Follow-up meeting with law enforcement agencies regarding collaboration on SOE cases referred by SIU and update on State Capture cases

Meeting report

The Chairperson informed the Committee that the husband of Ms B Zibula (ANC) had been shot and had passed away. He extended condolences, and said it was an unfortunate situation given that the Committee was set to discuss matters of crime and security in this meeting. He said such deaths were what South Africans were confronted with. Although the work to address this situation was appreciated, the larger picture indicated that such incidents were not coming to an end. He hoped these presentations would give a sense that such matters were being attended to.

Lt Gen (Dr/Adv) Godfrey Lebeya, National Head, Directorate for Priority Crime Investigation (DPCI/Hawks), introduced his delegation, which included Maj Gen Mmeli Makinyane, Component Head: Serious Commercial Crime, and Brig John Matroos, Section Head: Governance within Serious Commercial Crime.

He set out how the DPCI would proceed with the presentation, commenting that the Directorate currently had 19 622 cases, of which 11 698 accused persons were on the courts' rolls.

DPCI on status of investigations  

Special Investigating Unit (SIU) referrals

Maj Gen Makinyane presented a summary of case dockets/enquiries and referrals by the SIU. There were 45 cases/enquiries on hand, seven court cases, four pending decision from the National Prosecuting Authority (NPA), 33 cases under investigation, one provisionally withdrawn, and one finalised case.

The SIU also referred other cases, but it had been found that investigations already existed in the DPCI. The allegations on one referral from SIU already under investigation in the DPCI involved Bedfordview CAS 345/08/2017. The matter was pending at court, and had been postponed to May 23 next year.

Eskom

There were 19 cases on hand, with five pending at court and two submitted for decision. There were 11 cases under investigation, but none had been finalised. One case had been provisionally withdrawn from court, and was currently under investigation.

Maj Gen Makinyane gave details of the estimated amount involved. There were five court dockets with the value, or potential value, of R13 million; two cases submitted for decision with the value/potential value, of R7 million; and 12 cases under investigation with a value of R141.5 million.

Water and Sanitation

There were 17 cases on hand, with two submitted for decision, and 15 still under investigation.

The two cases submitted for decision had a value of R54.6 million, while the 15 cases under investigation involved R3.124 billion.

South African Airways (SAA)

One case was on hand with a value of R6.2 million, which had been submitted for decision.

South African Broadcasting Corporation (SABC)

There were three cases on hand, with one pending at court, one submitted for decision, and one under investigation. There was one court docket with a value/potential value of R18 290, while the two cases under investigation involved an amount of R55 million.

Denel

One case, with a value of R3 million was under investigation.

Other DPCI cases involving government departments and entities

Maj Gen Makinyane provided a summary of the case dockets or enquiries:

• Cases/enquires on hand - 132;
• Court cases - 23;
• Cases pending a decision from the NPA - 16;
• Cases under investigation - 68;
• Enquiries under investigation - 25;
• Cases provisionally withdrawn from court - 13;
• Finalised cases - 4.

The estimated value/potential value involved 25 court dockets (R1.139 billion), 17 court cases (R123 million), and 96 cases under investigation (R21. 667 billion). The number of accused arrested was 64.

State Capture matters

Overview of investigations addressing Zondo Commission recommendations

Brig Matroos said that in November 2022, a team comprised of 20 experienced investigators, led by senior officers from the operational investigation components, had been assembled to prioritise the investigations emanating from the State Capture Commission. The DPCI was continuously recruiting personnel to increase the capacity of this unit.

There were 47 cases/enquiries on hand, five court cases, and two cases pending a decision from the NPA. There were still ten cases and 30 enquiries under investigation. Two cases had been finalised, and there had been 33 arrests -- 23 natural persons and ten juristic persons.

Overview of cases on the court roll

• There was one case involving the Department of Transport and Safety (North West) and SAA, involving an amount of R221 million. There had been seven arrests --four natural persons and three entities.
• There was one case involving the Department of Human Settlements (Free State) involving an amount of R250 million. There had been 18 arrests --13 natural persons and five entities.
• At the Passenger Rail Agency of South Africa (PRASA), there were two cases involving R5.8 million. Two people had been arrested.

There had been one case involving Eskom, where the amount involved was R745.8 million. Six arrests had been made -- four natural persons and two entities.

Brig Matroos said that there was a total of 47 cases under investigation, with 80 of the Zondo Commission's recommendations addressed.

Tax cases against individuals and entities involved in state capture matters

 Brig Matroos said the following cases were pending in court:

• Coxinel Chicken (Pty) Ltd (represented by MF Hlakudi);
• Frans Mangope Hlakudi;
• Hlakudi Translation and Interpretation (Pty) Ltd (represented by MF Hlakudi);
• Bon Service Telecom (represented by MF Hlakudi)
• Mahlaku Jacqueline Legoabe;
• Intertrading (Pty) Ltd (represented by Mahlaku Jacqueline Legoabe); and
• Maphoko Hudson Kgomoeswana.

To enhance collaboration with the NPA, 15 DPCI investigating officers had been placed on duty arrangements to the Investigating Directorate (ID) to continue investigating, amongst others, 140 cases that the DPCI previously investigated, and declared by the ID. These investigators were still serving in the ID.

The main case for the BOSASA investigations was one of the cases declared by the ID. At the time it was transferred to the ID, seven suspects had already been arrested.

The DPCI was also collaborating with the NPA through the “task force” which was jointly coordinating the work flowing from the recommendations of the Commission. The task force’s key mandate was prioritising state capture cases, focusing on operational case prioritisation, and enhancing coordination.

Cases finalised: Convictions

• Free State Housing Project (Recommendation No:120)

The accused, Moses Mpho “Gift” Mokoena, was convicted on one count for contravention of Section 86 of the Public Finance Management Act (PFMA), and one count for contravention of Section 34 of the Prevention and Combating of Corrupt Activities Act (PRECCA). He was sentenced to 10 years' imprisonment, suspended for five years on count 1, and five years' imprisonment suspended for five years on count 2.

• South African Airways (SAA) (Recommendation No: 4)

The accused, Duduzile Myeni, was convicted and sentenced to pay a fine of R120 000, or two years' imprisonment, half suspended for five years.

Dependency on external auditors

The DPCI had established a component for Financial Accounting Investigation (FAI) which would, once fully developed, be able to deal with forensic auditing services internally. Currently, it depends mostly on outsourcing. PRASA matters were amongst those that, to a certain extent, had contributed to delays. A forensic auditor had been appointed in October 2020, and in May 2023, the auditor had terminated his contract due to health reasons.

The appointment of a new forensic company was finalised on 1 November, and the first report was expected at the end of February 2024.

(For the detailed presentation, see annexure)

SIU's progress in implementing Zondo Commission's recommendations

Adv Leonard Lekgetho, Chief National Investigations Officer, SIU, presented the SIU’s report on its progress in implementing the Zondo Commission's recommendations.

Transnet

Phase One matters

The SIU was investigating allegations of irregularities in the following contracts/matters:

• Acquisition of the 1 064 Locomotives; four contracts with original equipment manufacturers (OEMs) valued at R54 billion; with outcomes involving civil recoveries, civil litigation and disciplinary referrals.
• Nedbank interest rate swap transactions in respect of the R12 billion club loan for the locomotives' deal; with outcomes involving referrals to regulatory bodies, a review application in the Special Tribunal, and mediation.
• The appointment and contracts awarded by Transnet with three transactional advisors  -- McKinsey, Trillian and Regiments -- and the interest rate swap transactions concluded with Nedbank; with outcomes involving civil litigation and settlement agreements

Phase 2 matters

• Contracts were awarded to Neotel (Pty) Ltd for the supply of CCTV Cameras at the ports to the value of R882 million, the master service agreement and other contracts, with outcomes involving civil litigation, NPA referrals, and disciplinary referrals.
• Software solutions contracts awarded to Systems Applications Products (South Africa) (Pty) Ltd (SAP).
• An information communication technology (ICT) contract awarded to T-Systems South Africa (Pty), Ltd and the involvement of Zestillor; with outcomes involving NPA referrals, disciplinary referrals, a civil referral and settlement negotiations.
• Zestillor contract ceded from T-Systems. The investigation was nearing conclusion, but T-Systems was no longer in South Africa and the SIU team was considering the legal avenues available to the SIU to evaluate the prospects of successful civil litigation and recoveries.
• Tandem cranes procured from ZPMC Engineering Africa.
• Cranes procured from Liebherr; with the outcomes of civil recovery and disciplinary referrals.

Additional Phase 3 matters

The SIU was investigating allegations of irregularities in respect of the following matters identified from the Report of the Judicial Commission of Inquiry into State Capture:

• Hatch Gobodo
• Combined Private Investigations
• TNA Media
• The Manganese Expansion Project
• Nkonki contract
• Delinquent director applications
• GNS/Abalozi contract
• Gama’s legal fees and Langa Attorney

SAA

There were seven investigations involved. These were:

1. SAA working capital – McKinsey/Regiments Capital. Outcomes: civil recovery, citing of involved parties in civil litigation and criminal referral.
2. Turnaround Strategy. Outcomes: civil recovery, citing of involved parties in civil litigation and criminal referral.
3. LSG Skychefs. Outcomes: Civil recovery and criminal referral under consideration.
4. Airbus acquisition and Pembroke transaction. Outcomes: Civil recovery under consideration, disciplinary referral and criminal referral under consideration.
5. Swissport – Ground Power Units. Outcomes: civil recovery, citing of involved parties in civil litigation process and criminal referral.
6. Aircraft Components Support Tender. Outcomes: potential civil recovery, citing of involved parties and potential criminal referrals.
7. Paint Tender. Outcomes: not enough evidence for civil recovery; involved parties would be cited in civil ligation process and a criminal referral.

Eskom

There were six investigations involved. These were:

1. Tegeta Brakfontein. Outcomes: civil litigation, no disciplinary action, director delinquency proceeds and no criminal referral.
2. Tegeta Optimum. Outcomes: civil litigation and director delinquency proceedings.
3. Tegeta Koornfontein. Outcomes: civil litigation and director delinquency proceedings.
4. ABB International. Outcomes: civil litigation and criminal referrals.
5. Impulse International. Outcomes: civil litigation and criminal referral.
6. SAP. Outcomes: civil litigation and criminal referral.

Denel

Phase 1 matters

There were six investigations involved in this phase. These were:

1. Steel fabrication of goods and steel fabrication of services -- the Hulls contract. Outcomes: civil recovery, disciplinary referrals and criminal referral.
2. The awarding of contract for the provision of legal services. Outcomes: civil recovery, involved parties would be cited in civil litigation, criminal referral and administrative action.
3. The awarding of pilot's bursaries -- Student 1. Outcome: civil recovery and criminal referral.
4. The awarding of pilot's bursaries -- Student 2. Outcome: civil recovery and criminal referral.
5. The awarding of pilot's bursaries -- Student 3. Outcome: criminal referral.
6. IT security assessment services. Outcomes: pending civil litigation, all parties involved would be cited in the civil litigation process and criminal evidence was under consideration.

Phase 2 matters

1. Steel fabrication of goods and steel fabrication of services -- 30 sub-contractors. Outcomes: no outcomes at this stage.
2. Steel fabrication of goods and steel fabrication of services -- the Chad Contract (irregular appointment of service provider to deliver the Sinotruk drive-train chassis). Outcomes: potential civil recovery, criminal referral and involved parties would be cited in civil ligation process, and criminal referral was under consideration.
3. Steel fabrication of goods and steel fabrication of services: the Chad Contract (irregular appointment of a service provider to manufacture Casspir vehicles). Outcomes: civil recovery, criminal referral under consideration and involved parties would be cited in civil litigation process.
4. Steel fabrication of goods and steel fabrication of services: the Chad Contract (irregular appointment of a technical advisor). Outcomes: civil recovery and all parties involved would be cited in the civil litigation process.

PRASA

There were three investigations involved. These were:

1. Procurement of Royal Security CC. Outcomes: due to lack of documents, SIU could not quantify PRASA’s losses, officials involved no longer worked at PRASA, and criminal referrals had been made.
2. Procurement of Forensic Investigation Services. Outcomes: no civil recovery, disciplinary referrals under consideration, and no criminal referral.
3. Procurement of Royal Security CC. Outcomes: no civil recovery, all officials involved no longer work at PRASA and no criminal referral.

Alexkor

There were three investigations involved. These were:

1. 2015 Contract. Outcomes: civil recovery, all parties involved would be cited in the civil litigation process and criminal referral.
2. 2016 Contract. Outcomes: civil recovery, involved parties would be cited in civil litigation process and criminal referral.
3. Quantification and valuation. Status: 90% of the investigation was concluded. There was ongoing support being rendered in respect of a civil litigation referral. The possible amount to be recovered was the 1.5% commission paid to SSI for rendering services, which was about R25.9 million. Quantification was ongoing.

Finalised investigation

Free State Department of Human Settlements

This involved the procurement of Diamond Hill Trading 71 – Blackhead Joint Venture to identify and remove asbestos from houses in the Free State. Outcomes: disciplinary referrals, NPA referrals and civil action.

(For the detailed presentation, see annexure)

NPA's progress in implementing Zondo Commission's recommendations

Adv Rodney de Kock, Deputy National Director: Public Prosecutions, NPA, introduced Adv Ouma Rabaji-Rasethaba, Deputy National Director of Public Prosecutions: Asset Forfeiture Unit (AFU), and Adv Andrea Johnson, Head: Investigating Directorate (ID), NPA, who would be assisting with the presentation.

He said there were overlaps between this presentation and the other two presentations, so the NPA would not repeat the points that had already been covered. It valued its partnerships with other critical law enforcement agencies, and they worked together as best as they could.

He reminded the Committee that each law enforcement agency had its own mandate, but the strengthening of collaboration and coordination was critical to tackling the complex work the agencies needed to do. The NPA had done a lot to strengthen the state’s ability to do forensic financial investigations, which was seen as a weakness. A lot had been done to strengthen the Financial Intelligence Centre (FIC) so that matters involving the illicit flow of funds could be addressed. The NPA worked closely with the FIC on many of these matters.

SIU referrals to the NPA

Adv De Kock said that in March 2019, the President had issued a proclamation creating an Investigating Directorate (ID) within the Office of the National Department of Public Prosecutions (NDPP) in terms of s7 of the NPA Act, largely in response to the allegations of widespread corruption at the State Capture Commission (SCC).

The initial Head of the ID was appointed in May 2019, and capacitation of the ID had begun in July 2019 primarily through the reassignment of prosecutors from within the NPA; the secondment of investigators from the South African Police Service (SAPS), IPID, the SA Revenue Service (SARS) and the SIU; and the placement on duty arrangements for DPCI investigators. Investigators and prosecutors were recruited, in addition to the NPA establishment, on contract for three years. The first cohort of 21 financial investigators came on board in January 2021. The current Investigating Director was appointed in March 2022.

Adv De Kock noted that the Portfolio Committee on Justice had a bill before them, which was the National Prosecuting Authority Amendment Bill. The purpose of this Bill was to make the ID a permanent entity in the NPA, which was a concern. The ID had been created through a proclamation from the President.

The purpose of the Amendment Bill was to make the ID permanent and expand its powers to appoint criminal investigators with police powers. This would mean the NPA would not have to rely on other agencies to do the work of the ID.

Adv Johnson said there were five matters under investigation. These were Transnet Nedbank loan swaps (contract value not yet quantified); Eskom and Transnet SAP contracts -- R545 million (Transnet) and R558 million (Eskom); Transnet Noetel Contracts (R834 million); Transnet Cutting Edge contracts (R84 million); and Denel (R229 million).

Matters before court, referred by the SIU, were the Eskom ABB impulse contracts (R1.58 billion), the Eskom ABB gratification (R549 million), and the Eskom Kusile Phola build project (R1.5 billion).

Progress on state capture matters

Adv Johnson said several institutional impediments were hindering the NPA's progress. These included:

• The non-permanence of the ID.
• The dependency of the ID on secondments of personnel from other law enforcement partners.
• Limited skilled and capable investigators and prosecutors, who were equal to the scale and scope of the investigations and prosecutions the ID was seized with.
• A shortage of specialised forensic accountants, auditors and financial investigators in the public sector.
• The inability to recruit and retain critical skilled and experienced personnel at sustainable remuneration rates.
• The lack of digital forensic and data analyst capabilities that were critical in cases where terabytes of data had to be analysed and processed

She listed the following reasons for investigations taking a long to complete:

• Criminal conduct characterised by a high degree of complex and sophisticated methods of committing and camouflaging the crimes.
• Investigations spanning multiple jurisdictions, requiring mutual legal assistance and extraditions that were both lengthy processes, and were outside of the ID’s control.
• The length of time that had passed since the crime was committed and the investigation commenced, such as witnesses/suspects that were no longer available and critical evidential material that institutions did not retain.
• Voluminous and data-intensive dockets run into multiple terabytes of information that require analysis and management, in light of onerous discovery requirements in criminal cases.

Specialised Commercial Crime Unit  (SCCU) progress on SIU matters

The SCCU listed its progress at the following entities:

• PRASA -- eight cases, of which two were in court, three were under investigation, and one had been finalised.
• Transnet -- three cases, which were under investigation.
• SABC -- one case, which was in court.
• SAA -- nine cases, of which one was in court and eight were under investigation.
• Department of Water and Sanitation -- nine cases, of which seven were under investigation and two had been finalised.
• Eskom -- five cases, of which one was in court, one was under investigation, and three had been finalised.

Cases in court dealt with by SCCU involved the North West Department of Transport and Safety and SA-Express, the Free State Department of Human Settlements, Prasa, the SABC and Eskom.

Cases finalised by SCCU were:

• Eskom case at the Palm Ridge Commercial Crimes Court;
• Eskom case at the Mbombela Magistrate’s Court;
• Eskom case at the Kriel ; and
• PRASA – Mthimkulu

SCCU matters declined to prosecute involved the Amatola Water Board – five referrals in the Eastern Cape -- and the Department of Water and Sanitation  --CIDB (Construction Industry Development Board)/ASCUL Construction.

Asset Forfeiture Unit progress on SIU referrals

Referrals by the SIU, including the anti-corruption task team (ACTT), had resulted in 56 confiscations/forfeitures to a value of R132 million. There were also 50 reservations valued at R1.8 billion, and recoveries worth R98 million.

(For the detailed presentation, see attached)

Adv De Kock emphasised the strength of how the NPA was working together. It had created project teams, so the next time the NPA appeared before the Committee, more progress would be demonstrated.

The Chairperson thanked the NPA, DPCI and SIU for their presentations. These had taken about three hours which was an indication of their extensive nature.

Discussion

Ms B van Minnen (DA) commented that before entering politics, she had been an attorney in the criminal sphere and therefore understood the system.

She had various concerns. The South African reality was that there were delays in the system and matters were seen to take five to six years. She understood that multiple agencies worked on these matters, and there were internal processes in terms of disciplinaries, and criminal and civil proceedings. However, there were cases where people were alleged to have committed serious crimes within organisations, but by the time the investigation happened, these people would no longer be employed at these organisations. Therefore, there were no disciplinary hearings.

She hoped there would be criminal proceedings, but this process took forever. There could also be civil proceedings against these people. However, the length of investigations had become one of the biggest stumbling blocks. For example, the Koko matter had been thrown out of court because it had been sitting for five years. It had been thrown out because of technicalities, and not its merits.

Ms Van Minnen said that in South Africa, it was said that “justice delayed was justice denied,” which was not as simple as that due to case law, and it seemed not to apply when the person was not charged. This was because justice needed to be swift.

She was concerned with the issues of court delays, court rolls, stalling by the defence and people needing to be extradited. Her concern was that in the reports, a large part of the problem was the amount of time it took to get investigations court-ready. What was being done to address this problem? What was the problem? Were the investigations being taken seriously?

She said a large amount of these investigations seemed to exist on paper, but there were no ramifications. It seemed as though one could join a national entity, do whatever one wanted without consequence, and then leave. This was something that needed to be stopped.

Mr A Lees (DA) said he had promised Lt Gen Lebeya he would not ask about a case that he had been asking about since 2017. It was clear that there was a huge resource shortage among the agencies. This shortage was not the fault of the agencies, and the agencies could share their views on what could be done about this shortage. The shortage was a political issue, as South Africa faced a financial crisis. Budgets were being cut, but these budgets should not be cut because the agencies were recovering funds that could be diverted back into the budget, and hopefully not be stolen again. He asked for confirmation that the agencies were not getting the resources needed to do their jobs.

Mr Lees said the presentations had taken three hours and addressed a fraction of the criminal activities in South Africa. It was mindboggling how much work needed to be done in South Africa to deal with criminality. He differed on the prioritisation of the cases. Both important and unimportant cases needed to be prioritised, but he understood that there were resource limitations.  

He was curious about the Investigating Directorate (ID) situation. It had been mentioned in the presentation that there were seconded employees who worked on these cases, and before these employees' time ended, the ID had tried to finalise the cases. However, these cases took so long that cases had changed hands often, which was a disaster in terms of getting convictions at the end of the process. He did not how the ID could deal with cases without making the employees permanent. The purpose of the ID was to deal with state capture, which he supposed was now finished. Was it still happening? He said this did not have to be answered.

He referred to a case that involved the former chairperson of this Committee. This person was highly regarded, but should not have been. The preservation order had been described as a small one, at R4.5 million, but this was a huge amount for a Member of Parliament. Mr Lees asked what had been preserved in the case of Mr Vincent Smith and the R4.5 million. Were the preservation orders backed by solid assets or cash in the bank? Were the preservation orders just orders, and did attachments still need to be made?

He said he would not go into detail on the issue of investigation delays, because this perhaps needed an intervention from the agencies, or an even bigger intervention.

The Chairperson said the big issues were the amount of time investigations were taking, and the classification of cases. Mr Lees had referred to the classification of cases based on importance, but this became problematic when it resulted in the exclusion of other cases. The process of throwing out a case was technical, and it was not this Committee’s intention to delve into technical matters. However, he wanted to know if agencies in certain situations rushed to get court judgments without concluding their investigations. This was because “justice delayed is justice denied” was a big matter of consideration, and it ate away at the credibility of the agencies. If the agencies were being pressured to take cases to the courts without consideration of the technical matters, this needed to be avoided, because it created the impression that the justice system was broken.

The Chairperson said the question about pressuring agencies to act before investigations were concluded properly had been asked about Eskom. The Committee had asked Lt Gen Lebeya about the bulk of evidence referred to in brackets, to which he had responded that more work needed to be done. The public would perhaps see a case, and expect the agencies to pounce and act on the matter quickly because a lot of money could be lost. These matters of investigation required a lot of work which the public did not understand.

The agencies needed to resist the pressures that tempted them to act without concluding investigations properly. In terms of comparison, the agencies could be led to believe that one institution was doing more than another, because institutions such as the SIU had powers in terms of civil litigation and referrals. The SIU referred cases to the NPA and the DPCI, and then the decision to prosecute or not was made. He asked if the decision to prosecute or not prosecute was a decision made by the institution to which the matter was referred, or if it was a collective decision made by all the institutions together.

The Chairperson recognised the difficulty of the number of state capture matters referred for further investigation that required a lot of work. These matters had been referred to various institutions to deal with, and the issue of the capacity of these institutions was critical. They said they had no capacity and relied on certain support to address matters. There needed to be a balance in terms of the capacity of institutions to handle the work referred to them. He asked if there were limitations regarding the time available to address matters.

He said Mr Lees had mentioned budget matters, which introduced another element in terms of the delays. It needed to be ensured that work related to these issues was being done. It was unfortunate while work was being done on some matters, other matters were being left behind.

The Chairperson said Mr Lees did not want to ask about the Steinhoff matter. There needed to be a balance between the recovery of huge amounts related to big companies, and the criminal element. There could not only be recoveries -- there needed to be criminal charges too. People could not keep indulging in criminal acts and running away. Victims of these crimes could not be the only ones to suffer. Justice was needed.

DPCI, SIU and NPA responses

DPCI

Lt Gen Lebeya responded to the question on the delays in the investigations. He said it did appear as though there were delays. However, a lot of work had been done -- there were just not enough officials to handle the volume of cases at hand. The DPCI had more than 19 000 cases, of which more than 11 000 had been placed on the court roll. These cases pertained to national priority offences. The nature of these cases was complex, and that was the reason for the delays. For example, with the VBS matter, there were 29 accused persons before the courts and the DPCI had not concluded it -- there were more than 1 000 statements involved.

The Durban Solid Waste matter that was referred to the DPCI regarding the attachment of the assets of former mayors, involved 2 786 counts, which meant there were more than 2 000 cases within one matter. More than 1 000 statements needed to be filed in terms of this matter. These were the reasons for the delays in the finalisation of cases. He provided another example involving a gang in the Western Cape, which included eight accused and more than 3 000 charges. The high volume of charges meant a lot of work needed to be done, including approaching witnesses -- some of which were reluctant and needed to be compelled -- and this required several investigators to ensure things moved along with some speed.

The delays were due to the complicated nature of the investigating work done. The DPCI was currently operating at 53% capacity. It was cooperating, but what was needed was additional resources so that more cases could be finalised.

Regarding the prioritisation and classification of cases, he said the DPCI wanted to deal with cases on a first come, first served basis, but there was an expectation that certain cases should be prioritised because people had questions and wanted answers.

The DPCI had criteria for prioritisation, which included the value and complex nature of the case, the individuals involved in the case, and the public interest regarding the case. It classified cases to a certain extent based on the amount of attention the cases required, compared to other cases. This could be seen with the matters stemming from the State Capture Commission, where their nature required prioritisation.

The Chairperson asked Lt Gen Lebeya to address a matter that the DPCI’s presentation had omitted, but needed to be addressed. This was the matter of the National Skills Fund. He asked the SIU to proceed with its responses while Lt Gen Lebeya looked at the National Skills Fund matter.

SIU

Adv Lekgetho said it had been indicated that the signed memorandum of understanding (MOU) with the DPCI, the NPA and the SAPS had assisted in enhancing the SIU’s response to matters. The MOU also ensured that there was clear collaboration. Progress has been demonstrated in terms of how matters are dealt with, especially with the SIU’s classification and prioritisation.

He said the SIU ensured each matter was allocated an investigator. There would never be a point where the SIU was satisfied with its resources. Resources were always needed and proclamations did not come with the resources, so the SIU had to look internally to deal with proclamations. They improvised by ensuring that all investigations were done through a project base where one could track the availability of staff so that new matters could be allocated to them. For example, if someone was waiting for a bank statement or something else, another task could be allocated to them. The project base could also be used for data analytical purposes to ensure that investigations were speeded up and red flags were identified to finalise matters in time.

He said the SIU was happy with how things were done and the issue regarding the timeline and the speeding up of matters.

DPCI

Lt Gen Lebeya returned to advise that the investigation regarding the National Skills Fund (NSF) was reflected in slide 37. The DPCI had already obtained 110 statements related to the complaints regarding the NSF. It did not go into great detail, but the DPCI was conducting an investigation into the case.

The Chairperson asked if the case was of the value of R2.5 billion.

Lt Gen Lebeya confirmed it was of the value of R2.5 billion.

The Chairperson asked if the investigation was still at the initial stage, and that the details of amounts were still unknown.

Maj Gen Makinyane indicated that the matter was of the value of R2.5 billion, and involved ten projects that were funded by the Fund. The investigation treated the case as one matter, but the matter could be split as it progressed.

The Chairperson asked the NPA to proceed with its responses.

NPA

Adv Johnson said where the collaboration between the DPCI and the National Police Commissioner had worked as the end of the secondment of employees had approached, was that the NPA had been able to engage in time with them both on the challenges that would come with removing the seconded employees. Both agencies had been kind enough to extend the secondment of the existing officials in the ID. The NPA was grateful for this, as it had avoided the disaster Mr Lees had spoken about.

Referring to the Koko matter, Adv Johnson said the case had been enrolled on 27 October 2022, and it had appeared again in February 2023. It was at this time that the NPA had indicated to the court that it had two outstanding reports -- the digital forensics report and the financial auditor’s report. The court matter was then postponed to September. The court had decided it would hold an inquiry because of the delays. The NPA had not been able to estimate correctly the amount needed to attend to the volume of work, and still had to work through National Treasury’s procurement process for a digital forensics expert and a financial auditor for both reports. This was how the matter had been struck off the roll.

The NPA was meeting the following day to discuss how to "get its ducks in a row" so that the matter could be re-enrolled. The NPA would be attending to the Koko matter as required. The ID did not rush to enrol cases, but there was mindfulness about the fact that the public wanted justice. In terms of the consideration of matters, there was no pressure to enrol. What guided the decision to enrol was looking at cases that involved individuals who had done the most harm to South Africa’s constitutional democracy. She said this was how the matters about state capture were dealt with.

Adv Rabaji-Rasethaba addressed Mr Lees's question on whether preservation orders were backed by the attachment of actual assets, or just a piece of paper. She said the court orders were related to the National Lottery, and the NPA had a lot of property attached. This property included property in Midstream Estate, farms in Limpopo, houses in Bryanston, two Ocean Basket franchises, and cars such as a BMW 420i, BMW 7 Series and a Porsche. A curator who did a value assessment had been appointed, so the NPA, most of the time, was not far off in terms of the value of the preservation orders.

Adv Rabaji-Rasethaba said the asbestos matter valued at R300 million had been referred by the SIU, and the NPA had properties in Bryanston, Cape Town and Durban. It had been able to get confirmation of the order on the return day for the R300 million. This had been done in consultation with the senior counsel representing the accused. The orders were backed by cash and actual assets.

Regarding Optimum Coal Mine, the allocation to export coal at Richard’s Bay had been valued by many evaluators. The coal contracts were valued using an expert from London. This was the reason for the R1.8 billion and R2.8 billion preservation orders related to Optimum Coal Mine.

Concerning the case of Mr Vincent Smith, and what constituted the R4.5 million preservation order, she asked that she be allowed to submit a written response, and attach the court order.

Mr Lees asked who had the keys to the attached Porsche.

Adv Rabaji-Rasethaba responded that the curator had the keys to the Porsche.

The Chairperson asked if Mr Lees had closing comments.

Mr Lees had a question for the SIU. He said the Ground Power Units (GPUs) were sold at a low value by South African Airways (SAA), and then repurchased by the SAA. He asked if the SIU had determined that the SAA sale did not follow supply chain management (SCM) processes. He was asking this, because every time the question of the sale of SAA was raised, the response was that it was not part of the Public Finance Management Act (PFMA), and there was nothing to guide this sale. He argued that there was surely something to guide the sale of SAA shares if there was something to guide the sale of the equipment.

Adv Lekgetho said he could look into the policies guiding the sale of SAA for the Committee. He knew that each organisation had policies in terms of the procedure for the disposal of assets. The matter of disposing of assets also depended on the type of assets being disposed of. One could not just resell assets, and therefore SAA had not followed due process in the sale of the GPUs. Even when one appoints an auctioneer to sell/dispose of assets, a process for the appointment of the auctioneer needed to be followed.

The Chairperson asked if Adv De Kock had anything to say.

Adv De Kock said he wanted to speak about the Steinhoff matter, because the Committee had raised it. It was being prioritised and it was at an advanced preparation stage. There were sensitive discussions with foreign jurisdictions that the NPA would share with the Committee soon, and it would demonstrate that some action was being taken on this case. He emphasised that Steinhoff was a priority for both the NPA and the DPCI. The Committee had made the point that some cases tended to fall off the radar when there were other new cases, but this was not the case with Steinhoff.

The prioritisation of cases did not mean one case was more important than another. All cases deserved attention, but the reality was that the court rolls were congested and there was a limitation of resources. The agencies did their best to attend to all matters. However, they needed to weigh up all the matters and then prioritise. When prioritising, matters of public interest and the impact on the country’s democracy needed to be considered first. Despite all the challenges, the NPA wanted to build public confidence in its system. The cases needed to assist with building public confidence and demonstrate that matters were being attended to. The value involved also needed to be considered when prioritising cases. This was critical.

He said the decision to prosecute or not to prosecute was made by both the investigator and prosecutor. Decisions to prosecute being made through collaboration were made in the majority of cases. The mandate of the prosecution was that the prosecutor ultimately made the decision, so where there was disagreement, the final decision was with the prosecutors.

Adve De Kock addressed the Koko case, and said it was a complex and serious matter. The NPA disagreed with the magistrate's ruling, and the state argued against it because the law made remedies which included the postponement of a matter until the required work was concluded. The court needed to have considered the seriousness, complexity and public interest in the matter. It was the NPA’s view that the matter could have been dealt with differently. It would ensure that this matter was dealt with appropriately, and support would be given to the ID.

Responding to the Chairperson’s question on the impact of cases being struck off the roll, he said that the NPA did not rush cases. However, certain challenges arose in any serious and complex investigation, even when a case was on the court roll. The judiciary had the final determination and had to weigh up all the different rights. The NPA’s view was that the ruling on the Koko matter was drastic, and there were other available remedies.

Closing comments

Lt Gen Lebeya said the DPCI was committed to its work. This work had been demonstrated in the media, as court processes and arrests were being executed all the time. The DPCI had dealt with criminal investigations and arrests and, since 1996, the proceeds of crime. They had noted the Committee’s comments and would continue to work with other agencies to improve how matters were dealt with.

The Chairperson commended the work the agencies had done in their investigations, which had evoked civil and criminal litigation, recoveries and other relevant remedies. These remedies had been enabled through the observance of the law, and the possibilities for recoveries were also anchored in law. Ensuring recovery could further benefit the agencies in terms of finances and enhance their roles. The SIU, DPCI and NPA faced challenges, and working together would strengthen their abilities.

The Chairperson said the agencies had presented their matters and the relevant action taken, as the Committee requested. It would continue to interact with these organisations because where money was involved, it sharpened its focus and looked into how best to take action and recover assets. In a constitutional state, both victims and perpetrators have rights, so when dealing with these actions, the Committee was happy to see there were consequential actions. He thanked the SIU, NPA and DPCI for their collaboration, and said the Committee looked forward to seeing the finalisation of some of these matters.

The meeting was adjourned.