Investigating Directorate blames lack of skills for its court defeats

The Investigating Directorate (ID) of the National Prosecuting Authority (NPA) has blamed a shortage of specialised forensic accountants, auditors and financial investigators in its ranks for court defeats in state-capture cases.

This was after the Middelburg specialised commercial crimes court on Tuesday struck former Eskom boss Matshela Koko’s R2.2bn fraud, corruption and money-laundering case off the roll due to unreasonable delays.

The ID filed an application for leave to appeal in May after its loss in the first state-capture trial, citing “gross irregularity” after the court discharged the accused.

The case involved corruption charges the NPA brought against several officials from the Free State department of agriculture accusing them and others of paying almost R25m to Gupta-linked company Nulane Investments for a study related to the infamous Vrede dairy farm project.

This project was aimed at empowering black farmers, but they were sidelined when the money went to others with alleged ties to the Guptas. The NPA failed to show the accused worked together to siphon money for corrupt ends through the agriculture project.

The NPA, which has been criticised for its handling of state-capture cases, was left bruised over its unsuccessful extradition of the Guptas from the United Arab Emirates in 2022. The brothers are charged with fraud, corruption and money laundering and were arrested in June 2022 in Dubai after Interpol issued red notices. 

The Directorate for Priority Crime Investigation (the DPCI, also known  as the Hawks), the NPA and the Special Investigating Unit (SIU) briefed the standing committee on public accounts (Scopa) in parliament on Wednesday about collaboration on cases pertaining to state-owned enterprises (SOEs) referred by the SIU. The SOEs include Eskom, Transnet, SAA, Prasa and Denel.

ID head Andrea Johnson said the directorate faces “institutional impediments” relating to its nonpermanence. It depends on secondment of personnel from other law-enforcement agencies for its criminal investigations, she said.

“There is limited skill and capable investigators and prosecutors who are equal to the scale and scope of investigations that ID is seized with. There is a shortage of specialised forensic accountants, auditors and financial investigators in the public sector and so at present what we do is for these specialised services [is to] go out on the procurement process within the Treasury regulations. That’s how we procure the specialised services for digital forensic services and forensic accounting services,” said Johnson.

“At present we are unable to recruit and retain critically skilled and experienced personnel, not only at sustainable remunerative rates but the nonpermanence of the ID hinders the fact that the ID can go out and recruit staff. We still have a lot of staff currently that are on contract, with contracts expiring as early as first quarter of 2024.”

Johnson bemoaned the lack of digital forensic and data analysts. “These are in critical cases where we have terabytes of data that has to be analysed and processed. This is quite a scarce skill capacity in terms of law enforcement across the board, so we are all trying to fish in the very little pond for these very specialised services of digital forensics and data analysts. In terms of the market, they are more competitive in the private sector and are able to recruit them,” she said.

The time that had passed since the crimes under investigation were committed is another factor as witnesses and suspects are no longer available in some instances. Record-keeping is another issue that hinders the ID’s capacity to deliver on its mandate more efficiently.

“There is critical evidential material that is not retained by many government institutions and that has also become a challenge in terms of evidence and presenting these matters in court as these departments do not have original documentation,” said Johnson.

She said the SIU has referred eight matters to the ID, of which four are under investigation, three are before the courts and one is being considered.

Deputy national director of public prosecutions Rodney de Kock said the NPA has done much to strengthen the state’s ability to conduct financial investigations. More is being done to strengthen the Financial Intelligence Centre to tackle the illicit flow of funds. “The ID was set up in March 2022 by the president. Since then a lot of fundamental work has been done [in terms of] serious, complex investigations,” said De Kock. There are about 21 financial investigators employed in the ID.

He said the NPA Amendment Bill would bring more stability as it would make the ID a permanent entity in the NPA and allow it to “appoint criminal investigators with police powers.”

Hawks head Lt-Gen Godfrey Lebeya said the DPIC has a workload of 19,622 cases, with 11,698 on the court roll.

DA MP Benedicta Maria van Minnen said that on Tuesday “ “we saw the situation with the Koko matter, where it was thrown out of court on the basis that it has now been sitting for five years”. She called on law-enforcement agencies to take investigations seriously “so they did not exist only on paper”.

mkentanel@businesslive.co.za