Civil claims turn the screws on looters

While the wheels of justice on state capture are moving slowly, progress is being made in clawing back some of the money looted.

Three years ago former deputy finance minister Mcebisi Jonas, blowing the lid on the state capture project, said the Guptas had offered him the finance minister job in the cabinet and R600m.

Since then we have had former public protector Thuli Madonsela’s report into state capture, the leaked Gupta emails, direct evidence of what was happening, and the judicial commission of inquiry into state capture.

Those in the thick of it have given evidence to deputy chief justice Raymond Zondo. People like Jonas have come out publicly revealing what happened, and whistle-blowers have put their lives on the line to dish the dirt.

To this day, there has not been a single criminal conviction or case by the National Prosecuting Authority (NPA) relating to state capture. But what is proving to be successful, is civil action.

It is important to keep in mind that it is much harder to prove criminality. So civil claims have been the route taken by some state-owned entities that were looted during the 10 years that Jacob Zuma was in office.

Freight company Transnet was one of the first to announce it would be suing former executives and companies for money lost through dodgy deals.

Transnet has recovered R618m through civil cases and has another five matters still in court against former executives and companies involving more than R400m. It is making claims against former CEOs Brian Molefe and Siyabonga Gama, former CFOs Anoj Singh and Garry Pita, former treasurer Phetolo Ramosebudi, former Transnet Freight Rail chief procurement officer Thamsanqa Jiyane and former group supply chain official Edward Thomas. It is taking aim at Gupta-linked companies that benefited from contracts, such as Regiments Capital and Trillian Capital.

Eskom has won its claim for R600m against Trillian through the courts and collected more than R1bn from McKinsey.

Cash-strapped arms manufacturer Denel has so far filed civil claims against four executives involved in the irregular awarding of pilot bursaries. In 2018, it was revealed that former North West premier Supra Mahumapelo’s son had been granted a questionable R1.1m bursary to become a pilot.

More cases are expected to follow.

Some state-owned enterprises, such as SAA and SA Express, have laid criminal charges as well or plan to, but those are going nowhere slowly.

The NPA, despite a new head and an investigative directorate focusing on state capture, has had to rebuild itself and seems to be floundering a bit while it engages in factional fights. It had to withdraw its first state capture case, in 2018, relating to the Vrede dairy farm project.

But while the NPA is not prosecuting, the courts have been filled with civil matters, which is a way of recovering looted money and holding those responsible accountable, not only for state capture but also in matters such as the “great bank heist” of VBS Mutual Bank.

All five of VBS’s executives have been sequestrated after the scandal, which means their assets are up for grabs. However, no criminal action has yet been taken relating to the matter.

Zuma is another example. While the former president tries every trick in the book to avoid facing criminal charges relating to the multibillion-rand arms deal, he now faces the possibility of losing his Nkandla home — the one taxpayers forked out millions to upgrade.

VBS’s liquidator filed a summons in the high court in Pietermaritzburg because Zuma has been defaulting on the loan since August 2018 and now stands to lose the property. In 2016 VBS lent Zuma R7m ’to s pay back the state for the Nkandla upgrades after Madonsela report found he unduly benefited from the upgrades.

When criminal action fails, civil action has proved to be more successful. And most of those facing the claims are having to spend a lot of their money in the process, which is a good thing.

Why should we let those who decimated the economy and the country run into the sunset with their loot? If they are not going to don orange jumpsuits and spend their lives behind bars, then at least they should be bankrupted the way they bankrupted the state.

The way to defeat these people is not with a silver bullet, but to keep tightening the screws. Life is difficult and brutal without money — ask the millions living in abject poverty.