The absence of arrests and charges against high-level politicians, officials and business people for looting hundreds of billions of rand of public funds in South Africa has resulted in much criticism of the police’s Directorate for Priority Crime Investigation (the Hawks). Even Deputy Chief Justice Raymond Zondo who chairs the commission of inquiry into state capture criticised the Hawks’ apparent inaction relating to testimony about fraudulent payments by Transnet.
Daily Maverick, in a 24 June editorial, called for the Hawks’ disbandment. The article argues that because the investigation unit has been so ‘thoroughly compromised’ by state capture, it is ‘almost impossible’ to undo the damage caused by its previous national head, Berning Ntlemeza, and his ‘cronies’.
Ntlemeza was ‘retired’ from the South African Police Service (SAPS) as a major-general by then police minister Fikile Mbalula in 2017 after the High Court found that his appointment was unlawful. He was replaced in June 2018 by Lieutenant-General Godfrey Lebeya, a former SAPS deputy national commissioner.
Lebeya has an impressive CV and is clearly well qualified for the position. He is a highly experienced police officer with more than 30 years’ service as a detective, has a doctorate in law and is an admitted advocate of the High Court. His doctoral thesis was a comparative study of organised crime in South Africa and a number of other countries. In 2014 he published a book, Understanding Organised Crime, on the subject.
The Hawks’ 1 700 investigators are currently working on almost 19 000 cases
Lebeya believes the damage caused to the Hawks as a result of state capture can be undone, although this requires a methodical and meticulous process. In an interview with ISS Today, he outlined the damage he discovered at the Hawks, and the corrective measures he is implementing. His philosophy is that the integrity of the Hawks must be beyond reproach. But fixing the investigation unit requires a wide-ranging approach that tackles numerous internal and external challenges.
One of the more difficult internal challenges has been dealing with problematic appointments made during the state capture period. Ntlemeza left behind numerous of these, and in response a detailed assessment of all Hawks personnel was required. Where misconduct was identified, disciplinary proceedings have been instituted. In some cases criminal charges are being considered against members of the panels that made irregular appointments.
In North West the provincial head resigned immediately after Lebeya’s appointment, while in the Eastern Cape the provincial head resigned when he was to present his case during disciplinary proceedings against him.
Former Gauteng head Prince Mokotedi now faces both disciplinary action at the Hawks and a criminal investigation arising from his former position at the National Prosecuting Authority (NPA). While these processes are under way, he has been transferred to the National Intervention Unit, but is challenging this transfer in the Labour Court.
To effectively investigate organised crime and corruption, the Hawks need another 2 500 investigators
Disciplinary processes are also ongoing in the case of Major-General Zinhle Mnonopi after she was suspended in September 2018 as a result of testimony by former deputy finance minister Mcebisi Jonas. She allegedly tried to scupper criminal investigations into the Guptas, the wealthy Indian-born family at the heart of the Zondo Commission’s state capture inquiry.
This was after a criminal complaint was opened against them for attempting to bribe Jonas with R600 million to take the finance minister position. During the disciplinary proceedings Mnonopi apparently became unwell and is currently booked off sick.
The Hawks, who are operating with a staff complement of less than 50%, face a daunting task given their severe capacity constraints. However this is slowly being addressed through the reappointment of several former Hawks members who were either removed by Ntlemeza or who left because of him.
Shortly after his appointment, Lebeya ordered a review of the effectiveness of the Hawks’ structure, given its mandate. The study took about a year to complete and recommended establishing additional units at provincial level to ensure better investigation of serious organised crime, commercial crime and corruption. It also suggested appointing a chartered accountant at the Hawks’ head office.
Sustained investment in both the Hawks and the NPA is needed to turn the tide of corruption
Given capacity constraints, it is crucial that cases are prioritised. Currently the Hawks are focusing on high-ranking government officials, including those at local government level. Some of these investigations include the VBS bank scandal and cases mentioned at the Zondo Commission.
The Hawks’ 1 700 investigators, some of whom are helping the Investigative Directorate of the NPA, are working on almost 19 000 cases with over 15 000 accused on court rolls countrywide at the end of March. They have also recently referred more than 1 800 cases relating to serious offences to the NPA.
However these cases’ success also depends on the capacity of the NPA to prosecute them. And according to prosecutions head Shamila Batohi, the NPA currently doesn’t have adequate capacity. In a briefing to Parliament’s portfolio committee on justice and correctional services in July, she said insufficient funding, a high vacancy rate and an exodus of senior prosecutors had ‘a major impact on the delivery of services’.
Also, the complexity of most cases the Hawks and NPA deal with requires a team approach. One case can contain up to 6 500 counts. Lebeya estimates that for the Hawks to effectively investigate organised crime and corruption, especially within municipalities, they need at least another 2 500 investigators with the required resources and support structures.
The process of saving the Hawks and restoring its investigative capability is clearly under way and Lebeya appears to be the right man for this difficult task. But it is equally important to save the NPA. Sustained investment in both these critical agencies is needed if government is serious about reducing organised crime and corruption in South Africa.
Written by Johan Burger, Consultant, Justice and Violence Prevention Programme, ISS Pretoria.