Despite corruption featuring prominently in public discourse for its devastating socio-economic impacts, meaningful implementation of robust anti-corruption strategies is dismal
In May, the Select Committee on Appropriations of the National Council of Provinces and Standing Committee on Appropriations of the National Assembly held public hearings to solicit comment on the 2023 Appropriation Bill and the Eskom Debt Relief Bill. The Public Service Accountability Monitor (PSAM) made submissions to highlight the need for adequate resourcing, and oversight of South Africa’s anti-corruption system, as envisioned in the NDP 2030 agenda.
The submission follows our earlier media statement, noting additional funds have been provided to support implementation of the State Capture Commission recommendations, announced during the 2023 Budget Speech in February. This included a number of commitments over the next 3 years, with increased allocations of R1.3 billion to the National Prosecuting Authority (NPA), R100 million to the Special Investigating Unit (SIU), and R256.3 million to the Financial Intelligence Centre (FIC). Although we welcomed the follow through on earlier commitments to shore up resourcing to key crime and corruption fighting entities, our further research has highlighted a number of concerns which make us question whether the president is in fact serious about addressing corruption.
The main focus of our submission was on the National Anti-Corruption Strategy (NACS), published in 2020, intended to serve as a guide for government, the business sector and civil society organisations, to help coordinate and support their efforts to reduce corruption. One of the key elements of the strategy, was the establishment of an independent overarching statutory/constitutionally entrenched state body that will report to Parliament, and is premised on an integrated, multi-dimensional operational model with cross-sectoral collaboration. It is worth noting that the process to develop the strategy was initiated in 2015 with the diagnostic report published in 2017.
The NACS anticipated that it could take up to two years before a permanent anti-corruption body could be in place and proposed an interim multi-sectoral advisory body, called the National Anti-Corruption Advisory Council (NACAC). Despite commitments to the establishment of the council in SONA 2021, NACAC members were only appointed at the end of August 2022. Although there have been articles on work underway, there does not appear to be a clear communication channel to keep the public informed on the activities and progress of NACAC, towards implementation of the NACS. There also does not appear to be an implementation plan or budget attached to the NACS, despite this being identified as an important component of the strategy, to be completed after approval.
Coordination of the various stakeholders is one of the key tasks of NACAC, taking existing coordinating arrangements, such as the Anti-Corruption Task Team (ACTT) into consideration. The lack of coordination between the various stakeholders tasked with implementation of the NACS (as well as the recommendations emanating from the State Capture Commission) has implications for the effectiveness of individual entities and undermines the impact of additional resources allocated.
The NPA and SIU in early 2022 appeared before SCOPA after revelations about the low number of referrals from SIU that were successfully prosecuted. The NPA report indicated that, of more than 1500 referrals only 41 matters had been enrolled by the NPA. The explanation seems to rest largely on the differing mandate of the two entities, governed by different acts, resulting in referrals being made that do not meet the requirements of the NPA for prosecution. The response from the NPA was to draft an MoU between the NPA, SIU and other entities to improve coordination.
This brings us back to the budget. The NPA received the largest share of additional funds allocated in this year’s budget, of R1.3 billion allocated over the next 3 years “to support the implementation of the state capture commission and the Financial Task Force recommendations.” This entails increasing capacity in the National Prosecutions Service, and Investigating Directorate, procuring specialist services to assist in the prosecution of complex financial crimes, improvements to forensics capabilities, improved security and witness protection services.
We are optimistic that these additional funds, more than was requested in the NPA annual Report 2021/22, will assist in improving outcomes, but share concerns raised by others about the effectiveness of the NPA and its ability to prosecute without fear or favour. The Annual Performance Plan 2023/24, recently presented in parliament, shows reduction in many of its targets over the next 3 years. Conviction rate targets were decreased in all courts including those specific to corruption cases. The NPA has also received widespread criticism for its handling of two recent cases linked to the State Capture Commission – the Gupta extradition case, and the Nulane case, raising further doubts about whether we are likely to see convictions emanating from the commission, despite repeated commitments from the president.
The progress in establishing the Investigating Directorate as a permanent entity in the NPA is certainly encouraging, and we hope that additional resources will further support its institutional development, however, we were concerned to discover that the subprogramme only spent 73% of its budget in 2022/23.
The SIU received R100 million, allocated over the next 3 years to enable it to increase the number of civil cases enrolled in the newly established special tribunal from 35 in 2022/23 to 65 in 2025/26, however the unit has repeatedly raised concerns about its funding model which requires that 40% of the SIU budget is funded by SIU invoiced services which are not being paid, and recent reports suggest the debt has increased to around R1 billion. National Treasury has approved the retention of surplus funds of almost R1 billion, which will relieve pressure in the short run, but will not solve the inherent conflict of the current funding model which threatens the sustainability of the unit. The Directorate for Priority Crime Investigation, does not have its own budget line in the Estimates of National Expenditure, but is supported by the detective services and crime intelligence units. This makes it difficult to determine whether additional resources have been allocated to the Hawks, but SAPS received R7.8 billion to recruit 5 000 new police trainees per year, which is encouraging, but not sufficient to overcome declining headcount in the police force since 2012.
Police trainees and aspirant prosecutors are not likely to make a significant impact on capacity constraints in detection, investigation or prosecution of complex financial crimes and corruption in the immediate future.
If the NPA is unable to deliver on its mandate, without improved performance of other entities in the anti-corruption system, then will additional resources improve outcomes? What about the existing challenges within the NPA itself?
We recognise that some progress is being made in the fight against corruption, and some of the necessary regulatory and institutional reforms are being advanced. However, we remain concerned that the timeline does not speak to the urgency required, and the urgency stated in repeated commitments by the President to addressing corruption.
We need the state to do better. The public needs to see real progress – commitments that translate into completed investigations, appropriate disciplinary action (including convictions of high profile individuals) of those implicated in the State Capture Inquiry and continued recovery of the proceeds of crime. Furthermore, we urgently need to put in place measures to prevent this from continuing, and to restore trust in the state.
Considerable resources have gone into the development of the NACS. The Advisory Council has been established, and should receive the full support of the state to ensure that an implementation and resourcing plan is put in place, which takes recent developments, including the Procurement Bill and Chief Justice Zondo’s recommendations emanating from the State Capture Commission.
