Follow-up meeting on alleged DBSA maladministration, mismanagement & corruption; with Minister

Meeting report

The Chairperson welcomed everyone to the meeting. He said this was a follow-up meeting with the Development Bank of Southern Africa (DBSA) on the basis of correspondence received from Mr Bantu Holomisa. This meeting was an opportunity, in line with the audi alteram partem rule, for the DBSA to respond to allegations of maladministration and mismanagement. He noted that Mr Tito Mboweni, Minister of Finance, was present but would have to leave the meeting to attend a National Council of Provinces (NCoP) meeting.

Mr B Holomisa (UDM) said that according to the Committee minutes from 18 November 2020, there was a legitimate expectation that the Committee would have shared the draft operational framework regarding the envisaged hearings. Yet this had not been done. He welcomed the presence of the Minister, but wanted to know where all the other relevant people were and why the resolutions from those minutes had not been adhered to.

The Chairperson said that this meeting was precisely to assist the Committee in arriving at a determination. The issues raised had been sent to the DBSA. The matter was a work in progress, given the gravity of the allegations made. After this meeting, the Committee would be in a better position to structure the way forward. Owing to an already packed programme, when the Committee met with the Auditor-General of South Africa (AGSA) the Members enquired about the DBSA to obtain information about the matter. As such, the Committee was still acting within the parameters of the resolutions contained in those minutes. This was not a hearing.

Mr Holomisa thanked the Chairperson but said it was strange that the other witnesses who formed part of the DBSA’s board of directors were not summoned to the meeting. Those witnesses had written to the Committee long before he approached it.

The Chairperson said that the Committee had to be in a position to interact with all of the relevant stakeholders in the matter before instituting a hearing. That would be done, but the process had to be followed. He did not think the current approach was unfair. He would have to check with the staff as to whether there was additional correspondence, as he was unaware of that. To his understanding this process was triggered by the correspondence from Mr Holomisa.

Minister’s Remarks

Minister Mboweni said that he wanted to hear the views of the Members on the matter. He had about 20 documents with him, including a letter from Mr Holomisa, dealing with concerns about the DBSA. He hoped to deal with as many of the substantive issues as possible, to move towards finalising the matters. The matters had to be discussed openly and candidly, so that everyone could leave the meeting with the view that the DBSA was well-run and well-managed, and where there were issues, that those would be corrected.

DBSA presentation

Mr Enoch Gondongwana, Chairperson, DBSA, said that he understood there to be two issues. The first was the allegations of corruption regarding the Cranbrook deal. This controversy arose from the audit committee. The second issue related to board appointment, which as per the Development Bank of Southern Africa Act 13 of 1997 (DBSA Act), was the prerogative of the Minister. The Minister was entitled by the law to pass regulations delegating that authority to the board of directors itself. Those regulations had not been passed, so the Minister still had the prerogative.

Mr S Somyo (ANC) said that he thought the critical issue of the appointment of the board members would have been dealt with by the Minister in his introduction. Mr Holomisa had raised the concern that the Minister had not done any due diligence in appointing the current board members. It would be good if this could be addressed before the meeting continued.

Minister Mboweni explained that the board had been in place for as long as the DBSA existed. Board members served for a period of time, and when their term expired the board would make recommendations to him about the replacements or reappointment of those members, depending on how the internal evaluation process went. When he assumed his responsibilities as Minister in October 2018, he inherited a board of directors at the DBSA, which had to be replenished. At the annual general meeting (AGM) in 2019, the board was renewed. Some members were retained. The current board was confirmed at the last AGM. The appointment process was in line with corporate governance. Given his experiences in the private sector, the process was normal. As this was a public institution, due care of public interests had to be taken, and that was how succession in board was sought to be managed. It was likely that when a board member was not reappointed to the board that member may be unhappy and make allegations. It had to be understood that there was no lifetime appointment to the board.

Mr B Hadebe (ANC) asked if clarity seeking questions could be asked.

The Chairperson requested that questions be asked after the presentation. He asked the Minister to notify the Committee when he had to leave the meeting.

Ms Martie Janse van Rensburg, Chairperson: Audit and Risk Committee, DBSA, handed over to Mr Patrick Dlamini, Chief Executive Officer, DBSA to lead the presentation.

Understanding of allegations

Mr Dlamini said that the first allegation related to the deal with Cranbrook Property Projects (Pty) Ltd (Cranbrook). Three companies, namely Blue Horizon Investments 11 (Blue Horizon), Moeparutsi Properties (Moeparutsi), and Proline Trading 60 (Proline), were involved. The total outstanding loans allegedly amounted to R426 million, and DBSA allegedly approved the write-off of interest according to the in duplum rule, and wrote off R259 million.

The second allegation was that the DBSA funded Poseidon, which allegedly had links to a company that had a bad reputation in light of the Mpati Commission.
The third allegation was that there had been victimisation of certain board members and an irregular reformation of the board.

According to the DBSA, these allegations were based on incomplete and/or inaccurate information.

DBSA investment process

The DBSA followed a thorough process for investments. The process began with an early review report being sent to the investment committee, a sub-committee of the board of directors. Thereafter, due diligence was done by means of a detailed analysis of the funding request. An appraisal report was them sent to the investment committee, and based on the recommendation of that committee, the appraisal report was then sent to the board credit and investment committee for approval. The loan conditions were then negotiated, and subsequently, the facility was disbursed. Once investment was made, it was managed to ensure compliance with conditions, and finally, management was done, and impairments were recommended in line with the financial standards and norms to manage write-offs.

DBSA response on the Cranbrook transaction

Minister Mboweni suggested that Mr Dlamini mention the names of the individuals involved in each of the transactions with the companies.

Mr Dlamini said that the names and details relating to the directors of the companies involved in each transaction were contained in the presentation. He assured the Committee that there were no politically exposed persons (PEPs) involved in the concerned deals.

The Chairperson said it was less about assurances and more about transparency. In light of the allegations, the presentation had to be spoken to so that the Committee could be informed of the substantive issues and make the necessary determinations.

Mr Dlamini said that he understood what the Chairperson was saying, but the DBSA had a certain method of drafting a presentation based on the guidance of what it was told it would be asked. The details were disclosed later in the presentation, so if detail was desired, he could skip forward and speak to those names.

The Chairperson said that he did not want there to be excuses. Guidance had been received from the Minister. That had to be followed so that the Members were not agitated.

Ms Janse van Rensburg said she had the details available. For Moeparutsi, in terms of the funding of the 17% shareholding in Cranbrook, the shareholders were Shokeng Mahlake and Mashupye Matlala. There were a number of directors with common shareholding between Blue Horizon Investments 11 and Proline Trading 60. [Five names were read out but were left out because we could not confirm spelling]. When this transaction was entered into, the normal investment processes of the DBSA, included a due diligence check. That due diligence check did not reveal any connected parties, nor PEPs.

The Chairperson said the names could be submitted to the Committee Secretary.

Mr Dlamini said that a loan of R10 million was made to Moeparutsi in 2007 to acquire 17% shareholding in Cranbrook. A five-tranche R124 million loan was approved for Blue Horizon, and a five-tranche R125 million loan was approved for Proline, both of which was for bulk infrastructure. Moeparutsi repaid R10.4 million between 2009 and 2011. Blue Horizon repaid R113.5 million between 2010 and 2017. In terms of restructuring and repayment, Proline repaid R24.1 million between 2011 and 2020, and the agreements with Proline and Blue Horizon were amended to provide for the DBSA to receive at least 70% of the proceeds for every stand sold.

In terms of the recovery strategy, impairment provisions were made in 2020 for about R4 bn. The loans approved were secured by mortgage bonds which only prescribed at 30 years, and were registered in the DBSA’s name. Blue Horizon was placed in liquidation n 2017, and the auction of its properties for the DBSA’s benefit was ongoing.

Forensic investigation of Cranbrook

In addition to the internal audit forensic review, the DBSA board also mandated an external investigation headed by DM5 Incorporated into the transaction. The investigation was recently concluded, and the outcomes were under consideration by the DBSA and the AGSA. No fraud, corruption, or non-compliance with laws and regulations was identified by the external investigators.

Poseidon matters

Poseidon was a black economic empowerment (BEE) company that prepared and developed critical water infrastructure projects in South Africa. In 2020, R50 million was approved by the DBSA. The board subjected the transaction to greater scrutiny when the issue was brought to the media’s attention. Enhanced independent due diligence was undertaken by Werksmans Attorneys. No funds had been disbursed. The DBSA was satisfied with the report by Werksmans Attorneys that there were no PEPs in this transaction.

The appointment of board members

The appointments were done in a fair and transparent manner. The Minister had the prerogative to appoint members, and had the authority to gazette regulations on the process. The Human Resources, Remunerations, and Nominations Committee (HRNC) considered the nominations and made recommendations to the Minister. As the majority of the HRNC’s members terms were coming to an end, they would be conflicted. Thus, the board resolved that the appointment process would be dealt with by non-conflicted members, with the assistance of an external search company.

Mr Dlamini said the DBSA took its governance and work were seriously, and followed strict and thorough processes. That could be attested to by National Treasury.

[See presentation for more information]

Mr Gondongwana said that National Treasury employed the services of an institute to do an assessment of the board. The skill profile of the board and its shortcoming were looked at. Pronouncements were also made on the individual board members. The search company appointed by DBSA came to the same conclusion about the skill profile needed for the board. The Minister was alerted to the shortcomings. A rigorous check was done of any board member that was appointed. These checks aligned with board members across the industry. These checks were critical as the DBSA went into the market for capital, and some of the organisations that the DBSA worked with had certain requirements for the composition of the DBSA’s board.

Ms Janse van Rensburg said that the audit and risk committee and the board credit investment committee met twice a year to look at the impairment debt on the DBSA’s books in accordance with the relevant accounting standards. In relation to the Cranbrook transaction, the determination of the committees was that the financial impairment decision had to be made and that the internal audit unit had to do an investigation going back to the start of the transaction to see if there was compliance to policies and procedures at that time, and during the transaction, and further whether there were any gaps. That had been done.

The head of internal audit also brought external legal services in to assist in the evaluation. Those reports had been concluded, bar one. The findings were that the current processes of the DBSA did not have gaps, and were thus compliant with best practices in the market. It was found that the decisions taken were also compliant. The legal recovery process against Cranbrook was underway. Parties that had provided questionable information had been reported to the Hawks and legal action had been taken to recover the money.

Discussion

Mr Hadebe asked if the Members could be given an explanation of the fair and transparent board appointment process. He asked how that process was being conducted by the search company. Details were necessary, given the fact that it was stated that the HRNC was conflicted in this matter.

Mr Gondongwana said there was a tender process that led to the appointment of the search company. A similar exercise would be conducted to fill the vacant posts. The search company takes a mandate based on the skill profile provided by the DBSA. The search company conducted an assessment of the skill profile, and then followed its own process. Thereafter, the search company approached the HRNC with a shortlist of individuals. The selected individuals were then interviewed, and the recommendations were made to the Minister.

Mr Hadebe asked how the nominations were conducted and how the search company sourced the shortlisted names. Did the search company advertise the positions? How was the process fair and transparent? If his understanding was correct, the committee or the Minister would have been informed of how the process was conducted, and whether the individuals were sourced from a pool of people. What did the regulations say when the HRNC, which was entrusted to process the nominations, was conflicted?

Minister Mboweni said that he had to leave the meeting to attend the NCoP meeting. He explained that in his basic experience, the filling of vacant posts in the board of directors of any company was a complex process. The board would normally have a nomination or a director affairs committee which was charged with refreshing the board. In that process, that committee might seek the assistance of an external agency, normally a search or human resources agency. Normally that agency would have, in a database, a number of people whose skillset was known. Depending on the brief given to it, the agency would source, from within that database, people that it thought the DBSA would want. Thereafter, the agency would conduct assessments and interview the people determined by the database. Then, the agency would submit a shortlist of names to the committee. The committee would then decide on selected individuals, and interview those people again. After the committee went through that process, it would approach him with the list of recommended names, which he would then approve.

He said that he did not second-guess the board of directors. He was not one to micro-manage the board. The board existed and had certain powers because the directors were trusted to do their jobs properly. He did not have the time to, nor was he interested in, micro-managing the board. If the board members did not do their work, it was his job to fire them at the AGM. In this matter, he had no reason to believe that the board did not do its work. If a member of the previous board was unhappy with not be reappointed, that was tough love.

Mr Hadebe interjected and said that his question was in relation to the fair and transparent process. That question had not been responded to. He asked if the search company advertised the positions publicly or if it head-hunted individuals based on a pool of people. When the Minister received the shortlist, was the process explained?

Minister Mboweni said that he explained the matter. If Mr Hadebe did not understand his explanation, then tough love. He would not repeat himself.

Mr Hadebe said that only a general response was given of what would ordinarily happen. A specific response to his question had not been provided. He asked again, did the search company advertise the positions or did it draw individuals from a pool of candidates in the database?

The Chairperson said that the Minister’s response, particularly his statement of tough love, was not constructive. If the Members were left without understanding the Minister’s explanations, then they would make determinations based on what might be an incorrect understanding. The questions had to be answered to such an extent that there could be proper understanding. He did not want to arrive at an acrimonious situation.

Minister Mboweni said that he also sought the Chairperson’s protection. He respected what was said. He explained the issues to the best of his abilities. If further explanation was needed, one of the executives from the DBSA could provide it. He asked for permission to be excused.

The Chairperson said this aspect of the matter would be parked. He added that the Minister could be excused.

Mr Gondongwana took the Committee through the legal framework for the appointments. The board was appointed by the Minister unless Minister passed regulations authorising that the board be appointed in another manner. Those regulations had not been passed. Thus, there was no delegated authority, so it was still the prerogative of the Minister. The Minister said he wanted assistance in matter, thus the work was done with the search company. The search company, as he understood it, built up a broad database of individuals. Technically this meant the positions were not publicly advertised. But parallel to that process, National Treasury developed a database of individuals through a transparent process of public advertisement. The search company also received candidates from that public database.

Mr Hadebe welcomed Mr Gondongwana’s response. He asked whether, when the DBSA’s brief was given to company, the board told the search company to advertise the positions widely or to merely rely on the databases. In terms of the National Youth Development Agency (NYDA), vacant positions in the board were advertised publicly.

Mr Gondongwana said that to his knowledge, the database of the search company was not the product of public advertisement. The process was fair and transparent because the board appointment process aligned with the process used across the industry; and that process was accepted by industry standards as fair and transparent. The DBSA added the public dimension of the National Treasury process. It may not technically be fair and transparent in terms of Mr Hadebe’s definition, but it was by industry standards.

Mr Hadebe said that there was a difference between submitting details to be included in a database and responding to a public advertisement calling for applications for the positions. Were the details of how the search company undertook its selection process given to the DBSA, or did the DBSA merely rely on the shortlist given to it?

Mr Gondongwana said that he did not want to mislead the Committee. The DBSA was working according to industry norms. If the Members felt that changes had to be made and a more public process of advertisement adopted, that would be taken into account.

Mr Hadebe said that in light of the indication that the HRNC was conflicted, was there a regulation that stipulated what were to happen when the committee charged with the nominations was conflicted? Or was a course of action decided only after the fact?

Mr Gondongwana said there were standard procedures for governing conflict of interest at the DBSA. In anticipation of the change of regulations by the Minister, a new nominations committee was set up to deal with the matter in the future Lessons were learnt from the process and the necessary adjustments would be made.

Ms V Mente (EFF) noted that there was an investigation into the Cranbrook transaction, and an audit forensic review had been undertaken on that account. That investigation was concluded but the outcomes were yet to be considered by the DBSA and AGSA. She wanted to know what the timeframe would be for the Committee to receive that information.

She said that an emphasis was made that there was no identification of fraud, corruption, or non-compliance. The fact that external investigators were used without being named was problematic. She wanted to know the names of the external investigators, because in South Africa, due diligence was given a different meaning for external and internal investigators. There was currently a problem with the reputation of external investigators. The Committee needed to know who these investigators who confirmed that nothing was wrong, were.

Mr Dlamini said that external investigators were members of DM5 Incorporated. The AGSA and the board would look into the matter, and the results could be shared by the end of June at the latest.

Mr Gondongwana clarified that the earliest those results could be shared would be the start of July.

Ms Mente said that it was important to note that the AGSA would be part of the considerations of the forensic report. She requested that when the conclusions on the report were given, the Committee could also get the actual forensic report exonerating anyone of wrongdoing.

Mr A Lees (DA) asked how long the investment process, as depicted in the presentation, would normally take?

Mr Dlamini said it depended on the complexity of the investment deal. A simple deal could take three months, but if complicated it could take between six months and a year. It also depended on the readiness of the deal for funding.

Mr Lees asked how long the decisions for each of the transactions under discussion took.

Mr Dlamini said that given that the deals were done in 2006/07 he would be guessing if he had to respond. He did know that it was a long process. At that time the DBSA was called a two-year bank, as that was how long it generally took to finalise investments. Those deals also involved engagements with the respective mining companies and investors.

Mr Lees said that it would be useful if the administration could go back and see the dates of the application for investment and subsequent investment were made. He asked if those dates could be given within the next week. It was a comprehensive process that should not take less than two months, but in emergencies may take one month.

Mr Lees noted that Mr Dlamini claimed to be answerable to Parliament, but when he asked for details on the process and due diligence followed for the R3.5 bn loan to the South African Airways (SAA) in January 2020, the Minister sent him to the DBSA and the DBSA refused his application for information. The presentation seemed very hollow. Details were not given on specific actions. Given that the loan appeared to have been made in about three days, which was significantly quicker than the normal timeframe, he wanted to know what due diligence was done. He asked for reassurance that the R3.5 bn loan went through the full due diligence investment process as laid out in the presentation.

Mr Dlamini made that assurance to the Committee. He corrected Mr Lees. DBSA never loaned R3.5 bn to SAA, as it was bankrupt and had no loan credit. That finance was funded to the Department of Public Enterprises (DPE), and it took much longer than three days.

Mr Lees asked if the DBSA loaned money to a government department.

Mr Dlamini confirmed that this was correct. SAA was never a counterparty to the agreement. The counterparty to the agreement was the DPE with concurrence from National Treasury.

Mr Lees asked if loans to government departments fell within the mandate of the DBSA.

Mr Dlamini said that in South Africa, financing to government departments was done with National Treasury. He clarified that the R3.5 bn was merely bridging finance to the DPE.

Mr Lees clarified that what was said was that the DBSA’s mandate did not include loans to South African government departments, but National Treasury intervened and authorised the loan.

Mr Dlamini said that any advancement of any facility to a government department had to have the concurrence of National Treasury.

Mr Lees said it was interesting as the general information in the public domain was that the DBSA made that loan to SAA. He asked why he was stonewalled when he requested that information early last year. Why was he told that he had to give more detail of his request, when what he wanted was absolutely clear? That made a mockery of Mr Dlamini’s earlier statement of being answerable to Parliament.

Mr Dlamini said that the DBSA did not stonewall Mr Lees, as that was not what the DBSA did when people made enquiries. But, as a bank, the DBSA had to respect the confidentiality of its clients. It was preferred that when people came for information, they went to the client directly. As it was a government department, a request for information could have been made through the oversight process over that department. The DBSA was not in a position to share confidential information, as that would have a damaging effect on the DBSA.

Mr Lees said he did not accept that explanation. He found it disturbing that after a request to the Minster who referred him to DBSA he got stonewalled. He asked if the Committee could instruct the DBSA to provide the Committee with the full details of due diligence done for the investments which were the primary reason for meeting as well as for the R3.5 bn loan to the DPE.

Ms Janse van Rensburg said that a presentation was made last year to the NCOP regarding the SAA transaction. The credit risk of SAA was not considered to be viable. In the transaction SAA was the counterparty with a firm undertaking from the DPE and National Treasury that the loan would be repaid once the Division of Revenue Act was approved, and that money was already included in the February budget.

Mr Lees said it was disturbing to note that a correction had to be made. It was of considerable concern that the loan was made on the basis of the word of the DPE and National Treasury that Parliament would appropriate the funds. That was a presumption that Parliament was merely a rubberstamp. That was outrageous. It was concerning that the DBSA took that word as sufficient security to provide R3.5 bn to SAA, a bankrupt company in business rescue.

Mr Holomisa referenced what the Minister said about his approach. He was not accountable to him, nor could the Minister tell him how to deal with allegations of maladministration. His arrogance, in terms of dealing with the Members in manner he was doing, was not helping the country.

Mr Hadebe had an issue with the general responses and the referral to norms and standards. He said that public advertisement was also an accepted norm and standard. He did not want Members to be treated in the manner they were when asking direct questions. They wanted to find out how the process which would produce board members was conducted. It was a simple question. Did the search company only rely on the database at its disposal, or did it advertise over and above that database? When one was not registered with the database, when a vacancy arose, that person would not have the chance to be considered. The understanding of whether the board viewed this process as fair, transparent, and inclusive had to be given, yet it was not.

The Chairperson said the hearing had been most helpful, considering what had happened, as it gave the Committee insight into precisely why the issues needed closer attention. This was a chance for the DBSA to take the Committee into confidence and respond to issues so that Parliament was in a position to determine how to handle the serious allegations. Mainly, the DBSA had not assisted itself, with what could be called a theoretical outlook with a view to lecture and educate the Members devoid of the necessary bias to be accountable. Some of the behaviour displayed in the meeting was totally unacceptable, and did not aid in creating a constructive working relationship.

He said the Committee had met in November, and had agreed that a framework of enquiry would be formulated. It was justified in taking that decision. That process would now be set into motion. The Committee had already interacted with the AGSA and DBSA, and would now consult with Parliament’s Legal Services to draft that framework. The Committee would consider the submissions of Mr Holomisa and the DBSA.

The special application would be made when the process was finalised. In the interim, they would be working with the AGSA and the Special Investigating Unit (SIU) on the matter as both sides of story had now been heard. The matter had to be brought to a logical conclusion and the necessary recommendations and referrals had to be made. That was what oversight and accountability was about.

The generalisations of the responses had not assisted in reaching this conclusion. He was unaware of the correspondence referred to by Mr Holomisa. He requested that that correspondence be submitted to him and the Committee Secretary. The Committee would be in touch with the DBSA after its consultations with Parliament’s Legal Services, AGSA and SIU.

The Committee still had to find time to deal with the Housing Development Agency (HDA) allegations. Eskom was due to submit information, with its 90 days coming to an end. The Compensation Fund and National Student Financial Aid Scheme (NSFAS) also had to submit by the end of June on the issues of the forensic audits.

The Committee would navigate its programme through the recess period. Time would be found next week to create a schedule of relevant submissions, consolidate it, and send the comprehensive correspondence to the DBSA. He said that many blanks had not been resolved. He suggested that his proposal be the way forward.

Mr Hadebe said that the Committee be mindful of the fact that executive authorities had a lot of work to do. However, he appealed that they were present for the entire meeting, so that the Committee could be seen to have done justice. 

The Chairperson said that the Committee would work with the relevant offices to accommodate that going forward. He asked if everyone agreed. The family meeting next week was for the Committee to meet with Parliament’s Legal Services

Closing remarks

Minister Mboweni thanked the Chairperson for affording the DBSA the chance to say its piece. It was important that Parliamentary structures held institutions and the executive accountable. He believed in the higher standards of corporate governance, whilst not micro-managing the board of directors. These higher standards in state-owned enterprises (SOEs) had be developed. He took the criticisms seriously, and appreciated the work being done. The issues could always be discussed, especially those as adduced by Mr Holomisa. He apologised for and withdrew the harsh words he said earlier, as the work being done by the Committee and the executive was very important. He thanked everyone for the meeting.

The Chairperson thanked the DBSA team for being present. He said the Committee would be in communication. He welcomed the withdrawal. The meeting with the SIU on the next batch of corruption reports would take place on 2 June.

Ms N Tolashe (ANC) said that she understood that SIU was bringing its progress report. She requested the issues of the Chief Executive Officer of the South African Social Security Agency (SASSA) stating that she was cancelling the tender, the Department of Health (DOH) and those allegations, the South African Police Service (SAPS) and the R1 bn involved in the Covid-19 procurement processes, also be mentioned in the meeting with the SIU. She asked if an indication could be given on the progress the SIU was making in those matters, so that the Committee could be on top of all the information.

The Chairperson said that those matters were not in the presentation. The SIU was in the meeting, but an indication would be sent so that it was aware that those issues should also be raised in the meeting.

Mr Hadebe asked if individual issues should be forwarded to the DBSA or if it had received everything it needed to.

The Chairperson said that a consolidated list of issues and submissions would be sent after the family meeting next week. He thanked the SIU and the AGSA, as well as the Members.

The meeting was adjourned.