FORMAL RESPONSE TO SAFA

 

STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION - (SLAPP)

SAFA to take legal action against individuals circulating defamatory statements 10 June 2023

 

PORTFOLIO COMMITTEE ON SPORT, ARTS AND CULTURE

Zoleka Kula
Ajabulile Mtiya

The DEPARTMENT OF SPORT, ARTS AND CULTURE

Minister Zizi Kodwa

SAFA NEC

Lydia Monyepao
Irvin Khoza 
Anastasia Tsichlas 
Linda Zwane 
Bennett Bailey

FIFA 

General Secretary: Fatma Samoura

CAF

President: Patrice Motsepe

COSAFA

President: Artur de Almeida de Silva

 

I am the author alluded to in this online statement of 10 June 2023 issued by SAFA:

In reviewing the SAFA statement in response to a report I published recently concerning SAFA I was reminded of a comment I penned while writing as a regular columnist for ITWeb’s iWeek magazine some years back.

“Corruption, people, isn’t some abstract concept that gets discussed around a coffee table! Corruption is a concept constructed upon causal links where X marks the spot.”

To Wit

1.     "We have never heard of this supposed forensic investigator, and apparently, he is a government official in the City of Johannesburg where he is an advisor. Johannesburg is one of the bidding cities for the FIFA Women’s World Cup in 2027. So we find it strange that only on Thursday (8 June 2023) the MECs and Minister of Sports, Arts and Culture Zizi Kodwa endorsed the Bid, including Johannesburg and Gauteng. On Friday (9 June 2023) this man is coming from nowhere, with no proof, making serious allegations. It is on this basis that we have no choice but to embark on a legal process to protect the name of SAFA, the Legacy Trust, FIFA and individuals in SAFA.”

1.1  This public statement put out by SAFA goes to the heart of what’s wrong with the organisation.

1.2  I published the report along with a petition I initiated on a platform called change.org.

1.3  I am not a government official in the City of Johannesburg in any capacity whatsoever, least of all as an advisor and never have been. I find this claim preposterous.

1.4  I am quite rightly supposedly a forensic investigator. I have been one since 1994 and began to appear publicly in 1996 quite extensively in relation to major investigations which led to an Auditor General investigation, Office for Serious Economic Offences investigation and ultimately an Attorney General investigation.

1.5  I have contracted to numerous Ministerial investigations since, at National Department level, but have never contracted to any Government Department at Provincial or Municipal level.

1.6  As a supposed forensic investigator, I am somewhat familiar with the concepts of sound corporate governance, having been a student of, and first grappled with this topic as far back as November 24, 1997, when in a leading financial publication Business Day, I published an article under the heading of “Corporate Governance Must be Prescribed” in the Analysis section on page 12. 

1.7  This article is no longer available online, but it has kindly been forwarded to me by the current editor of Financial Mail, Mr Rob Rose.

1.8  In the article I advocate for a more prescriptive governance model along the lines of Treadway (US) or at least Cadbury (UK). I advance, the "buy-in" suggested by the King report allows too much leeway in the practical interpretation and implementation of its Corporate Governance recommendations.

1.9  I also advance, “as the board is responsible for setting policy, it is able to override policy” as among my reasoning.

1.10  I believe my views in 1997 have been somewhat vindicated in recent times by a more recent article, Governance conundrum: Corporates disregard the King report 31 Oct 2021.

1.11  Likewise, I have been a student of, and first grappled with the topic of Ethics since 1998, having published my first article on the subject also in Business Day which appeared on the Comments and Analysis page, as the lead article on page 9 under the heading “Masterbond Saga Exposes Lack of Ethics”.

1.12  The article leads with the paragraph, “The Nel commission's first report on its inquiry into the Masterbond debacle, and investor protection in general, highlights how virtually every rule of honesty and integrity vital to ensuring organisational well-being was transgressed in the collapse of the investment scheme.”

1.13  Academically I have been a lecturer for and invited to speak as an expert in the fields of  Governance Risk and Compliance and Forensic Auditing by a number of academic, and governing bodies for the professions including the Institute of Chartered Secretaries (SA); Institute of Credit Management (SA); Institute of Chartered Accountants (Zim); Institute of Internal Auditors (SA); Institute of Advanced Studies; Malaysian Securities Commission; Nigerian Central Bank; Central Bank of Kenya to name some. 

1.14  I have been a main speaker at numerous white collar crime summits and symposia and have been an official research partner on the NEPAD African Peer Review Mechanism Process.

1.15  “We have never heard of this supposed forensic investigator”. This is absolutely through no fault of mine.

1.16   As I once said to former Minister Geraldine Fraser-Moleketi in her board room at Batho Pele House to her question “Who are you?”, It was also because I came out of “the blue”. I simply replied, Google!

1.17  Suffice it to say her Deputy Chair of the State Information Technology Agency and Government Chief Information Officer resigned soon after.

1.18   There’s nothing sinister about it. I just don’t go around making a noise while I go about doing my job.

1.19   In my petition I stated, when referring to the report to which SAFA has responded with a threat of legal action, “I have been a forensic investigator for 28 years, but I have never seen this many governance, risk, compliance and transactional red flags in a single organisation before! How SAFA has managed to function for this long without being placed under investigation is beyond me.”

1.20  I consider myself sufficiently competent to have made that statement and as such stand by that statement and stand by the attached report in its entirety. It is uncompromisingly evidence-based and fact driven. It has also been subjected to a relentless peer review process. I regard it as accurate, cogent and precise.

1.21  I not only anticipate, but relish the opportunity to defend my report in a court of law.

1.22   But perhaps SAFA and FIFA might have wanted to pay attention instead of SAFA resorting to threats. It has been said I give sound advice.

1.23   Having said that, I find the tone and posture of SAFA’s statement quite perplexing. The SAFA statement seems more interested in protecting its President and CFO, advancing their protection as being somehow integral to South Africa’s Bid to host the FIFA Women’s World Cup in 2027.

1.24  SAFA has 4 Vice Presidents and 47 members of the NEC, not to mention an entire nation. Since when did SAFA and South African Soccer distil down to two people?

1.25  The rest of SAFA’s statement is pure obfuscation and studiously avoids key issues as set out in my report.

2.  “As far as SAFA is concerned, we have submitted an unqualified audited financial statement for every year of operation, including, the recent AGM where the audited financial statement was approved.

The final closing report of the Trust has been submitted to all SAFA members and to FIFA. 

The Chief Finance Officer of FIFA attended all Legacy Trust meetings. Ernst & Young submitted unqualified audited financial statements for every year of operation of the Trust”

2.1  This is all nice to know, but SAFA does not address the burning issues. 

2.2   What SAFA does do is attempt to bury the burning issues behind auditor imprimatur.

2.3   SAFA also attempts to throw FIFA under the bus by rationalising with regards to the questions I raise surrounding the 2010 FIFA Legacy Trust that The Chief Finance Officer of FIFA attended all Legacy Trust meetings.

2.4   My report deals with significant Governance, Risk and Compliance issues at SAFA.

2.5   My report deals with a very serious criminal complaint under investigation by the Hawks.

2.6   My report deals not with whether the 2010 FIFA Legacy Trust was dissolved, but how it was dissolved.

2.7   For reference to my report: Quoting the FIFA Trustee in an email on 27 Oct 2021. Federico Addiechi (FIFA) wrote to Legacy Trust Trustees, Ria Ledwaba, Joe Carrim, Danny Jordaan, Elvis Shishana, Obakeng Molatedi, to FIFA Joyce Cook, Thomas Peyer, to ENSafrica’s Mansoor Parker, and a Clive “Grineker?” stating;

“Dear all, 

As mentioned in a previous e-mail to Joe, we, at FIFA, are reviewing the entire documentation submitted to the Trustees on 8 October. We understand, however, that the Trustees representing SAFA did not receive that information or at least not through the same e-mail. 

While FIFA's feedback is still pending, we would like to express our surprise and concern with the decision to remove the three SAFA representatives from the Trust, including the Trust's Chairperson and longest-serving member. 

We have involved our Legal team to assess this decision and provide us with legal guidance as of what the next steps should possibly be. Irrespective of that analysis, however, SAFA's decision is worrisome and sheds a very negative light onto the more than ten years of work and impact of the 2010 FIFA World Cup Legacy Trust.
Accordingly, FIFA's expectation is for SAFA to revert that decision and for the three members (and in particular the Chair) to continue their functions until the soon-to-come dissolution of the Trust. 

FIFA and SAFA created and shaped the Legacy Trust a decade ago and worked hand in hand to deliver to its objectives. There should be no other way of closing the Trust's work than in a joint manner too. Any alternative to a joint closure would send a very negative message that would damage the reputation of the Trust, its members and its work.”

2.8  I repeat, that the Trust was dissolved is not in dispute, that the 2010 FIFA Legacy Trust was seemingly irregularly dissolved is the question, which FIFA has answered in the affirmative. 

2.9   To date the three SAFA representatives from the Trust, including the Trust's Chairperson and longest-serving member have never been privy to the Trust’s Bank Statements as is their right and fiduciary duty to inspect at any time. 

2.10   My interest in SAFA’s annual financial statements is purely academic on how SAFA’s auditors came to balance SAFA’s books and transactions that “gave SAFA a clean audit”. 

My interest rests in the underlying transactions that gave rise to the transactions the SAFA auditors relied on.

2.11   “Corruption, people, isn’t some abstract concept that gets discussed around a coffee table! Corruption is a concept constructed upon causal links where X marks the spot.

2.12   It is these transactions SAFA have hidden behind a corporate veil. 

2.13   To assist SAFA, R65 million was paid by SAFA from Legacy Trust funds, to ENS Attorneys, to pay the seller of Fun Valley;

Can SAFA avail ENS please provide the affected Trustees as referred to by Federico Addiechi above with the authentic records of the disbursement of these funds including into which accounts as is their right to possess and in order for them to exercise their fiduciary duty? 

2.14   Can SAFA or FIFA please provide the affected Trustees as referred to by Federico Addiechi above with full financial records and Bank Statements of the 2010 FIFA Legacy Trust from 2013 to the date of closure of all Trust bank accounts as is their right to possess and in order for them to exercise their fiduciary duty? 

2.15   Could SAFA please provide to the affected Trustees as referred to by Federico Addiechi above a full reconciliation of all monies paid to SAFA by the 2010 FIFA Legacy Trust along with a full account of disbursements in accordance with the request for such funds by SAFA and approved by the Trust, along with all bank statement proof of payments to intended beneficiaries.

2.16   There are various financial transactions flagged in my report. Could SAFA please address them?

2.17   There is a high-level criminal complaint currently under investigation by the Directorate for Priority Crime Investigation (HAWKS), in which SAFA’s President is referred to as “main suspect”, and CFO is regarded as a suspect. It is highly irregular and prejudicial to have two key suspects in an investigation involving serious economic crime to be allowed to remain in situ during the course of such an investigation.

2.18   Will the President and CFO voluntarily step aside during the course of this investigation, failing which will SAFA suspend them?

2.19   Finally, I will be taking legal counsel of my own in reviewing the matters as set out in my report in drafting my own affidavit in support of any investigation current or anticipated into SAFA. I am increasingly of the view that there is something seriously amiss at SAFA, also involving the 2010 FIFA Legacy Trust. 

As for the utterances and threat, namely the Strategic lawsuit against public participation (also known as SLAPP suits or intimidation lawsuits), or strategic litigation against public participation from SAFA, I view these with the total contempt they deserve.

 

Bart Henderson