How we can recover the state capture loot
The first tranche of the three-part report of the Zondo Commission has confirmed that state capture in SA is real; that there has been a great deal of criminal activity deserving of the attention of the criminal justice administration; and that the loot of state capture should be recovered urgently.
Accountability Now’s Advocate Paul Hoffman SC says the third point is the most urgent and should be addressed by the entities that are the victims of state capture as their first priority.
‘Departments of state and state-owned enterprises (SOEs) are now fully justified in taking steps to recover the loot of state capture wherever it may be found in the world.’
Writing on the Daily Maverick site, Hoffman says that the availability of Mareva Injunctions or ‘freezing orders’ in most relevant jurisdictions around the world is an avenue open to government and to SOEs for the purpose of recovering loot through the civil courts of the world.
He adds that as the proceedings are of civil nature, it is not necessary to discharge the high criminal threshold of ‘proof beyond a reasonable doubt’ in the application to freeze the assets traced.
Hoffman says it is neither necessary nor desirable to wait for the outcome of criminal proceedings before invoking the Mareva Injunction procedures.
‘Indeed, the element of surprise and the need for a rapid response both render it desirable to allow the civil case to precede the institution of any possible criminal proceedings.’
Hoffman says government should consider the use of the Mareva Injunction as a means of recovering the loot of state capture wherever it may be found.
‘The role of the National Treasury in all this is to inform and to encourage the victims of looting to take steps for recovery of looted funds and assets with a view to reducing the considerable pressure under which the public purse currently finds itself,’ says Hoffman, adding the time for action on the recovery of the loot of state capture is now.
He concludes: ‘The need to address the culture of impunity, the incidence of serious corruption without consequences and the sustained looting by state capturers can no longer be tolerated either by government or by society.’
Article disclaimer: While we have made every effort to ensure the accuracy of this article, it is not intended to provide final legal advice as facts and situations will differ from case to case, and therefore specific legal advice should be sought with a lawyer.