Tim Modise asks law-enforcers: where are we on arresting corruption in South Africa?

Tim Modise, a veteran broadcaster, put your questions to the country’s law-enforcers at a BizNews Thursday Noontime webinar on the subject of arresting the corruption slide that is threatening to pull the carpet out from under South Africa. Modise’s guests were the head of the country’s great hope in the fight against corruption, Special Investigating Unit head Advocate Andy Mothibi, Sipho Ngwema, the spokesperson of the National Prosecuting Authority, and Advocate Selby Makgotho of the Special Tribunal. In these excerpts, the focus is on procedural red-tape and how this often makes the legal process ‘excruciatingly slow’. – Nadya Swart

Tim Modise: Thank you, everybody, for joining us for this noon webinar today here on BizNews. And as we have promised, we are going to look at the promise to arrest corruption in South Africa. And this was sparked by the President announcing recently that he is going to task several agencies to investigate Covid-related corruption. And he said that the lead agency in this regard will be the Special Investigating Unit. 

So, because there are several such units at play in South Africa – responsible for dealing with crime and corruption – I decided to invite the head of the Special Investigating Unit, Andy Mothibi, who is with us, as well as Sipho Ngwema of the National Prosecuting Authority, so that he can explain where they fit in in the whole story, and Advocate Selby Makgotho of the Special Tribunal to tell us about their role in this regard. 

And we have this conversation with the latest news being that the SIU, together with Eskom, are actually pursuing a civil matter against several Eskom executives for more than R3.2bn. And one wonders how the whole thing fits in here. I would have thought that this matter would have been taken to the Special Tribunal, but it appears it’s going to be taken to the court. 

So, without further ado, gentlemen, welcome. A pleasure to have you on this webinar. And I start with you, Advocate Mothibi. Please tell me a bit more about what’s going on between yourselves and Eskom regarding the current matter against the 12 executives of Eskom. 

Andy Mothibi: Thank you, Mr Modise, for the opportunity to engage with the audience in the South African public. Our investigation at Eskom started back in 2018. We’ve got a specific proclamation signed by the President that enabled us to do that presentation. That investigation has been very thorough, and in the process – let me just make this very clear – we worked towards producing a report (at the end of the investigation) to the President. 

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But since we started, our methodology works as follows: that when we immediately start the investigation and we then have sufficient evidence (in our view) that necessitates – for anyone at Eskom – to be charged with misconduct, then that evidence has to be taken to the Eskom Board and the Accounting Authority and the CEO – so that they can take action against whoever is involved. And we have been doing that. 

We’ve got a number of executives that have been charged with misconduct based on our referrals. Some have resigned in the face of those referrals. And then, we’ve got another part of our outcomes that they face when an SIU investigation reveals that there is a criminal act that has been committed by anyone, whether it’s a service provider dealing with Eskom or an Eskom employee. Then our law provides that that evidence has to be referred to the National Prosecuting Authority. 

So in this case, we’ve got various referrals that we have made, and I know that our colleagues at NPA are geared up to deal with that. We’ve been engaging with them on an ongoing basis, and I’m sure Mr Ngwema will attest to that later on when he comes onto the floor. 

The question that you have asked now is: now this is another part, which is the civil litigation part. But the civil litigation part also says if the SIU has sufficient evidence to recover: the SIU is mandated by law to act on behalf of a state  institution in its own name. Obviously, we – at all times – act together with the state institution involved. In this case, we’re acting with Eskom.

Tim Modise: And when is the matter going to appear before the courts? Do you know – what is the date? 

Andy Mothibi: Well, we don’t have the date at the moment. It’s still at the stage where we have now issued summonses. The next step is that the parties will probably have received summonses. The sheriff has to serve them with those seven summonses and the legal process kicks off. The civil litigation involves, you know, exchange of papers and then the parties will meet. In some instances, it involves case management by the court so that it is ready when it goes for the hearing. 

So we will follow that legal process, ensure that the parties understand what the issues are (what is it that they need to answer on), and, as I said, the judge will probably also be involved in terms of assisting, because more often we find that if the judges are not involved and they don’t do case management – and this is what they do avoid those so called interlocutory actions. 

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By that I mean: interlocutory in simple English is that you raise issues in the process and those issues end up delaying the civil litigation process. So, including the judges to do case management is to avoid exactly that – so that when the matter goes to court, it is ready for the hearing. And I’m sure my colleague, Mr Makgotho, will attest to that later on. 

You asked the question: why is this matter in the high court? We’ve got various matters in the high court, which we have tabled to do similar recoveries. Of course we are really delighted to have the Special Tribunal in place. In this case, between ourselves and Eskom and the legal representatives involved, there’s been a decision – based on some of the considerations – to take this matter to the high court. 

Tim Modise: Let me go to Sipho Ngwema of the NPA, because you are the ones who are under the spotlight here, Sipho. So many cases. How many actually do you have – corruption-related cases that are before you that you have to action? 

One that stands out, anyway, that South Africans talk about all the time is the Estina matter. We heard from Advocate Hermione Cronje late last year, saying that you were ready with that case, it was ready for prosecution. And that was last year, November, and nothing has happened until now – and people wonder whether it’s still on the agenda or if it’s been taken off the agenda. 

Sipho Ngwema: Indeed. It is still on the agenda – and many other cases. And one of the complications – and my colleagues will tell you – with investigations, is that sometimes you believe that you’re almost done, and then you get one statement that then leads you to have to follow up on many other things. And sometimes you have to miss your deadlines that we would’ve hoped you are going to adhere to. 

The other thing that has to do with Estina, in particular, is that it involves other countries – working with other countries – and some of them are not as responsive as the others. Because – you must remember – the money flows into bank accounts outside South Africa, and some of the countries are more responsive than the others, as I’ve said. 

And then Covid-19 came in, which then disrupted things much further. But that case is on pause.

We are continuing, but we’re just trying to tie up the loose ends, because – before you go to court – you must make sure that you have a formidable case.

Tim Modise: One of the things that makes people impatient about these matters is that they’ve been before the NPA for quite some time, particularly the case that I’ve mentioned. But there could be other corruption-related cases that you are working on that are likely to be taken to the courts sometime soon. 

If you can give an indication of how soon you think these cases will appear before the courts, because you know: year after year (and the people will sympathise that the NPA was hollowed out at one point), but, you know, it feels like you’re kicking the can down the road, saying: ‘Well, arrests are imminent! Yes, please give us time’. How much time? When? 

Sipho Ngwema: You see, that’s the mistake that we’ve made in the past: to pronounce on when we are going to take action.

And one of the things that are very important in investigation is the element of surprise, and we shouldn’t fall into the trap of giving deadlines – because we know those are going to create good headlines, but they put us under the pressure and these things keep on changing. 

Investigations can be very slow. But all I can tell you, Bra Tim, is that there’s good progress and we are going to be able to take action and that action is going to be seen. 

Tim Modise: Advocate Makgotho, I spoke to you recently about what the Special Tribunal is all about, and it was established ostensibly to fast track the civil litigation matters coming from the SIU. 

And I know there are several matters that are before you, but people haven’t really heard of any matters (I think there’s one recently that had to do with Mediosa in the North West), but people wonder: how many cases are going to be heard by yourselves soon? And you’ve been given the task of recovering up to R15bn – what progress have you made in that regard? 

Advocate Selby Makgotho: Thank you, Mr Modise. In essence, the Special Tribunal started working the 1st of October 2019, and to date – we have received almost 25 cases that came from the investigations arising from the Special Investigative Unit. And I can indicate that most of those cases have been in existence for quite some time. 

But then, we are at a point where we have granted orders in some of them, and the most recent one – beyond the Mediosa – involved executives at Transnet. We just recently granted a preservation order wherein we intend to recruit almost 18mn that one of the executives at Transnet had misappropriated based on the court papers. 

Of the 25, we have quite a number of them – I think 10 or so – that are going on unopposed. We are going to be granting default judgments by the end of this month. And again, we have got the North West scholar patrol cases involving the Department of Community Safety and Transport in the province of North West. What is actually at issue here is that the parties, in particular, the respondents, did not oppose based on the days that they were supposed to. Hence, we are going for a default judgment. 

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But in case of matters that are being defended or that are being opposed, they have been referred to the different judges for case management and it becomes almost impossible at this point in time to say that those that have gone for case management will be ready by such and such a date. 

However, I can indicate that almost 18 matters – involving quite a number of stakeholders from different sectors of the public service – have been referred for case management. 

Tim Modise: Linda Hawesville wants to know why preservation orders are not applied for as soon as evidence of corruption is uncovered? For instance, in the Covid-19 matter, we read reports about certain amounts of money already being paid, and some of the older cases, we know how much money has changed hands and those matters have been ventilated extensively in the public domain. 

So, once you come across such information, why don’t you institute or apply for preservation orders right away as soon as these matters come to your attention?

Andy Mothibi: That is a very important question. We are going to be doing exactly that. And when the proclamation was announced, we’ve got, you know, a working method based on the memorandum of understanding that we have with the NPA and the NPA would include the asset forfeiture unit, so that we could also – from the onset – involve them. 

We’ve got now – thanks to our colleagues at NPA who have provided us herewith – names of advocates in all the provinces that are in the asset forfeiture unit, so that our teams in all the provinces can work with them, collaborate with them. When we pick up that there are those wrong doings, and anyone who is involved – whether it’s public sector officials or private sector companies – where there’s a legal basis to do a freezing of assets, we will do so. 

We are working together with NPA and asset forfeiture on that, but in terms of our legislation and with the Special Tribunal now in place, the SIU also bought the legal mandate to be able to do that. But we are collaborating with our colleagues at the asset forfeiture, so that we are able to do this formidably.

Tim Modise: Jackie wants to know if you can give a ballpark sense of timing? When you say soon – do you mean six months? Do you mean three months? Do you mean three years? 

Sipho Ngwema: Look, there are cases where we have made arrests already. And I must say: people should not look beyond the end of the year, should not look beyond many months for us to be able to act. With the evidence that we have, it seems as though we may be able to take action sooner. 

And unfortunately, I will not be able to give dates, because also: you must know that the criminals are also listening and there must be an element of surprise when we act.

But South Africans will hear from us, will hear from the courts – because the investigations are proceeding very well. And we have identified that in many cases there are certain suspects and we will act on those suspects. 

We are working very well together with the Hawks, we are working very well together with all of the other colleagues, as Advocate Mothibi has alluded to earlier – and there will be action and action is going to be taken. 

We want to speak through actions. We don’t want to create hype in headlines, but we want to make sure that when we take action – we are able to overcome and we’re able to issue indictments because that investigation at that point would be done. 

Tim Modise: And Sipho, Alex Están wants to know what the progress is in getting the Guptas back to South Africa? 

Sipho Ngwema: Thank you, Bra Tim. There’s really very different reactions from different governments, so we are interacting with various governments to make sure that what has to be done from a legal point of view is done. So, we are interacting with them. It’s not as easy as we thought. Sometimes the process is excruciatingly slow, but we are working. 

We are making it so that what has to happen in South Africa – that people that have to be extradited back into the country – that those things happen. So we are interacting with the governments to make sure that they assist us. 

So we are at the mercy of some of the governments in terms of assisting us to get whatever suspects that we are looking for – with regards to various cases. So, we are working on it and we are trying our best, but as people can understand – it’s not up to us. It’s up to the other governments on the other side.

Tim Modise: And are you following all the possible prosecutions and asset recoveries flowing from the Zondo Commission? 

Sipho Ngwema: There’s no doubt about that. That’s why we are very excited about the regulations that have been made, because now we are going to have access – and some of the difficulties that we had have been resolved by the proclamation that has been made. 

So, we are following the Zondo Commission, we have a team that is focusing on the developments there. But parallel to that, we are still collecting investigations, as Mothibi mentioned. Eskom: we have made arrests in terms of other leads in Eskom. We’re continuing with other leads at Eskom. So, there’s still going to be action with regards to those investigations. 

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At the appropriate time – we’ll make the announcements. At the appropriate time – we’ll take the action. South Africans should bear with us. They must understand that we have had issues over the past 10 years or more, and we are trying to deal with those issues. And some of those issues have affected the quality of our work. 

So we are trying to improve the quality of our work, so that by the time we take action, by the time we make an announcement – we know that the quality of our cases will be able to stand the test of criminal prosecution.

Tim Modise: Now, I come to you Advocate Makgotho – are there particular matters that you think should be highlighted before we come to the end of this broadcast? 

What is it that is on the agenda of the Special Tribunal that you think will assist to address this concern on the members of the public, including the people attending this webinar, that the agencies are not doing enough to arrest corruption? 

Advocate Selby Makgotho: One of the reasons for the establishment of the Special Tribunal is precisely to look into these matters and to provide expeditious litigation. We are only in existence for three years. So within these three years – we need to move faster, but yet without compromising the rule of natural justice. 

In brief, we do have matters. I think just last week, or this week, we had a letter that came, we issued summons, it involved the Department of Water Affairs and Sanitation and the court papers, again, we are looking at an amount of R450mn. So, it’s one of the cases that I think will quickly be coming in. 

You mentioned earlier the issue of Eskom and before the Special Tribunal we have got the matter of Eskom vis a vis the ABB – an international company – and we are looking into recovering something like R2.2bn. So these matters are high on our tray, and we do believe that within the very little space of time that we have to execute and discharge our obligations – we will address some of these matters. 

There are quite a number of matters, but because of time – I am not able to go through them one by one. There’s no order as yet. So, we are not able to necessarily pin them down. 

Tim Modise: Why should we have confidence that the NPA will show that it is different now under the current Chief Advocate Batohi? Tell us. 

Sipho Ngwema: Bra Tim, the public must judge us by our actions. So we are going to take action. We understand that the public is frustrated, we understand them fully.   

Tim Modise: Advocate Mothibi, being given additional responsibility of investigating Covid-19, one wonders if you will be able to really do your work. Why should we trust and believe that the SIU will deliver? Very briefly, thank you. 

Andy Mothibi: OK, briefly, on the number of cases that have been referred to NPA, as I said earlier – those are the matters we report on, and questions were asked at the time by the public – having read our annual report, and the number and the time was indicated. 

But we have since passed that stage where we’ve really made sure that our memorandum of understanding – between ourselves and NPA – indicates what has to be done, who needs to do what.

And I am satisfied as I sit here that their work is underway to see those matters being attended to. 

Tim Modise: Thank you, gentlemen, for having been panellists on this very important discussion. I appreciate your time. Thank you again. Until next time. Thank you very much. 

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