Deferred prosecution agreements: a solution to prosecuting backlog?

FTI Consulting South Africa and Corruption Watch recently co-authored an article titled ‘Addressing Corruption in South Africa’ in which we argued, inter alia, that consideration should be given to allowing criminal offenders to self-disclose and subject themselves to an administrative penalty to avoid criminal prosecution through the mechanism of deferred prosecution agreements (“DPAs”).

There can be no doubt that South Africa is battling a crisis of fraud and corruption. According to PwC’s Global Economic Crime Survey published in 2020, 60% of organisations have experienced economic crime.

In February 2019, President Ramaphosa announced the establishment of a Special Investigating Unit (“SIU”) Tribunal to expedite hearings of SIU cases, recover misappropriated state funds and investigate the conduct of state officials in connection with maladministration of the funds and corruption.

The President also established the Investigating Directorate (“ID”) in 2019 as an instrument in the fight against corruption. The ID will focus on the investigation of corrupt activities.

The Zondo Commission of Inquiry into State Capture has exposed the depths of state corruption and looting of the public purse. In May 2021, the Commission heard evidence that the total cost of the “Gupta state capture” to the state is approximately R50 billion.

All this points to a wave of fraud and corruption matters breaking over the investigative and prosecution authorities. Will they be able to cope or are alternative solutions required?