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South Africa, Not a Collection Bureau, Tycoon in Congo Tussle Told
Rob Rose, Business Day (Johannesburg), May 26, 2005
ON JUNE 7, government will attempt to extricate itself from a saga of skullduggery and illegal smuggling in Democratic Republic of Congo.
A civil case will be heard in the Pretoria High Court in which businessman Frans Rootman will ask President Thabo Mbeki to enforce a judgment he was granted against Congo's government last year, forcing it to pay him $12m for uncovering metals smuggling. The mounds of affidavits and court judgments in the case underline the ease with which covert activities take place in conflict-ridden areas in Africa, and which can spill over into SA.
In 1998, Rootman says in his affidavits, while mining and prospecting in Zambia, he discovered a "substantial amount of cobalt and copper was being smuggled out of (Congo) through Zambia and onto international markets, mainly through the ports of Dar-es-Salaam (in Tanzania) and Durban".
He claims in court papers that he concluded it was coming from Congo's Lubumbashi mine in Katanga province, operated by a government-owned company, Gecamines. Gecamines' CEO was Billy Rautenbach - the Zimbabwean businessman sought by SA's authorities for alleged fraud and theft relating to the now-collapsed Hyundai and Wheels of Africa companies.
Rootman says he struck a deal with then- Congolese president Laurent Kabila that would see him take a share of any recovered metals if he could investigate who the thieves were and how they were stealing the metals. Rootman claims in his affidavits that his probe concluded Rautenbach was the thief. "Rautenbach was helped and assisted by officials in the Congo, SA, Botswana and Zambian governments."
Rootman says much of the stolen metal was transported to SA in trucks belonging to Wheels of Africa. "The trucks ... contained secret compartments (with) stolen cobalt (which was) later marketed as cobalt belonging to Rautenbach's companies," his affidavit reads.
He says the metal was marketed through Rautenbach's company, Richpoint, which became one of the biggest international cobalt traders despite it having no primary source. Rautenbach was immediately sacked by Gecamines and fled to Zimbabwe, while several people were jailed for their roles in the scam. Rootman claims his company was to be paid 10% of the value of the cobalt recovered, but never received any money. He went to court and although Judge Willie Hartzenberg decided in September 2003 that the Congolese government had to pay $11m to him, he has been able to recover only $1,9m by attaching and selling Congo's presidential jet when it landed in SA.
Now Rootman is relying on SA's constitution to get Mbeki to assist him. He argues that the constitution gives Mbeki "responsibility to assist and protect the courts through legislative and other measures to ensure their independence, dignity and effectiveness". He has exhausted all available remedies, he says, even going to Belgium and Israel to attach assets belonging to Congo, with little success.
A recent court case could provide a precedent. Last month, acting Chief Justice Pius Langa ruled in the Constitutional Court that government should take steps to assist a Benoni farmer to remove 50000 squatters from his plot. Rootman says in his affidavits that this underlines the right of private citizens to call on government to help enforce their legal rights.
Government has rejected this, saying in answering affidavits it cannot act as a "super-sheriff" for every unsatisfied judgment creditor by enforcing a private-sector judgment against another sovereign state. It says Rootman's calls for assistance are "vague", and asks: "Are (Mbeki and Justice Minister Brigitte Mabandla) expected to place state machinery at (his) disposal so as to act as a private collection bureau?" It also says Rootman "seems to lose sight of the fact that he freely entered into a contract with a foreign, sovereign state", which ended unfavourably, but does not necessitate government's involvement.
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