Zondo Commission database tug-of-war: Vital State Capture data at risk of 'falling into the wrong hands'

The custodians of the State Capture Commission’s database believe that a private sector forensics company could clone its contents after being hired by the National Prosecuting Authority (NPA) and its Investigating Directorate Against Corruption (Idac).

“This thing will be taken over by private sector interests. [The company] gets a massive fee and monthly retainer,” said a Department of Justice official, who wished to remain anonymous.

The database is publicly owned and should not cost a cent to use.

“They’re looking for money. Big data is gold,” he said, adding: “It must never be distorted by falling into the wrong hands.”

The petabyte of data is at the centre of a wrangle between the Justice Department, which wants controlled access, and Idac, which wants open access as it ramps up investigations and prosecutions.

Advocate Andrea Johnson. (Photo: Felix Dlangamandla)

Director Andrea Johnson and the Hawks are gaining momentum, as the plea deals related to Gaston Savoi (corruption at KZN water purification plants) and former construction company CEO Mike Lomas (corruption at Kusile Power Station) show.

A senior source at the NPA, who wished to remain anonymous, said that, when building a case, you need to be able to work generatively and comb the database independently.

The process now is cumbersome, with requests having to be formally made for each piece of material. The person said some items, such as bank statements, have to be subpoenaed.

But the custodians tell a different story.

“We give stuff to the SIU [Special Investigating Unit], AFU [Asset Forfeiture Unit], SARS [SA Revenue Service], Hawks, FIC [Financial Intelligence Centre] and [even] to SOEs [state-owned enterprises] which want to pursue investigations,” said the official, adding that Idac had successfully used its information to investigate a case involving the Gupta Leaks database of emails from the State Capture family that blew the lid off their schemes.

The NPA wants to become the sole custodian of the data. Still, the official says South Africa’s multiagency approach to fighting corruption means it has to be open to all agencies, some of which are much faster than the NPA at attacking grand graft.

Then Deputy Chief Justice Raymond Zondo during the announcement of his judicial commission’s investigating team to ensure that South Africa never again experiences State Capture. (Photo: Felix Dlangamandla / Gallo Images)

Massive data set

The official also said that numerous NPA investigators had been trained in using the database but had left. Others had been given access but had lost their logins and passwords, and a third set of users was from the police and not tech-literate, so they did not know how to use the massive data set.

He said the database was there for the NPA’s use, but the material had to be treated with care as it was processed to become evidence.

“The information as far as the proceedings of the commission [into State Capture] is concerned is to help make prosecutions happen. It is easily available.”

The chairperson of the State Capture Commission, former Chief Justice Raymond Zondo, amended the law to enable access to processed material.

The Justice Department official said there was much other data that needed to be processed (so-called unstructured data) and checked by the commission’s investigators. The commission sat for just over three years and cost more than R1-billion, but did not address all the submissions and areas for investigation.

It is this grey category that is being contested: the NPA wants access, whereas the Justice Department’s “residual mechanism” (the body tying up the archive and final work of the State Capture Commission) says the material must be carefully checked to ensure that it is not leaked into the public domain as it contains private information.

Most of the significant State Capture uncovered by the commission implicated multinational private sector players, ranging from consulting companies such as McKinsey and Bain to ABB and SAP at Eskom and the state-owned Chinese rail company at Transnet.

“[The database] will be taken over by private sector interests and they could do all sorts of things,” said the official. “My theory is they have already cloned some stuff.”

Advocate Paul Pretorius during Raymond Zondo's judicial commission of inquiry into State Capture on 20 August 2018 in Johannesburg, South Africa. (Photo: Gallo Images / Netwerk24 / Deaan Vivier)

Muddying the waters further is a sustained EFF and MK parties' attack from Parliament on senior counsel Paul Pretorius and Matthew Chaskalson, both of whom have been contracted to Idac to help to move State Capture cases along more quickly.

That has nothing to do with the database wrangle, but the two populist parties, some of whose members face allegations of corruption at VBS Mutual Bank and all the significant sites of State Capture, are using the appointments to fire broadsides.

Pretorius is a strategic case adviser to Idac and is a perfect bridge between the commission and prosecutions. Though the EFF says this is a conflict of interest, it is a natural path. Many investigators and prosecutors have moved from the commission to the NPA and Idac. Chaskalson led evidence on several important streams at the commission.

“There’s a very clear ramping-up of the attack on the NPA,” said an official, pointing out that the attack’s current guise takes the form of acting in solidarity with Justice Minister Thembi Simelane, who is facing a Hawks investigation about a coffee shop loan given to her by a VBS accused using commissions from the captured bank.

He says the “Zondo Lab” (the database) should be housed at the NPA or, if it is not, the NPA should get “unhindered access”.

Advocate Matthew Chaskalson at the Gauteng Division of the High Court on 23 July 2019. (Photo: Gallo Images / Phill Magakoe)

Complaint

The EFF has complained that Pretorius and Chaskalson are white. A former Justice Department official says that the Justice Minister must sign off senior contractual appointments to the NPA and Idac, and that promoting transformation in the legal fraternity is always a consideration.

Idac also contracted Advocate Terry Motau, the forensic mind behind the first VBS reports, and Advocate Tembeka Ngcukaitobi, who isn’t always available because he is a rock star.

“The NPA will not be commenting further on this issue as it was sufficiently ventilated during our appearance before the Justice Portfolio Committee. There are also ongoing engagements with the Justice Department and Ministry on the matter, so we will allow those engagements to unfold,” said NPA spokesperson Advocate Mthunzi Mhaga.

“The Minister led a delegation of senior officials of the Department to the Portfolio Committee on 10 September 2024, where questions were responded to at length,” said Justice Minister Simelane’s spokesperson, Tsekiso Machike. DM

This story first appeared in our weekly Daily Maverick 168 newspaper, which is available countrywide for R35.