Investigating unit barely scratches the surface in recouping R8bn of R1-trillion-R2-trillion lost to state capture

17 March 2022 – 15:46 Paul Hoffman

President Cyril Ramaphosa has been talking up a storm regarding the exploits of the Special Investigating Unit (SIU), which has apparently collected R8bn of the loot of state capture in all litigation before the tribunal, which was established in 2019 to fast-track matters of this nature.

In his most recent weekly newsletter Ramaphosa asserted that: “As the Special Tribunal has demonstrated, we are steadily turning the tide. Not only are perpetrators being arrested and taken to court, they are also having to forfeit the proceeds of their crimes.” He said there is a long way to go, and there is a huge amount of stolen public funds that need to be recovered.

“But the SIU and the Special Tribunal have made a good start, and I am confident of many more successes in the months and years ahead.”

It needs to be noted that the loot of state capture is variously estimated to be between R1-trillion and R2-trillion. The work of the SIU is therefore barely scratching the surface. The longer the delays, the more difficult it becomes to track and trace the loot and freeze it, seize it and have it forfeited to the state in civil proceedings.

The second point worth noting is that the SIU operates in the civil law domain. It has no mandate to invoke the criminal law, no prosecutorial powers and no means of actually holding the corrupt to account properly, other than by taking valid and valuable steps to recover loot. The point is that loot is stolen money; it is no great loss to the “easy come, easy go” criminals who involve themselves in looting. When caught, if they are not personally held to account they are encouraged to try again. If no criminal proceedings ensue they take steps not to get caught again.

The only effective means of deterring  corruption is by holding the corrupt to account personally in criminal proceedings aimed at convictions and long prison terms for those found guilty. Personal criminal accountability ends impunity and also discourages aspirant looters from embarking on looting. It is the fear of being held to account that prevents looting in the first place. The greater the perception that looters are allowed to go free, the larger the numbers that will try their hand.

Going after the money, as the SIU does, has its place, but it is not the silver bullet solution to the problem as it manifests in SA. Too many have been getting away with corruption for too long. Unless and until the criminal justice administration is reformed to comply properly with the requirements and criteria laid down by the Constitutional Court in the Glenister litigation, the temptation to loot will remain.

The SIU is not part of the criminal justice administration. We have seen reports of the SIU that have been referred to the prosecution service gather dust for many years. For example, Bosasa was able, by devious means, to avoid the prosecution of those implicated in its patronage network from commencing for over a decade.

It is one thing to prove on a balance of probabilities in a civil case that the loot should be frozen, another to prove in criminal proceedings that the accused are guilty beyond reasonable doubt of the crime of corruption, theft, fraud, embezzlement or money laundering, among other corrupt activities brought onto the statute book in the pre-Jacob Zuma era.

The SIU can only spring into action at the behest of the president. If no proclamation is made authorising the unit to investigate and litigate, try to recover the loot or seek such other civil law remedies as may be available, the SIU must sit on its hands and await the president’s instructions. Incidents such as the 2017 CR17 campaign contribution by Gavin Watson, and Bosasa’s relationship with the president’s son, Andile Ramaphosa, do not find their way to the SIU inbox.

All too often SIU reports that are referred to the criminal justice administration are found not to contain proof to the criminal standard of the commission of any crime. National Prosecuting Authority (NPA) head Shamila Batohi has been heard to complain of this flaw in the system. Further investigation, often duplicating work done in a civil law context by the SIU, is conducted by the Hawks or the new Investigating Directorate within the NPA. Delays ensue, loot is moved and justice is deferred or denied.

Presidential praise-singing notwithstanding, it is not the SIU that will end kleptocracy, state capture and grand corruption. The reform of the criminal justice administration in such a manner as to render it capable of holding the corrupt to account in person, rather than merely by recouping their ill-gotten gains, is what is required.

There is a growing consensus between larger political parties that these reforms are necessary. They will involve enabling legislation, amendments to the constitution and a possible incorporation of the SIU into the new unit so as to eliminate the duplication of work that results from the limitations on the mandate of the SIU discussed above.

Accountability Now has long championed the establishment of a new Chapter Nine institution to prevent, combat, investigate and prosecute serious corruption. In August 2021 it presented the president with suggested draft legislation. He has not responded in any way.

This passivity of the president is strange as his own political party, the ANC, passed an urgent resolution in August 2020 calling on the cabinet to set up a stand-alone, permanent, independent and specialised unit to counter corruption. The IFP has been in favour of the Chapter Nine solution since at least 2019, and the DA embraced it earlier this year. The parliamentary drafters are hard at work on the DA’s version of the reforms that would be necessary.

The optimal constitutionally compliant solution will emerge from the crucible of parliamentary debate. That debate should be scheduled as soon as is humanly possible. Foot-dragging is only working to the advantage of the corrupt and against the interests of the country as a whole. There is no rocket science in applying the Glenister criteria to the suggestions of all parties to arrive at a best-practice solution to the challenges to society that are posed by the rampant corruption in SA.

The president is a qualified lawyer and a seasoned politician. He knows that the government is bound by the Glenister “Stirs” criteria, (S for a specialised unit dedicated to investigating and prosecuting the corrupt; T for properly trained staff, which is equipped to do so; I for independence from political influence and interference; R for guaranteed resources sufficient to the task; and S for security of tenure of office.)

Ramaphosa also knows that the Stirs criteria are not in place, and that steps need to be taken to reform the criminal justice administration’s capacity to deal effectively and efficiently with corruption.

One can only hope that a forthcoming presidential newsletter will discuss the urgent need for reform of the criminal justice administration’s capacity to counter serious corruption. The SIU has no role in enforcing our criminal law.

• Hoffman SC is a director of Accountability Now. He was lead counsel in the Glenister litigation.