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Accountability for Corruption: the Role of the Special Investigating Unit

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Accountability for Corruption: the Role of the Special Investigating Unit 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
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