Government is working on a bill that would establish the National Prosecuting Authority’s (NPA) Investigating Directorate (ID) as a permanent structure with independence and security of tenure for its officials, justice and correctional services minister Ronald Lamola said on Monday.
Independence and security of tenure would protect the body, which is tasked with investigating high profile corruption cases among other forms of crime, from the political interference which saw the dissolution of the Scorpions by the government of former president Jacob Zuma more than a decade ago.
President Cyril Ramaphosa announced in October last year that the ID would be established as a permanent and independent entity within the NPA.
Lamola said in an address to a conference on the reform of the administration of criminal justice to counter corruption organised by the German Konrad Adenauer Foundation, that while consultations within government on the proposed bill were under way, peace officer powers had been assigned as an interim measure to the ID so they could arrest people, take statements and conduct search and seizure operations.
The minister noted that significant progress had been made to date in implementing some of the recommendations of the Zondo commission, including the renewal of the NPA and its close working relationship with other law enforcement agencies.
“One of the weak points which have been identified in the criminal justice system is a silo approach in the fight against fraud and corruption. Today, we see greater levels of collaboration and co-ordination between the Investigative Directorate, Asset Forfeiture Unit, the Specialised Commercial Crime Unit, Special Investigating Unit and the Directorate for Priority Crime Investigation (Hawks).
“The Anti-Corruption Task Team (a government initiative) records 35 cases in court involving 180 accused. In total the Investigating Directorate has enrolled 32 cases, involving 187 accused individuals, [who] have appeared in court for alleged state capture-related offences. This is the same work that has led to R12.5bn being recovered,” Lamola said.
He did not believe it was necessary for the independent anti-corruption agency proposed by the Zondo commission to be a Chapter Nine (of the constitution) institution to ensure its independence. Council for the Advancement of the South African Constitution executive director Lawson Naidoo agreed, suggesting rather that the NPA be beefed up.
Lamola supported the idea that the executive should play a part in the functioning of anti-corruption agencies.
“What is crucial is whether the anti-corruption agency enjoys an adequate level of structural and operational autonomy, secured through institutional and other legal mechanisms aimed at preventing undue influence.
“While it is true Chapter Nine of our constitution is where independent entities are housed in our democracy, we are of the view that the independence of an entity like the NPA and its subsidiaries cannot be looked through a simplistic lens of where the entity is housed. Its independence must be assessed via the lens of structurally and operational autonomy.”
In its Glenister judgment the Constitutional Court identified five principles for an anti-corruption agency — namely that it be specialised, trained, independent, resourced and secure.
The minister said one of the gaps in SA’s whistle-blowing regime — provided for in the Public Disclosures Act — was that companies or government departments who are implicated by whistle-blowers are not held accountable for victimising them. The second gap was how to transition whistle-blowers into witnesses in criminal cases where possible. Government is undertaking comparative research into the incentivisation of whistle-blowers, he added.
Consideration was also being given to the creation and modalities of an anticorruption entity.
National Anti-Corruption Advisory Council (Nacac) chairperson Professor Firoz Cachalia highlighted the danger of over-emphasising behaviour rather than structure when addressing what was systemic corruption in government. Nacac will make its proposal on an anti-corruption model to the presidency. Cachalia believes the entity is needed urgently.
The council is working on a model for an anti-corruption agency which should, Cachalia said, be able to go into corrupt institutions to conduct investigations, should be independent of government and should not incorporate law enforcement agencies.
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