EDITORIAL: Investigative Directorate must get on with state capture convictions

With a mere two years left in existence and public patience wearing thin, the Investigative Directorate (ID) is running out of time to prove itself as a corruption-busting entity worth its mettle. For it and the prosecuting authority to gain any ground in terms of public confidence, they must win cases, and do so soon.

Chief justice Raymond Zondo is — or so he tells us — six weeks away from finalising the fifth and final section of the state capture inquiry report. Once he hands that over to President Cyril Ramaphosa, the inquiry’s reporting work will be done. Bringing those culpable to book should follow.

The commission’s administrators will tie up loose ends, while Ramaphosa formulates his response to the findings and recommendations. His implementation plan, to be outlined before parliament, should be delivered some time from the middle of October.

Sceptics will be forgiven for doubting that Zondo will meet the promised mid-July deadline. But for the ID, this should be neither here nor there.

The directorate and, indeed, its mother body are not constrained by the commission’s failure to deliver reports on time, however informative the inquiry’s dossiers of evidence may prove. The National Prosecuting Authority (NPA) has long known about the most blatant state capture cases. After all, former public protector Thuli Madonsela’s report dates back to October 2016.

Six years on, Ramaphosa will outline his action plan. The talk shop is unlikely to inspire any certainty that the billions of rand laundered through the global financial system will be recovered, never mind nabbing those responsible. To successfully prosecute such sophisticated financial crimes is not impossible. However, it does demand acute skill, which is lacking in the public sector.

Three years ago, Ramaphosa created the ID as a specialist division of the NPA, with a singular goal in mind. The ID’s express purpose was to prosecute crimes associated with state capture, but so far this is yet to bear any fruit.

The ID’s objective is to build dockets and successfully prosecute the most egregious cases of state capture crimes, namely corruption, fraud, money laundering, racketeering and more.

More recently, there have been noteworthy gains. Consider the preserved assets linked to Optimum Coal Mine and Regiments Capital, running into more than R3bn altogether.

These triumphs, preliminary steps on a road to bigger cases in which conservation orders on the assets will be sought contingent on successful convictions, are likely to be bittersweet for the former head of the ID, Hermione Cronje, whose departure was seen as a reflection of systemic problem with regard to skills and funds in the NPA.

This week’s win was largely informed by her submissions to the court in 2019, so to have over R1bn in assets put back in the hands of the ID vindicates her early work on the case. But this only takes things so far. A preservation order is only a hold on suspected proceeds of crime, which can be confiscated for good only after a conviction.

Cronje provided a founding affidavit when the ID won its first provisional preservation order to attach assets belonging to Regiments Capital. But when she went back to court for an ex parte — in other words, without the respondents being informed — hearing to get that order rebooted for a longer period after the original order expired, things went awry.

A high court judge found Cronje made omissions considered material to the granting (or, extension) of the order. The latest high court order, which is the outcome of a full bench decision, grants the preservation order pending further litigation. If that litigation — namely criminal cases against the alleged perpetrators of state capture — succeeds the ID will have reached the next phase.

The ID kicked off its work in May 2019 when Shamila Batohi, the national director of public prosecutions, and Cronje seemed bullish. But three years later, the ID is facing down the barrel of public scrutiny and Batohi is in the spotlight.

With under half of the ID’s five years in existence left, the stakes are only rising.