Special Investigating Unit (SIU) head Advocate Andy Mothibi says the majority of the cases his unit has referred to the National Prosecuting Authority (NPA) for attention between 2013 and April have been left to gather dust.
Annual reports issued by the investigative body since 2015 reveal that the bulk of the matters referred for prosecution are for offences committed in terms of the Prevention and Combating of Corrupt Activities Act, the Prevention of Organised Crime Act, the Public Finance Management Act and the Municipal Finance Management Act.
Most involve corruption by officials and businesspeople to whom contracts were illegally awarded, and which had a direct impact on service delivery.
“No feedback has been received since 2014/15, even at that time. There is still no feedback,” Mothibi said on Thursday.
“These referrals keep accumulating. That’s why, if you look at the numbers, you’ll end up seeing it’s 686 cases because nothing is being done.”
After receiving scant feedback from the NPA, Mothibi signed a memorandum of understanding with former National Director of Public Prosecutions Shaun Abrahams. The agreement seeks to formalise the feedback process with monthly meetings between the head of the NPA’s Specialised Commercial Crime Unit and SIU provincial heads, the establishment of a database to track cases and quarterly reports sent to the SIU head.
Mothibi said little had come of this.
“We entered into that in August last year. Still nothing has been done that we are happy with. There has just been to-ing and fro-ing and no tangible action. That’s our concern,” he said.
“As against our referrals for Public Finance Management Act violations, we should have seen more. If these referrals had been acted on, we could be seeing a lot,” Mothibi said.
“I don’t know where the hold-up is, and that’s really what we want to understand. We really want to know what the gaps are. How can we assist to unlock them so that we see traction? It’s problematic.”
But the NPA hit back, saying it had to refer SIU matters to the Hawks because only it and the SA Police Service were mandated by the Constitution to conduct criminal investigations.
NPA spokesperson Luvuyo Mfaku said: “Prosecutions are not instituted on the basis of the evidence collated by the SIU, as the statements and/or forensic reports contained in the referrals are not for the purpose of the institution of criminal proceedings but for civil recovery. Prosecution can only ensue on the basis of a criminal docket registered and investigated by the police.
“The NPA is currently conducting an audit of all the reports referred by SIU to the NPA. On completion of the audit, we will engage the SIU in line with the prescripts of the memorandum of understanding before we engage the media. However, I can assure you that all the matters referred by SIU to the NPA are receiving the necessary attention.”
Mothibi, however, said his staff – among them highly trained advocates, forensic attorneys and accountants – knew their work and could spot when a crime had been committed.
“What we expect is that they go through the dossier and satisfy themselves that the evidentiary material is sufficient to prosecute. The added expectation is that, if they don’t prosecute, let us understand why,” he said.
“If there is a need for further evidence, send it back and we will get it for you so that we enable you to prosecute.”
However, the NPA’s alleged inaction is not Mothibi’s only concern. He has also been met with reluctance by accounting authorities and officers – including directors-general and the boards of state-owned enterprises – to institute disciplinary action against officials whose cases were sent to them.
“We have got a similar concern there. We are not only singling out the NPA here. It is our concern. We can’t see the impact of the SIU’s work if these matters are not actioned. That’s our serious problem,” he said.
“We are currently working on measures to follow up with the accounting authorities and accounting officers, and those measures are still in discussion between ourselves and the presidency.”
Yet another requirement the SIU finds it difficult to fulfil is civil litigation against alleged wrongdoers, and to cancel irregularly awarded contracts and recover the money. One example is the SIU’s R155m lawsuit against Minenhle Makhanya, the architect employed by former president Jacob Zuma to oversee the renovations and security upgrades project at his home in Nkandla. The case has now been enrolled, “but, unfortunately, only for June next year”.
“In the civil section, we are worried as well because we are in the queue with all the other litigants. We are in the process of engaging the department of justice and are satisfied that we will make an announcement this year about the establishment of a special tribunal,” Mothibi said.
“We are glad that there is the political will now to make sure this is re-established.”
Mothibi said the SIU’s new strategy involved monitoring remedial action, as well as preventing corruption through campaigns to educate officials about what it is. The unit has also conducted risk assessments to determine corruption-prone sectors – which include the construction, health, education, information technology and local government sectors, as well as state-owned enterprises – to improve controls.
His comments come as President Cyril Ramaphosa this week authorised SIU investigations into the department of water and sanitation, the Ekurhuleni and eThekwini metropolitan municipalities, and the Media, Information and Communication Technologies Seta.
The water and sanitation department is under investigation for “maladministration and unlawful expenditure” on software from German company SAP. City Press revealed in April that the department blew R772m on software licences for itself and all its water boards – even for those who already had them and for others who didn’t need them.
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