Article by Kotie Geldenhuys
Selected photos by GroundUp
South Africa needs to assemble its best resources to fight the scourge of corruption, fraud and organised crime. This can only be achieved by means of a prosecutor-led investigation model, which is not a new approach in South Africa. In fact, there was a time when it was used with great success in the country.
Corrupt high-level officials have enjoyed impunity in South Africa for many years. But during the State of the Nation Address (SONA) in February 2019, President Cyril Ramaphosa announced that a special investigating unit would be established within the National Prosecuting Authority (NPA) to tackle State corruption. This brought hope that some of the corrupt will, at last, be held accountable. The President noted at the time that this Directorate will focus on the evidence that has emerged from the Zondo Commission of Inquiry into State Capture, other commissions and disciplinary inquiries. It will identify priority cases to investigate and prosecute and will recover assets identified to be the proceeds of corruption. “The Directorate will bring together a range of investigatory and prosecutorial capacity from within government and in the private sector under an investigating director reporting to the National Director of Public Prosecution,” said President Ramaphosa (The Presidency, 2019). This prosecutor-led model has proven exceptionally effective in South Africa and elsewhere. Prior to its disbandment in 2009, the former Directorate of Special Operations (DSO) (commonly referred to as the Scorpions) used this approach with great success.
The new NPA Investigating Directorate was established by the President in terms of Proc 20 published in Government Gazette GG 42383, dated 4 April 2019. This new Directorate will investigate “serious, high-profile and complex corruption” cases (www.npa.gov.za/Investigating_Directorate). These include incidents arising from the 2018 commission of inquiry into the South African Revenue Service and the current commissions into State Capture and the Public Investment Corporation.
Defining prosecutor-led investigation
Both Schönteich (2001) as well as the Secretariat of the Anti-corruption Network for Eastern Europe and Central Asia (2010) define prosecutor-led investigation as the process whereby, throughout the investigation, the prosecutor allocated to the case contributes his or her analytical skills, and his or her assessment of the elements of the offence and the evidence that is available to support the prosecution of the offence being investigated. The Bureau of Justice Assistance (BJA) (2001) describes prosecutor-led investigation as the process where the prosecutor is involved in the early stage of the investigation, with the intention to guide the investigation process from the time the crime is reported until the case is brought to court. In this regard, the involvement of the prosecutor should be understood in the context of guiding the investigation and not literally conducting the investigation per se. Navickiené (2010) shares the same opinion and states that the efficiency of criminal investigation partly depends on cooperation between investigators and prosecutors. The NPA (2013) similarly asserts that effective cooperation with the police and other investigating agencies from the outset is essential to the efficacy of the prosecution process.
Myeza (2019) argues that the prosecutor-led investigation model in South Africa means the early involvement of the prosecutor in the investigation of a case. In other words, the prosecutor-led investigation is the process where the prosecutor gets involved at the early stage of the investigation, with the intention to guide the investigation process from the time the crime is reported until the case is brought to court. By using this model, the prosecutor gains knowledge about the case when the investigation starts and she or he then provides guidance to the investigating officer to ensure that the evidence gathered is relevant and legally sound for successful prosecution. The advent of new and sophisticated methods of perpetrating crimes and increasing complexities within the law have led to increased prosecutorial intervention in the police investigation and greater cooperation between these two groups, where previously such intervention or cooperation did not exist (UNODC, 2014).
Background of prosecutor-led investigation
Prosecutor-led investigation is nothing new in South Africa as it dates back to 1999 when former President Thabo Mbeki announced in his opening address to Parliament, that a special investigation unit was to be established to deal with national priority crimes. Consequently, the Directorate of Special Operations (DSO) was established within the NPA. Members of the DSO were given the same powers as the SAPS in terms of the investigation of crime, entry, search and seizure, arrests and execution of warrants. But the DSO differed from the SAPS as the DSO members held official titles such as “special investigator” and “senior special investigator” and did not investigate ordinary crimes such as housebreaking and assault. According to the NPA Annual Report for 2005/2006, the DSO primarily focused on the following major areas of crime:
- Organised criminal groups;
- complex and serious financial crimes;
- public and private sector corruption; and
- offences of money laundering and racketeering created in terms of the Prevention of Organised Crime Act 21 of 1998 (POCA) (NPA, 2006).