Count them: Special Investigating Unit head Andy Mothibi. (Paul Botes)
Civil servants and state-owned entity (SOE) officials implicated in state capture and singled out for punitive action by the Zondo commission have resigned in numbers to avoid prosecution and civil action.
Special Investigating Unit (SIU) head Andy Mothibi told parliament’s justice and constitutional development portfolio committee on Tuesday that the unit would “not leave it here” but would continue to pursue those implicated, despite the resignations.
“The phenomenon of officials leaving in the face of investigation is really, really problematic,” Mothibi told MPs in response to questions about progress by the SIU and the department of justice in implementing the recommendations of the state capture commission chaired by Chief Justice Raymond Zondo.
The SIU presentation dealt with SOEs including Transnet, Denel, Eskom, the Passenger Rail Agency of South Africa (Prasa), SAA and Alexkor.
In the case of the R3.7 billion Eskom tender irregularly awarded to Tegeta, a company linked to the Gupta brothers’ network, the SIU said it had instituted civil proceedings to recover the losses.
Delinquency proceedings were being instituted against a number of former board members, but staff members, like the board members, had left during investigations against them.
“No disciplinary action referrals could be made because all the implicated officials have left the employment of Eskom and are not employed in the public service,” the SIU said.
Similar situations had arisen in SAA, Prasa, Denel and Alexkor.
Mothibi — and MPs — said it would be necessary to set up a database of all officials who had resigned in the face of investigation to keep track of their movements so that they could be targeted for civil action.
“We will reach out to the presidency and the DPSA [department of public service and administration] for an update on the database of impacted officials,” Mothibi said.
“Our preference is that this data base should cut across the public service and the public sector so that it covers departments, state-owned entities and municipalities as we are seeing the phenomenon across the public sector.”
At the same time, delinquency proceedings were brought against directors of state-owned entities implicated by the Zondo commission, while the SIU was getting ready to proceed in court against one of the major banks that had created “unreasonable delays” in dealing with an outstanding matter at Transnet.
“We are at the stage no where we have prepared papers to go to the special tribunal and the bank involved has come and raised lots of questions in the process. That, in my view, is tantamount to unreasonable delay,” Mothibi said.
“They really are delaying to be held to account. We will not leave it. We will not leave it there. Big companies and directors have to be held to account.”
Assets were being frozen to prevent them from being sold off by those who the SIU was investigating, while criminal referrals were also being made to the National Prosecuting Authority (NPA) and the Directorate for Priority Crime Investigation (the Hawks) for criminal investigation.
In his final report, Zondo also made a number of recommendations that required action from the justice department, including referrals for action to regulatory bodies against lawyers and other professionals who assisted in looting state coffers.
Kalay Pillay, deputy director general from the justice department, said it had made six referrals to the Legal Practice Council for action against practitioners identified by the Zondo commission.
Of these, two matters had been finalised with no evidence of misconduct and the cases dismissed; two were ongoing and two were facing review applications brought by the legal practitioners against whom findings had been made.
With regard to recommendations for an inquiry into Prasa, the SIU would broaden the scope of its proclamation into the entity to include evidence before Zondo.
An additional proclamation would be promulgated, but the SIU was still waiting for a letter of recommendation from the transport minister so that the process could be completed.
Additional resources would be made available for the Prasa and other SOE investigations Pillay said.
The justice department had also carried out research around recommendations by Zondo that abuse of power be made a statutory offence, and that sanction be created for constitutional and political malpractice.
Initial reports were under consideration, with final proposals on both set to be delivered by the middle of December.
Pillay said research had been completed on the development of an anti-corruption architecture for South Africa, another of Zondo’s recommendations, and discussions would take place with stakeholders about draft legislation under consideration.
Legislation to make the NPA’s Investigative Directorate a permanent agency was before parliament, while amendments to the appointment of the national director of public prosecutions were now being dealt with as part of broader review of head of entities, which would require constitutional amendments.
Pillay said the legislation on the failure to prevent bribery would be dealt with in amendments contained in the Judicial Matters Amendment Bill, which was before parliament.
A discussion document on improving protection for whistleblowers had been drafted in June and had been sent to various organisations, including the Public Service Commission and civil society bodies, for comment.