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Accountability for corruption
The role of the Special Investigating Unit
David Bruce
Before March 2017, when the new investigating directorate on serious, high-profile or
complex corruption was established in the National Prosecuting Authority, the Special
Investigating Unit (SIU) was South Africa’s only dedicated anti-corruption agency. But despite
the major role it plays in investigating corruption, there has been little analysis or debate
about it. This report analyses the SIU, focusing on how to strengthen the role of the unit in
addressing corruption.
SOUTHERN AFRICA REPORT 28 | OCTOBER 2019
Key findings
The Special Investigating Unit (SIU) is a The requirement that investigations may be
dedicated anti-corruption agency focusing initiated only by presidential proclamation
on the recovery of state resources that have aren’t aligned with provisions of a new act
been misappropriated. It isn’t a criminal that authorises the Auditor-General to refer
justice agency. matters to a public body for investigation.
The SIU may be the ideal body for many of
The SIU doesn’t meet the criteria for an
these investigations to be referred to.
independent anti-corruption agency. It is
created by presidential proclamation. Its SIU investigations generate evidence of
investigations may be initiated only on the disciplinary violations and criminal offences
basis of presidential proclamations. and these matters are often referred to
government departments and the National
Current provisions governing the Prosecuting Authority (NPA) for further
appointment of the SIU head by the action. The SIU doesn’t have information on
president doesn’t ensure that the most whether cases it refers lead to disciplinary
suitable candidates are appointed. action or criminal convictions.
The resuscitation of the Special Tribunal, The NPA generally refers SIU cases
approved by President Cyril Ramaphosa in back to the Directorate for Priority Crime
February 2019, could dramatically enhance Investigation (Hawks). This raises questions
the effectiveness of the SIU in recovering about duplication of investigations and the
state resources. efficient use of state resources.
Recommendations
The SIU Act should be reviewed and amended. agencies including cases referred from one
Some of the suggested amendments are: agency to another.
• Establish the SIU as a single and National and provincial government
stable entity. department reports on disciplinary cases
• Enable the Auditor-General to refer should indicate the number of cases referred
matters for further investigation directly to them by the SIU, and other bodies, and
to the SIU. action should be taken in response to these.
• Strengthen provisions for appointing the
SIU annual reports should provide updated
head of the SIU
information for all cases referred for criminal
The SIU Act should require public bodies or disciplinary action for a four-year period,
to whom matters are referred for criminal or as cases often take more than one year to
disciplinary action to keep the SIU informed of be finalised.
progress and the final outcome.
High-level performance indicators under the
Government should ensure that there is Medium Term Strategic Framework should
a centralised capacity for collating and be more clearly linked to assessing the
monitoring all data related to the management functioning of the overall system in responding
of corruption-related cases by government to financial misconduct.
2 ACCOUNTABILITY FOR CORRUPTION: THE ROLE OF THE SPECIAL INVESTIGATING UNIT
Introduction A press report in October 2018 indicated that steps
were being taken to bring the case to court.7 Finally
Testimony of Angelo Agrizzi at the
in February 2019, after Agrizzi’s testimony at the
Zondo Commission
Zondo Commission, Agrizzi, Mti, Gillingham and
In early 2019 South Africa’s Special Investigating three other current or former Bosasa officials were
Unit (SIU) was prominently featured in the news. In arrested and charged with fraud, corruption and
testimony before the Zondo Commission1 Angelo money laundering.8
Agrizzi testified about a series of contracts, allegedly
linked to corrupt procurement processes, between The Special Investigating Unit
Bosasa2 and the Department of Correctional First established in 1997, the SIU is a South African
Services (DCS). Among those implicated by Agrizzi government investigative and civil recovery agency
were former national commissioner of prisons, largely focused on addressing financial crime relating
Linda Mti, and former DCS chief financial officer, to the misuse of public resources.
Patrick Gillingham.
The SIU occupies a somewhat paradoxical position
DCS contracts with Bosasa had been a focus of a in the South African anti-corruption architecture.
broad SIU investigation of DCS initiated in 2007.3 On the one hand, as a result of its focus on forms
In his testimony Agrizzi gave evidence about how of financial crime it is in effect a dedicated anti-
Bosasa’s chief executive, the late Gavin Watson, corruption agency.9
had received advance notice that the SIU would
Before March 2017, when the new investigating
be carrying out a raid at Bosasa premises. Watson
directorate on serious, high-profile or complex
allegedly instructed Agrizzi to go through Bosasa
corruption was established in the NPA,10 it was the
offices and remove any incriminating documents.4
only dedicated anti-corruption agency. It has probably
dealt with a higher volume of corruption cases than
The SIU occupies a somewhat any other government agency in South Africa.
paradoxical position in South Africa’s But despite the major role it plays in investigating
anti-corruption architecture corruption, and the fact that it sometimes features
quite prominently in corruption-related media
coverage, there has been little analysis or debate
Before Agrizzi’s testimony the Bosasa case had about the SIU.
already provoked public comment and concern on
a number of occasions. SIU investigations found At least since the early 2000s, political contestation,
evidence of serious irregularities in relation to the court judgments and public debate about anti-
contracts. As a result the SIU submitted a report to corruption investigation have given little prominence
the DCS in which the SIU recommended that the DCS to the SIU.11 Instead attention has tended to focus on
institute civil proceedings for the recovery of losses. the Directorate of Special Operations (the Scorpions)
But no action was taken in this regard. and its successor the Directorate for Priority Crime
Investigation (the Hawks).
In addition an SIU report dealing with the Bosasa
matter was finalised in 2009 and handed over to the This report is a response to this neglect of the SIU in
National Prosecuting Authority (NPA) in 2010. No action analysis and debate on anti-corruption mechanisms. It
was taken against any person as a result of this either.5 provides an overview of the unit in relation to its history,
mandate, powers and skills and resources. It then
Agrizzi, in his testimony, alleged that senior Bosasa
focuses on three key interrelated issues about the SIU
and NPA officials had jointly conspired to obstruct
– its independence, its investigations and its impact.
potential prosecutions. Agrizzi also provided the
commission with NPA documents relating to the case The report finishes with recommendations. These deal
that had allegedly been provided to Bosasa irregularly.6 with the legislative framework governing the SIU as
SOUTHERN AFRICA REPORT 28 | OCTOBER 2019 3well as the overall system for monitoring the outcome of Heath unit.22 One of these meetings agreed on a
cases that are dealt with within the multi-agency system motivation for the Heath SIU to be included in the arms
anti-corruption system. deal investigation.
Others supported this call, with the SCOPA chairperson
SIU history
writing to then president Thabo Mbeki on 8 December
The Heath Special Investigating Unit 2000 to ask for a proclamation authorising the Heath
The precursor to the establishment of the SIU was the unit to join the investigation.23 The chairperson also
establishment of a commission of inquiry in the Eastern noted that the Auditor-General had expressed support
Cape in 1995.12 Impressed by the commission’s success for the Heath unit’s inclusion.24 Heath himself submitted
in recovering state assets, Parliament passed legislation a formal request for a proclamation to be issued
authorising SIU involvement.25
in 1996 to provide for more units of this kind to be
established ‘to cover corruption countrywide’.13
The legislation in question, the Special Investigating After Judge Heath resigned,
Units and Special Tribunals Act (the SIU Act),14 provided the SIU technically ceased
for special investigating units to be established by
to exist
presidential proclamation. The Heath Special Investigating
Unit was established in 1997 by means of Proclamation
R24 of 14 March 1997.15 However Mbeki refused to sign off on SIU involvement. In
a letter to Heath, and subsequent television appearance,
During Judge Willem Heath’s period of tenure as head of
Mbeki expressed considerable animosity towards Heath
the SIU, the unit enjoyed a reputation for ‘zeal in rooting
inter alia accusing him of ‘ungovernability’ and of ‘an
out corruption’.16 Heath has been described as ‘a high-
unseemly campaign to tout for work’. He also used
profile public figure with an uncompromising approach to information incorrectly attributed to Heath, in order to
corruption and a strong independent streak’.17 He was denounce him.26
outspoken about the need for improved resourcing of the
unit. He also complained about the cumbersome process Heath applied to be discharged as a judge presumably
the SIU had to go through to initiate investigations.18 His in order to enable him to continue as head of the
SIU. However Mbeki refused to discharge him. As a
high-profile and his outspoken nature did not endear him
result Heath was obliged to resign, which he did in
to government.
June 2001.
The end of the Heath SIU
It appears that Mbeki’s hostility to the unit and reluctance
In November 2000 the Constitutional Court ruled that to involve them in the arms deal investigation was linked
for a judge to serve as the head of the SIU was in to the fact that he regarded them as too independent.
violation of the principle of separation of powers and The Scorpions, who had just been established at that
was unconstitutional.19 The court ruling coincided with time, would have been regarded as a safer option.
controversy over the inclusion of the unit in the arms They were part of the NPA and therefore ultimately fell
deal investigation. under the authority of the National Director of Public
The unit had begun a preliminary investigation into Prosecutions at the time, Bulelani Ngcuka. As a member
of the ruling party who had been appointed as NDPP
the deal20 and in October 2000 Parliament’s Standing
during Nelson Mandela’s term of office as president,
Committee on Public Accounts (SCOPA) recommended
Ngcuka would have been more trusted.27
that the unit be included in a multi-agency investigation
into the deal.21 Re-establishment of the SIU
In November and December 2000 a number of After Heath resigned, the SIU technically ceased to exist.
exploratory meetings were convened by SCOPA with In terms of the Special Investigating Units and Special
representatives of the various agencies including the Tribunals Amendment Act 2 of 2001, the provisions of Act
4 ACCOUNTABILITY FOR CORRUPTION: THE ROLE OF THE SPECIAL INVESTIGATING UNIT74 of 1996 in terms of which a judge or acting judge was The exclusion of the SIU from the arms deal investigation
supposed to lead the unit were amended. 28 also coincided with the creation of the Scorpions in
January 2001.39 The Scorpions come to play the leading
Mbeki established a new SIU in terms of the new act
role in the major arms deal-related investigations of the
by Proclamation R118 on 31 July 2001.29 The new SIU
2000s, most notably that into Zuma.
therefore came into existence in August 2001.30 Advocate
Willie Hofmeyr was appointed to head the unit. At the In addition the Scorpions had a strong orientation in
time Hofmeyr was already head of the NPA’s Asset favour of media publicity (something which in turn was
Forfeiture Unit. Until he was removed from the leadership extensively used against them by their enemies).40 Most
of the SIU in November 2011, he headed both the Asset subsequent leaders (the exception being the brief period
Forfeiture Unit and the SIU. in 2011 when Heath was reappointed) did not go out of
their way to promote the unit’s public profile. It is unclear
Subsequent leadership of the SIU if the current SIU head, Mothibi, described in one news
At the end of November 2011, then president Jacob report as ‘the quiet technocrat’, represents an exception
Zuma reappointed Heath, now no longer a judge, as to this pattern.41
head of the unit.31 However shortly after being appointed
Mandate and powers of the SIU
Heath made public statements alleging that Mbeki had
blocked some investigations into corruption. He also The mandate provided to the president
claimed that Mbeki had been behind the 2005 rape case by the SIU Act
against Zuma, as well as the corruption charges against In terms of the SIU Act the president may, by
him. Heath resigned the following month as a result of the proclamation, establish a special investigating unit
ensuing controversy.32 ‘whenever he or she deems it necessary’ to investigate a
In the subsequent period: specific matter. He or she may also refer a matter to an
existing special investigating unit.42 The president may
• Zuma initially appointed Advocate Nomgcobo Jiba as therefore establish special investigating units (and special
acting SIU head after Heath’s resignation.33 A week tribunals – see below) as and when needed, allowing for
later he appointed another Deputy Director of Public any number of these units to exist simultaneously.
Prosecutions, Advocate Nomvula Mokhatla, to serve
as acting head.34 Mokhatla served as acting head for
over 20 months. There has only been one SIU
• Zuma appointed Advocate Vas Soni SC to head
that existed as a single, largely
the SIU in September 2013. Soni resigned in permanent, body since 1997
January 2015.35
• Advocate Gerhard Wilhelm Visagie was appointed as These may not be permanent structures but may cease
the acting head of the SIU in March 2015. 36 to exist once the investigations for which they have been
established have been completed.
• Advocate Jan Lekgoa (Andy) Mothibi, the current
(in October 2019) SIU head, was appointed from In practice however there has only ever been one SIU
1 May 2016.37 that has existed as a single, largely permanent, body
since 1997. Though the Heath unit legally ceased to
From prominence to relative obscurity exist and was replaced by a ‘new’ SIU in 2001, this was
In the late 1990s the Heath SIU enjoyed the status of effectively the same unit, though under new leadership
being the pre-eminent anti-corruption unit in South Africa. and governed by slightly different legal provisions.
But in the subsequent period the SIU has ‘had a much The president’s power to issue proclamations has
lower media profile’38 and has received little attention in therefore not been used to establish a variety of SIUs.
discussions about addressing corruption. The powers provided to the president by the SIU Act are
SOUTHERN AFRICA REPORT 28 | OCTOBER 2019 5however significant, as SIU investigations may only be the power, similar to that provided in Section
initiated when authorised by presidential proclamation.43 28 of the National Prosecuting Authority Act
(Act 32 of 1998), to compel people to answer
The act is to some degree open ended in relation to
what type of matter may be investigated by the SIU, self-incriminating questions. This is subject
allowing for proclamations to be issued in relation to to the proviso that compelled answers may
‘serious maladministration in connection with the affairs not ordinarily be used in criminal proceedings
of any State institution’ (Section (2)(a), see also (b) and against the person (Sections 5(2)–(4)).
(g)).44 However in practice the proclamations that have • Powers of search and seizure including
been issued have largely focused on financial crime and powers of forced entry. This may be carried
misconduct of the kind reflected in Sections 2(c) to (f).45 out by the SIU or by police acting on the
These provide for investigation of: SIU’s request (Section 6).
(c) ‘unlawful appropriation or expenditure of • Power to order the production of specified
public money or property’; books, documents or objects (Section 5(2)(b)).
(d) ‘unlawful, irregular or unapproved acquisitive In addition to these investigative powers the SIU may
act, transaction, measure or practice having a conduct civil litigation in its own name or on behalf of
bearing upon State property’; state institutions.50 The SIU ‘can obtain a court order
to compel a person to pay back any wrongful benefit
(e) ‘intentional or negligent loss of public money
received and consequently recover the money for the
or damage to public property’;
state’.51 Litigation may also be used to annul contracts,
(f) various offences provided for in Chapter 2 thereby preventing ongoing losses to the state from
of the Prevention and Combating of Corrupt irregular contracts. The SIU may ‘work with a government
Activities Act, 2004, in so far as these were department to cancel contracts when the proper
‘committed in connection with the affairs of procedures were not followed and/or to stop transactions
any State institution’. or other actions that were not properly authorised’.52
Proposals for proclamations are, in most cases,
submitted to the president by the SIU. These may in
turn have been initiated in the form of a request for an
Criminal cases of corruption
investigation from a government department or entity.46 are also often protracted
In some cases the SIU also receives complaints and expensive
or allegations directly from members of the public,
including whistleblowers in state departments.47 In such actions the standards of proof are on a ‘balance
Recommendations may also be made directly to the of probabilities’. Civil cases are therefore easier to prove
president by ‘other bodies such as a parliamentary than criminal cases which have to be proved ‘beyond a
committee or the public protector’.48 reasonable doubt’. Criminal cases of corruption are also
The question of how presidents exercise the power to often protracted and expensive (see below regarding the
issue proclamations is discussed below. role of the special tribunal in expediting SIU civil cases).
Though it doesn’t result in criminal convictions, and
Powers
accountability is therefore primarily financial, civil action
SIU personnel are not full ‘peace officers’49 and do not clearly has its advantages.
have police powers of arrest. But the SIU nevertheless
When there is sufficient evidence to substantiate a civil
has considerable powers. As provided for in the SIU Act
claim the unit is also often able to do away with the need
these powers include:
for civil action by persuading the alleged wrongdoer to
• Power to order a person to appear before sign an ‘acknowledgement of debt’ (AoD) agreement. For
it and to question the person. This includes instance during the 10 years from April 2004 to March
6 ACCOUNTABILITY FOR CORRUPTION: THE ROLE OF THE SPECIAL INVESTIGATING UNIT2014, the SIU managed to secure over 50 000 AoDs other judges also appointed to it.62 In late September
through its investigation into social grant fraud.53 government announced that regulations for the tribunal
had been promulgated and that the tribunal would
Litigating civil matters through special tribunals
commence its work on 1 October.63
In addition to providing for the establishment of special
investigating units, the SIU Act also provides for the Skills and resources
establishment of special tribunals (as indicated the full
Skills and capacity
name of the act is the Special Investigating Units and
Special Tribunals Act). From 1999 to 2001 the SIU had roughly 70 personnel,64
of whom 57 (in 1999) were investigators.65 Since then the
The original concept was that civil actions would be
number has expanded. At 31 March 2018 SIU employees
instituted by special investigating units before special
numbered 522,66 including 34 at the public service senior
tribunals. These would be separate legal entities
and top management levels.
‘presided over by judges who are not part of the Special
Investigating Unit and are appointed on the same basis In a report to the Portfolio Committee on Correctional
as judges of the High Court’.54 Services in 2009 the SIU described itself as having ‘a
multidisciplinary forensic capability, consisting of forensic
However while special tribunals were established
investigators, lawyers, forensic accountants, cyber
in the early days of the SIU55 they were little used in
forensics experts, data analysts and project management
subsequent years.56 Though the SIU continued to refer
professionals’ and as providing ‘a service [comparable]
to special tribunals in one of its performance indicators
to what the private sector had to offer, but at less cost to
(‘Number of civil matters instituted in Court or the
the State’.67
Special Tribunal’),57 litigation was pursued through the
courts rather than through special tribunals. As a result
litigation by the SIU has been subject to the same delays The SIU’s budget is 13% greater
that affect other civil matters.
than that of the Independent
As from 2017 the SIU began to pursue the
Police Investigative Directorate
re-establishment of special tribunals to facilitate quicker
resolution of civil litigation and recoveries.58 Difficulties
in recovering some of the expenses related to Zuma’s It appears that reliance on civil processes may not be
Nkandla homestead were also cited as motivation for the only factor impeding the SIU in its efforts to recover
re-establishing the special tribunals.59 irregularly obtained funds. Shortages of sufficiently
skilled staff may be an additional factor. For instance in
The importance of re-establishing the tribunals was
September 2017 the SIU told SCOPA that it had only
highlighted in Parliament in October 2018 when the SIU
three forensic accountants in its employment.68
reported that despite aiming to recover R120 million,
it had only managed to recover R33 million partly as a In March 2018 a total of 349 staff were employed
result of the ‘slow pace of civil litigation’.60 at the professionally qualified (172) and skilled (177)
occupational level. These figures represent a 5% decline
As with the provisions relating to special investigating
in the total number of employees at these two levels as
units, the SIU also authorises the president to establish
opposed to the 368 reported for March 2017.
special tribunals by means of proclamation. They
are established to adjudicate upon civil proceedings Resourcing
emanating from any investigation of a special
The SIU receives its budget through the Department
investigating unit.61
of Justice and Correctional Services (previously the
In February 2019 President Cyril Ramaphosa appointed a Department of Justice and Constitutional Development).
new special tribunal. Judge Gidfonia Makhanya has been The SIU currently receives a budget that is 13% greater
appointed as the president of the tribunal with seven than that received by the Independent Police Investigative
SOUTHERN AFRICA REPORT 28 | OCTOBER 2019 7Directorate and 15% more than the Public Protector’s, used in a very limited sense implying that the unit is
but which is less than a quarter (22%) of that received by not part of any other body. As will be discussed, the
the Hawks.69 The SIU’s 2019–20 budget reflects a below- legislation that provides for the establishment of the SIU79
inflation 1.7% increase on the R357 million allocated to it essentially provides that the SIU operates at the behest of
in 2018–19.70 the president.
This is reflected on the SIU website which states that
Table 1: Budget allocated to the SIU and selected the SIU was established by the president, conducts
other investigative agencies investigations at his request, and reports to him on
(2019–20 budget year) the outcomes.80
Directorate for R1.733 billion in 2019–20 (the As indicated in November 2000, the Constitutional Court
Priority Crime budget is part of the South African held that it was unconstitutional for a judge to head the
Investigation Police Service (SAPS) budget. SIU. The legislation governing the SIU therefore had to
(the Hawks) The budget line is for Specialised be amended to remove the requirement that ‘a judge or
Investigations as part of the SAPS acting judge’ should head the unit.
Programme 3 budget).71
Independent R337 million in 2019–20 of which
Police R206 million is dedicated to
The president may only remove the
Investigative Investigations and Information head of the SIU if there are ‘sound
Directorate Management (Programme 2).72 reasons for doing so’
SIU R363 million in 2019–20.73
Public Protector R321 million in 2019–20.74 In March 2001 the Parliamentary Portfolio Committee
Source: Estimates of National Expenditure 2003, Votes 20, 21 and 23 on Justice and Constitutional Development debated
the amendment bill. Records of the meeting show
In addition to money allocated to it by Parliament, the SIU that members of opposition parties motivated that the
Act authorises the SIU to make use of ‘money lawfully act should provide greater independence to the SIU.
accruing from any other source, including fees and Measures motivated for included ensuring the political
expenses recoverable for services rendered’.75 independence of the SIU head and measures to prevent
arbitrary removal of the head.81
In 2017–18 the SIU received upwards of R302 million,
over and above the money allocated to it in the Possibly as a result of the latter argument the act, as
Department of Justice budget, with R286 million amended in 2001, provides that the president may
being payment for services rendered to government only remove the head of the SIU from office if there are
departments.76 These amounts accounted for 46% of SIU ‘sound reasons for doing so’.82 A further issue raised
revenue in the 2017–18 year. was whether it was ‘advisable for the units to
operate by a proclamation by the Executive’ and that
The SIU therefore has considerable capacity to
a way should be found of ‘divorcing the SIU from
supplement its income, though there is a concern
the Executive’.83
that this may lead to conflicts of interest.77 These may
result if the SIU focuses on investigations that are likely Johnny de Lange, the chairperson of the Portfolio
to optimise its revenue rather than cases where its Committee, rejected this argument. As reported his
investigations are most needed to prevent the loss of arguments were that this would mean that SIUs had
public money. ‘their own jurisdiction’ and that this would mean that they
‘are no longer retrieving State assets, but are an anti-
Independence corruption unit’ and that this would be unconstitutional
On its website the SIU describes itself as ‘an independent ‘as it would be infringing on the duties of other bodies’
statutory body’,78 but the term ‘independent’ is obviously such as the South African Police Service (SAPS).84
8 ACCOUNTABILITY FOR CORRUPTION: THE ROLE OF THE SPECIAL INVESTIGATING UNITDe Lange’s argument foreshadows issues that were pressure on Willie Hofmeyr, the deputy national
later to prove controversial in relation to the Scorpions, director of public prosecutions, who has headed the
who were located in the NPA. Opponents of the SIU in conjunction with his role as head of the Asset
Scorpions made much of the words in Section 199(1) Forfeiture Unit’.86
of the constitution that refer to ‘a single police service’.
Some modest limitations on who may be appointed
They argued that the existence of the Scorpions was
as head are also provided by the act. These are based
unconstitutional, despite the constitution explicitly
on those applicable to the National Director of Public
authorising Parliament to establish other ‘armed
Prosecutions.87 The SIU Act, as amended in 2001, now
organisations or services’ by means of national legislation
provides that the head of the SIU must be a South African
(199(3)), and endorsing the creation of municipal police
citizen ‘who, with due regard to his or her experience,
services (Section 206(7)).
conscientiousness and integrity, is a fit and proper person
The constitution therefore doesn’t provide the basis for to be entrusted with the responsibilities of that office, as
the argument that the SIU should not be able to initiate the head of a Special Investigating Unit’.88 In addition
its own investigations. Even if this is a concern there people who are appointed by the head to serve in the SIU
are also other options. For example, rather than the SIU must be fit and proper persons.89
initiating its own investigations, there could be another
Beyond this the act by and large defines the SIU
mechanism for doing so, such as through some form of
as an instrument of the president, with the justice
judicial authorisation.
minister playing a secondary role. The SIU is therefore
As indicated, the SIU doesn’t conduct criminal subordinate to the authority of the Executive. This is
investigations. Its investigations are carried out for the above all embodied in the authority of the president
purposes of recovering illegitimately used state funds. to issue proclamations authorising SIU investigations
Changes to systems for authorising SIU investigations (discussed above).
would therefore not mean that the SIU is infringing on the
work of the police, or other bodies. In addition:
In the years since the SIU Act was passed, there have • The head of the unit is appointed by the president.90
been numerous court judgments that have set standards • Though the president may only remove the head if there
for assessing whether or not a body enjoys a reasonable are ‘sound reasons’ for doing so, there is no provision
measure of independence.85 for security of tenure.
• There are no provisions stating that appointment
SIU investigations are carried out is not renewable or may not be extended. As the
for the purposes of recovering Constitutional Court has emphasised, such provisions
illegitimately used state funds serve as a mechanism for supporting the head of an
agency in acting independently.91 Where the head of an
agency serves in one way or another ‘at the pleasure
Viewed against the standards set in these judgments,
of’ the president, he or she may be more likely to
the degree of independence enjoyed by the SIU is very
modify his or her actions as head of the agency in order
limited. As indicated above the act provides that the
to appease the president.
president may only remove the head of the SIU if he or
she has ‘sound’ reasons for doing so. The provision in • Remuneration is determined by the justice minister in
itself possibly only really means that the president must consultation with the finance minister.92
give reasons that are not obviously nonsensical when • At the end of each investigation the SIU must submit a
removing the head of the unit. report thereon to the president.93 As will be discussed
When Hofmeyr was removed from the position in further, the president may in some respects determine
November 2011 the reasons given were that the the outcome of an investigation simply by doing nothing
appointment of Heath as SIU head ‘will ease the with an SIU report once it is submitted to him.
SOUTHERN AFRICA REPORT 28 | OCTOBER 2019 9As indicated, the SIU itself is not necessarily a feed into perceptions that the SIU is used as a political
permanent structure and more than one SIU may exist. instrument to target political opponents.96
By implication of the act the SIU may be shut down There are no obvious constitutional or other legal reasons
when it has completed the investigations that have been for not providing the SIU with the authority to initiate
referred to it. The president is not compelled to continue its own investigations. Nevertheless it is reasonable to
to renew authorisation for the SIU to exist by issuing require that the SIU conduct investigations only when it
new proclamations. has substantive reasons for doing so.
Implications of the Public Audit Amendment Act Apart from a presidential proclamation authorising
(Act 5 of 2018) an SIU investigation, referral by the Auditor-General
The Public Audit Amendment Act, assented to by should clearly be seen as one legitimate basis for such
authorisation. In addition, even if the president retains
Ramaphosa on 18 November 2018, is highly relevant to
the authority to issue proclamations, there should be an
debates about the SIU.94 The act provides:95
alternative. For instance an investigation could also be
• For the insertion of a Section 5(1A) into the Public authorised by a judge on the basis of an application by
Audit Act (25 of 2004) to enable the Auditor- the SIU which shows good cause for it.
General to ‘refer any suspected material irregularity’
identified during an audit ‘to a relevant public body
for investigation’. There are currently major
• That the public body to whom the matter is referred limitations on the
‘must keep the Auditor-General informed of the independence of the SIU
progress and the final outcome of the investigation’.
• That Section 10(1) of the act should be amended Measures should be put in place to ensure that those
to provide that, as part of the Auditor-General’s appointed to head the SIU are the most suitable
annual report to Parliament, it must report on ‘any candidates for this role. Currently legislation does provide
matters referred for investigation in accordance that whoever is appointed ‘is a fit and proper person to be
with section 5(1A)’. entrusted with the responsibilities of that office’, but the
decision is otherwise left to the discretion of the president.
Because it has a forensic accounting capability, the
Mechanisms should be established to ensure that those
SIU will be the preferred body to refer many such
who are appointed are of the highest calibre.97
investigations to. The current SIU Act effectively defeats
the purpose of the Public Audit Amendment Act as Investigations
it requires that before the SIU can proceed with an
General
investigation, such referrals must be approved by
means of a proclamation issued by the president. An Since 2001 there have been over 120 investigations
amendment to the SIU Act, authorising it to investigate that have been authorised by means of proclamation
matters referred to it by the Auditor-General, should be (excluding proclamations providing for the extension
urgently considered. of existing investigations). Of 118 such investigations
recorded in SIU annual reports up to and including some
Strengthening the independence of the SIU initiated in 2017, roughly 25 (21%) were investigations
There are currently major limitations on the independence into national departments, 16 (14%) into state entities,
of the SIU. As discussed further below (see the section 37 (32%) into provincial departments and entities, and
33 (28%) into municipalities. The remaining 7 (5%) were a
on investigations) there is evidence to support the view
combination of departments or entities.
that past presidents have used their powers to issue
proclamations in inappropriate ways. The fact that The national investigations included four investigations
investigations are authorised by the president may also each into the Department of Public Works and the National
10 ACCOUNTABILITY FOR CORRUPTION: THE ROLE OF THE SPECIAL INVESTIGATING UNITDepartment of Rural Development and Land Reform, three Hawks. However the Hawks also have a more diverse
into the Department of Correctional Services, and two mandate which includes ‘national priority offences, in
each into the Department of Communications, Department particular serious organised crime, serious commercial
of Justice and Constitutional Development, Department of crime and serious corruption’.106
Transport and the Office for Witness Protection/Witness
The fiscal investment in the SIU therefore constitutes
Protection Programme (KZN) (see Table 2).
a significant part of the state investment in addressing
As illustrated previously in Table 1 the resources provided corruption. Figures are not available to quantify what
to the SIU are roughly 20% of those provided to the proportion of Hawks resources are dedicated to
Table 2: State institutions subject to investigation by the SIU, 2001-201798
Sphere of
No. Institutions subject to investigations
government
National 25 Department of Correctional Services (three investigations); Department of Public Works
departments (four); National Department of Rural Development and Land Reform (four);99 Department of
Communications (two); Department of Justice and Constitutional Development (two); Department
of Transport (two); Office for Witness Protection/Witness Protection Programme (KZN) (two);
Department of Social Development; Department of Arts and Culture; Department of Cooperative
Governance and Traditional Affairs; Department of Human Settlements; Department of Water
Affairs; South African Police Service.
National 16 The State Information Technology Agency (two investigations);100 Public Service Education and
entities Training Authority (PSETA) (two); SABC (two); National Heritage Council; South African Social
Security Agency; Mhlathuze Water Board; Special Pensions Fund; South African Housing
Trust (now part of the National Housing Finance Corporation); South African Post Office
(SOC) Ltd; Universal Service and Access Agency of South Africa (USAASA); Eskom Holdings
Ltd; Construction Industry Development Board; The Media, Information and Communication
Technologies Sector Education and Training Authority (MICT SETA).
Provincial 37 KwaZulu-Natal departments and entities (13 investigations); Eastern Cape (seven);101 Free State
departments (four); Mpumalanga (three); Gauteng (three); Limpopo (three);102 Western Cape (two); North West
and entities (one); Northern Cape (one).
Municipalities 33 Metros (four); Free State (six) (one district and one local municipality); Western Cape (five);
KZN (four) (two district and two local municipalities); Limpopo (five) (three district and three
local);103 Mpumalanga (two); Eastern Cape (four) (two district104 and two local); North West (one)
(investigation focused on 24 municipalities);105 Gauteng (two) (local).
Combination 7 National Department of Rural Development and Land Reform and the State Information Technology
Agency (Pty) Ltd; Department of Labour and the Compensation Fund; Gauteng Department of
Human Settlements and Lepelle Northern Water (Proc 22 of 2016); Independent Development
Trust, the Department of Basic Education and the Department of Education for the Free State
(Proc 32 of 2016); Department of Correctional Services and the Independent Development Trust
(28 of 2017); National and provincial departments of transport, local authorities and entities that
perform functions in terms of the National Road Traffic Act, 93 of 1996 (Proc R37 of 2017); Eastern
Cape provincial and municipal institutions including two provincial departments, two provincial
entities, two metropolitan municipalities, one district and one local municipality (25 May 2018).
118
Source: Collated from SIU annual reports
SOUTHERN AFRICA REPORT 28 | OCTOBER 2019 11corruption investigations. It seems possible that the scale being in progress, ministers in the security cluster refused
or volume of corruption investigations carried out by the to cooperate with requests for information from the Public
SIU is as great as, if not greater than, that by the Hawks. Protector. These refusals were justified on the basis that
the matter was to be investigated by the SIU.112
If not the biggest, the SIU is undoubtedly one of the
biggest role players in corruption investigations in In a 22 March 2013 letter to the Public Protector,
South Africa. (For discussion of Hawks investigations then police minister Nathi Mthethwa said, ‘The [inter-
into corruption, see the paper ‘Investigating corruption ministerial] task team has identified maladministration
in South Africa – Cooperation or conflict?’ which is and, therefore, the ministers in the JCPS cluster have
published with this report.) decided that a special investigating unit and the auditor-
general must conduct a full investigation and audit.’113 It
Investigations of spending on Zuma’s would take another seven months, after the proclamation
Nkandla homestead was issued in December 2013, for the SIU to be provided
As discussed above, in the early 2000s then president with access to Nkandla to conduct a site inspection.114
Thabo Mbeki fiercely resisted the Heath SIU’s involvement
in the investigation into the arms deal. By contrast the
The SIU is undoubtedly one of the
SIU was regarded by the Executive as the preferred body
to conduct the Nkandla investigation.
biggest role players in corruption
investigations in South Africa
The Nkandla investigation is of interest in that it involved
the president having to issue a proclamation for an
investigation into expenditure and procurement relating In a chapter on South Africa’s anti-corruption agencies,
to his own residence. The terms of reference for the Ralph Mathekga refers to arguments that the SIU
investigations were set out in the proclamation signed by investigation into Nkandla was used as ‘a way to deflect
Zuma on 18 December 2013.107 attention from the main issue relating to the president’s
breach of the ethics code’ and to ‘absolve the president
The proclamation mainly focused on the role of
from any liability’. He also argues that the investigation
the Department of Public Works in the project, as
may have been used
well as that of ‘contractors, suppliers or service
providers’.108 It largely disregarded ‘issues relating to ‘to undermine any investigation by other state
the president’s responsibility to exercise oversight on bodies that might come up with adverse findings
the use of public funds’.109 against the president regarding the matter. Quite
often when the president was called upon to
It is likely that Zuma deliberately delayed issuing the
respond to [public protector Thuli] Madonsela’s
Nkandla proclamation partly so the report wouldn’t report on Nkandla, the president stated
be finalised before the May 2014 general election. In emphatically that there were other processes
December 2013, when Zuma signed the proclamation, that were underway, the investigation by the SIU,
it was virtually a full year after the Public Protector for example’.115
had initiated her investigation into expenditure on the
The Public Protector’s March 2014 report included
homestead (this investigation was already in progress in
findings against officials of the Department of Public
February 2013).110
Works. It also found that Zuma had unduly benefited from
Zuma’s proclamation also came almost a year after the the upgrades to his Nkandla homestead and violated the
inter-ministerial task team, appointed by some of Zuma’s Executive ethics code.116
cabinet members, completed its report in January 2013.
By contrast, though the SIU report ‘did find that Zuma
This report recommended an SIU probe into the matter.111
had unduly benefited from Nkandla expenditure’, it
Yet despite no proclamation having been issued by the placed the blame for this on the architect responsible
president, and the Public Protector’s investigation already for Nkandla’s construction.117 The consequence of the
12 ACCOUNTABILITY FOR CORRUPTION: THE ROLE OF THE SPECIAL INVESTIGATING UNITSIU investigation was a disciplinary process against Another anti-Ramaphosa leader is then quoted as saying,
Department of Public Works officials (the outcome of ‘We are under siege. Every second week the president
which is subject to a non-disclosure agreement),118 and signs a proclamation giving the SIU powers to investigate
a civil suit, instituted by the SIU, against the architect.119 something. And all those that are being investigated are
It was only as a result of the Public Protector’s report people who opposed his election.’123
that Zuma faced the possibility of any personal liability
In July 2019 Ramaphosa signed a proclamation
for Nkandla.120
authorising SIU investigation of a R255 million contract
The evidence indicates that Zuma delayed issuing the entered into by the Free State Department of Human
Nkandla SIU proclamation. Nevertheless the Nkandla Settlements (FSHS) for an audit of asbestos roofs in
episode contrasts with Mbeki’s refusal to allow the Heath the province.124 According to one press report the SIU
SIU to be included in the arms deal investigation. The investigation may produce evidence that Ace Magashule
evidence suggests that the Heath SIU was seen as too is implicated in corruption. Magashule is the ANC’s
independent to be included in the arms deal probe. secretary-general and widely regarded as a political
In relation to Nkandla, the impression created is that opponent to Ramaphosa.
the SIU was seen as the investigative agency of choice, There is not necessarily any substantive basis for
perhaps because the body was regarded as more concluding that SIU proclamations are being issued
acquiescent (as compared to the Public Protector) but on a political basis. Nevertheless newspaper reports
also because the terms of reference for the investigation, suggesting that SIU proclamations may be issued on
and timing of the investigation, could be determined by a political basis should not be unexpected. Allegations
the president. that investigations are politically inspired, often from
The police minister then used the fact that a cabinet- those whose actions are the focus of investigation,
appointed task team had proposed investigation by the are an established part of the repertoire of politics in
SIU to justify non-cooperation with the Public Protector. South Africa.125
This was despite the fact that no proclamation authorising
the SIU investigation had as yet been issued.
The SIU may increasingly face
Suspicions that there was a deliberate delay in attempts to discredit its
authorising an investigation also emerged in July 2017.
Advocate Mothibi told SCOPA that Zuma hadn’t signed
anti-corruption work
the proclamation for the SIU to begin an investigation
into the South African Broadcasting Corporation Most notably, over a sustained period, Zuma has
(SABC), even though it had been ready to begin with maintained that investigations against him are essentially
its investigation since May.121 At the time there were political in nature.126 Initially Zuma used allegations of this
widespread allegations of financial mismanagement at kind to mobilise against Mbeki, while Mbeki was leader
the SABC. Zuma finally signed the proclamation late in of the ANC and president of South Africa. Whether or not
August 2017.122 these allegations had any merit to them, they highlight
the fact that the presidential power to authorise SIU
Risk of SIU being seen as a political tool investigations creates the potential for this to be used to
A September 2018 front page report in the Sunday discredit both the president and the SIU.
Times read that members of the pro-Zuma faction in the Possible evidence of the SIU being targeted by those
ANC had met secretly in Durban early in September to seeking to undermine anti-corruption efforts was provided
discuss plans to undermine Ramaphosa. In the report, an in an August 2019 media report.127 This suggests that the
anonymous pro-Zuma ANC leader is quoted as saying, SIU may increasingly face attempts to discredit its anti-
‘We are not happy with [the] factional conduct by the corruption work. This motivates for steps to be taken to
other side, which is relentlessly pursuing our forces.’ strengthen its credibility as an independent body.
SOUTHERN AFRICA REPORT 28 | OCTOBER 2019 13Impact of the SIU Referrals for criminal and disciplinary action
Recoveries In addition to recoveries, the SIU places considerable
emphasis on the number of referrals it makes for
As indicated SIU investigations may culminate in civil
criminal and disciplinary action to be taken (see Table
proceedings, or at least the threat thereof. Related to this,
4). In its mission statement, for instance, the SIU
some of the main SIU performance indicators focus on
states that along with forensic investigations and civil
financial recoveries and savings. Examples include:
proceedings, its other major mechanism for fighting
• Value of potential cash recoverable – including corruption is ‘referrals for criminal prosecution and
acknowledgements of debt (AoDs) signed and referrals for disciplinary action’.135
preservation orders obtained by the AFU linked to
SIU investigations. Shift in focus from high-volume low-value
to procurement
• Actual value of cash recovered including recoveries by
the AoD enforcement department. During the late 2000s the SIU underwent a major
re-orientation. Understanding this re-orientation
• Actual savings. This indicator is related, for instance, to
is important in order to be able to interpret SIU
contracts set aside or recommendations that certain
performance information. Up to that point the SIU had
payments be stopped (previously many payments were
invested a large part of its energies in ‘small-value
stopped for people illegitimately registered on the social
high-volume investigations’.136
grant system).
As indicated in Table 3, the re-establishment of the
Special Tribunal is intended to help the SIU improve its Some of the main SIU performance
rate of recoveries. In relation to the issue of recoveries indicators focus on financial
it may also be noted that, though the SIU has its own
recoveries and savings
capacity to carry out recoveries, the AFU (situated within
the NPA) in fact has greater recovery powers. In some
cases it may be more effective for the SIU to seek AFU For instance in its annual reports dealing with the
assistance for this purpose (as highlighted in Table 4 the nine-year period from April 2004 to March 2013
SIU makes some referrals to the AFU).128 the SIU reported that its achievements in relation
Table 3: SIU performance data on recoveries and savings to government departments
Indicator 2015–16 2016–17 2017–18 2018–19
The value of money and/or assets potentially R73m R126.9m R299m R137
recoverable (value of cash
The actual value of money and/or assets recovered R52m R43.5m R34m recoveries)129
The value of potential loss prevented n/a R106.5m R407m R53.4m
The value of contract(s) and/or administrative n/a R4bn R797m R137m
decision(s)/action(s) set aside or deemed invalid
The value of matters in respect of which evidence n/a R3.8bn R2.7bn R7.9bn
was referred for the institution or defence/
opposition of civil proceedings (including arbitration
or counter civil proceedings)
Number of civil matters instituted in court130 5131 18 9132
AoDs signed 38133 8 12134
Source: SIU, Annual Report 2016–17; SIU, Annual Report 2017–18
14 ACCOUNTABILITY FOR CORRUPTION: THE ROLE OF THE SPECIAL INVESTIGATING UNITto investigations into social grant fraud included: This change in focus was also requested by others
18 764 criminal convictions, 20 768 cases for which including the finance minister.139 The SIU 2009–10 annual
‘disciplinaries’ were prepared, and 21 763 under the report states that these investigations ‘are more complex
indicator ‘evidence prepared for criminal action/number and time-consuming, and will take some time to reflect in
of new cases before court’. the SIU’s results’.140
The type of performance data that the SIU has been able
SIU investigations may culminate to provide following the shift has been of a different order
with the number of referrals (see Table 4) and the number
in civil proceedings, or at least of AoDs that were signed being much lower than during
the threat thereof the ‘small-value high-volume’ investigation period (Table
3 has figures covering AoDs signed in recent years.) This
The investigation into social grant fraud also resulted shift in focus was also associated with a tendency to fall
in 462 318 ‘recommendations for removal from social short on some performance targets.141
pension system (or other remedial action)’.137 Though the Referrals for criminal justice measures
numbers are not quite on the same scale, data on SAPS
The types of investigations carried out by the SIU
arrests linked to an SIU investigation into the Department
frequently reveal evidence of financial crime. At one
of Transport shows that 350 officials were arrested for
point the SIU in fact negotiated for prosecutors from
the irregular issuing of driver’s licences over the six-year
the NPA to be delegated to work with the SIU, and
period from April 2005 to March 2011.138
motivated for powers to prosecute to be delegated to
From 2009 onwards there was a shift in focus from SIU personnel.142
these ‘high-volume low-value’ cases to a focus on more
However the normal procedure is for the SIU to refer
complex cases, notably in the procurement arena. The
matters for prosecution to the NPA (who may in turn
2009–10 annual report for instance indicates that the
refer them for further investigation to the Hawks or other
Department of Social Development ‘requested a shift
component of the SAPS) as provided for in legislation.143
from removing fraudulent social grants from the system
to dealing with procurement irregularities in the South In most annual reports there is little information provided
African Social Security Agency (SASSA)’. about the results of cases that have been referred to the
Table 4: SIU performance data on criminal and disciplinary referrals
Referrals for disciplinary, administrative
Referrals to NPA
or executive action144
2010–11145 4 179 2 814
2011–12146 2 731 2 499
2012–13147 850 997
2013–14 326148 273149
2014–15150 3 769 171 (as well as 7 referrals to the AFU)
2015–16 68 307
2016–17151 137 108 (includes referrals to AFU)
2017–18 319 148
2018–19 335 331 (‘referrals to the relevant prosecuting authority’)
Source: SIU Annual Reports; 2018–19 figures from SIU
SOUTHERN AFRICA REPORT 28 | OCTOBER 2019 15NPA. However in two recent reports the SIU attempted to was reached and one other conviction obtained while
account for the outcome of cases that had been referred one confiscation order has been obtained by the
to the NPA (see Table 5). AFU. In a further matter the AFU is appealing a court
order. Other matters that are reported to have been
As can be seen the SIU appears to have very limited data
finalised are six cases in which the NPA has declined
regarding cases that have been referred to the NPA. The
to prosecute.
data presented in the two annual reports indicates that:
• The SIU has no information on the eventual outcome
of most cases submitted to the NPA. The SIU indicates The SIU appears to have very
that it has no information on 334 (70%) of the 478
limited data regarding cases that
cases referred to in the SIU 2015–16 report. Another
109 cases (23%) have been referred to the SAPS. In have been referred to the NPA
only 12 cases (2.5%) is there an indication that matters
are advancing or have been finalised through action
• On convictions the information provided in the two
against implicated persons.152
reports is contradictory. In the 2014–15 year one
• Over the two-year period the information provided conviction is recorded while in the 2015–16 annual
appears to indicate that, at best, one plea agreement report the data provided is supposed to include a
Table 5: Data provided in SIU annual reports on cases referred to the NPA
2015–16 annual report:
2014–15 annual report:
478 matters referred to
171 matters referred to
the NPA over two-year
the NPA153
period (2014–16)154
Referred to the SAPS 151 109
Referred for further investigation to Anti-Corruption
3 0
Task Team155
Accused have been arrested and are due to appear
0 5
in court
Under review by the NPA 0 2
NPA investigating 0 6
NPA declined to prosecute 3 6
Plea agreement drafted 0 1
Plea agreement reached 1 1
Set down for trial/charge sheet drafted 1 3
Conviction obtained 1 0
AFU still investigating 0 9
Confiscation order obtained 0 1
AFU appealing the court order156 0 1
Not accounted for in SIU annual report 11 334
Total 171 478
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