Over the past few years, OUTA has built a team of highly professional investigators, researchers, lawyers and advocates who meticulously build our cases. Similar to the Hawks and the NPA, we investigate the allegations and gather ourselves, all the evidence which enables us to build solid cases. It is only after we have built the case with compelling evidence of wrongdoing and substantive transgressions of the law, that we actually lay complaints with the relevant authorities.
By doing this work ourselves, we know that these cases carry weight in merit. However, the South African legal system is no “Wade van Niekerk” and in fact, similar to legal systems around the globe, it is like swimming through treacle. Set out below are the steps to be taken in a criminal case, with guesstimates of how long each phase does/could take. It doesn’t make easy reading if you want quick justice!
Step 1: Building a case includes investigations, research and PAIA applications. This can take weeks and even Months: depending on the complexity. OUTA gathers the evidence and builds the case to ensure quality.
Step 2: Laying the complaint. No delays. It is important to obtain a case number.
Step 3:An investigating officer is appointed by the SAPS. There should be no delays.
Step 4: The investigating officer will investigate the matter and will obtain all the necessary evidence to prove the crime. This part of the process could take months – even years: depending on the complexity and amount of investigations/evidence needed. OUTA continuously follows up with the investigator/s to determine progress and ensure priority.
Step 5: Prosecution: Once the matter is investigated, the investigating officer submits the docket to the NPA. The NPA, represented by a prosecutor, will decide whether to prosecute the matter or not. Anything between 1 – 6 months, sometimes longer due to workload. This step is often hampered by a lack of willingness, in the case of high profile and connected political people implicated. Therefore OUTA continues to apply pressure through following up on these matters.
Step 6: Prosecution: If the NPA decides to prosecute, the accused person will be brought to the appropriate court. Once that happens, a whole set of rights kick in and the trial is dealt with according to legislation. Again this element can stretch from months to years: depending on the complexity of the matter and sadly, political will.
If the prosecutor decides not to prosecute, and there is sufficient merit to pursue the case, OUTA can apply for a nolle prosequi (this means that a decision was made not to prosecute) certificate which will enable us to determine the feasibility of a Private Prosecution.
Thus, as can be seen from above there is no set time period that a case should take. The OUTA team is as frustrated as our supporters are in these long delays, but we do know that what we are doing is right and constructive for South Africa in the medium to long term, in that:-
- Our charges help to obtain a mandamus rulings (a court order to force the authorities to do their jobs). They also enable the possibility of Anton Piller search warrants (private search and seizure orders).
- Then there are the opportunities of private asset freezing orders, both locally and abroad, that arise from our charges. (OUTA recently launched an interim interdict to freeze R1.75 billion in the Gupta-owned Optimum and Koornfontein coal mines rehabilitation trust fund accounts, related to our earlier charges against the Guptas)
- Private prosecutions. This is the last resort, but OUTA is geared to do private prosecutions and will do so when required of us.
- Statutory reporting of suspected crimes can also be registered in foreign territories since most corruption, tax evasion and money laundering crimes are considered extra-territorial in execution. This means that other countries’ law enforcement agencies may well be able to act when our own choose not to.
The cases that OUTA has filed do not disappear once registered, they are on record and remain within the policing systems. And while we are aware that many barriers are placed within the policing and prosecuting processes to slow some of our cases down, the truth does prevail in time. We also know that the current people that get in the way of justice will not always be there to stop the law from taking its eventual course. In time, the perpetrators will be held to account – of that we are sure, which is why it is very important to ensure that the work OUTA does in building the cases contain the facts and that the authorities are given an opportunity to add to them and test their authenticity at any time.