When The SIU Comes Calling | State Capture Investigations

Legal 101 for companies on what to do (and not do) in the first 72 Hours of an investigation into State-Capture

The first call or letter seldom arrives at a convenient moment. A phone message from a "forensic investigator", an e-mail citing a presidential proclamation, or a request for financial information "by close of business" on a day that just happens to be your quarter- or year-end. However it lands, an approach by South Africa's Special Investigating Unit (SIU) or the Investigating Directorate Against Corruption (IDAC) is not just another routine investigation; it is a statutory process with teeth – subpoena powers for witnesses and records, the ability to search and seize, to take evidence under oath, and to prepare the groundwork for a criminal prosecution or the pursuit of civil recovery for the State. Calm, counsel-led co-operation almost always produces a better outcome: well-managed requests, more workable timelines, and credibility where it counts.

Taking the typical example of an SIU investigation, your job in the first 72 hours is simple:

• Field the request;
• Establish a single channel of communication;
• Locate and preserve the evidence;
• Assess the position; and
• Map the decision tree

– all without stumbling into unmanaged and avoidable risks or creating false alarm.

Co-operate, don't capitulate: acknowledge and engage through counsel, ask for the statutory basis and scope, request reasonable time to compile materials, and keep privileged advice and internal fact-finding clearly ring-fenced. Co-operation done properly protects rights and keeps options open; silence or improvisation rarely does.

• What this really is (and isn't): SIU investigations start with a presidential proclamation; they are not the same as a SAPS raid or a routine regulatory enquiry. SIU can compel records (including bank, email and text) and seek testimony under oath; parallel referrals to prosecution or to the Special Tribunal are common. Treat it as litigation-grade from minute one.
• Stabilise before you speak: Name a single point of contact; acknowledge receipt; ask for the statutory basis and scope; request reasonable time to compile materials; establish goodwill; and avoid casual backgrounding calls. Privilege is easier to defend when communications are managed by counsel.
• Preserve first, argue later: Trigger a legal hold across mailboxes, shared drives, phones and messaging apps; suspend routine deletion; log every preservation step. Any whiff of spoliation will define the matter.
• Assess, frame and execute: Once the request is assessed and risks (including any liability) identified, move swiftly to framing and executing the response strategy and standing up the response team. Act swiftly but do not rush. Perfection is the enemy of good. Rushing and mistakes can be costly but so can losing the value of co-operation and unreasonable delay.
• Interviews under oath: Decide whether one is needed or whether a statement alone will suffice. Decide early who should be put forward and who should not. Prepare witnesses as if for cross-examination; correct the record in writing quickly (and above all, truthfully!) if a factual error is made.
• The self-reporting dilemma: Where internal review shows clear wrongdoing, a structured, counsel-led self-disclosure can reduce downstream exposure – but only if your facts are tight, remedial steps are underway, and you are ready for conversations on sanction and recovery. Like many agencies, while the IDAC and SIU have a statutory mandate and job to do, they are not unreasonable or unapproachable and are bound to respond positively to well-intentioned approaches.
• Boards and executives: The board's oversight duty is active, not ceremonial. Minute decisions, appoint an independent sub-committee (clean team) where conflicts or uncertainty exists, and separate crisis PR from legal strategy.
• End-state options: Cooperation agreements, negotiated production timetables, limited-issue privilege logs, and – where necessary – considered litigation in the Special Tribunal or criminal courts to resolve genuine disputes of fact or law.

Co-operate, don't capitulate: Map risk before you speak

Over-focusing on the immediate request and not mapping your full risk exposure upfront, almost always ends in contradictions, costly missteps and sometimes permanent damage. By the time the SIU or IDAC reach you, it usually has a well-informed picture. You're still catching up. Assume nothing until the evidence has been reviewed and reconciled.

The same goes for delegation. In group structures, defaulting to the local CEO or CFO as the single point of accountability sometimes adds fuel to the fire. A clean team should take initial control, establish the facts, and then identify who the appropriate local leads should be.

Above all, remember that not everything is an episode of Suits. As lawyers, your job is one of ethical and responsible counsel and assistance. Investigating agencies for their part, are generally pragmatic. Where there's room for cooperation and sensible compromise, take it – that's better than reflexive opposition. Remember: those agencies have powers you and your client don't.

And don't be afraid to table numbers. If you find yourself discussing settlement terms, arrive with accurate numbers – gains, expenses, remedial costs (such as self-imposed monitoring), impact on cash flow and sustainability of the company and those whose livelihoods depend on it. In the end, this is as much a financial-structuring exercise as it is criminal-risk management.

Final Notes

Panic or under preparedness make for poor protocol. The companies that emerge with credibility follow a calm and consistent pattern: hold the line, hold the data, hold their nerve and a wide angle and pragmatic lens to the problem. It's not binary or not about win or lose, recovery or resistance. Let the facts and commonsense, not speculation and overzealous lawyering, shape every step.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.