Noting that the National Prosecuting Authority received its mandate from the Constitution, the National Director of Public Prosecutions provided an hour long presentation on the strategic goals and plans of its four programmes and the role of the provincial Directors of Public Prosecutions . The National Director of Public Prosecutions exercised oversight duties over the Directors of Public Prosecutions. He presented an organogram of the NPA and spoke about specialised Directors of Public Prosecutions dealing with public interest litigation, complex commercial crime, organised crime, asset forfeiture, sexual offences and priority crimes litigation. The main challenge facing the National Prosecuting Authority was increasing the current rate of finalised cases as well as convictions. In light of the new Child Justice Act, the National Prosecuting Authority would try to increase the number of diversion programmes which was a challenge. The Thuthuzela Care Centres was donor funded and the challenge was that there was no funding from Treasury and this impacted on their sustainability.
The Committee expressed concern over the recent spate of news articles about the restructuring of the National Prosecuting Authority. Members were of the opinion that the restructuring constituted demotions. There was concern about the future of the units headed by Adv Ackerman, Adv Jordaan and Adv Majokweni. The National Director of Public Prosecutions’ intrusive role in a number of recent high profile cases was questioned as some Members felt that there were elements of unlawfulness in his conduct. The National Director replied to questions about when new offices would be set up in Limpopo and Mpumalanga, post TRC prosecutions, the Hlongwane matter, the Terreblanche and Boeremag cases, the sustainability of the Thuthuzela Care Centres, the conviction rate, the repair of the Innes Chambers, the arms deal investigation and after-hour bail applications.
National Prosecuting Authority (NPA) Strategic Plan and Budget presentation
Advocate Menzi Simelane, National Director of Public Prosecutions (NDPP) noted that Section 179(2) of the Constitution empowered the NPA to carry out its functions. Section 5 of the NPA Act established the office of the NDPP. The NDPP was not a Director General. The NPA had special directors responsible for portfolios such as sexual offences, community affairs, priority crimes, special commercial crimes and litigation. The NPA Act provided for a special seat for the NPA in each of the High Courts. The provincial Directors of Public Prosecutions (DPP) could prosecute crimes without the permission or knowledge of the NDPP. The NPA would try to ensure that the legislative framework was fully complied with. The NDPP would exercise oversight duties over the provincial DPPs.
Adv Simelane continued that the NPA was not a separate department but part of the Department of Justice and Constitutional Development. The NDPP had capacity to deal with public interest litigation, complex commercial crime, sexual offences and priority crimes litigation. Specialised DPPs focused on the following areas: general prosecutions, specialised prosecutions, complex commercial crime, organised crime, asset forfeiture and corporate governance. The Justice, Crime Prevention and Security (JCPS) priorities for the NPA were addressing overall levels of crime, combating corruption and managing the perception of crime among the population. The key strategic goals were excellent governance and delivery. The key measurable objectives of the NPA were to reduce the number of case backlogs, combat corruption by successfully convicting 100 people and constraining their assets to the value of at least R5 million, establish additional Thuthuzela Care Centres (TCC) this year from 20 to 45 and increase the value of freezing orders. Donors funded the TCCs and the challenge here was that there was no funding from Treasury and this impacted on their sustainability.
There were four programmes: Public Prosecutions, Witness Relocation, Asset Forfeiture and Support Services and the plans and objectives of each of these were outlined. The aim of the NPA was to prosecute speedily and efficiently. Stakeholder relationships were important to the NPA - this included the police who were their immediate partners. The NPA would try to divert as many cases involving children as possible. This would then mean that there had to be an increase in the number of diversion programmes and this was a challenge.
The main challenge facing the NPA and the Committee as public representatives was increasing the current rate of finalised cases as well as convictions. The conviction rate in sexual offences was lower than other crimes. The reason for this was that sexual offences cases were difficult…
The Chairperson interrupted and informed Adv Simelane that time was limited and the presentation had already gone beyond an hour.
Adv Simelane continued that sexual offences cases were difficult because of the evidentiary burden. The vacancy rate was high within the NPA but the human resource department was being engaged with on this matter. Transformation of the NPA was vital. This was however not only related to gender and racial demographics. It was also about process change.
The Chairperson said that the presentation was such that one could not understand what the elements of the programmes were.
Mr G Ndabandaba (ANC) asked how the NPA reconciled the fact that virtually every crime had an element of being ‘organised’.
Ms M Smuts (DA) said that she was not happy to vote R2.5 billion to be granted to the NPA on the basis of what had just been presented. The Authority had been radically reorganised. The new organogram looked like a game of snakes and ladders where the senior officials would slither down the to the bottom rungs of the ladders. The disappearance of the entire administrative section was not a matter that one could be happy about. An entire layer of special directors had disappeared and this included Adv Ackerman’s Priority Crimes Litigation Unit, the Specialised Commercial Crimes Unit and the Sexual Offences and other units. The NPA Act stipulated, “The Office of the NDPP should include special directors”. It seemed as if the special directors had been retained within the Office of the NDPP but with the function of spotting trends and building stakeholder relationships, did this mean that they would be having lunch and reading newspapers. What was the justification for this? Furthermore what of the employment rights of these individuals who seem to have been demoted?
The Chairperson interrupted and asked where Ms Smuts got the concept “demoted” from, considering what had been presented.
Ms Smuts responded that she got it from the fact that Adv Ackerman, Adv Jordaan and Adv Majokweni did not really have jobs anymore and had been in the Office of the NDPP. A series of prosecutors had recently discovered that they had been reassigned to Magistrates Courts when they had been running whole courts or regions. Could there be a comment on the matter of Adv Simelane’s instruction to the prosecutor in the case of Mr Maarohanye to not oppose bail - as this was unlawful. Further, what was the legal basis for stopping the forfeiture proceedings in the case of Mr Fana Hlongwane? Were politics involved in both instances?
The Chairperson asked for the indulgence of the Committee. The Committee had a strategic plan in front of it, the essential purpose of the meeting was to ask if the NPA was presenting what it would undertake to achieve, based on the programmes put before the Committee. Could what the NPA presented be effectively monitored? The Committee was advised to avoid issues of who appointed whom. This could potentially undermine the separation of powers. In front of the Committee was a strategic plan that would be the basis of the Committee’s decision on the budget vote. The Committee was strongly advised to stick to this issue. If there were controversial issues they could be dealt with at any time through a summons of the NPA.
Mr S Swart (ACDP) differed with the Chairperson and suggested that the Committee should consider controversial issues, as this was an opportune moment. The questions raised by Ms Smuts were valid and supported, and the demotions raised concerns because they affected the operation of the criminal justice sector. It was pleasing to note that the demotions had been reversed. There were impacts that had to be considered when performing the oversight function and the NPA was at the forefront of the fight against crime and these were issues that had to be engaged. What was the explanation on the Hlongwane matter? The number of serious crimes that were recorded by the police were 2 098 000 and yet the target was 324 000. This meant that only 15% of serious crime cases came before courts and there was only a 10% conviction rate. This could not be acceptable and the blame was not just on the NPA to shoulder alone. The conviction rate of the NPA was good but somewhere along the line there were a lot of issues that came into play. If one looked at the budget in real terms, the NPA was getting less money. The Committee had to look at this more closely.
Mr J Jeffery (ANC) asked if the NPA was going to wait for the Superior Courts Act to be promulgated or would it commence with setting up a Limpopo public prosecutions unit. It was good to note that there were some targets for diversion regarding the Child Justice Act. However it was not the intention of the Act that every case should be diverted. The intention of the Act was to try and keep children out of jail. There was a lot of confusion in the media about the Child Justice Act and what its implications would be in the Terreblanche murder case. The prosecutor and Mr Baloyi were quoted as saying that the criminal capacity of one of the accused was an outstanding issue that would still be dealt with. This was not in the Act, according to the Act there was no criminal capacity under the age of ten, from ten to fourteen years the state had to prove criminal capacity and from 14 upwards capacity was assumed.
Mr Jeffery commented that the NPA wanted to increase the number of Thuthuzela Care Centres yet there was no money for them and according to the Annual Report the numbers had gone down, could there be more clarity on this please. The vacancy rate had gone down from 24% to 16% and this was quite an improvement but if one had to consider this more objectively then 16% was still too high. Could this figure be reduced and what was the new target? Would there still be focus on crimes post the Truth and Reconciliation Commission (TRC) where individuals did not appeal for amnesty or applied and did not receive it. What was the NPA going to do about human trafficking during the World Cup and the uncertainty around the understanding of the law in that area? There had been a protocol amongst the different government departments during the last elections. Was there going to be any review on this protocol before the elections next year?
Mr J Sibanyoni (ANC) asked if after hours bail applications happened only in the cities or throughout the country, and were there prosecutors who attended these bail hearings? What was the security arrangement for prosecutors who attended applications for bail after hours especially when the prosecutor lived far away from where the application would be heard. Special courts would be set up to handle matters after hours during the World Cup, what had been done to anticipate the higher number of cases that would arise during the World Cup? How far was the Boeremag case and was it nearing its conclusion? To what extent was the Child Justice Act applicable in the Terreblanche case for the accused minor?
Ms N Michael (DA) asked what was going to be done about the witness protection of victims of human trafficking. What was going to be done to improve safe houses for whistle blowers? What plans were in place to reduce case backlogs, as they were unacceptably high? How was the NPA moving forward with the computerisation of the legal system as a whole? The plans for the FIFA World Cup were a concern as it was unclear what role the NPA would play? Where exactly were internships for prosecutors being advertised, was the NPA going to universities for instance? Was the NPA’s mentoring programme internal or external?
The Chairperson said that Parliament was now empowered to be able to amend the budget, for the Committee to exercise this power it all depended on how focused it was going to be on what had been presented before it. The Committee was free to deal with whatever it wanted to deal with but from a Chairperson’s perspective the duty was to ensure that the strategic plan was dealt with.
Adv Simelane responded that some questions were on cases that were sub judice and would therefore not be answered. The DPPs, NDPP and the Deputy Directors of Public Prosecutions (DDPP) were the only officers that could institute prosecutions. Anybody else could institute prosecutions if they were delegated. The special directors remained in their positions.
The Chairperson interrupted and asked if this was what the Committee wanted to engage in? The discussion now was on who must work where within the NPA and not the strategic plan
Adv Simelane continued that special directors were appointed in terms of a proclamation by the President. Their mandate was also defined in the proclamation. This was why they were special DPPs. The functions of the DPPs were specifically defined and included advising the NDPP. The special DPPs were different from the provincial DPPs. No official had been demoted and this was a misunderstanding.
The Chairperson interrupted and said that the Committee had to deal with the NPA’s programmes and not matters that should normally be dealt with in the Commission for Conciliation Mediation and Arbitration.
Ms Smuts asked for an explanation concerning the instruction for Mr Lamprecht, as it seemed to be unlawful.
The Chairperson asked Ms Smuts what seemed to be unlawful.
Ms Smuts replied that it was the issue of not opposing bail as per the NDPP’s instruction to Mr Lamprecht through a senior.
The Chairperson said that this was a policy issue and thus it had to be answered.
Adv Simelane said every prosecutor in the NPA carried out his or her functions under the control and direction of the NDPP. The NDPP had specific legislative authority to intervene where there were grounds for intervening. It was important to understand that there would be a lot of interventions in many cases. The law would inform all interventions. It was not proper to say that the role of the NDPP would be not get involved in cases. The NDPP would get involved in the detail of cases, as it was an important thing to do in order to ensure that things went according to plan. All individual prosecutorial decisions would be respected. The Hlongwane matter was sub judice; it was still an ongoing matter.
Ms Smuts asked if it had been abandoned.
Mr Swart asked what the NDPP meant when he said it was still ongoing.
Adv Simelane responded that the whole matter was in the hands of the police. The arms deal matter had been in the NPA and had been investigated by the Directorate of Special Operations (DSO). The disbandment of the DSO meant that all investigations were transferred to the Directorate for Priority Crimes Investigation (DPCI). The matter of the Liechtenstein investigation and the frozen funds was a small part of the broader investigation in South Africa. The Sunday Times newspaper was incorrect in saying that the frozen funds amounted to R200 million, the correct figure was about R5 million. It was assumed that the matter was dropped, this was not so. The preservation order that had been applied for, had been satisfied and it was the view of the NDPP that there was no need to carry on with it.
Mr Silas Ramaite, Deputy National Director of Public Prosecutions, said that the Committee must trust the NPA when it said a matter was sub judice. The NPA would not in any way attempt to mislead the Committee.
Ms Smuts asked for a response on the administrative section.
Adv Simelane replied that the NPA was still working on the ensuring that the accountability framework was still there. The NPA needed administrative support and therefore they would always be there.
Adv Simelane continued responding to the questions and addressed case figures. The figure of 324 000 related to matters where the prosecution had decided to take the matter to court. It was correct to say that there were many other cases that never got as far as being presented in court. Sometimes it was clear that a crime had been committed but on the strength of the evidence gathered it would transpire that a conviction would not be secured and the matter would not be prosecuted. The matter would then be referred to the police for them to carry on investigating. The figure for withdrawn cases referred to such instances. The budget decrease was a follow through to what was affecting every government department over a three-year cycle.
Mr Swart interrupted and said that if during the middle of the year the NPA would provide information concerning an increase in the budget then the Committee would be able to “batter” on their behalf for that increase.
Adv Simelane continued saying that the NPA had sent senior officials to the Limpopo area. The NPA would also send personnel at Deputy level and hopefully they would not argue that they were being demoted. Mr Baloyi was misquoted and he had not dealt with the issue of capacity it was in fact the defence in the Terreblanche case. The Thuthuzela Care Centres had not been reduced, they would increase and in addition to donor funding, funds from the NPA would be used. The final figures for the vacancy rate were still due to be concluded. The figure would change once all currently outstanding appointments had been made. The Priority Crimes Litigation Unit (PCLU) was still working on a number of post TRC cases. The figure was eight cases. The NPA was using other relevant legislation to prosecute human trafficking offences. There had been no discussions yet on the protocols but this might be revised closer to the elections. There was a roster for prosecutors to be on duty for after hours bail. The NPA was faced with the normal security challenges. There was however security personnel stationed at the courts over a 24-hour period. There was a specific programme that was driven by the NPA that focused on FIFA, it had been budgeted for and there were courts set aside for the tournament. The Boeremag case was ongoing and the state had closed its case a year ago. Witnesses under the protection programme were in safe houses. The national office dealt with backlogs, there were additional staff on contract that assisted in this matter. The national office also dealt with Information Technology (IT) integration especially at court level. The programme for this was a priority. The NPA ran a programme to recruit prosecutors. Adverts were placed in the newspapers and individuals such as graduates applied. The organised crime components in the presentation referred to organised syndicates such as cash in transit gangs. It was acceptable to say that almost all crimes were ‘organised’ in the sense that they were planned.
Ms L Adams (COPE) asked if the NDPP had forbidden prosecutors to speak to the media and what was the ratio of prosecutors per court? Where would the line be drawn between the NDPP’s oversight role in cases and interference with the prosecutor’s own discretion in a case? On what basis would the NDPP decide to get involved in a particular case? When would the Committee receive the report on the Innes Chambers?
Mr Jeffery felt that the question on regional jurisdiction was not fully answered. Was an office being set up in Polokwane and what was the jurisdiction in the North West province? What was happening with the sexual offences courts?
Ms Smuts asked if the prosecutorial guidelines had been challenged as they had been deemed to be unconstitutional?
The Chairperson said that the process of interrogating the strategic plan was an ongoing one. It was difficult to ascertain what measurable objectives were set out in the document. The structure of the document was not consistent as there were targets for certain programmes but not for others.
Adv Simelane said no prosecutor was banned from talking to the media, the NPA only insisted that prosecutors had to get sign off from their DPPs before doing so. The NDPP had the power to review and the NDPP only changed / altered a decision if an individual approached him/her and requested a review. Where there were inter-house discussions, the prosecutor always had the final decision. It had been decided that there would not be standalone courts for sexual offences cases only as judges did not want to adjudicate the same matter. The issue of jurisdictions was one which was affected by provincial boundaries, which were not consistent with the administrative boundaries.
The Chairperson asked what the NPA would be doing with the funds that it would receive for the next
Adv Simelane said that there were no cases that the NPA was currently prosecuting regarding post TRC matters. The reason being that the dockets were still with the police for investigation. It would be difficult for the Committee to expect the same kind of objectives from the NPA as with other departments due to the nature of its work. The NPA would never be able to give an actual target for number of cases prosecuted as the conclusion of one case depended on multiple factors. The NPA was still awaiting assistance from the Department of Public Works about office space so that there could be an office in Polokwane and Nelspruit. The officials were available and ready to move but there was no allocated office space. The ratio of prosecutors per court was 1 and a half.
Dr Khotso DeWee, Acting CEO of the NPA, said that the Innes Chamber report had been submitted to the Committee. The NPA approached the Department of Justice and Constitutional Development to take over the Innes Chamber on the basis that the NPA did not have the R220 million needed to refurbish the building.
The Committee Secretary added that an incomplete report on the matter had been submitted last year. The matter was followed up later in the year and the Committee was told that there were still some outstanding issues with the Department of Public Works. The department was going to make some follow ups and submit a full report, this was the report being referred to.
The Chairperson differed with Adv Simelane on the point of targets and said that where money was paid, there had to be things that were achievable. It cannot be said that since it was the NPA, there would be a hope that things would change one day. The point was that there had to be a commitment to some target.
Mr Jeffery was not happy with the response on regional jurisdiction. The South Gauteng jurisdiction was easy to set up, 16 years had passed and there was still no office for Limpopo and Mpumalanga, why?
Adv Simelane responded that the first thing that would be a necessity would be office accommodation. The prosecutors and officials were already there and ready to move but they did not have space to move into. The Minister and the Judges President still had to decide how the jurisdictional boundaries would be framed. The NPA could then come back to the Committee with a timetable.
The meeting was adjourned.
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