South Africa’s law enforcement agencies can now have access to information gathered by the state capture commission of inquiry, making it easier to build cases against implicated individuals.
This was revealed in a gazette notice published on Tuesday but signed on 15 July, 2020 by President Cyril Ramaphosa and Justice and Correctional Services Minister Ronald Lamola.
Previously, the inquiry’s regulations prohibited people employed by the inquiry from sharing information, even with law enforcement agencies.
Regulation 11(1) stipulated an oath of secrecy, while 11(2) prohibited information sharing “except insofar as it is necessary in the performance of his [employee’s] duties in connection with the functions of the Commission or by order of a competent court.”
Regulation 11(3) also stated that “no person shall, without the written permission of the Chairperson, disseminate any document submitted to the Commission by any person in connection with the inquiry or publish the contents or any portion of the contents of such document.”
Tuesday’s gazette notice introduces sub-regulation 5 in regulation 11 which reads, “Sub-regulation (1) (2) and (3) shall not apply to the sharing of information, records or documents with any state law enforcement agency.” The amendment is effective from 28 July, 2020.
The National Prosecuting Authority (NPA) has come under pressure in recent months for its failure to prosecute high profile state capture cases.
In November last year, National Director of Public Prosecutions (NDPP) Shamila Batohi said while there was good cooperation with the inquiry chaired by Deputy Chief Justice Raymond Zondo, accessing information was difficult.
“The Zondo commission cannot share [information] with us unless it has been made public or if the chairperson has otherwise authorised the release of information, and obviously there’s an unwillingness to do that because there’s much to be gained from people coming forward and giving evidence. We are in dialogue on how to manage challenges on both sides of the fence,” she said.
In an engagement with Parliament earlier this month, Batohi also said the NPA is keen to use the investigative and other skills built up in the inquiry when it eventually winds up.
“The skills are very rare. There’s very few that have these skills to investigate very complex corruption matters. What we found is that, in government, the investigation and prosecution skills have been hollowed out in recent times,” Batohi explained.
The NPA currently has a special investigative directorate headed by Hermione Cronje. The directorate has been focusing on state capture cases, but has been hobbled by lack of capacity.