sharing in governance of extractive industries
By Tim Cohen
PRESIDENT Jacob Zuma
’s nephew Khulubuse Zuma is reliably understood to have sold on his
disputed rights — thought to be worth tens of millions of dollars — to
oilfields in the Democratic Republic of Congo, only four months after
gaining them in a controversial battle with Tullow Oil, a UK prospector
and oil producer.
Khulubuse Zuma was not available for comment yesterday, but news of what would be an extremely rapid enrichment will fuel
resentment and anger in S A about the president’s friends and family and
their involvement in lucrative business deals.
The vice-president for African business of Tullow Oil, Tim O’Hanlon, said yesterday that lawyers for Mr Zuma and the president’s
lawyer, Michael Hulley, had argued in a letter that Tullow’s legal
challenge to the granting of rights to Mr Zuma and Mr Hulley was too
late because the oil blocks had been sold on.
The case is a mirror-image of the current dispute over the former Sishen mineral rights in which the president’s son Duduzane
emerged as a shareholder of the victorious company " onmouseout="hidedata();" onclick="CompanyLookup('37443', 'Company...
Crown Trading, except the Congo case has an international dimension.
In the Congo case, Tullow Oil had applied for two exploration blocks and
were repeatedly informed by Congo’s President Joseph Kabila that the
application would be approved.
But in May this year, after a much disputed process, the rights were in fact granted to two companies called Caprikat and
Foxwhelp. Both companies are registered in the British Virgin Islands,
and the shareholding is unclear. However, receipt of the rights was
reportedly signed for in the case of Caprikat by Khulubuse Zuma and Mr
Hulley signed on behalf of Foxwhelp. Tullow has initiated an
administrative action in Paris but also legal actions in the Virgin
Islands against both companies. It was apparently in response to the
initiation of these legal actions that Tullow became aware that the
stakes had been “passed on”.
Mr O’Hanlon said yesterday: “The investment community and hopefully South African citizens generally are waking up to the fact
that these characters have nothing to offer the destitute people of the
Mr Hulley did not respond to requests for clarification last night, but it is understood that the legal position of Caprikat and
Foxwhelp will be that Tullow never had an effective and valid right to
In Congo law, rights have to be approved by a published presidential decree, which Tullow admitted did not happen in its case,
despite submitting a production sharing contract (PSC) over four years
ago for presidential consideration. A PSC is a common agreement in
exploration contracts within the oil industry.
Tullow is likely to counter- argue, however, that its PSC was in fact signed by the finance minister and the deputy energy
minister, on behalf of the energy minister, after a long and
comprehensive application and negotiation process.
This negotiation process got caught up in the 2006 elections in the Congo, and there was a delay while the outcome of the
elections was ascertained.
After the elections, a new energy minister was appointed and he considered that there were problems with Tullow’s application, in particular the 500000 signature bonus applied only to a single block.
This process, it is understood, contrasts markedly with the process in terms of which a subsequent application was made by a
company called Divine Inspiration. This claim appears to have morphed
into Caprikat and Foxwhelp gaining rights to the oil blocks.
Tullow is likely to argue in court that at the very minimum, countries generally require companies applying for oil
exploration rights to have proven technical and financial capability
because of the technical difficulties and significant sums of money
involved in oil exploration.
However, it appears that in the case of the PSC of Divine Inspiration, neither the financial nor the technical capacity of the company was evaluated.
In another twist, however, it appears that PetroSA was somehow party to proceedings in a secondary capacity since it is
understood that the Congo government evaluated the technical capability
of PetroSA — though it was not specifically mentioned as a party within
Tullow is expected to raise the issue of transparency generally, since the precise ownership and obligations involved in the
companies which were granted the rights is unclear.
The confusion about the precise nature of the rights had already created some misunderstanding, after it was reported that
Mvelaphanda Holdings was involved. The Mail and Guardian has reported
that Human Settlements Minister Tokyo Sexwale was linked to the oil
rights claim. Mvelaphanda Holdings CE Mark Willcox denied any stake in
the companies, but confirmed he and Mvelaphanda were giving “strategic
advice” to the president’s nephew. The case involves some of the first
oil rights to be granted by the Congo government, but they have likely
gained in value significantly, ironically because they border on oil
blocks in next door Uganda and which have been developed extensively by
The two Congo oil blocks are in the Albertine Graben area near Lake Albert and are considered hot prospects. Tullow has already
spend $700m in the Ugandan blocks, which have the potential to transform
Uganda’s fiscal position. It’s not clear how much Mr Zuma’s companies
or their successors are due to invest, but no prospecting work has begun
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