A permanent Investigative Directorate (ID), some successes in asset recovery, and greater protection for whistle-blowers. These are some of the highlights of President Cyril Ramaphosa’s action plan in response to the findings and recommendations of the state capture commission, or Zondo commission.
The ID, which falls under the National Prosecuting Authority (NPA), is now a permanent institution, Ramaphosa announced in his national address on Sunday evening, where he delivered a summary of government’s response to the recommendations and findings of the Zondo commission.
He said the ID was one of the initiatives that his government sought to use to strengthen the NPA, following its weakened state as a result of state capture.
“The commission noted that state capture was facilitated by ‘a deliberate effort to subvert and weaken law enforcement, intelligence and revenue collection agencies at the commanding levels so as to shield and sustain illicit activities, avoid accountability and to disempower opponents’,” said Ramaphosa in the document recording the broad responses to the commission’s recommendations.
“Greater capacitation and resourcing of these bodies is needed, as are wider initiatives of institutional reform. We are determined to build law enforcement agencies that are well capacitated and independent, with clearly delineated responsibilities, and that are able and empowered to effectively collaborate.
“We established the NPA Investigating Directorate to prosecute state capture and other significant corruption cases. And now, to further strengthen existing anti-corruption capabilities, the Investigating Directorate will be established as a permanent entity within the NPA.”
The ID was established in 2019 to address complex corruption cases that arose out of the commission’s investigations. With an initial lifespan of two years, it was meant to bolster such cases so as to give the NPA the necessary advantage in dealing with them. Following its establishment, Ramaphosa also announced, in 2020, amendments to the commission’s regulations so as to enable the ID to tackle investigations in parallel with the commission. What this meant was that the commission could share information it had gathered in some of the cases, with the ID, for the latter proceed with its own probe.
“To date, the Investigating Directorate has enrolled 26 cases, declared 89 investigations and 165 accused persons have appeared in court for alleged state capture-related offences.”
The commission called for coordinated action from various law enforcement entities including the Asset Forfeiture Unit (AFU), the ID, the Hawks, the Financial Intelligence Centre, South African Revenue Service (Sars), Reserve Bank, and the Special Investigations Unit (SIU) to achieve the recovery of monies lost to state capture.
“Key asset recovery initiatives that have been prioritised include the appointment of external forensic auditors to quantify the asset recovery potential of matters identified in the Commission’s findings and the appointment of international asset recovery entities to assist with asset recovery from foreign jurisdictions using ordinary civil remedies,” reads Ramaphosa’s document.
“The SIU has identified several matters in the State Capture Commission report which are within the scope of existing proclamations, which the SIU will investigate and, based on the evidence, will initiate civil litigation in the Special Tribunal to recover losses suffered by the state institutions.”
He adds that Sars has already acted on a number of people identified in the commission’s report, and that as of 30 September 2022, the following progress had been recorded:
- Freezing or preservation orders to the value of R12-billion have been granted to the AFU and Sars.
- A total of R2.9-billion has been recovered by the AFU and returned to the affected entities.
- The SIU has instituted four High Court cases in relation to contracts worth R62.1-billion and recovered payment from a service provider to Eskom in the amount of R1.6-billion.
- Sars investigations arising from state capture commission findings and evidence have resulted in collections of R4.8-billion in unpaid taxes.
Protection of whistle-blowers
Much awaited action in line with the protection of whistle-blowers is on the cards, Ramaphosa promised. This includes a Department of Justice review of the Protected Disclosures Act (PDA) and the Witness Protection Act.
In broad terms, these actions will in time ensure:
- whistle-blowers receive the protections afforded by section 32(2) of the UN Convention Against Corruption;
- the possible award of a proportion of funds recovered to the whistle-blower provided that the information disclosed has been material in recovering funds;
- whistle-blowers be afforded immunity from criminal or civil action arising from honest disclosures.
In its Daring to Act report of December 2022, Corruption Watch revealed perceptions surveyed from the public about the state of whistle-blower protection in the country. Legislative reform in this regard was highlighted as an urgent need.
A press release summarising the report noted: “Participants noted that to improve whistle-blowing in South Africa, additional resources should be provided to law enforcement agencies to ensure whistle-blower complaints are investigated, there should be legislative reform, and an agency dedicated to supporting whistle-blowers should be established.”
The legislative review noted in Ramaphosa’s response will be completed by April 2023.
On the ongoing work that will be coordinated from the office of the director-general of the Presidency, the document notes: “The National Anti-Corruption Advisory Council, recently appointed and chaired by Prof Firoz Cachalia, has provided important perspectives from outside of government and will continue to play an important role in both providing expert advice on the implementation of this response plan, the National Anti-Corruption Strategy, as well as on mobilising a whole-of-society response.”