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Inside OUTA June 2017

Dear OUTA Supporters

This week was momentous one for OUTA, as we released our case document titled “No Room to Hide – A President Caught in the Act”. It may just be the document that catalyzes the necessary energy to
impeach Jacob Zuma.

The purpose of this work was to compile a substantive reference document that would expose the President’s links to state capture, and his total disrespect for the constitutional values of South Africa.

While it is true that a number of reports and revelations have been presented on the subject of Zuma’s unwarranted conduct to date, we sought to produce a case with sufficient facts and evidence that would be difficult for any rational person to ignore or refute. We also believed it pertinent that this document be constructed in legal format to enable its presentation in a court of law.

Instead of rushing to the courts, OUTA was well advised to present this case document first to Parliament, in respect of exercising this specific route which is intended to empower all MP’s with substantive evidence in the pressing matter to have the President removed from power in the forthcoming vote of no confidence. In addition, OUTA has also this document to other institutions such as the Hawks and the NPA, to demonstrate the seriousness of our approach of exhausting all formal avenues available to society in this regard.

More about this specific “Zuma Impeachment project is provided in the next story of this month’s newsletter. I urge all South Africans to read the case document we served on Parliament this week at this link: https://www.outa.co.za/wp-content/uploads/2017/06/2.-REPORT.pdf.  It provides serious enlightenment on how deeply and significantly the President and his cronies are implicated in unlawful conduct.

While this project gained momentum, OUTA’s formidable team has also remained very busy in dealing with its legal challenge against SANRAL on the e-toll matter, as well as the Dudu Myeni “delinquent director” saga, challenging numerous issues at Eskom, laying charges against the ex-Chairperson of Eskom – Mr Ben Ngubane and many other matters.

The journey of OUTA’s work consumes a significant quantity of manpower hours and legal input, all of which is extremely worthwhile and rewarding in our quest to hold government accountable to the people, for incidents of misuse of taxpayers’ funds.

To all our supporters who contribute to OUTA, we extend our sincerest gratitude. Without you, we don’t exist. With more of you, we will be able to do more and in this regard, I request that you spread the word and get your friends and family on board.

Yours sincerely

Wayne

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OUTA’s case file against President Jacob Zuma’s corrupt rule, “No room to hide: A President caught in the act”, was presented to Parliament on 28 June. This is the hefty file which collates more than enough evidence to show why this President is not fit for the job. The full document is on OUTA’s website. This is why you should read it.

It’s more than just a wedding and the capture of an air force base.

There’s the “Boss”, the really truly good friend of the President with bags of money and the willingness to spend it almost anyhow to impress the powerful, with the intention of getting even more money.

There’s the “Chief”, who earns a fortune for doing, well, not much really, but who’ll fix a meeting between Dad the Prez and the Russian billionaire while they’re taking a break from saving the world’s economy at Davos.

Then there’s the minister who has to grovel to the “Boss”, to ask him to intercede with the Prez to give her a little more power.

Thick throughout the plot is the empire of state entities with multi-billion rand budgets that you were foolish enough to think were controlled by the government.

There’s the insane amount of money sloshing around between accounts and countries.

There’s the list of greedy officials salivating for those nice positions, with perks beyond imagination.

There’s the Wife whose bond payment is logged as an “investment”.

And there’s the fileserver at Sahara Computers, with tons of incriminating documents.

Everyone has friends but some of Jacob Zuma’s friends are more than friends, in this world where Saxonwold is a more upmarket address than Bryntirion and Eskom behaves like a personal power generator for a single shady family.

This is the story of how a man became President and held onto that powerful job, despite having a good friend recuperating from terminal illness on the golf course, despite ongoing attempts to bring hundreds of corruption charges against him, despite his powerful former allies slowly turning against him.

More importantly, it’s the story of how South Africans can hold that President to account.

You’ve heard these stories: they’re told repeatedly in conversations aplenty. They’re in every newspaper you pick up or radio station you turn on every day.

OUTA’s case document “No Room to Hide” provides clarity and detail surrounding some of the most important of those incidents, assessed and backed up with evidence, written into careful case files by people who think like prosecutors.

The result is a compelling, detailed account of what state capture means, how it’s done and how Zuma and his cronies have been getting away with it.

OUTA’s legal case file against Zuma is 1 098 pages long (175 pages of the main report plus 923 pages of annexures). The main report is an essential read for all South Africans, especially those who require assurance that our State President has broken the rules. And seriously so.

This case document is important because:

  • It explains how Zuma and his cronies are enriching themselves at the country’s expense.
  • It explains how Zuma protected himself from prosecution.
  • It reminds us how Zuma lied to Parliament.
  • It outlines how Zuma ignores the plight of the poor.
  • It explains Zuma’s corrupt relationship with the Guptas.
  • It details how key state institutions are targeted as honeypots and how control was seized.
  • It’s a legal argument, suitable for legal action.
  • It contains the annexures with the evidence, which includes court judgments, affidavits, financial documents, company networks, property records and e-mail trails.
  • It references the Constitution and laws.
  • It references court judgments, essential for legal argument.
  • It explains the behaviour of Zuma and his cohorts in terms of those legal parameters.
  • It’s the document that our law enforcement agencies should have drawn up, but didn’t.
  • It explains why it’s the job of our MPs to do something about Zuma.

OUTA’s team compiled the document to be used. First, it’s been delivered to Parliament and the Chief Whips of all political parties represented in Parliament, for tabling in Parliament and as unavoidable reading before the expected vote of no confidence in the President. It’s on the way to all 400 MPs, the Hawks, the Minister of Police, the National Prosecuting Authority and the Public Protector.

And if all that fails, it’s the essential legal document for bringing a case in the Constitutional Court.

“Prior to the ‘Gupta emails’, the case for removing President Zuma was overwhelming. Since the emergence of the ‘Gupta emails’, it is unanswerable,” notes the case document.

“The National Assembly and its members would be failing in their Constitutional obligation if they did not vote to remove President Zuma from office in the vote of no confidence.”

It’s the President’s job to uphold the Constitution.

OUTA’s case report outlines clearly and in legal terms how he has failed. Massively.

WATCH OUTA’s COO Ben Theron explain the report in 2 minutes.

The law protecting whistleblowers has been strengthened and it’s badly needed in an era where vicious attacks against those who speak truth to power continues.

SABC radio journalist Suna Venter, who died on 29 June, was a whistleblower who endured horrific harassment for standing up to SABC in defence of independent journalism.

Venter was one of the “SABC 8” who were fired for objecting to the policy of then SABC COO Hlaudi Motsoeneng to stop airing footage of violent protest action by South African communities. The group were later reinstated, but Venter was viciously harassed which may have contributed to her death, as News24 reported.

“She believed in the role of the public broadcaster as enshrined in our Constitution to play a central role in strengthening our democracy,” said The South African National Editors Forum.

The attacks on Venter underline the difficulties which whistleblowers have in South Africa when standing up against powerful wrongdoers who often have access to huge resources of plundered wealth.

Motsoeneng himself finally lost his job after years of public outrage over his behaviour. OUTA filed criminal charges against Motsoeneng last year but has yet to see any action by law enforcement agencies on this.

In June, the law protecting whistleblowers was amended and is waiting for the president’s signature.

The Protected Disclosures Amendment Bill was passed by the National Assembly on 22 June. It was
passed by the NCOP on 25 May and sent back to the National Assembly with proposed amendments. It will become law when the president signs it; the final version was amended and has not yet been published in full. This is an amendment to the Protected Disclosures Act of 2000.

It extends protection for whistleblowers to include public servants.

“This amendment could not have come at a better time for the protection of public servants, than in the current climate of rife corruption within state-owned entities. The catalyst for investigations by civil society organisations is the ‘blowing off the lid’ on the rot, often by a brave whistle-blower,” says Dominique Msibi, OUTA’s Director for Social Services.

It provides whistleblowers with immunity from prosecution arising from the disclosure of information which tends to expose criminal behaviour, but does not protect those who knowingly provide false information.

A key battle was over the proposal to make it an offence for whistleblowers to deliberately provide false information, with opposition parties arguing that the possibility of prosecution could make all whistleblowers reluctant.

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In more than 20 municipalities you don’t know how much electricity will cost you from Saturday, because the regulator won’t tell you.

All municipal electricity prices go up on 1 July but the National Energy Regulator (NERSA) isn’t saying
how much it will be in 24 municipalities which want to charge higher increases, partly because the
decisions aren’t ready.

“NERSA is still finalising internal approval processes regarding the decision document. However, if there is a specific municipality or municipalities that you would like to know what has been approved, give us the name/s and we’ll check and advise,” NERSA told OUTA on 29 June.

NERSA said that the request for the decisions must be submitted as an application under the Promotion of Access to Information Act.

OUTA believes this is incorrect, as electricity tariffs and the decisions on them cannot be restricted information.

In terms of the National Energy Regulator Act, decisions must be in writing, in the public interest, taken in a procedurally fair process, based on reasons, facts and evidence that must be summarised and
recorded, and explained clearly. “Any decision of the Energy Regulator and the reasons therefor must be available to the public except information that is protected in terms of the Promotion of Access to Information Act,” says the Act.

The applications followed Nersa’s decision on 13 April of a national guideline electricity price increase for municipalities of 1.88%. This is the increase on the tariffs which the municipalities charge their customers and takes into account the Eskom increase of 2.2%. The 24 municipalities applied for a bigger increase and Nersa held a public hearing on this on 18 May.

“NERSA’s backlog seems to be partly attributable to OUTA’s opposition to all the increases tabled at NERSA’s hearings, particularly the additional increases,” says Ted Blom, OUTA’s Director for Energy. “It is OUTA’s opinion that all the increases are illegal because none of the municipalities calculated and published their costs of supply for each tariff category, as required by the relevant legislation.”

Stellenbosch municipality, which applied for a 2.22% increase, told a special council meeting on 20 June that Nersa refused its application which would mean R1.7 million less in electricity income.

The others who want to charge more include Cape Town (applied to charge a 3.34% increase) and Johannesburg’s City Power (2.28%). The biggest increases wanted are at Thaba Chweu local municipality (12%), Msukaligwa local and Phumelela local (both 10%) and Magareng local (9%).

At least one more municipality applied at the last minute: Molemole in Limpopo applied on 22 May for an unknown increase. On 2 June Nersa granted Molemole only the standard 1.88% increase.

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SAA chair Dudu Myeni admitted in writing to wrongdoing, then realised it was a bad idea and tried to get it undone. She failed.

On 29 June the Companies Tribunal ruled against Dudu Myeni in her case against the Companies and Intellectual Property Commission (CIPC), over the compliance notice which the CIPC issued to Myeni in
November 2016.

“This ruling further confirms her wrongdoing and this now remains on record,” says OUTA Chief Operating Officer Ben Theron. “This ruling also adds weight to one of the items within OUTA’s case to have Myeni declared a delinquent director.”

Myeni, the chair of the board of South African Airways (SAA), was accused of misleading the Ministry of Public Enterprises in 2013 over the SAA board approvals of funding for the airline’s deal to obtain 20
Airbus aircraft. Myeni had tried to change the arrangement, without board authorisation, to alter the funding arrangements for the second group of 10 aircraft.

In November 2016, the CIPC issued a compliance notice against Myeni which ordered her to notify formally the SAA board and Minister of Finance that the CIPC had concluded that she had “acted in a manner materially inconsistent with the duties of a director” and then confirm to the CIPC that she had done this. Myeni denied wrongdoing but complied and, on 25 January, received a compliance certificate from the CIPC confirming that she’d done it.

OUTA’s legal action against Myeni is well under way with affidavits filed from both sides and OUTA looks forward to addressing her conduct through the high court in due course. “If we are successful in our
application, Myeni will not be allowed to be appointed as a director or play a senior executive role in any organisation within South Africa for at least seven years,” says Theron.

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The plan to build a fleet of nuclear power stations is supposed to start again from the beginning, this time with public participation, but there are hints that some aspects of this are quietly continuing.

On 26 April, the Western Cape High Court struck down the three intergovernmental agreements (IGAs) on nuclear energy with Russia, South Korea and the United States.

But the Department of Energy is still continuing some form of cooperation with at least two of those countries.

On 16 May, the Portfolio Committee on Energy submitted a report to Parliament that included this in the section on training and development: “In preparation for the rollout of the Nuclear New Build Programme, the Nuclear Skills Development and Training Programme is under way, in partnership with various countries, including China, the Russian Federation and South Korea.”

The report notes that, following the high court judgment, the department suspended the nuclear new build programme to address the issues raised by the court.

The committee report noted: “Regarding the Nuclear New Build Programme (NNBP), the Minister showed willingness for public engagement and participation in the debate on nuclear energy. The Committee welcomes this willingness particularly because of the court judgment which set aside the
procurement of nuclear energy. It was reiterated that Government is not yet at the stage of calling for tenders to buy nuclear power and that government has not entered into any deal or signed any contract to procure nuclear power with any country. Eskom has only been given the go-ahead to issue a request for information. Members of the committee agreed that there has been a deficit of trust when it comes to government’s nuclear energy plans. According to the Minister the country has to face the possibility of being short of electricity within the next three to four years.”

The department told the committee it would table an updated Integrated Energy Plan in Cabinet during 2017/18 for promulgation, and would table an updated Integrated Resource Plan in Cabinet by quarter 3 of 2017/18.

Eskom’s request for information (RFI) on the nuclear build was issued in December and closed in April. The expected next step of a request for proposals (RFP) was, according to the committee report, to have been issued at the end of June for responses at the end of September.

While this was understood to have been put on hold by the court judgment, concerns were raised during June when Dr Kelvin Kemm, the chair of the South African Nuclear Energy Corporation (Necsa) said at a nuclear conference in Moscow, Russia, that the South African nuclear deal would be completed before the end of the year and that Russia’s state-owned Rosatom is a leading contender.

OUTA’s energy director Ted Blom pointed out that the Integrated Energy Plan and Integrated Resources Plan must still be revised and public participation held on those and any nuclear procurement before
procurement can proceed.

“For the sake of transparency and fairness, I trust that Kemm is not part of the decision-making stakeholder forum, otherwise he has just shown his bias which we would be happy to raise if we need to approach the courts for further relief from this corruption-driven deal,” says Blom.

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