Journalists fail to trial Julius Malema

The lengthy interrogation of Economic Freedom Fighters (EFF) leader Julius Malema, which you can watch here, was largely inadequate. The reason could be that the journalists who have been investigating Malema were not the ones questioning him. The political journalists in attendance, Matshidiso Madia, Mahlatse Mahlase, Samkelo Maseko, and Aldrin Sampear (who performed best among the rest) struggled to uncover any new information or concessions. Some of their questions were sloppy and if anything, they only emboldened Malema’s claim that he is being unduly targeted by the media. This brief will summarise, with comment, the events.

EFF Spokesperson, Vuyani Pambo, explained that journalists would be allowed to question and interrupt Malema. Malema started the proceedings by explaining the absence of investigative journalists Pauli van Wyk and Micah Reddy, who have written extensively about Malema’s corruption scandals. Already, this was a problem. Earlier, Pambo explained Eusebius McKaiser gave in an apology. Several more journalists were also able to participate via a WhatsApp group.

Malema’s 2012 Corruption Scandal

First, let’s explain Malema’s 2012 corruption scandal because that was the first matter under interrogation. Malema was President of the African National Congress (ANC) Youth League (ANCYL) from 2008 to 2012. This scandal broke in the final days of his tenure.

In 2012, The Office of the Public Protector issued a report, On the Point of Tenders, which proved that a tender given to On-Point Engineers (Pty) Ltd (On-Point) by the Limpopo Department of Roads and Transport (Department) was improper. The report did also explicitly state:

Whether the awarding of the tender also constituted a violation of the Prevention and Combatting of Corrupt Activities Act, 2004 is a matter that should be further explored by the Directorate: Priority Crime Investigation of the South African Police Service and the National Prosecuting Authority

On the Point of Tender, Section 8.2.31

The Ratanang Family Trust received R2 170 000 overall from On-Point paid out in dividends between October 2010 and May 2012. The report shows that the money for these dividends could only have been sourced from the Department tender. The report concludes:

As a Trustee of the Ratanang Family Trust, Mr J Malema was therefore also put in an advantageous position as his family was supposed to benefitted from it.

On the Point of Tender, Section 8.4.4

Back in 2011, the ANCYL, which he led, publicly acknowledged the Ratanang Trust. Since then, it appears Malema has always conceded that he benefitted from the tender. The real concern is whether that tender was a violation of the Prevention and Combatting of Corrupt Activities Act, which is yet to be proved.

In this context, what questions can a political journalist even ask Malema?

Maseko did try some approach saying that the tender “impacted on [Malema’s] financial and economic upward mobility in life” claiming he would get “some sort of proceeds from the profits that would be generated on that contract.”

Malema responded that this was undisputed and that he did make money. “The matter of whether On-Point got a tender rightfully or wrongfully is now before court.” Malema is correct here. The Public Protector report concludes this too.

Maseko asked the wrong question here, especially because Malema does not deny his benefit. Prior to Maseko’s question, Malema explained that the National Prosecuting Authority (NPA) had constantly postponed a trial into the On-Point tender and that currently he was not being charged by the NPA because he was not involved in the awarding of tenders. Maseko’s interjection was not helpful in developing or challenging this point — and resulted in no new information or concessions.

If anything, it emboldened Malema to claim he was being unfairly persecuted while the Department, who were the ones who gave the contract, are ignored. “All these people who presided over that government are today Ministers or Deputy Ministers.”

“Where have you ever seen a situation, rather, where the corrupt get charged but there is not the corruptee. No one is charged from the collapsed government of Limpopo — the person who has enabled that corruption in Limpopo.”

Julius Malema in response to Samkelo Maseko’s question on the Ratanang Family Trust and On-Point tender scandal

VBS Communication

Immediately, proceedings moved to whether Malema had communicated with executives of VBS Mutual Bank. Malema denied he had ever communicated with any of them, except former VBS and Vele Investments chairperson, Tshifhiwa Matodzi, further claiming that the authorities have reviewed all of his communications.

Matshidiso Madia stated here that “EFF was seen as critical” by VBS executives. “Have you not asked yourself why… why would they look at your party?”

Malema’s response was to say “there’s no any form of communication in Vele, in VBS, in any of the evidence displayed by you where they describe EFF as being strategic.”

In November 2018, Pauli van Wyk of the Daily Maverick wrote an article which claimed “A leaked Whatsapp discussion between VBS kingpin Tshifhiwa Matodzi and a bank manager described Sgameka as an “extremely strategic account””. Brian Shivambu is the director of Sgameka Trading Pty Ltd and was outed to have received R16 148 569 from VBS Mutual Bank. This was recorded in the The Great Bank Heist: Investigator’s Report to the Prudential Authority by Advocate Terry Motau SC and Werksmans Attorneys.

A good response here would have been to tell Malema that WhatsApp messages showed that Sgameka was strategic and from there work around to see if there are indeed links between Sgameka and the EFF, as van Wyk reports. The journalists did not do this.

Instead abandoning this cause, Mahlase brought evidence of a different SMS by Floyd Shivambu to former South African Finance Minister Nhlanhla Nene and a press release by the party. Both of these tried to prevent the bank from being placed under curatorship.

Malema’s simple response: “VBS was supposed to be rescued because it was one of the black banks.” Mahlase doubled down on why the EFF opposed curatorship “when so many people have lost their money and clearly there was mismanagement of that bank.

There are still hundreds of old people, pensioners who have lost their life savings and today you are still saying, in principle, they should never have put it under curatorship.

Mahlatse Mahlase questioning the EFF stance in support of VBS Mutual Bank.

Mahlase is criticising the stance of the party. Perhaps, she is trying to show that them having this stance proves that they were involved in the alleged mismanagement of funds. But that’s not an infallible link and Malema’s reponse is simply: “rescue a black bank; arrest the criminals, hold them accountable; recover the money and pay the depositors.”

Again, the journalists chased an unnecessary lead. There is no new information or concession to be learned by simply asking why the EFF has a stance, especially when they have repeatedly explained their stance.

It is worthwhile having the debate about whether the bank should be closed down, but those are considerations of ideology and policy, rather than conversations that help us understand the facts of EFF involvement.

But Mahlase instead doubles down asking, “Did you defend it because you knew they were people close to you that were benefitting from VBS and you were trying to protect that and by extension, you were also benefitting?” This is certainly a possibility but journalists should be worried with proving possibilities, not just asking politicians what they think about possibilities.

It also leads to Malema’s obvious response: “I am giving you an opportunity to present to me and to the country an evidence of me taking a political position because I am benefitting out of it.” (This is not true as we find out soon. When presented with evidence, Malema will hide behind court processes.)

Suspicious Bank Card

Eventually the proceedings, now 17 minutes in, moved onto the first real form of evidence. Maseko queried about a bank card, linked to the VBS heist, which Pauli van Wyk accuses Malema of having used.

In van Wyk’s article about the bank card, released in September 2019, she states that Malema and the EFF did not respond to questions related to the story. Those findings, if true, are scathing. It is proof that money funneled from VBS was spent by Malema at various sites and on various items, including luxury goods. The full list can be found in van Wyk’s unanswered questions.

The card in question belongs to Malema’s relative, Matsobane Phaleng. Both Phaleng and Malema have claimed that all its spending is done by and for Phaleng. Malema stated that that authorities could investigate this spending. “Every business premises has got cameras. Let them go and check there. They will never find me.”

“Scorpio attempted to get video footage from several shops where the acquisitions were made. Some of the shops delete their video footage every few months, and some cited legal considerations or fear for getting trashed as a reason for not sharing their footage with Daily Maverick.”

Pauli van Wyk’s VBS Heist article on 08 September 2019

Certainly, it is very suspicious that in many areas where Malema is present, this bank card has recorded purchases. Malema’s defence that he and his relative spend a lot of time together is convenient and van Wyk only has an anonymous source to corroborate Malema’s presence at a store.

Here, in the absence of footage, the only court is public opinion. The journalists could go through each location, asking Malema to confirm if he and his cousin were at that particular site at the same time. It’s unclear if he would simply state he can’t remember or revert back to his general remark that they are always together. But at least they could interrogate him on the facts of each case, which would bring about new and useful information and a recorded response for each payment. They do not do this.

The strategy switched to asking Malema to undergo a lifestyle audit, which could prove these claims. Malema asked why that would be necessary and Maseko’s response was that Malema could confirm distance to his associate’s spending, which apparently compromises him.

There are two issues with this approach. First, the burden here is on the journalists to prove that Malema unduly benefitted from the heist. The burden for Malema is to prove his innocence in relation to specific claims made by journalists. So they should make those specific claims. Second, Malema refusing a lifestyle audit is suspicious but does not confirm anything about his relationship to the VBS heist so we gain no new information or concessions.

Malema’s response was just that his associates are business people and stated that they answer for themselves. “Are you saying it’s okay for your cousins to compromise you?” Maseko asks. Malema is unbothered — obviously. This question again makes no specific link between Malema and the heist.

Madia then argues that Malema is the sort of person who would want to defend his image. Malema’s response is that his associates know the laws of South Africa and if they did anything wrong, they would be held accountable.

The entire affair of the bank card moved away from whether Malema did in fact benefit to whether Malema should distance himself from his associates. Unlearning from earlier errors, Mahlase asks another general question. “You are stating categorically that you have never enjoyed any of the money that was looted from VBS?”

“Mahlase, you have got the platform. Put it to me,” Malema responds before claiming he has not benefitted “any cent”. Malema challenges Mahlase to present her version of events if she disagrees.

Mahlase asks another general query, “Did you at any point benefit from the use of that credit card?” Malema’s response quite simply is that he wouldn’t know because if someone else paid for a meal (his example) it’s not as if he would know which card they paid with.

A sudden move to whether Mahuna is a slush fund

Perhaps spurred on by conversation about the card, 27 minutes in, the journalists ask directly about Mahuna Investments. Maseko states, “There is a proven payment from Sgameka which received a payment from VBS into Mahuna.” Unknowingly Maseko has shifted the entire conversation away from VBS.

Malema claims that Mahuna Investments received money from various sources, not just VBS Mutual Bank. This is also based on a misstep by Maseko who states that Mahuna is active in various areas.

Maseko goes on to ask about more irregularities at Mahuna, pursuing the claim that Mahuna is a slush-fund, as reported by Stefaans Brümmer and Micah Reddy from amaBhungane. This is worth pursuing, but Malema used that point to distance Mahuna from VBS. More than this, Malema claimed that he (and the EFF) were not involved in Mahuna’s transactions. The major controversy surrounding Mahuna was how it received a payment from a beneficiary, Hendrick Kganyago, after Kganyago received a City of Tshwane tender to supply fuel for three years.

Malema argued that Tshwane had a DA mayor and DA administrators. amaBhungane did prove that the Hendrick’s Kganyago’s relative, Stanley Kganyago, was involved in the process to award the fuel tender. Malema simply claims that Kganyago’s company was involved in tenders prior to the EFF being formed.

The journalists should have pressed Malema more on the link between the EFF and Mahuna, rather than on the fuel tender itself. There is already sufficient proof that there were irregularities with regard to the fuel tender. In fact, the Pretoria High Court set aside the tender. The important question is on whether Mahuna received payments from Kganyago and why — and if any of that money reached Malema and the EFF.

Malema concludes that Mahuna’s money does not come from VBS, but rather “all types of sources”. At Mahlase’s insistence, Malema concedes that Mahuna received money from Sgameka.

Missed Opportunity on Sgameka

With Malema’s concession that Mahuna received money from Sgameka, the journalists should have showed him the proof that Sgameka’s money could only have come from VBS, as van Wyk reports:

It is crucial to note that Sgameka Projects was not a legitimate company and provided no legitimate service to anyone. The only money it ever received was derived from VBS Bank. The company offered no service in return, paid no taxes and employed no staff. Everything flowing out of Sgameka Projects is, therefore, proceeds of crime. Sgameka Projects paid a total of R4.8-million in several tranches to Mahuna Investments, the company’s VBS bank statements show.

Pauli van Wyk’s VBS Heist article on 08 September 2019

They miss this opportunity. Instead they let Malema claim he will resign all positions from the EFF if it’s proven that he issued any municipality to put money into VBS Mutual Bank. From there, Maseko accused Malema of deflecting and a back-and-forth ensued where both parties challenged who was running the show and Maseko threatened to walk out.

Then Maseko continued to challenge Malema on some of the payments made to Mahuna with regard to the fuel contract. Mahlase again asked if Malema is concerned that people close to him are implicated. “That’s why I asked them” was Malema’s response. They doubled down asking what Malema asked them. This gave him another opportunity to deflect by talking about agricultural projects in Limpopo.

They weren’t the right journalists

At 36 minutes, Aldrin Sampear joined the interrogation. His first remarks, “My problem with what’s currently happening is that we are not really the lead reporters.”

Mahlase adds, “we are political by our very nature and we are asking questions that we have based on investigations that our colleagues in the industry have done” She goes on further to argue that the EFF should reverse the ban media publications so they can ask further questions “because they need to be able to do their investigation and you need to be able to allow them”.

Then a conversation ensues where Malema calls the banned journalists criminals and states that he does not trust the press ombudsman. This brought in a wider debate about media trust, especially journalists allegedly paid by crime intelligence.

The journalists asked a few questions about Floyd Shivambu and Hawks investigations, which Malema deflected. Madia asked if the EFF ever received a VBS donation. Malema denied this, claiming van Wyk would have exposed this.

Sampear’s first question was on whether reports on this matter discredited EFF which Malema agreed to, claiming the reports did not want accountability, but smears.

Using this, Sampear asks if the EFF has internally investigated VBS — a good question! Malema revealed that EFF was linked to the scandal due to Sgameka and Brian Shivambu. Sampear asked if there is a report. Malema said there isn’t. Sampear asked why not. Malema revealed they simply deliberated in a meeting and concluded. 49 minutes in, we’re starting to get new information — there is no internal report.

Madia also jumps in asking if Malema knows for certain there were no VBS donations, given the lack of a report (Notice how the same question is improved by a better approach). Malema said they went through bank statements. “Do you not think it was worthy to even appoint an external person — an auditor?” asks Mahlase.

“They ought to be prima facie evidence” Malema responds. Malema is only willing to institute an internal investigation once an external investigation, especially in the courts, is successful.

That’s where the wheels fall off again and Maseko states they should try have a “cordial conversation” despite none of them being investigative journalists. Sampear then stated his approach was to not focus on Pauli van Wyk’s investigation. From here at 55 minutes, the interrogation starts to take a sensible approach until ending an hour later.

The bulk of the conversation from here until 1h30 was Sampear and Madia asking about various findings, especially the Public Protector’s report and Malema’s relationships to implicated parties. To all these findings, Malema claims first, none of his friends have been found guilty and second, no charges have been brought against the EFF or Malema.

At this point (1h30m), it’s clear that up until Malema is formally charged, his defense will be that he should be charged. In fairness, this is a sensible argument. If indeed, he has acted illegally, there should be a thorough investigation and trial. The issue perhaps is that there is not enough information to charge Malema — yet. That does not mean he is innocent. It just means that the information which could confirm the reporting are kept private.

Malema, finally in a corner

In December 2019, Kyle Cowan reported on an affidavit from a former On-Point employee which alleged that Malema received funds from On-Point, which paid for (among other things) a black Mercedes Benz Viano minibus, bodyguards and a property upgrade. This was due to Malema’s relationship to On-Point’s Lesiba Gwangwa.

At 1h33 into the interrogation Madia asked specifically about the Viano. This is important because Malema previously refused to answer Cowan’s questions. Malema confirmed that Gwangwa has a Viano but denied that it was bought for Malema. He confirmed the property upgrade stating it was funded from his dividends. He further said he never had private bodyguards, only from the ANC and then later the state.

Then Malema made a slight concession. “Lesiba’s money was my money. On-Point’s money was my money. So if On-Point is on trial…” (he was cut-off from finishing.) But this claim might challenge a perception Malema made to Sampear just moments before:

“The matter is before the court. As you know, the NPA has taken a decision to charge some of my colleagues … Nowhere in Public Protector’s report will you find her saying Julius or Ratanang influenced the tender in a corrupt manner. All the findings she makes is that the Ratanang Trust benefitted money from this company (On-Point) and this company got a tender wrongly.”

Julius Malema explained that On-Point, not Ratanang, acted illegally.

What’s the problem here? Malema first distanced himself from On-Point entirely, but is now confirming that On-Point’s money is his money — which is very cryptic. Maseko pressed him on what he meant here — good move. Malema said he would pay back that money if it was found to be acquired illicitly. (Not a very convincing stance)

Sampear again put Malema in a tight spot asking about the findings of the Public Protector report. One such finding was that On-Point lied about its turnover. “As the shareholder, do you know whether the company making a R2 million turnover?” Sampear asks. Malema said he does not know but the matter is before court.

Sampear then asks if Malema about dividend payments from On-Point. Malema’s response was that he did not know. “Did you set off a firearm?” Sampear asks Malema about his firearm scandal. “The matter is sub judice,” Malema responds. That means it is under a judge.

Sampear compares this response (by referring to court process) to how Malema freely spoke out about his charges due to calling for land invasion. In this case, Malema did not maintain silence despite the matter being in court. Sampear points out that contradiction. When asked again about the firearm discharge, Malema repeats, “I will not be pleading guilty. The matter is sub judice.”

“I am not going to undermine that advice of my legal representatives.”

Julius Malema explaining why he won’t say that he did not fire a firearm at a rally.

In this part of the session, Malema was cornered and instead of speaking his truth, he claimed matters were before a court.

So, what now?

A few more questions, of little consequence, were asked in wrapping up the discussion. This included a flurry of rushed questions from various other journalists. But overall, there were three major takeways from the interrogation.

  • The political journalists who attended were unable to do justice to the investigative material
  • Malema avoided actually answering questions which could implicate him and that is a cause for suspicion
  • There are clear failures from investigative authorities in South Africa if journalists are being called to put politicians on trial in the first place

The National Prosecution Authority (NPA) needs to do its job. The EFF is not going to make it easy. They won’t answer the serious questions and they won’t remove the ban on investigative journalists. The only hope we have are the legal authorities. But in their absence, we can rely only on the sensibilities of the public. It is now in our court.

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