NPA suggests SIU misleading in its case referrals

National Prosecuting Authority (NPA) head Shamila Batohi and her team on Tuesday suggested that the law enforcement fusion centre set up to deal with high level public and private corruption was not working as seamlessly as President Cyril Ramaphosa made it seem during his State of the Nation address last week.

Batohi also told parliament’s standing committee on public accounts (Scopa) that although the NPA and the Special Investigating Unit (SIU) needed to draw from each other’s strengths and she respected their different legal mandates, cases referred to the prosecuting authority by the latter were only a portion of the work it would be prioritising in coming months.

“We have decided the top priority for the next six months will be focusing on corruption,” she said. “I’m hoping that colleagues in our committee would have noticed that wheels of justice are beginning to turn. We are beginning to move slightly faster.”

Tuesday’s parliamentary hearing comes after the presidency last month released the SIU’s consolidated report into Covid-19 procurement corruption, which showed that the NPA had failed to deal with all but one of the 386 criminal referrals stemming from the R7.8-billion graft unearthed by the unit.

The NPA’s second in command, Rodney de Kock, said there were “challenges” in the fusion centre model and that it “doesn’t work as effectively sometimes as we would like it to”.

“[This is] because, once again, we are dealing with human beings. Human beings don’t always cooperate with each other as they should, particularly in the law enforcement space because we are dealing with sensitive information … and often people have difficulty sharing information at an early stage for obvious reasons because they want to safeguard the information,” he said.

Batohi told Scopa that there needed to be better coordination, effective alignment and a joint sense of urgency in the prosecution of corruption cases. She and her team outlined to the committee what seemed to be frustration about cases handed over by the SIU. She said that although the NPA was the leading player in the national effort to deal with damaging crimes, the authority was only as strong as its weakest link. 

“While internal competition can be healthy, we need to ensure that we are all pulling in the same direction in order to achieve the shared goals to make accountability a norm and not an exception,” Batohi said, adding that the different law enforcement agencies should not allow a negative narrative to be perpetuated in the media that pitted them against each other.

The NPA said there needed to be legislative changes to allow for law enforcement agencies to work together so that SIU cases would be sent to the Directorate for Priority Crime Investigation (DPCI, known as the Hawks) rather than the prosecuting authority.

Batohi said although the SIU was mandated to make referrals to the NPA, many of its cases needed further investigation to justify reasonable doubt. She said the SIU was almost using the NPA as a post box for its cases to be sent to the Hawks.

The NPA said there was “misalignment with what the SIU may find and what a proper investigation may find”, and that the authority would prefer a system where the Hawks conducted a parallel investigation with the SIU, which would be incorporated into the fusion centre. 

“Most of the matters referred to the NPA creates the impression that they are ready for prosecutions and that the NPA must now take a decision to prosecute but that is not the case,” Batohi said.

“In as much as the work of the SIU is very important but, in terms of the length between the work that they did and the criminal investigations that must follow, it’s really important. What we do as NPA, we forward these matters with the DPCI to investigate.” 

She said resources had been migrated to the Investigative Directorate arm of the NPA to deal with cases related to the state capture commission.

The SIU report released by the presidency last month showed that the unit had retrieved more than R34.2-million in assets and cash; was chasing a R551.5-million in potential cash and assets; had prevented losses amounting to more than R114.2-million and set aside irregular contracts worth more than R170.4-million. 

The SIU is still investigating 476 service providers linked to 964 contracts valued at more than R961.6-million, the outcomes of which, according to the presidency, will be provided in a supplementary report submitted to Ramaphosa at the end of June.

On Tuesday, De Kock said the NPA needed to be involved much earlier in the investigative process of the SIU to avoid investigations that could not stand trial. 

The NPA has declined to prosecute 253 matters referred to it by the SIU, with 41 cases on the court roll. Thirteen cases are sitting with the Asset Forfeiture Unit, De Kock said. As of December, 821 corruption cases are under prosecution. 

“The NPA is achieving a 90% conviction rate in relation to commercial work and corruption work, which shows the effectiveness of our approach. Although we have challenges, what it does demonstrate is the quality of the work we are able to bring to our courts,” De Kock said.

SIU head Andy Mothibi appeared to take aim at Batohi’s comments that the SIU accounted for only a fraction of the NPA’s work, saying he believed that small as the fraction was, if dealt with appropriately and speedily it would have a huge effect.

“Our investigations have been focused on ensuring we uncover corruption and related offences,” Mothibi said at the Scopa meeting.

“When we have done that, section 4 (1) d [of the Special Investigating Unit and Special Tribunals Act] kicks in which says when SIU finds evidence which points to commission of an offence … at that stage there will be what is called prima facie case which should be subjected to the prosecutorial phase.”

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Lizeka Tandwa
Lizeka Tandwa
Lizeka Tandwa is a political journalist with a keen interest in local government.

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