NPA Act

The operational manual of IDAC sets out procedures for investigations, referrals, team constitutions, reporting, presentations and briefings according to sections 7, 27, 28 and 29 of the NPA Act, but Advocate Johnson frequently deviated from it and did things her own way causing constant deviation and intimidation.

“The operational manual is supposed to, ... And when I use the word supposedly, if I may, Advocate Segels, continue? Advocate Johnson would deviate constantly. It was a situation where we had this, but she would also have her own way of doing things with different groups, different investigations, different structures. So there was a constant deviation from what was in black and white and it was always from her office that the deviation was done. And when the deviation was done, it always came with intimidation.”

IDAC's mandate includes investigating and prosecuting serious, high-profile, or complex corruption and related commercial or financial crimes, as well as related common law offences including fraud, forgery, theft, and offences involving dishonesty.

“IDAC's mandate, as I understand it, is to investigate and where sufficient evidence of criminality is established to prosecute matters of serious, high-profile, or complex corruption and related commercial or financial crime. Asset out in section 7 of the NPA Act, the mandate extends to related common law offences, including fraud, forgery, uttering, theft, and any offence involving dishonesty and related to offences including contravention of PRECCA, POCA, PFMA, and the Local Government Municipal Financial Management Act, the Financial Intelligence Centre Act.”

Ms Ramsamy understood there is some debate about the interpretation of section 7(1)(A) of the NPA Act but explains IDAC interprets it as concerning serious or high-profile or complex corruption or financial criminal cases.

“My understanding is that IDAC interprets this section to mean that IDAC's mandate, insofar as section 7(1)(A) is concerned, is to investigate serious corruption or serious commercial or serious financial criminal cases, high-profile corruption or serious commercial or serious financial criminal cases, complex corruption or serious commercial or serious financial criminal cases.”

Section 41(6) refers to a provision of the NPA Act that prevents disclosure of information without authorization from the National Director of Public Prosecution, indicating strict confidentiality in the investigation.

“Section 41(6) of the NPA Act prevents a member or employee or service provider or contractor to NPA from divulging information without the authorization of the National Director of Public Prosecution. It is a certificate that is given to a person where we are, for example, now speaking about WhatsApp's, emails, that are internal.”

Conduct of investigation authorized by head of Investigating Directorate related to serious high profile or complex corruption within SAPS under section 28(1)(a) of the NPA Act.

“The information required from you relates to the conduct of an investigation into serious high profile or complex corruption within the South African Police Services, authorised by the Investigating Director who is the Head of the Investigating Directorate, in terms of section 28 (1) (a) of the NPA Act, into allegations of the commission of the following offences, fraud, corruption, defeating, or obstructing of the administration of justice.”

Section 28 summonses are signed either by the Investigator Director or persons authorized by him or her, who have delegated authority to institute and conduct prosecutions on behalf of the state.

“In terms of section, I think it is 20 of the NPA Act, we delegate authority... The main is the ability to institute prosecutions for and on behalf of the State and to conduct investigations incidental to those prosecutions”

Summonses under section 28, especially 28(6) read with 28(7) of the NPA Act require signature by ID or authorized person and such summonses are used to demand information related to investigations.

“you see at the top of that document it says it is a summons in terms of section 28(6) read with 28(7) of the NPA Act”

The investigations authorized under section 8(13) by the Investigating Director pertained to all allegations of fraud and corruption as per dockets reviewed, but the initial statements by Mr Adams were considered flimsy and other dockets required additional statements.

“The investigation was authorised by the Investigating Director in terms of section 8(13) of the NPA Act into allegations of fraud and corruption... original dockets by Adams were exactly what General Chamane says. They were flimsy. So they took additional statements”

There is a provision in the NPA Act that if during an investigation one comes across information about an offence not being investigated, one must refer it to the appropriate agency.

“there is a provision that provides, that states that if in the course of your investigation, you come up on, I am going to call it information, of a possible offence, another offence, that is not what you are investigating, you can refer on if it is not part of what you are investigating”

There is a provision in the NPA Act that if, during an investigation, information about a possible offence outside the scope of the investigation is found, the investigator can refer this to another agency.

“there is a provision that provides, that states that if in the course of your investigation, you come up on, I am going to call it information because I do not remember the exact terminology, of a possible offence, another offence, that is not what you are investigating, you can refer on if it is not part of what you are investigating . Am I correct in remembering such a provision ?”

Possession of intelligence documents that were not properly or lawfully given to Mr Adams should have been referred to the appropriate agency for investigation under the NPA Act.

“Did you do anything in accordance with the provision of your Act that says if you come upon information that suggests a possible offence being committed, you refer it to another agency, did you refer this possession of intelligence documents that were on Mr Adams' own account, were not properly given to him or lawfully given to him, did you refer it to the appropriate agency for investigation ?”

Prosecutors have the power to institute and conduct criminal proceedings for the State, derived from section 20 of the NPA Act.

“All prosecutors have the power to institute and conduct criminal proceedings for and on behalf of the State, and so those powers find themselves in section 20 of the NPA Act.”

Investigators' powers are derived from section 29(A) of the NPA Act and include investigative powers subject to control and direction of the Head of Investigating Directorate.

“...the powers are derived from section 29 of the NPA Act... gives investigators powers to deal with aspects of investigations subject to the control and direction of the head of the Investigating Directorate...”

Investigators under subsection (2) of section 29 of the NPA Act have the same powers as a peace officer or police official under the Criminal Procedure Act.

“An investigator under subsection (2) has the same powers as a peace officer or a police official as provided for in the Criminal Procedure Act...”

The names given earlier were names of the team shortly after receiving the section 27 referral and preliminary investigation authorized; some persons were added later for a full investigation under section 28(1) of the NPA Act.

“the names that I gave you were the names of the teams shortly after we had received the section 27 referral and we had the preliminary investigation authorised. As the investigation progressed and just before the arrests, there was an application for a section 28(1) full investigation in terms of the NPA Act.”

Section 27 of the NPA Act requires affidavits to contain specific information with sub-sections A, B, and C, and non-compliance may result in the matter being unable to proceed.

“Section 27. So you do agree section 27, sub A, sub B, and to some extent sub C ... dictates what the affidavit should contain ... whereas a section 27 affidavit is insufficient for any one of a number of reasons, we ordinarily would ask the complainant to supplement or amplify and indicate what the shortcomings are ... If the complainant is unable to amplify any portion or portions that would then fulfil the requirements of section 27, we then have to indicate that we are unable to take the matter because the matter must fulfil certain requirements.”

The right to refuse to answer questions on the basis of self-incrimination during the Commission inquiry may be more stringent under the NPA Act than under constitutional protections, raising questions about legal interpretations applicable to witnesses during the inquiry.

“Why is the NPA Act seems to be so stringent when it comes to the invocation of that right? ... I pose this question specifically to this particular witness because she happens to be a lawyer and advocate over 30 years ... I thought she might be able to shed some light”

Advocate Johnson indicated the prosecution memorandum was submitted prior to enrolment and referred to in terms of section 24(2) of the NPA Act.

“... kindly ask for the prosecution memo that is submitted to the office of the DPP prior to enrolment, which is what is referred to in terms of section 24, subsection 2 of the NPA Act.”

IDAC allegedly operates outside its mandate per section 7(1)(A) of the NPA Act as amended.

“That IDAC allegedly and unlawfully operates outside its mandate in terms of section 7 (1) (A) of the NPA Act as amended.”

Advocate Sello SC compared the right against self-incrimination under the Commission's Act with a similar provision in the NPA Act.

“I find it interesting that you have a similar provision in the Act, in the NPA Act, and I want to see whether you draw a distinction”

The right not to self-incriminate under the Commission Act is more stringent than the right invoked by persons interrogated by the Investigating Directorate.

“why it is the NPA Act seems to be so stringent when it comes to the invocation of that right ?”

IDAC allegedly operates outside its mandate as set in section 7(1)(A) of the NPA Act as amended.

“That IDAC allegedly and unlawfully operates outside its mandate in terms of section 71A of the NPA Act as amended”

IDAC allegedly operates outside its mandate as defined in section 7(1A) of the NPA Act, as amended.

“That IDAC allegedly and unlawfully operates outside of its mandate in terms of section 7(1A) of the NPA Act, as amended”

IDAC states it strictly operates within its mandate and considers matters referred arising from state capture and commissions such as the Justice Mpatia and Justice Nugent Commissions.

“8. The IDAC operates strictly within its mandate. That mandate is set out in section 7 (1) (A) of the NPA Act as amended. It also considers matters referred to it arising from the state capture, the Commissions that were colloquially known as the Justice Mpatia and Justice Nugent Commissions, and any other matter referred to it by the National Director of Public Prosecutions. IDAC has not dealt with matters outside its mandate.”

Section 28(8)(a) and (b) of the NPA Act protects privilege applicable to a witness summoned to give evidence in a criminal case in a Magistrate's Court, including protection against self-incrimination in response to questions.

“The law regarding privilege as applicable to a witness summoned to give evidence in a criminal case in a Magistrate's Court shall apply in relation to the questioning of a person in terms of subsection (6), provided that such persons shall not be entitled to refuse any answer, to answer any question upon the ground that the answer would tend to expose him or her to a criminal charge.”

Section 28(8) of the NPA Act is equivalent to section 3(4) of the Commission's Act, providing similar rights regarding privilege against self-incrimination to witnesses.

“28(8) to be equivalent to the Commission's Act section 3(4) which means that rights are the same”

Summons dated 6 February 2025 referenced investigation into serious fraud and corruption committed within SAPS, invoking section 28(13) of the NPA Act.

“The information required from you relates to the conducting of an investigation into serious fraud and corruption committed within SAPS ... invoke section 28(13) of the NPA Act ...”

Colonel Padayachee is summoned to give evidence concerning allegations that the Investigating Directorate for Corruption (IDAC) operates outside its legal mandate under the NPA Act section 7(1)(A).

“Allegations that IDAC operates outside its mandate in terms of prescribed legal constructs, namely section 1(a) of the NPA Act as amended.”

This matter came under a referral in terms of section 27 of the NPA Act from Member of Parliament Mr Fadiel Adams.

“A referral. This matter came under a referral in terms of section 27 of the NPA Act... from a Member of Parliament, Mr Fadiel Adams.”

Complaints to IDAC come in by affidavit under section 27 of the NPA Act and are reviewed by the Case Intake Committee to determine if they fall within IDAC's mandate, followed by investigation under section 28 if sufficient information exists.

“Section 27 deals with the reporting of matters to the Investigating Director...A complaint that is referred in terms of section 27 comes to the Head of Office, the Investigating Director, then to the Case Intake Committee who decide if it falls within mandate...If sufficient information on referral, a full-blown investigation can be conducted in terms of section 28”

The referral affidavit must comply with section 27 of the NPA Act, stating the grounds of suspicion and nature of the suspicion.

“Section 27 then must state the grounds on which the suspicion is based.”

The investigation focuses on whether the Investigating Directorate (ID) operates outside its prescribed legal mandate as per section 7(1A) of the NPA Act, analysed solely on the affidavit's contents without considering subsequent facts.

“what we are trying to establish is whether IDA Cooperates outside of its mandate in terms of the prescribed legal prescripts, namely section 7 (1A) of the NPA Act. So our engagement is aimed at establishing that. That is why we are looking at the affidavit as it stands, and we are saying, would IDAC, looking at the affidavit, without the subsequent knowledge of facts that you came to learn about a year later ...”