Was somebody like advocate Motau required to provide every person implicated in his VBS bank heist report with an opportunity to give their side of the story because they were implicated in his report? Or can one argue that advocate Motau did not in fact pronounce on their legal culpability as this was left for other bodies to decide but merely implicated them in wrongdoing?
Pierre de Vos, Constitutionally Speaking
31 October 2018
One of the most telling signs that a person implicated in wrongdoing is guilty of the wrongdoing, is when that individual fails to deny the specific allegations or findings made against him or her, and instead complains about procedural irregularities in the investigation against them or raise counter-complaints about the behaviour of others in a transparent attempt at “whataboutery”. Most politicians and businesspeople in South Africa are past masters of this technique which they use to distract attention from the original findings or allegations made against them. It is important for citizens not to be misled by this.
Tom Moyane, Patricia de Lille, Siyabonga Gama, the ministers and other politicians who spent quality time at the Saxonwold Shebeen, those implicated in the VBS bank heist, or any number of executives at KPMG, Bain Capital and Gartner – all of them have one thing in common: instead of comprehensively and emphatically denying the allegations or findings of wrongdoings against them, they use diversionary tactics to paint themselves as the victims of a “conspiracy”.
There is hardly a corrupt South African who has not claimed that he or she is the victim of some conspiracy by “dark forces” out to “smear their good name”.
It is for this reason that whenever a newspaper publishes allegations that an individual is involved in corrupt activities or is implicated in other wrongdoing, I carefully study the response of the implicated person. Similarly, when the NPA charges an individual with corruption or a report is published implicating an individual in corruption or other wrongdoing, I also carefully study the implicated person’s reaction.
When such an individual unequivocally and in some detail denies all the allegations or findings against him or her, I tend to give that person the benefit of the doubt. (“I never directly or indirectly received any money from X or any company associated with X”; “I never did any favours for X or one of her companies in return”; “I have never communicated with X or any representative of X, either in person or electronically”; “I never interfered improperly in any way in the awarding of tender X or the appointment of Y”.)
But knowing that implicated individuals who have something to hide often deny something that was not specifically alleged, I also carefully scrutinise their non-denial denials. For example, you may be accused of receiving money through a money laundering scheme. The allegation would be that you received money indirectly from X through a third party (let us call this third-party Y). Then you deny that X ever paid any money into your account, thus denying something that was not in fact alleged, but not denying that you received money from X via Y’s bank account.
Of course, I also scrutinise the allegations and findings themselves to assess whether they are credible. As I am not a presiding judge bound by the requirement to presume somebody innocent until proven guilty (but merely a citizen assessing the credibility of public figures to form an opinion about them) I do not require proof beyond reasonable doubt to form the opinion that somebody is guilty of wrongdoing. However, I do believe it is the responsibility of citizens (even those of us who are not judges and have no duty to presume somebody innocent until proven guilty before a court of law) to evaluate allegations of wrongdoing carefully and to ask whether they are credible or not.
How specific and detailed are the allegations? The more detailed the allegations, the more credible they are. Are the allegations based on WhatsApp messages, financial statements, official reports, or confirmed by multiple sources? Or do these allegations appear to have been leaked by one source who has an axe to grind against somebody?
When these reports or allegations are credible, the response of the implicated person often sways my opinion either in their favour or against them. In making these assessments, I am aware that there are many tricks implicated people use to create the impression that the allegations or findings against them are spurious. The ones listed above are only the tip of the iceberg. As citizens we should be alert to these tricks and should not easily fall for them.
From a legal perspective, one of the most often used and effective methods used by implicate people to defend themselves is to argue that the person who investigated a matter or compiled a report that implicated them in wrongdoing or corruption did so in a procedurally unfair manner. Often, the implicated person threatens to go to court, either to sue the person making the allegations for defamation or to challenge the procedure used to compile the report.
This is a tactic which is now being used by some individuals implicated in the report of advocate Terry Motau about the looting at Vele investments and VBS Bank. Because advocate Motau had chosen not to interview all the implicated persons, some of them (and their supporters) have argued that the conclusions and recommendations in the report should be ignored because the process followed was procedurally unfair and hence unlawful.
The problem with this argument is that it fails to address the larger question, namely whether the allegations or findings contained in the report are true or not. Even when an investigative process was not procedurally fair, the findings could still be correct. A report finding that you received money in a corrupt manner could have been compiled without hearing your side of the story but could still be correct in every respect.
When a person challenges the accuracy of findings by invoking unfair process that person is not in fact challenging the accuracy of the findings at all. It is important for citizens to remember this as they assess the credibility of those implicated in wrongdoing and corruption.
Sometimes the individual may even have a legal case as our law is rather murky on when an investigation has to comply with the rules of procedural fairness and when not. But even when they have a legal case on procedural grounds, this says nothing about the accuracy of the allegations or findings made against them.
What does the law say on this matter? When would investigators have to comply with the procedural fairness requirements contained in the Promotion of Administrative Justice Act (PAJA)? The answer depends on whether the investigation has the capacity to affect the legal rights of those being investigated.
In the early Constitutional Court judgment of Bernstein v Bester that court held that an investigation into the affairs of a company probably did not fall within the scope of administrative action, because such an investigation was not aimed at making a binding decision. As the Court held:
I have difficulty in fitting this into the mould of administrative action… The enquiry after all is to gather information to facilitate the liquidation process. It is not aimed at making decisions binding on others.
If one were to follow the logic of this judgment, an investigation would seldom be subject to the rules of procedural fairness as somebody else (not the investigators) would be required to make a binding decision that could affect the rights of the implicated individual.
This principle seems to have been extended somewhat in Viking Pony Africa Pumps (Pty) Ltd t/a Tricom Africa v Hidro-Tech Systems (Pty) Ltd and Another where the Constitutional Court held that it would depend on the facts of each case whether the rules of procedural fairness would apply to an investigation. In other words, one cannot say definitively that every investigation must follow the rules of procedural fairness and must allow implicated parties an opportunity to provide their side of the story, but neither could one say that an investigation never had to comply with these rules. As the Court held:
Detecting a reasonable possibility of a fraudulent misrepresentation of facts, as in this case, could hardly be said to constitute an administrative action. It is what the organ of state decides to do and actually does with the information it has become aware of which could potentially trigger the applicability of PAJA. It is unlikely that a decision to investigate and the process of investigation, which excludes a determination of culpability could itself adversely affect the rights of any person, in a manner that has a direct and external legal effect.
However, the Court held that an investigation which “pronounce on the culpability” of an individual or organisation would have to be afforded the opportunity to that individual, in terms of PAJA, to make whatever representations they may wish to make. Similarly, if the individual or organisation were “found guilty”, then the relevant provisions of PAJA would have to be invoked before an appropriate sanction is considered and imposed.
What does this mean? Was somebody like advocate Motau required to provide every person implicated in his VBS bank heist report with an opportunity to give their side of the story because they were implicated in his report? Or can one argue that advocate Motau did not in fact pronounce on their legal culpability as this was left for other bodies to decide but merely implicated them in wrongdoing?
The court will have to decide on this question, after looking at all the facts, including the specific manner in which the report was written.
If the court decides to review and set aside the VBS report, those implicated will of course argue that they have been “vindicated”, or that they have been “smeared”, or (in the extreme case) that the court had held that they did nothing wrong. But such claims would continue to be false. All the court would have done would have been to say the correct procedure was not followed in compiling the report.
The findings contained in the report might be set aside, but it would not wipe the criminal activity detailed in the report from the face of the earth and would not, in fact, exonerate any of the people implicated in the report from wrongdoing.
Never forget that.