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#StateCaptureReport: I had a right to use cellphone records, says Madonsela

Stellenbosch - It was perfectly within her power as then Public Protector to subpoena cellphone records as part of the forensics of her recently released report on state capture, Thuli Madonsela told Fin24 on Thursday.

She emphasised that the cellphone records referred to in her report were certainly not stolen, for instance, and added that one can determine very accurately where a person has been. She said the records were mostly used to look at who was called and calls from whom were received.

Madonsela's report mentioned that Eskom CEO Brian Molefe's cellphone records show he was in Saxonwold on a number of occasions, suggesting he may have been having meetings with the controversial Gupta family at their residence.

As part of the report, cellphone evidence revealed that Molefe and Ajay Gupta, the eldest of three Gupta brothers, made 58 telephone calls to one another between August 2015 and March 2016. The report further details phone calls between Molefe and Ronica Ragavan, a long-time Gupta associate.

At a recent Eskom briefing Molefe questioned the legality of obtaining the cellphone records and the deductions made of his location based on being present in a given area.

Cellphone tracking records indicate that Molefe was at or near the Guptas' Saxonwold residence 19 times between August 5 and November 17 2015.

READ: Molefe hits out on cellphone records, clarifies shebeen statement

When decisions are made in the public sector, the good governance question to ask should be if the public will benefit or not, Madonsela said at the 15th BEN-Africa Conference, which took place in Stellenbosch. She shared her views on the future of governance in the public sector.

She said the government and its employees should make sure their decision-making is seen in their capacity as stewards of the people. In her view, ethics and governance do not fail just because people make mistakes.

"Madiba said even the most benevolent of governments have within them the propensity of failure. That is why we have mechanisms for accountability in our constitution. The Public Protector is one such mechanism," she said.

She gave as an example the recent action taken by Tokyo Sexwale, independent non-executive chair of Trillian, to investigate allegations that executives in the company knew about the planned appointment of Des van Rooyen as minister of finance months before the shock move in December last year.

Trillian Capital Partners forms part of the Trillian Group, which is 60% held by Trillian Holdings, whose sole director is Salim Essa, said to be a close Gupta associate.

The Sunday Times recently reported that a member or members of Trillian had pre-knowledge that President Jacob Zuma planned to replace former finance minister Nhlanhla Nene with Des van Rooyen.

The newspaper claimed the firing of Nene and his replacement by Van Rooyen could have been planned months in advance, according to an affidavit given to then Public Protector Madonsela by an anonymous "whistleblower", who apparently used to be a former CEO of a business unit at Johannesburg-based Trillian Capital Partners.  

In response to the media report, Sexwale announced that he was not aware of the company doing anything wrong and announced plans for an independent investigation to fully test the veracity of the allegations made.

READ: Trillian chair Tokyo Sexwale to probe shock Gupta-Nenegate claims

Madonsela commended Sexwale for the action he has taken to determine the truth of the allegations.

"What lesson do we learn from this? If a whistleblower raises alarm, one should investigate, otherwise you suggest that the whistleblower is lying. One should not pre-judge a whistleblower," she said.

"None of us does work in pursuit of awards. We all do our work the best we know how, hoping the greatest benefit we will get from it would be to have a good sleep at night and not toss and turn because we sold our own souls for external awards."

She said when governance fails, things fall apart – whether in the public or in the corporate sector. One of the reasons governance fails is because of a deficit in ethical leadership, in her view.

Madonsela emphasised that no entity or institution should depend on one individual. That would be a sign of governance failure.

Ethical leadership

"Institutions are entities and must function on rules and procedures, and not depending on one person. Ethics is a note about sticking to the letter of the law – about obeying or implementing the spirit of the law – meeting the purpose for which your position has been created," she said.

"With ethical leadership both ethics and leadership are very important. Ethics would always be about doing the right thing the right way – and sometimes there can be one decision that is more right than an alternative decision which could also be right.

"In government you need effective and impactful leaders. You cannot say you want to create a society where people are accountable, but then say you yourself are not accountable," she said.

"Purposeful leadership is about always knowing what you do has an impact. That is the kind of leadership we need. It is not enough to say you did something, not enough to say you have a committee or an activity. You need to measure the impact. Your job is to look after the entire collective. The ones who did not vote for you are still stakeholders too."

She said, although South Africa has functional institutions and a good banking and financial services sector, there are lapses in governance which are becoming common in important pockets of government. This is worrisome, she said.

That is why she sees the King report on corporate governance as a glimmer of hope.

"I see a new world being born with new transparency, but that new world has many midwives and you are those midwives," she said.

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