The company at the centre of the destruction of the SA Revenue Service (Sars), Boston-based Bain & Co, has paid back the money — but it has yet to come clean about the full extent of former managing partner Vittorio Massone’s machinations in the state capture project.
And now Bain is trying to block the Zondo commission from hearing evidence by a former insider who can shed light on what Massone was up to, along with former president Jacob Zuma, and on how complicit the management consultancy’s central office was in the state capture project.
Former Bain partner Athol Williams tells the FM that the company has applied to the commission to block some of his testimony, apparently on the grounds that the information is “confidential”.
When Bain’s role in assisting disgraced former Sars commissioner Tom Moyane to overhaul the tax agency and neutralise its capacity was exposed, it hired Williams — who had already left the company — to oversee an internal “remedy plan”.
But Williams discovered that the outward display of remorse by Bain was simply a public relations exercise, and when he began asking questions the company quickly dispensed with his services. Business Day reported last year that he was offered a generous payout in exchange for his silence.
Williams tells the FM that he was meant to testify before the commission two weeks ago, but due to the evidence leader falling ill, the matter was postponed. But before that, Bain had lodged a formal application with the commission to block him from presenting certain annexures attached to his affidavit, which runs to 700 pages.
The annexures include evidence that Bain’s role in the state capture project went beyond Sars. And Bain is not the only party worried about what Williams could reveal — Moyane and Telkom CEO Sipho Maseko have both indicated that they would want to cross-examine him, he says.
McKinsey agreed to pay back R650m. What it is also required is full disclosure so that true retribution can follow
Bain’s attempts to gag Williams are particularly worrying in light of the findings of the Nugent commission of inquiry into Sars. Retired judge Robert Nugent accused the company of concealing the true extent of Massone’s role in the capture of the tax agency. He chastised it for dishonesty and called for full disclosure.
If the Nugent report is anything to go by, Massone and Bain could be key to exposing the full extent of Zuma’s collaboration with the Guptas and others before the state capture project was finally torpedoed.
Following an introduction by television producer Duma Ndlovu, Massone had 10 meetings with Zuma during which they are said to have discussed central procurement as well as a project Massone called “Phoenix”, which, the Nugent report says, was aimed at “Bain getting business in all of SA’s public institutions”.
Bain had also colluded with Sars officials linked to Moyane about people in the tax agency who needed to be “neutralised” as part of the so-called restructuring of Sars, which effectively weakened it.
So Bain still has much to explain.
Williams says he believes he has enough information and evidence to fill the gaps and present a full picture of the consultancy’s role in state capture. This could include shedding more light on the activities and intentions of both Zuma and Moyane.
Williams, however, is concerned at the delays in his testimony before the Zondo commission.
This week another consultancy, McKinsey, agreed to pay back R650m for dodgy deals at Transnet and SAA. This is all well and good, but what it is also required is full disclosure so that true retribution can follow.
Bain SA refutes in strongest terms the FM’s incorrect opinion piece claiming it tried to ‘muzzle whistleblower’
The Judicial Commission of Inquiry into allegations of state capture, also known as the Zondo Commission, is playing an exceedingly important role in helping end the damaging effects of corruption in SA.
Bain fully supports and endorses the Commission and its work — as it did that of the Nugent Commission — and has not attempted to prevent the Commission from hearing evidence or assessing and reviewing any information that is relevant to its mandate, as alleged in a recent article in the Financial Mail.
It appears a legal application to cross-examine a witness was conflated by the reporter and the FM and portrayed as “muzzling”, “gagging” and “blocking” evidence. Bain has not sought to block the Commission from considering certain information or from hearing evidence from a witness. We take exception to such an accusation being made and published as fact in the recent Financial Mail article entitled: Bain’s bid to muzzle whistleblower.
The Commission, under extremely difficult conditions, is making impressive headway and is showing it is quite capable of hearing and testing evidence without fear or favour. We have no doubt it will make important, measured findings about who was directly involved in state capture in due course.
The Commission has strict rules about confidentiality of submissions, to which Bain is adhering. It is therefore unfortunate when witnesses, prior to giving evidence, approach the media to get their personal views aired and held up as fact before they are properly tested.
We are saddened that a former employee of Bain continues to make allegations against the firm but we feel it is proper to continue to respect the process playing out through the Commission rather than litigating in the media. However, given the fact we were not given a right of reply, nor was any attempt made to verify the truth of the allegations as published, we wish to place the after on record in response.
Bain’s application to the Commission expressly did not seek to block the Commission from considering any matters or from hearing any evidence from Mr Williams. In fact, Bain and Mr Williams were always in agreement that any separation agreement between us would not impact his ability to testify, either in court or before commissions such as the Zondo Commission.
Bain’s application to the Commission, as with Mr Williams’ affidavit, may not be disclosed to any person in advance of it being heard by the Commission under the Commission’s rules in order to protect the integrity of the Commission’s work.
Importantly, and as will become apparent in due course, Bain has made no application of any kind to prevent the Commission’s consideration of any submissions or evidence. There is nothing “muzzling” about any of the steps taken by Bain, which have all been advanced in accordance with the Commission’s rules and in order to assist its work.
Furthermore, Bain made no application of any kind — formal or informal — for Mr Williams’ testimony to be delayed.
Among other factual inaccuracies in the article was that the company “quickly dispensed with Mr Williams’ services when he began asking questions”. Mr Williams resigned from Bain, a fact he himself announced publicly in October of last year.
We also wish to place on record — once again -that Bain has done no business with the Guptas, or any other entities identified in the media as related to the Gupta family, at Sars or elsewhere.
Bain accepts — and has publicly acknowledged — that it made mistakes with our work at Sars. Because we fell short of the standards to which Bain holds itself, we returned the fees we earned on the Sars work, with interest, before the Nugent Commission even concluded its work. The repayment was discussed with Sars in the course of 2018 and effected in November of that same year.
When an individual, for whatever purpose, wants to find a conspiracy behind every conversation and action — and then uses the media to air his personal grievances against Bain — it’s not only difficult for our hard-working and dedicated employees in SA to read but, most importantly, it ultimately hinders the Commission in its vital work. Mr Williams’ “evidence” will be tested before the Commission and we are confident it will be found wanting, precisely because it is mere speculation passed off as fact.
At the end of the day, facts matter. We hope and will expect that a greater emphasis on stating verifiable and actual facts, instead of opinion and speculation, will lead all media coverage on Bain SA going forward. Bain, for its part, is committed to operating with integrity, meeting the high standards our clients expect and making a positive contribution to SA.
THE FM RESPONDS
The article in question did not say that Bain had made any application for Williams’ testimony to be delayed -but only that it wanted to block certain evidence from being aired. In fact, Bain has lodged an application to cross examine Mr Williams, as it admitted at the Zondo Commission on November 30, when its lawyer said it also applied “for one or two other things”.
The FM learnt that this “one or two other things” included an application to “maintain confidentiality over certain portions of (Williams) affidavit and its annexures and to withhold them from public disclosure in terms of Rule 3.5 and/or Rule 11.1 of the Rules of the Commission”. Any bid to “withhold” evidence from public disclosure would certainly amount to blocking the full airing of Bain’s role in state capture.
We did not seek comment from the company before publishing this article, in part because the company has consistently refused to comment on engage with us on this subject. Since this was an opinion article rather than a news report, we were not obliged to seek comment under the press code, but we accept that it would have led to a more holistic picture being presented.
However, the FM feels strongly that if Bain wishes to change the reporting around the company, it would do well to embrace transparency and fully open-up about the work it did at Sars. That is a course of action that has been sorely absent from its secretive machinations to this point.
This is not just the FM’s view either. As Judge Robert Nugent himself concluded about Bain’s role at Sars: “the way Bain has gone about things gives us no confidence that the full truth will indeed be told. Nothing makes it more plain that Bain has withheld, and continues to withhold, information from the Commission, than the preliminary report prepared by Mr Williams, from which it is apparent that even he has yet to be told where the truth lies. ”
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