Chapter1 The parameters of the forensic investigation milieu

Promotion of Access to Information Act (PAIA) 2 of 2000: section 4

"Private body" means - (a) a natural person who carries or has carried on any trade, business or profession, but only in such capacity; (b) a partnership which carries or has carried on any trade, business or profession; (c) any former or existing juristic person, but excludes a public body. "Public body" means - (a) any department of state or administration in the national or provincial sphere of government or any municipality in the local sphere of government; or (b) any other functionary or institution when - (i) exercising a power or performing a duty in terms of the Constitution or a provincial constitution; or (ii) exercising a public power or performing a public function in terms of any legislation (Promotion of Access to Information Act 2 of 2000).

Method

"a way or mode by which we proceed to the attainment of some aim"; "systematic or orderly procedure". a way of doing anything, especially a regular, orderly procedure".

Forensic

"belonging to courts of justice or to public discussion and debate" (Webster's dictionary 1942:293).

Corporate investigators

"corporate" concept refers to a company or an organisation that has been set up in terms of the provisions of the Companies Act 61 of 1973, or to a public entity referred to in section 1 of the Public Finance Management Act 1 of 1999 (hereafter referred to as the "PFMA"). An example is Eskom, which is a major public entity, which has its own corporate investigators.

requests for information are to be made is regulated by section 18(1), of the Promotion of Access to Information Act (PAIA) 2 of 2000 which determines as follows:

(1) A request for access must be made in the prescribed form to the information officer of the public body concerned at his or her address or fax number or electronic mail address. (2) The form for a request of access prescribed for the purposes of subsection (1) must at least require the requester concerned - (a) to provide sufficient particulars to enable an official of the public body concerned to identify - (i) the record or records requested; and (ii) the requester; (b) to indicate which applicable form of access referred to in section 29 (2) is required; (c) to state whether the record concerned is preferred in a particular language; (d) to specify a postal address or fax number of the requester in the Republic; (e) if, in addition to a written reply, the requester wishes to be informed of the decision on the request in any other manner, to state that manner and the necessary particulars to be so informed; and (f) if the request is made on behalf of a person, to submit proof of the capacity in which the requester is making the request, to the reasonable satisfaction of the information officer. (3) (a) An individual who because of illiteracy or a disability is unable to make a request for access to a record of a public body in accordance with subsection (1), may make that request orally. (b) The information officer of that body must reduce that oral request to writing in the prescribed form and provide a copy thereof to the requester.

The right to access the records of public bodies is provided for in section 11 of Promotion of Access to Information Act (PAIA) 2 of 2000 and the following subsections clarify the process in accessing such records:

(1) A requester must be given access to a record of a public body if - (a) that requester complies with all the procedural requirements in this Act relating to a request for access to that record; and (b) access to that record is not refused in terms of any ground for refusal contemplated in Chapter 4 of this Part. (2) A request contemplated in subsection (1) includes a request for access to a record containing personal information about the requester. (3) A requester's right of access contemplated in subsection (1) is, subject to this Act, not affected by - (a) any reasons the requester gives for requesting access; or (b) the information officer's belief as to what the requester's reasons are for requesting access.

The right of access to the records of private bodies is regulated in terms of section 50 of the PAIA and the following subsections are applicable

(1) A requester must be given access to any record of a private body if - (a) that record is required for the exercise or protection of any rights; (b) that person complies with the procedural requirements of this Act relating to a request for access to that record; and (c) access to that record is not refused in terms of any ground for refusal contemplated in Chapter 4 of this Part. (2) In addition to the requirements referred to in subsection (1), when a public body referred to in paragraph (a) or (b)(i) of the definition of "public body" in section 1 requests access to a record of a private body for the exercise or protection of any rights other than its rights, it must be acting in the public interest. (3) A request contemplated in subsection (1) includes a request for access to a record containing personal information about the requester or the person on whose behalf the request is made.

The National Gambling Board

(NGB)

Sectoral Education Training Authority

(SETA)

Section 9 of the Promotion of Access to Information Act (PAIA) 2 of 2000 lists the objects of this Act as follows:

(a) to give effect to the constitutional right of access to (i) any information held by the State; and (ii) any information that is held by another person and that is required for the exercise or protection of any rights; (b) to give effect to that right— (i) subject to justifiable limitations, including, but not limited to, limitations aimed at the reasonable protection of privacy, commercial confidentiality and effective, efficient and good governance; and (ii) in a manner which balances that right with any other rights, including the rights in the Bill of Rights in Chapter 2 of the Constitution; (c) to give effect to the constitutional obligations of the State of promoting a human rights culture and social justice, by including public bodies in the definition of "requester", allowing them, amongst others, to access information from private bodies upon compliance with the four requirements in this Act, including an additional obligation for certain public bodies in certain instances to act in the public interest; (d) to establish voluntary and mandatory mechanisms or procedures to give effect to that right in a manner which enables persons to obtain access to records of public and private bodies as swiftly, inexpensively and effortlessly as reasonably possible; and (e) generally, to promote transparency, accountability and effective governance of all public and private bodies by, including, but not limited to, empowering and educating everyone — (i) to understand their rights in terms of this Act in order to exercise their rights in relation to public and private bodies; (ii) to understand the functions and operation of public bodies: and (iii) to effectively scrutinise, and participate in, decision-making by public bodies that affects their rights.

Public Protector Act 23 of 1994.

- gives the Public Protector wide powers to investigate complaints - the power to determine the manner in which an investigation must be conducted. - competent to investigate a matter on his/her own initiative or on receipt of a complaint. - he/she may conduct a preliminary investigation to determine the merits of the complaint, taking into consideration the circumstances of the case. - powers include the direction that in which any person must submit an affidavit or affirmed declaration, - power to subpoena such a person to appear before him/her to give evidence and to produce documents that may be relevant to the investigation - also has the power to enter premises to make enquiries and to seize anything that may have a bearing on the investigation. - - - - - -

seizure of evidence by public protector

- seizure of evidence must take place under authorisation of a warrant issued by a magistrate or a judge. - Such a warrant has a three-month limited period of validity and may be executed only by day, unless it has been authorised for execution by night, at times that are reasonable in the circumstances. - There are also provisions for a search without a warrant, as well as the

List of Acts administered by the Financial Services Board

1. Collective Investment Schemes Control Act 45 of 2002 2. Financial Services Board Act 97 of 1990 3. Financial Advisory and Intermediaries Services Act 37 of 2002 (FAIS Act) 4. Financial Institutions (Protection of Funds) Act 28 of 2001 5. Financial Supervision of the Road Accident Fund Act 8 of 1993 6. Friendly Societies Act 25 of 1956 7. Inspection of Financial Institutions Act 80 of 1998 8. Long-term Insurance Act 52 of 1998 9. Pension Funds Act 24 of 1956 10. Short-term Insurance Act 53 of 1998 11. Supervision of the Financial Institutions Rationalisation Act 32 of 1996 12. The Securities Services Act 36 of 2004

Judges' Rules

1. Questions may be put by police officers to persons whom they do not suspect of being concerned in the commission of the crime under investigation, without any CAUTION being administered first. 2. Questions may also be put to a person whom it has been decided to arrest or who is under suspicion where it is possible that the person, by his/her answers, may afford information which may tend to establish his/her innocence, for instance where he/she has been found in possession of property suspected to have been stolen or an instrument suspected to have been used in the commission of the crime, or where he/she was seen in the vicinity when the crime was committed. IN SUCH A CASE, A CAUTION SHOULD BE ADMINISTERED FIRST. Questions intended solely to elicit answers that provide evidence against the suspect should not be put. 3. The wording of the CAUTION to be administered is as follows: "I am a police officer. I am making enquiries (into so and so) and I want to know anything you can tell me about it. It is a serious matter AND I MUST WARN YOU TO BE CAREFUL WHAT YOU SAY." If there is any special matter that requires an explanation, the officer should add the following words: "You have been found in possession of/you were seen in the vicinity of ... and unless you can explain this, I may have to arrest you." 4. Questions should not be put to a person in custody, with the exception of questions put in terms of rule (7). 5. Where a person in custody wishes to volunteer a statement, he/she should be allowed to make it, BUT HE/SHE SHOULD BE CAUTIONED FIRST. 6. A prisoner making a statement before there is time to caution him SHOULD BE CAUTIONED AS SOON AS POSSIBLE. 7. A prisoner making a voluntary statement must not be cross-examined, but questions may be put to him/her solely for the purpose of removing elementary or obvious ambiguities in VOLUNTARY STATEMENTS. For instance, if he/she has mentioned an hour, without saying whether it was morning or evening, or has given a day of the week and a day of the month that are incompatible, or has not made it clear to which individual or place he/she intended to refer in some part of his/her statement, he/she may be questioned sufficiently to clarify the point. 8. The caution to be administered to a person in custody should be to the following effect: (a) Where he/she is formally charged - "Do you wish to say anything in answer to the charge? You are not obliged to do so, but whatever you say will be taken down in writing and may be given in evidence." (b) Where a prisoner volunteers a statement, other than on a formal charge - "Before you say anything (or, if he/she has already commenced his/her statement, anything further), I must tell you that you are not obliged to do so, but whatever you say will be taken down in writing and may be used in evidence." 9. Any statement made should, whenever possible, be taken down in writing and in the language in which it was made. It should be read over to the person making it, and he/she should be given the opportunity to make any corrections to it, after which he/she should be invited to sign it. 10. When two or more persons are charged with the same offence and a voluntary statement is made by any one of them, the police, if they consider it desirable, may furnish each of the other persons with a copy of such statement, but nothing should be said or done by the police to elicit a response. The police should not read such statement to a person, unless such person is unable to read it and desires that it be read to him/her. If a person furnished with a co-accused's statement desires to make a voluntary statement in reply, the usual caution should be administered (Coetzee 1983:18).

The provisions of section 35(1) of the Constitution are part of the Bill of Rights and are applicable in all cases when dealing with arrested or detained persons. These provisions are as follows:

35(1) Everyone who is ARRESTED for allegedly committing an offence, has the right - (a) to remain silent; (b) to be informed promptly - (i) of the right to remain silent; and (ii) of the consequences of not remaining silent; (c) not to be compelled to make any confession or admission that could be used in evidence against that person; (d) to be brought before a court as soon as reasonably possible, but not later than - (i) 48 hours after the arrest; or (ii) the end of the first court day after the expiry of the 48 hours, if the 48 hours expire outside ordinary court hours or on a day which is not an ordinary court day; (e) at the first court appearance after being arrested, to be charged or to be informed of the reason for the detention to continue, or to be released; and (f) to be released from detention if the interests of justice permit, subject to reasonable conditions.

Major public entity: Eskom

= Schedule 2 of the PFMA (Public Finance Management Act 1 of 1999), Eskom is a major public entity. = In terms of the provisions of the Eskom Conversion Act 13 of 2001, Eskom was converted from a statutory body into a public company as Eskom Holdings Limited, with effect from 1 July 2002. = The two-tier governance structure of the Electricity Council and the Management Board was replaced by a board of directors. = board meets quarterly and monitors management's compliance with policy and its achievements against objectives. A structured approach is followed for delegation, reporting and accountability, which includes reliance on various board committees = As a state-owned enterprise, Eskom is guided by the principles of the Code of Corporate Practices and Conduct contained in the King Report on Corporate Governance for South Africa 2002 (King II Report), as well as the Protocol on Corporate Governance in the Public Sector 2002. = The government of the Republic of South Africa is the sole shareholder of Eskom. The shareholder representative is the Minister of Public Enterprises

Criminal Procedure Act 51 of 1977 vs Private Law

As far as legislation is concerned, the Criminal Procedure Act 51 of 1977 provides for procedures and related matters in criminal proceedings, whereas private law regulates the relations between individuals in a community. To remain

(IDT)

Independent Development Trust

(IPFA)

Institute for Public Finance and Auditing

(NIA)

National Intelligence Agency

(NRF)

National Research Foundation

(SALGA)

South African Local Government Association

(CCMA)

The Commission for Conciliation Mediation and Arbitration

(CSIR)

The Council for Scientific and Industrial Research

(Eskom)

The Electricity Supply Commission

(FSB)

The Financial Services Board

(NERSA)

The National Electricity Regulator of South Africa

(NASFAS)

The National Student Financial Aid Scheme

(RAF)

The Road Accident Fund

(SABS)

The South African Bureau of Standards

SAPs

The South African Police Service

(SARB)

The South African Reserve Bank

"no knock" entry.

This refers to entry to premises without first audibly demanding access and informing the occupant of the reason for the search, when it is likely that the occupant will destroy valuable evidence

forensic investigator

a person who does an investigation with the intention of taking the matter to a court, where guilt or responsibility will be determined.

Public entities

also mean national public entities and refer to - (a) a national government business enterprise; or (b) a board, commission, company, corporation, fund, or other entity (other than an national government business enterprise) which is - (i) established in terms of national legislation; (ii) fully or substantially funded either from the National Revenue Fund, or by way of a tax, levy or other money imposed in terms of national legislation; and (iii) accountable to Parliament s 1 of Public Finance Management Act 1 of 1999).

THE WORK ENVIRONMENT of corporate investigators

corporate investigators derive the power to do their work from the policies and procedures of the company that employs them. As soon as those persons leave the employ of the company, the rights and powers that they have fall away and they become ordinary citizens. When employees join a company, they subject themselves to the disciplinary policies and procedures of the organisation. This is done when they sign the employment contract. Corporate investigators are employed to investigate the allegations and to submit a report on their findings to the human resource manager, who is usually a member of the disciplinary committee. The task of the disciplinary committee is to consider the report and to decide on appropriate steps to be taken.

THE WORK ENVIRONMENT of Private investigators

have no rights or powers on which to rely when they conduct an investigation, unless they have been specifically mandated by their client. Their powers are the same as those of a private person

The Public Protector

is a Schedule 1 constitutional institution. The Public Protector has the power to investigate any conduct in state affairs or in the public administration in any sphere of government that is alleged or suspected to be improper or to result in any impropriety or prejudice. The powers of the Public Protector are regulated by the Public Protector Act 23 of 1994.

Anton Piller Order

makes it possible to obtain a court order for the right to search premises and seize evidence without prior warning, thereby preventing the destruction of incriminating evidence. Such an order, which is the civil-law equivalent of a search warrant in criminal cases, allows for the necessary force to be used to gain access to premises (as does the Criminal Procedure Act in criminal matters).

forensic audit

means that an investigation is undertaken with the intention of determining who was responsible for the misappropriation or mismanagement of money so that he/she may be found guilty, be required to repay the money and even face a prison sentence of some sort.

THE WORK ENVIRONMENT of public service law enforcement officials

not all public service law enforcement officials enjoy the same rights and powers. However, all are bound by the parameters of the laws under which they have been appointed and in terms of which they operate. There

Other public entities: the Financial Services Board

referred to as a Schedule 3 public entity. It was established in terms of the provisions of the Financial Services Board Act 97 of 1990, with the purpose "to provide for the establishment of a board to supervise compliance with laws regulating financial institutions and the provision of financial services; and for matters connected therewith" (long title of the FSB Act 97 of 1990).

Schedule 1 entities of the PFMA,

refers to constitutional institutions,

Schedule 2 entities of the PFMA,

refers to major public entities

Schedule 3 entities of the PFMA,

refers to other public entities. Part A - national public entities Part B - national government business enterprises Part C - provincial public enterprises

tactics

refers to the actions or the procedures that are followed in the forensic investigation process.

forensic investigation

the investigation has the purpose of ending up in court.

five most important questions to ask when doing an investigation.

what, where, when, who and how.

There are different work environments in which corporate investigators may operate. There are no less than 20 such public entities, which are divided into the following categories:

● Agencies - National Intelligence Agency (NIA) ● Associations - South African Local Government Association (SALGA) ● Authorities - The South African Police Service (SAPS) ● Boards - The Financial Services Board (FSB) ● Bureaus - The South African Bureau of Standards (SABS) ● Commissions - The Commission for Conciliation Mediation and Arbitration (CCMA) ● Companies - The Electricity Supply Commission(Eskom) ● Corporations - Armscor ● Councils - The Council for Scientific and Industrial Research (CSIR) ● Enterprises - Metrorail ● Foundations - National Research Foundation (NRF) ● Funds - The Road Accident Fund (RAF) ● Institutes - Institute for Public Finance and Auditing (IPFA) ● Institutions - The South African Reserve Bank (SARB) ● Organisations - The National Gambling Board (NGB) ● Regulators - The National Electricity Regulator of South Africa (NERSA) ● Schemes - The National Student Financial Aid Scheme (NASFAS) ● SETAs - Sectoral Education Training Authority (SETA) ● Tribunals - Competition Tribunal ● Trusts - Independent Development Trust (IDT)

The Public Protector can investigate the following:

● Government at any level. This includes central and provincial government, state departments and local authorities - excluding court decisions. ● Any person performing a public function. This includes any person performing an official duty that affects South Africans, such as state employees, police officials and even electoral officers. ● Corporations or companies where the state is involved. Examples are Eskom and Telkom. ● Statutory councils. Examples are the Human Sciences Research Council (HSRC) or the Council for Scientific and Industrial Research (CSIR).

Many of the Schedules 1, 2 and 3 public entities have investigative powers. Among the most notable are the following:

● The Public Protector (Schedule 1 - constitutional institution) ● Eskom (Schedule 2 - major public entities) ● The Financial Services Board (Schedule 3 - other public entities)

the criteria for obtaining an Anton Piller Order are as follows:

● There must be extremely strong prima facie evidence against a respondent. ● The actual or potential damage must be very serious for the applicant. ● Clear evidence must exist that the respondents have in their possession incriminating evidence and that there is a real possibility that they may destroy such material before an inter partes (between parties) application can be made ● An Anton Piller Order is executed by the sheriff of the magisterial district in which the order has been issued.

Dangers in an investigation include the following:

● interference by the suspect/accused in the investigation by laying counter-charges against the complainant or even the investigator ● the suspect/accused's absconding after being released on bail ● interference with witnesses in the form of intimidation or bribery ● destruction or contamination of exhibits ● corruption of the investigator ● theft of the case docket ● fabrication of evidence ● inadequate resources, resulting in the investigation's being abandoned ● political or official interference from higher authorities ● unobtainable evidence, such as where evidence is located in a foreign country or in an offshore bank and you cannot gain access to it for various reasons