OP-ED

To tackle corruption effectively, the law governing the Special Investigating Unit must be updated

By David Bruce 16 October 2018

Indian businessmen Ajay and Atul Gupta speak to the City Press from the New Age Newspaper’s offices in Midrand, Johannesburg, South Africa on 4 March 2011. (Photo by Gallo Images/City Press/Muntu Vilakazi)

What are the consequences faced by public servants implicated in corruption? The Special Investigating Unit reports are at best vague. The unit does remarkably well on recovering money that has been misused, but is able to tell us very little about matters referred for criminal prosecution to the National Prosecuting Authority or for disciplinary action to government departments.

On Wednesday, as happens every year, the Special Investigating Unit (SIU) will be presenting its annual report to the Parliamentary Portfolio Committee on Justice. The SIU is a state investigative unit that examines financial crime relating to the misuse of public resources.

In its annual report the SIU typically emphasises recoveries and cancelled contracts that have resulted from its work and the ensuing savings to the state.

For instance, in 2016-17 it reported that it had recovered R43.5-million worth of government funds with a further R126.9-million classified as “recoverable”. A further R4-billion worth of contracts or administrative actions were “set aside or deemed invalid”, thus savings funds for government that would otherwise have been spent unjustifiably.

If all these figures can be taken at face value, relative to its current annual budget of R357-million, the SIU is a value-for-money investment by government.

But there is another prominent aspect to the work of the SIU. As a result of its investigations the unit generates evidence that may provide the basis for criminal prosecution or disciplinary action. Its work can be used by the South African Police Services (SAPS) and the National Prosecuting Authority (NPA) to ensure that those who misuse funds can be held criminally accountable — and therefore deter others from engaging in behaviour that wastes public money. However, this can only happen if the evidence provided by the SIU is used effectively.

The issue of SIU referrals to the NPA was highlighted in September when head of the SIU Andy Mothibi said in a statement that the unit had referred “many cases” to the NPA, some as far back as 2007, but that there had been no prosecutions to date. This suggests that the NPA is failing in its mandate to hold those who commit corruption involving public money accountable.

This concern is strongly supported by data presented in SIU annual reports for 2014-15 and 2015-16. In these reports it appeared that the unit had been able to confirm at best one conviction out of 478 cases referred to the NPA over the two-year period. In this case the convicted person had received a five-year suspended sentence. A confiscation order for R2-million had also been granted.

In addition to criminal cases the SIU also makes a number of disciplinary recommendations to government departments each year. In 2016-17, for instance, the unit reported that it had made 137 referrals for disciplinary, administrative or executive action. But SIU annual reports generally contain no indication on the outcome of these cases.

One exception to this was in its 2015-16 annual report. The SIU reported that, out of 66 cases referred to government departments for disciplinary action, 16 (24%) had been finalised. No clear data, other than that there had been “a variety of outcomes”, was presented on these finalised cases. The unit also reported that in 11 matters (17%) government departments had confirmed that disciplinary proceedings had begun while in 39 cases (59%) they had confirmed that “they are considering the evidence”.

No further information is provided on these cases in the SIU annual report released in 2017. The unit is therefore, at best, extremely vague about the consequences of these referrals.

The issue of monitoring disciplinary charges has previously been identified as a priority in the public service. In November 2014 the Department of Public Service and Administration stated that it intended to build a database to collect information on discipline. However, it seems that this has not been achieved. The main information that is available continues to be a report on financial misconduct published by the Public Service Commission each year. The report is compiled on the basis of a survey of government departments.

In 2017, out of the 158 national and provincial departments that responded to the survey, 73 (46%) did not complete any financial misconduct cases, 26 (16%) completed one case each, and 59 (37%) completed more than one case. One government department, the North West Department of Health, did not respond to the survey.

A total of 1,150 cases had been completed with 683 (59%) resulting in a guilty verdict. Of the 683, sanctions of dismissal were reportedly instituted in only 105 (15.4%) cases.

The data currently provided by the Public Service Commission addresses only disciplinary matters in national and provincial government departments. It tells us nothing about disciplinary processes in municipalities or in other state entities. It also does not answer questions about whether any cases reported on are ones referred to government departments by the SIU.

The SIU experience with referrals is reminiscent of the experience of the Independent Complaints Directorate (ICD), the predecessor to the current Independent Police Investigative Directorate (IPID). Research on the ICD published by the Institute for Security Studies in 2008 concluded that the ICD was a “watchdog without teeth” partly because the SAPS frequently ignored ICD recommendations for disciplinary action. The ICD was unable to extract feedback from the SAPS on most referred cases.

One improvement introduced by the 2011 legislation which transformed the ICD into IPID was the requirement that the SAPS take disciplinary action in response to, and report on the outcome of, disciplinary cases referred to it by IPID.

As a result IPID annual reports are now able to provide information about disciplinary cases referred to the SAPS. This year it reported that, for cases referred to the SAPS in the 2017-18 year, 335 had had been finalised, with 141 (42%) resulting in a guilty verdict. SAPS members had also been convicted in 93 cases referred to it by IPID in earlier years. The 234 cases that achieved convictions involved 311 SAPS members and had resulted in 36 dismissals.

A similar provision has also been inserted into the new Public Audit Amendment Bill. The bill has been passed by the National Assembly and National Council of Provinces and is awaiting President Cyril Ramaphosa’s signature. It provides not only that the Auditor-General may refer matters to other public bodies for investigation, but also that the public body to whom the matter is referred “must keep the Auditor-General informed of the progress and the final outcome of the investigation”.

The SIU, which in its current form has been existence for nearly two decades, has been largely neglected by policy-makers. The legislation governing the unit is badly in need of an update.

One of the improvements that should be made is the insertion of a clause requiring the NPA, government departments, and other state entities to report to the SIU about cases that have been referred to them. Only then will the public know whether adequate action is being taken against those who misuse or steal funds meant for service delivery. DM

David Bruce is an independent researcher. He will be presenting a paper on the SIU at next week’s Public Affairs Research Institute conference on ‘State Capture and its aftermath’. The paper, and this article, have been commissioned by the Institute for Security Studies.

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