Joint NPA/DPCI statement on the release of the Zondo Commission Report
12 January 2022
Earlier this month the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State, better known as the Zondo Commission or State Capture Commission released its first of three reports.
The Commission must be commended for this important work that demonstrates that South Africa has the political maturity and wherewithal to mount an effective enquiry into one of the darkest periods of the post-apartheid era. The Commission’s recommendations will allow for the strengthening of the rule of law in South Africa, ensuring that no one, irrespective of their power, position or wealth, is above the law. South Africans deserve nothing less.
The Commission’s work documents the extent of state capture that befell South Africa and how such capture occurred. The latter point is crucial to understand if, as government and as a country, we are serious about preventing a recurrence of state capture, and the resultant devastation to the country and our people. In addition to its formal reports, the Commission leaves behind a legacy of materials amounting to a petabyte of data, which is equivalent to roughly 500 billion pages of printed text on corruption, fraud and related offences, including affidavits, investigative reports and other evidential material.
The Commission’s work gives additional impetus to the process of rebuilding the rule of law after a very difficult period. The National Prosecuting Authority (NPA) and Directorate for Priority Crimes Investigation (DPCI) are systematically reviewing the Commission’s findings and recommendations, with a view to investigating and building cases for criminal prosecution against those who broke the law, be they from the public or private sectors. This will include, where appropriate, the freezing and forfeiture of the proceeds of crimes. It’s however important to note the differences between evidence presented before a commission of enquiry and evidence required to meet the standard of proof for prosecutions. In the case of the latter, criminal investigations will be conducted so that evidence that can be presented in criminal matters, in accordance with the South African law of evidence.
This is a Herculean task given the volume of materials and the finite human and financial resources available to our law enforcement and criminal justice agencies. The NPA is vigorously exploring options to boost its capacities, capabilities and resources. It will continue to do so with the assistance of relevant departments, including National Treasury, DPSA and the Solicitor General’s Office, and with the support of the Minister and the DG of Justice. The NPA will also continue its collaborative approach in line with its legal mandate, including with the private sector as appropriate. The NPA welcomes the expressions of support from the private sector and will continue to engage with these key partners as appropriate, whilst insulating itself from any perceptions of external influence.
The NPA takes note of the Commission’s finding that it failed to respond adequately to state capture, and that the NPA’s institutional weaknesses need to be addressed. In this regard, the NDPP has publicly acknowledged the challenges facing the NPA, including in its efforts to prosecute high-level corruption matters. The NDPP has also highlighted the associated challenges facing the NPA’s law enforcement counterparts, and the impact this has on the NPA’s ability to prosecute complex crimes. Rebuilding the NPA after years of being undermined by state capture actors was never going to be quick or easy. Yet, significant progress has been made, and the NPA is slowly but surely being rebuilt to enable it to deliver on its vital mandate. The NPA will also continue prioritising internal processes to ensure that any prosecutors engaged in acts of criminality or improper conduct, including in the context of state capture, are dealt with effectively and fairly.
Furthermore, given the importance of avoiding the future capture of the NPA, or any other state institution, which brought South Africa close to financial collapse, it is crucial that the NPA’s de jure and de facto independence be assured, including in terms of its relationship with the Executive and in the manner in which the NPA’s senior leadership is appointed.
As the NPA ramps up the prosecution of those implicated in state capture, it is crucial that its actions are, and are seen to be, independent of any undue influence. Anything short of this, will undermine South African’s trust and confidence in the rule of law and due process, which is, for various reasons, already at concerningly low levels.
In response to the Commission’s first report, the NPA has created a dedicated Task Force, coordinated at the highest levels within the NPA. An urgent review of all cases covered in the report, including those already proclaimed by the NPA’s Investigating Directorate (ID) will be conducted. The Task Force’s main focus is on progress and impact. It builds on the work already done within the NPA over the past few years, in collaboration with the Zondo Commission and other law enforcement partners.
In the context of the Anti-Corruption Task Team (ACTT), a meeting of key law enforcement partners will be scheduled to ensure optimal coordination and collaboration for success, including in the area of asset recovery. The NPA also welcomes the steps towards setting up of a dedicated court to handle state capture matters. This will enable speedy finalisation of cases and conviction-based asset recoveries.
The ID is a central actor in the NPA’s response to the Commission’s reports and it is currently investigating several matters mentioned therein. The ID is well-placed to respond to the Commission’s reports, and has commenced a process to proactively prepare to respond appropriately to the recommendations which fall within its mandate. The ID is in the process of onboarding resources from the Zondo Commission, including the transfer of the digital forensic capacity to the NPA, whilst also taking the necessary steps, through National Treasury to increase its capacity, proportionate to the demands emanating from the Commission's reports. Internal coordination within the NPA, as well as external coordination with stakeholders, is being strengthened in order to ensure effective collaboration and coordination in the investigation and prosecution of complex corruption matters, as well as asset recovery.
DPCI will, as mandated to deal with national priority offences, which include serious corruption, serious commercial crime and serious organised crime, take its place alongside its partners and respond accordingly to the Commission’s recommendations which fall within the DPCI’s mandate. A team comprising of senior officers from the operational investigation components is identifying cases that may have been reported and currently being investigated by the respective components of the DPCI, prior to the release of the Commission’s first report. This will enable the DPCI to take stock of what is already part of the Commission’s findings and recommendations which forms part of its existing investigations, and equally respond to other recommendations as they may fall within its mandate, but not part of the existing investigations.
The NPA and DPCI are committed to ending impunity for high-level corruption and other crimes in South Africa. The Commission’s reports highlight the extent of suspected criminality flowing from state capture, and the scale and nature of the task at hand to hold those responsible to account. South Africans deserve to see justice being done for heinous crimes that have undermined our country’s development prospects, that have disproportionately affected the poor and the vulnerable, and ruined the lives and dreams of many people. We are under no illusions about the enormity of the task at hand, and the challenges that we face; but we give you, the people of South Africa, our commitment, that, guided by the evidence and the values enshrined in our Constitution, we will not rest until the rule of law once again lights our way in South Africa.
Issued by NPA/DPCI, 12 January 2022