The state versus Michael Komape

Written by Ciaran Ryan. Posted in Journalism

James and Rosina Komape, parents of the drowned child, Michael.

This article first appeared in Groundup.

Michael Komape was five years old when he drowned in a pit toilet at Mahlodumela Primacy School in Chebeng Village, outside Polokwane, on 20 January 2014.

The shocking story made news across the world, and raised questions about the governance of Limpopo Province’s education department.

On Monday the Limpopo High Court in Polokwane will begin hearing a claim for damages by Michael’s family against the National Department of Basic Education and the Limpopo Department of Education. This case is set down for three weeks and SECTION27 is acting as the family’s legal representative, with Vincent Maleka from Thulamela Chambers as the senior counsel.

Michael’s parents, James and Rosina Komape, remember clearly the day he passed away, but are reluctant to talk of the details that will form part of their case against the state. It is apparent that the family has not recovered fully from the terrible events of that day.

The undisputed facts are this: On 20 January 2014 Michael fell into a pit toilet at Mahlodumela School and drowned in a sea of human faeces. Some hours later his body was retrieved by the fire department.

The toilets were demolished that same day and within weeks new toilets were erected in their place. The evidence of the dilapidation which claimed Michael’s life now lies buried underground at Mahlodumela School. Though some photographs of the deadly toilets were captured on a smart phone and will be presented to the court this week.

R60bn court challenge against banks over home repossession abuse

Written by Ciaran Ryan. Posted in Journalism

More than 225 applicants, mostly from Gauteng townships, have launched a suit in the Constitutional Court, claiming damages from the big banks for home repossession abuse. The applicants are also asking for a criminal investigation into banking executives involved in this abuse. This article first appeared in Groundup.

The applicants are claiming R60bn from the banks for unlawful repossession of homes since the Constitution came into effect in 1994. This figure is based on the average estimated loss of home equity value multiplied by the roughly 100,000 homes repossessed in SA since 1994. Home equity is the difference between the market value of a property and the amount still owing on a mortgage loan.

The Lungelo Lethu (“Our Rights”) Human Rights Foundation is the driving force behind the suit, and has spent several years putting the case together in collaboration with advocate Douglas Shaw.

The first applicant is Innocent Gwisai, whose home was repossessed and sold at auction for a fraction of its worth after he fell into arrears with his bank loan. Other applicants include Ernest Mashaba, John Mojaki, Solomon Nhlapo and Victor Zuma, whose cases of home repossession were previously reported in Groundup.

Nedbank, Absa, FirstRand Bank and Standard Bank are cited as respondents in the case, as well as the National Credit Regulator, the Minister for Justice and Constitutional Development, the SA Human Rights Commission and the High Court Rules Board. All applicants had their homes repossessed after supposedly falling into arrears on their mortgage bonds. The homes were then sold at auction for a fraction of their market value through sheriffs’ offices around the country, according to the court papers. Shaw, who is representing the applicants, estimates homeowners have lost close to R60bn in foregone home equity as a result of the banks’ repossession practices.

South Africa’s sale in execution practices are considered among the most abusive in the world according to research by Shaw, since they allow for homes to be sold at auction with no reserve price. This has resulted in some homes being sold for as little as R10, and then on-sold by opportunistic buyers for hundreds of thousands of rands. In many cases, it is the banks themselves that are buying these houses at sheriffs’ auction and then selling them for a profit.

The applicants want the director of Public Prosecutions “to look into the criminal liability of the directors of each respondent bank for knowingly selling properties for less than their value after the constitution was introduced, and report back to this court within six months from the date of this order.”

How the Guptas inflamed racial tensions in South Africa

Written by Ciaran Ryan. Posted in Journalism

This article first appeared at Acts.co.za

The rise and fall of the Guptas and their capture of a president will be studied in political and PR classes for generations to come. The good news is they are a spent force.

For a lesson in how to capture a country, you might want to study the rise and fall of the Gupta family. Originally from India’s state of Uttar Pradesh, the Gupta brothers (Ajay, Atul, Rajesh and nephew Atul) arrived in South Africa in 1993 to set up a modest enterprise, Sahara Computers, that would serve as the cash engine to bankroll the capture of the country. These guys didn’t just dream big, they had a plan and knew how to implement it.

Over the next 24 years the empire expanded into mining, engineering, steel, newspapers and TV. But what’s more impressive is their astonishing political clout and their toxic influence on the racial climate in South Africa.

When journalists and opposition parties started exposing the extent to which they had captured the president and were making key ministerial appointments, the Guptas hired London-based PR firm Bell Pottinger to turn the tide of public opinion. It was at this point that racially inflammatory phrases such as “white monopoly capital” and “radical economic transformation” started spewing from the mouths of politicians. The intention was to stir anti-white tensions. We now know that Bell Pottinger dreamed up these phrases to deflect unwanted attention from their clients. This week Bell Pottinger’s CEO James Henderson issued some kind of an apology suggesting his firm had been played for fools by the smooth-talking Guptas.

“At various points throughout the tenure of the Oakbay (one of the Gupta companies) account, senior (Bell Pottinger) management have been misled about what has been done. For it to be done in South Africa, a country which has become an international beacon of hope for its progress towards racial reconciliation, is a matter of profound regret and in no way reflects the values of Bell Pottinger,” said the statement.

Whether Bell Pottinger can survive this remains to be seen, but the outrage across South Africa and beyond is something to behold. Even our billionaire deputy president and former trade union leader Cyril Ramaphosa, with one eye on the presidential post and another on the surging sea of anger, accused the PR firm of stoking racial tensions.

Defamation suits fly over mining controversies

Written by Ciaran Ryan. Posted in Journalism

This article first appeared in Moneyweb.

Mark Caruso, the CEO of Australian mining company MRC, has filed defamation suits against activists and lawyers opposed to mining ventures.

Social worker John Clarke

Australian mining company Mineral Commodities Limited (MRC) and its CEO Mark Caruso are suing six environmental activists and attorneys, including social worker John Clarke (pictured above) and environmental lawyer Cormac Cullinan, alleging the mining company and its CEO were defamed. Also being sued for defamation is Mzamo Dlamini, a spokesperson for the Amadiba Crisis Committee, an organisation formed in 2007 to stop mining of titanium in the Wild Coast area.

MRC has been involved in a long-running dispute with Pondoland community members over its plans to mine mineral sands at Xolobeni on the Wild Coast. Last year the Amadiba Crisis Committee lodged a high court application to have the Xolobeni Mining project on the Wild Coast ruled as unconstitutional. If successful, it will have far reaching implications for the mining industry in South Africa, as it will require companies to adhere to the international human rights benchmark of “prior, free and informed consent” of local landowners before any mining project can proceed.

Last year MRC announced its decision to disinvest from the Xolobeni Mining project and sell its shares to its BEE partner. It was originally granted a mining licence at Xolobeni in 2009, but this was revoked in 2011 because of unresolved environmental issues. Some environmental activists argued that MRC’s disinvestment was strategic, and will retain a crucial though low-key role in the mining project going forward. A new application to mine the area is currently with the Department of Minerals and Energy Affairs.

Also being sued for defamation are two attorneys at the Centre for Environmental Rights (CER), Tracey Davies and Christine Reddell, and activist Davine Cloete, who are accused of making defamatory statements about MRC’s subsidiary company Mineral Sands Resources (MSR) and its director Zamile Qunya during presentations at the University of Cape Town in January this year. This relates to comments during the presentation claiming poor environmental practices by the company’s Tormin mineral sands project on the West Coast.

All six are defending the summonses, claiming these are nothing more than SLAPP suits (Strategic Lawsuit Against Public Participation) intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defence until they abandon their criticism or opposition.

Cullinan, in his reply to the summons, says the defamation action constitutes an abuse of the court process, as “there is no reasonable prospect of a court finding that (Cullinan’s) statements constituted wrongful defamation…”. He defends his public statements as protected speech in that his comments were true or substantially true, a genuine expression of opinion, and in the public interest.

In papers before the Cape High Court, Caruso and MRC claim Clarke insinuated that the company was involved in the murder of Pondoland community activist Sikhosiphi “Bazooka” Rhadebe, who was gunned down last year by unknown assailants. This claim of defamation was based on an interview Clarke gave the Daily Maverick.

“The intention of (Clarke) in making the statements as aforesaid was to convey the innuendo that (MRC) had been involved in the murder of Rhadebe and resorted to criminal conduct, including murder, as a means of silencing and pressurising opposition to its operations and, by so doing, facilitating its ongoing operations, including the acquisition of mining licences,” says Caruso’s summons. “The innuendo is wrongful and defamatory of (MRC) and was made with the intention of injuring (MRC) in its reputation.”

Clarke, in his reply, says he was quoted inaccurately in the article and did not insinuate that MRC was involved in the murder of Rhadebe. Caruso appears to have doubled down on Clarke, expanding the numbers of defamation claims against him from seven to 18, representing a total damages claim of R5 million. This was after Clarke filed his response to the summons issued by Caruso and MRC.

Dlamini is also accused of defamation after apparently claiming in a radio interview that the company was involved in the assassination of Rhadebe.

Clarke has been an avid campaigner against mining on the Wild Coast, and often gets his message across in unorthodox ways (see below).

 

He says he never insinuated that Caruso or MRC were behind the murder of Rhadebe, though says his life has been threatened by certain community members opposed to the work he is doing (Moneyweb is in possession of the name of the individual alleged to have threatened his life).

Caruso also claims Clarke defamed MRC in a Cape Talk radio show when he accused it of human rights abuses, and of the “rapacious exploitation” of the Tormin mineral sands project, a beach sands project 400km north of Cape Town in which Caruso is involved.

Clarke replies that other than the misquote in the Daily Maverick, all other comments he made in respect of Caruso and MRC were substantially true and were made in the public interest.

Dlamini’s defence at this stage is largely procedural, claiming Caruso and MRC did not properly serve him with a summons.

The summonses served on the activists and lawyers claim MRC’s reputation has been damaged by the alleged defamations and it has suffered financial damage as a result. Clarke denies any financial damage has been suffered by MRC as a consequence of what he has said, and that any damage incurred was self-inflicted.

Cullinan, a prominent environmental lawyer based in Cape Town, is also accused of defamation over an interview he gave on Cape Talk radio where he alleged MRC was engaged in a policy of buying off certain traditional leaders as part of a colonial-style divide and rule tactic. Cullinan also alleged that lists of supposed supporters of mining activity in the area contained forged names as well as dead people. Caruso argues that listeners are led to believe that MRC resorted to “criminal conduct, including fraud, to overcome opposition to its operations at Xolobeni (where the mineral sands operation is based)”, and that it bribed and corrupted third parties to support its mining operations. MRC and Caruso are each claiming a total of R1.5 million from Dlamini and Cullinan.

King Shaka International – an airport in desperate search of passengers

Written by Ciaran Ryan. Posted in Journalism

This article first appeared in Noseweek.

First costed at R3.15 billion, by the time Durban’s King Shaka International Airport was completed in 2010, it had cost anything between R7.6bn and R9bn. This kind of cost overrun is chicken feed when stacked against Eskom’s Medupi and Kusile power stations, but it set in motion a chain of events that helps explain some of the bizarre decisions coming out of Airports Company of SA (ACSA). King Shaka is one of the nine airports managed by ACSA. In February, Minister of Transport Dipuo Peters fired half the board of ACSA, ostensibly to strengthen it, but left in place CEO Bongani Maseko who was fingered last year in a forensic report that detailed several instances of procurement irregularities.

This is just one instance of political interference in the running of ACSA. A far graver interference was the decision in 2006 to force ACSA to build the King Shaka International Airport without a feasibility study having been carried out and in defiance of all commercial logic. This decision lumbered ACSA with crippling debt which it has been forced to service ever since.

In March this year, minority BEE (Black Economic Empowerment) shareholders in ACSA brought an application before the High Court in Pretoria challenging the “commercially illogical” decision by the airports regulator to lower tariffs by 35.5%, which would cut revenue by R1.8 billion by 2018 and remove all prospect of the company’s being able to declare a dividend to shareholders.

The tariffs went into effect on 1 April, but the matter has now been placed under judicial review. These tariffs benefit airline operators and passengers, but not ACSA shareholders, who long ago gave up hoping for a decent return on their investment.

Just a few years ago, in 2011, when ACSA had completed a massive airport upgrade programme, it was granted a staggering 133% increase in tariffs by the regulator. Why would ACSA now apply for a reduction in tariffs? None of this makes much sense unless, as minority shareholders have argued, one understands that ACSA has abandoned its commercial mandate due to political meddling. Minorities want nothing more than to sell their shares back to the state and have been trying for years to do so at something approaching fair value. Instead they have been offered 40% of net asset value.

The only buyer for these shares is the government which, nearly 20 years ago, lured investors into ACSA with promises of privatisation and an eventual listing on the stock exchange. Based on these promises, it got Aeroporti di Roma (ADR) to purchase 20% of the company for about R890m in 1998, or R8.19 a share. This valued ACSA at about R4bn at the time. When it became clear the government had no intention of listing ACSA, ADR sold its shares to the Public Investment Corporation (PIC) for R16.75 a share, making a decent return on its investment. No such luck for the minorities, who have now turned to the courts for relief.

Dudu Myeni’s time at SAA may be up

Written by Ciaran Ryan. Posted in Journalism

This article first appeared in Moneyweb.

Dudu+Myeni+XXXHistory was made this week when the SAA Pilots Association (SAAPA) and Organisation Undoing Tax Abuse (Outa) brought an action to have SAA chairperson Dudu Myeni declared a delinquent director.

As far as is known, this is the first time legal action of this nature has been brought against a director of a state-owned company. Dudu Myeni’s time at SAA may soon be up.

Last year finance minister Pravin Gordhan demanded a reshuffle of the SAA board as a precondition for extending a R15 billion guarantee to the technically bankrupt airline, but mysteriously left Dudu Myeni untouched. Her tenure as chairperson at SAA is up for review in September this year, so she may have vacated the chair by the time the legal case is argued in court. But SAAPA and Outa say they will pursue legal action against her regardless.

Should SAAPA and Outa win their case, Myeni will be barred from holding an executive or director position in any South African organisation for at least seven years. That would mean she would have to resign as chair of the Jacob Zuma Foundation and the SA Association for Water Utilities. In December last year the Kwazulu-Natal High Court ordered her to step down as chair of the Mhlathuze Water Authority for unlawfully extending the board’s tenure by six months.

We now know from Outa’s revelations surrounding SAA and the court case brought by Mhlathuze Water Authority’s suspended CEO, Sibusiso Makhanya, that Myeni has a habit of purging management and board members who get in her way. She’s done the same at SAA. The airline has had more than half a dozen CEOs in as many years, including Vuyisile Kona and Nico Bezuidenhout, virtually all of them departing in acrimonious circumstances. Meanwhile, the losses continued to mount.

The latest court case is likely to be a drawn out bare knuckle fight to the death. Myeni will argue – as she has done already – that reactionary forces within the airline are opposed to transformation, of which she is the champion. It’s always someone else’s fault. She went so far as to publicly attack her own pilots as spendthrifts living high on the hog in foreign destinations.

South Africa’s great road swindle

Written by Ciaran Ryan. Posted in Journalism

Joburg highwaysThis article first appeared in Noseweek (March 2017).

It’s long been known that South African motorists have been fleeced when it comes to road construction costs, but by how much has always been a matter of speculation.

Now we have a better idea. The Gauteng Freeway Improvement Project (GFIP) to upgrade the highways between Joburg and Pretoria, originally costed at R4,6bn in the mid-2000s for a 340km upgrade, ended up costing just shy of R18bn for 193kms. After a year-long study involving whistleblowers, road engineers and quantity surveyors, Organisation Undoing Tax Abuse (Outa) concluded that the 193km freeway improvement project should have cost no more than R8bn, even allowing for cost escalations and other contingencies. That’s a R10bn overcharge, enough to build 40 Nkandlas (the name of President Jacob Zuma’s taxpayer-funded private residence in Kwazulu-Natal).

The client in this case was none other than SA National Roads Agency (Sanral), which paid an average of R86.6m per kilometre, between two and three times what comparable roads in Africa (and SA) would cost.

If the R10bn cost overrun is correct – and several industry insiders claim it is – how did the construction companies pull it off? And why are no construction executives in jail for this swindle?

In 2006 there was a secretive road contractors meeting attended by Basil Read, Concor (part of Murray & Roberts), Haw & Inglis, Grinaker LTA and Raubex where the colluders agreed to allocate tenders for the construction of roads. At this meeting it was also agreed that those firms not interested in winning tenders would nevertheless submit “cover bids”, which are sham bids intended to lose while lending legitimacy to the tender process. The losers would receive compensation, or “loser’s fees”, from the winners.

How we miss Mbeki and Manuel

Written by Ciaran Ryan. Posted in Journalism

Their economic record beats anything that came before or after

This article first appeared in Moneyweb

Former SA President Thabo Mbeki

Former SA President Thabo Mbeki

If we are to measure our political leaders on economic performance alone, Thabo Mbeki was our best president in the last 30 years, and Trevor Manuel our best finance minister.

As the accompanying graph shows, President Jacob Zuma has been bad for growth, but arguably better than FW De Klerk, who had to contend with the tail end of apartheid and international sanctions – which deprived SA of the capital it needed for growth and investment.

President Nelson Mandela had a mixed performance, with economic growth veering between -2% and +2%, for many of the same reasons confronted by De Klerk. Foreign investors remained wary of SA’s democratic experiment, as shown by the sluggish growth in foreign direct investment (FDI), until Mandela ventured overseas and exercised his considerable charm in enticing investors to these shores. But it was Mbeki who reaped the benefit of Mandela’s international outreach. Under President Zuma, FDI growth has come to a virtual stall.

Mbeki delivered the most consistent economic growth – admittedly helped by a commodity boom which ended abruptly as his term of office came to a close in 2008 – and Trevor Manuel as finance minister for 13 years, until 2009 delivered the lowest budget deficits. Manuel’s steady hand on the fiscus was likewise aided by the aforementioned commodity boom, which fattened tax receipts and reduced the need for large budget deficits.