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CAPE TOWN — Any South African who says in a defensive tone that the wheels of justice grind slowly is either obfuscating or ignorant – they grind so imperceptibly in this country that they’re ineffectual following the hollowing out of investigative and prosecutorial authorities by the criminal Zuptoid ruling cabal. Here Constitutional law expert Pierre de Vos juxtaposes what should happen now that the Reserve Bank has declared rampant criminality in the VBS bank scandal in a report, aptly entitled The Great Bank Heist, versus what probably will happen (i.e. little or nothing). The transparency Catch 22 is that the Reserve Bank, correctly, to protect criminal probes, has kept confidential the annexures to its report. These include the forensic accountants’ report; a summary of material testimony, and (potentially most incriminating), bank statements and details of bank transfers, plus other documents. Whether the Hawks or the NPA have the political will or skills to properly use this evidence (and find their own), is the real question. Given the NPA’s ideologically-tinted glasses, all the top corporate managers involved in the Steinhoff scandal remain un-charged. What does that tell us? Oh, and look out for the deniability pearl De Vos suggests various VBS miscreants try mouthing. This piece courtesy of the Daily Maverick. – Chris Bateman
By Pierre de Vos*
At the time when South Africa’s Constitutional Court declared invalid sections of the South African Police Service Act (which gave the Minister of Police a veto power over which crimes the Directorate for Priority Crime Investigation, known as the Hawks, could investigate), swift action was taken to get rid of the then head of the Hawks, Anwa Dramat.
The judgment – in Helen Suzman Foundation v President of the Republic of South Africa and Others; Glenister v President of the Republic of South Africa and Others – meant that the National Head of the Hawks (at the time, the relatively impartial and fiercely honest Dramat) now had the discretion to decide which of the national priority offences, including corruption, to prioritise for investigation. The Minister of Police was no longer permitted to interfere politically in decisions about whom to investigate and prosecute for corruption.
This development must have been viewed with concern by the corrupt politicians and the corrupt business associates who had gathered around these politicians like flies gather around a fresh dog turd. Something had to be done and, soon enough, a solution was found.
The Constitutional Court judgment was handed down on 27 November 2014. By 24 December 2014 Dramat had been suspended, based on (what now appear to have been bogus) allegations published in the Sunday Times about Dramat’s alleged involvement in the illegal rendition of Zimbabwean suspects.
This is just one example of how the criminal justice institutions such as the Hawks and the National Prosecuting Authority (NPA) were deliberately weakened, if not destroyed. This was done to protect corrupt politicians and businessmen and women involved in State Capture, and other forms of criminality, from criminal prosecution. I believe it is at least partly because of the fatal weakening of the Hawks and the NPA that Markus Jooste and others involved in the Steinhoff scandal have not been arrested or prosecuted yet.
It is for the same reason that it is not yet clear how many of the people directly or indirectly implicated in Advocate Terry Motau’s report will ever be prosecuted. The report concludes that there was wide-ranging criminality in the conduct of the affairs of both VBS Bank and Vele Investments, that “VBS and Vele have been operated as a single criminal enterprise”, and that “those who have been identified as participating and benefiting from this criminal enterprise be charged and prosecuted”.
The report suggest that the following people ought to be prosecuted for their involvement in this criminal enterprise:
those that have been responsible for the fraudulent cover-up constituted by the publication of the fraudulent audited financial statements;
those who have stolen money from VBS and Vele;
those who benefited from the receipt of funds through theft or fraud;
those who have committed crimes involving corruption, whether as the maker of bribes or as the recipient of bribes; and
those implicated in tax fraud and other tax related crimes.
It is important to take note of a few preliminary points before considering the various denials and half-denials of those implicated in the report.
First, because VBS Bank and Vele Investments have been operated as a single criminal enterprise, and because the report lists 27 names of those who received money from this criminal enterprise either directly or indirectly, it is not a complete denial of the claims in the report if you merely deny that you ever received money directly from VBS. It is a bit like being accused of stealing vegetables from somebody’s garden, then denying that you ever stole tomatoes from that garden. What about the pumpkins, green beans and spinach you took?
Second, those who have directly or indirectly been implicated in the report and may fear criminal prosecution (regardless of how likely this is to happen given the lack of skill and perceived lack of political will at the Hawks and the NPA) find themselves in a difficult situation. They are not sure what they should deny and how careful they should be when they deny something because they do not know what evidence has already been gathered against them.
This is because the Reserve Bank did not publicly release the annexures attached to the report. These annexures remain secret in order not to compromise the criminal investigations currently under way. These annexures include: the forensic accountants’ report; a summary of material testimony; transcripts of testimony, and (potentially most incriminating) exhibits in the form of bank statements, details of bank transfers, and other documents.
An implicated person would not want to incriminate him or herself by denying something in a manner that could easily be disproved later with the assistance of evidence already known to investigators. This is perhaps why none of the implicated people has issued a blanket denial to the effect that: “I did not receive an unearned benefit, channelled to me in any way whatsoever, from VBS or Vele, either directly, or indirectly via an intermediary or intermediaries, either into my own account or into another account I have access to.”
The theft and fraud (allegedly committed by those in charge of VBS and Vele investments and by the KPMG auditor who covered up the theft and fraud) are straightforward legal concepts so I need not discuss them here.
But the report raises questions about various possible offences committed in contravention of the Prevention and Combating of Corrupt Activities Act and the Prevention of Organised Crime Act.
Listening to Adv Terry Motau speaking about the #VBSMutualBank Great Bank Heist & I’m sickened to my core. Yet I’m also emboldened by this SA citizen who applied 💯 focus to skillfully uncovering a corrupt scheme established to further impoverish the poorest in our land. pic.twitter.com/RDfdXNxpMY
— Pele Mkhari (@PeleMkhari) October 10, 2018
Some people implicated in the report are alleged to have received “commissions” because they assisted VBS to secure unlawful deposits from various municipalities. The allegation is that they abused their positions (as political party officials or as elected officials in municipalities) to secure unlawful deposits for VBS in return for a bribe. If this can be proven, these individuals would be convicted of corruption in contravention of section 3 of the Prevention and Combating of Corrupt Activities Act.
Section 3 states that you are guilty of corruption if you (a) give or accept a “gratification” with the aim of (b) acting or influencing another person to act in a corrupt manner. You will act in a corrupt manner if, among other things, you abuse a position of authority or abuse your power. The definition is a bit more complicated than this, but at the heart of the crime is the offering of a bribe as an unauthorised or improper inducement to do or not to do anything or to accept a bribe as an improper inducement to do or not to do something.
There is little doubt that both the person offering the “commission” (read bribe) and the person accepting the “commission” (read bribe) could be found guilty of the crime of corruption. The only question is whether enough evidence could be gathered to prove this beyond reasonable doubt and – perhaps more important – whether the Hawks and the NPA have the skills and the political will to find such evidence and to prosecute the culprits.
It would also constitute corruption if you directly or indirectly received money from VBS or Vele in exchange for a promise that you would use your office or position to try to protect VBS and or Vele by whatever means from criminal or other investigations. An MP who directly (or indirectly through some front company or account) received money or another benefit from VBS or Vele with the understanding that he or she would use his or her position as MP to try to protect VBS and/or Vele would also be guilty of corruption.
There is no angle from which one can look at the VBS mess and not get angry, hurt and disgusted by the pure greed. Many of us were convinced by the idea of a functioning people's bank. Never the greed. Those people that lost their deposits are not strangers. They are us.
— Mme a Masakona (@FloMasebe) October 13, 2018
But what about those individuals who did not pay or receive bribes, but did directly or indirectly (say, through an intermediary) receive money from the criminal enterprise of VBS and/ or Vele? Could such individuals be criminally prosecuted? The answer is yes.
There are two relevant legal provisions that might be used to prosecute such individuals.
First, section 4 of the Prevention of Organised Crime Act prohibits money laundering. Money laundering occurs, for example, when you try to disguise the nature, source, location, disposition or movement of the money, while you knew or reasonably ought to have known that the money forms part of the proceeds of unlawful activities. This means if X wishes to give stolen money to Z, and Y agrees to receive the money and then to pass this on to Z, then Y would be guilty of money laundering if he or she knew or reasonably ought to have known that the money was the proceeds of unlawful activity.
But section 6 of the same Act is even more straightforward as it states that any person who acquires, uses, or has possession of property (including money) and who knows or ought reasonably to have known that it is or forms part of the proceeds of unlawful activities of another person, shall be guilty of an offence. In the case of stolen money, it would not matter that the money was not directly received from the person who stole it – as long as the accused knew or reasonably ought to have known that the money was stolen.
If even half of what is contained in the report is correct, it would be shocking if no one were to be successfully prosecuted for this heist. But because members of the public have not been provided with the evidence on which the report was based and as it is not clear that the Hawks and the NPA will have the skills and political will to pursue this vigorously, it is not possible for members of the public to say with certainty at this point who (if anyone) will be convicted of criminal offences for actions related to the VBS/Vele criminal enterprise. DM
- Pierre de Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled ‘Constitutionally Speaking’, in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.
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