When Public Governance Skeletons Threaten to Come Out All At Once


A few months ago I wrote an argument that contrary to the vanilla view of journalism as the transmission of stories, it is political warfare over public opinion.  That came to mind as I read BDLive’s Steve Friedman complaints about how the “indiscriminate use of leaks” endangers truth.  “Political battles in this country are fought through leaks: politicians and officials use them to strengthen their position and weaken opponents.”

He was responding to rumours that Finance Minister Pravin Gordhan was facing “imminent arrest,” which would leave the way open for President Jacob Zuma to insert Eskom CEO Ryan Molefe as Minister and replace whistle-blowing Deputy Mcebisi Jonas with Sfiso Buthelezi.  These individuals have been rumoured to be Gupta puppets.

Friedman’s main problem with the leaks’ approach is that it can muddies the water.  But he underemphasises what’s achieved through pre-emptive journalism: although risky, the well-timed publication of a leak can send out the message to the Powers-That-Be that their plans have been prepared for.  Dropping an innocent question like, “Are plans afoot to move SAA from the Finance Ministry to Presidency?” into the public sphere is a gamble, but it can scare rogue politicians off their plans.

The Presidency wasn’t pleased with the Gordhan arrest leak, calling it “the work of dangerous information peddlers who wish to cause confusion and mayhem in the country.”  He never mentions names, but a subsequent analysis was written by “information peddler” Ranjeni Munusamy.  “Gupta hidden hand behind Gordhan ‘arrest’ and how Zuma could be co-accused on SARS ‘rogue unit’ case,” announced the mouthful headline.  Tellingly, the piece begins with an if statement that creates a Zuma-sized shield around Pravin Gordhan: “If Finance Minister Pravin Gordhan and others, including former minister Trevor Manuel, are arrested, President Jacob Zuma might inadvertently be drawn into the case” (italic mine):

“Daily Maverick has established that Zuma, then deputy president, was at a training course for senior intelligence heads at the intelligence academy in Mahikeng in 2001 where the restructuring of the state intelligence services and co-operation between the agencies were discussed.”  Zuma could be an accomplice in the creation of the SARS “rogue spy unit.”

Echoing Julius Malema’s words that “Zuma must not know who is going to be arrested and who is not going to be arrested.  It is not his job.  So the day he says the rumours are wrong then he is confirming that he is interfering,” Munusamy says, “It appears that the politically connected Gupta family had special insight into the Hawks investigation and possible changes to the Cabinet as a result of the imminent arrests.”  These voices are hinting that much that is wrong with our country runs through Zuma to the Guptas.

I’ve said that the more damaging they’re likely to be, the more likely enquiries against the Guptas are to be suppressed – referring, as examples, to the dairy farm inquiry and the SAA fraud issue, both at the Public Protector’s Office with nary a peep on these reports’ progress.  I am not at liberty to say how I know because that’s another journalist’s story to break.  But I do know that, probably without Thuli Madonsela’s knowledge, the PP’s Office is playing shocking games with the fraud report on Lindi-Nkosi Thomas.  Previous speculation as to why it would do that (advocates looking out for one another?) may be wrong, but the core suspicion isn’t.

At any rate, its release would be a formality; the person implicated has confessed, without consequence to herself.

The report revolves around the dismissal of four SAA employees.  It’s been speculated that when she was on the SAA Board and had ulterior motives for getting them out of the way, Advocate Nkosi-Thomas rigged the outcome of a deliberation on the legality of their employment contracts by doctoring Acting Head of Legal’s opinion.  The original opinion was that the contracts could not be terminated.  Nkosi-Thomas said she altered the opinion with Head of Legal’s permission.  Head of Legal signed an affidavit indicating such permission was never given, stating she was concerned about her professional reputation because of the altered opinion.

“The Office of the Public Protector told News24 that SAA had asked it to halt its investigation into Nkosi-Thomas, pending a fraud case against her that was subject of a police investigation,” writes Amanda Khoza.  How could SAA ask an investigation against it to be halted?

“The public protector had been investigating complaints that [Advocate] Nkosi-Thomas allegedly doctored a legal opinion during her tenure at the SAA board.  However, neither the National Prosecuting Authority or the police could elaborate on the case.  NPA spokesperson Luvuyo Mfaku had no knowledge of the matter.”

How do so many things just disappear and go mum?

This is no impediment: where her sources appear uninformed, Khoza isn’t.  Telling Nkosi-Thomas’s story, she says “she proceeded to amend the opinion in line with [their] agreed legal position as supported by the draft letter to the chairperson.”

The draft letter supporting her allegation that there was an “agreed legal position” has not been seen.  Again, we only have Nkosi-Thomas’s word that her reasons for committing fraud were good.

“This [action] was to later become the basis of the fraud or forgery allegations reported to the SAPS, the Public Protector, the Johannesburg Bar Council and the General Council of the Bar,” explained Nkosi-Thomas.  “One of the consultants challenged the termination in the Labour Court of South Africa, unsuccessfully.  This was yet another vindication of my legal advice to the board of SAA.”

She’s wrong on two counts.  The first is it wasn’t one, but two, challengers.  The other is that the merits of the case were never argued in court.  Contrary to her insistence that her Nkosi-Thomas’s actions “saved SAA from fruitless and wasteful expenditure,” they have set SAA up for a hellacious legal and economic experience that will have adverse knock-on effects on the country.  She says, “‘As a member of the Bar of 22 years standing, I would do it all over again, given another chance” (bold mine).

But if you look at every reason those four contracts were terminated, even if they are true, they have nothing to do with wrongdoing on the employees’ part, and everything to do with technicalities on SAA’s side.  The question to ask is this: what did those SAA Boardmembers think they could hide by terminating the contracts unlawfully?  How big must that secret be for SAPS Commercial Crimes, the NPA, the labour court and the PP’s Office to play along?

If Joe Soap works at Local Factory and it’s found that the contract he was offered was null, the issue is that Local Factory is offering contracts it shouldn’t be offering.  It’s not that Joe Soap breached or nullified it himself.  As a result, a damages’ claim has been filed against SAA.

If and when this case goes to court, various witnesses could be issued subpoenas to testify under oath.  Electronic communication could get dug up.  SAA’s smallayana skeletons, relevant to that single fraudulent action, would all be trotted out for the public record.  We would find out just how far the corruption goes.  And once speculations are proven to be facts, they’re harder to spin, crisis-manage or damage-control.

And the media will most likely paint it as Dudu Myeni’s fault – a claim that may then be proven to be very true, given the associations those subpoenas prove.  Myeni’s friendship with the President would become even more of a liability for him, the ruling party and National Treasury.  Given various persons’ claims that the ultimate beneficiaries of all criminality were the Guptas, Treasury loses the work thus far done by Gordhan to anchor himself to the Finance Portfolio by winning big business’s trust.  They’d realize the government is a house more divided than previously thought.

Depending on when the case is heard, the ruling party also runs the risk that their President could be proven to be in relationships with Dudu Myeni and the Guptas that are detrimental for the country, in an election year.  Pravin Gordhan didn’t name any names when, after his appointment, he called some boards arrogant and accused individuals of using state-owned enterprises as their personal toys.  This would show who he was speaking of.

The South African legal profession, judiciary, SAPS, NPA and Public Protector would come under scrutiny.  Webs of corruption spanning the entire government would be pulled up into the light.  Nkosi-Thomas would again be proven a legal disaster.  As she threw the government under the bus in the Constitutional Court, her “shielding” SAA would have thrown SAA along with the country under the bus as well.  For her part in this, the parallels to Nkandla are staggering – and possibly bound to be replayed for all of us.

There will be then even more public outcries about “fraud,” “state capture” and “patronage network.”  Depending on how media handles the narrative, it might be the straw that tips us over into a credit rating downgrade.

As a non-executive director, Advocate Nkosi-Thomas did not “shield” SAA or have her opinion vindicated at the labour court: because it has yet to be heard, she stands to have it questioned at a court that may root out whose behalf she was acting on.  Because of her, the airline’s dirt and its corrupt influence over other arms of government could come to the fore.  Her “protection” will probably backfire.

The airline should learn from National Assembly’s repetitional losses.  Seeing that in this instance Nkosi-Thomas’s advice was someone else’s altered fraudulently, as she’s admitted, it could spell disaster for SAA.  And all of us.

If National Treasury is serious about cleaning up SAA’s image, it would investigate and take the necessary disciplinary steps stipulated in the Public Finance Management Act.

The rest of us never signed up to be “defended” through Nkosi-Thomas’s shifty and shady techniques.  Yet, it appears we are.

Follow and retweet @SKhumalo1987


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