Dr Udit Pingla
The advent of democracy in 1994, was a culmination of decades of Struggle and brought hope that the long journey towards eliminating the triple burden of poverty, unemployment and inequality would become a reality. A slew of progressive policies and programmes were in place to address the challenges to create a better life for all South Africans.
All the good work was derailed by greed, corruption and malfeasance. Evidence at the State Capture Commission foregrounded the depth of the crisis in our democracy.
President Cyril Ramaphosa, at the State of Nation Address this year, mentioned the recently created Investigating Directorate (ID), located in the National Prosecuting Authority (NPA), would be given wide-ranging powers and resources to combat corruption. Recently, the Cabinet approved the NPA Amendment Bill to fight state capture and corruption, to give effect to Ramaphosa’s promise.
The NPA Amendment Bill of 2023 amends the NPA Act of 1998 to provide for the establishment of the Investigating Directorate Against Corruption (Idac) and focuses on the transition from Investigating Directorate to the new form. The bill should strengthen the powers; instead Idac will be marking time. Resources will be meaningless if the Idac is not capacitated with the requisite skills to fight against corruption without fear, favour or prejudice.
The Idac source is the same as that of the Directorate of Special Operations (DSO), Section 28 of the National Prosecuting Act 32 of 1998. Section 7(1) of the NPA Act makes provision for the establishment of an investigating director within the Office of the National Director. The provision has been in existence since 1998, when the NPA was established. Section 28 of the NPA Act gives investigating powers and much broader powers than those of general prosecutors. The powers range from preparatory investigations to full-scale investigations and enquiries. The Zondo Commission’s recommendations revolve around all the offences that are within the investigative powers of the Investigating Directorate.
The Investigating Directorate was established in the Office of the National Director of Public Prosecutions, by Proclamation 20 of 2019, to deal with what are generally common law offences involving dishonesty but also, more importantly, with the prevention and combating of corrupt activities, the prevention of organised crime, the protection of constitutional democracy and contraventions of the Public Finance Management Act and the Municipal Finance Management Act. There was no provision however for the permanency of the directorate, which created a possibility that it could easily be de-established.
The Directorate of Special Operations (DSO) had its own operating model and a multidisciplinary approach of investigators, prosecutors and analysts to prosecute high-level crimes. It was disbanded in 2008. The fundamental difference between the Directorate of Special Operations and Investigating Directorate Against Corruption is that the DSO had wide-ranging powers underpinned by specialised training from international law enforcement agencies.
The management of operations at Idac may draw multidisciplinary teams from key partners in the Criminal Justice Sector or Idac will appoint its own researchers and investigators.
The weakness in the current Investigating Directorate was highlighted by the Free State High Court on the first state capture case of Nulane Investments on fraud and money-laundering that ended in acquittal. The NPA flagged it intends to appeal the matter.
There are a multitude of cases at state-owned enterprises and it raises serious questions on the tardiness in dealing with high-profile corruption cases.
There are multiple sets of evidence on the same issue and investigative journalism reveals prima facie evidence on corruption.
Once again, it reinforces an urgent need for a more comprehensive and realistic approach towards combating white-collar crime and prosecuting corruption-related crimes. It also brings into sharp focus that capacitating Idac cannot be divorced from the legislation on the protection of whistle-blowers and the effectiveness of other law enforcement agencies within the Criminal Justice Cluster.
Chief Justice Raymond Zondo highlighted in one of many recommendations, a call for a standing anti-state capture and anti-corruption agency towards transformation and accountability. A National Anti-Corruption Advisory Council has been set up with representatives from civil society, business and the government to fight corruption in tandem with National Anti-Corruption Strategy 2020-2030.
Idac has been set up with a particular mandate and will report to the head of the NPA. The sudden departure of the previous head of the Investigating Directorate begs the question on the location of the new Idac in the office of the National Director of Public Prosecutions; and how this will relate to a seamless chain of command.
Would it not be best for Idac to be an independent institution, with parliamentary oversight, to thwart deflection from accountability and address long-standing perceptions of political interference in the NPA and its specialised units.
Any investigative capacity to fight crime and corruption is appreciated against the endemic corruption that undermined our fragile democracy. It is vital that a revamped Investigating Directorate be free from any form of political interference, to enable the NPA to successfully convict those who were involved in white-collar crime and state capture in order to prove malfeasance, fraud and corruption and for the matter to be taken to the independent judiciary for a fair trial.
It may be true that at the root of the Zondo Commission’s revelations and findings lies the state capture, political corruption and criminality that enabled it. The tools to address the issues is through the relevant legislation: (a) Prevention and Combating of Corrupt Activities Act, which targets corruption at all levels of the state and society, and (b) The Prevention of Organised Crime Act, which can be used to target, disrupt and prevent corruption, organised criminal activity and money-laundering.
For the depoliticisation and effectiveness of Idac, accountability at all levels of the administration and the public should insist that the government be held accountable. For Idac to be effective, South Africa needs to use its multilateral access to BRICS, G20 and developing countries to successfully enhance the capacity of Idac for greater effectiveness.
*Dr Pingla Udit is an independent researcher specialising in policy, international relations and strategic conflict zones
^^The views expressed do not necessarily reflect the views of Independent Media or IOL