The decision by Minister of Public Enterprises Lynne Brown to refer Eskom’s alleged maladministration and corruption cases to the Special Investigations Unit (SIU) is a ploy to sidestep public accountability.
This is a view expressed by forensic investigations specialists and experts familiar with flagrant contravention of Public Finance Management Act and Treasury regulations at Eskom.
Two main factors, the Citizen is told, decrease the likelihood of this being a credible and independent investigation.
The first red flag is that the SIU can only conduct an investigation the state president refers to it. In terms of delegation of authority, the unit reports to the head of state on its work.
This, according to Chris Yelland of BEE Publishers, is a conflict of interest, as the president’s family members, and even the president himself, were implicated in the State of Capture report released by former public protector Thuli Madonsela.
The SIU was established by the Special Investigating Units Act of 1996. In terms of this legislation, all matters referred to it must come from the president. The president also determines the terms of reference for all investigations carried out by the unit.
“Even though she [Brown] has a cooperative agreement with the SIU, at the end of the day the president has to prescribe terms of reference for the investigation. In this particular case, there is a conflict of interest,” Yelland said.
Yelland said the same way Madonsela recommended that the chief justice be the one to appoint the chairperson of the commission of inquiry into state capture, President Zuma could not issue a proclamation with terms of reference that implicated his family members.
“Due to this issue, the SIU is not a truly independent investigative body, and is significantly restricted in terms of what it may or may not investigate,” according to Jason Jordaan, a principal partner at DFIRLABS, a firm of digital forensic investigators.
Jordaan said another area of concern was the number of investigations the power utility and the department had instituted, but never released. It could be difficult for the SIU to go the litigation route.
“Due to the number of previous investigations … the possibility arises that many of the civil matters the SIU could pursue may have in fact be prescribed in terms of the prescription act, and could not be legally pursued,” Jordaan said.
This matter is also of particular concern to Yelland, as it appears that, by referring the cases to SIU, the minister “might be trying to institute an investigation into a previous investigation”.
He reminded The Citizen there had been a series of investigations and reports at Eskom with absolutely no consequences or anyone held accountable for financial misconduct at Eskom.
“There was the Deloitte report on the outcomes of investigations into coal procurement, and the SIU was issued a report. This was followed by the Dentons report in 2015 that Eskom did not want the public to see and [was] subsequently leaked by the Financial Mail.
“The State of Capture report issued by the public protector in 2016 also covered coal-procurement allegations – the most implicated party in the report happened to be Eskom,” Yelland added.
He warned that even if the SIU completed an investigation into Eskom, their outcomes may not see the light of the day because, in terms of the legislation, the minister may choose to keep the SIU report confidential indefinitely.
“I don’t understand the point of all these investigations. They are just building a mountain of bureaucracy, so it never ends. We are faced with a never-ending series of investigations,” he added.