The Judicial Commission of Inquiry into State Capture Report will consist of three parts. Part 1 was released by The Presidency after 19:00 on January 4, and runs to 874 pages.
It includes a summary and analysis of evidence and recommendations in regard to:
- South African Airways (SAA), South African Airways Technical (SAAT) and SA Express.
- The relationship between state entities and the Guptas, the New Age and Breakfast Shows.
- South African Revenue Service (Sars) and public procurement.
This article will only cover the findings and recommendations made on SAA, SAAT and SA Express. An article covering the rest of Part 1 will follow shortly.
The commission found that:
- SAA under former chair Dudu Myeni declined “to an entity racked by corruption and fraud”.
- Former President Jacob Zuma “fled the commission” because he knew that he would not be able to answer the questions put to him, such as his insistence that Myeni be retained at SAA.
- Those responsible for governance at SAA, SAAT and SA Express disregarded the standards of accountability.
- The criminal complaint against Myeni for disclosing the identity of a protected witness during her testimony must be “brought to finality by the law enforcement agencies and the National Prosecuting Authority”.
- Myeni and the individuals involved in securing millions for the personal benefit of herself and the Jacob Zuma Foundation, must be further investigated for “possible charges of corruption”.
- Myeni made misrepresentations which resulted in financial losses to SAA, and the National Prosecuting Authority (NPA) must investigate whether she “should be prosecuted for fraud”.
- Daluxolo Peter, Vuyisile Ndzeku, Lester Peter, and Nontsasa Memela received “kick-backs” totalling R28.5 million relating to finalising the Swissport ground handling contract with SAA.
- The award of the five-year components tender to the Joint Venture of AAR and JM Aviation was “unlawful, irregular and unfair”, and recommended that the NPA should consider prosecuting the JM Aviation directors, the members of the Board of SAAT at the time, including Yakhe Kwinana and Nontsasa Memela, for corruption or related crimes.
- Ndzeku, Memela, and Kwinana’s lawyer Lindelwa Mbanjwa hid the “true nature of the payments made by JM Aviation” to Memela through Mbanjwa, and that Ndzeku and Kwinana “tried to hide the payments made” to Kwinana’s company. The commission recommended that the Legal Practice Council should consider whether Mbanjwa and Memela should be removed from the roll of attorneys, and from the roll of advocates respectively.
The commission recommended that:
- Sars should ascertain whether JM Aviation paid VAT on the R28.5 million.
- The time bar of 24 months to declare a director delinquent should be increased.
- Steps should be taken by Parliament to ensure that the State Security Agency can never again be used to serve the interests of certain individuals.
- The Airports Company South Africa (ACSA) should take steps to recover the amounts paid to Regiments Capital under the interest swap contracts, including the additional losses suffered by ACSA on those contracts from Regiments Capital, Phetolo Ramosebudi, Eric Wood, and Niven Pillay. Failing them, from Nedbank and Standard Bank. The NPA should consider prosecuting these individuals, the Asset Forfeiture Unit should recover the amounts paid to Ramosebudi, including the amounts paid to Regiments Capital by Nedbank and Standard Bank.
- The law enforcement agencies should investigate the role of Moss Brickman, Mario Visnenza and Nedbank in relation to these contracts with a view to prosecution.
- In regard to the award of Bid No RFP 085/13 which McKinsey has already repaid in full, the law enforcement agencies should investigate and consider prosecuting Ramosebudi, Wood, Regiments Capital, Indheran Pillay and Tewedros Gebreselasie.
- The Asset Forfeiture Unit should recover the amount of R375 606 paid to Riskmaths Solutions from Ramosebudi, as well as the amount of R6 241 500 paid to Regiments Capital by McKinsey regarding the SAA Working Capital contract.
- The law enforcement agencies should investigate whether the failure of Phumeza Nhantsi, the CFO of SAA, to report the BNP transaction and her suspicions concerning the true motives of Myeni and Masotsha Mngadi, constitutes a crime.
- The Auditor General’s office should be further capacitated so that it can audit all public entities.
- The South African Institute of Charted Accountants (SAICA) should investigate whether Kwinana has the “requisite knowledge and appreciation of her obligations” to practise as a Chartered Accountant.
- The government officials, state officials and as private individuals who were involved in the “looting scheme” regarding the SA Express’s dealings with the North West Department of Transport, “should be brought to justice”.
- The NPA should consider charging Vivien Natasen with money laundering.
- The Reserve Bank should also investigate whether Kalandra Viljoen’s Asset Movement Financial Services (AMFS) operation was a “cash in transit business that merely failed to comply with its FICA”, or whether it was unlawfully operating as a bank without a licence. Or, was AMFS providing money laundering services?
All the commission can do is recommend. The law enforcement agencies are tasked to act on the recommendations, timeously and properly conduct their investigations, and prosecute those who have committed crimes. Justice must prevail.