The bill proposing the establishment of the Investigative Directorate as a permanent structure in the National Prosecution Authority (NPA), provides for the appointment of a retired judge to deal with serious complaints made against investigators.
This provision is a mechanism of safeguards against abuse by the investigators and will be similar to the appointment of retired judges dealing with complaints against members of the SANDF and the Hawks.
The NPA Amendment Bill, introduced by Justice and Correctional Services Minister Ronald Lamola to Parliament last week, provides for appointment of a retired judge to investigate complaints or any alleged improper conduct on the body to be called the Investigative Directorate Against Corruption.
“The performance of the functions provided for in respect of the retired judge does not derogate from the powers of the SAPS or Directorate of Priority Crime to investigate any criminal conduct in respect of persons referred to in section 7(4)(a).
“The retired judge shall not investigate complaints about intelligence matters falling under the jurisdiction of the inspector-general of intelligence,” reads the bill.
According to the bill, any person may provide evidence of serious or unlawful infringement by the directorate’s investigators.
The evidence could be improper influence over, interference in or obstruction of the exercise of powers, duties and functions by the investigators.
“The retired judge may, upon receipt of a complaint investigate such a complaint or refer it to be dealt with by, among others, the national commissioner of police, the relevant director, the national director or inspector-general of intelligence.
“The retired judge shall report the outcome of any investigation undertaken by him or her or any referral to the minister.”
The bill stated that the judge will also report to Parliament on the performance of his or her duties annually, while the minister the Investigative Directorate against Corruption falls under should ensure that the retired judge has sufficient personnel and resources to fulfil his or her functions.
Lamola said the bill was a significant step towards enhancing the NPA’s independence and ability to prosecute high-level crimes.
“It creates a specialised entity within the NPA, staffed with trained individuals who enjoy the requisite level of independence, resources and security of tenure to tackle corruption head-on,” he said.
The ID, which was set up in 2019 for a period of five years, deals with serious, high-profile or complex corruption cases and offences arising from the State Capture Commission.
It also investigates corruption-related crimes uncovered by commissions of the South African Revenue Service and Public Investment Corporation.
In October 2022, President Cyril Ramaphosa said in his implementation plan to the State Capture Commission report that the ID would be established as a permanent entity within the NPA as part of efforts to further strengthen the anti-corruption capabilities.
Chief Justice Raymond Zondo had recommended in his report into state capture the establishment of an Independent Public Procurement Anti-Corruption Agency and a Permanent Anti-Corruption Commission.
Lamola said adopting a prosecution-led investigation model was the most effective way to prosecute crimes like corruption as demonstrated by international best practices.
The bill states that the director will be empowered to appoint investigators with knowledge and relevant experience of criminal or forensic financial investigation or any other experience.
Those appointed as investigators would undergo vetting, which would be conducted at regular intervals as the national director may determine.
“If the certificate referred to in subsection (2) is withdrawn, the investigator concerned shall be unfit to continue to hold such office and the national director must discharge him or her from the Investigative Directorate.”
The Investigative Directorate has enrolled 34 matters, with 203 accused, in the last four years.
During the 2022-23 financial year, it enrolled 18 new matters and authorised 13 new investigations, totalling 97 matters authorised over the previous four years.
The directorate has also contributed significantly to the recovery of R2.5 billion, which was paid into the Criminal Asset Recovery Account.