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Hermione Cronje, Investigative Directorate boss, sees b...

South Africa

DAYS OF ZONDO

Hermione Cronje, Investigative Directorate boss, sees brighter future after State Capture inquiry’s new rules

Head of the Investigative Directorate in the NPA Hermione Cronje, left, and Deputy Chief Justice Raymond Zondo. (Photos: Gallo Images / Phill Magakoe | Gallo Images / Veli Nhlapo)

The State Capture inquiry’s regulations have changed last week, again. The amendment allows for a partnership between commission investigators and law enforcement agencies. Some claim the move is a ‘positive step’ and ‘game changer’ in building criminal cases against the perpetrators of State Capture. But what does the change mean in practice?

One week ago, a critical change to regulations governing the State Capture inquiry appeared in the Government Gazette. The amendment means those in former Auditor-General Terence Nombembe’s team of investigators can disclose vital discoveries to law enforcement agencies.

President Cyril Ramaphosa and Minister of Justice Ronald Lamola co-signed the amendment in mid-July. Less than a fortnight later, on Tuesday 28 July, it appeared in the Government Gazette, bringing in three changes to Regulation 11 of the Commission of Inquiry. 

They were:

(i) law enforcement agencies will now have access to inquiry information,

(ii) investigators can now transition to law enforcement agencies as employees or consultants, and

(iii) inquiry personnel can now draw on material gathered from the inquiry in order to fight crime.

The regulation was the latest among a few changes gazetted since the Terms of Reference were signed by former president Jacob Zuma and published in the Government Gazette on 9 February 2018. 

Members of the National Prosecuting Authority (NPA) and advocate Paul Pretorius SC, who leads the commission’s legal team, hashed out the change over several months. 

“We actually made a joint proposal to the minister of justice, who then fast-tracked it to the Presidency,” said advocate Hermione Cronje.

Cronje runs the Investigative Directorate (ID) in the NPA. Ramaphosa established the unit in March 2019 when he signed a proclamation, which was the subject of some skepticism. He promised the ID would scrutinise “serious, high profile or complex cases” including those stemming from the State Capture inquiry. 

Since its establishment, the ID has been hamstrung by a dearth of capable personnel and what Cronje called “red-tape problems” in recruiting those with skill and experience. 

“Literally anyone with serious skill and capacity and knowledge about State Capture has been working with the commission[…] so they have not been available to us,” she said.

Cronje is “excited” about the recent change to the regulations. The acting director-general of the Department of Justice, advocate Jacob Skosana, deemed the move “very progressive and positive”. The ID plans to mine the institutional knowledge of investigators who, for over two years, have unravelled the knotted web of State Capture, corruption and fraud.

Cronje disclosed her motive for speaking to the press, after the amendment’s publication last week

“Let’s get this moving swiftly now,” she said. “We’ve been argy-bargying about this amendment. It’s now done. So, now the next phase has to rapidly fall in place.”

She urged Skosana’s department to “rapidly facilitate the transition”, specifically in providing resources and administration.

Of the commission, Cronje said, “They are very focused on trying to wrap up, but at the same time we are asking them to look beyond the work of the commission… I appreciate the pressures.”

#GuptaLeaks data will supplement future criminal cases opened by the NPA. Still, these allegations must be proven beyond a reasonable doubt and evidence furnished by the NPA will be subject to fierce legal scrutiny, particularly from counsel for the accused. 

Investigators working behind the scenes at the State Capture inquiry are an obvious fit for the ID. 

“We’re using different methods but it’s, in essence, very similar work,” said Cronje. 

Meanwhile, justice seniors harbour high hopes for the amendment. Spokesperson Crispin Phiri said Lamola was keen to leverage spending for law enforcement’s benefit. 

“You look at the commission and most of the procurement that they are making are actually investments for the criminal justice system,” said Phiri.

“What has been published in the Government Gazette now is taking this matter forward,” remarked Skosana.

Phiri insisted the State Capture inquiry “has some of the country’s best investigators” who, following the regulation change, can now move to the ID at the NPA, led by Cronje. 

A special area of focus is the Estina dairy scam in the Free State. 

Provincial officials flouted procurement processes (including making payments before a feasibility study was concluded). Millions of rand in government funds intended to empower local dairy farmers were laundered. Some of the laundered funds bankrolled the notorious Gupta wedding at Sun City in 2013, as reflected in #GuptaLeaks emails.

The NPA can now draw on the work of inquiry investigators (and IT consultants) to authenticate the #GuptaLeaks hard drive

In September 2018, advocate Kate Hofmeyr, for the commission’s legal team, detailed efforts to authenticate the #GuptaLeaks data. An international expert was said to have recovered 99.9% of material on one of the hard drives. As Daily Maverick reported, Hofmeyr asserted Zondo should be “overwhelmingly confident” about allowing the #GuptaLeaks to be admitted.

#GuptaLeaks data will supplement future criminal cases opened by the NPA. Still, these allegations must be proven beyond a reasonable doubt and evidence furnished by the NPA will be subject to fierce legal scrutiny, particularly from counsel for the accused. 

Cronje said, “The evidence is pretty overwhelming, but what people focus on is how you’ve gathered the evidence. They attack the investigation and prosecution, they don’t attack the evidence.” Specifically, on Estina, she said, “I don’t want it to be said that I am benefiting from fruits of the poison tree.”

While information from the inquiry can now flow to the NPA, Cronje said, “We still have to be very mindful of what loopholes there are.”

Cronje insisted the benefit of the amended regulation lay less in hard evidence (such as bank statements and cellphone records) and more in investigators’ perspective. 

Phiri, meanwhile, emphasised the benefits of the amendment in broader terms. Phiri said Lamola wanted to capacitate the NPA “so we are able to deal with all manner of [commercial] crimes” including those related to purported “accounting irregularities” at Steinhoff.

Such work demands the input of chartered accountants, among others. “That’s the type of skill that you require in the machinery of the NPA itself to solve complicated commercial crimes,” said Phiri. 

Phiri said the NPA must have skills to process complex commercial crimes, such as those involving charges of racketeering against political players. “It is really not child’s play,” he added.

The commission’s reported R700-million budget included paying for licences for IT software. “There was a huge capital injection for the IT capability, which we want access to,” said Cronje. 

Asked for details of IT equipment which would now be shared with law enforcement agencies (following the regulation change), Phiri said, “I’m told it’s sophisticated IT equipment that enables you to process a lot of stuff.”

According to Cronje, the State Capture inquiry’s acting secretary is now discussing finances with the NPA. Topics of interest include: what the inquiry paid personnel, what licences it bought, and whether there were methods of obtaining data which excluded licence fees.

The ID’s budget was some R115-million for the 2020-2021 financial year. Cronje was frank: the ID cannot meet the Zondo Commission in terms of pay. “There are people (willing) to work for public sector salaries and, so, those people will be put on fixed-term contracts. We have authority to put them on contracts for three years,” she said.

Contrast both figures to the few million rand former public protector Thuli Madonsela sought to complete her investigation into State Capture four years ago. 

Lawson Naidoo from the Council for the Advancement of South Africa’s Constitution recalled Madonsela’s request to the National Treasury in March 2016. 

“I’m not, you know, saying that she is necessarily right, but she certainly had something very different in mind if she thought she can complete this work with just R3-million,” he said.

The chair of the inquiry, Deputy Chief Justice Raymond Zondo, is determined to conclude timeously, in light of the March 2021 deadline handed down in the High Court, but some divisions will conclude sooner.

Cronje insisted the benefit of the amended regulation lay less in hard evidence (such as bank statements and cellphone records) and more in investigators’ perspective. 

“It’s human capital, but it’s domain knowledge. It’s their understanding. They’ve been debating these issues across teams. They have a much better understanding from the top,” she said.

Naidoo said, “I think we have to acknowledge that the Terms of Reference for the commission of inquiry were set by Zuma and he broadened those Terms of Reference in such a way that, to a certain extent, I suppose achieved his purpose at the time, [which] was to try and make it so broad that it would not be able to hone in on what the critical issues were.”

Since 2018, there have been a number of amendments to regulations, including a change in early 2020 empowering the chair to reprimand anyone who wilfully hinders, resists or obstructs him or any officer of the inquiry. 

The chair of the inquiry, Deputy Chief Justice Raymond Zondo, is determined to conclude timeously, in light of the March 2021 deadline handed down in the High Court, but some divisions will conclude sooner.

Cronje said, “The investigative component is probably going to be around for another month or two at most, I think.” 

Naidoo shared his priorities regarding the inquiry’s remaining work: “Will they be able to execute their Terms of Reference to a sufficient extent that enables them to produce a report that is meaningful?”

He flagged the absence of interim reports and the “haphazard manner in which Zondo has gone about his work” moving between different work streams, which Naidoo considered a weakness in terms of helping agencies like the NPA and the Hawks. 

“The manner in which Zondo has operated, I don’t think has been of assistance to the law enforcement agencies, and in that same vein the call many of us have been making for Zondo to issue interim reports was premised exactly on that: deal with each aspect of the Terms of Reference in turn,” said Naidoo. 

Naidoo recalled Madonsela’s 2016 State of Capture report, the remedial action of which prompted the inquiry. Its focus areas have been somewhat eclipsed by other topics of interest, including corruption between the prisons department and Bosasa

Contemplating the final report, Naidoo said, “At the very least, one would expect a report that addresses each of the issues that arise from the public protector’s report with a set of recommendations from those.” 

For over two years, the inquiry’s investigators have been at work (at significant expense) in what might be likened to a State Capture, corruption and fraud engine room, with Nombembe at the helm. 

They have skills and institutional knowledge, but Cronje wants to grow her modest ID team. 

“I’m looking at probably increasing our capacity, it’s not saying much, by tenfold by the very least. So, that tells you: we don’t have much, but we are aiming to upscale dramatically with this,” she said.

Neither Cronje nor Skosana would be drawn on the number of investigators set to move from the commission to the prosecuting authority. On the prospect of Nomembe transitioning to the ID, Phiri said: “It’s not impossible but I wouldn’t want to speak about specific individuals possibly moving over to the ID.”

Cronje, Phiri and Skosana asserted the latest regulation change was profound as it would “unlock” the sharing of information between the commission and law enforcement. 

Naidoo was slightly more cautious, saying the change was “potentially” significant. 

“What they have to do is to determine whether that evidence will stand up in a court of law and be sufficient to be able to secure successful prosecution,” he said. 

Cronje said, “I think it’s a game changer, because it’s a huge shot in the arm, if that’s an appropriate metaphor for a head of an Investigating Directorate to use, but, really, it is.” DM

Note: Daily Maverick sent a request for comment to the State Capture inquiry’s spokesperson on Wednesday, 29 July. No response was received at the time of publication. Any reply will be reflected in due course.

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