Ruling is ‘no barrier’ to VBS prosecutions
• ANC Limpopo heavyweight who challenged Motau’s findings against him is not accused in criminal prosecution
ANC Limpopo heavyweight Danny Msiza’s successful challenge of the scathing findings against him in advocate Terry Motau’s report on multibillion-rand theft at VBS Mutual Bank will have “no effect” on the criminal cases spawned by that investigation, the National Prosecuting Authority (NPA) said on Tuesday. “Mr Msiza is not one of the nine accused in the criminal prosecution,” NPA spokesperson Sipho Ngwema said.
ANC Limpopo heavyweight Danny Msiza’s successful challenge of the scathing findings against him in advocate Terry Motau’s report on multibillionrand theft at VBS Mutual Bank will have “no effect” on the criminal cases spawned by that investigation, the National Prosecuting Authority (NPA) said on Tuesday.
“Mr Msiza is not one of the nine accused in the criminal prosecution,” NPA spokesperson Sipho Ngwema told Business Day on Tuesday.
Though the NPA may have used Motau’s report as a “starting point” in the development of its case, the state had obtained its own evidence before pursuing the prosecution, Ngwema said.
National director of public prosecutions Shamila Batohi has previously promised that any political figures implicated in the collapse of the bank would be charged “no matter who they are”. As yet, not a single politician has been charged regarding the looting of the bank, which also involved huge unlawful investments in the bank by Limpopo municipalities.
Msiza had used his political influence as the ANC’s provincial treasurer in Limpopo to coerce municipal officials into unlawfully investing millions of rand in the bank, Motau found in his investigation.
“It is clear that Msiza intervened on numerous occasions when his political influence was required,” Motau stated.
Now Pretoria high court judge Vivian Tlhapi has ruled that Motau denied Msiza, who is reportedly a key ally of ANC secretary-general Ace Magashule, “procedural fairness” by not hearing his side of the story before finding that he was a “kingpin” in the VBS looting.
Tlhapi noted that Msiza had told the court he was “disappointed by the transgressions at VBS and he felt that … trust and confidence in what would have been a great success story was betrayed by the conduct of some of the executives at VBS Mutual Bank”.
As part of efforts to defend his findings, Motau and Werksmans Attorneys, which worked with him to investigate the VBS Mutual Bank looting, had attached e-mails, WhatsApp discussions, interviews under oath, bank statements and documents detailing Msiza’s wrongdoing.
But Tlhapi ruled that she was “not called upon to evaluate the truth” of this evidence “or to consider the justification for the contents of the report”.
Instead, she found that Motau’s failure to afford Msiza the right to “procedural fairness” was unlawful and unconstitutional. The adverse findings he had made against Msiza were thus set aside.
The political effect of that ruling will be immense, particularly as the ANC fights to convince voters that it is serious about tackling corruption. Tlhapi’s ruling — if it stands — will enable the 53 people identified in Motau’s investigation as having “gratuitously” received R1.89bn in payments from VBS Mutual Bank to successfully challenge such findings on the basis that the advocate did not seek their response to the forensic evidence against them.
Given these far-reaching implications, it’s almost certain the judgment will be appealed.
The ANC national executive committee faced significant pushback, including from its alliance partners and civil society, when it announced its decision to reinstate Msiza to his position as Limpopo treasurer in July, just weeks after the NPA had charged the nine men who the state had identified as major players in the bank’s spectacular downfall.
FOREGONE CONCLUSION
ANC spokesperson Pule Mabe confirmed to Business Day that, despite this unhappiness, Msiza’s return to his position was a foregone conclusion, even before Tuesday’s ruling. He said “engagement” would need to take place to ensure that Msiza is able to resume his duties.
“The fact that Mr Msiza approached the court to challenge certain findings that he was not happy with clearly shows our own democracy is very much alive,” he said.
Motau did not return requests for comment.