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DAM-L Latest on Lesotho Corruption Trial - 2 Articles (fwd)



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Date: Tue, 19 Jun 2001 09:54:47 -0700
To: irn-safrica@netvista.net
From: Ryan Hoover <ryan@irn.org>
Subject: Latest on Lesotho Corruption Trial - 2 Articles
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R10,4m bribery trail led to Sole court told
Clive Rubin - Business Report
June 17 2001 at 07:39AM
After 18 months of legal wrangling, Ephraim Sole, the former chief 
executive of the Lesotho Highlands Development Authority (LHDA), rose in 
Maseru's high court and pleaded "not guilty" to 16 criminal charges of 
bribery and two counts of fraud before Judge Brandon Cullinan.

The prosecution alleged that over a period of 10 years Sole had illegally 
amassed R10,4 million, or the equivalent of 2 600 years of work for the 
average Lesotho citizen. (The figure of 2 600 years was calculated using 
data in the most recent Least Developed Countries Report by the United 
Nations, which puts Lesotho's average annual income at less than $500, or 
R4 000.)

Yet in a cruel twist of fate, Sole has had to apply for legal aid to pay 
for his legal defence. His local assets, including property and bank 
accounts believed to amount to several millions of rands, have been 
attached by order of the civil court, following a separate trial relating 
to civil claims.

This is despite Sole confiding that he is still earning income by doing 
"some consulting work privately".

Over the first three days of the trial, which is expected to last several 
months, the prosecution presented, in detail, its allegations and testimony 
of the first of several expert witnesses.

Evidence was presented seeking to prove that Sole had received payments 
from companies involved with the bidding for contracts to manage and 
construct parts for the Lesotho Highlands Water Project (LHWP).

"Payments made their way from Switzerland to South Africa E some of it made 
its way to (him) in Lesotho," said Guido Penzhorn, the senior counsel for 
the prosecution.

The payments, Penzhorn said, generally coincided with companies or 
consortiums pre-qualifying. They had tendered for and were awarded 
contracts for the multibillion-dollar LHWP, one of the largest 
international donor-funded dam building projects in the world.

The prosecution alleged the funds transited Union Bank of Switzerland 
account 60518360J. Evidence of the existence of this account surfaced with 
the co-operation of federal authorities in Switzerland after a request from 
the South African public prosecutor.

South African and Swiss authorities intervened because money was 
transferred from Switzerland to Sole's Standard Bank account in Ladybrand, 
before in some instances being transferred to Sole's account at Barclays 
Bank in Lesotho.

Before furnishing details, Swiss authorities had to be satisfied that there 
was a suspicion of impropriety by Sole and that a crime recognised under 
the Swiss penal code had been committed. A Swiss investigating magistrate 
instructed Union Bank of Switzerland to furnish proof of the existence of 
Sole's account. This included signatures, photocopies of identity documents 
and a letter written on LHDA stationery proving that the account belonged 
to Sole.

A succession of deposits and transfers from intermediaries on 18 occasions 
could be traced to companies that were involved with the LHWP.

It is alleged that, beginning in 1988, Sole benefited from payments from 
candidate companies that submitted tenders or companies that were awarded 
contracts.

Sogreah, an engineering concern that supervised contractors, paid amounts 
totalling Ff808 270 (R850 000) over three years until 1991. Spie 
Batignolles, a construction firm, transferred Ff941 882 over a similar period.

A consortium known as Highlands Water Venture, consisting of Impregilo of 
Italy, Hochtief of Germany, Bouyges of France, Stirling and Kier 
International of the UK and Concor and Group 5 of South Africa, is alleged 
to have paid $375 000 from 1991 to 1993. It won the Katse Dam contract.

Another group known as the Lesotho Highlands Project Contractors, 
consisting of Spie Batignolles, Balfour Beatty of the UK, Campenon Bernard 
of France, ED Zublin of Germany and LTA of South Africa, won major building 
and tunnelling contracts. Over a similar period it is alleged to have paid 
amounts varying from Ff4,6 million to P140 000.

In June 1994 a group with a similar composition, MuelaHPC, won contract 
129a, although Skanska, a Swedish company, had provided a lower tender.

However, MuelaHPC later modified its tender to make it lower than 
Skanska's. As a result, the African Development Bank decided to withdraw 
funding of contract 129a, and commercial finance had to be arranged from 
the Bank of Lesotho.

When the work was completed, MuelaHPC made additional claims and was paid 
close to 75 percent more than the revised lower tender.

According to one expert, this was the moment when the rot set in.

In addition, and on separate occasions up to 1995, payments relating to 
some of the 200-plus tenders and contracts for work on the LHWP known as 
phase 1a (including the commissioning of the 55m Muela Dam, a railhead for 
cement, border crossing facilities, a bridge with a span of 420m, a 24MW 
hydropower station consisting of three turbines, 82km of tunnels, 120km of 
tarred roads and supervisory consulting engineer contracts) resulted in 
Asea Brown Boveri (ABB) Germany, ABB Sweden, Lahmeyer International of 
Germany, Acres International of Canada, Sir Alexander Gibb and Partners, 
Cegelec and Coyne et Bellier and Dumez depositing amounts ranging from $7 
978 to Ff6 539 840 over seven years. This constituted the R10,4 million 
that flowed through Sole's account.

Many of the payments were one-offs, but others appear to have been paid in 
monthly instalments or retainers.

In the case of the allegations of fraud, Sole is alleged to have claimed 
expenses from the LHDA for supposedly attending a conference in Vienna in 
June and July 1991, while it is alleged that Sole visited Paris instead, at 
the behest of the contractor Dumez, which paid his expenses directly into 
his Swiss bank account.

The prosecution alleges that at around the same time as the meeting in 
Paris, cost overruns by Dumez for a road building contract resulted in a 
dispute.

However, at a meeting in Paris, Sole and Martin Schutte, an engineer 
employed by Van Wyk and Louw who was later dismissed for admitting to 
accepting $20 000 from Dumez, renegotiated Dumez's original memorandum of 
understanding from 54 million maluti and raised to "in excess of 56 million 
maluti". (The currency of Lesotho is pegged at parity with the rand.)

After arbitration and on the basis of the renegotiated Paris agreement, the 
LHDA settled its claim with Dumez in 1994 by "ultimately paying an 
additional 40 million maluti" over and above the original tender, for which 
Dumez had not originally reached the pre-qualifying stage.

Penzhorn alleged that the money and the method of payment used a 
"laundering technique" enabled by middlemen or consultants who included 
Zalisiawonga Bam, who until his death was a Lesotho-based engineer, his 
wife, Margaret Bam, Mikael du Plooy of Bloemfontein and a Mr Cohen.

They allegedly transferred money via Switzerland, which Penzhorn said was 
"illogical". It appeared that in return for transferring payments, these 
intermediaries deducted an amount that "varied from 40 to 60 percent".

Tsebang Putsoane, a Lesotho citizen and trained civil engineer, was the 
prosecution's first expert witness. He rose from the position of engineer 
at the inception of the LHWP to that of acting chief executive while Sole 
was suspended and the disciplinary hearings that culminated in his 
dismissal were completed. He told the court he "could not think of any 
reason why Bam or his wife should receive what amounted to a monthly retainer".

Nor was he aware of any arrangements or agreements under which Du Plooy, 
Cohen or the Bams possessed written contracts with the LHDA while he was 
acting chief executive of the organisation.

In the case of Du Plooy, Putsoane asserted that he was unaware of his 
existence until his name appeared on bank records.

Penzhorn added that the World Bank, which had directly funded a contract 
obtained by Acres International, a Canadian firm of consulting engineers 
that ran and oversaw several technical departments of the LHDA, "was not 
aware that Acres were paying Mr Bam a very substantial amount" and it was 
not aware of payments to any of the other intermediaries.

Later Penzhorn will call a forensic accountant from PriceWaterhouseCoopers 
to testify. In addition he will call two managers overseeing the project on 
behalf of the World Bank.




Lesotho tries to end corruption culture: Kingdom breaks the mould by 
putting western contractors on trial for bribery
The Guardian - United Kingdom; Jun 19, 2001
BY CHRIS MCGREAL IN MASERU

Multinational companies are about to go on trial in Lesotho accused of 
paying huge bribes to a local official, a case virtually unprecedented in 
Africa.
European and Canadian engineering companies, four of them British, are 
alleged to have paid an official about pounds 3m for contracts for one of 
the continent's biggest engineering projects, the pounds 1bn construction 
of huge dams to supply water and electricity to South Africa, which 
entirely surrounds the mountainous kingdom.
The British companies - Balfour Beatty, Sir Alexander Gibb and Co, Stirling 
International Civil Engineering and Kier International - are charged either 
individually or as members of consortiums created for the project.
Corruption trials are rare in sub-Saharan Africa, where oil companies 
routinely greased the palms of Nigeria's military dictatorships and diamond 
dealers ensured that President Mobutu Sese Seko of Zaire got his cut.
Officials in Kenya or Ghana may occasionally be hauled before the courts to 
give the illusion that the government was fighting corruption, but trial 
for those believed to have paid the bribes is unheard of.
The Lesotho attorney general, Fine Maema, said in an interview before the 
trial: 'We have taken the big companies by the horns. We cannot say because 
of the bigness of these companies they should not be prosecuted.
'People are quick to point the finger at Africa but if someone is taking 
the money then someone is paying it and they must be held accountable too. 
You can see from this case that it is not only Africa that is corrupt.'
If convicted, the companies will almost certainly be barred from bidding 
for contracts funded by the World Bank and the European Union, and these 
are the main sources of income for some of them.
The case began last week with the trial of Masupha Sole, who has pleaded 
not guilty to 16 counts of bribery and fraud.
Mr Sole was appointed chief executive of the Lesotho highlands development 
authority in 1986 when the dam project began. His primary responsibility 
was to award contracts worth hundreds of millions of pounds to foreign 
construction companies.
According to the indictment, the accused companies paid him about pounds 3m 
over a period of 10 years.
It says: 'The evidence will show that not only were payments involving 
millions of maluti [the currency of Lesotho] made by the contractors 
through the intermediaries to Accused 1 [Mr Sole] secretly, but also that 
they coincided with events leading up to the award of major contracts.
'The court will be asked to draw the inescapable conclusion that the 
payment of these monies to Accused 1 by the other accused were intended and 
constituted bribe money.'
Mr Sole allegedly maintained at least three Swiss bank accounts. The 
variety of currencies deposited - sterling, French francs,German marks, US 
and Canadian dollars - reflects the extent of the alleged conspiracy.
The prosecution says the companies were connected by a web of corruption 
and collusion and that graft became a standard practice in awarding 
contracts for the Lesotho dams.
The biggest bribes were allegedly paid by the Lesotho Highlands Project 
consortium, in which Balfour Beatty was a partner. The consortium is 
accused of depositing more than pounds 1m in Mr Sole's accounts over three 
years. The first payment, in 1991, was made weeks after it won a contract 
worth pounds 135m. A fortnight before it won another contract, for pounds 
41m, another big deposit was made.
Two other British firms - Kier International and Stirling International - 
are members of another consortium, Highlands Water Venture, alleged to have 
paid Mr Sole pounds 250,000. Sir Alexander Gibb and Co is accused of paying 
pounds 51,478.01.
Canadian, French, German, Italian, Swiss and South African companies are 
also charged.
The companies are accused of using middlemen- two South Africans and a 
Frenchman - to move the money through front companies registered in Panama.
The companies and their alleged intermediaries will be tried once Mr Sole's 
case has been heard. They have not yet been asked to plead but, in public 
statements, have strenuously denied paying bribes.
The prosecution says the onus is on the accused to establish that the 
transfers were not bribes.
Although the evidence of a link between the payments and contracts is 
circumstantial and largely based on coinciding dates, the prosecution 
argues that it was illegal for Mr Sole to hold the Swiss accounts and a 
breach of contract by the accused companies to make payments to Lesotho 
officials connected with the project. Apartheid's legacy
The dams have been controversial from their conception 16 years ago by the 
South African apartheid regime. International funding was initially routed 
through hidden accounts to disguise the fact that it was going to a racist 
government.
Thousands of people who lost grazing land and their homes to the project 
have complain of inadequate compensation. Few of those who live under the 
huge pylons carrying power to South Africa have electricity themselves.
The prosecution has the backing of the EU and World Bank, but both have 
played equivocal roles in the case. When the allegations first came to 
light the World Bank, which lent about pounds 100m for the construction 
project, suggested that no action should be taken for fear of undermining 
the scheme.
'When they heard we were going to do it, they actually doubted it,' Mr 
Maema said.
'Through various meetings we had with them, you could tell people were 
doubting whether that would be a reality. We were not under anyone's 
pressure at all.'
The case is likely to increase the pressure on European countries to 
enforce international conventions aimed at holding companies that pay 
bribes responsible in their own countries.
Britain has one of the worst records for combating corruption by its 
companies overseas, and is the only European country not to implement the 
Organisation for Economic Cooperation and Development's convention against 
corruption.
'This is a test case of the will of these countries to take own companies 
to court,' said Stiaan van der Merwe, southern Africa representative of the 
anti-corruption organisation Transparency International.
'It is covered by the OECD convention on the bribery of foreign public 
officials. The case has implications for the effectiveness and political 
will on bribery of foreign officials.
'I think this case will undoubtedly change the kaleidoscope on corruption 
internationally. If it is easily said governments in the south are corrupt, 
what is the moral judgement that should go to countries in the north to 
address this problem? Let the north not be so pontificating.'
Others may follow Lesotho's lead. The trial in Maseru coincides with public 
hearings in South Africa on alleged corruption by European armaments 
companies and politicians and officials in connection with a pounds 4bn 
order. Companies in the dock
Balfour Beatty
Partner in the Lesotho Highlands Project consortium, which is accused of 
depositing more than pounds 1m in Mr Sole's account over three years
Sir Alexander Gibb & Co
Accused of paying Mr Sole more than pounds 51,000
Stirling International Civil Engineering
Kier International
Members of the Highlands Water Venture consortium which is accused of 
paying pounds 250,000 to Mr Sole.







Ryan Hoover
Africa Campaigns
1847 Berkeley Way
Berkeley, CA 94703
USA
Phone: (510) 848-1155  Fax: (510) 848-1008
www.irn.org


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