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Adv. Andy Mothibi gives us an update on the work of the Special Investigating Unit and details projects they are currently working on

The fight against corruption is a challenging and complex task, and sometimes a dangerous one. But as the Special Investigating Unit (SIU), we are equal to the task given, and we have evidence to prove it. We recently presented our 2022/2023 financial year Annual Report to Parliament’s Portfolio Committee on Justice and Correctional Services, where this evidence lives.

The powers of the SIU are primarily seen in two folds: the first being investigation and the second is civil litigation to correct wrongdoing uncovered during investigation and to recover proceeds of corruption.

Our investigations are empowered by the President signing proclamations. On average, we have seen an 84% increase in proclamations over the last five years. Although authorised by the President, the allegations that the SIU used to motivate for proclamations are reported to the unit by the public. By the end of the 2022/2023 Financial Year (FY), the SIU received 1 717 allegations of corruption compared to 1 384 the previous FY, equaling a 24% increase. This is a clear indication of the public’s confidence in the SIU, as the guardian of the public purse, and faith in our skills as a law enforcement agency. We don’t take this lightly, which is why, in our five-year strategy, we have committed ourselves to completing investigations within 18 months from the day the proclamation is gazetted.

The President signed 17 proclamations in the past financial year. The SIU has submitted 21 investigation reports to the Presidency. One of the submitted reports is an interim report on an investigation into the affairs of the University of Fort Hare on allegations of maladministration in the awarding of honours degrees, mismanagement of funds, and sourcing of public servants for study into various faculty programmes by an individual for personal gain.

Our investigation outcomes determine our decision to pursue civil litigation, which, in instances when we succeed, leads to recovering the losses the state has suffered. In the 2022/23 FY, the SIU recovered over R389 million—money that goes back to the fiscus for service delivery. While ensuring that irregular contracts are set aside or deemed invalid. During this period, R300 million worth of contracts or administrative decisions were set aside or deemed invalid.

The establishment of the Special Tribunal has helped speed up the SIU’s civil litigation cases to reach a legal conclusion. However, its powers and jurisdiction had to stand the test of the Constitutional Court by an appeal brought forward by Ledla Structural Development (Pty) Ltd (Ledla), Rhulani Lehong, Kgodisho Norman Lehong, and other individuals and entities.

The Special Tribunal was set up in 2019 to adjudicate on matters arising from SIU investigations. Its existence is provided for in the Special Investigating Units and Special Tribunals Act 74 of 1996. As a dedicated tribunal, it meant that the SIU could speedily have its matters finalised and recover financial losses suffered by the state before it is dissipated.

On 10 March 2023, the Constitutional Court ruled that the Special Tribunal is not a court. However, it still holds the jurisdiction and powers to adjudicate reviews brought by the SIU and to grant orders setting aside unlawful procurement contracts awarded by state institutions. For the SIU, this judgment means that we can continue to take swift action in civil litigation and apply for preservation orders that can contribute towards recovering the loss of the state. We find strength in the Constitutional Court ruling as it gives absolute certainty on the jurisdiction of the Special Tribunal to adjudicate any civil proceedings brought by the SIU. In this past financial year, the SIU has enrolled 35 cases in the Special Tribunal to the value of R2.4 billion.

While fighting corruption plays a central role in what we do, it is fundamental that we move towards creating prevention measures. Our focus should not only be on recovering money that the state has lost, but also on preventing the state purse from bleeding funds through corruption. In the 2022/23 FY, the SIU has saved the state R2.167 billion. This is potential money that the state could have lost to corruption.

As we move towards strengthening our corruption prevention mechanisms, the systematic weaknesses that our investigations find must be addressed so that corruption is prevented and nibbed in the bud. Pillar Six of the National Anti-Corruption Strategy seeks to “improve adherence to integrity management and anti-corruption mechanisms and improve consequence management for non-compliance of these across government, business and civil society sectors and protecting corruption vulnerable sectors”. This pillar is critical for the work of the SIU.

Rooting out people who acted against their duty and contributed towards corruption, maladministration, and malfeasance is an integral part of restoration. A total of 67 087 referrals were made for administrative action, including cancellation of fraudulently/corruptly acquired drivers’ licences, to regulatory bodies while referring 376 officials and executives for disciplinary action.

Working with other law enforcement agencies

Combating corruption cannot be a solo exhibition of a law enforcement agency, it is a deliberate and consented effort by law enforcement agencies. The Fusion Centre that was kicked off by COVID-19-related investigations is evidence of the outstanding achievements we can achieve as law enforcement agencies through collaboration and sharing of resources. The SIU is committed to working with our law enforcement peers, especially when our powers are limited. In line with the SIU Act, the SIU refers the evidence pointing to criminal conduct to the National Prosecuting Authority (NPA) for further action.

The 2022/23 FY saw the SIU make 680 referrals to the NPA. We have also worked with the NPA’s Asset Forfeiture Unit for preservation and forfeiture orders.

For the full completion of the wheel of justice and to ensure that the SIU’s referrals have been followed through, we entered into a memorandum of understanding with the NPA and the Directorate for Priority Crime Investigation (Hawks). The SIU will continue working closely with the Hawks and NPA to close the taps of corruption.

Strategic approach to combatting corruption

We are less than seven years from meeting our National Anti-Corruption Strategy targets. The National Anti-Corruption Strategy’s Pillar Nine calls for the focus of programmes to reduce corruption and improve integrity in sectors, particularly those vulnerable to corruption.

To fulfill this mandate, the SIU forms part of the Health Sector Anti-Corruption Forum (HSACF), which was established following the Presidential Health Summit in 2018, and it comprises of various stakeholders such as civil society, law enforcement agencies, health sector regulators, government departments, and the private sector. President Cyril Ramaphosa launched the HSACF in October 2019. The results from this sector approach speak for itself. The SIU has instituted over R1.6 billion worth of civil action matters in the High Court and the Special Tribunal relating to the health sector. The value includes approximately R500 million, which is linked to an investigation into the affairs of the Office of the State Attorney on medical negligence claims and legal service claims.

The SIU is investigating 18 legal practitioners who assisted the Office of the State Attorney in rendering legal services regarding medical negligence claims on the Gauteng Department of Health and the Eastern Cape Department of Health.

Since its inception in 2019, 29 allegations of corruption referred to the HSACF resulted in formal investigations. The HSACF investigations have received a report of over 100 officials being referred for disciplinary action, including high-level officials such as a former Head of Department in the North West Province, who was fired and had his pension frozen. The forum has made over 30 referrals to the NPA for further action.

In 2021, the SIU expanded this model of combating corruption together with the Department of Public Works and Infrastructure and established the Infrastructure Built Anti-Corruption Forum. The SIU has conducted Lifestyle Audits in the National Department of Public Works and Infrastructure for all senior management. The department is currently implementing consequence management as per the outcomes of the lifestyle audits conducted. Between March 2022 and April 2023, the Cooperative Governance and Traditional Affairs Minister officially launched the Local Government Anti-Corruption Forum under the chairpersonship of the SIU.

The sector approach is part of the collaborative effort between civil society, the private sector, and the public sector, coined as the “whole-of-society” approach. For South Africa to reach its vision for a corruption-free country as envisaged by the National Development Plan, it needs the backing of the whole of society.

Collaborating and upskilling investigators

In the age of technology, cybercrimes are rife. As a law enforcement agency, it’s imperative to have the right skills to combat cybercrimes. The SIU has an in-house cyber forensic team, but we need to increase our capacity in this regard. To do this, we have signed a memorandum of understanding with the Council for Scientific and Industrial Research (CSIR) and the French government to develop digital investigation tools, digital forensic investigations and analysis, and cloud and high-performance computing to prevent cybercrimes. This will not only help in fighting corruption but help in preventing or dictating it early through the use of data analytics.

The 2022/23 FY also saw the SIU launch its new logo and payoff line, moving from “Poised to Strike Against Corruption” to “Striking Against Corruption”. Our performance over the years has shown us that we are no longer poised but, in fact, striking against corruption. This new leaf has re-energised us in fulfilling our mandate. We will continue to strike against corruption, fraud, maladministration, and malfeasance as we pursue our vision of being the state’s preferred and trusted anti-corruption, forensic investigation, and litigation agency.

Adv. Andy Mothibi is the Chief Executive and Head of the Special Investigating Unit