The Investigating Directorate (ID), tasked with delivering critical State Capture prosecutions, says it will not be able to prosecute all State Capture cases because of a lack of resources, an inadequate budget and a skewed criminal justice system. 

Instead, it says it will assess and prioritise cases that deliver the most impact, and those that have been most damaging to the country’s constitutional democracy. The ID will also rely on the assistance of other law enforcement agencies, including the Special Investigating Unit (SIU) and the Directorate for Priority Crime Investigation (the Hawks), in dealing with investigations, prosecutions and asset recovery. 

ID head, Advocate Andrea Johnson, made the remarks at the joint Public Affairs Research Institute and Council for the Advancement of the Constitution conference in Johannesburg, this week. 

Despite President Cyril Ramaphosa having said during a televised address in October 2022 that the directorate would be established as a permanent entity, the anti-corruption body is fighting in Parliament for its existence, with public hearings into the NPA Amendment Bill under way. 

Johnson, who was appointed in February 2022, said the ID had been hamstrung by a myriad challenges since Ramaphosa’s announcement in 2022. 

“The powers that be have got to give us the power to do … So where I sit today, I work in a framework that currently exists in terms of existing practices within the NPA, and having a multidisciplinary approach with investigators both criminal and financial, as well analysts, but not having permanency is a real issue because it inhibits my ability to recruit the kind of skill and capability that the ID requires.”

Not only does the ID have to grapple with the lack of resources, but also a skewed criminal justice system, which, according to Johnson, was reluctant to prioritise State Capture cases. 

“We have a challenge in terms of the criminal justice system, getting cases once they are enrolled to be given trial dates as speedily as we would like to. The criminal justice system isn’t user-friendly.”  

Johnson believes the system must prioritise State Capture prosecutions. 

“We would like in terms of the State Capture matters, for a fast lane; it’s not called preferred treatment. It’s not called law enforcement telling the judiciary what to do. It is saying we cannot afford to waste time,” she said.   

Johnson referred to the ongoing R280-million Estina Dairy fraud and corruption case, which is set down for trial only in August 2024. “So what must South Africans do this year while they wait?”  

Read more in Daily Maverick: Vrede Dairy project — Mosebenzi Zwane appears in high court for corruption pretrial 

It would be in the interest of justice for the State Capture cases to skip the queue. “So can you give us a speedier service than every other matter? Because the country deserves justice, the country cannot wait for justice, but the justice is delayed…”  

The ID has been widely criticised for its inability to successfully prosecute State Capture and high-profile cases to date. It has, however, made significant strides in obtaining restraining orders, along with the Asset Forfeiture Unit.   

To date, it has obtained R7.18-billion in restraining orders for funds believed to be the proceeds of crime. It has 34 matters enrolled, including cases involving the state security sector and state-owned enterprises.  

Read more in Daily Maverick: Under-resourced Investigating Directorate struggles to effectively prosecute State Capture cases

The ID currently relies on outsourced financial flow experts and this has caused a delay in at least one of their cases, the R2-billion Kusile corruption case.

In April, the UAE rejected South Africa’s bid to extradite Atul and Rajesh Gupta, which raised questions about the country’s ability to ever bring to book the prime suspects in the State Capture saga. 

Concluding her address Johnson reiterated that the anti-corruption body was fit for purpose. “We are able to get cases enrolled; we are getting investigations done; and we know we should do better; we know we should work faster, but we’re doing the best we can with what we have.”  

Preventative measures

Andy Mothibi, head of the SIU. (Photo: Shelley Christians)

Meanwhile, SIU head, Advocate Andy Mothibi, said that while the unit had made significant progress in investigating serious allegations of corruption related to state assets and public money, it would intensify preventative measures to ensure there was no repeat of State Capture.  

“We have to really take into account what has been the causes of State Capture and really reverse them.” 

Read more in Daily Maverick: Zondo affidavit: Spooks aligned with Zuma enabled State Capture 

Those measures would be contained in the National Prevention Framework, and Mothibi said they would include:

• Corruption risk assessment;
• Data analytics to determine exposure;
• Identification of required controls;
• Systemic recommendations;
• Lifestyle audits across government;
• The role of civil society
• The whole-of-society approach; and
• The appointment of accounting authorities and officers.

“This has proved to be problematic in the past, and we are aware that there is a process now to reform the SOEs. We will be contributing towards that in terms of our observations on the role of accounting authorities in ensuring that there is no corruption, maladministration and malpractices…” DM