Accountability for corruption The role of the Special Investigating Unit

David Bruce

Before March 2017, when the new investigating directorate on serious, high-profile or complex corruption was established in the National Prosecuting Authority, the Special Investigating Unit (SIU) was South Africa’s only dedicated anti-corruption agency. But despite the major role it plays in investigating corruption, there has been little analysis or debate about it. This report analyses the SIU, focusing on how to strengthen the role of the unit in addressing corruption.

SOUTHERN AFRICA REPORT 28 | OCTOBER 2019 Key findings

The Special Investigating Unit (SIU) is a The requirement that investigations may be dedicated anti-corruption agency focusing initiated only by presidential proclamation on the recovery of state resources that have aren’t aligned with provisions of a new act been misappropriated. It isn’t a criminal that authorises the Auditor-General to refer justice agency. matters to a public body for investigation. The SIU may be the ideal body for many of The SIU doesn’t meet the criteria for an these investigations to be referred to. independent anti-corruption agency. It is created by presidential proclamation. Its SIU investigations generate evidence of investigations may be initiated only on the disciplinary violations and criminal offences basis of presidential proclamations. and these matters are often referred to government departments and the National Current provisions governing the Prosecuting Authority (NPA) for further appointment of the SIU head by the action. The SIU doesn’t have information on president doesn’t ensure that the most whether cases it refers lead to disciplinary suitable candidates are appointed. action or criminal convictions.

The resuscitation of the Special Tribunal, The NPA generally refers SIU cases approved by President Cyril Ramaphosa in back to the Directorate for Priority Crime February 2019, could dramatically enhance Investigation (Hawks). This raises questions the effectiveness of the SIU in recovering about duplication of investigations and the state resources. efficient use of state resources.

Recommendations

The SIU Act should be reviewed and amended. agencies including cases referred from one Some of the suggested amendments are: agency to another.

• Establish the SIU as a single and National and provincial government stable entity. department reports on disciplinary cases • Enable the Auditor-General to refer should indicate the number of cases referred matters for further investigation directly to them by the SIU, and other bodies, and to the SIU. action should be taken in response to these. • Strengthen provisions for appointing the SIU annual reports should provide updated head of the SIU information for all cases referred for criminal The SIU Act should require public bodies or disciplinary action for a four-year period, to whom matters are referred for criminal or as cases often take more than one year to disciplinary action to keep the SIU informed of be finalised. progress and the final outcome. High-level performance indicators under the Government should ensure that there is Medium Term Strategic Framework should a centralised capacity for collating and be more clearly linked to assessing the monitoring all data related to the management functioning of the overall system in responding of corruption-related cases by government to financial misconduct.

2 ACCOUNTABILITY FOR CORRUPTION: THE ROLE OF THE SPECIAL INVESTIGATING UNIT Introduction A press report in October 2018 indicated that steps were being taken to bring the case to court.7 Finally Testimony of Angelo Agrizzi at the in February 2019, after Agrizzi’s testimony at the Zondo Commission Zondo Commission, Agrizzi, Mti, Gillingham and In early 2019 South Africa’s Special Investigating three other current or former Bosasa officials were Unit (SIU) was prominently featured in the news. In arrested and charged with fraud, corruption and 1 testimony before the Zondo Commission Angelo money laundering.8 Agrizzi testified about a series of contracts, allegedly linked to corrupt procurement processes, between The Special Investigating Unit Bosasa2 and the Department of Correctional First established in 1997, the SIU is a South African Services (DCS). Among those implicated by Agrizzi government investigative and civil recovery agency were former national commissioner of prisons, largely focused on addressing financial crime relating Linda Mti, and former DCS chief financial officer, to the misuse of public resources. Patrick Gillingham. The SIU occupies a somewhat paradoxical position DCS contracts with Bosasa had been a focus of a in the South African anti-corruption architecture. broad SIU investigation of DCS initiated in 2007.3 On the one hand, as a result of its focus on forms In his testimony Agrizzi gave evidence about how of financial crime it is in effect a dedicated anti- Bosasa’s chief executive, the late Gavin Watson, corruption agency.9 had received advance notice that the SIU would Before March 2017, when the new investigating be carrying out a raid at Bosasa premises. Watson directorate on serious, high-profile or complex allegedly instructed Agrizzi to go through Bosasa corruption was established in the NPA,10 it was the offices and remove any incriminating documents.4 only dedicated anti-corruption agency. It has probably dealt with a higher volume of corruption cases than The SIU occupies a somewhat any other government agency in South Africa. paradoxical position in South Africa’s But despite the major role it plays in investigating anti-corruption architecture corruption, and the fact that it sometimes features quite prominently in corruption-related media coverage, there has been little analysis or debate Before Agrizzi’s testimony the Bosasa case had about the SIU. already provoked public comment and concern on a number of occasions. SIU investigations found At least since the early 2000s, political contestation, evidence of serious irregularities in relation to the court judgments and public debate about anti- contracts. As a result the SIU submitted a report to corruption investigation have given little prominence 11 the DCS in which the SIU recommended that the DCS to the SIU. Instead attention has tended to focus on institute civil proceedings for the recovery of losses. the Directorate of Special Operations (the Scorpions) But no action was taken in this regard. and its successor the Directorate for Priority Crime Investigation (the Hawks). In addition an SIU report dealing with the Bosasa matter was finalised in 2009 and handed over to the This report is a response to this neglect of the SIU in National Prosecuting Authority (NPA) in 2010. No action analysis and debate on anti-corruption mechanisms. It was taken against any person as a result of this either.5 provides an overview of the unit in relation to its history, mandate, powers and skills and resources. It then Agrizzi, in his testimony, alleged that senior Bosasa focuses on three key interrelated issues about the SIU and NPA officials had jointly conspired to obstruct – its independence, its investigations and its impact. potential prosecutions. Agrizzi also provided the commission with NPA documents relating to the case The report finishes with recommendations. These deal that had allegedly been provided to Bosasa irregularly.6 with the legislative framework governing the SIU as

SOUTHERN AFRICA REPORT 28 | OCTOBER 2019 3 well as the overall system for monitoring the outcome of Heath unit.22 One of these meetings agreed on a cases that are dealt with within the multi-agency system motivation for the Heath SIU to be included in the arms anti-corruption system. deal investigation.

SIU history Others supported this call, with the SCOPA chairperson writing to then president Thabo Mbeki on 8 December The Heath Special Investigating Unit 2000 to ask for a proclamation authorising the Heath 23 The precursor to the establishment of the SIU was the unit to join the investigation. The chairperson also establishment of a commission of inquiry in the Eastern noted that the Auditor-General had expressed support 24 Cape in 1995.12 Impressed by the commission’s success for the Heath unit’s inclusion. Heath himself submitted in recovering state assets, Parliament passed legislation a formal request for a proclamation to be issued authorising SIU involvement.25 in 1996 to provide for more units of this kind to be established ‘to cover corruption countrywide’.13

The legislation in question, the Special Investigating After Judge Heath resigned, Units and Special Tribunals Act (the SIU Act),14 provided the SIU technically ceased for special investigating units to be established by to exist presidential proclamation. The Heath Special Investigating Unit was established in 1997 by means of Proclamation R24 of 14 March 1997.15 However Mbeki refused to sign off on SIU involvement. In a letter to Heath, and subsequent television appearance, During Judge Willem Heath’s period of tenure as head of Mbeki expressed considerable animosity towards Heath the SIU, the unit enjoyed a reputation for ‘zeal in rooting inter alia accusing him of ‘ungovernability’ and of ‘an out corruption’.16 Heath has been described as ‘a high- unseemly campaign to tout for work’. He also used profile public figure with an uncompromising approach to information incorrectly attributed to Heath, in order to 17 corruption and a strong independent streak’. He was denounce him.26 outspoken about the need for improved resourcing of the unit. He also complained about the cumbersome process Heath applied to be discharged as a judge presumably the SIU had to go through to initiate investigations.18 His in order to enable him to continue as head of the SIU. However Mbeki refused to discharge him. As a high-profile and his outspoken nature did not endear him result Heath was obliged to resign, which he did in to government. June 2001. The end of the Heath SIU It appears that Mbeki’s hostility to the unit and reluctance In November 2000 the Constitutional Court ruled that to involve them in the arms deal investigation was linked for a judge to serve as the head of the SIU was in to the fact that he regarded them as too independent. violation of the principle of separation of powers and The Scorpions, who had just been established at that was unconstitutional.19 The court ruling coincided with time, would have been regarded as a safer option. controversy over the inclusion of the unit in the arms They were part of the NPA and therefore ultimately fell deal investigation. under the authority of the National Director of Public The unit had begun a preliminary investigation into Prosecutions at the time, Bulelani Ngcuka. As a member of the ruling party who had been appointed as NDPP the deal20 and in October 2000 Parliament’s Standing during Nelson Mandela’s term of office as president, Committee on Public Accounts (SCOPA) recommended Ngcuka would have been more trusted.27 that the unit be included in a multi-agency investigation into the deal.21 Re-establishment of the SIU In November and December 2000 a number of After Heath resigned, the SIU technically ceased to exist. exploratory meetings were convened by SCOPA with In terms of the Special Investigating Units and Special representatives of the various agencies including the Tribunals Amendment Act 2 of 2001, the provisions of Act

4 ACCOUNTABILITY FOR CORRUPTION: THE ROLE OF THE SPECIAL INVESTIGATING UNIT 74 of 1996 in terms of which a judge or acting judge was The exclusion of the SIU from the arms deal investigation supposed to lead the unit were amended.28 also coincided with the creation of the Scorpions in January 2001.39 The Scorpions come to play the leading Mbeki established a new SIU in terms of the new act role in the major arms deal-related investigations of the by Proclamation R118 on 31 July 2001.29 The new SIU 2000s, most notably that into Zuma. therefore came into existence in August 2001.30 Advocate Willie Hofmeyr was appointed to head the unit. At the In addition the Scorpions had a strong orientation in time Hofmeyr was already head of the NPA’s Asset favour of media publicity (something which in turn was 40 Forfeiture Unit. Until he was removed from the leadership extensively used against them by their enemies). Most of the SIU in November 2011, he headed both the Asset subsequent leaders (the exception being the brief period Forfeiture Unit and the SIU. in 2011 when Heath was reappointed) did not go out of their way to promote the unit’s public profile. It is unclear Subsequent leadership of the SIU if the current SIU head, Mothibi, described in one news At the end of November 2011, then president Jacob report as ‘the quiet technocrat’, represents an exception 41 Zuma reappointed Heath, now no longer a judge, as to this pattern. head of the unit.31 However shortly after being appointed Mandate and powers of the SIU Heath made public statements alleging that Mbeki had blocked some investigations into corruption. He also The mandate provided to the president claimed that Mbeki had been behind the 2005 rape case by the SIU Act against Zuma, as well as the corruption charges against In terms of the SIU Act the president may, by him. Heath resigned the following month as a result of the proclamation, establish a special investigating unit ensuing controversy.32 ‘whenever he or she deems it necessary’ to investigate a In the subsequent period: specific matter. He or she may also refer a matter to an existing special investigating unit.42 The president may • Zuma initially appointed Advocate Nomgcobo Jiba as therefore establish special investigating units (and special 33 acting SIU head after Heath’s resignation. A week tribunals – see below) as and when needed, allowing for later he appointed another Deputy Director of Public any number of these units to exist simultaneously. Prosecutions, Advocate Nomvula Mokhatla, to serve as acting head.34 Mokhatla served as acting head for over 20 months. There has only been one SIU

• Zuma appointed Advocate Vas Soni SC to head that existed as a single, largely the SIU in September 2013. Soni resigned in permanent, body since 1997 January 2015.35

• Advocate Gerhard Wilhelm Visagie was appointed as These may not be permanent structures but may cease the acting head of the SIU in March 2015.36 to exist once the investigations for which they have been established have been completed. • Advocate Jan Lekgoa (Andy) Mothibi, the current (in October 2019) SIU head, was appointed from In practice however there has only ever been one SIU 1 May 2016.37 that has existed as a single, largely permanent, body since 1997. Though the Heath unit legally ceased to From prominence to relative obscurity exist and was replaced by a ‘new’ SIU in 2001, this was In the late 1990s the Heath SIU enjoyed the status of effectively the same unit, though under new leadership being the pre-eminent anti-corruption unit in South Africa. and governed by slightly different legal provisions. But in the subsequent period the SIU has ‘had a much The president’s power to issue proclamations has lower media profile’38 and has received little attention in therefore not been used to establish a variety of SIUs. discussions about addressing corruption. The powers provided to the president by the SIU Act are

SOUTHERN AFRICA REPORT 28 | OCTOBER 2019 5 however significant, as SIU investigations may only be the power, similar to that provided in Section initiated when authorised by presidential proclamation.43 28 of the National Prosecuting Authority Act (Act 32 of 1998), to compel people to answer The act is to some degree open ended in relation to what type of matter may be investigated by the SIU, self-incriminating questions. This is subject allowing for proclamations to be issued in relation to to the proviso that compelled answers may ‘serious maladministration in connection with the affairs not ordinarily be used in criminal proceedings of any State institution’ (Section (2)(a), see also (b) and against the person (Sections 5(2)–(4)). (g)).44 However in practice the proclamations that have • Powers of search and seizure including been issued have largely focused on financial crime and powers of forced entry. This may be carried misconduct of the kind reflected in Sections 2(c) to (f).45 out by the SIU or by police acting on the These provide for investigation of: SIU’s request (Section 6).

(c) ‘unlawful appropriation or expenditure of • Power to order the production of specified public money or property’; books, documents or objects (Section 5(2)(b)).

(d) ‘unlawful, irregular or unapproved acquisitive In addition to these investigative powers the SIU may act, transaction, measure or practice having a conduct civil litigation in its own name or on behalf of bearing upon State property’; state institutions.50 The SIU ‘can obtain a court order to compel a person to pay back any wrongful benefit (e) ‘intentional or negligent loss of public money received and consequently recover the money for the or damage to public property’; state’.51 Litigation may also be used to annul contracts, (f) various offences provided for in Chapter 2 thereby preventing ongoing losses to the state from of the Prevention and Combating of Corrupt irregular contracts. The SIU may ‘work with a government Activities Act, 2004, in so far as these were department to cancel contracts when the proper ‘committed in connection with the affairs of procedures were not followed and/or to stop transactions any State institution’. or other actions that were not properly authorised’.52 Proposals for proclamations are, in most cases, submitted to the president by the SIU. These may in turn have been initiated in the form of a request for an Criminal cases of corruption investigation from a government department or entity.46 are also often protracted In some cases the SIU also receives complaints and expensive or allegations directly from members of the public, 47 including whistleblowers in state departments. In such actions the standards of proof are on a ‘balance Recommendations may also be made directly to the of probabilities’. Civil cases are therefore easier to prove president by ‘other bodies such as a parliamentary than criminal cases which have to be proved ‘beyond a 48 committee or the public protector’. reasonable doubt’. Criminal cases of corruption are also The question of how presidents exercise the power to often protracted and expensive (see below regarding the issue proclamations is discussed below. role of the special tribunal in expediting SIU civil cases). Though it doesn’t result in criminal convictions, and Powers accountability is therefore primarily financial, civil action SIU personnel are not full ‘peace officers’49 and do not clearly has its advantages. have police powers of arrest. But the SIU nevertheless When there is sufficient evidence to substantiate a civil has considerable powers. As provided for in the SIU Act claim the unit is also often able to do away with the need these powers include: for civil action by persuading the alleged wrongdoer to • Power to order a person to appear before sign an ‘acknowledgement of debt’ (AoD) agreement. For it and to question the person. This includes instance during the 10 years from April 2004 to March

6 ACCOUNTABILITY FOR CORRUPTION: THE ROLE OF THE SPECIAL INVESTIGATING UNIT 2014, the SIU managed to secure over 50 000 AoDs other judges also appointed to it.62 In late September through its investigation into social grant fraud.53 government announced that regulations for the tribunal had been promulgated and that the tribunal would Litigating civil matters through special tribunals commence its work on 1 October.63 In addition to providing for the establishment of special investigating units, the SIU Act also provides for the Skills and resources establishment of special tribunals (as indicated the full Skills and capacity name of the act is the Special Investigating Units and 64 Special Tribunals Act). From 1999 to 2001 the SIU had roughly 70 personnel, of whom 57 (in 1999) were investigators.65 Since then the The original concept was that civil actions would be number has expanded. At 31 March 2018 SIU employees instituted by special investigating units before special numbered 522,66 including 34 at the public service senior tribunals. These would be separate legal entities and top management levels. ‘presided over by judges who are not part of the Special Investigating Unit and are appointed on the same basis In a report to the Portfolio Committee on Correctional as judges of the High Court’.54 Services in 2009 the SIU described itself as having ‘a multidisciplinary forensic capability, consisting of forensic However while special tribunals were established investigators, lawyers, forensic accountants, cyber in the early days of the SIU55 they were little used in forensics experts, data analysts and project management subsequent years.56 Though the SIU continued to refer professionals’ and as providing ‘a service [comparable] to special tribunals in one of its performance indicators to what the private sector had to offer, but at less cost to (‘Number of civil matters instituted in Court or the the State’.67 Special Tribunal’),57 litigation was pursued through the courts rather than through special tribunals. As a result litigation by the SIU has been subject to the same delays The SIU’s budget is 13% greater that affect other civil matters. than that of the Independent As from 2017 the SIU began to pursue the Police Investigative Directorate re-establishment of special tribunals to facilitate quicker resolution of civil litigation and recoveries.58 Difficulties in recovering some of the expenses related to Zuma’s It appears that reliance on civil processes may not be Nkandla homestead were also cited as motivation for the only factor impeding the SIU in its efforts to recover re-establishing the special tribunals.59 irregularly obtained funds. Shortages of sufficiently skilled staff may be an additional factor. For instance in The importance of re-establishing the tribunals was September 2017 the SIU told SCOPA that it had only highlighted in Parliament in October 2018 when the SIU three forensic accountants in its employment.68 reported that despite aiming to recover R120 million, it had only managed to recover R33 million partly as a In March 2018 a total of 349 staff were employed result of the ‘slow pace of civil litigation’.60 at the professionally qualified (172) and skilled (177) occupational level. These figures represent a 5% decline As with the provisions relating to special investigating in the total number of employees at these two levels as units, the SIU also authorises the president to establish opposed to the 368 reported for March 2017. special tribunals by means of proclamation. They are established to adjudicate upon civil proceedings Resourcing emanating from any investigation of a special The SIU receives its budget through the Department investigating unit.61 of Justice and Correctional Services (previously the In February 2019 President Cyril Ramaphosa appointed a Department of Justice and Constitutional Development). new special tribunal. Judge Gidfonia Makhanya has been The SIU currently receives a budget that is 13% greater appointed as the president of the tribunal with seven than that received by the Independent Police Investigative

SOUTHERN AFRICA REPORT 28 | OCTOBER 2019 7 Directorate and 15% more than the Public Protector’s, used in a very limited sense implying that the unit is but which is less than a quarter (22%) of that received by not part of any other body. As will be discussed, the the Hawks.69 The SIU’s 2019–20 budget reflects a below- legislation that provides for the establishment of the SIU79 inflation 1.7% increase on the R357 million allocated to it essentially provides that the SIU operates at the behest of in 2018–19.70 the president.

This is reflected on the SIU website which states that Table 1: Budget allocated to the SIU and selected the SIU was established by the president, conducts other investigative agencies investigations at his request, and reports to him on (2019–20 budget year) the outcomes.80

Directorate for R1.733 billion in 2019–20 (the As indicated in November 2000, the Constitutional Court Priority Crime budget is part of the South African held that it was unconstitutional for a judge to head the Investigation Police Service (SAPS) budget. SIU. The legislation governing the SIU therefore had to (the Hawks) The budget line is for Specialised be amended to remove the requirement that ‘a judge or Investigations as part of the SAPS acting judge’ should head the unit. Programme 3 budget).71 Independent R337 million in 2019–20 of which Police R206 million is dedicated to The president may only remove the Investigative Investigations and Information head of the SIU if there are ‘sound Directorate Management (Programme 2).72 reasons for doing so’ SIU R363 million in 2019–20.73

74 Public Protector R321 million in 2019–20. In March 2001 the Parliamentary Portfolio Committee Source: Estimates of National Expenditure 2003, Votes 20, 21 and 23 on Justice and Constitutional Development debated the amendment bill. Records of the meeting show In addition to money allocated to it by Parliament, the SIU that members of opposition parties motivated that the Act authorises the SIU to make use of ‘money lawfully act should provide greater independence to the SIU. accruing from any other source, including fees and Measures motivated for included ensuring the political expenses recoverable for services rendered’.75 independence of the SIU head and measures to prevent arbitrary removal of the head.81 In 2017–18 the SIU received upwards of R302 million, over and above the money allocated to it in the Possibly as a result of the latter argument the act, as Department of Justice budget, with R286 million amended in 2001, provides that the president may being payment for services rendered to government only remove the head of the SIU from office if there are departments.76 These amounts accounted for 46% of SIU ‘sound reasons for doing so’.82 A further issue raised revenue in the 2017–18 year. was whether it was ‘advisable for the units to operate by a proclamation by the Executive’ and that The SIU therefore has considerable capacity to a way should be found of ‘divorcing the SIU from supplement its income, though there is a concern the Executive’.83 that this may lead to conflicts of interest.77 These may result if the SIU focuses on investigations that are likely Johnny de Lange, the chairperson of the Portfolio to optimise its revenue rather than cases where its Committee, rejected this argument. As reported his investigations are most needed to prevent the loss of arguments were that this would mean that SIUs had public money. ‘their own jurisdiction’ and that this would mean that they ‘are no longer retrieving State assets, but are an anti- Independence corruption unit’ and that this would be unconstitutional On its website the SIU describes itself as ‘an independent ‘as it would be infringing on the duties of other bodies’ statutory body’,78 but the term ‘independent’ is obviously such as the South African Police Service (SAPS).84

8 ACCOUNTABILITY FOR CORRUPTION: THE ROLE OF THE SPECIAL INVESTIGATING UNIT De Lange’s argument foreshadows issues that were pressure on Willie Hofmeyr, the deputy national later to prove controversial in relation to the Scorpions, director of public prosecutions, who has headed the who were located in the NPA. Opponents of the SIU in conjunction with his role as head of the Asset Scorpions made much of the words in Section 199(1) Forfeiture Unit’.86 of the constitution that refer to ‘a single police service’. Some modest limitations on who may be appointed They argued that the existence of the Scorpions was as head are also provided by the act. These are based unconstitutional, despite the constitution explicitly on those applicable to the National Director of Public authorising Parliament to establish other ‘armed Prosecutions.87 The SIU Act, as amended in 2001, now organisations or services’ by means of national legislation provides that the head of the SIU must be a South African (199(3)), and endorsing the creation of municipal police citizen ‘who, with due regard to his or her experience, services (Section 206(7)). conscientiousness and integrity, is a fit and proper person The constitution therefore doesn’t provide the basis for to be entrusted with the responsibilities of that office, as the argument that the SIU should not be able to initiate the head of a Special Investigating Unit’.88 In addition its own investigations. Even if this is a concern there people who are appointed by the head to serve in the SIU are also other options. For example, rather than the SIU must be fit and proper persons.89 initiating its own investigations, there could be another Beyond this the act by and large defines the SIU mechanism for doing so, such as through some form of as an instrument of the president, with the justice judicial authorisation. minister playing a secondary role. The SIU is therefore As indicated, the SIU doesn’t conduct criminal subordinate to the authority of the Executive. This is investigations. Its investigations are carried out for the above all embodied in the authority of the president purposes of recovering illegitimately used state funds. to issue proclamations authorising SIU investigations Changes to systems for authorising SIU investigations (discussed above). would therefore not mean that the SIU is infringing on the work of the police, or other bodies. In addition:

90 In the years since the SIU Act was passed, there have • The head of the unit is appointed by the president. been numerous court judgments that have set standards • Though the president may only remove the head if there for assessing whether or not a body enjoys a reasonable are ‘sound reasons’ for doing so, there is no provision measure of independence.85 for security of tenure.

• There are no provisions stating that appointment SIU investigations are carried out is not renewable or may not be extended. As the for the purposes of recovering Constitutional Court has emphasised, such provisions illegitimately used state funds serve as a mechanism for supporting the head of an agency in acting independently.91 Where the head of an agency serves in one way or another ‘at the pleasure Viewed against the standards set in these judgments, of’ the president, he or she may be more likely to the degree of independence enjoyed by the SIU is very modify his or her actions as head of the agency in order limited. As indicated above the act provides that the to appease the president. president may only remove the head of the SIU if he or she has ‘sound’ reasons for doing so. The provision in • Remuneration is determined by the justice minister in itself possibly only really means that the president must consultation with the finance minister.92 give reasons that are not obviously nonsensical when • At the end of each investigation the SIU must submit a removing the head of the unit. report thereon to the president.93 As will be discussed When Hofmeyr was removed from the position in further, the president may in some respects determine November 2011 the reasons given were that the the outcome of an investigation simply by doing nothing appointment of Heath as SIU head ‘will ease the with an SIU report once it is submitted to him.

SOUTHERN AFRICA REPORT 28 | OCTOBER 2019 9 As indicated, the SIU itself is not necessarily a feed into perceptions that the SIU is used as a political permanent structure and more than one SIU may exist. instrument to target political opponents.96 By implication of the act the SIU may be shut down There are no obvious constitutional or other legal reasons when it has completed the investigations that have been for not providing the SIU with the authority to initiate referred to it. The president is not compelled to continue its own investigations. Nevertheless it is reasonable to to renew authorisation for the SIU to exist by issuing require that the SIU conduct investigations only when it new proclamations. has substantive reasons for doing so.

Implications of the Public Audit Amendment Act Apart from a presidential proclamation authorising (Act 5 of 2018) an SIU investigation, referral by the Auditor-General The Public Audit Amendment Act, assented to by should clearly be seen as one legitimate basis for such authorisation. In addition, even if the president retains Ramaphosa on 18 November 2018, is highly relevant to the authority to issue proclamations, there should be an debates about the SIU.94 The act provides:95 alternative. For instance an investigation could also be • For the insertion of a Section 5(1A) into the Public authorised by a judge on the basis of an application by Audit Act (25 of 2004) to enable the Auditor- the SIU which shows good cause for it. General to ‘refer any suspected material irregularity’ identified during an audit ‘to a relevant public body for investigation’. There are currently major

• That the public body to whom the matter is referred limitations on the ‘must keep the Auditor-General informed of the independence of the SIU progress and the final outcome of the investigation’.

• That Section 10(1) of the act should be amended Measures should be put in place to ensure that those to provide that, as part of the Auditor-General’s appointed to head the SIU are the most suitable annual report to Parliament, it must report on ‘any candidates for this role. Currently legislation does provide matters referred for investigation in accordance that whoever is appointed ‘is a fit and proper person to be with section 5(1A)’. entrusted with the responsibilities of that office’, but the decision is otherwise left to the discretion of the president. Because it has a forensic accounting capability, the Mechanisms should be established to ensure that those SIU will be the preferred body to refer many such who are appointed are of the highest calibre.97 investigations to. The current SIU Act effectively defeats the purpose of the Public Audit Amendment Act as Investigations it requires that before the SIU can proceed with an General investigation, such referrals must be approved by means of a proclamation issued by the president. An Since 2001 there have been over 120 investigations amendment to the SIU Act, authorising it to investigate that have been authorised by means of proclamation matters referred to it by the Auditor-General, should be (excluding proclamations providing for the extension urgently considered. of existing investigations). Of 118 such investigations recorded in SIU annual reports up to and including some Strengthening the independence of the SIU initiated in 2017, roughly 25 (21%) were investigations There are currently major limitations on the independence into national departments, 16 (14%) into state entities, of the SIU. As discussed further below (see the section 37 (32%) into provincial departments and entities, and 33 (28%) into municipalities. The remaining 7 (5%) were a on investigations) there is evidence to support the view combination of departments or entities. that past presidents have used their powers to issue proclamations in inappropriate ways. The fact that The national investigations included four investigations investigations are authorised by the president may also each into the Department of Public Works and the National

10 ACCOUNTABILITY FOR CORRUPTION: THE ROLE OF THE SPECIAL INVESTIGATING UNIT Department of Rural Development and Land Reform, three Hawks. However the Hawks also have a more diverse into the Department of Correctional Services, and two mandate which includes ‘national priority offences, in each into the Department of Communications, Department particular serious organised crime, serious commercial of Justice and Constitutional Development, Department of crime and serious corruption’.106 Transport and the Office for Witness Protection/Witness The fiscal investment in the SIU therefore constitutes Protection Programme (KZN) (see Table 2). a significant part of the state investment in addressing As illustrated previously in Table 1 the resources provided corruption. Figures are not available to quantify what to the SIU are roughly 20% of those provided to the proportion of Hawks resources are dedicated to

Table 2: State institutions subject to investigation by the SIU, 2001-201798 Sphere of No. Institutions subject to investigations government National 25 Department of Correctional Services (three investigations); Department of Public Works departments (four); National Department of Rural Development and Land Reform (four);99 Department of Communications (two); Department of Justice and Constitutional Development (two); Department of Transport (two); Office for Witness Protection/Witness Protection Programme (KZN) (two); Department of Social Development; Department of Arts and Culture; Department of Cooperative Governance and Traditional Affairs; Department of Human Settlements; Department of Water Affairs; South African Police Service. National 16 The State Information Technology Agency (two investigations);100 Public Service Education and entities Training Authority (PSETA) (two); SABC (two); National Heritage Council; South African Social Security Agency; Mhlathuze Water Board; Special Pensions Fund; South African Housing Trust (now part of the National Housing Finance Corporation); South African Post Office (SOC) Ltd; Universal Service and Access Agency of South Africa (USAASA); Eskom Holdings Ltd; Construction Industry Development Board; The Media, Information and Communication Technologies Sector Education and Training Authority (MICT SETA). Provincial 37 KwaZulu-Natal departments and entities (13 investigations); Eastern Cape (seven);101 Free State departments (four); Mpumalanga (three); Gauteng (three); Limpopo (three);102 Western Cape (two); North West and entities (one); Northern Cape (one). Municipalities 33 Metros (four); Free State (six) (one district and one local municipality); Western Cape (five); KZN (four) (two district and two local municipalities); Limpopo (five) (three district and three local);103 Mpumalanga (two); Eastern Cape (four) (two district104 and two local); North West (one) (investigation focused on 24 municipalities);105 Gauteng (two) (local). Combination 7 National Department of Rural Development and Land Reform and the State Information Technology Agency (Pty) Ltd; Department of Labour and the Compensation Fund; Gauteng Department of Human Settlements and Lepelle Northern Water (Proc 22 of 2016); Independent Development Trust, the Department of Basic Education and the Department of Education for the Free State (Proc 32 of 2016); Department of Correctional Services and the Independent Development Trust (28 of 2017); National and provincial departments of transport, local authorities and entities that perform functions in terms of the National Road Traffic Act, 93 of 1996 (Proc R37 of 2017); Eastern Cape provincial and municipal institutions including two provincial departments, two provincial entities, two metropolitan municipalities, one district and one local municipality (25 May 2018).

118

Source: Collated from SIU annual reports

SOUTHERN AFRICA REPORT 28 | OCTOBER 2019 11 corruption investigations. It seems possible that the scale being in progress, ministers in the security cluster refused or volume of corruption investigations carried out by the to cooperate with requests for information from the Public SIU is as great as, if not greater than, that by the Hawks. Protector. These refusals were justified on the basis that the matter was to be investigated by the SIU.112 If not the biggest, the SIU is undoubtedly one of the biggest role players in corruption investigations in In a 22 March 2013 letter to the Public Protector, South Africa. (For discussion of Hawks investigations then police minister Nathi Mthethwa said, ‘The [inter- into corruption, see the paper ‘Investigating corruption ministerial] task team has identified maladministration in South Africa – Cooperation or conflict?’ which is and, therefore, the ministers in the JCPS cluster have published with this report.) decided that a special investigating unit and the auditor- general must conduct a full investigation and audit.’113 It Investigations of spending on Zuma’s would take another seven months, after the proclamation Nkandla homestead was issued in December 2013, for the SIU to be provided 114 As discussed above, in the early 2000s then president with access to Nkandla to conduct a site inspection. Thabo Mbeki fiercely resisted the Heath SIU’s involvement in the investigation into the arms deal. By contrast the The SIU is undoubtedly one of the SIU was regarded by the Executive as the preferred body to conduct the Nkandla investigation. biggest role players in corruption

The Nkandla investigation is of interest in that it involved investigations in South Africa the president having to issue a proclamation for an investigation into expenditure and procurement relating In a chapter on South Africa’s anti-corruption agencies, to his own residence. The terms of reference for the Ralph Mathekga refers to arguments that the SIU investigations were set out in the proclamation signed by investigation into Nkandla was used as ‘a way to deflect Zuma on 18 December 2013.107 attention from the main issue relating to the president’s breach of the ethics code’ and to ‘absolve the president The proclamation mainly focused on the role of from any liability’. He also argues that the investigation the Department of Public Works in the project, as may have been used well as that of ‘contractors, suppliers or service providers’.108 It largely disregarded ‘issues relating to ‘to undermine any investigation by other state the president’s responsibility to exercise oversight on bodies that might come up with adverse findings the use of public funds’.109 against the president regarding the matter. Quite often when the president was called upon to It is likely that Zuma deliberately delayed issuing the respond to [public protector Thuli] Madonsela’s Nkandla proclamation partly so the report wouldn’t report on Nkandla, the president stated be finalised before the May 2014 general election. In emphatically that there were other processes December 2013, when Zuma signed the proclamation, that were underway, the investigation by the SIU, it was virtually a full year after the Public Protector for example’.115 had initiated her investigation into expenditure on the The Public Protector’s March 2014 report included homestead (this investigation was already in progress in findings against officials of the Department of Public February 2013).110 Works. It also found that Zuma had unduly benefited from Zuma’s proclamation also came almost a year after the the upgrades to his Nkandla homestead and violated the inter-ministerial task team, appointed by some of Zuma’s Executive ethics code.116 cabinet members, completed its report in January 2013. By contrast, though the SIU report ‘did find that Zuma This report recommended an SIU probe into the matter.111 had unduly benefited from Nkandla expenditure’, it Yet despite no proclamation having been issued by the placed the blame for this on the architect responsible president, and the Public Protector’s investigation already for Nkandla’s construction.117 The consequence of the

12 ACCOUNTABILITY FOR CORRUPTION: THE ROLE OF THE SPECIAL INVESTIGATING UNIT SIU investigation was a disciplinary process against Another anti-Ramaphosa leader is then quoted as saying, Department of Public Works officials (the outcome of ‘We are under siege. Every second week the president which is subject to a non-disclosure agreement),118 and signs a proclamation giving the SIU powers to investigate a civil suit, instituted by the SIU, against the architect.119 something. And all those that are being investigated are It was only as a result of the Public Protector’s report people who opposed his election.’123 that Zuma faced the possibility of any personal liability In July 2019 Ramaphosa signed a proclamation for Nkandla.120 authorising SIU investigation of a R255 million contract The evidence indicates that Zuma delayed issuing the entered into by the Free State Department of Human Nkandla SIU proclamation. Nevertheless the Nkandla Settlements (FSHS) for an audit of asbestos roofs in episode contrasts with Mbeki’s refusal to allow the Heath the province.124 According to one press report the SIU SIU to be included in the arms deal investigation. The investigation may produce evidence that Ace Magashule evidence suggests that the Heath SIU was seen as too is implicated in corruption. Magashule is the ANC’s independent to be included in the arms deal probe. secretary-general and widely regarded as a political In relation to Nkandla, the impression created is that opponent to Ramaphosa. the SIU was seen as the investigative agency of choice, There is not necessarily any substantive basis for perhaps because the body was regarded as more concluding that SIU proclamations are being issued acquiescent (as compared to the Public Protector) but on a political basis. Nevertheless newspaper reports also because the terms of reference for the investigation, suggesting that SIU proclamations may be issued on and timing of the investigation, could be determined by a political basis should not be unexpected. Allegations the president. that investigations are politically inspired, often from The police minister then used the fact that a cabinet- those whose actions are the focus of investigation, appointed task team had proposed investigation by the are an established part of the repertoire of politics in SIU to justify non-cooperation with the Public Protector. South Africa.125 This was despite the fact that no proclamation authorising the SIU investigation had as yet been issued. The SIU may increasingly face Suspicions that there was a deliberate delay in attempts to discredit its authorising an investigation also emerged in July 2017. Advocate Mothibi told SCOPA that Zuma hadn’t signed anti-corruption work the proclamation for the SIU to begin an investigation into the South African Broadcasting Corporation Most notably, over a sustained period, Zuma has (SABC), even though it had been ready to begin with maintained that investigations against him are essentially its investigation since May.121 At the time there were political in nature.126 Initially Zuma used allegations of this widespread allegations of financial mismanagement at kind to mobilise against Mbeki, while Mbeki was leader the SABC. Zuma finally signed the proclamation late in of the ANC and president of South Africa. Whether or not August 2017.122 these allegations had any merit to them, they highlight the fact that the presidential power to authorise SIU Risk of SIU being seen as a political tool investigations creates the potential for this to be used to A September 2018 front page report in the Sunday discredit both the president and the SIU. Times read that members of the pro-Zuma faction in the Possible evidence of the SIU being targeted by those ANC had met secretly in Durban early in September to seeking to undermine anti-corruption efforts was provided discuss plans to undermine Ramaphosa. In the report, an in an August 2019 media report.127 This suggests that the anonymous pro-Zuma ANC leader is quoted as saying, SIU may increasingly face attempts to discredit its anti- ‘We are not happy with [the] factional conduct by the corruption work. This motivates for steps to be taken to other side, which is relentlessly pursuing our forces.’ strengthen its credibility as an independent body.

SOUTHERN AFRICA REPORT 28 | OCTOBER 2019 13 Impact of the SIU Referrals for criminal and disciplinary action Recoveries In addition to recoveries, the SIU places considerable emphasis on the number of referrals it makes for As indicated SIU investigations may culminate in civil criminal and disciplinary action to be taken (see Table proceedings, or at least the threat thereof. Related to this, 4). In its mission statement, for instance, the SIU some of the main SIU performance indicators focus on states that along with forensic investigations and civil financial recoveries and savings. Examples include: proceedings, its other major mechanism for fighting • Value of potential cash recoverable – including corruption is ‘referrals for criminal prosecution and acknowledgements of debt (AoDs) signed and referrals for disciplinary action’.135 preservation orders obtained by the AFU linked to SIU investigations. Shift in focus from high-volume low-value to procurement • Actual value of cash recovered including recoveries by the AoD enforcement department. During the late 2000s the SIU underwent a major re-orientation. Understanding this re-orientation • Actual savings. This indicator is related, for instance, to is important in order to be able to interpret SIU contracts set aside or recommendations that certain performance information. Up to that point the SIU had payments be stopped (previously many payments were invested a large part of its energies in ‘small-value stopped for people illegitimately registered on the social high-volume investigations’.136 grant system).

As indicated in Table 3, the re-establishment of the Special Tribunal is intended to help the SIU improve its Some of the main SIU performance rate of recoveries. In relation to the issue of recoveries indicators focus on financial it may also be noted that, though the SIU has its own recoveries and savings capacity to carry out recoveries, the AFU (situated within the NPA) in fact has greater recovery powers. In some cases it may be more effective for the SIU to seek AFU For instance in its annual reports dealing with the assistance for this purpose (as highlighted in Table 4 the nine-year period from April 2004 to March 2013 SIU makes some referrals to the AFU).128 the SIU reported that its achievements in relation

Table 3: SIU performance data on recoveries and savings to government departments Indicator 2015–16 2016–17 2017–18 2018–19 The value of money and/or assets potentially R73m R126.9m R299m R137 recoverable (value of cash 129 The actual value of money and/or assets recovered R52m R43.5m R34m recoveries) The value of potential loss prevented n/a R106.5m R407m R53.4m The value of contract(s) and/or administrative n/a R4bn R797m R137m decision(s)/action(s) set aside or deemed invalid The value of matters in respect of which evidence n/a R3.8bn R2.7bn R7.9bn was referred for the institution or defence/ opposition of civil proceedings (including arbitration or counter civil proceedings) Number of civil matters instituted in court130 5131 18 9132 AoDs signed 38133 8 12134

Source: SIU, Annual Report 2016–17; SIU, Annual Report 2017–18

14 ACCOUNTABILITY FOR CORRUPTION: THE ROLE OF THE SPECIAL INVESTIGATING UNIT to investigations into social grant fraud included: This change in focus was also requested by others 18 764 criminal convictions, 20 768 cases for which including the finance minister.139 The SIU 2009–10 annual ‘disciplinaries’ were prepared, and 21 763 under the report states that these investigations ‘are more complex indicator ‘evidence prepared for criminal action/number and time-consuming, and will take some time to reflect in of new cases before court’. the SIU’s results’.140

The type of performance data that the SIU has been able SIU investigations may culminate to provide following the shift has been of a different order with the number of referrals (see Table 4) and the number in civil proceedings, or at least of AoDs that were signed being much lower than during the threat thereof the ‘small-value high-volume’ investigation period (Table 3 has figures covering AoDs signed in recent years.) This The investigation into social grant fraud also resulted shift in focus was also associated with a tendency to fall 141 in 462 318 ‘recommendations for removal from social short on some performance targets. pension system (or other remedial action)’.137 Though the Referrals for criminal justice measures numbers are not quite on the same scale, data on SAPS The types of investigations carried out by the SIU arrests linked to an SIU investigation into the Department frequently reveal evidence of financial crime. At one of Transport shows that 350 officials were arrested for point the SIU in fact negotiated for prosecutors from the irregular issuing of driver’s licences over the six-year the NPA to be delegated to work with the SIU, and period from April 2005 to March 2011.138 motivated for powers to prosecute to be delegated to From 2009 onwards there was a shift in focus from SIU personnel.142 these ‘high-volume low-value’ cases to a focus on more However the normal procedure is for the SIU to refer complex cases, notably in the procurement arena. The matters for prosecution to the NPA (who may in turn 2009–10 annual report for instance indicates that the refer them for further investigation to the Hawks or other Department of Social Development ‘requested a shift component of the SAPS) as provided for in legislation.143 from removing fraudulent social grants from the system to dealing with procurement irregularities in the South In most annual reports there is little information provided African Social Security Agency (SASSA)’. about the results of cases that have been referred to the

Table 4: SIU performance data on criminal and disciplinary referrals Referrals for disciplinary, administrative Referrals to NPA or executive action144 2010–11145 4 179 2 814

2011–12146 2 731 2 499

2012–13147 850 997

2013–14 326148 273149

2014–15150 3 769 171 (as well as 7 referrals to the AFU)

2015–16 68 307

2016–17151 137 108 (includes referrals to AFU)

2017–18 319 148

2018–19 335 331 (‘referrals to the relevant prosecuting authority’)

Source: SIU Annual Reports; 2018–19 figures from SIU

SOUTHERN AFRICA REPORT 28 | OCTOBER 2019 15 NPA. However in two recent reports the SIU attempted to was reached and one other conviction obtained while account for the outcome of cases that had been referred one confiscation order has been obtained by the to the NPA (see Table 5). AFU. In a further matter the AFU is appealing a court order. Other matters that are reported to have been As can be seen the SIU appears to have very limited data finalised are six cases in which the NPA has declined regarding cases that have been referred to the NPA. The to prosecute. data presented in the two annual reports indicates that:

• The SIU has no information on the eventual outcome of most cases submitted to the NPA. The SIU indicates The SIU appears to have very that it has no information on 334 (70%) of the 478 limited data regarding cases that cases referred to in the SIU 2015–16 report. Another 109 cases (23%) have been referred to the SAPS. In have been referred to the NPA only 12 cases (2.5%) is there an indication that matters are advancing or have been finalised through action • On convictions the information provided in the two against implicated persons.152 reports is contradictory. In the 2014–15 year one • Over the two-year period the information provided conviction is recorded while in the 2015–16 annual appears to indicate that, at best, one plea agreement report the data provided is supposed to include a

Table 5: Data provided in SIU annual reports on cases referred to the NPA 2015–16 annual report: 2014–15 annual report: 478 matters referred to 171 matters referred to the NPA over two-year the NPA153 period (2014–16)154 Referred to the SAPS 151 109 Referred for further investigation to Anti-Corruption 3 0 Task Team155 Accused have been arrested and are due to appear 0 5 in court Under review by the NPA 0 2 NPA investigating 0 6 NPA declined to prosecute 3 6 Plea agreement drafted 0 1 Plea agreement reached 1 1 Set down for trial/charge sheet drafted 1 3 Conviction obtained 1 0 AFU still investigating 0 9 Confiscation order obtained 0 1 AFU appealing the court order156 0 1 Not accounted for in SIU annual report 11 334 Total 171 478

16 ACCOUNTABILITY FOR CORRUPTION: THE ROLE OF THE SPECIAL INVESTIGATING UNIT two-year period that includes 2014–15. However no criminal proceedings but for civil recovery. Prosecution convictions are referred to in the later report.157 can only ensue on the basis of a criminal docket registered and investigated by the police’.162 In the 2016–17 annual report, no information on the results of referrals to the NPA is provided. However the If this is correct, then it suggests that there is a degree issue of SIU referrals was highlighted in September 2018 of duplication and inefficiency in the investigation of when Advocate Mothibi was reported to have said in a corruption by the SIU, the Hawks and other police. In statement that the SIU had referred ‘many cases’ to the turn this suggests the need for better coordination of NPA, some as far back as 2007, but that there had been investigations, on a case-by-case basis, in order to no prosecutions to date. eliminate the waste of resources.163 Mothibi’s remarks were made in response to questions Referrals for disciplinary action that had been raised in relation to the SIU investigation In addition to the referral of criminal cases, evidence into the Department of Correctional Services and of wrongdoing is frequently forwarded to government Bosasa case. According to the report Mothibi departments or other state entities by the SIU, with a ‘demanded a discussion with the NPA about the recommendation that disciplinary cases be pursued. For criminal cases which had been referred to it, but where instance, in 2018–19 the SIU reported that it had made it had failed to take action’. 335 referrals for disciplinary, administrative or executive The report indicated that the number of cases that action. But SIU annual reports contain no indication on Mothibi was referring to ‘could be as many as 463 the outcome of these referrals. criminal cases’.158 A press report a few days later In 2015–16 the SIU attempted to account for 66 cases indicated that the total number of cases was 686.159 that had been referred to government departments but did not manage to shed much light on what the outcome The SIU generates evidence that of these cases had been. The SIU was able to report that 16 had been finalised and indicated what the range of may provide the basis for criminal outcomes was.164 and disciplinary matters But no figures were provided, for instance, on the number who had been found not guilty or guilty. The SIU reported In July 2019 it was reported that the SIU had referred that in a further 11 matters ‘government departments ‘some 600 cases to the NPA that have yet to be had confirmed that disciplinary proceedings had begun processed’.160 (See also the discussion of the Gauteng while in 39 they confirmed that “they are considering the Department of Health investigation in the section on evidence”’. No further information is provided on these ‘Consequences of submission of SIU reports to the cases in the subsequent SIU reports. president’ below.) The SIU has subsequently concluded a Similar challenges have been experienced by the Public memorandum of understanding with the NPA to track the Service Commission in following up on cases reported to progress of the SIU’s criminal referrals.161 the National Anti-Corruption Hotline.165 One issue on which there has been disagreement is Improving responses to, and whether the NPA can prosecute cases that are referred information on, referrals to it by the SIU. NPA spokesperson Luvuyo Mfaku is reported to have stated that ‘it had to refer SIU matters to As a result of its investigations the SIU generates the Hawks because only [the Hawks] and the SA Police evidence that may provide the basis for not only criminal Service were mandated by the constitution to conduct but also disciplinary matters. The SIU therefore relies criminal investigations’ and that prosecutions could not on other role players in government, including the NPA, be instituted ‘on the basis of the evidence collated by the SAPS, and other government departments, in order for SIU, as the statements and/or forensic reports contained its investigations to be translated into accountability for in the referrals are not for the purpose of the institution of those implicated.

SOUTHERN AFRICA REPORT 28 | OCTOBER 2019 17 This raises questions about the relative importance of 2016 the SIU made a number of recommendations civil recovery and disciplinary and criminal processes on this point including that the Department of to the impact of the SIU. In a 1998 article Judge Heath Planning, Monitoring and Evaluation should require said: ‘Criminal action should be secondary. The recovery data from departments on referrals that have been of money proves that economic crime does not pay made to them.168 and this is essentially the message to convey. Recovery In 2018, Ramaphosa embarked on a process in will not only act as a deterrent but will replace what has collaboration with the SIU to release SIU reports been removed from the coffers and thus strengthen the to affected state institutions. State institutions are economic climate.’166 requested to provide feedback regarding steps they When the amendment to the SIU Act was being debated have taken to implement the SIU’s recommendations.169 in March 2001 the portfolio committee chairperson As indicated the SIU has also signed a memorandum of similarly stated that, ‘The main aim of the SIU is the understanding with the NPA to track the progress of the recovery of state assets.’167 SIU’s criminal referrals.170 However SIU investigations that reveal credible Consequences of submission of SIU reports evidence of criminal and disciplinary infringements to the president should also lead to action. That the SIU is unable to After completing an investigation, the SIU is required account for the criminal and disciplinary outcomes of its to submit a report on the investigation to the president. investigations is part of an antiquated system in terms When this report is submitted, any referrals to the NPA, of which government departments report on their own or to government departments for disciplinary action, are performance only as measured by performance indicators likely to already have been made. However these may not that reflect outputs that fall within their own span of be the only bodies who have the authority and duty to control. As a result there is frequently no clear information take action. on processes that require the involvement of more than one department. This is highlighted by the report on the SIU investigation into the Gauteng Department of Health (DoH). The investigation was initiated as the result of a proclamation The SIU is not a criminal issued by Zuma in 2010171 and concerned department justice agency, but plays contracts valued at more than R1.1 billion. SIU annual a complementary role reports provide rudimentary details about the outcomes of the investigation.172

Many government departments prefer this system as it However in June 2018 civil society organisations saves them from being held accountable for outputs that secured the release of a copy of the final investigation they are not responsible for. However it does not support report, submitted to Zuma in March 2017, by means government’s interest in understanding the outcome of of a Promotion of Access to Information Act173 (PAIA) the investment it makes in addressing corruption. application. The report shows that as a result of the investigation, a number of criminal cases had been Government should ensure that detailed information is opened against employees of the department. provided by the NPA and other government departments about the outcomes of criminal and disciplinary cases According to the report these matters were referred to the referred to them by the SIU. This information should Anti-Corruption Task Team174 and Asset Forfeiture Unit. In account for cases that have been referred over a number some cases officials were dismissed from the department of years, so that the information that government has as a result of disciplinary cases consequent to the reflects the final result, even if cases take more than a investigation. Numerous officials also resigned rendering year to resolve. them no longer vulnerable to such action.

Government should also take steps to ensure that its One of those implicated in the report was Brian Hlongwa, departments comply with SIU recommendations. In who had been Gauteng health MEC during the period

18 ACCOUNTABILITY FOR CORRUPTION: THE ROLE OF THE SPECIAL INVESTIGATING UNIT covered by the SIU investigation. Hlongwa finally resigned The SIU can therefore partly function independently, from his position as ANC chief whip in the Gauteng through civil litigation and other civil measures, aimed at Legislature at the end of October 2018.175 This was securing recoveries and preventing wasteful expenditure. despite the fact that he had been facing corruption It is to be hoped that the re-establishment of the Special allegations for a number of years, and despite the SIU Tribunal will dramatically enhance the SIU’s performance report having been publicly available since June 2018. by enabling it to improve its financial recovery rates. Despite the cases lodged against him Hlongwa has never In respect of criminal or disciplinary accountability for been prosecuted. financial irregularities, SIU investigations can help to The ethics committee of the Gauteng provincial legislature uncover and consolidate the relevant evidence. But should also have taken action against Hlongwa on the the SIU depends on other agencies for referrals to be basis of the SIU report. Even after the report became translated into actual accountability. The government publicly available in June 2018 representatives of the departments that employ the public servants who are ethics committee reportedly said they couldn’t act on the implicated in infringement need to take disciplinary action report findings as it hadn’t been formally tabled before against them. The agencies of the criminal justice system Parliament or another public body.176 have to turn the evidence that is generated by SIU investigations into criminal prosecutions. This highlights the fact that it may be appropriate for a public body, other than the body that is the focus of an investigation, to take action in response to the findings of Over the past decade criminal justice an investigation. It is therefore necessary for all relevant agencies have to some degree been bodies, including oversight structures, to be formally notified about the outcomes of SIU investigations. dormant in addressing corruption

Conclusion Insofar as these mechanisms are compromised or Current thinking in South Africa appears to favour what ineffective, the potential for SIU referrals to lead to the 2012 National Development Plan refers to as the accountability is neutralised. In the current period there is ‘multi-agency anti-corruption system’.177 During a period greater government emphasis on addressing corruption. when corruption has become entrenched it may be asked As a result there may be more potential for referrals to be what role the different components of the system have translated into accountability. played in addressing corruption. In relation to referrals for criminal prosecution, there The SIU is not a criminal justice agency, but plays a is apparently some dispute as to whether evidence complementary role, focused on civil resolution, in provided by the SIU can be used to prosecute cases, or anti-corruption efforts. Over the past decade criminal whether such evidence first needs to be referred back to justice agencies have to some degree been dormant the Hawks, or other police investigators. in addressing corruption. As reflected in cases such as (This may now include referrals to investigators located the Bosasa/DCS matter and the Gauteng Department in the new NPA investigating directorate. For discussion of Health matter, and the apparent disregard of SIU of the criminal investigation of corruption, see the report referrals by the NPA, the SIU has had problems of its own. ‘Investigating corruption in South Africa – Cooperation or Nevertheless the SIU may perhaps be credited with some conflict?’ published simultaneously with this one.) achievements. Though, relative to the scale of corruption its civil recoveries have been very modest it may be seen Nevertheless one of the weaknesses of the current to have made created some deterrence and accountability system is that there is no coherent leadership and for some of those involved in corruption. If the modest oversight over anti-corruption efforts, and no clearly rate of recovery that has been achieved by the SIU over defined strategic approach. One reflection of this has recent years can be improved upon, the SIU may more been the absence of information on the consequences than justify the public investment that is made in it. of the vast majority of criminal and disciplinary cases

SOUTHERN AFRICA REPORT 28 | OCTOBER 2019 19 referred by the SIU. While there are indications that steps to serve to some degree as the Executive’s corruption have recently been taken to ensure that public bodies act investigation agency ‘of choice’. This was partly on the on SIU findings, there is no clear information as yet on the basis that the presidential power to issue proclamations outcome of these measures. also enabled Zuma to determine the terms of reference for More broadly government isn’t able to provide any such investigations. coherent information about the efficacy of its anti- In the post-Zuma era it may be hoped that the SIU won’t corruption efforts. If there is a multi-agency system the be misused in either of these ways. Nevertheless the fact implication at the very least is that there needs to be a that SIU investigations are authorised by the president body responsible for collating clear information about the may be used to legitimate claims that they are being used overall functioning of the system. This should apply in to target political opponents. Indeed the SIU framework, particular to cases referred from one agency to another. which casts the president as ‘commander in chief’ of The most appropriate body for this purpose would efforts to address corruption, appears anachronistic in appear to be the Public Service Commission which light of the past 20 years of South African history in which already performs some functions in this regard. suspicion of the Executive has escalated. However the Public Service Commission should Rather than restructuring the anti-corruption system, the establish a dedicated office for this purpose to assess NDP argued that the focus should be on strengthening overall functioning and cooperation within the multi- the ‘multi-agency anti-corruption system’ inter alia by agency system. reinforcing the ‘autonomy of each agency … to insulate them from political pressure’.179 The arguments for Government isn’t able to provide any strengthening the independence of key components of the anti-corruption machinery undoubtedly also apply to coherent information about the the SIU. efficacy of its anti-corruption efforts Recommendations 1. The SIU Act should be reviewed and amended inter One further dimension of the work of the SIU that alia in order to: could be accentuated may be to strengthen its role in the prevention of corruption. The SIU is currently a. Establish the SIU as a single and stable entity. involved in a process to strengthen its involvement in b. Enable the Auditor-General to refer matters for the prevention of corruption through measures such as further investigation directly to the SIU in line with training or the provision of other consulting services to Section 5(1A) of the Public Audit Amendment Bill. government departments.178 c. Provide for alternative mechanisms, such as Along with the audits carried out by the Auditor-General approval by a judge, to authorise SIU investigations. it is likely that SIU investigators develop considerable insight into many of the systemic weaknesses that d. Provide for a selection process oriented towards facilitate corruption. These insights can be harnessed ensuring that the most suitable available candidate into steps to strengthen the resilience of public bodies is appointed when it comes to appointing the head against corruption. of the unit.

A further issue that merits consideration is the status e. Provide the unit head with security of tenure, if of the SIU as an instrument of Executive power. There he or she has been appointed in terms of a merit is some evidence that suggests that the presidential based process. The head however shouldn’t be power to issue proclamations was misused to delay SIU allowed to have his or her term extended. investigations during the Zuma era. f. Strengthen provisions regarding the removal At the same time, notably during the period when Thuli of the unit head in order to support her or Madonsela was Public Protector, the SIU also appeared his independence.

20 ACCOUNTABILITY FOR CORRUPTION: THE ROLE OF THE SPECIAL INVESTIGATING UNIT g. Require the president to place SIU reports before 4. National and provincial government department Parliament, or another appropriate public body, reports on disciplinary cases should indicate the within three months of receiving them. number of cases referred to them by the SIU, or other bodies (such as Ipid and the Judicial Inspectorate for 2. A clause, comparable to section 5(1A) of the Correctional Services), and action taken in response amended Public Audit Act, should be included in to these referrals. the SIU Act requiring any ‘public body’ to whom a matter is referred for criminal or disciplinary action to keep the SIU informed of the progress and the Data that is collated should include final outcome of the investigation. Regulations that are binding on the public service and on criminal cases that are referred from one justice agencies should be drafted in line with this agency to another requirement. In line with this:

a. It should be mandatory for the NPA to update 5. Each year the SIU should be obliged to provide the SIU on all cases referred to it. Where the NPA updated information for all cases referred for decides not to proceed with a case it should also criminal or disciplinary action for a four-year period. provide reasons for doing so. Each report should provide a list of any cases that haven’t been finalised within the previous four years, b. It should be mandatory for government including who they were referred to. departments to report to the SIU annually on progress made with all disciplinary matters 6. To support more dedicated attention to the that have been referred to them. In particular prevention of corruption, high-level performance information should be provided on the final indicators under the Medium Term Strategic outcome of each case. Where there is a Framework should be more clearly linked to disciplinary conviction the department should assessing the overall system’s functioning in indicate the penalty that resulted from this. responding to financial misconduct. High-level 3. Government should ensure that there is a clearly performance indicators for all departments should identified centralised capacity for collating and include indicators regarding: monitoring all data related to the management of a. The establishment of effective corruption-related cases by government agencies. disciplinary capacity. Data that is collated should include cases that are b. The processing and reporting of financial referred from one agency to another. If the Public Service Commission is identified as the appropriate misconduct-related disciplinary matters. body for this purpose it should receive funding to c. Demonstrable evidence that sanctions are establish a dedicated office for this purpose. put into effect.

SOUTHERN AFRICA REPORT 28 | OCTOBER 2019 21 Acknowledgements ZAECHC/2002/3.html refers to the ‘White Commission’ established by the President on 1 February 1995; On the other hand a media The author would like to thank Gareth Newham and article refers to the ‘original Heath Commission of Inquiry instituted by the premier of the Eastern Cape in 1995’. (I Oellerman, Court blow as Lauren Tracey-Temba at the Institute for Security Studies Heath unit faces ‘payback time’, IOL, 31 August 2000.) for their support and assistance in the writing of this 13 L Camerer, Tackling the Multi-Headed Dragon: Evaluating Prospects for report, including helpful discussions and comments about a Single Anti-Corruption Agency in South Africa, Institute for Security Studies, https://issafrica.org/research/papers/tackling-the-multi- the document. Special thanks also to Pranesh Maharaj at headed-dragon-evaluating-prospects-for-a-single-anti-corruption- the SIU for comments received on a draft of this report. agency-in-south-africa, 1999. Preliminary analysis of SIU reports that contributed to the 14 Special Investigating Units and Special Tribunals Act (Act No 74 of collation of the data used in Table 2 was carried out in 1996) (SIU Act). 15 Special Investigating Unit v Nadasen (5/2001) [2001] ZASCA 117; 2014 with the assistance of Ellen Kamman. The opinions [2002] 2 All SA 170 (A) (28 September 2001), paragraph 2, www.saflii. are those of the author. org/za/cases/ZASCA/2001/117.html. 16 Heath Commission Vital to Weapons Deal Probe, Financial Mail, www. Notes armsdeal-vpo.co.za/articles00/heath_vital.html, 5 January 2001. 1 The Judicial Commission of Inquiry into Allegations of State Capture is 17 P Holden, The Arms Deal in Your Pocket, Johannesburg: Jonathan Ball headed by Deputy Chief Justice Raymond Zondo. Publishers, 49, 2008. 2 A facilities management company. Bosasa changed its name to African 18 L Camerer, Tackling the Multi-Headed Dragon: Evaluating Prospects for Global Operations in 2017. In February 2019 it filed for voluntary a Single Anti-Corruption Agency in South Africa, Institute for Security liquidation. Agrizzi had been the chief financial officer of the company. Studies, https://issafrica.org/research/papers/tackling-the-multi- headed-dragon-evaluating-prospects-for-a-single-anti-corruption- 3 Proclamation R44 of 2007 (see inter alia SIU, Annual Report 2008–9, agency-in-south-africa, 1999. 25–27; SIU, Annual Report, 2009–10, 16–17). 19 South African Association of Personal Injury Lawyers v Heath and 4 Corruption Watch, Zondo Commission: Bosasa played a game of Others (CCT27/00) [2000] ZACC 22; 2001 (1) SA 883; 2001 (1) BCLR cat and mouse with SIU investigators, www.corruptionwatch.org.za/ 77 (28 November 2000), paragraph 50. wp-content/uploads/2019/01/Zondo-Commission-Bosasas-cat-and- mouse-game-with-SIU-investigators.pdf, 23 January 2019. 20 P Holden, The Arms Deal in Your Pocket, Johannesburg: Jonathan Ball Publishers, 42, 2008. 5 Kyle Cowan, New life for Bosasa prosecution after 8-year delay, News24, www.news24.com/SouthAfrica/News/new-life-for-bosasa- 21 Standing Committee on Public Accounts, Special review of strategic prosecution-after-8-year-delay-20181012, 12 October 2018. arms purchases – SANDF: Final and draft committee report, https:// pmg.org.za/committee-meeting/139/, 30 October 2000; P Holden, 6 Agrizzi’s testimony on this issue is summarised in: Corruption Watch The Arms Deal in Your Pocket, Johannesburg: Jonathan Ball and the Institute for Security Studies, State capture and the political Publishers, 47–49, 2008. manipulation of criminal justice agencies, 24–26, April 2019. 22 RE Obiyo, Legislative Committees and Deliberative Democracy: the 7 Kyle Cowan, New life for Bosasa prosecution after 8-year delay, Committee System of the South African Parliament with Specific News24, www.news24.com/SouthAfrica/News/new-life-for-bosasa- Reference to the Standing Committee on Public Accounts (SCOPA), prosecution-after-8-year-delay-20181012, 12 October 2018. University of the Witwatersrand, 154, 155, http://wiredspace.wits. 8 C Maphanga, Agrizzi, co-accused appear before the Specialised ac.za/handle/10539/2197, 2007. Commercial Crime Court, News24, www.news24.com/SouthAfrica/ 23 Ibid. News/agrizzi-co-accused-appear-before-the-specialised-commercial- crime-court-20190327, 27 March 2019. 24 Ibid. 9 The investigation of corruption is specifically referred to in section 2(2)(f) 25 P Holden, The Arms Deal in Your Pocket, Johannesburg: Jonathan Ball of the Special Investigating Units and Special Tribunals Act (Act No 74 Publishers, 49–53, 2008. of 1996) (SIU Act). 26 Ibid. 10 The Presidency, President Cyril Ramaphosa proclaims NDPP 27 J Hefer, Commission of Inquiry into Allegations of Spying Against the Investigating Directorate to strengthen fight against corruption, National Director of Public Prosecutions, Mr BT Ngcuka: First and Final www.gov.za/speeches/president-cyril-ramaphosa-proclaims-ndpp- Report, 1–2, www.justice.gov.za/commissions/comm_hefer/2004%20 investigating-directorate-strengthen-fight-against, 20 March 2019. 01%2020_hefer_report.pdf, 7 January 2004. 11 Some exceptions are: L Camerer, Tackling the Multi-Headed Dragon: 28 Special Investigating Units and Special Tribunals Act (Act No 74 of Evaluating Prospects for a Single Anti-Corruption Agency in South 1996) (SIU Act), Section 3(1). Africa, Institute for Security Studies, https://issafrica.org/research/ 29 Special Investigating Unit, About Us, https://www.siu.org.za/about-us/. papers/tackling-the-multi-headed-dragon-evaluating-prospects-for- a-single-anti-corruption-agency-in-south-africa, 1999; J Chetty and 30 SIU, Annual Report 2000–01, 4. P Pillay, Independence of Anti-corruption agencies – A comparative 31 Staff Reporter, Hofmeyr dropped as head of Special Investigating study of South Africa and India, African Journal of Public Affairs, 9(8), Unit, Mail & Guardian, https://mg.co.za/article/2011-11-29-hofmeyr- 105–120, 2017; R Mathekga, South Africa, in Open Society Initiative dropped-as-head-of-special-investigating-unit, 29 November 2011. for Southern Africa, Effectiveness of Anti-Corruption Agencies in 32 SAPA, Willem Heath steps down, IOL, www.iol.co.za/news/south- Southern Africa, Open Society Initiative for Southern Africa, 221–261, africa/willem-heath-steps-down-1199625, 15 December 2011; J especially at 255–258, 2017. Evans, Heath loses battle against Mbeki discharge decision, News24, 12 Ntswahlana and Others v White Commission (1371/2000) www.news24.com/SouthAfrica/News/heath-loses-battle-against- [2002] ZAECHC 3 (21 February 2002), www.saflii.org/za/cases/ mbeki-discharge-decision-20171206, 6 December 2017.

22 ACCOUNTABILITY FOR CORRUPTION: THE ROLE OF THE SPECIAL INVESTIGATING UNIT 33 SAPA, Willem Heath steps down, IOL, www.iol.co.za/news/south- 54 L Camerer, Tackling the Multi-Headed Dragon: Evaluating Prospects for africa/willem-heath-steps-down-1199625, 15 December 2011. a Single Anti-Corruption Agency in South Africa, Institute for Security 34 Mokhatla appointed acting chief of SIU, SA News, www.sanews.gov. Studies, https://issafrica.org/research/papers/tackling-the-multi- za/south-africa/mokhatla-appointed-acting-chief-siu, 21 December headed-dragon-evaluating-prospects-for-a-single-anti-corruption- 2011. agency-in-south-africa, 1999. 35 SAPA, SIU Head Vas Soni resigns, IOL, www.iol.co.za/news/siu-head- 55 Parliamentary Monitoring Group, Standing Committee on Justice, vas-soni-resigns-1809278, 26 January 2015. Heath Special Investigating Unit: Summary of case recoveries, savings and prevention as at 31 January 1999, undated (1999), http://pmg- 36 SAPA, Acting SIU head appointed, News 24, www.news24.com/ assets.s3-website-eu-west-1.amazonaws.com/docs/1999/990317siu. SouthAfrica/News/Acting-SIU-head-appointed-20150302, 2 March htm. 2015. 56 Contributing factors to this were ‘jurisdictional impediments’ in the 37 B Bateman, Zuma appoints Jan Lekhoa Mothibi as new SIU head, SIU Act. These were resolved by amendment of the SIU Act in 2012 Eyewitness News, https://ewn.co.za/2016/04/05/Zuma-appoints- (see relevant aspects of Section 3, 4 and 5 of the Judicial Matters Lekhoa-Mothibi-as-SIU-new-head, 5 April 2016. Amendment Act, Act No. 11 of 2012). 38 J Redpath, The Scorpions: Analysing the Directorate of Special 57 SIU, Annual Report 2014–15: 25; Annual Report, 2015–16. Operations, Institute for Security Studies, 6, 2004. 58 SIU, Annual Report, 2016–17, 8. 39 Though the Scorpions were established informally in 1999 (Ibid, 12), the Scorpions only officially came into legal existence as of 12 January 59 SIU reveals stumbling blocks in bid to recover Nkandla upgrades 2001 when the amendment to the NPA Act (National Prosecuting money, Eyewitness News, https://ewn.co.za/2018/04/25/siu-reveals- Authority Amendment Act 61 of 2000) came into operation (Ibid, 14). stumbling-blocks-in-bid-to-recover-nkandla-upgrades-money, 25 April 2018. 40 V Pikoli and M Wiener, My Second Initiation: The Memoir of Vusi Pikoli, Pan MacMillan South Africa, 130–131, 2013. See also for instance: 60 M Maquina, Now up to president to approve SIU tribunal, J Keet, ANC Youth League takes aim at Scorpions, Mail & Guardian, The Star, http://thestar.newspaperdirect.com/epaper/ https://mg.co.za/article/2008-09-02-anc-youth-league-takes-aim-at- showarticle.aspx?article=58bdf6e9-0730-4b23-9134-6c7 scorpions, 2 September 2008. c7cb492c8&key=MJff1uR9Pwt03WL2fDIiow%3d%3d&iss ue=65102018101800000000001001, 18 October 2018. 41 S Evans, The quiet technocrat: is Andy Mothibi the state capture clean-up’s secret weapon?, News24, www.news24.com/Analysis/the- 61 Special Investigating Units and Special Tribunals Act (Act No 74 of quiet-technocrat-is-andy-mothibi-the-state-capture-clean-ups-secret- 1996) (SIU Act), Section 2(1)(b). weapon-20190906, 8 September 2019. 62 The Presidency, President Cyril Ramaphosa appoints Special 42 Special Investigating Units and Special Tribunals Act (Act No 74 of Investigations Unit Tribunal, South African Government, www.gov.za/ 1996) (SIU Act), Section 2(1)(a). speeches/president-ramaphosa-appoints-special-investigations-unit- 43 Special Investigating Units and Special Tribunals Act (Act No 74 of tribunal-24-feb-2019-0000, 24 February 2019. 1996) (SIU Act), Section 2(1). 63 Q Hunter, SIU tribunal to start on Tuesday as government tries 44 See also the Constitutional Court judgment in South African to recover R14.7bn, Times Live, https://www.timeslive.co.za/ Association of Personal Injury Lawyers v Heath and Others, paragraphs politics/2019-09-26-siu-tribunal-to-start-on-monday-as-government- 51–60 [Note 19] in respect of Section 2(2) of the act. tries-to-recover-r147bn/, 9 July 2019. 45 These refer to: (c) unlawful appropriation or expenditure of public 64 J Chetty and P Pillay, Independence of Anti-corruption agencies, 4: money or property; (d) unlawful, irregular or unapproved acquisitive act, ‘It grew from a staff compliment in 2001 of sixty seven members, to transaction, measure or practice having a bearing upon State property; currently more than five hundred’; L Camerer, Tackling the Multi- (e) intentional or negligent loss of public money or damage to public Headed Dragon: Evaluating Prospects for a Single Anti-Corruption property; (f) offence referred to in Part 1 to 4, or section 17, 20 or 21 (in Agency in South Africa, Institute for Security Studies, https://issafrica. so far as it relates to the aforementioned offences) of Chapter 2 of the org/research/papers/tackling-the-multi-headed-dragon-evaluating- Prevention and Combating of Corrupt Activities Act, 2004, and which prospects-for-a-single-anti-corruption-agency-in-south-africa, 1999, 6: offences was [sic] committed in connection with the affairs of any State Currently, 71 people. institution. (The ‘sic’ is contained in the act itself.) 65 Parliamentary Monitoring Group, Standing Committee on Justice, 46 Interview, Willie Hofmeyr, 2 October 2018. Heath Special Investigating Unit: Summary of case recoveries, savings and prevention as at 31 January 1999, undated (1999), http://pmg- 47 Comment received from Pranesh Maharaj, SIU, September 2019. assets.s3-website-eu-west-1.amazonaws.com/docs/1999/990317siu. 48 R Mathekga, South Africa, in Open Society Initiative for Southern htm. Africa, Effectiveness of Anti-Corruption Agencies in Southern Africa, 66 A decline from 541 in March 2017 (SIU, Annual Report 2016–17, 77). Open Society Initiative for Southern Africa, 256, 2017. See also SIU Act, Section 5(6)(b). 67 Parliamentary Monitoring Group, Portfolio Committee on Correctional Services, Special Investigations Unit findings on investigation into the 49 Defined by Section 1 of the Criminal Procedure Act, Act 51 of 1977. Department of Correctional Services, https://pmg.org.za/committee- 50 Special Investigating Units and Special Tribunals Act (Act No 74 of meeting/11105/, 16 November 2009. See also the page on ‘Our skills’ 1996) (SIU Act), Section 4(1)(c) and 5(5). on the SIU website: https://www.siu.org.za/our-expertize/. 51 SIU, Annual Report 2016–17, 84. 68 R Davis, Parliament: Toothless anti-graft agency takes years to 52 Ibid. complete probes that should be urgent, Daily Maverick, www. 53 This includes 49 781 during the April 2004 to March 2013 period (D dailymaverick.co.za/article/2017-09-06-parliament-toothless-anti-graft- Bruce, Counting the covert – using data to understand corruption agency-takes-years-to-complete-probes-that-should-be-urgent/#. in South Africa, Institute for Security Studies, 49, www.issafrica.org/ WbEZfdSg_cc, 6 September 2017. uploads/Mono189.pdf), 2014, and more than 1 000 in the following 69 J Redpath, The Scorpions: Analysing the Directorate of Special year (SIU, Annual Report 2013–14, 8). Operations, Institute for Security Studies, 6, 2004, 57, has figures

SOUTHERN AFRICA REPORT 28 | OCTOBER 2019 23 reflecting SIU and Scorpions budgets over the period 1999–2000 to settlement agreement relating to the termination of service of Mxolisi 2005–6. Nxasana as NDPP and the subsequent appointment of Shaun 70 National Treasury, 2018 Budget Estimates of National Expenditure Abrahams as NDPP). Vote 21, Page 17, www.treasury.gov.za/documents/national%20 86 Staff Reporter, Hofmeyr dropped as head of Special Investigating budget/2018/enebooklets/Vote%2021%20Justice%20and%20 Unit, Mail & Guardian, https://mg.co.za/article/2011-11-29-hofmeyr- Constitutional%20Development.pdf. dropped-as-head-of-special-investigating-unit, 29 November 2011. 71 National Treasury, 2019 Budget Estimates of National Expenditure 87 National Prosecuting Authority Act, 32 of 1998, Section 9(1). Vote 23, Page 478, www.treasury.gov.za/documents/national%20 88 Special Investigating Units and Special Tribunals Act (Act No 74 of budget/2019/ene/Vote%2023%20Police.pdf. 1996) (SIU Act), Section 3(1). 72 National Treasury, 2019 Budget Estimates of National Expenditure 89 Special Investigating Units and Special Tribunals Act (Act No 74 of Vote 20, Page 424, www.treasury.gov.za/documents/national%20 1996) (SIU Act), Section 3(2). budget/2019/ene/Vote%2020%20Independent%20Police%20 Investigative%20Directorate.pdf. 90 Special Investigating Units and Special Tribunals Act (Act No 74 of 1996) (SIU Act), Section 3(1). 73 National Treasury, 2019 Budget Estimates of National Expenditure Vote 21, Page 448, www.treasury.gov.za/documents/national%20 91 Corruption Watch (RF) NPC and Another v President of the Republic budget/2019/ene/Vote%2021%20Justice%20and%20 of South Africa and Others; Council for the Advancement of the South Constitutional%20Development.pdf. African Constitution v President of the Republic of South Africa and 74 National Treasury, 2019 Budget Estimates of National Expenditure Others (62470/2015) [2017] ZAGPPHC 743; [2018] 1 All SA 471 Vote 21, Page 448, www.treasury.gov.za/documents/national%20 (GP); 2018 (1) SACR 317 (GP) (8 December 2017), www.saflii.org/za/ budget/2019/ene/Vote%2021%20Justice%20and%20 cases/ZAGPPHC/2017/743.html; Corruption Watch NPC and Others Constitutional%20Development.pdf. v President of the Republic of South Africa and Others; Nxasana v Corruption Watch NPC and Others (CCT 333/17; CCT 13/18) [2018] 75 Special Investigating Units and Special Tribunals Act (Act No 74 of ZACC 23 (13 August 2018), paragraphs 42–44, www.saflii.org/za/ 1996) (SIU Act), Section 13A(b). cases/ZACC/2018/23.html. 76 SIU, Annual Report 2017–18, 117. 92 Special Investigating Units and Special Tribunals Act (Act No 74 of 77 See also: J Dengler, Fighting corruption – The special tribunal, Centre 1996) (SIU Act), Section 3(5). for Constitutional Rights, www.cfcr.org.za/index.php/latest/923-article- 93 Special Investigating Units and Special Tribunals Act (Act No 74 of fighting-corruption-the-special-tribunal?utm_medium=email&utm_sou 1996) (SIU Act), Section 4(1)(g). rce=sharpspring&sslid=MzO3tDQwMzAzMzE2BQA&sseid=M7Q0MT KzNLE0NAUA&jobid=bcf2d038-7fe0-47ad-a7fc-bbc12701a674, 17 94 Public Audit Amendment Act, 5 of 2018. September 2019. 95 Ibid, Sections 3 and 6. 78 Special Investigating Unit, About Us, https://www.siu.org.za/about-us/. 96 See for example: Q Hunter, Z Matiwane and Z Mvumu, Ace in a hole, 79 Special Investigating Units and Special Tribunals Act (Act No 74 of Sunday Times, 16 September 2018. 1996) (SIU Act). 97 Public Affairs Research Institute (PARI), National Anti-corruption 80 Special Investigating Unit, About Us, https://www.siu.org.za/about-us/. strategy – Discussion document, 28, www.gov.za/sites/default/files/ 81 Parliamentary Monitoring Group, Portfolio Committee on Justice and gcis_document/201705/nacs-discussion-document-finala.pdf, 2016. Constitutional Development, Special Investigating Units Amendment 98 D Bruce, By proclamation of the President – The role of the Special Bill: Deliberations, https://pmg.org.za/committee-meeting/350/, 6 Investigating Unit in addressing corruption, Presentation at the Public March 2001. Affairs Research Institute conference, State capture and its aftermath, 82 The act provides that ‘The President may at any time remove the Head 10, 23 October 2018. of a Special Investigating Unit from office if there are sound reasons for 99 Includes two proclamations in 2017 (Proclamation R24 of 2017 and doing so.’ (Special Investigating Units and Special Tribunals Act (Act R32 of 2017) apparently for different investigations. No 74 of 1996) (SIU Act), Section 3(4)(d).) 100 Proclamation R48 of 2012; Proclamation R53 of 2014. 83 Parliamentary Monitoring Group, Portfolio Committee on Justice and 101 Two of these investigations are into the Eastern Cape Department of Constitutional Development, Special Investigating Units Amendment Education, one by proclamation in 2010 and one in 2015. Includes Bill: Deliberations, https://pmg.org.za/committee-meeting/350/, 6 one former provincial entity, the Transkei Road Transport Corporation March 2001. (subsequently liquidated). 84 Ibid. 102 Includes one provincial entity, the Road Agency Limpopo (SOC) 85 Key judgments in this regard are: Glenister v President of the Republic Limited (Proclamation R12 of 2018). of South Africa and Others (CCT 48/10) [2011] ZACC 6; 2011 (3) SA 347 (CC) ; 2011 (7) BCLR 651 (CC) (17 March 2011), and Helen 103 The investigation under Proclamation R59 of 2018 refers to both the Suzman Foundation v President of the Republic of South Africa Greater Sekhukhune District Municipality and the Elias Motsoaledi and Others; Glenister v President of the Republic of South Africa Local Municipality which is part of it. and Others (the legislative provisions governing the Directorate for 104 Alfred Nzo District Municipality is the subject of both Proclamations Priority Crime Investigation (‘the Hawks’), the investigative unit that R19 of 2017 and R36 of 2017. was created by government to take the place of the Directorate for 105 Proclamation R72 of 2009. Priority Crime Investigation); McBride v Minister of Police and Another (the March 2015 suspension of Robert McBride as head of the 106 South African Police Service Act, Act 68 of 1995, Section 17B(a). Independent Police Investigative Directorate); Corruption Watch NPC 107 R Mathekga, South Africa, in Open Society Initiative for Southern and Others v President of the Republic of South Africa and Others; Africa, Effectiveness of Anti-Corruption Agencies in Southern Africa, Council for the Advancement of the South African Constitution v Open Society Initiative for Southern Africa, 257. Proclamation R59 President of the Republic of South Africa and Others (the May 2015 published on 20 December 2013.

24 ACCOUNTABILITY FOR CORRUPTION: THE ROLE OF THE SPECIAL INVESTIGATING UNIT 108 One of the provisions of the terms of reference did make provision 121 J Gerber, Zuma must sign proclamation for SIU probe of SABC – EFF, for the investigation to address ‘improper or unlawful conduct by News24, www.news24.com/SouthAfrica/News/zuma-must-sign- contractors, suppliers or service providers of the Department or other proclamation-for-siu-probe-of-sabc-eff-20170703, 3 July 2017. third parties in relation to the project (which would include the undue 122 J Gerber, Zuma finally signs SIU proclamation for probe into SABC, influence of public representatives or other third parties working on the News24, www.news24.com/SouthAfrica/News/zuma-finally-signs- project)’. SIU, Annual Report 2013–14, 9. siu-proclamation-for-probe-into-sabc-20170825, 25 August 2017. 109 R Mathekga, South Africa, in Open Society Initiative for Southern See also: Marianne Thamm, SIU’s investigation into Hlaudi’s empire Africa, Effectiveness of Anti-Corruption Agencies in Southern Africa, reveals civil litigation over hundreds of millions, Daily Maverick, www. Open Society Initiative for Southern Africa, 257. dailymaverick.co.za/article/2018-11-28-sius-investigation-into-hlaudis- empire-reveals-civil-litigation-over-hundreds-of-millions/, 28 November 110 Public Protector, Secure in Comfort: Report on an Investigation 2018. Into Allegations of Impropriety and Unethical Conduct Relating to the Installation and Implementation of Security Measures by 123 Q Hunter, Z Matiwane and Z Mvumu, Ace in a hole, Sunday Times, 16 the Department of Public Works at and in Respect of the Private September 2018. Residence of President Jacob Zuma at Nkandla in the KwaZulu-Natal 124 P Myburgh, Ramaphosa signs off on SIU probe into Ace-linked Province, 109–110, 2014. asbestos deal, Daily Maverick, www.dailymaverick.co.za/article/2019- 111 Inter-Ministerial Task Team, Investigation Report: Prestige 07-12-ramaphosa-signs-off-on-siu-probe-into-ace-linked-asbestos- Project A: Security Measures President’s Private Residence: deal/, 12 July 2019. Nkandla, Department of Public Works, 1 and 34–5, https://www. 125 V Pikoli and M Wiener, My Second Initiation: The Memoir of Vusi Pikoli, corruptionwatch.org.za/wp-content/uploads/migrated/nkandla.pdff, Pan MacMillan South Africa, 189, 2013. 2013. 126 A Matshiqi, Undamaged reputations? Implications for the South 112 R Mathekga, South Africa, in Open Society Initiative for Southern African criminal justice system of the allegations against and Africa, Effectiveness of Anti-Corruption Agencies in Southern Africa, prosecution of Jacob Zuma, Centre for the Study of Violence and Open Society Initiative for Southern Africa, 257–8. Reconciliation, www.csvr.org.za/docs/crime/undamagedreputations. 113 Public Protector, Secure in Comfort: Report on an Investigation pdf, 2007. Into Allegations of Impropriety and Unethical Conduct Relating 127 G Hosken, SIU boss blames ‘sinister, corrupt’ officials for PP probe, to the Installation and Implementation of Security Measures by Sunday Times, 4 August 2019; S Evans and J Chabalala, SIU ‘happy’ the Department of Public Works at and in Respect of the Private to co-operate with Public Protector in Public Works probe, News24, Residence of President Jacob Zuma at Nkandla in the KwaZulu-Natal www.news24.com/SouthAfrica/News/siu-happy-to-co-operate-with- Province, 97. public-protector-in-public-works-probe-20190808, 8 August 2019. 114 Communication from Pranesh Maharaj, SIU, September 2019. 128 Interview, Willie Hofmeyr, 2 October 2018. 115 R Mathekga, South Africa, in Open Society Initiative for Southern 129 The SIU states that in previous financial years this indicator was split Africa, Effectiveness of Anti-Corruption Agencies in Southern Africa, between the value of potential cash to be recovered and the value of Open Society Initiative for Southern Africa, 257–8. actual cash recovered. 116 Public Protector, Secure in Comfort: Report on an Investigation 130 In relation to the figures for ‘number of civil matters instituted in court’ Into Allegations of Impropriety and Unethical Conduct Relating the SIU 2015–2016 states that: ‘The indicator only counted matters to the Installation and Implementation of Security Measures by that actually appeared in court. It did not accurately reflect the amount the Department of Public Works at and in Respect of the Private of work done by the SIU in the institution/defence or opposition of Residence of President Jacob Zuma at Nkandla in the KwaZulu-Natal civil proceedings. For the 2016/2017 financial year the indicator has Province, 65, 2014. been redefined and the new method of calculation includes when the SIU institutes civil proceedings or intervenes/joins in civil proceedings 117 R Mathekga, South Africa, in Open Society Initiative for Southern or the date upon which the State institution, State Attorney or Africa, Effectiveness of Anti-Corruption Agencies in Southern Africa, attorneys/counsel for the State institution acknowledges receipt of Open Society Initiative for Southern Africa, 258. the SIU referred evidence for purposes of instituting, defending or 118 K Singh, Nkandla scandal hearings ‘finalised and settled’ – union, opposing civil proceedings, arbitration proceedings or counter civil News24, www.news24.com/SouthAfrica/News/nkandla-scandal- proceedings.’ The change in performance on this indicator therefore hearings-finalised-and-settled-union-20180411, 11 April 2018. is partly a reflection of the fact that the method for quantifying this has 119 P de Wet, How to waste R155m on Zuma’s Nkandla homestead, been changed. Mail & Guardian, https://mg.co.za/article/2014-08-14-how-to- 131 For the 2014–15 year the number was 4 (SIU, Annual Report waste-r155-million-on-jacob-zumas-homestead, 15 August 2014; P 2014–15, 14). Herman, Lawyers drop Nkandla architect, News24, www.news24. 132 SIU, Annual Report 2017–18, 34. com/SouthAfrica/News/lawyers-drop-nkandla-architect-20171011, 11 October 2017; SIU reveals stumbling blocks in bid to recover Nkandla 133 For the 2014–15 year the number was 95 (SIU, Annual Report upgrades money, Eyewitness News, https://ewn.co.za/2018/04/25/ 2014–15, 14). siu-reveals-stumbling-blocks-in-bid-to-recover-nkandla-upgrades- 134 SIU, Annual Report 2017–18, 34. money, 25 April 2018. 135 SIU, Annual Report 2016–17, 11. 120 P de Wet, Zuma will make an 85% profit on his Nkandla home after 136 Interview, Willie Hofmeyr, 2 October 2018. repaying the state R7.8m, https://mg.co.za/article/2016-06-29-00- 137 D Bruce, Counting the covert – using data to understand corruption zuma-will-make-an-85-profit-on-his-nkandla-home-after-repaying- in South Africa, Institute for Security Studies, 49, www.issafrica.org/ the-state-r78m, 29 June 2016; K Patel, ConCourt: Parliament has uploads/Mono189.pdf, 49. failed to hold Zuma to account, Mail & Guardian, https://mg.co.za/ article/2017-12-29-concourt-parliament-has-failed-to-hold-zuma-to- 138 Ibid, 2014, 51. account, 29 December 2017. 139 SIU, Annual Report 2009–2010, 8.

SOUTHERN AFRICA REPORT 28 | OCTOBER 2019 25 140 SIU, Annual Report 2009–2010, 8. Also page 7. 161 Comment from Pranesh Maharaj, SIU, September 2019. 141 SIU, Annual Report 2009–2010, 8. 162 N Gules, NPA is ‘sitting’ on 686 mostly corruption cases, says SIU 142 Interview, Willie Hofmeyr, 2 October 2018. head Andy Mothibi, City Press, www.news24.com/SouthAfrica/ News/npa-is-sitting-on-686-cases-20180909-2, 9 September 2018. 143 Special Investigating Units and Special Tribunals Act (Act No 74 of 1996) (SIU Act), Section 4(1)(d). 163 See the report pointing to direct involvement by the SIU in a criminal investigation in: J Gerber, SIU ensures conviction of City of 144 Prior to 2016–17 this was purely referred to as disciplinary referrals. Tshwane fraudster, News24, www.news24.com/SouthAfrica/News/ 145 SIU, Annual Report 2013–14, 8. siu-ensures-conviction-of-city-of-tshwane-fraudster-20181030, 30 146 Ibid. October 2018. 147 Ibid. 164 These were listed as: not guilty, guilty, dismissal, suspended 148 Ibid. sentences with no pay for 14 days, dismissal of case, final written warning, resignation, appeal against dismissal. 149 Ibid. Appears to include referrals to the AFU (Ibid). 165 Public Service Commission, Measuring the Effectiveness of the 150 SIU, Annual Report 2014–15, 14. National Anti-Corruption Hotline: Third Biennial Report, pages ix–x, 151 SIU, Annual Report 2016–17, 18. www.psc.gov.za/documents/2012/NACH3%20REPORT.pdf, 2012. 152 Includes ‘accused arrested and are due to appear in court’, ‘plea 166 W Heath, Governments must set example against corruption in agreement drafted’, ‘plea agreement reached’, ‘set down for trial/ public sector, The Star, (quoted in L Camerer, Tackling the Multi- charge sheet drafted’, ‘confiscation order obtained’, ‘AFU appealing Headed Dragon: Evaluating Prospects for a Single Anti-Corruption the court order’. Agency in South Africa, Institute for Security Studies, https://issafrica. 153 SIU, Annual Report 2014–15, 26. org/research/papers/tackling-the-multi-headed-dragon-evaluating- 154 SIU, Annual Report 2015–16, 47–8. prospects-for-a-single-anti-corruption-agency-in-south-africa, 1999), 17 September 1998. 155 The Anti-Corruption Task Team (ACTT) was a coordinating body established by government in 2009 ostensibly to ‘fast-track high- 167 Parliamentary Monitoring Group, Portfolio Committee on Justice and priority and high-profile corruption cases’ as well as work with Constitutional Development, Special Investigating Units Amendment government departments ‘to strengthen governance systems, Bill: Deliberations, https://pmg.org.za/committee-meeting/350/, 6 reduce risks and prevent corruption’. (Parliamentary Monitoring March 2001. Group, Question NW3977 to the Minister of Public Service and 168 SIU, Presentation to SCOPA by SIU, 28, https://pmg.org.za/ Administration, https://pmg.org.za/committee-question/1748/, 3 committee-meeting/23269/, 14 September 2016. December 2015.) 169 Comment from Pranesh Maharaj, SIU, September 2019. 156 In one matter the AFU is appealing a decision that they cannot 170 Ibid. preserve the entire contractual amount and should only quantify the actual loss suffered for forfeiture. 171 Proclamation R21 published on 14 May 2010. 157 In the 2015–16 report reference is made to a matter in which a 172 See for instance: SIU, Annual Report 2010–11, 16; SIU, Annual R2 million confiscation order was obtained. This may be the same Report 2013–14, 13; SIU, Annual Report 2014–15, 42–43; SIU, matter as the one referred to in 2014–15 in which a conviction was Annual Report 2016–17, 57. obtained as this report indicates that ‘a conviction was obtained 173 Promotion of Access to Information Act, 2 of 2000. in another matter with a five-year suspended sentence and a 174 N Gules, NPA is ‘sitting’ on 686 mostly corruption cases, says SIU confiscation order for R2 million’. head Andy Mothibi, City Press, www.news24.com/SouthAfrica/ 158 M Mahlase and K Cowan, NPA must explain why it failed to prosecute News/npa-is-sitting-on-686-cases-20180909-2, 9 September 2018. cases, including Bosasa – SIU, News24, www.news24.com/ 175 Q Hunter, ANC Gauteng chief whip Brian Hlongwa resigns, Times SouthAfrica/News/npa-must-explain-why-it-failed-to-prosecute- Live, www.timeslive.co.za/politics/2018-10-30-anc-gauteng-chief- cases-including-bosasa-siu-20180904, 4 September 2018. whip-brian-hlongwa-resigns/, 30 October 2018. 159 N Gules, NPA is ‘sitting’ on 686 mostly corruption cases, says SIU 176 Meeting with Kavisha Pillay and David Lewis, Corruption Watch, 8 head Andy Mothibi, City Press, www.news24.com/SouthAfrica/News/ October 2018. npa-is-sitting-on-686-cases-20180909-2, 9 September 2018. 177 National Planning Commission, National Development Plan – Our 160 M Merten, Shamila Batohi maps the road from ‘massive credibility future, make it work, 447, 2012. challenge’ to sustainable ethical institution with integrity, www. dailymaverick.co.za/article/2019-07-10-shamila-batohi-maps-the- 178 Comment from Pranesh Maharaj, SIU, September 2019. road-from-massive-credibility-challenge-to-sustainable-ethical- 179 National Planning Commission, National Development Plan – Our institution-with-integrity/, 10 July 2019. future, make it work, 448, 2012.

26 ACCOUNTABILITY FOR CORRUPTION: THE ROLE OF THE SPECIAL INVESTIGATING UNIT Visit our website for the latest analysis, insight and news

The Institute for Security Studies partners to build knowledge and skills that secure Africa’s future

Step 1 Go to www.issafrica.org

Step 2 Go to bottom right of the ISS home page and provide your subscription details

SOUTHERN AFRICA REPORT 28 | OCTOBER 2019 27 About the author David Bruce is an independent researcher on policing, crime and criminal justice. His work includes a number of reports on corruption and investigative systems to address it. He has a Master’s degree from the University of the Witwatersrand and is a visiting research fellow at the Wits School of Governance.

About ISS Southern Africa Reports Southern Africa Reports provide the results of in-depth research on the latest human security challenges in the region. Some reports analyse broad conflict trends and threats to peace and security in specific Southern African countries. Others focus on challenges in the region such as electoral reform, corruption or intra-state conflict.

About the ISS The Institute for Security Studies (ISS) partners to build knowledge and skills that secure Africa’s future. The ISS is an African non-profit with offices in South Africa, Kenya, Ethiopia and Senegal. Using its networks and influence, the ISS provides timely and credible policy research, practical training and technical assistance to governments and civil society.

Acknowledgements

This report is funded by the Embassy of Finland in Pretoria. The ISS is grateful for support from the members of the ISS Partnership Forum: the Hanns Seidel Foundation, the European Union and the governments of Canada, Denmark, Finland, Ireland, the Netherlands, Norway, Sweden and the USA.

© 2019, Institute for Security Studies Copyright in the volume as a whole is vested in the Institute for Security Studies and the author, and no part may be reproduced in whole or in part without the express permission, in writing, of both the author and the publishers. The opinions expressed do not necessarily reflect those of the ISS, its trustees, members of the Advisory Council or donors. Authors contribute to ISS publications in their personal capacity. Cover image: © Amelia Broodryk/ISS