Are private corporations being treated with kid gloves by the commission of inquiry into state capture?
Sections of civil society say the impression is being created that the commission, chaired by deputy chief justice Raymond Zondo, is soft on private actors who were complicit in state capture.
In a letter from nonprofit body Open Secrets, signed off by 18 organisations and whistle-blowers, civil society calls on Zondo to summons private actors and grill them on the extent of their knowledge of what unfolded during the state capture era.
The letter lists 17 companies — among them Absa, Bain & Co, Bank of Baroda, Deloitte, First National Bank, Hogan Lovells, KPMG, McKinsey, Nedbank, Neotel and Standard Bank — which should be called in and questioned more rigorously. It says the list is not exhaustive and there are many more private actors who should testify.
"We are deeply concerned that your commission is yet to call corporations to fully account for their complicity in state capture. While we note the intention of corporations like McKinsey & Company to repay a small portion of the funds owed to South Africans, we fear that the manner in which this has been trumpeted by the commission in a recent press statement suggests that justice is traded at a discount for the very rich and powerful," says the letter, signed by Open Secrets director Hennie van Vuuren.
"We have not yet seen any corporation forced to meaningfully account for their complicity in state capture before your commission. Where representatives appeared most have only shown the vaguest amount of contrition, and evidence leaders have not adequately cross-examined them about their complicity. We fear this creates an impression detrimental to the commission: that they are being treated with ‘kid gloves.’"
A number of private companies have appeared before Zondo. Some, such as McKinsey, Bain and KPMG, have paid back money received from the state for their "work". However, and more importantly, many have not been entirely candid about the full extent of their involvement in the state capture project. For instance, the commission of inquiry into the SA Revenue Service, chaired by judge Robert Nugent, found that Boston-based Bain was not entirely candid in that inquiry. Nugent, in his final report, said plainly that his commission had "not yet heard the full truth from Bain". The company is expected to appear before Zondo in the coming months.
No private company has come clean on its role in aiding allegedly corrupt politicians, opting to obfuscate by using corporate speak.
Last month McKinsey’s chief risk officer Jean-Christophe Mieszala testified virtually from Paris, distancing the consultancy from any nefarious activity. Mieszala told the commission an "internal investigation" had cleared the firm of corruption, but admitted to "several mistakes" by its executives. This was a day after McKinsey voluntarily paid back R650m it received for work done for Transnet and SAA.
Van Vuuren tells the FM he is deeply disappointed that the commission has not responded to his letter or acknowledged receipt of it. It was sent on December 16 and asked for a response by January 8.
In the letter Van Vuuren says the public has a right to know the truth about the role of these corporations, and that the commission — a public forum with inquisitorial powers — is uniquely placed to "arrive at the truth". It has failed to fully use these powers.
"The commission has the responsibility to deeply probe the conduct of all players in state capture — including corporations.
Van Vuuren says he fears that the impression is being created that powerful multinational corporations and their local business networks were somehow the unwitting participants or even "victims" of crimes perpetrated by scheming politicians.
"The evidence which we and many other organisations have presented to the commission shows that this is simply not true: these corporations have enabled serious crimes, all for the sake of profit," he says.
And, he says, they are likely to do so again if their conduct is not properly interrogated or uncovered.
The signatories to the letter have no interest in "factional political disputes and only the accountability of politicians", but rather the "full institutional framework" that enabled state capture and which has to be dismantled.
In the letter to Zondo, the civil society groups say: "Under the constitution, equality before the law demands accountability without fear or favour, even of the corporations … We thus write to you with a request that you urgently exercise your powers under the Commissions Act of 1947 to summon private actors implicated in state capture to appear before the commission and respond to questions regarding their conduct."
They argue that this will empower the commission to make rigorous and effective recommendations to law enforcement authorities regarding further legal action to be taken against implicated companies.
The commission had not responded to questions from the FM at the time of going to press.
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