Under-resourced Investigating Directorate struggles to effectively prosecute State Capture cases

23 Oct 2023

The National Prosecuting Authority’s Investigating Directorate is battling resource constraints and a high turnover of staff. Public hearings on the NPA Amendment Bill, which would make the anti-corruption body permanent, are due to begin this week.

‘A patchwork of interdepartmental secondments” and short-term contracts have left the National Prosecuting Authority’s (NPA’s) Investigating Directorate (ID) limping its way through State Capture-related prosecutions.

In 2022, the NPA warned that the ID’s operating model was unsustainable.

“The most fundamental challenge to the effective functioning of the ID is the legislative and regulatory framework that prevents the ID from exercising the police powers required for effective investigations. This creates a dependency on SAPS to assist the ID through secondments,” the ID said in its 2021/22 annual report.

The seconded staff are not completely free from duties at the original employers, meaning they are often juggling existing cases with complex State Capture matters.

“The secondment of staff is a complex arrangement and not the best solution for the success of the ID. As such, the ID is forced to function on an unsustainable operating model that is based on a patchwork of interdepartmental secondments, internal NPA reassignment of prosecutors, short-term contracted administrative staff and external service providers,” the NPA said in the 2021/2022 annual report.

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“Short-term contracts have resulted in a high staff turnover as contracted employees leave the ID as soon as they secure jobs with tenure. This has resulted in the disruption of or delays in investigations and prosecution.”

The ID has confirmed that 21 investigators left the organisation in the three years since its establishment — either returning to their original crime-fighting units or resigning.

In 2021/22, the ID had 108 staff, 44 of whom were investigators borrowed from the police. While the ID continued to acquire new staff, it seems to have lost them almost as quickly.

ID spokeswoman Sindisiwe Seboka told Daily Maverick the ID currently had 46 investigators, only two more than it had in the 2021/22 financial year.

“Of these, 25 are criminal investigators seconded from SAPS, Independent Police Investigative Directorate and DPCI (Hawks). The rest are financial investigators,” she said.

As the ID fights for permanent existence, the resource constraints continue to dog the organisation. The ID was created in 2019 in an attempt to deal with State Capture-related cases through prosecution-led investigations.

Area of success

The ID’s main area of success so far has been in obtaining restraining orders, along with the Asset Forfeiture Unit. It has obtained R7.18-billion in restraining orders for funds believed to be the proceeds of crime. It has 34 matters enrolled, including cases involving the state security sector and state-owned enterprises.

The organisation plans to begin recruitment of permanent staff and, in particular, senior financial investigators who can help unpack the complex network of State Capture-related money flows. The ID currently relies on outsourced financial flow experts and this reliance has caused a delay in at least one of their cases, the R2-billion Kusile corruption case.

The investigating officer in the case, who cannot be named for his safety, has told the Regional Court in Middelburg that the investigating team needs more resources. He added that part of the reason for the delay in finalising the matter was the process of bringing on board external experts who would help examine money flows.

Read more in Daily Maverick: Defence cries foul over ‘rushed’ Kusile corruption case arrests when NPA probe ‘far from complete’

Internal procurement processes have been slow, resulting in delays in the finalisation of the money-flow report, the court has heard.

Seboka said the ID was concerned that resource constraints could affect the time taken to conclude cases.

“The ID’s ability to complete cases timeously is not impacted by the fact that we have investigators on loan from other law enforcement agencies; it is rather because we do not have enough investigators to assist with these complex matters that creates challenges in terms of turnaround times.”

The ID’s biggest hope lies in the finalisation of the parliamentary process that would make it permanent. Public hearings for the NPA Amendment Bill are due to be heard on Wednesday.

“The permanence of the ID will enable the ID to appoint its own criminal investigators and provide vital police powers, which will see the ID operate under one mandate, co-located to adequately deal with complex corruption,” she said.

A permanent ID could also have more success in lobbying for an increased budget. In the 2022/23 financial year, the ID has R192.5-million, while the NPA’s witness protection service has a budget of R213.6-million. The Asset Forfeiture Unit, which works closely with the SIU and ID, has a budget of R219.5-million.

Corruption Watch’s head of Legal and Investigations, Nicki Van ’t Riet, said the creation of a permanent ID could be beneficial to SA’s crime-fighting efforts, but resourcing must be front of mind in its creation.

“Whilst we support the establishment of the Investigating Directorate, it is imperative that it is adequately resourced from a personal and financial perspective for its effective functioning and in order to allow it to fulfil its mandate.

“We are somewhat concerned that the Bill does not address some of the deep-rooted flaws within the criminal justice system, which includes the independence of the NPA from political influence. If the ID is to be successful, it needs to be independent. We therefore would call for the strengthening of the legislation from an independence perspective,” she said. DM

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Area of success