There are probably only so many accounts of Bain & Company’s involvement in state capture and the destruction of the SA Revenue Service (Sars) that the opinion pages of this newspaper can sustain. That’s because public appetite, even for a tale as galling as this, is exhausted — especially so in SA’s political landscape.
More importantly, opinion pages aren’t the terrain in which the really significant questions relating to this matter are to be determined. We won’t get a finding here as to whether Bain committed fraud, bribery or other unlawful conduct in securing its contracts for the restructuring of Sars. We won’t obtain a definitive ruling as to whether its unlawful acts make it liable for damages proportional to the scale of harm it inflicted.
These are matters to be determined by judicial authorities. Ideally by our own, in that the alleged crimes and damage were inflicted here and it is to the SA public, first, that remedy is owed. But in the event that investigative and prosecuting authorities can’t or won’t do so here in SA, jurisdictions such as the US, where Bain is headquartered, hold out possible alternatives.
But here’s what even opinion pages can do: they can point to the established public record — to facts and evidence in the public domain — to sift what is, in fact, fact, and what is mere opinion and conjecture.
The latest missive by Bain SA’s managing partner, Stephen York, in these pages was yet a further exercise in attempting to pull the wool over the public’s eyes (“Bain SA won’t have a repeat of the past”, September 26). Here’s one astounding assertion: “Contrary to inflammatory claims made by armchair commentators, the investigation conducted by law firm Baker McKenzie in 2018 found ‘no evidence of any intention by anyone at Bain to destroy or undermine Sars’.”
It is astounding because no commentator — in an armchair or not — is making such a claim relating to the findings of the Baker McKenzie report. They simply can’t. That internally-commissioned report has been systematically withheld by Bain. It has refused, time and again, to allow that report to be subject to any outside scrutiny.
Not only does York require that we give credence to the findings of an internally commissioned report we are not permitted to see, but to compound matters he insists we prefer its “exoneration” over the findings of our own judicial commissions of inquiry.
Here’s York: “In SA, neither commission of inquiry has recommended that Bain be prosecuted. We have no record, nor did any evidence emerge during the Nugent and Zondo commissions, that Bain knowingly conspired in state capture. There is no evidence that Bain orchestrated the destabilisation of Sars to further any corrupt and destructive agenda.”
But here’s the Nugent commission: “We think what occurred can fairly be described as a premeditated offensive against Sars, strategised by the local office of Bain & Company Inc, located in Boston, for Mr Moyane to seize Sars, each in pursuit of their own interests that were symbiotic, but not altogether the same ... This was not a plan for mere succession in public service.”
Here’s Nugent again: “It is recommended that the National Director of Public Prosecutions should consider prosecution in connection with the award of the Bain & Company contracts.”
And here’s the Zondo commission: “Law enforcement agencies [should] conduct such investigations as may be necessary with a view to enabling the National Prosecuting Authority to decide whether or not to initiate prosecutions in connection with the award of the Bain & Co contracts.”
It’s true that the recommendation is to investigate with a view to prosecution. But the distance between this and a recommendation to prosecute is as near as the distance in credibility between the findings of an internally-commissioned, publicly-withheld report and the findings of two separate, independent judicial commissions of inquiry is far.
In deliberately misrepresenting the recommendations of the two commissions of inquiry and maintaining that Bain’s own internal investigation should be preferred, York disparages the value and integrity of our public institutions. In doing so, far from showing that there has been a severance with the Bain of old, he suggests there is only continuity.
• Fritz, a public interest lawyer, is director of the Helen Suzman Foundation.
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