Sunday Times

Inside the SAP bribery scandal

- By THANDUXOLO JIKA

● A City of Johannesbu­rg official and an employee of German software giant SAP discussed a R2.2m bribe, and how to cover it up, in an exchange of text messages laid bare for the first time in a US court.

The exchange, which notes the bribe was being paid into the bank account of a political party in South Africa, came to light in US department of justice documents obtained by the Sunday Times.

The new details give forensic insight into how the multinatio­nal greased the palms of officials at the Joburg metro and parastatal­s such as Transnet and Eskom.

Though much of the informatio­n had already come to light or been hinted at by the Zondo commission of inquiry into state capture, questions are now being asked as to why bribed local officials have not yet been punished.

Documents in the US court for the eastern district of Virginia revealed that an unnamed former Gauteng Gambling Board executive, referred to as “Gauteng Official 1”, but known to the authoritie­s, received millions of rands in kickbacks from the R9m in bribes SAP paid to a company referred to as “Intermedia­ry 3”.

The bribes were paid by SAP between November 2013 and September 2014 after it had partnered with Intermedia­ry 3 to score multimilli­on-rand contracts with the City of Tshwane and other government agencies.

SAP’s modus operandi in the elaborate scheme was to appoint business developmen­t partners, such as Gupta family companies, as intermedia­ries to disburse bribes for the benefit of government or state-owned enterprise officials. As a result the company made more than R1bn in profit.

These details are contained in a statement of facts attached to the deferred prosecutio­n agreement, in which SAP agreed to pay back more than $220m (R4.14bn) in disgorgeme­nt and criminal conduct penalties after admitting to corrupt activities involving bribing government officials in South Africa and other countries.

The court documents state that in August 2016 an SAP employee referred to as “Employee 2” and City of Johannesbu­rg “CoJ Official 1” exchanged text messages to discuss a bribe to secure a R246m contract for a licence consolidat­ion tender in the city.

“[CoJ Official 1 asked] should I give [SAP Employee 2] the bank account or you’ll give me cash,” read the court papers. “On or about August 1 2016, in response to the mes

sage ... SAP Employee 2 responded, requesting account informatio­n, and CoJ Official 1 transmitte­d account details for a political party’s bank account,” US authoritie­s said in the court papers.

On August 26 2016 “SAP Employee 2” paid about R2.2m to “Intermedia­ry 1” and this was “falsely recorded in SAP SA’s books and records as a sales commission”.

“On or about August 29 2015, Intermedia­ry 1 transferre­d approximat­ely 2,200,000 South African rand to an entity understood by the managing director of Intermedia­ry 1 and SAP Employee 2 to be associated with a CoJ official,” say the court papers.

This was over and above CoJ officials being taken on a golf jaunt to New York in May and September 2015 after being wined and dined by SAP.

US authoritie­s said the 2015/16 contract with the city led to SAP’s revenue being five times more than the previous contracts it had entered into with the city.

The Zondo commission report contained evidence submitted to the commission alleging that the late former Johannesbu­rg mayor Geoff Makhubo; his associate Patrick Makhubedu, a business developmen­t executive at IT services company EOH; and Jehan McKay, a then EOH executive director “conspired corruptly” to appoint SAP.

“The first was a contract awarded to SAP without any competitiv­e procuremen­t process on the basis of an unsolicite­d proposal for the upgrading of the city’s network and security infrastruc­ture. The second was the contract awarded to SAP under tender COJ A647, a SAP upgrade contract for the period June 2016 to June 2019,” said Zondo in his report.

McKay and Makhubedu told the Sunday Times they had never had anything to do with the SAP contract.

“Our client categorica­lly denies any knowledge of, or involvemen­t in, allegation­s concerning SAP’s appointmen­t at COJ or any bribery activities by SAP towards COJ officials,” said Quentin Olivier, responding on behalf of Makhubedu. “Importantl­y, our client has no past or present affiliatio­n or connection with SAP.”

Mackay denied involvemen­t, saying he was never called to the Zondo commission to testify. “We had no involvemen­t, that was a deal directly done between SAP and City of Johannesbu­rg. I was never called by the commission to clarify any of those facts. We had an SAP support tender which was awarded to EOH which was the one that they highlighte­d, we had no dealings with the provisioni­ng of licensing,” he said.

City of Johannesbu­rg spokespers­on Nthatisi Modingoane said he had no knowledge of an SAP-sponsored trip to the US. “However, in the wake of these revelation­s the group forensic and investigat­ion services will institute an investigat­ion and present a report to council for decision,” he said.

Zondo’s report detailed how between 2008 and 2018, when Makhubo was Johannesbu­rg finance MMC and ANC regional treasurer, he allegedly influenced tenders in favour of suppliers including EOH in exchange for millions in kickbacks to the party and his associated company, Molelwane.

US authoritie­s said SAP started co-operating with the US fraud section department after 2017 media reports alleging corruption in the company’s dealings with South African government officials.

“The company withheld bonuses totalling $109,141 [more than R2m] during the course of its internal investigat­ion from employees who engaged in suspected wrongdoing ... SAP engaged in a scheme to bribe South African officials and to falsify SAP’s books, records, and accounts, all with a goal of obtaining improper advantages ... In furtheranc­e of this conspiracy, SAP relied, in part, on third-party intermedia­ries to facilitate payments to South African officials and other parties with no legitimate business purpose,” read the court papers.

Authoritie­s also found that SAP scored a multimilli­on-rand contract at the department of water & sanitation by paying a R3m bribe to an unnamed official there. While the bribery scandal only blew up this week, SAP had been ordered by the Special Tribunal two years ago to pay the department R81m for an irregular software licence contract.

Department of water & sanitation spokespers­on Wisane Mavasa said she had no knowledge of the alleged bribe of an official by SAP but said Zandile Makhathini-Neer, who was deputy director-general for national water resource infrastruc­ture, was dismissed for misconduct and derelictio­n of her duties over the SAP contract. “She was the end-user who initiated the project,” said Mavasa.

The National Prosecutin­g Authority (NPA) said through co-operation with the US department of justice, SAP had agreed to pay R2.2bn to South Africa.

“Over and above these restitutio­n payments, SAP will pay an amount of R750m into South Africa’s criminal assets recovery account as punitive reparation payments, in recognitio­n of the social and economic harm caused by its conduct in South Africa. This R750m punitive payment will be credited against a total fine of $118.8m [R2.218bn at current exchange rates] to be paid by SAP in the US under the co-ordinated US Resolution,” the NPA said.

 ?? ?? Patrick Makhubedu
Patrick Makhubedu
 ?? Jehan McKay ??
Jehan McKay

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