Malema's time of reckoning

A three-car juggernaut of investigations is steaming down on Julius Malema, and he has lined up a powerful defence team as they approach final stages.

Malema's lawyers have warned state authorities not to bow to a "political agenda" to arrest him.  

At the head of the train is the public protector's probe into On-Point Engineering, the Malema-linked company at the centre of allegations regarding dodgy contracts with the Limpopo government.

Close behind is the South African Revenue Service (Sars), which is preparing to try to collect a multimillion-rand tax bill from his Ratanang family trust.

Bringing up the rear is the Hawks's investigation into corruption and money-laundering charges, which, notwithstanding rumours of Malema's imminent arrest, appears to be less securely on the rails, despite claims of increasing political pressure for the state to act against him.

Protector's axe set to fall
Public protector Thuli Madonsela is finalising her investigation into On-Point and told the Mail & Guardian this week that it would be released soon.

Affected parties, including Malema, have received her provisional report for comment.

Madonsela's office has been investigating contracts related to On-Point since August last year following a string of media reports alleging businesspeople had deposited money into Malema's family trust bank account in return for tenders.

At the time, the M&G exposed how On-Point won a R52-million contract to administer part of a R4.6-billion provincial roads budget for the Limpopo roads and transport department.

This newspaper previously identified contracts administered by On-Point worth R34-million that were awarded to companies linked to Malema, his political ally Limpopo Premier Cassel Mathale and On-Point chief executive Lesiba Gwangwa.

However, the total value of contracts under On-Point's administration was far greater. It was revealed that On-Point had allegedly demanded to be cut in on

several contracts in return for ensuring that certain businesses won tenders.

Malema has consistently denied that he had any influence over On-Point's operations, and both On-Point and the department of roads and transport denied that the company exercised any influence over tender awards.

It is understood that a provisional draft of the report, circulated several weeks ago, concluded that the controversial R52-million tender was "unlawfully" awarded to On-Point, but did not uncover evidence to implicate Malema in wrongdoing.

According to a letter from Malema's lawyers to the National Prosecuting Authority (NPA), seen by the M&G, the provisional report states that "... no evidence or information could be found during the investigation of any involvement of Mr J Malema in the procurement process …"

However, it is understood that Madonsela has recommended that steps should be taken to recover monies flowing from the unlawful On-Point contract as "the proceeds of crime" and that this would potentially hit profits or dividends that were distributed to the Malema family's Ratanang trust, which holds shares in On-Point.

Neither Malema's lawyers nor the public protector were willing to comment on the contents of the draft report, which remains secret and is subject to amendment. Gwangwa also declined to comment.

Sars loses patience 
The Ratanang trust is also at the centre of the drawn-out interaction between Malema and the taxman.

Although both Malema and Sars have repeatedly refused to talk about their engagements, which are covered by the secrecy provisions of the Income Tax Act, it is understood that Sars has now presented a final bill on Ratanang.

The Sunday Independent reported in May that the trust was alleged to owe R15-million, though Malema was quoted as saying he believed the figure was higher.

The M&G has not been able to verify this figure independently, or claims aired by Eyewitness News this week that Malema was about to be arrested on criminal charges, including tax fraud.

However, sources familiar with how Sars operates suggest that tax charges are unlikely and that tender fraud or money-laundering charges are probably the focus of the Hawks' attention.

The Hawks' dilemma
It appears Malema himself believes his arrest is imminent and he has attempted to pre-empt the Hawks and the NPA.

His lawyers have written to acting national director of public prosecutions Nom­gcobo Jiba and Hawks boss Anwa Dramat to challenge plans to arrest him. They state: "It has come to Mr Malema's know-ledge that there is a political plan to have him arrested and incarcerated within days, inter alia for charges relating to the Marikana incident and related events of unrest.

"Mr Malema is deeply concerned as to this information and, if true, provides stark evidence that there is a political agenda to have Mr Malema arrested and charged for crimes that he did not commit.

"Any attempt to have Mr Malema arrested and brought before a court on charges which are unsustainable will be motivated by an ulterior motive to silence him as a political opponent to other politicians and to interfere with or limit his constitutional rights, including his right of freedom of speech," the letter states.

Charges were laid by the Solidarity trade union for comments Malema made while touring mining communities during the past few weeks, but legal commentators have largely dismissed them as unsustainable, given that Malema is not known to have incited violence directly.

However, the M&G understands that the Hawks investigation of the On-Point matter has been concluded and that prosecutors came under pressure at a meeting of the NPA last Thursday to act on their findings.

His lawyers letters, dated Sep­tember 17, reiterate Malema's contention that he has committed no crime, including drawing attention to the public protector's finding.

They also offer Malema's co-operation, request the opportunity to make representations about why he should not be prosecuted and argue that there is no need for Malema to be formally arrested.

"If the [NPA] decide to prosecute Mr Malema … there is no need to have him arrested to secure his attendance … or to keep him incarcerated for the duration of his trial."

However, the NPA faces the prospect of Malema, like Zuma before him, using an arrest and trial for an extended spree of mobilisation.

The Friends of the Youth League have already promised such a campaign and Malema has assembled a high-powered legal team that includes advocate André Bezuidenhout and street-fighting legal firm Brian Kahn Attorneys.

Prosecutors will want to have a watertight case before they put Malema in the dock.  



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