Judge Dennis Davis said he has noticed how quiet Sanlam has been in the whole Absa-Bankorp scandal.
Judge Davis led the Davis panel of experts appointed by then South African Reserve Bank (Sarb) Governor Tito Mboweni which investigated the so-called unlawful apartheid-era bailout of Bankorp.
The judge, who was a guest of the Cape Town Press Club on Monday, said the main beneficiaries of the loan monies provided to Bankorp — which was absorbed into Absa in 1992 — was Sanlam. "I notice how Sanlam... is very very quiet about this."
Judge Davis, however, argued that the bulk of just over R1 billion provided to Bankorp — which included Trust Bank and Sanlam at the time the loans were made — went to Sanlam.
There was now a problem about how to seek restitution 20 years later and who should be held liable. Was it shareholders in Sanlam now, or shareholders then? he asked. Was it pension funds who held shares in Sanlam? There was the added problem that Sanlam was "demutualised".
Judge Davis told the audience that loans may be the wrong word to use as they were "simulated" transactions. This is money that is "not kosher", dressed up as a loan, but could in effect be a form of corruption or theft.
Absa — which incorporated Bankorp in the early 1990s — previously described the preliminary report by Public Protector Busisiwe Mkhwebane that recommended in January the bank pay back R2.25 billion it received as part of an unlawful apartheid-era bailout — as "regrettable", according to Fin24 in January.
The bank reported that the Davis panel found that Absa's shareholders did not derive any undue benefit from the Sarb's intervention, and as such no claim of restitution could be pursued against Absa.
Radical groups like the Black First Land First on Friday demanded that the Sarb ensures that Absa pays back the money. The group marched on the Sarb on Friday.
Judge Davis, who warned that the political noise behind the apartheid funding scandal could take it into the terrain of "fake news" by exaggerating its importance as a corruption issue, said there was room for further investigation into apartheid-era corruption. Asked if he was suspicious that avenues — other than an then Afrikaner banking institution like Absa and Bankorp — had been used for apartheid looting, he said he believed this was so.
Judge Davis said there were plenty of rumours about sanctions-busting activities. "I know in the 1980s a lot of [anti-apartheid] sanctions busting activity involved relabelling South African products. I know they set up structures offshore... I know that ... a lot of transfer pricing took place when the Revenue (service) had no transfer pricing capacity. You sold a good (an item) for ten... to a company is some country which you could say is the country of manufacture... they sold it on for 50 and you got back 10 and the 40 was kept offshore. That allowed people to accrue huge sums of money offshore illegally... whether with government connivance or not... I don't know," he said.
"We don't know how much money we have illegally out of the country. The Swiss banks and others who have been speaking to me in relation to the voluntary disclosure programme... tell me that the amount of money we got from the amnesty 15 years ago is small money compared to what they are holding at present... they don't want to hold the money anymore because they are under pressure, but all I am telling you ... they are talking about vast sums of money illegally secreted out of the country that they want regularised."
Pressed on how much, Judge Davis said: "They are not going to tell me that", but estimated that it could be up to R20 billion. "You can take your guess.. it is a very significant amount of money."
Judge Davis said even if South Africa got R10 billion out of voluntary disclosure that would make all the difference for this week's national Budget. He suspected that South Africa would get far more than it expected from such a process.
Turning to the Budget, due on Wednesday, he said he "had heard talk" that there were proposals to take R400 to R500 billion out of the Public Investment Corporation — which manages over a trillion rand in assets including the Government Employees Pension Fund — and using it for tertiary education and other matters.
"It is the money of ordinary people... if you took R500 million out and use it for capital expenditure what interest rate are you going to charge on that sufficient to recompense those people whose money it is? If you took 6 percent on it... that is a R30 billion loss each year."
A "cavalier Venezuelan-type" economics style was "extraordinarily dangerous", said Judge Davis, warning that one should not get to the point where prudent economics is written off simply as neo-liberalism. It was wrong to use pension money and workers' money for imprudent purpose, he argued.