In this virtual meeting, the Committee received briefings from the Free State Department of COGTA on the state of forensic investigations in municipalities in that province. The Directorate for Priority Crime Investigation (DPCI), Special Investigating Unit (SIU), and National Prosecuting Authority (NPA) also made presentations in this regard.
The NPA listed the following challenges
-The cases were highly technical and very voluminous.
-Procurement prosecution is a specialised field and needed a unique skill both from investigators and prosecutors.
-Witnesses were in the employ of the municipality and were reluctant to cooperate due to fear of reprisal.
-Witnesses who did cooperate with the State ended up being suspended or shunted around.
-As soon as complicit officials become aware of investigations, they hide or destroy documents and it becomes difficult to construct a case.
-When cases end up on the court roll, delaying tactics were employed by the defence.
The Deputy Minister of Cooperative Governance informed the Committee that the Department was limited under the law because nobody could take over the powers of the council, even when the council deliberately did not follow the action plan of the AG. There was a national intervention in Mangaung Metropolitan Municipality, but the intervener was supposed to go through the council to get the recommendations approved. That wasted a lot of time in instances where the council was hell-bent on not doing what they were elected to do. Mangaung Municipality currently had no budget. The Department had done everything it could, but the council had not adopted a budget. The Department could not adopt it on their behalf.
The Chairperson noted that municipalities had failed to execute and discharge their constitutional obligations. That was why this meeting was taking place. If the oversight committees were functioning effectively at a municipal level, if municipalities were holding their executives accountable for their own activities, if municipalities headed the recommendations and implemented the recommendations of the Auditor-General, then there would not be this situation. If the municipalities had put up the necessary systems of reporting and whistleblowing, of reporting crime or corruption, then those responsible would not act with impunity and disciplinary actions would be taken against them. This was a statement that everyone involved with local government needed to embrace and everyone needed to look at what they could do to ameliorate the situation. The system was failing and that was why there were all these investigations by the law enforcement agencies.
He advised the law enforcement agencies to be better coordinated in their work. If they worked together as a unit nothing was going to defeat them and they would make a huge contribution in respect to fighting crime and corruption within the municipalities.
The Chairperson added that the Committee would make a recommendation that there needed to be a discussion in terms of the nature of the information that must be shared with different Committees of Parliament by the law enforcement agencies. Witnesses needed to be protected and the information needed to be protected. There needed to be a balance between accounting and giving away information that would jeopardise the investigations. Parliament needed to have a discussion so that it developed a uniform approach to how it received information from the law enforcement agencies.
The Chairperson welcomed all those in attendance at the meeting. The Committee had invited the heads of the law enforcement agencies, the HAWKS and SIU, as well as the NPA. This was an important meeting. The Committee invited the Free State Department of COGTA, whom it had interacted with three weeks ago. Officials within the Department had been invited. The Committee had also extended an invitation to the affected municipalities. He noted the apologies he received for the meeting. He noted that the Minister of Cooperative Governance and Traditional Affairs, Dr Nkosazana Dlamini Zuma, and the Minister of Police, Mr Bheki Cele, would not be in attendance.
The Committee was looking to have a fruitful engagement with the law enforcement agencies. He was grateful to the heads of the law enforcement agencies. They never failed at all material times to engage with the Committee on specific issues that it had an interest in, as the Select Committee. He thanked the heads of the law enforcement agencies for attending the meeting and appearing before the Committee amidst their busy schedules. The focus of this meeting was on the Free State province.
The Chairperson detailed how this meeting had been conceived. The Committee had been engaging with the Department of COGTA in the Free State. The Committee was looking at their investigations in terms of section 106 of the Municipal Systems Act. Section 106 of the Municipal Systems Act calls for the MEC of COGTA to institute an investigation and appoint an investigating team when allegations that border on fraud, corruption, maladministration, or nepotism were made. That provision of the Act called for the MEC to institute the investigations into the respective municipalities that were affected by that. When the Department of COGTA presented before the Committee, it told the Committee that its investigations started as far back as 2014. In the course of those investigations, some of the reports were available and some reports were not available. It indicated that some elements of corruption had happened in respect of those investigations. All of these had been referred to the law enforcement agencies for further investigation. Eight years along the line nothing substantive had happened in those municipalities. It would seem that people acted with impunity. People did as they wished. On the other hand, municipalities were crumbling. The Free State had one of the worst municipalities in the country. The UIF was skyrocketing. Municipalities adopted underfunded budgets. Their expenditure was more than their income. There was no effective service delivery. At the end of the day, it was the poor people who were adversely affected by those situations. That needed to be confronted. The Department was here and would speak for itself. The Department had referred these matters to the law enforcement agencies. There was information and excuses. The Committee expressed its dissatisfaction and revulsion on that state of affairs. It was on that basis that the Committee felt it was appropriate to request all the law enforcement agencies to focus on the Free State province. The Committee could see, through the media, that there were a lot of issues that occurred in the Free State province, whether it was at the level of the province itself or the municipalities. A lot was taking place but if there was no concomitant action that was taken by the law enforcement agencies to curb this scourge then it became a problem. It meant that perpetually all of these things would happen. It was on that basis that the Committee felt it appropriate that the Committee needed this engagement today. The Committee was happy that this meeting was taking place to reflect on those particular issues. The Chairperson requested that the Free State Department of COGTA make some reflections on the situation and its observations. It was important for either the MEC or HOD to provide some background so that the Committee moved in unison with that background and understanding of the issues at hand. Thereafter, the Committee would take the law enforcement agencies, one by one. In the end, the Committee would engage with those presentations. That was the agenda for the meeting.
The Committee Secretariat noted that the MEC would not be attending the meeting and that the HOD would be leading the delegation from the Free State.
The Chairperson asked if the HOD was in the meeting? The meeting was very important. He asked if any officials from the Free State were present? There were no officials currently in the meeting. The Committee took strong exception to that. The Committee did not tolerate this kind of situation. This meeting had been prompted by what the Committee had heard from the Free State. It was important that the Department raised what were the issues and constraints in its own words.
The Chairperson asked that he be allowed to try and get in touch with the Department and the province because this meeting was very important. He noted that this situation was intolerable. The meeting could not move on without them as they were the ones who raised issues about the law enforcement agencies and the frustrations they had about the law enforcement agencies. The office indicated that the MEC was attending an urgent meeting in the Free State and that he had requested that the HOD lead the delegation. The phone number of the HOD was just ringing. The Chairperson was not sure what could be the problem. The Committee was trying to locate the HOD. The Committee took strong exception to this situation. It disrupted the Committee’s programme, and it was disrespectful. The Committee had painstakingly ensured that the law enforcement agencies were part of this meeting. When anyone had indicated they would attend then they were obligated to respect the invitation. Parliament should have been respected, given the magnitude of the issues at hand. It was important to confront and deal with those issues.
The Chairperson proposed that the Committee proceeds with the meeting. The Committee needed to receive the presentations from the agencies and share with the Committee the work that they did in the Free State, and the nature of the cases that were being dealt with. Based on that the Committee would measure those presentations against what the Department of COGTA in the Free State had indicated to the Committee. The Committee would then deal with the issue of people disrespecting the meetings. The whole issue was around the section 106 interventions and investigations in terms of the Municipal Systems Act which empowered the MEC to institute investigations in the municipalities on the allegations that were before them. Based on that a report would be produced and if there were acts of criminality it would be referred to the authorities for investigations. The Committee needed to see what was happening. It needed to see clear-cut action taken against those alleged perpetrators. The Chairperson noted that the Committee could not waste the time of the law enforcement agencies. They did a lot of work and the Committee needed to appreciate that they were present in the meeting. The meeting needed to proceed.
Mr Mokete Victor Duma, Head of Department, Free State COGTA, apologised to the Chairperson and the Committee. The Department had had technical difficulties when it was about the join the meeting. All the plugs in the building had gone off. The Department had requested technicians from Public Works to look into the issue. That was why he was only able to join the meeting now. He apologised and said it was a situation beyond his control.
The Chairperson noted the apology. He asked the Department to share with the Committee the frustrations, issues, stumbling blocks, and everything that impeded the movement forward with respect to the resolution of the cases that were submitted to the law enforcement agencies.
Briefings by the Free State Department of COGTA on summary of forensic investigations in terms of section 106 in municipalities
Mr Duma said that the Department had quite a number of matters that had been referred to the law enforcement officials emanating from the section 106 report. The Act said that if the MEC was of the view that there was malpractice, maladministration, or corruption in any of the municipalities then he could appoint one individual or a team and investigate elements of malpractice, maladministration, fraud, and corruption. These investigations were conducted in a number of municipalities. There was a report in terms of the findings. That was tabled to the MEC and the respective councils. Those reports had indicated that there may be critical areas that the law enforcement officers must look at. There were quite a number of things that the Department was engaged in and had discovered. The Department had presented a report to the HAWKS. The Department had been told that the case had been struck off the roll when there was prima facie evidence that showed that quite a number of corrupt activities had taken place from 2016 up to 2019. There were quite a number of things that had been discovered which were then presented to the law enforcement officers. There had never been an element of people being held to account. He noted that in a municipality a report had indicated that there was a stadium that was purported to have been built. An amount of more than R56 million was used but there was no stadium that actually existed. He noted that after he presented a section 106 report, the following day he had received threatening calls. He was encouraged to speak to the colonel in charge of intelligence in the province. He still needed to arrange a meeting to provide the details of those matters. After the engagement with the Committee, the Department had an engagement with the provincial head of the HAWKS. The HAWKS had given them progress updates and some of those matters were now before the courts. He was hopeful that something would come out of those particular matters. The Department had sent a report of those cases it had been complaining about so that it could be briefed in terms of the progress. This was done so that the Department could give an account of consequence management to the relevant Committees and the Auditor-General. There was progress. The Department agreed with the head of the HAWKS that it would have monthly meetings so that they could exchange documents once the investigations had been conducted in some of the municipalities and get guidance on what processes to follow. Those who were on the wrong side of the law needed to be brought to book.
The Chairperson said that the synopsis provided indicated that there were issues that needed to be dealt with.
Briefing by HAWKS on status of forensic investigation
Lt Gen Tebello Constance Mosikili, Acting National Head: Directorate for Priority Crime Investigation (DPCI), briefed the Committee on the status of criminal cases opened in terms of Section 106 of the Local Government: Municipal System Act in the Free State province. The presentation detailed the provincial overview of municipalities involved and the number of cases per municipality. The presentation highlighted each case, and a synopsis of each case was provided, as well as the current status of the case,
Whilst it was appreciated that the Committee considered the status report on forensic investigations conducted in Free State municipalities in terms of section 106 of the Local Government Municipal Systems Act 32 of 2000 none of the reported cases under investigation were a result of the Minister’s intervention in terms of section 106. All cases reflected emanated from findings from the Auditor-General of SA, complaints from Municipal managers, whistleblowers, service providers who have not been considered, and general complaints received from the public The report focuses only on the cases on hand. It was noted that various factors influence investigations affecting both the timeframe and outcome of an investigation. These factors include the nature and seriousness of the crime, interdependencies on the judicial system, validation of forensic evidence as well as the availability of witnesses.
Summary of cases
There were niine cases on the court roll. There were four cases pending a decision from the NPA. There were 31 cases under investigation. There was a total of 44 cases.
The Chairperson thanked the DPCI for the elaborate presentation that shared the progress of different cases, whether they were already in court or pending cases, or still under investigation. The presentation stimulated a lot of discussion about what needed to be done and how some of the constraints could be unlocked in order to expedite the cases.
Mr G Michalakis (DA, Free State) raised a point of order. He noted that the Department had invited various municipalities to attend the meeting. He anticipated, from previous experience, what might happen. He noted that this was an opportunity for Parliament to engage with the SIU, HAWKS, and the Director of Public Prosecution. He asked that the members’ time to engage with the three entities be protected and that it did not end up being an opportunity for the municipalities to defend whatever was before the Committee. It was funny. When people stole, they stole alone but when they had to account, they brought the world to account with them. The municipalities would get their opportunity in court to make their cases. The Committee did not need to open that up in this meeting. He pleaded with the Chairperson that the members’ time is protected and that Parliament is able to engage with the three entities.
The Chairperson responded that that matter would be handled. It was important that the Committee invited the municipalities because all of these things happened in their areas of jurisdiction. Inviting the municipalities to this meeting would help them to understand progress in those particular cases which affected their municipalities. The municipalities were not there to come in and ask questions and engage. The meeting would be productive, and it would produce the necessary results.
Briefing by SIU on status of forensic investigations
Mr Kaizer Kganyago, Head: Stakeholder Relation and Communication, SIU, and Ms Simangele Tshabalala, Provincial Head: Free State, SIU, briefed the Committee on the status of criminal cases opened in respect of municipalities in the Free State province. The presentation highlighted the finalised investigations in Kopanong Local Municipality and Lejweleputswa District Municipality. The presentation detailed the ongoing investigations in Maluti-A-Phofung Local Municipality. Challenges and proposed interventions were also noted.
Motivations for proclamations with the DOJ
Two motivations in respect of Dihlabeng Local Municipality and Tokologo Local Municipality were currently with the DOJ. The allegations involved maladministration, corruption, and procurement irregularities.
Motivations for proclamation being drafted
Motivation for a proclamation was being drafted in respect of Moqhaka Local Municipality. The said allegation had been approved for motivation and was being prepared for submission to the DOJ. The allegations involved maladministration, corruption, and procurement irregularities.
Challenges and proposed interventions
Referrals made by the SIU to the NPA were no longer within the SIU’s control, once referred. However, the SIU continued to support criminal investigations by providing relevant evidence and testifying in courts when required to do so.
The SIU has a close working relationship with other stakeholders such as the DPP, NPA, and the DPCI in the province and therefore is able to monitor and support SIU referrals which normally ended up being dealt with by the DPCI.
The Chairperson said that the Committee thought the SIU was also going to focus on the PPE investigations in respect of different municipalities. The Committee would need to find a way to get that information with regard to the overall investigation of PPEs in the municipalities. It was not a train smash. The Committee was thankful for the information that had been shared in the presentation.
Briefing by NPA on the status of investigation and opening of criminal cases
Adv Shamila Batohi, National Director of Public Prosecutions, National Prosecuting Authority (NPA), said that the NPA took its accountability function very seriously. Accounting to Parliament was in effect accounting to the people of South Africa. In the presentation, the NPA was dealing with municipal cases in the Free State. Adv Batohi was joined by a delegation of senior officials, including Adv Navilla Somaru, Director of Public Prosecutions, Free State Division. The presentation provided an overview of municipal matters, a breakdown of municipal matters, and progress made. The presentation also noted challenges faced by the NPA.
Overview of municipal matters
There were 42 matters within the DPCI, of which 10 were not yet sent to the NPA. There were 32 matters within the NPA that had been sent from the DPCI, plus 20 additional matters. There were 13 matters in court. There were 44 matters under investigation with three matters having been finalised.
Asset recovery in municipalities
Over the past 12 years the AFU Regional Office in the Free State obtained the following orders in municipal cases:
- 12 freezing orders (eight preservations and 4 restraints) to the value of R390.3 million.
- The largest restraint was in the Marang Estate matter, in the amount of R340 million. It would remain pending the outcome of the criminal trial.
- 9 forfeitures and confiscations to the value of R7.99 million.
- Recoveries in the amount of R7.9 million, with R7.88 million returned to municipalities and R25 thousand paid to the Criminal Assets Recovery Account.
- The cases were highly technical and very voluminous.
- Procurement prosecution is a specialised field and needed a unique skill both from investigators and prosecutors.
- Witnesses were in the employ of the municipality and were reluctant to cooperate due to fear of reprisal.
- Witnesses who did cooperate with the State ended up being suspended or shunted around.
- As soon as complicit officials become aware of investigations, they hide or destroy documents and it becomes difficult to construct a case.
- When cases end up on the court roll, delaying tactics were employed by the defence.
Mr Michalakis said that if there was anything that would restore faith in the criminal justice system it would be if any progress was seen in these matters. He made a tally of the amount that was being investigated by the HAWKS and it was just under R700 million. That was municipal money. Money that could have brought water, sewage, houses, and streetlights. It was quite shocking. He discussed the presentation of the HAWKS. The NPA had indicated what its challenges were with regard to delays. He did not get the same from the HAWKS presentation. Were the delays in the HAWKS’ investigations caused by a lack of cooperation from those municipalities? Was it due to a lack of resources? What were the factors that contributed to the delays? He saw that there was a case from 2012 still outstanding. It was quite difficult to believe, and he wanted some clarity on that. He noted that there was something striking said by the HAWKS. It was said that one person who was being investigated was moved from one municipality to the other municipality. The Committee knew that this went on. It was a consequence of cadre deployment. Was the moving of people from one municipality to the next general tendency that the HAWKS could see within the investigations? He noted that when corruption cases were to be opened up against municipal officials that there was not always cooperation from the local SAPS. They were very reluctant. This was either because they were working with the municipalities or because for some reason feared the municipalities or municipal officials to actually take steps. Was that the experience of HAWKS from SAPS and the investigation teams at the local station level as well?
He had a few questions for the NDPP. He was quite concerned, but not surprised, by the witnesses that were fearful to come forward. He wanted to hear the NDPP’s opinion on how those witnesses could be assisted. Should there not be some mechanism from the provincial government side so that when people come forward they could assist and protect them? He noted that a lot of people that were under investigation were still working for the municipality. They were still the seniors and line managers of those who had reported them. It was not a healthy set of circumstances when the senior was still employed at the municipality, but the worker was a witness in the process. He wanted to hear Mr Duma respond to that issue. He noted that a lot of the time evidence could be destroyed in a municipality. However, if the money was followed a lot of the evidence comes out in that process. A lot of the time proof in terms of finances always leads to a trail. It took a long time to investigate such things.
He discussed the cyber forensic capacity within SAPS and within the HAWKS. He knew that they were quite under-resourced. What challenges - that they experienced - were currently hampering the progress made in these investigations? Was it something that the Committee should be looking at to make sure that SAPS was capacitated in terms of cyber capacity?
Ms S Shaikh (ANC, Limpopo) said that it was important that corruption was rooted out. Confidence in the criminal justice system needed to be improved. The caution that Adv Batohi had given the Committee was important, especially around the sensitivity of providing too many details in terms of the investigations. She discussed the Department of COGTA in the Free State’s presentation. In the Committee’s previous engagement with the province, the presentation given to the Committee was supposed to focus on section 106 investigations. What was clear from today’s presentations was that these were not just section 106 investigations that were given to the Committee. The Department needed to provide a presentation to the Committee which clearly only focuses on section 106 investigations. She discussed the presentation of the DPCI. She had not received the presentation with the details. She asked for the members to get a copy of that. It was not clear what the challenges were that were being experienced by the DPCI. There were referrals to the DPCI from as far back as 2011 and 2012, as well as 2018. These matters were still under investigation. The Committee needed to get some clarity around that. She discussed the NPA presentation. In their challenges, they raised issues around procurement prosecution which required specialised skills. She also noted the challenge of work caseloads. She wanted clarity on how these matters were being dealt with. All the presentations had made some representation around coordination between the NPA, the SIU, and the DPCI. In engagements with the NPA previously these were things being dealt with on a national level. She asked for more clarity around how this was actually being done at a provincial level. She wanted to know how these processes were managed at a provincial level.
Ms L Kleynhans (DA, Free State Legislature) discussed the SIU’s presentation. In slide three of the presentation, it said that they were able to subpoena and seize certain evidence once a proclamation had been issued. Who issued the proclamation? She discussed slide ten of the presentation. It spoke about an investigation done in Kopanong, proclamation R58 of 2011. It stated that this was referred to the NPA on 18 November 2013. The status of this criminal referral was unknown. She was not sure if the NPA had referred to this matter in its presentation because the SIU said that it followed up and monitored the referrals that it had done. Was this referral taken up by the NPA? She directed questions to the NPA and the provincial Department of COGTA. It was clear that three municipalities stood out for the number of cases and investigations. Those were Matjhabeng Local Municipality, Maluti-A-Phofung Local Municipality, and Dihlabeng Local Municipality. The NPA presentation referred to the abuse of office by senior public servants. Those were senior managers in the municipality who were colluding with service providers to siphon money from state coffers. It seemed that that problem was endemic in those three municipalities and very widespread over the Free State. In what way would the Department be able to empower councillors, serving in councils all over the Free State, to be able to detect these kinds of things that went on within municipalities? Councils should be empowered and able to stop this nonsense at its root. Councils frequently do not have experience in municipal matters. She wanted the Department to explain how they thought they would be able to empower councils to intensively monitor the supply chain units and contracts being issued.
She asked a question to all the law enforcement agencies. How many cases never go reported? The Committee was looking at all the things that were reported. In light of the challenges highlighted by the NPA of intimidation and fear from witnesses there had to be many, many more cases that were never reported and never investigated. Did the law enforcement agencies believe that successful prosecutions would eventually deter these kinds of activities from taking in municipalities? Did the law enforcement agencies believe that these officials and corrupt people in municipalities would start to think twice about their actions? Was there any evidence of state capture or influence of the Guptas in any of these cases in the municipalities?
Mr K Motsamai (EFF, Gauteng) said that he wanted to understand something. It was correct to investigate PPE corruption, but Covid came in 2020. He noted that the SIU was failing to investigate these issues of corruption. What was happening with those cases?
Mr Duma said that in response to the issues raised the Department had submitted its report in terms of those municipalities where it had invoked section 106, including where the process had been completed and where it was still to go and make a follow-up. The report was with the Committee. He indicated that on the matters where the Department had tabled its report at council with the remedial action and recommendation of what needed to be done on those findings that were made. Some of the councils were implementing those remedial actions. Some had not started yet implementing those remedial actions. He noted that affidavits were sent to two municipalities. That created a risk. The Department’s findings did not necessarily pinpoint people. It would only indicate what had been discovered and some of the transactions without necessarily pinpointing the names. He had wanted to meet with the provincial head of the intelligence agencies to present the plight. He thought that his life was at risk because people thought that he was targeting them when he was actually executing his responsibility in terms of what the law said. He wanted to know the measures that needed to be taken to ensure that his life would not be put at risk.
Mr Michalakis said that he had seen absolutely nothing in any of the presentations about Mangaung. Was that correct? Did he notice correctly that there was currently not a case with regards to Mangaung under investigation?
The Chairperson reiterated that he was not going to give councillors the opportunity to speak. This was a good opportunity for municipalities to understand the seriousness and the magnitude of the problems that the law enforcement agencies were facing in respect of what was happening in the Free State. He noted that this was a very important meeting. It was an information-sharing meeting that helped the Committee to understand the complexities of the situation in terms of what the law enforcement agencies were doing. It was evident that the issues were complex, technical, and took a long time. He had a few concerns that he wanted to raise. He did not understand the extent to which all of the agencies gave protection to whistle-blowers. This was a very important matter, especially given what Adv Batohi indicated. If the agencies gave more information, it would expose whistle-blowers and witnesses. This had happened in several instances. What support was given to whistle-blowers when they needed support to ensure that they continued to help the law enforcement agencies? It was an area that needed to be given attention.
He noted that there were a lot of cases that pertained to regulation 32 of the Municipal Finance Management Act (MFMA). When these transgressions happened, it became a very straightforward issue to deal with, but it was clear that in some cases it took five to six years to attend to these matters. He thought that it could actually take a day and he wanted this to be proven otherwise. In this case, if there was such a transgression it meant that a municipality had deviated. In terms of this regulation, a municipality took a contract that was in another agency of state, whether it was national, provincial, or municipal level. It was used without following the procurement processes as outlined in section 217 of the Constitution. There were certain conditions that the municipality needed to fill. One condition was that the amount needed to be the same. If the amounts used were not the same, then it was a problem. He did not think the situation was difficult. He wanted to know what made it so difficult. The scope of work should be the same. If the scope of work was not the same as the conditions thereof, it meant that there was a transgression in respect of regulation 32 of the MFMA. A municipality that had that contract must consent to it. It became very clear to get that information about consent and if there were violations then action needed to be taken immediately. In this particular case, these matters took five years or more. If that was the case for a simple matter, then what about complex matters? It meant that they would happen perpetually without coming to a conclusion. Why were such cases taking such a long time to be resolved and finalised? It could quite clearly be seen where the transgressions were. In the last few years, municipalities have done this with impunity. There were no consequences against many municipalities that had deviated. He discussed the matter of the turnaround time. Did any of the law enforcement agencies have a turnaround time to complete a case? He understood the complexities, the technical nature of the process, and the fact that one investigator was handling many dockets. This was a problem because the agencies needed to source the necessary officers to expedite the process. Did the law enforcement agencies have a turnaround time to complete the cases that were before them? He would allow the law enforcement agencies to respond to the comments and questions. Thereafter, the Deputy Minister of the National Department of Cooperative Governance would be afforded an opportunity to make concluding remarks.
Lt Gen Mosikili responded to the question on the turnaround time to complete an investigation. In 2018 the DPCI decided, after facing challenges with the municipal cases, to establish a national task team on clean audits. It was continuing to work and was working in different municipalities, not only in the Free State. This task team was due to the constraints that the DPCI was experiencing in terms of its capacity. There were challenges with regard to capacity within the DPCI. The task team was meant to offload that load that would be overwhelming to one investigator. There would be a main investigator in all and any other matter. To try and mitigate these challenges the DPCI wanted a group of people to assist and focus on that matter until it was a court-going matter. It was correct that some of the cases were taking too long.
The Chairperson had asked why on straightforward cases was it taking this long to investigate those particular cases? The members had all noted that she had not highlighted the challenges that the DPCI was experiencing. Slide four of the presentation discussed the challenges and factors that were influencing the times to conclude the investigation. She added to the two points that were mentioned in the presentation. One other matter that made it very difficult for the DPCI to finalise cases timeously was accessing information or getting the required documents by the investigators. She was glad that her colleagues from different municipalities were in the meeting. They could assist the provincial head of the DPCI and the task team at the national office to avail documents as requested. She was sure that had been discussed in the local meeting held between the DPCI and the local COGTA. The DPCI needed to receive those documents that it did not have. If the Committee deemed it fit that in the next accounting session that the DPCI needed to indicate names, then it would do that. The Committee could then understand where the challenges were, and the municipalities could also account as to why they were not availing those documents when it was very clear that matters could be completed timeously. She also indicated that when matters were referred to the DPCI for priority crime investigation it was because of the municipality’s complicity. The DPCI was the apex of investigation in the police service and in the country. The DPCI was required to investigate matters fully to ensure that they were solid when they were presented in court. The majority of the time within the DPCI, if it was not on a daily basis, was hourly work. There would be an interaction between the investigators and the appointed prosecutors that were assisting in the guiding of the investigation. This would be without risking the investigation or getting too much into the case. Since the DPCI had started with the PGI system, it was seeing a lot of matters that were discussed on that platform making their way to court and receiving successful prosecution.
On the delay in the DPCI investigations, she cited the complicity of the municipalities and the availability of the required documents that would assist the investigation to be concluded timeously.
On the Mangaung Local Municipality, the DPCI did not currently have an issue that was under investigation.
She responded to the comments about a person moving from one municipality to another and whether that was posing a challenge to the investigation of the DPCI. What was highlighted on the slides was the collusion of municipalities. There were three main municipalities that were contributing to a lot of cases. There was some information that was given to another municipality by another municipality. There were some cases where even when the municipalities were aware that the case was in the High Court with regard to this one person of interest that the municipality proceeded to give motivation to another municipality to appoint the same person to be contracted. This happened between Dihlabeng Municipality and Maluti-A-Phofung Local Municipality.
She discussed the cooperation between the DPCI and the police stations, and how were matters being reported to the police station where challenges would be experienced. The DPCI did not often get those challenges. Some of the matters would be recorded on the same date and be referred to the DPCI for investigation. Other matters that would be referred to the DPCI after some time would be because of the charges. There was investigation capacity within the police stations or in the province. There was the organised crime unit within SAPS and the DPCI. Some of the matters would be on the clarity that would be given on the amount involved as per its mandate. When the investigation was continuing, and it was picked up that the amount involved exceeded the number of cases that needed to be investigated by the SAPS, the matter would be escalated to the DPCI for further investigation. She acknowledged that the DPCI had capacity constraints within the cyber crimes space. There were constraints on personnel as well as training. The DPCI was looking into capacitation. The DPCI had recently concluded looking at a strategy in terms of cyber crime investigation. The training was not very successful in the past few years during Covid. A lot of members did not attend training and capacity-building workshops. The DPCI had partnered with a number of law enforcement agencies including foreign counterparts that conducted this type of training and capacitating. The DPCI had had information-sharing sessions with other law enforcement agencies. There was recently a work session that was held between the prosecutors and members of the DPCI. This was to forge relationships and ensure that the DPCI received capacity in terms of knowledge and experience. The DPCI was continuing to look into the issue of capacity. There were a lot of other entities and organisations that came forward and reached out to the DPCI intending to assist on the issues of cyber crime and cyber capacity. This would enable investigators to be capacitated. The DPCI also appointed the forensic investigation capacity within the directorate. It was still in its infancy. When that branch was properly capacitated the DPCI was optimistic that it was going to see some of the cases moving much faster. These would be experienced people coming in with skills from the university and other environments. The head of the forensic accounting investigating unit came from the Attorney General. He would be bringing to the DPCI a wealth of experience and knowledge in terms of forensic accounting.
She responded to the questions of Ms Shaik on the sensitivity of information about cases. The DPCI tried its best not to reflect the names of individuals on matters that were still pending investigation. She had noted in one matter when such was done. It was an oversight. She had mentioned during the preparation of this meeting that the DPCI was not going to mention the names of individuals if the matters were not court-going. Those people who appeared before the court, their names were revealed in court and some media houses named those particular individuals. If the Committee felt that the DPCI should not mention those individuals even with regard to the court-going cases, then the DPCI would do so. She mentioned that the one case where a person of interest was named, it was an oversight, and it would not happen again. The DPCI was sensitive around mentioning the names of persons of interest. It may bring along prejudice to the judicial process. The DPCI also wanted to protect individuals. That would be corrected.
She discussed the referrals made to the DPCI. These referrals came from the SIU and the AGSA. The DPCI did everything possible to ensure that the investigation was done timeously. However, it had noted the age analysis that the provincial head had indicated. Going forward there would be a monthly age analysis meeting to interrogate and check how far investigations were in different matters and what needed to be done to assist those investigative teams. The DPCI would get members from other provinces to go and assist the provinces that had a lot of cases. Any assistance from the Committee to the DPCI was welcomed. When the DPCI was established, it was intended to be the pride of the country and to attend to these matters as speedily as possible. It was intended to hold people accountable and assist the poor citizens of this country to receive the service that they required. She responded to the questions of Ms Kleynhans on how many cases were never reported to law enforcement. It was very difficult to say how many cases were unreported. Where cases were not reported but the DPCI received the information, it would open an inquiry docket into the matter and investigate. This was to make sure that those cases did make their way into the investigation and to court. It was difficult to establish to know how many cases were not reported. The DPCI welcomed any anonymous reporting. The DPCI would investigate those matters as an inquiry until such a time that it got enough evidence to proceed with that matter as a case docket. She was also not in a position to indicate if there were any links in the current cases relating to the Guptas. If that happened then the presentation would be updated, and the Committee would be updated.
She discussed the threats to officials. She noted that matter of the whistle-blower needed to be reported if there were any threats. It was the responsibility of each entity or business unit to have a whistle-blower protection policy that would outline how the entity intended to protect the whistle-blowers. Through the ACTT, the DPCI was in the process of finalising the whistle-blower protection framework. The State would be looking at how best it could protect the whistle-blowers and what type of protection was required. If a person was a witness in a case there was a process wherein the NPA of witness protection had processes that needed to be followed. If the investigating officer became aware of such they were required to report and advise accordingly. That process could then be kickstarted.
Mr Kganyago responded to the question of who issued the proclamation. He detailed the process from the beginning so that the members had an understanding. When the whistle-blower gave the SIU information, it took it into the system and assessed whether there was merit in investigating. Once there was merit in investigating the SIU drafted the proclamation and took it through the process via the Department of Justice. The Department of Justice would look at it and the Minister would then recommend it to the President. The Presidency would look into it. The President would sign the proclamation. That was when the SIU was given the mandate to start investigating any matter that was before it.
He discussed the Kopanong Local Municipality. When the matter was referred to the NPA it was out of the SIU’s hands. However, the SIU had a good relationship with the NPA. This was done in case there was a need for SIU investigators to assist. He responded to the question of whether successful prosecution would deter corruptors. The SIU believed that all the work it did, whether it was prosecution or recovery of monies or assets, result in making sure that the people who did wrong would desist from doing what they were doing. The SIU, and law enforcement agencies, wanted to make sure that corruption was uprooted.
He responded to the question of turnaround times for investigations. One of the SIU’s first priorities was improving turnaround times. When the SIU did its strategy about five years ago it had a problem with turnaround time. Now that had been turned around so much. However, it could not give an indication that a case had to be concluded within a certain period of time because each case was different. The SIU had said that if it was not done with an investigation within a year then it needed to have a preliminary report that was presented so that people knew how far the SIU was and what it was that still needed to be done. The SIU had committed to doing that. When Covid-19 happened, the President gave the SIU a mandate to report to him every six weeks. This was something that the SIU did with the PPE investigations. The SIU was able to finish more than 5 000 investigations during an 18-month period. The SIU needed to look at whether it could match that all the time when it had investigations going on in these cases.
Adv Somaru said that the NPA had the witness protection unit. All of the witnesses, particularly the more vulnerable witnesses, were alerted to the programme. It was offered to them. There were currently a number of witnesses in the programme. This was an avenue that was available to whistle-blowers.
She responded to the question on procurement cases, specifically how were they being dealt with and managed. The NPA approached it in an inter-disciplinary, multi-sectoral format. Each case was approached on a project management basis. The stakeholders were involved. Right from the beginning, a prosecutor was assigned to that particular case. That particular prosecutor guided and was involved in the process, trying to bring it to finality as soon as possible. A case plan was drawn up for each and every matter, with timelines. One of the questions spoke about timelines. This was where the case plan came in. There was a bring-forward date on every matter. The NPA assessed the progress of each matter. There were times when case plans were derailed, where witnesses had died, or documents were not available. The NPA would then have to do an entire reassessment of that matter but that was dealt with on a case-by-case basis. The NPA had a dedicated team of investigators as well as prosecutors who dealt with these cases right from its inception. The NPA was actively engaged in skills transfer in upskilling particularly among the lower court prosecutors. They were involved even if it was just as a bystander so they were also roped in to deal with the lower value matters that would appear in the lower court at some stage. The NPA was transferring skills, mentoring, and developing the lower court prosecutors about the procurement type cases.
She discussed the municipalities that stood out. There were three municipalities where a number of cases had emanated from. Those were being dealt with and they were all under consideration.
She discussed the turnaround time. It was crucial to the NPA. Within the Free State, the NPA had developed a priority list amongst the stakeholders. these were the cases that the NPA aimed to enroll in the next three months, then the next six months, and then the next 18 months. The NPA did an analysis of that. This was not only to reduce the turnaround time but also to get those matters to court at the soonest. She responded to the question on the SIU referral of Kopanong. The details of that were on slide 37. That matter was under investigation. It had a 2019 case number.
Deputy Minister Thembisile Nkadimeng, Cooperative Governance, discussed the empowerment of councils to assist with oversight particularly relating to issues of supply chain management. Quite a lot had been done in the new term, which started on 4 November 2021. The Department, along with National Treasury had been able to create municipal planning, budgeting, and reporting reforms. The Department had put up committees that assist in dealing with issues of defining to councils and sending circulars to all councils, the meaning of oversight, and the meaning of a section 52 report. The Department detailed when it had to be served to council, who had a responsibility to receive it, who had a responsibility to make sure that it sat in council and what were the key areas, why must it had to be referred to MPAC, and who qualified to be a member of MPAC. There were about four municipalities that still needed training for their MPACs, across the country. Some municipalities were slow. Some had not appointed their full MPAC committees at the time the Department wanted to commence with their training. The training was done to highlight the municipalities to the new changes relating to the Bill the President signed on 1 November 2021. For example, a mayor was not supposed to see that report before it went to the council. A mayor was also not supposed to serve in MPAC. The training dealt with quite a number of detailed issues. There needed to be a system where the Department would capacitate the recruitment of municipalities, those that were willing to be capacitated. She was careful in the selection of her words. She noted that Metsimaholo Local Municipality in the two previous financial years had a stadium of about R21 million. The AG sat in the municipal planning and reform committee that had been set up with National Treasury. The AG said that with that R21 million it had only found a fence, which was not even part of the contract. It was just an old fence yet R21 million had been paid. This was not a case of capacity. It was a case of people who understood, how to deviate, and what to do when they were deviating and then the records went missing. There needed to be a balance between experience and understanding. The second measure the Department had put in place was a qualified course for all MPACs. It was a full-time course called the municipal finance management programme. It was accredited by the University of Pretoria and Wits University. It was compulsory for all MPAC members and the council had to pay for it for MPAC members to attend and enhance their capacity. It was compulsory for all MMC for Finance to attend and for all mayors to attend and pass the course. Maybe the country would reap the results in the future. It was an 18-month course. It covered all the legislation. The database that had been developed by the Department would be shared with the Committee. It was currently sitting at 1685. The database was a record of misconduct for all municipal staff. In the beginning, the Department had started registering only sections 56, 57, and up of misconduct because they were mostly the ones who moved. On average a director spent about three years in a municipality and then they started to apply. They did this because the contract was expiring or because of cases that were happening. The database was broken down into categories. There were 296 cases in the category of financial misconduct, corruption, or fraud that had been conducted. The Department had realised that supply chain managers in small municipalities, which fell below the category so section 56 or 67, tended to move a lot because they got involved. The Department shared this database with all municipalities to make sure that municipalities referenced the database when they held interviews to see whether an individual belonged to the register. One municipality threatened to take the Department to court saying that the Department did not have the law to do that. The Department was able to show what the MFMA allowed it to do, particularly the Minister of Finance. She discussed reappointment. If a person was charged with fraud the MFMA was clear, that person could not be reappointed if they were not outside the system for ten years. There were shortcomings. The register was currently manual. The reason why it was taking longer for it to be automated was that everything was not on one system. All of the municipalities utilised different payment and management systems. The Department was seeing whether it could make it a requirement for a municipality to tick that box saying that the person had never been fined.
She discussed the Committee as a stakeholder with regard to the Intergovernmental Monitoring, Support and Intervention Bill. The Committee needed to look beyond how Government has been structured. Mr Michalakis had asked what COGTA was doing to ensure that it lifted the system even if municipalities like Mangaung were under intervention. The Department was limited under the law because nobody could take over the powers of the council. Even when the council deliberately did not follow the action plan of the AG. There was a national intervention in Mangaung, but the intervener was supposed to go through the council to get the recommendations approved. That wasted a lot of time in instances where the council was hell-bent on not doing what they were elected to do. Today Mangaung had no budget. There was an intervention in Mangaung. The Department had done everything it could, but the council had not adopted a budget. The Department could not adopt it on their behalf. Those were some of the levers of the law that the Department had to deal with in harnessing the processes. She appreciated the opportunity to engage in this matter. It was very crucial and noted that the NDPP was correctly angry with COGTA at a municipal level and a local government sphere. There needed to be an endeavour in other provinces as well to fast-track the cases where sections 106 and 139 had produced forensic reports which needed to be followed up by law enforcement agencies.
The Chairperson thanked the Deputy Minister for her comments. The NDPP confronted the Committee without any hesitation that the complete failure of municipalities across the province was the reason for the law enforcement agencies occupying this space. This was an issue that everyone needed to take to heart. Municipalities had failed to execute and discharge their own constitutional obligations. That was why this meeting was taking place. If the oversight committees were functioning effectively at a municipal level, if municipalities were holding their executives accountable for their own activities, if municipalities headed the recommendations and implemented the recommendations of the AG then there would not be this situation. If the municipalities had put up the necessary systems of reporting and whistleblowing, of reporting crime or corruption, then those responsible would not act with impunity and disciplinary actions would be taken against them. This was a statement that everyone involved with local government needed to embrace and everyone needed to look at what they could do to ameliorate the situation. It was as easy as that. The system has collapsed. The system was failing and that was why there were all these investigations by the law enforcement agencies. This was the message that the Committee needed to take forward. The Committee would like to see all the agencies better coordinated in their work. If they worked together as a unit nothing was going to defeat them and they would make a huge contribution in respect fighting crime and corruption within the municipalities. This was quite important. He had asked the mayor of Matjhabeng three weeks ago if they had the necessary security because everything that was coming out of Matjhabeng was very serious. It was something that needed to be confronted. An important and big municipality like that had collapsed because of all these related problems. Coupled with that were the issues around the Zama Zamas, the Lesotho foreign nationals, and the Zimbabwe foreign nationals who were fighting among themselves doing illegal mining in that vicinity. This collapsed the whole system because it damaged the necessary infrastructure and the property within that municipality. The cases in Matjhabeng needed to be attended to.
He discussed the issues in Mangaung. It was a metropolitan municipality that had collapsed. It was currently under administration because of the persistent problems, financial problems, which were occurring in that municipality. This needed to be attended to. He was happy that none of the law enforcement agencies said that they had been captured. It meant that this problem was being addressed fundamentally. It would have arisen if anyone was captured or politically motivated.
He thanked and congratulated the law enforcement agencies for the work that they were doing. He thought that maybe the problem was the lack of information that was coming before the Committee and that was why it thought nothing was happening. What came out of the presentations was that a lot was taking place in the Free State to fight crime and corruption. The law enforcement agencies were resolute in terms of the work that they did. That inspired confidence going forward. He thanked all those in attendance. He thanked the municipalities for being part of the meeting. The municipalities were dealing with these issues day to day and could see corruption and fraud happening before them. They heard a lot of stories about the siphoning of funds. The Committee inviting municipalities to these sessions was very good because now they knew what it was law enforcement agencies were doing in the respective municipalities. It would be good for the municipalities to keep in touch with the law enforcement agencies, make some enquiries, engage with them, and get information in terms of progress and that would help in developing a formidable way to fight corruption and crime in the municipalities.
The Committee would make a recommendation that there needed to be a discussion in terms of the nature of the information that must be shared with different Committees of Parliament by the law enforcement agencies. Witnesses needed to be protected and the information needed to be protected. There needed to be a balance between accounting and giving away information that would jeopardise the investigations. Parliament needed to have a discussion so that it developed a uniform approach to how it received information from the law enforcement agencies. The Committee would pick up this point so that it was discussed in Parliament. The Chairperson thanked the Deputy Minister for attending the meeting. He thanked the heads of the law enforcement agencies for attending the meeting. He thanked the municipalities for attending the meeting. He hoped that they found the information that was shared useful.
The meeting was adjourned.
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