The entire proceedings of the Commission of Inquiry into allegations of impropriety at the Public Investment Corporation (PIC) are tainted by illegality, according to retired Judge Willem Heath’s findings, published in the Review Report of the Proceedings and Findings of the PIC Commission of Inquiry.
Heath, in the report that was released this week and seen by Independent Media’s investigations unit, makes claims that the evidence leader advocate Jannie Lubbe SC had not acted in good faith and failed to observe and apply the principles of natural justice.
“The Mpati Commission and its evidence leader ignored its terms of reference and was aware of significant corruption, according to emails that we have seen in relation to several transactions. The commission’s failure to investigate these transactions should mean that the commission operated with illegality. Sekunjalo should urgently consider setting aside the Mpati Commission, based on illegality.
“Sekunjalo and Dr Iqbal Survé should immediately institute a damages claim for reputational and other losses suffered, as a result of the illegality and misrepresentation of Sekunjalo Group’s actions in the Mpati Commission’s report. The Mpati Commission blatantly ignored its own affidavits and testimonies, presented by witnesses to the commission,” reads the report.
Heath said the evidence that was examined showed that the evidence leader ignored crucial evidence, which he was aware of, and coached and directed witnesses to seek a pre-determined outcome.
“This was highly prejudicial to Sekunjalo, AYO, and the other companies that were mentioned in the commission’s report. Sekunjalo should consider seeking damages or taking this matter further as to the conduct of Advocate Lubbe with the relevant authorities,” said Heath.
Lubbe declined to comment, saying he would consider his position once he had sight of the full report. Efforts to get comments from Sekunjalo also drew a blank.
Lubbe raised eyebrows during the course of the commission, when it was revealed that he had called PIC’s (then) suspended acting chief executive Matshepo More to a private meeting, where he offered her with “fatherly advice” when concerns were raised about the conduct of his investigative team in the sourcing of information.
According to the report, the Mpati Commission ignored its terms of reference and did not investigate material transactions, which evidence had surfaced that the evidence leader was aware of.
“Specifically, these transactions relate to companies such as Sunrise Energy and Steinhoff. Steinhoff was the largest corporate fraud in South Africa’s history, alongside Tongaat Hulett and EOH. These acknowledged frauds were never investigated by the Mpati Commission,” said Heath.
Heath said, as the report was being prepared, a number of South Africa’s banks terminated the Sekunjalo Group and related entities' bank accounts, while some other banks have put the accounts on review.
“Having examined the court papers in relation to these actions, it appears that all of these reasons were due to the negative media arising out of the Mpati Commission. The report has caused significant damage to the reputation and goodwill of Sekunjalo, and threatened its very existence.
“It also imperils the livelihoods of thousands of employees and sets back an important transformation project. All of this is regrettable, due to the Mpati Commission not following due process and natural justice,” said Heath.
In his findings, Heath expressed the view that:
- Sekunjalo Investment Holdings and its chairperson Iqbal Survé did not fall within the ambit of the Terms of Reference. Consequently, the commission should not have investigated them or should have been clear about the rationale for including the two in its report.
- There is no evidence that Survé was involved in either the pre-listing statements and valuations of AYO or Premier Fishing Brands.
- The Independent Media transaction occurred in 2013, therefore it fell outside the scope of the Terms of Reference of the Commission.
- There is no finding of any irregularity of the PIC investment in Sekunjalo Independent Media.
The report has been a grave injustice to Sekunjalo. Heath said he was of the considered opinion that the report and findings of the commission stood to be reviewed and set aside.
sizwe.dlamini@falcons.org.za