political players behind the grand scheme of corruption.

A good article that omits the most important issue – the prosecution of the key state capturers.

Prosecuting Ace, Zuma, Brian Molefe, Anoij Singh and others is key to unlocking the stagnation in the ruling party and enabling the much needed rejuvenation of politics and the economy.

Prosecuting them will change the balance of power in the top six and the NEC and would enable president Ramaphosa to start governing.

Important to remember. These chaps did not fight Apartheid to be poor.By the way how did Cyril become so rich ?

We’re told that he’s a “business man”… Strange how business SA is completely under the gun now thanks to his and his cronies’ completely inept (and dishonest) policies. If one is handed a chair on the board to countless companies to make quotas more attractive, then you’re not a business man in the true sense of the word. Better he go back to slinging burgers at Mickey Ds or take up his shop steward role again; this would be less damage to our economy (or what’s left of it).

Exit your cash. Then exit yourselves. The only feasible strategy. Then let them eat cake …

apart hate isn’t dead, it’s just under new management.

Corporate fraud is not the problem, dont know why the article lurched in that direction. Corrupt politicians are the problem.

Dont even know why we bother with things like the Zondo commision that is costing the taxpayer R500m (please please explain to me how you can spend that much money on a commission of inquiry). Nothing will come from it, and even if some ANC bigwig gets rapped over the knuckles with a fine or stint in some low security holiday farm they will get a hero’s welcome upon release. Think Tony Yengeni, Allan Boesak, Carl Niehaus, Mamma Winnie that has now also been redeemed in the eyes of the world for some reason.

End of comments.

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