Legal Opinion on SSA 2014 Cabinet directive on vetting; Follow up engagement with law enforcement agencies on DWS, Eskom, Transnet, Denel, SAA & Prasa investigations
Public Accounts (SCOPA)
16 November 2022
Chairperson: Mr M Hlengwa (IFP)
The Committee convened in Parliament to discuss the parliamentary legal opinion regarding the State Security Agency’s 2014 Cabinet directive on vetting, and to have a follow-up meeting with the investigating agencies -- the Special Investigating Unit, the HAWKS and the National Prosecuting Authority -- on cases being investigated.
The legal opinion confirmed the Committee’s position that the Standing Committee on Public Accounts (SCOPA) was empowered by law to request an update on vetting employees of state-owned enterprises (SOEs). To argue that such an update was part of “accountability to the Joint Standing Committee on Intelligence (JSCI)”, as the Minister was doing, and that only the JSCI may hold the State Security Agency (SSA) to account, was a narrow interpretation of the Intelligence Services Oversight Act, 1994, that could lead to a situation that was inconsistent with the Constitution and the requirement for Parliament to maintain oversight of all organs of state.
In the past, SCOPA had received briefings on SSA vetting from previous Cabinet Ministers in both the fifth and sixth Parliaments. The request for the briefing was informed by the 2014 Cabinet resolution that said that executives and people in supply chain management positions must be vetted.
Based on the legal advice received, the Committee would write again to the Minister in the Presidency to inform him of the legal opinion, and to request him to appear before SCOPA on this matter on Wednesday, 30 November. Should the Minister refuse to report to SCOPA, the Committee would exercise its right to initiate the process to summon the Minister to provide the information requested.
On the update by the investigation agencies on cases under investigation, the Hawks told the Committee that at the Department of Water and Sanitation, they had 15 cases on hand, with one case pending in court, two cases submitted for decision making, nine cases under investigation, and two cases that were finalised. At Eskom, they had a total of 96 cases on hand, with 17 of them pending in court, five cases submitted for decision making, 54 under investigation, and 13 cases that had been finalised. They had a total of 25 cases at Transnet, with 13 pending in court, four submitted for decision making, eight under investigation, and no finalised cases. They were investigating two cases at the South African Broadcasting Corporation (SABC), with one case pending at court and another case under investigation. This was also the situation regarding Denel. At the Passenger Rail Agency of South Africa (PRASA), they investigated 21 cases, three pending on the court roll, 17 under investigation, and one finalised case.
The National Prosecuting Authority (NPA) told the Committee that the tide was turning, and impunity was no longer a given. Over the past six months, since they were last before SCOPA, the NPA’s leadership and its staff have implemented key initiatives to rebuild a fit-for-purpose organisation to deliver accountability and uphold the rule of law. The Investigating Directorate (ID) had stable and competent leadership, whose successes resulted from enhanced internal and external collaboration and focused case prioritisation. This strategy resulted in the enrolment of nine seminal cases at the end of September, the product of long-standing investigations by the ID and Directors of Public Prosecutions (DPPs), in close collaboration with the HAWKS.
The Committee was pleased to hear that there were a lot of cases under investigation, but was concerned about the delays in the conclusion of the cases. The Members questioned the lack of skills and capacity within the investigating agencies, and the lack of high-profile arrests in the SOEs. They felt that asset forfeiture was an easy way out of jail time for those who were found guilty, and expressed concern that there was a syndicate in operation at PRASA.
Legal advice on Ministerial refusal to provide an update on vetting of SOE officials
Adv Frank Jenkins, Acting Chief Legal Advisor, Parliament, said their office had been requested by the Chairperson of the Standing Committee on Public Accounts (SCOPA)to consider and urgently advise on the refusal of the Minister and the Deputy Minister responsible for state security to appear before the Committee to provide an update on the vetting of officials working in state-owned enterprises (SOEs).
He said SCOPA was empowered by law to request an update on the vetting of employees of SOEs. This matter pertained to a range of committees, including the Portfolio Committee on Public Enterprises. To argue that such an update was part of “accountability to the Joint Standing Committee on Intelligence (JSCI)” as the Minister was doing, and that only the JSCI may hold the State Security Agency (SSA) to account, was a narrow interpretation of the Intelligence Services Oversight Act, 1994, that could lead to a situation that was inconsistent with the Constitution and the requirement to maintain oversight of all organs of state.
In the event that it was reasonable and justifiable, in an open and democratic society, to exclude the public, including the media, from the meeting where this information would be tabled, the National Assembly Rules provided for such mechanisms. Should the Minister refuse to report to SCOPA, it may initiate the process to summon the Minister to provide the information.
Ms B van Minnen (DA) said this was not the first time SCOPA had this conversation with the SSA, and the process of vetting by SCOPA was being frustrated by the Minister and the Deputy Minister of State Security. She wanted to know what the options of the Committee would be if the Minister and Deputy Minister were to reject their summons again.
Ms V Mente (EFF) said the SSA had briefed the Committee on the matter in both the fifth and sixth Parliaments through former Minister Bongani Bongo in 2017 and former Minister Ayanda Dlodlo in 2019 respectively. She asked for clarity on whether there was a part of the SSA that could not be disclosed to SCOPA and what informed it. SCOPA was a parliamentary mechanism meant to oversee and ensure that service delivery was not hindered and public funds were used appropriately, so if there was anything that SCOPA was not allowed to disclose, what would it be?
Mr S Somyo (ANC) agreed with Ms Mente in asking what information the Committee was allowed to receive, because it was confusing that the Committee had been briefed on the vetting issue before, but now there was a rejection from the Executive of the Department of State Security on the same issues. He would have respected the rejection to brief the Committee if the information involved safety and security, which affected people’s livelihoods.
The Chairperson said the Committee’s decision to open its meetings to the public must not mean that they should remain open where national security matters were concerned. This issue was not about national security, and the Committee was well within its rights to summon the briefing from the SSA, as it was advancing a Cabinet resolution of 2014 that the executives in supply chain management (SCM) must be vetted. He did not understand why this needed to be done secretively.
Parliamentary Legal Services' response
Adv Jenkins said the specific mandate of SCOPA was to receive audited financial statements and audit reports provided by the Auditor General (AG) on SOEs. SCOPA was within its rights and powers to exercise its mandate to request information on public funds. He suggested that the Committee writes to the Minister in the Presidency, who was also responsible for State Security, to inform him that the Committee did not agree with his position, and invite him again to appear before it.
The Chairperson agreed that the Committee would write to the Minister in the Presidency who was responsible for State Security, to inform him that the Committee did not agree with his position and invite him again to appear before it at a date and time that the Committee programme would determine. He said 30 November was open in terms of the Committee programme, and suggested that the Committee provisionally reserve that date for the invitation of the Minister in the Presidency. The Members agreed.
Mr A Lees (DA) reminded the Chairperson of his request to obtain a legal opinion about the obligation of the Minister of Public Enterprises and South African Airways (SAA) to provide information requested by the Committee.
The Chairperson said the Committee would also communicate with Adv Jenkins regarding the matter, because the Minister of Public Enterprises had indicated that the processes of the Bill had closed. There were limitations on what they could or could not share with the Committee. They would submit information to the Committee based on what they felt they could share. He said they would share more information on that in writing with Adv Jenkins to get his advice on whether there was any legal basis for that.
He said there was another report that had been requested from him by the former Director-General of Higher Education and Training, but he was sceptical of providing the document to him because it was confidential and he was under the impression that he should have received it from the Department of Higher Education and Training. He would also request Adv Jenkins’s advice on the matter in writing, and allowed him to exit the meeting.
Status of SOE investigations
The Chairperson welcomed the delegations involved in investigations at state-owned enterprises (SOEs):
- The Directorate for Priority Crime Investigations (DPCI/HAWKS), led by General Godfrey Lebeya;
- The National Prosecuting Authority (NPA), led by Adv Shamila Batohi; and
- The Special Investigations Unit (SIU), led by Adv Andy Mothibi.
He explained that the Committee had decided to revert the meetings back to full normality because the virtual meetings were not serving oversight work, especially with the added pressures of load shedding and connectivity issues. He said the Committee would allow all presentations to be made and would then ask its questions thereafter. He asked that the presenters take the presentations as read and focus on the pressing issues.
HAWKS' report on SOE investigations
Gen (Dr/Adv) Godfrey Lebeya, Head: National DPCI said he was accompanied by Brigadier General Mmeli Makinyane, Acting Corporate Head of Commercial Crimes, who had been acting in the position since 1 June. They expected to fill the post with effect from 1 December, as the vetting process had delayed them.
The DPCI had also promoted 244 of its personnel, including those who were taken from the South African Police Service (SAPS), which had increased their capacity by over 50%. They also intended to appoint another 290 members with effect from 1 January 2023, and were currently in the selection process, with more than 50 000 applications to consider. They were continuously building the DPCI’s capacity to respond to the amount of work they had.
Brig Gen Makinyane presented on the status of investigations relating to:
- The Department of Water and Sanitation (DWS);
- The South African Broadcasting Corporation (SABC);
- South African Airways (SAA); and
- The Passenger Rail Agency of South Africa (PRASA)/
On the DWS, they had 15 cases on hand, with one case pending in court, two cases submitted for decision making, nine cases under investigation, and two finalised cases.
On Eskom, they had a total of 96 cases on hand, with 17 of them pending in court, five cases submitted for decision making, 54 under investigation, and 13 cases that were finalised.
They had a total of 25 cases with Transnet, with 13 pending in court, four submitted for decision making, eight under investigation, and no finalised cases.
They were investigating two cases at the SABC, with one case pending at court and another case under investigation.
This was also the case for Denel.
At PRASA, they were investigating 21 cases, three pending on the court roll, 17 under investigation, and one finalised case.
NPA Report on selected SOEs and other cases
Adv Batohi said the investigations undertaken by the SIU or as part of the State Capture Commission of Enquiry (Zondo Commission) did not satisfy criminal standards for prosecutions. The NPA had to work with investigators -- either within the Investigative Directorate (ID) or the DPCI -- to conduct criminal investigations and ensure that the evidence met criminal prosecution standards. That said, the work of the SIU was important, and contributed greatly to this process.
She said the tide was turning, and impunity was no longer a given. Over the past six months, since they were last before SCOPA, the NPA’s leadership and its staff have implemented key initiatives to rebuild a fit-for-purpose organisation to deliver accountability and uphold the rule of law. The Investigating Directorate (ID) had stable and competent leadership, whose successes resulted from enhanced internal and external collaboration and focused case prioritisation. This strategy resulted in the enrolment of nine seminal cases at the end of September, the product of long-standing investigations by the ID and Directors of Public Prosecutions (DPPs), in close collaboration with the DPCI.
The NPA had introduced various measures to enhance prosecutions, including the establishment of a joint NPA/DPCI task force, which provided a multiple partner approach involving the DPCI, NPA, ID, Specialised Commercial Crime Unit (SCCU), DPPs, Asset Forfeiture Unit (AFU), SIU, Serious and Organised Crime (SOC), and the Finance Intelligence Centre (FIC). Its mandate was to drive coordination and coherence in response to the Zondo reports. It also increased collaboration through other structures. Bodies feeding into the task force included an advisory panel; a top priority anti-corruption task team (ACTT); executive committee (EXCO) and case management meetings; NPA EXCO and DPP case management meetings.
Adv Rodney de Kock, Deputy National Director of Public Prosecutions, presented on the matters referred to the NPA. He said there were 19 matters referred to the NPA, and 10 of those had been received in 2022. On one matter, they had declined to prosecute due to the main witness retracting her statement, and insufficient evidence. He then provided details on each of the cases.
Mr Matthews Sesoko, Head of Investigations, NPA-ID, presented on the Investigative Directorate and the matters that were referred to the NPA-ID.
He said that in March 2019, the President had issued a proclamation creating an Investigating Directorate (ID) within the Office of the NDPP in terms of s7 of the NPA Act, largely in response to allegations of widespread corruption at the State Capture Commission (SCC). The powers and functions of the Directorate were set out in chapter 5 of the NPA Act. They included the power to subpoena witnesses to furnish documents or to answer questions; apply for and execute search and seizure warrants; compel witnesses to answer questions under oath, including self-incriminating questions, subject to the use of immunity to prosecute cases after consultation with the relevant DPP. He then detailed the SOE case referrals they had dealt with in the ID.
Adv Ouma Rabaji-Rasethaba, NPA Head: Asset Forfeiture Unit (AFU), introduced the AFU to the Committee, and presented on some of the cases they have handled so far. She said the AFU was intimately involved in cases relating to SAA, Denel, PRASA, Transnet, SABC, Eskom and the Department of Water and Sanitation, together with different structures in law enforcement. It was part of the Top Priority Case Forum, where cases such as those involving the Lepelle Water Board, SAA, Eskom and PRASA priority cases were being investigated and prosecuted.
Eskom referrals by the SIU overlapped with existing investigations conducted by the AFU, in consultation with the Investigating Directorate of the NPA, in respect of the recommendations of the Zondo Commission. In many instances, the SIU was proceeding with civil recoveries or asset recovery-type applications in the Special Investigating Tribunal. The AFU was accordingly not in a position to proceed with asset forfeiture proceedings in cases where the SIU was already dealing with recoveries. The AFU and other law enforcement agencies were also evaluating the civil asset recovery potential of all matters, if and when referred by the SIU, and which matters were not already dealt with by the SIU.
Adv Batohi said the President had announced that the ID would become a permanent organ in response to the Zondo Commission recommendations. Permanence would require legislative changes that would take time, but the Minister had been asked to confer by regulation, peace officer powers to ID investigators in terms of the Criminal Procedure Act (CPA) without delay, to significantly enhance their ability to do their work.
She said the strategy of the NPA, together with the SIU, the South African Revenue Service (SARS), and the AFU, was not just to hold people accountable and to prosecute, but also to get money back to the country, which was important in terms of Chapter 5 and Chapter 6. Chapter 5 depended on criminal convictions, and the challenge with that was that the accused were very good at delaying matters so that they could not be finalised, so the NPA had looked at various strategies to ensure that it could deal with that, and all it could do at the end of the day was to put very stringent cases in court.
Criminals exploited the gaps in law enforcement cohesion, so the investigative agencies needed clear strategies to stay one step ahead of them by ensuring their respective mandates were aligned to close those gaps. Recent joint successes showed that this was possible -- for example, the collaboration between the SIU and the NPA’s AFU in the recent Lotto case. Their focus was on building the NPA as a fit-for-purpose organisation that lived the fundamental values of integrity, professionalism, accountability and credibility. They were also grateful for their recent budget allocation, which would enable them to continue to pursue bold and innovative partnerships, including with non-traditional partners, such as the private sector, to build this capacity. “The wheels of justice - grinding at first - are now turning and would gain momentum. Our actions demonstrate that impunity is no longer a given; we are confident that the rule of law will prevail”, she said.
Mr Somyo was concerned about the delays in resolving cases because justice was not being served timeously. It was exhausting to the public and disheartening because people sent cases to the investigative agencies expecting they would be solved. He wanted to know how a lack of capacity affected their ability to solve cases quickly.
Ms Van Minnen said it was concerning to see a long process between cases in litigation and getting them into court, and asked whether there was a prioritisation of having courts deal with the matters, because even though some of them were taken to court, it took a long time before they went to trial. She was pleased to hear about the permanence of the ID, and wanted to know what else needed to be done by whom, and how Parliament could support them in speeding up the process.
She asked how the budget would assist the investigative bodies, and whether it would go directly to the ID or if it would go towards the various collaborative efforts. On the AFU, she wanted to know how non-conviction-based forfeiture worked, and asked if there was a difference between preservation orders and restraint orders, and how they both worked.
Mr Lees asked what the parallel was between what the NPA wanted the ID to achieve and what the Scorpions had achieved, and if there was a possibility of achieving the same standards that the Scorpions achieved through the ID. It was impressive that the Hawks had appointed the number of people it had appointed, and assumed that their budget had been increased considerably because it was significantly lower than the NPA’s budget in the last quarter. What was their current budget looking like, and how much did they think would be reasonable enough for them to achieve the goals that Parliament and the public had placed upon their shoulders? When they took cases to court, did they have an objective they pushed for? For example, did they push for convictions or the recovery of certain amounts of money?
Ms Mente was interested to know whether the referrals made by the SIU were dealt with promptly and effectively, and whether they were yielding any results, because the ABB case was reported in 2017, yet it had been postponed to 2023 due to further investigations required. The downside was that Eskom saw a potential that ABB would not be found guilty because they had self-reported and paid the corrupt amount back to them. She did not understand why it was difficult to make a conviction on the matter, because the information was clear to see. She also wanted to know why the investigations into the Department of Water and Sanitation were still ongoing, especially because of the reluctance of witnesses, and asked if there was no mechanism to make people talk in terms of the law.
On PRASA, she said there was clearly a syndicate in operation, because cables could not just be stolen for measly amounts by people, and there must have been a bigger company that was buying the cables. If the investigative agencies did not put all their resources together to pin down who the ‘big fish’ was, the problem would continue, making the efforts to rebuild PRASA futile. She had a problem with the strength, the delays and the ineffectiveness of the investigations.
Ms B Swarts (ANC) asked if any cases were delayed or not progressing because the investigating agencies lacked the skills to investigate or to deal with them, because they had cited a lot of impediments to their investigations and had highlighted that there was a need for certain skills to be able to move those investigations forward. How many cases were not being investigated or were not moving forward because of the lack of appropriate skills?
She said although the Committee appreciated the update on how cases were progressing, they would have appreciated hearing the number of people in jail because of the convictions made. It seemed like in the cases that were won, it was becoming much easier for them to get the state money back rather than people actually being jailed for the offences they made. She said the investigative agencies needed to deal with the syndicates operating within the SOEs, because recovering state money was not enough. It did not help to blacklist the companies while the corrupt people were still operating within the SOEs, because it created the same cycle of those people creating new companies and stealing state money again.
The Chairperson agreed with Ms Swarts that recovering state money and the asset forfeitures was not enough, and it seemed like the easy way out for criminals. He said it was a common occurrence that the high profile politicians who were found to be corrupt would forfeit assets and pay back the money, but were never actually arrested, and the people who would be arrested would be officials in the lower management. Very few high profile people have been arrested in the past 20 years.
He said in the previous meeting, the NDPP had mentioned that they had a shortage of about 700 prosecutors, and the Department of Justice (DoJ) was to make funds available for them to begin the process of filling those vacancies. He asked if the Department had followed through on that commitment, as part of the Committee’s role was to ensure that commitments made to them were followed through to enable them to perform their functions.
He encouraged the collaboration between the investigating agencies to ensure the continued fight against corruption and ensuring that people were arrested, but the main issue that the Committee had was that the agencies were very loud when making arrests, but then there seemed to be no loud progress on the cases after the arrests were made.
Gen Lebeya said a lack of capacity affected them a lot, and they were going to appoint senior managers effective from 1 December. They could have done that long ago if the vetting had been quicker. They were currently waiting for the appointment of more senior management, but because a decision was made that they could not appoint senior management without the approval of the SSA, that had delayed them.
The Chairperson interjected to say this was one of the reasons that the Committee had summoned the SSA to the Committee, because lack of capacity affected the investigative agencies’ ability to do their work effectively, and the SSA needed to come and account to the Committee.
Gen Lebeya said some of their vetting was done by the SSA, and some were done by the DPCI’s Crime Intelligence. They were still waiting for that process to conclude, and top secret security clearance was needed. Overall, the law required that everyone within the DPCI must have security clearance, even if it was not top secret, but people were still able to perform their duties while in the process of application for their security clearances, but could not hold senior management positions without the top secret security clearances.
The top secret security clearance was finalised within 60 days, so to give time to those applying, they advertised the positions before they became vacant. For example, when they knew some senior managers would retire at the end of the year, they would advertise the positions three months before the year ended so those who applied could go through the vetting process earlier.
Regarding the budget, he said the reason they were working hard to appoint and fill vacant positions was to ensure that they fully capacitated the DPCI to meet the current workload and exhausted their current budget to get an additional budget of about R1.3 billion. Once they filled the vacant positions and met their budget, they would be able to speed up the manner in which they dealt with the cases.
He said their investigations were always done from the perspective of tracing the syndicate ring from within or outside the specific entities where there was corruption at play. They often found that those within the entities were working with people from outside, and if they could not find the leaders, they found those who benefited from the corruption.
He said they tried not to lose the cases when they went to court after they made arrests. They had about 11 000 accused persons who were appearing in court, because, in most of their cases, they were dealing with groups, rather than individuals. This was also the case in some of their high profile cases. The reason why it was not so loud when the people arrested by the Hawks went to court was because they went there in their individual capacities and not through the Hawks vehicles in which they were arrested, so perhaps the media were unable to grasp that, but the cases did continue and most of them were in court daily.
The DPCI was collaborating with the NDPP and the SIU. There was also an operational committee where all the operations worked together with the ID and allowed their investigators to work together. They also discussed how things were going to work when the ID became permanent, because all of the agencies were interested in dealing with criminals. They were also working closely with the AFU of the NPA, and the agencies had agreed with one another that they would collaborate to ensure the success of their operations.
Adv Mothibi said they were seeing progress, and the collaboration yielded results, as matters were receiving attention. They had signed a memorandum of understanding (MOU) to enhance further collaboration between the investigative agencies. He agreed with the Members that consequence management also needed to be enacted on the directors of the SOEs, and not just the officials in lower positions. The Special Tribunal had played an important role in several matters in the High Court, and the SIU was working hard to ensure increased recovery and the disciplinary processes also affected the Directors.
The ABB matter was receiving attention from all aspects. Some of the matters under investigation were complex, but the SIU ensured that the implicated directors were also identified and that the blacklisting of the company would also affect them. The Companies Act was also straightforward -- that if their actions were deliberate, the directors must also be declared delinquent. ABB had been retained because Eskom had said they still needed them to finish the work that they had started, and the focus now was on ensuring that they would not make a profit. The matter was going to be transferred to the Special Tribunal for a Tribunal order.
He said part of the work of the SIU was to work with the state to improve administration, which was part of their systemic recommendations to ensure that as the SIU investigated corruption, it also investigated maladministration with the intended objective of improving administration. Some of the work they had done collaboratively with the other agencies had yielded results, including the National Lottery case and Eskom case, which the public had welcomed.
The implementation plan of the Zondo Commission that the President presented, had focused on PRASA among other entities, and there was various work being done by the investigative agencies to implement that plan. To move the Zondo recommendations forward, the SIU would consider an amended proclamation to ensure that they investigated the collapse of PRASA.
The Zondo recommendations said there was a need to delve deeply into the causes of the ruin at PRASA and who should be held responsible for it. The Commission did not have enough time to probe into that, and the SIU would process a proclamation to that effect. The integrated approach in the model that they agreed upon in the MOU would assist them in ensuring that they produced the results timeously and that evidence was gathered in a manner that would enable them to take action.
He agreed that the Committee could assist them in terms of the funding model, as they believed that there was a case for it to be reviewed so that they did not depend on the state institutions they investigated to pay.
Adv De Kock said they operated in a system where the obligation and duty to prove each and every allegation made against the accused was compulsory when dealing with commercial investigations. This meant that before a prosecutor entered a courtroom with an accused person, the prosecutor had to anticipate every aspect of the claim and consider the evidence it needed to provide. The accused person also had a right to file for a contestation, which was the core reason they struggled to conclude cases. When the accused was confronted with a solid case, their default position would be to not settle, even though they knew they stood to lose.
The prosecution was also in the hands of the court to allocate time for the cases to be heard, and they did their best to utilise the court time allocated to them. What often happened was that on the date of the court case, they were confronted by another application from the accused, which was often designed to prevent the court case from proceeding. This was frustrating cases being concluded.
One of the initiatives that was being attempted by the NPA to solve this was to meet with the Chief Justice to ask how best the cases could be moved forward. The Chief Justice had also deliberated with Judge Presidents, and they had agreed that the NPA must engage with their Judge Presidents for the long, complicated cases in the High Court. The same process would be followed with regional courts, where they would engage with the Regional Court Presidents on how to manage the cases. There were currently 18 courts which were all occupied with cases, and every time a new case was brought into the courtroom, it automatically had to compete for court time with existing cases, and that was the extent of the challenges.
Adv Rabaji-Rasethaba said non-conviction based forfeiture referred to taking away a person’s assets without their conviction or approval. The Prevention of Organised Crime Act was geared toward being a draconian measure to fight corruption and organised crime. The point of non-conviction based forfeiture was to take the profit out of crime and ensure that people did not hold on to assets they received from committing crime. In essence, non-conviction based asset forfeiture was for instrumentalities of crime and profits of crime. Instrumentalities of crime referred to tainted property, such as a car that was used to transport drugs or a getaway car used in a robbery, so it meant people should not use their property to commit criminal offences.
She said there was no difference between restraint and preservation orders, as they used the terminology of the Prevention of Organised Crimes Act (POCA). In future, they might use a restraint order in terms of conviction-based forfeitures or a preservation order in terms of non-conviction based forfeitures. She said the courts appointed a curator who would be either a chartered accountant or a lawyer with experience managing assets. They would wait for the standardisation of the case, whether a non-conviction based or conviction-based forfeiture. to defer the property or the amount to the court. Once approved, the money was deposited into the asset recovery account. It was a very stringent process, where the courts required constant reports.
Mr Sesoko referred to the ABB matter, and said that at the time of the arrest, certain procedures had been conducted which had resulted in the need for an analysis of the actual infringement, so that was the reason for the case being postponed to 2023. Regarding the lack of skills, he said that where the NPA lacked skills, they sourced the required skills from service providers.
Adv Batohi said there was a shortage of highly specialised skills to deal with complex cases. They had received the budget they needed for the current allocation, but it would need to be reviewed once there was more clarity about the ID and its permanence and new powers. The NPA was also engaging with the private sector to get highly specialised skills, and were acutely aware that they needed to ensure that they made independent decisions on whether to prosecute or not, and would ensure at all times that their decisions would be guided by evidence. They needed the skills to get to the point where they had enough evidence to make such decisions.
They had received the budget for the ID, and it was ring-fenced for the ID through the Department of Justice (DoJ). For now, it was sufficient, but it would have to be reviewed. The first thing that needed to be done regarding the permanence of the ID was registration. They were already engaging with the DoJ to facilitate the registration of the ID as a permanent structure. They were considering the permanence of the structure, the powers that would flow once the legislation was passed, as well as the various partnerships that they would need to ensure continuation of the collaboration with all the stakeholders.
Regarding the parallel between the Scorpions and the ID, she said the methodology would certainly be the same, but the one big difference was that the ID was going to specifically investigate corruption matters and not the broader mandate of the organised crime that the Scorpions had. Organised crime was a serious problem in the country, and the DPCI tried to do a lot in that regard, but it was a serious problem. Looking at the recent publication on the global index of organised crime, South Africa had serious problems regarding organised crime. It was not winning the battle, and the country needed to figure out what more it needed to do.
The various challenges that the criminal justice system of the country was facing in that regard included the lack of skills relating to the investigation of organised crime, lack of capacity, as well as corruption within the criminal justice system ranks. Organised criminals had so much money, and one of their targets was to corrupt government people. If those in government did not have the highest standards of integrity, they would always be fighting a losing battle. Government also had to look at policies that could be adopted to make it difficult for organised criminals to operate. For example, one of the good policies that government was looking at was the temporary ban on the exportation of scrap metals.
The vetting issue had been a perennial problem and challenge. The NPA had engaged with the new Deputy Director-General (DDG) of the SSA, and there was some movement in certain key positions in the NPA, as they were trying to get vetting partners expedited in the ID. The DDG of SSA had told the NPA that the SSA could look at a new process that would allow the entity itself to do a lot of the preliminary work, and the SSA would do the final assessment at a later stage. This would help a lot, because currently if some of the NPA people did not have top secret clearance, they could not access some of the key documents needed for investigations.
She said they ought not forget where the country came from in terms of its fight against corruption and the depletion of the skills, and what had happened in the DPCI and the NPA in the past few years. Capacity needed to be rebuilt, but she was very confident with the work in the DPCI and the ID, which was sort of becoming a snowball effect ,where momentum was building in their collaboration even with the SIU and the AFU, as well as SARS. SARS was helping a lot because, in all the corruption, money was involved so the money and assets were being followed.
The investigating agencies were looking at how they could use a combination of all their strategies to become more effective in the fight against corruption. Adv Batohi had expected everything to work more quickly, but with the amount of groundwork that needed to be done to recapacitate law enforcement and to get the necessary powers and skills, it had been challenging, but the work was being done regardless.
Chairperson’s concluding remarks
The Chairperson said the Committee understood that the law enforcement agencies and the organised crime prevention sector were specifically targeted by the age of state capture, as there had been a deliberate erosion of capacity, so there needed to be considerable efforts to rebuild the entities for them to be able to respond to their mandates. However, the luxury of time was scarce, so the pace needed to be doubled and tripled in the efforts currently being made to rebuild, to avoid the illusion that state capture was in the past.
State capture remained within the SOEs in different structures and different forms because its agents would not rest, as they were trying to protect their ill-gotten gains of the past and the present, and that reality needed to be confronted. “The longer we take to fix the problem, it persists and entrenches itself in different forms and the only way where corruption can find itself uncomfortable is where people are put behind bars”, he said. The consequences must be a deterrent, and any settlement must run parallel with jail time because the ease of paying back or asset forfeiture was just a slap on the hand.
The Chairperson thanked the NDPP, the Head of the Hawks, and the Head of the SIU and their delegations for a fruitful engagement, and thanked the Members for availing themselves for the meeting.
The meeting was adjourned.
Hlengwa, Mr M
Lees, Mr RA
Mente, Ms NV
Somyo, Mr SS
Swarts, Ms B
Van Minnen, Ms BM
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