The gist of this article is to dissect and critique advocate Terry Motau’s “Great Bank Heist” report within the context of procedural fairness and constitutional impartiality, the foremost moral tenets of constitutional jurisprudence. Without fairness, the rule of law would mutate into primitive witch-hunting.
The report is a culmination of a four-and-half-month forensic investigation into the financial irregularities at VBS Mutual. That incisive investigation was commissioned by the Prudential Authority, a regulatory component of the SA Reserve Bank (Sarb).
Motau, with assistance from Werksmans Attorneys, was appointed by the Sarb to unearth the maladies and improprieties that plunged VBS into bankruptcy in March.
The findings have ignited massive public reaction and explosive national outrage. A staggering R1.8billion was daringly swindled and looted from the bank between March 2014 and June 2018. About 53 personalities, including VBS executives and officials, were found to have participated in that bank robbery.
The most colossal beneficiary, as alluded to in the report, is chairman Tshifhiwa Matodzi, reported to be the mastermind, illicitly amassing over R325million. VhaVhenda king Tony Mphephu Ramabulana, is said to have received R17.8m.
The report further illustrates that Brian Shivambu, brother of EFF deputy president Floyd Shivambu, acquired a sweet R16.1m. Former VBS head of treasury Phophi Mukhobodobwane and former chief operating officer Robert Madzonga pocketed R30.5m and R30.3m respectively. Former VBS chief Andile Ramavhunga and former spokesperson Ndivhuwo Khangale received R30m and R28m respectively.
The others who are implicated also amassed their alleged gratuitous millions from the free-for-all VBS.
Notwithstanding Motau’s findings, the report is biased and lacking in procedural fairness and constitutional impartiality. Motau admits that investigators did not bother to cross-examine the implicated.
That omission is regrettable and unjustifiable. How can investigators formulate a conclusion without interviewing those implicated? In any constitutional democracy, any criminally implicated person has the right to explain his or her version of events.
Motau’s failure has rendered the report legally inadmissible and constitutionally untenable. Procedural fairness and constitutional impartiality are the hallmarks of the rule of law.
The brazen looting and indiscriminate thieving at VBS is almost beyond belief. But we must guard against condemning the potentially innocent. Motau’s failure has inflicted harm on the integrity of potentially innocent people.
Why did Motau fail to interrogate the Reserve Bank’s leadership pertaining to the regulation and supervision of banking transactions. Such activities of all commercial and mutual banks in the country are regulated and supervised daily. In addition to that, the Sarb’s financial supervision department also performs top-class ultra-surveillance.
From 2014 until February 2017, the National Treasury permitted municipalities to invest with VBS Mutual Bank. The Treasury’s directive to bar municipalities from investing with VBS was only issued in March 2017. Why? A combination of greed and regulatory failures is accountable for VBS’s paralysis. The culpable complicity of Sarb and the Treasury must be examined and investigated.
Finally, the Great Bank Heist report is grammatically impressive, procedurally flawed and technically misleading. In the absence of fairness and impartiality, there is no justice.
* Elvis Masoga is a political analyst
** The views expressed here are not necessarily those of Independent Media.