The Julius Malema Trial

[ToxicBunny]

And rightly so I argue. SARS was right to claim its tax from the benefit, but its ridiculous to charge him with racketeering.

Again, on what grounds do you base that judgement?

 

[ToxicBunny]

All shareholders of companies who have government tenders benefit from tender payments and we don't prosecute them because that its not a criminal offence. It can't be suggested that he was involved in corruption since he was not involved in both the company or the government which issued the tender. So this is very ridiculous.

Yeah, its not so simple when political patronage comes into play...

 

[Grant]

All shareholders of companies who have government tenders benefit from tender payments and we don't prosecute them because that its not a criminal offence. It can't be suggested that he was involved in corruption since he was not involved in both the company or the government which issued the tender. So this is very ridiculous.

Malema's trial relates to a multimillion-rand tender the Limpopo Transport Department awarded to On Point Engineering.
Malema’s Ratanang Family Trust is one of two shareholders in On-Point.
On Point is accused of dishing out work to subcontractors, who allegedly returned the favour with bribes.

Due to the fact that the awarding of the contract to On-Point was based on deliberate misrepresentations and non-compliance with procurement prescripts, its shareholders, including the Ratanang Family Trust ... benefited improperly by means of the payment of ‘dividends’ and other payments made to it by On-Point,”

 

[ToxicBunny]

Don't bother grant..

the lawyer rza has spoken, and he knows all.

 

[Fulcrum29]

Don't bother grant..

the lawyer rza has spoken, and he knows all.

rza don't understand responsibility.

 

[rza]

Malema's trial relates to a multimillion-rand tender the Limpopo Transport Department awarded to On Point Engineering.
Malema’s Ratanang Family Trust is one of two shareholders in On-Point.
On Point is accused of dishing out work to subcontractors, who allegedly returned the favour with bribes.

Grantza, that's what the charge says, but my point is that no shareholder has ever been convicted of such a charge as the one Malema is facing, so why charge him? Many shareholders have benefitted from pyramid schemes and none of them have ever been charged, never mind convicted.

 

[rza]

rza don't understand responsibility.

Its not about responsibility, it's about the law.

 

[Fulcrum29]

Its not about responsibility, it's about the law.

Wow, and you are a lawyer, kindly provide me with responsibility in context with the law?

 

[rza]

Wow, and you are a lawyer, kindly provide me with responsibility in context with the law?

You can provide me with a South African case where a shareholder was convicted for similar charges to the ones Malema is facing.

Malema's responsibility to the law is to pay tax from dividends he received, and SARS has made sure that he did. What more do you want from him? We shouldn't desire to pervert the law just because we don't like certain people.

 

[Grant]

Grantza, that's what the charge says, but my point is that no shareholder has ever been convicted of such a charge as the one Malema is facing, so why charge him? Many shareholders have benefitted from pyramid schemes and none of them have ever been charged, never mind convicted.

this is not a whole lot of shares held by numerous people, as in jse etc.

On Point had 2 shareholders, each holding 50% - just 2 people, malema & gwangwa.

The awarding of the contract to On-Point was based on deliberate misrepresentations and non-compliance with procurement prescripts.

If misrepresentations were not made, On Point may probably not have secured the contract.
But they secured it by means of misrepresentation (fraud) - that is why the shareholders (malema & gwangwa) benefitted improperly.

 

[Fulcrum29]

You can provide me with a South African case where a shareholder was convicted for similar charges to the ones Malema is facing.

Malema's responsibility to the law is to pay tax from dividends he received, and SARS has made sure that he did. What more do you want from him? We shouldn't desire to pervert the law just because we don't like certain people.

Why don't you break On-Point ownership down, let me do it:

- Guilder Investments (as the holding company)
- - 50% - Gwangwa Family Trust
- - 50% - Ratanang Family Trust

To quote:

http://www.issafrica.org/publicatio...to-guard-the-independence-of-key-institutions

/snipped

The sole On-Point shareholder is Guilder Investments (as the holding company), which in turn has two equal shareholders, the Gwangwa Family Trust and the Ratanang Family Trust. Julius Malema`s son (6) is the sole beneficiary of the Ratanang Family Trust and his grandmother (83), is a trustee.

It also claimed youth empowerment points on the basis that it had subcontracted to Dichabe Engineers to the value of R 1,2 million, even though the director of the engineering entity, Mr Dichabe, was one of three shareholders of the newly established On-Point.

On-Point was awarded the Project Management Unit (PMU) contract for the construction and maintenance of roads in Limpopo. In its bid documents On-Point submitted a tax clearance certificate for Achir Shelf, a five-month-old shelf company that it had purchased a month earlier.

There is substantial evidence that Malema conducted business through the Ratanang Family Trust, and utilised its investment in both business and personal activities.

Now that I have provided you with the On-Point ownership, how was the entity structured?

Here are two directors:

- Lesiba Gwangwa (CEO)
- Kagisho Dichabe (COO)

You are telling me, that entity owners don't have any responsibility, neither do trusts. Poor to see Malema sign up his son and grandmother, then use the account, let me mention the charges, fraud, corruption, money-laundering, and racketeering. Quite a lawyer you are rza, did you read the report, http://www.pprotect.org/library/investigation_report/2012/Final Report Signed.pdf ?

 

[rza]

this is not a whole lot of shares held by numerous people, as in jse etc.

On Point had 2 shareholders, each holding 50% - just 2 people, malema & gwangwa.

The awarding of the contract to On-Point was based on deliberate misrepresentations and non-compliance with procurement prescripts.

If misrepresentations were not made, On Point may probably not have secured the contract.
But they secured it by means of misrepresentation (fraud) - that is why the shareholders (malema & gwangwa) benefitted improperly.

Tenders being awarded irregularly and shareholders benefitting improperly happens everyday, and thousands of shareholders could have been in jail had they been prosecuted like Malema is. Example, how many shareholders of Cash Paymaster Services (CPS) have been prosecuted for benefitting improperly in the SASSA tender that was found to have been awarded irregularly by the constitutional court? Answer is zero, because shareholders have nothing to do with day to day dealings of the company, rather it's the directors who should be prosecuted.

Gwangwa was the director and he should be prosecuted, but why prosecute a shareholder? I hope you don't have shares in any company, unless you are just being a hypocrite when it comes to Malema. The fact that there is only one or thousands shareholders in a company is irrelevant since their status and involvement in daily activities of the company are similar.

Provide a court case where a shareholder has been convicted on similar charges and I'll retract my statement.

 

[rza]

Why don't you break On-Point ownership down, let me do it:

- Guilder Investments (as the holding company)
- - 50% - Gwangwa Family Trust
- - 50% - Ratanang Family Trust

To quote:

http://www.issafrica.org/publicatio...to-guard-the-independence-of-key-institutions

/snipped







There is substantial evidence that Malema conducted business through the Ratanang Family Trust, and utilised its investment in both business and personal activities.

Now that I have provided you with the On-Point ownership, how was the entity structured?

Here are two directors:

- Lesiba Gwangwa (CEO)
- Kagisho Dichabe (COO)

You are telling me, that entity owners don't have any responsibility, neither do trusts. Poor to see Malema sign up his son and grandmother, then use the account, let me mention the charges, fraud, corruption, money-laundering, and racketeering. Quite a lawyer you are rza, did you read the report, http://www.pprotect.org/library/investigation_report/2012/Final Report Signed.pdf ?

Without having to repeat myself, provide case law to substantiate your argument. If there's no case law then you should stop insisting that the law is being applied fairly in Malema's prosecution.

 

[Fulcrum29]

Without having to repeat myself, provide case law to substantiate your argument. If there's no case law then you should stop insisting that the law is being applied fairly in Malema's prosecution.

I asked you about responsibility, you are saying that Guilder Investments have zero responsibility. Also, why make a case when there is no case law, do you as a lawyer also decline to represent your client when there is no case law?

 

[rza]

I asked you about responsibility, you are saying that Guilder Investments have zero responsibility. Also, why make a case when there is no case law, do you as a lawyer also decline to represent your client when there is no case law?

Case law helps us to understand the interpretation of the law, which is why I'm saying to you that you can't keep claiming that the charges are legitimate when case law tells us that shareholders can't be held responsible for the actions of directors. So you have to prove that your argument is correct by referring to case law where a shareholder was convicted for the actions of a director just like they are trying to do with Malema. This doesn't mean I'm against precedence, but we have to acknowledge that Malema's conviction will be precedence setting all over the civilised world and will/should shake the JSE.

 

[Galactica]

 

[Fulcrum29]

This doesn't mean I'm against precedence, but we have to acknowledge that Malema's conviction will be precedence setting all over the civilised world and will/should shake the JSE.

Something we both agree upon.

In regard with the report, the main discrepancies (involving Malema) points to:

Despite denials, incontrovertible evidence uncovered also shows that On-Point was paid by the Professional Service Providers under its supervision. Verified payments include R1 million paid by Mpotseng Infrastructure on 29 April 2011 into On-Point’s bank account with the relevant bank statement curiously showing the same amount being withdrawn for payment towards the “Ratanang Farm”, 5 days later. Another verified payment is an amount of R1,2 million by H L Matlala & Associates on 12 July 2011.

and

Bank statements of On-Point show, in addition to the Ratanang Farm payment, the payment of regular amounts of R100 000 to the Ratanang Family Trust totaling R2,17 million over a period of 17 months. Only one payment of R60 000 appears for the Gwangwa Family Trust. Undefined loans of R200 000 each are also reflected on the bank statements.

This being put into detail with Finding #3, which then comes back to Finding #2, A)

On-Point entered into “back-to-back” agreements in terms of which it received or was supposed to have received payment from Professional Service Providers for designs which it had drawn in respect of projects that it was contracted to manage and supervise. This constituted a direct conflict between On-Point’s obligations to objectively manage and supervise projects on behalf of the Department, its own financial interests and that of Mr Gwangwa, its sole Director. These agreements clearly constituted kickbacks, a form of gratification under section 12(1) of the Prevention and Combating of Corrupt Activities Act.

and F)

In terms of section 12(1) of the Prevention and Combating of Corrupt Activities Act - any person who accepts or agrees to accept any gratification from any other person or gives or agrees to give to any other person any gratification in order to improperly influence in any way the execution of a contract with a public body, is guilty of an offence. The evidence and information obtained during the investigation leads to the unavoidable inference that On-Point/Mr Gwangwa acted in contravention of these provisions when it/he entered into the “back-to-back agreements which impacted on the execution of the contract between On-Point and the Department, and accepted payments from the Professional Service Providers and the Department relating thereto.

These back-to-back agreements involved the "Ratanang Farm", "Sandton Property" and "Sundowns Property” which received payments made by On-Point, all in which Malema is involved.

There are much more to the report than the abovementioned Findings.

 

[rza]

If you are hoping for precedence then fair enough, but don't try and make it look like the state has a case against Malema based on case law and the current interpretation of the law.

 

[ToxicBunny]

If you are hoping for precedence then fair enough, but don't try and make it look like the state has a case against Malema based on case law and the current interpretation of the law.

We don't have to make it look like that.. they do have a case.

 

[rza]

We don't have to make it look like that.. they do have a case.

It would have went to trial by now, and we wouldn't be waiting for NPA boss decision on whether to drop charges or not.