exam prep
A workplace forum is
"(an) instrument (s) for promoting participative management through information-sharing, consultation, and joint decision making" (Grogan 2009:330). Workplace forums differ from trade unions in that they are charged with promoting the interests of all employees in the workplace and not just those of members of trade unions. The members of a workplace forum consist of workers and exclude senior managers. The members are nominated either by any registered trade union that has members in the organisation or by a petition signed by 20 per cent of the workforce, or 100 employees - whichever number is smaller.
Method
"Method is a body of techniques for investigating phenomena by acquiring new knowledge or correcting and integrating previous knowledge by gathering information through observation and the formulation of hypotheses"
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).
Van Rooyen (2001:82) defines an investigative report as
"a communication of information set forth in an accurate, concise, clear and complete manner serving as a record of a given incident".
A digital camera is defined as
"a device for making digital recordings of images" and may, therefore, be classified as a digital device
The Association of Certified Fraud Examiners (ACFE 2008) defines fraud auditing as
"a proactive approach to detect financial frauds using accounting records and information, analytical relationships, and an awareness of fraud perpetration and concealment schemes".
Method- Collins pocket English dictionary
"a way of doing anything, especially a regular, orderly procedure".
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".
Method- Webster's dictionary
"a way or mode by which we proceed to the attainment of some aim"; "systematic or orderly procedure".
A trade union is defined as
"an association of employees whose principal purpose is to regulate relations between employees and employers, including any employers' association" (s 213 of the Labour Relations Act 66 of 1995).
An employers' organisation is
"any number of employers associated together for the purpose, whether by itself or together with other purposes, of regulating relations between employers and employees or trade unions" (Grogan 2009:327). Employers' organisations are therefore the employer's counterpart to trade unions. "Accordingly, the general rights accorded to trade unions in so far as they are applicable as well as the rights of individuals to belong to trade unions, apply mutatis mutandis to employers in respect of employers' organizations" (Grogan 2009:327).
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.
A data message is described in section 1 as
"data generated, sent, received or stored by electronic means and includes: - ● voice, where the voice is used in an automated transaction; ● a stored record".
Data is described as
"electronic representations of information in any form".
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.
As far as the admissibility of both digital and film photographs are concerned, the provisions of section 232 of the Criminal Procedure Act 51 of 1977 provide as follows: 232 Article may be proved in evidence by means of photograph thereof
(1) Any court may in respect of any article other than a document, which any party to criminal proceedings may wish to produce to the court as admissible evidence at such proceedings, permit such party to produce as evidence, in lieu of such article, any photograph thereof, notwithstanding that such article is available and can be produced in evidence. (2) The court may, notwithstanding the admission under subsection (1) of the photograph of any article, on good cause require the production of the article in question.
Admissibility and evidential weight of data messages
(1) In any legal proceedings, the rules of evidence must not be applied so as to deny the admissibility of a data message in evidence: (a) On the mere grounds that it is constituted by a data message; or (b) If it is the best evidence that the person adducing it could reasonably be expected to obtain, on the grounds that it is not in its original form. (2) Information in the form of a data message must be given due evidential weight. (3) In assessing the evidential weight of a data message, regard must be had to: (a) the reliability of the manner in which the data message was generated, stored or communicated; (b) the reliability of the manner in which the integrity of the data message was maintained; (c) the manner in which its originator was identified; and (d) any other relevant factor. (4) A data message made by a person in the ordinary course of business, or a copy or printout of or an extract from such a data message certified to be correct by an officer in the service of such person, is on its mere production in any civil, criminal, administrative or disciplinary proceedings under any law, the rules of a self-regulatory organization or any other law or the common law, admissible evidence against any person and rebuttable proof of the facts contained in such record, copy, printout or extract.
In this regard, the South African legislature responded by promulgating the Protected Disclosures Act 26 of 2000 (PDA). The objective of the PDA is as follows:
(a) To make provision for procedures in terms of which employees in both the private and the public sector may disclose information regarding unlawful or irregular conduct by their employers or other employees in the employ of their employers; (b) to provide for the protection of employees who make a disclosure which is protected in terms of this Act; (c) and to provide for matters connected therewith.
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.
COMMUNICATION of INTERROGATION
5%:95% - Subject: Interrogator. Interrogator communicates the most. Subject is brought to the point of confession and confirmation.
COMMUNICATION of INTERVIEWING
95%:5% - Subject: Interviewer. Subject communicates as much as possible.
Identify and briefly describe four organisations or bodies that can be investigated by the public protector.
= Government at any level. = Any person performing a public function. = Corporations or companies where the state is involved. = Statutory councils.
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
The means to detect crimes and transgressions are:
= red flags = whistle-blowers = statutory reporting obligations and duties audit procedures
difference between an interview and an interrogation.
An interview is conducted with a cooperative witness, who is aware that all information is given voluntarily. The atmosphere in which this interaction takes place is friendly and relaxed. An interrogation, on the other hand, is a more forceful method, which is designed to place the witness under pressure with the aim of obtaining an admission or a confession regarding some wrongdoing.
Proactive 'red flags' = Corporate {example}
Annual personal financial statement and conflict of interest statement completed by executive and verified by external party
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
Digital recording
Cellphones Digital photography
ENVIRONMENT of INTERVIEWING
Comfortable, relaxed, congenial; interruptions, although undesirable, can be tolerated.
Definition of "continuous auditing"
Continuous auditing is the use of data analytics on a continuous or real-time basis, thereby allowing management or auditing to identify and report fraudulent activity more quickly. Continuous monitoring of transactions that can indicate red flags may lead to quicker detection.
Definition of "data analytics"
Data analytics is also referred to as data mining, digital analysis, database reporting, data analysis and data interrogation. In general, it can be defined as the "automated extraction of hidden predictive information from databases". Data analysis refers to the use of technology to identify anomalies, trends and risk indicators within large populations of transactions.
external whistleblowing
External whistle- blowing refers to the disclosure of information outside the organization and includes media, politicians, public protectors, government bodies, regulatory bodies and enforcement agencies".
SEATING of INTERVIEWING
Fairly comfortable; armrests; table nearby to write on.
BREAKS of INTERVIEWING
Frequent breaks for refreshments. Smoke breaks are allowed.
There is a difference between a transgression and non-compliance, because misconduct is regarded as being more serious than non-compliance.
Grogan (2009:52) states that "any misconduct that renders the continuation of the employment relationship intolerable or unworkable or that undermines trust and confidence between the employer and the employee is regarded as sufficient to justify dismissal ... Misconduct may have a bearing on the employment contract if committed either before or after the parties enter into the agreement and may, in appropriate circumstances, constitute a ground for dismissal."
SEATING of INTERROGATION
Hard to semi-hard chair and about 50 mm lower than the interrogator's chair. No armrests, which would enable the subject to prop him/her up and delay or prevent body structure collapse.
PREPARATION of INTERROGATION
In-depth knowledge of the crime and the subject's link to it. Knowledge of the subject; his/her work; home background; financial status; relationships with family, friends and colleagues; and most likely reason for committing the crime.
internal whistleblowing
Internal 'whistle-blowing' refers to reporting to people or managers within the organisation who are higher up in the organizational hierarchy. Those who receive internal complaints may be direct line managers, human resource representatives, chief executive officers, members of the executive council, or board of directors.
PROFESSIONAL CONDUCT
It describes the conduct of a person as being in keeping with his/her unique training and status. The person's status is usually indicated by the way in which he/she is addressed - such as addressing your doctor as "Doctor so-and-so" or an advocate as "Advocate so-and-so". Society has come to expect a special form of behaviour from these persons, who are regarded as being "fit" and "proper". We respect them and expect them always to set an example. When we refer to "professional conduct", we are referring to honesty and integrity.
PREPARATION of INTERVIEWING
Knowledge of the crime and the subject's link to it.
Proactive 'red flags' = Transactional {example}
Looking for potentially collusive sales transactions where there are unusual patterns of low prices and credit notes
three grounds recognised by the LRA to justify the dismissal of an employee.
Misconduct incapacity operational requirements
Proactive 'red flags' = System {example}
Monitoring and analysis of unsuccessful access attempts to sensitive systems and data
BREAKS of INTERROGATION
No breaks allowed for the first two hours.
Reactive 'red flags' = Corporate {example}
Noticing that a sequence of acquisitions and joint ventures failed
Reactive 'red flags' = Behavioural {example}
Noticing that some managers are reluctant to give proper explanations as to why certain budgetary decisions are made
PURPOSE of INTERROGATION
Obtain a confession.
PURPOSE of INTERVIEWING
Obtain information.
Proactive 'red flags' = Behavioural {example}
Performing background checks to identify unsanctioned involvement in external companies
Financial management in the local government sphere is regulated by the ________
Public Finance Management Act
Which one of the following organisations hosts the National Anti-Corruption Hotline?
Public Service Commission
Reactive 'red flags' =System {example}
Repeated systems failure and audit log switched off
Explain the establishment of the office of the public protector, including the body that they report to.
Section 181 of the Constitution of the Republic of South Africa, 1996 makes provision for the establishment of certain state institutions to strengthen constitutional democracy in the Republic of South Africa. One of these is the Public Protector. These institutions are independent and subject only to the Constitution and the law. They must be impartial and may not be interfered with by any person or organ of state. The powers of the Public Protector are regulated by the Public Protector Act 23 of 1994. They are accountable to the National Assembly, to whom they must report on their performance and functions at least once a year.
ENVIRONMENT of INTERROGATION
Strictly controlled. No distractions (pictures, posters or paintings) and no interruptions whatsoever.
For which of the following conditions can an Anton Piller order be obtained?
The actual or potential damage must be very serious for the applicant.
CONTROL of INTERROGATION
The interrogator dominates, controls and directs the process.
the purpose of whistleblowing
The purpose of whistle-blowing is to provide a conduit or communication channel for employees to disclose wrongdoing or professional misconduct or fraudulent and unethical behavior in the workplace. Some authors say that 'Whistle-blowers' have two ways of reporting organizational wrongdoing, namely to authorities within the organisation, or regulatory authorities outside the organization and therefore two main forms of 'Whistle-blowing' can be identified, namely internal and external 'Whistle-blowing'
CONTROL of INTERVIEWING
The subject controls the process, while the interviewer directs it.
What are three requirements that a search and seizure warrant by the public protector must meet in the given scenario?
The warrant must be issued by a magistrate or a judge. Such a warrant has a three-month limited period of validity May be executed only by day, unless it has been authorised for execution by night, at times that are reasonable in the circumstances.
Critically explain "complainants and victims" and the nature of information you are likely to solicit from them:
These are persons directly involved in the crime, who have suffered some kind of loss or injury. In some cases, they may not be directly involved, but are complainants as a result of their employment position. For example, they may be a financial officer or another responsible person laying a charge as a result of some criminal offence that has been committed in the workplace. Normally, however, they are the persons who are able to give first-hand evidence regarding an offence or a transgression because they are victims.
Critically explain "suspects and accused persons" and the nature of information you are likely to solicit from them:
They are witnesses for themselves. The only interaction that you will have with such a person is in the initial interview and when recording a formal exculpatory statement. You must always keep an accused's constitutional rights in mind. Remember that the accused has the right to legal representation and any attempt on your part to convince him or her to waive that right is unconstitutional and, possibly, illegal. When dealing with an accused who indicates that they will make a statement only after consulting with their legal representative, you must respect that decision and not pressure the accused any further by making promises or threats.
"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
The "no knock" rule can be described as:
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.
Reactive 'red flags' = Transactional {example}
Treasury and payment personnel question payments of suspicious invoices to tax havens, such as the BVI and Cayman Isles
Tentativeness and unconvincing behaviour
Verbal and physical behaviour during the session can also directly affect a subject's decision to deny any wrongdoing. Therefore, it is very important that you avoid displaying any sign of being unsure or unprepared. Remember that the subject knows the truth. If they were involved in the transgression, but you are failing to present the facts correctly, the subject will deny everything and leave you to provide the proof. Being unsure demonstrates unprofessionalism. You must be well prepared and have all the facts at your fingertips. You must also convey conviction in your tone of voice. Don't let the subject get the idea that you are not completely in control of the situation because then you will have already lost the battle, whereas a positive approach by the investigator will lead the subject to believe that he/she has already been caught out.
There are different types of people whom you are likely to interview and who can provide you with information regarding your investigation in the given scenario. Choose and list five types of these people.
Victim Accused Complainant Witness Suspect
Attitude
While an aggressive and overbearing investigator may increase a subject's defensiveness, an investigator who appears to be weak or unemotional/indifferent may cause a subject to try to exploit the situation and take control. Your attitude should therefore be positive and professional, not attempting to rush things and pressure a subject into making a confession.
the definition of whistleblowing
Whistle-blowing simply means to report any irregularity, crime or transgression that a person may be aware of. According to Kloppers (1997:240- 241), whistle-blowing in general can be described as "the activity of disclosing information considered to be in the public interest". This would entail information about criminal activity, a contravention of any statutory requirement, improper or unauthorised use of public and other funds, miscarriage of justice, abuse of power, maladministration, and danger to the health or safety of any individual and any other misbehavior or malpractice. From a criminologist's perspective, "whistle-blowing is a pro-active strategy aimed at preventing crimes such as the various manifestations of fraud, embezzlement, corruption and employee theft". Holtzhausen (2007:35), referring to Uys (2005) and Near and Miceli (1996), says that "whistle- blowers have two ways of reporting organizational wrongdoing, namely to authorities within the organization, or regulatory authorities outside the organization and therefore two main forms of whistle-blowing can be identified, namely internal and external whistle-blowing".
Critically explain "witnesses" and the nature of information you are likely to solicit from them:
Witnesses are sometimes reluctant to come forward and present themselves, partly because they feel guilty about "informing" on somebody. This could be because they know the suspect and don't believe that he/she is guilty or involved in the transgression, or because the suspect is a friend or a family member. They may fear being shunned by society or being cast out by family members (Zuwalski et al 2002:189). In contrast, hostile witnesses evade being interviewed and, when confronted, deny any knowledge of the matter or refuse to be interviewed. When this happens, it is advisable to make use of legal remedies, if possible; if not, try to avoid using the person as a witness. Remember that a witness may be declared a hostile witness by the prosecutor if there is any indication that the witness has changed or deviated from his or her original statement. In such a case, the prosecutor may cross-examine his or her own witness.
The public protector can be best be described as __________ .
a Chapter 9 institution
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.
Reputation
a person's reputation precedes him/her. If an investigator has a reputation for being harsh and unsympathetic, he/she is likely to put such fear into the subject that the latter will deny everything. be aware of the negative effects that transgressions of human rights may have on the investigation - and, of course, your reputation.
Collective bargaining
a process of demand and concede whereby employers and organised employees seek to reconcile their differences to reach an agreement
Technique
a systematic procedure used to accomplish a specific activity or task
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).
Corruption
an act of accepting, agreeing or offering to accept any gratification from any other person, whether for the benefit of self or the other person that leads to unauthorised or improper inducement to do or not to do something
Whistle-blowing
an anonymous activity by a person with the intention of disclosing information in the public interest which may be about a crime or a transgression in an organisation
Trade Union
an association of employees whose principal purpose is to regulate the relations between employees and employers, including any employers' organisation
Video recording is defined as
any disc, magnetic tape or any other device capable of storing data electronically containing information by the use of which the whole or a part of a video work may be produced
Employer's organisation
any number of employers associated for the purpose of regulating relations between employers and employees or trade unions
Video work is defined as
any series of visual images (with or without sound) produced electronically by the use of information contained on any disc, magnetic tape or any other device capable of storing data electronically and shown as a moving picture.
Identify the law of natural justice which provides for the right of both parties to be heard:
audi alteram partem
Which one of the following is an example of a red flag?
behaviour
Personality
build-up to the discussion of interviewing skills, It is significant that the subject's perception of an investigator's personality can play a large part in determining whether the investigator will be able to overcome the suspect's fear of the consequences of his/her wrongdoing. Suspects and witnesses are naturally defensive during an interrogation or an interview and investigators who are overbearing and aggressive often cause defensiveness in the subjects, resulting in denial. In contrast, an investigator with a professional personality will help to put a subject at ease because people instinctively trust such persons.
Which one of the following is a main event in the investigation process?
case construction
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.
To detect fraudulent activity, organisations can use
data analytics, continuous auditing techniques and other technology-based tools, such as data analysis, data mining and digital analysis.
1. Section 35 of the Constitution deals with, among others, the rights of ________.
detained people
forensic
for judicial or court purposes word is derived from the Latin word forensis, which means "forum" or "court". It therefore means "belonging to courts of justice or to public discussion and debate"
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
According to the combined views of Innes (2003:176), Swanson et al (2003) and Silverstone and Sheetz (2004:120), the investigation process shows
how an investigator undertakes a series of sequential actions, from the time the crime or transgression is reported until the case is concluded in court.
Private law is a branch of law that regulates the relationship between _______ .
individuals in a community
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.
The primary function of a trade union
is to engage in collective bargaining with their members' employers and to represent their members in grievance and disciplinary matters.
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).
"the best evidence rule"
makes provision for a court to accept a copy of a document if the original has been lost, it applies only when the case is before the court. An unsigned copy will never be accepted for administrative judicial purposes, such as for the issuing of a warrant of arrest or for a search and seizure.
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.
Section 3 of the PDA provides that
no employee may be subjected to occupational detriment by his or her employer on account, or partly on account, of having made a protected disclosure.
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
tactic
refers to the actions or the procedures that are followed in the forensic investigation process.
tactics
refers to the actions or the procedures that are followed in the forensic investigation process.
Misconduct is
something that an employee can be held accountable for, while an employee cannot be held accountable for incapacity due to old age or becoming technologically challenged.
Which one of the following is a means of detection of crimes, transgressions or incidents?
statutory reporting obligations
Tact
the acute sensitivity to what is proper and appropriate in dealing with others including the ability to speak or act without offending
forensic investigation
the investigation has the purpose of ending up in court.
Collective bargaining is
the process by which employers and organised employees seek to reconcile their differences through a process of making demands and concessions to reach an agreement. This is a difficult process because the parties must find common ground, which may require fixed positions to be abandoned.
five most important questions to ask when doing an investigation.
what, where, when, who and how.
Perception
your general appearance and the approach you adopt towards the subject during the initial interaction will be decisive in determining what the subject thinks of you. For that reason, you must be completely professional in your approach. You may, of course, decide to adopt a different role and give the idea that you really are not quite sure of what is going on, thereby allowing the subject to tell lies that you can later use against him/her during the confrontational phase. The question, though, is whether this will enhance your reputation as a professional.
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)
Critically discuss the requirements of a good investigation report.
● Completeness. This means that there is nothing missing from the report. ● Accuracy. An exact, precise and reliable rendition is given of the activity or crime. ● Factual. This refers to experiences and occurrences that the reporter has experienced first- hand. ● Hearsay. This refers to second-hand information that the reporter has heard from others. ● Meaning of words/Comprehension. The reporter must use the correct words to describe what has to be said. Under no circumstances should flowery or ambiguous language be used, which would be open to different interpretations. ● Timeliness. The report must be submitted within the timeline set by the client, or in time for the recipient to be able to act upon it. (In the motor manufacturing world, this is referred to as the "just in time" principle, which means that the right part must be available at the right time so that the assembly line is not kept waiting.) ● Objectivity. The report must not be influenced by the feelings of the reporter. Facts should be stated as they are, and not as the reporter would have liked them to be; opinions are reserved for later in the report. ● Referencing. Refer to previous reports, if necessary, so that the reader is aware that there is a history to be considered.
Van Rooyen (2001:83) lists the following as requirements for a good report:
● Completeness. This means that there is nothing missing from the report. ● Accuracy. An exact, precise and reliable rendition is given of the activity or crime. ● Factual. This refers to experiences and occurrences that the reporter has experienced firsthand. ● Hearsay. This refers to second-hand information that the reporter has heard from others. ● Meaning of words/Comprehension. The reporter must use the correct words to describe what has to be said. Under no circumstances should flowery or ambiguous language be used, which would be open to different interpretations. ● Timeliness. The report must be submitted within the timeline set by the client, or in time for the recipient to be able to act upon it. (In the motor manufacturing world, this is referred to as the "just in time" principle, which means that the right part must be available at the right time so that the assembly line is not kept waiting.) ● Objectivity. The report must not be influenced by the feelings of the reporter. Facts should be stated as they are, and not as the reporter would have liked them to be; opinions are reserved for later in the report. ● Referencing. Refer to previous reports, if necessary, so that the reader is aware that there is a history to be considered.
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).
The objectives of the PDA are therefore threefold (Holtzhausen 2007:43):
● It aims to provide for procedures in terms of which an employee can, in a responsible manner, disclose information regarding improprieties committed by his or her employer. ● It protects an employee, whether in the private or public sector, from being subjected to occupational detriment on account of having made a protected disclosure. ● It provides for certain remedies in connection with any occupational detriment suffered on account of having made a protected disclosure.
System red flags arise from monitoring routines built into computer and communications systems. The following illicit behaviour can be detected (Iyer & Samociuk 2006:80):
● Someone logs onto the system using the user identification and password of an employee who is on leave, or attempts to log in if the password is disabled while the employee is on leave. ● There is a higher than average number of failed logon attempts. ● There are logons from areas outside the normal work area. ● There are logons at unusual times of the day. ● There is unusual network traffic. ● Control or audit logs are turned off.
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)
principles of dismissal are subject to the following standards:
● The reason for the dismissal must not be classified as being automatically unfair. ● There must be a valid reason for the termination of the contract. ● The dismissal must be effected in a procedurally fair manner.
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.
Dismissal on the grounds of misconduct is the ultimate sanction in the workplace and, therefore, the courts have developed the following two principles when dealing with issues of dismissal:
● Was there a good reason to dismiss? ● Did the employer follow a fair procedure before deciding on dismissal?
According to the SARS website, a suspicious activity refers to "any conducted or attempted activity or pattern or display of transactions which are suspect or appear to give reason to suspect". Some typical examples would be as follows:
● a person or business being required to pay a certain type of tax, but not doing so ● a person or business employing people and deducting employees' tax from the employees, but not issuing IRP5 certificates to the employees ● a person or business being required to pay a particular tax, being registered as a taxpayer, but not submitting the required returns to SARS ● a person living beyond his/her obvious financial means or pursuing a particularly extravagant lifestyle in comparison with a person having similar levels of income ● a person found to be carrying an unusually large amount of currency in any form, while travelling in or out of South Africa ● a person who derives income from a criminal activity ● a person or business submitting fraudulent VAT refund claims ● a person or business liable to be registered for VAT, but not being so registered ● a person or business owing SARS money as a result of an assessment or schedule, but not paying SARS ● a person who is dishonest in a return or submission to SARS
Subjective behavioural red flags can include
● abnormal social behaviour ● problems with gambling or drug or alcohol abuse ● excessive mood swings, aggression, marked changes in behaviour ● resistance to audit and questions, such as confrontational, arrogant and aggressive approach to avoid answering questions and deflect attention ● misleading and ambiguous explanations to questions
the most important issues covered by the provisions in the Protected Disclosures Act 26 of 2000 (PDA) are as follows:
● concepts and definitions, such as "disclosure", "employee", "employer", "impropriety", "occupational detriment" and "protected disclosure" ● the objectives and application of the PDA ● an employee making a protected disclosure may not be subjected to occupational detriment by the employer ● legal remedies ● protected disclosure to a legal advisor ● protected disclosure to an employer ● protected disclosure to a member of Cabinet or Executive Council ● protected disclosure to certain persons or bodies ● a general protected disclosure ● regulations issued in terms of the PDA
The main events of the investigation process are
● crime or transgression reported or discovered ● preliminary investigation ● follow-up investigation ● suspect development and apprehension ● case construction ● hearing or trial
"technology tools" and includes
● data analysis tools ● data mining tools ● digital analysis tools
The LRA requires that any relevant code of good practice be taken into account when considering whether dismissal was for a fair reason. The principal codes of good practice deal with the following:
● dismissal generally ● dismissal for operational requirements ● dismissal for sexual harassment
Technology-based tools enhance the ability of management at all levels to detect fraud. Data analysis, data mining and digital analysis tools can
● identify hidden relationships among people, organisations and events ● identify suspicious transactions ● assess the effectiveness of internal controls ● monitor fraud threats and vulnerabilities ● consider and analyse thousands or millions of transactions
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
Many corporate failures around the world have been preceded by red flags. These were clear indications of the subsequent collapse. These red flags include
● investment analysts blacklisted by the company for writing negative reports ● concerns raised by regulators ● downgrading of the companies' credit rating ● solvency warnings by statutory accountants
Transactional red flags indicative of fraud and corruption include the following:
● kickbacks paid to management on the acquisition or disposal of subsidiaries, using a tax haven as a vehicle ● company-controlled slush funds and the payment of bribes to and from offshore companies ● secret bonuses to top managers and executives, which are most commonly paid into accounts in tax havens ● money ostensibly for bribes paid into the executive account and employee-controlled accounts ● hiding a conflicting ownership interest in a supplier, customer and business partner, using a cascade of offshore companies to disguise the ownership
The code of good practice should not be confused with the grounds for dismissal recognised by the LRA to justify the dismissal of employees, namely
● misconduct ● incapacity or poor work ● operational requirements
Potential corporate red flags indicating fraud, which are consistent with fraud perpetrated by senior management, include
● overzealous acquisition strategies without proper screening or due diligence ● autocratic management decisions around business relationships, such as a refusal to change a major supplier ● losses and declining margins on sales ● artificial barriers put up by directors to avoid answering questions ● excessive secrecy ● rumours and low morale ● complacent financial director ● overriding of budgetary controls ● discrepancies and deviations ● missing records or lack of detail ● unusual manual payments or adjustments ● consultants given a free rein
Fraud auditing focuses on activities and techniques that promptly detect whether fraud has occurred or is occurring. Detection techniques used by auditors should be flexible, adaptable and continuously changing to meet the various changes in risk. Important detection methods include
● recognising red flags ● an anonymous reporting mechanism, such as whistle-blower hotlines ● suspicious activity report mechanisms ● process controls ● proactive fraud detection procedures
Process controls that are specifically designed to detect fraudulent activity include
● reconciliations ● independent reviews ● physical inspections ● physical counts ● analyses ● audits
means of detection include
● red flags ● whistle-blowers - hotlines - suspicious activity reporting - protected disclosures ● statutory reporting obligations and duties ● audit procedures
The Public Finance Management Act 1 of 1999 aims to
● regulate financial management in the national government and provincial governments ● ensure that all revenue, expenditure, assets and liabilities of those governments are managed efficiently and effectively ● provide for the responsibilities of persons entrusted with financial management in those governments ● provide for matters connected therewith
Objective behavioural red flags can include
● signs of excessive wealth or spending ● long absences from work and poor timekeeping ● failure to take vacation or sick leave ● changes in work patterns; working long hours after normal working hours ● repeated overriding of normal controls and procedures
The following are examples of types of disclosures of wrongdoing, professional misconduct, fraudulent and unethical behaviour that can be reported using hotlines:
● suspected contract irregularities and violations of procurement guidelines and policies ● corruption ● fraud ● bribery or acceptance of gratuities ● maladministration ● misuse of funds or assets ● misuse or abuse of company resources ● illegal disclosure of information ● acts of dishonesty ● ill treatment of members of the public or clients ● theft ● abuse of authority ● nepotism ● sexual harassment ● racism or discrimination ● unethical conduct
Models of emotional intelligence
● the ability EI model ● the mixed model of EI ● the trait EI model
According to English (2006:147), there are various types of investigative/forensic reports, which are related to other kinds of written messages found at college, university, in business and in industry. They are related in format, style and approach to the following:
● theses ● business proposals ● business plans ● minutes ● instructions ● technical descriptions
In terms of sections 5-9 of the PDA, a disclosure must be made in one of five ways in order to be protected:
● to a legal representative ● to an employer ● to a member of Cabinet or Executive Council ● to a specific person or body ● as a general protected disclosure
In general, there are great advantages to the use of photographic equipment in the field of investigation. Van Rooyen (2001:174) mentions the following advantages:
● to help the investigator recall the details of what he/she saw ● to explain what was seen to someone else, perhaps in court ● to enable the client, or the court, to examine the evidence instead of relying on the witnesses only.
As far as the forensic investigator is concerned, the main function of a report is
● to inform either the client or the manager of progress, findings or the result of an investigation; ● to make a recommendation; or ● to request further instructions.
The LRA recognises and provides for the formation and registration of three kinds of institutions to represent employers and employees in the collective bargaining process. These are
● trade unions ● employers' organisations ● workplace forums
Red flags in a process arise from anomalies on documents or transactions. Red flags on payment instructions being processed through a bank payment centre include the following:
● unusual delivery method of an instruction, for example through the mail or by courier with an urgent processing request ● unnecessary words or explanations on the request to make it appear more plausible ● appearance or style not consistent with normal transactions ● beneficiary name spelt incorrectly when compared with the account number ● payment not consistent with the normal business of the customer
Depending on the nature of the business undertaken by the organisation, red flags can include the following:
● unusual supplier relationships ● intermediaries, business partners, etc, which are actually front companies ● non-transparent counterparties, where indications of criminal association exist ● payment for services and goods of which the detail is vague ● preferential supplier treatment and/or a lack of transparent and competitive tendering processes ● preferential customer treatment ● receipt of potentially ill-gotten gains ● ghost employee salaries or benefits ● private expenses processed through expense claims
We refer to the following collectively as "devices and apparatus that generate evidence":
● voice-recording devices, such as tape recorders, digital voice recorders, cassette voice recorders, reel-to-reel voice recorders, dictaphones, cellphones, telephone answering machines and others ● video cameras, which also record sound; cellphones with video capability; and old-fashioned movie cameras ● cellphones, which have become increasingly sophisticated with each new generation of devices ● computers with video capability, such as Skype ● cameras, which used to work with reel film, then with cassettes, and nowadays they take the form of digital cameras. In some cases, the latest cellphones contain digital cameras that are more powerful than the digital cameras of a few years ago. They are able to perform various tasks using Photoshop, which makes it possible to enhance, change and rework any digital photograph.
