National Prosecuting Authority on its 2009/10 Annual Report

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Justice and Correctional Services

12 October 2010
Chairperson: Mr J Jeffery (ANC)
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Meeting Summary

The National Prosecuting Authority indicated that it had showed a marked improvement in service delivery targets in most areas over the past financial year with 99.4% of the budget had been spent by the organisation. The outstanding unspent percentage was R143 611. The vacancy rate currently stood at 16.5% and was down by 8.4%. The number of finalised cases had increased by 2% and totaled 469 541, this included diversions. The Department’s screening mechanism for cases had worked well in certain areas, for example, in the number of finalised cases and withdrawn cases, which had decreased by 16.5%. The conviction rate across all the courts had improved by 12.5% whilst cases finalised by means of alternative dispute resolution mechanisms increased by 31.1%. The challenge for diversion was that diversion programmes for children were not always available.  Backlog cases were reduced by 9.3%. The Specialised Commercial Crime Unit finalised 58% of their cases however it was not pleasing that 246 cases withdrawn. To partly address this, the definition of complex commercial crimes would be redefined in order to narrow it. A high number of sexual offences cases were usually not reported, however the Sexual Offences and Community Affairs Unit had secured a 64.5% conviction rate for cases coming through the Thuthuzela Care Centres. The Asset Forfeiture Unit had achieved 13% more for its target of new restraint orders and 11% more for its confiscation orders. The value of its new restraint orders was 36% above target and confiscation orders was 23% above target. This enabled R50 million in orders in favour of victims of crime which was 50% above target. The new focus of the Asset Forfeiture Unit would be to prioritise cases with assets of more than R5 million and there would be more transparency about the payment of victims of crime.

There were a number of strategic projects that had been successfully implemented such as the work done by the NPA during the FIFA 2010 World Cup. The Occupational and Health System for the National Prosecuting Authority was rolled out at head office and in six other regions. An Asset Ware system had been introduced since there had previously been a qualification based on asset management. For the 2009/10 financial year the NPA received a qualified audit opinion. There was a slight improvement, as the qualified audit opinion did not include assets this time round. Edward Nathan Sonnenbergs was appointed to address and investigate irregular expenditure whilst Lexus Nexus Forensics was appointed to address and investigate Fruitless and Wasteful expenditure.

Concerns of the Committee were the non-disclosure of interests by employees, some of the figures relating to the cases; the qualified audit opinion from the Auditor-General. The Committee expressed concern that it was unknown if any NPA employees not disclosing their assets, had companies that did business with government. It was displeasing to them that the NPA’s response to the problem of fruitless, wasteful and irregular expenditure had been to hire consultants. The figures for cases, budget and expenditure came under heavy scrutiny.

Meeting report

 

Presentation: 2009/10 National Prosecuting Authority (NPA) Annual Report
Adv Menzi Simelane, National Director of Public Prosecutions (NDPP), said the NPA had managed to spend 99.4% of its budget, leaving only R143 611 (0.6%) of its budget unspent. The vacancy rate currently stood at 16.5% which was down by 8.4% compared to the previous financial year. The target for finalised cases (including diversion) was more than achieved by an extra 2%. The reason behind the improvement was the Department’s screening mechanism (that included the police), which had taken some time to work. A key objective was to maintain a high conviction rate in all courts. The number of finalised cases was 469 541, this was a 16.2% increase from the previous financial year. The conviction rate remained positively high across all the courts and had improved by 12.5%. Cases finalised by means of alternative dispute resolution mechanisms increased by 31.1% This was however not an easy route to avoiding trial and the circumstances of all parties were taken into serious consideration.

The number of withdrawn cases decreased by 15.6%, the screening mechanism was once again behind this improvement. The challenge about diversion for the NPA was that diversion programmes were not available everywhere. Diversion where adults were involved was a bit too informal at the moment and there was a move to formalise it. The number of new cases decreased compared to 2008/09. One of the reasons for this was that police investigations were not ready yet. Backlog cases were reduced by 9.3%, this was because of the high finalisation rate. The district courts were the busiest and also where there were a high number of convictions. Most of the work done by the Priority Crimes Litigation Unit (PCLU) was aimed at facilitating investigations conducted by the police. The Missing Persons Task Team, part of the PCLU, achieved: 
▪ Launch of Robben Island Prisoners Project to trace remains of Robben Island prisoners who died while serving prison sentences and were buried in unmarked graves as paupers in Stikland cemetery, Bellville;
▪ Locating and exhuming remains of political prisoners officially executed by the apartheid government between 1960-1970 such as the ‘Langa Six’.
▪ Finalisation of the Pebco 3 and COSAS 2 cases, whose burnt remains were excavated from the soil and septic tank at Post Chalmers farm near Cradock.
▪ Recovery of the remains of ANC MK member Zinto Cele from Ntuzuma cemetery in Durban.

The Specialised Commercial Crime Unit (SCCU) finalised 58% of their cases. Originally it was planned that the SCCU would deal with fewer, but rather ‘high impact’ cases. It was thus not pleasing that 246 cases were withdrawn despite the 30% reduction. This was due to many cases not being ‘complex’ and should not have been dealt with by this unit. The definition of ‘complex’ would be redefined and there should be an improvement in the cases handled by the SCCU.

There were 20 Thuthuzela Care Centres (TCC) at the end of the financial year as three more had been established. These Centres fell under the supervision of the Sexual Offences and Community Affairs Unit (SOCA). The conviction rate of the TCCs was 64.5%. There were 743 families currently in the Witness Protection Programme.

The NPA’s Asset Forfeiture Unit (AFU) reported the following achievements:
• The v
alue of new restraints 36% above target
Value of confiscation orders: 23% above target and second highest ever
Value of deposits into (Criminal Assets Recovery Account) CARA: 48% above target and second highest ever
Value of orders in favour of victims of crime: 50% above target and second highest ever.
The aim of the NPA was that for every case where organized crime was involved, there should be forfeiture of some sort; however it was not in every case that assets were seized. The amount of forfeitures was not in enough if one took into consideration the number of cases handled by the AFU. One of the reasons why there has been less forfeiture was that there was a lack of capacity within the unit. The NPA also needed to start reporting on how many of the restraint orders resulted in a realisation, as this was what ended up in state coffers. The AFU also paid money to victims and last year it was R51 million. The NPA would have to be more transparent about this process of paying victims. The new focus of the AFU would be to give priority to those cases with assets of R5 million and above.

The main challenges that remained for the NPA were capacity and the vacancy rate.

Dr Khotso De Wee, Chief Operating Officer of the Department of Justice and Constitutional Development (DOJ&CD) continued with the presentation focusing on support services for the NPA. Quarterly performance reviews had been successfully conducted over the financial year. There were a number of strategic projects that had been successfully implemented such as the work done by the NPA during the FIFA 2010 World Cup. The Integrity Management Unit (IMU) had investigated 58 of the 82 cases of misconduct. Tthe Occupational and Health System (OHS) was rolled out at head office and in six other regions. No staff members were harmed during the past year and the shift in focus would now be on the cases of theft that had been encountered. Delivery of training programmes had been successfully rolled out with a marked improvement from the previous year. An Asset Ware system had been introduced since the NPA had previously received a qualified audit opinion about its asset management. For 2009/10, the NPA received a qualified audit opinion. There was a slight improvement as the qualified audit opinion did not include asset management. Progress on the audit action plan so far included the verification of former Directorate of Special Operations assets; the valuation method of all assets had been approved; the leave audit of all officials was being conducted to address leave management gaps. Edward Nathan Sonnenbergs had been appointed to investigate and address irregular expenditure. Lexus Nexus Forensics was appointed to investigate Fruitless and Wasteful expenditure. Warning letters had been issued to some staff members for non-declaration of financial assets.

Discussion
The Chairperson asked how many employees had not disclosed their financial interests and when were they supposed to do this.

Dr De Wee replied that the number was 18 employees and they were supposed to have declared their assets by 18 March.  

Ms D Schaefer (DA) asked if the decrease in AFU judgments had anything to do with the restructuring programme by the NDPP. Could the NDPP provide the Committee with an update of the restructuring programme? It was horrifying to hear that the AFU was training the Directorate for Priority Crime Investigation on handling financial cases, why was this happening? Could there be more detail on the reasons why the NPA was referring more and more dockets back to the police for further investigation, how was this impacting on NPA figures? Why was the NPA reducing the number of dedicated sexual offences courts? When one looked at the figures for outstanding sexual offences cases and took into consideration the disbandment of certain units and the reduction of dedicated sexual offences courts, the figures were not justified as they kept going up. To what extend did delays in forensic labs affect NPA prosecutions? 

Mr J Sibanyoni (ANC) asked if the NPA was the right body to report farmers who ploughed over the graves of the relatives of persons who were seeking land restitution, this happened frequently in his constituency. The NPA successfully appealed the granting of bail to one of the accused in the Eugene Terreblanche case. Would the NPA do the same in the case involving Oprah Winfrey’s school?

The Chairperson said that he would not allow the last question, it was not fair and the Committee should not question NPA decisions.

Mr Sibanyoni said that he would rephrase the question, what motivated the NPA to appeal decisions as it was not usual to see them doing so?

The Chairperson said that the Committee should not question the NDPP on specific cases, only on general policy. There were no sections that provided for informal mediation in the Criminal Procedure Act. Those cases that involved informal mediation were increasing and this was worrying. The presentation stated that there was a decrease in the number of withdrawn cases yet in slide 14 it was not clear what constituted a withdrawal. The annual report stated that there were 1245 finalised cases yet in slide 17 of the presentation it stated 1045 guilty and sentenced persons - there seemed to be cases missing. Were there any figures available for human trafficking? The figures for sexual offence convictions were too low at 64%. He knew the problem was not entirely with the NPA as it had lost 8 dedicated courts but the figures indicated that there were more convictions from dedicated courts than the TCCs. So there should in fact be more dedicated courts than TCCs. 

Adv Simelane replied that there should be discussions and agreement on what constituted a high enough conviction rate. Perhaps a high enough figure would be 70% across the board. It was his belief that the conviction rates were high enough as it was difficult to prove a case beyond reasonable doubt. Prosecutors were saying that they were being pushed too hard for convictions and this put them in a position where they would only go for cases where there was full proof documentary evidence. There should be a comparison between cases concluded in dedicated courts and those concluded at the TCCs. There was reason to believe that there was no difference in the manner in which the cases were dealt with. Dedicated courts would become an issue if the NPA were to increase the number of cases that it dealt with. The judiciary was of the view that in some instances the prosecution did not bring enough cases to dedicated courts, this rendered judicial officers to not have any cases to sit on. If there were more cases, then there would be a need for more courts. There was always a delay in the prosecution’s case where lab results were awaited. Things would improve in the future especially when the ‘Forensics’ Bill was finalised. 

On the number of dockets that the NPA was sending back to the police, Adv Simelane replied that in many instances there was only the complainant’s statement given to the prosecutors. This was incorrectly done as the station commander was the appropriate person to give dockets with only a statement. The NPA must have at least commented within 14 days of a complainant’s statement. Dockets going back and forth were not too much of a worry as this was perfectly normal. The desecration of gravesites was a contravention of a municipal by law and should be reported to the police; the NPA was not the main body to handle such complaints. Traditionally the NPA did not appeal decisions but now it was trying to do so as it was considering matters more closely. 

Adv Karen Van Rensburg, Deputy Director of Public Prosecutions (DDPP), replied that the decline in the success rate of the AFU cases was not new but had already started in the previous financial year. The AFU was not training the Directorate for Priority Crime Investigation on how to conduct investigations but rather on how to trace assets. The NDPP was also concerned about informal mediation and had requested formal guidelines to be drafted that would be part of the NPA’s policy. There were a lot of cases where there were withdrawals because there was a warrant of arrest issued because the accused failed to turn up in court thus halting proceedings. The reporting system of the NPA did not follow the case from the police to finalisation. To make things easier, the NPA would provide a breakdown of the case statistics in the second quarter. The Committee should rest assured that the figures were correct.

The Chairperson said that one would hope that there was not a large number of accused persons walking around with warrants of arrest, as this would imply that it was very easy to circumvent the law. The ‘struck-offs’ were worse than a withdrawal and the figures were a concern. Were the informal mediations part of the review of the criminal justice system and, if not, should it not be. Should not the Law Reform Commission be part of this as the NPA should not be the final determinants? The response on the sexual offences was a point well made but the argument from the NDPP becomes an argument for more specialised courts. The Auditor General’s report on the NPA was not very nice, which stated that “management’s philosophy and operating style does not in all instances promote effective control over reporting. This evidenced by the fact that significant external audit findings from prior years have not been addressed and the Standing Committee on Public Accounts (SCOPA) resolutions have not been substantially implemented as of the time of issuing this report” (see page 77 of annual report). This was a very heavy finding. The way that the NPA handle its audit issues did not compare well with that of the DOJ&CD. The NPA’s responses to the problems of fruitless, wasteful and irregular expenditure had been to hire consultants. He was not happy with this.

Mr L Landers (ANC) agreed with the Chairperson that the issues of fruitless, wasteful and irregular expenditure as well as non-disclosure were very serious. Either the NPA leadership and staff did not care about the declaration of interests or its implications or there was something else going on. What was the problem with the 18 staff members that had not declared their financial interests?

The Chairperson added that one would not imagine that an employee of the public service would have complex financial interests. There was enough in house capacity to deal with the problems instead of hiring consultants. Would the NPA have an unqualified audit for the 2010/2011 financial year?

Ms Schaefer referred to page 75 of the annual report and asked what the undisclosed figure of R1.74 million that had not been disclosed in the financial statements was about and why had it not been disclosed? On page 77 there was mention of a report that was under investigation, what was the progress on that? On page 74 the Auditor-General stated that correct procurement procedures were not followed. Why was this case and what was management going to do about it?

The Chairperson referred to slide 6 of the presentation and said that for support services R459 million had been received, R13 million was taken away and there was a virement of R2.5 million. The budgeting did not seem right.

Ms Nonkululeko Msomi, Director General of DOJ&CD replied to the second round of questions as the accounting officer for the NPA. She said that the NPA could have done much better than it did during the past financial year. An audit finding of a disclaimer was missed by a fraction. The issues faced by the Department and the NPA had been ongoing for some time. She had written a letter to the Auditor-General to address the issue relating to the R19.2 million not surrendered to National Treasury. It was not easy to manage an organisation like the NPA on a remote basis, especially as one dealt with it occasionally. In order for there to be closer proximity between the NPA and the Department, the Chief Financial Officer of the NPA has been made part of the Department’s Executive Committee of the Executive Management (Exco). It was acknowledged that hiring consultants was not going to solve the problems faced by the NPA. The Department took full responsibility for a lack of action on disciplinary issues for staff members.

The Department had not conducted an analysis on which staff members conducted business with government as a whole, the NPA and the DOJ&CD. Some of the disclosures of interest had been submitted but due to departmental administrative issues, they were late. The report on page 77 of the annual report related to the Rand Works contract amounting to R19 million. The issue was whether or not the NPA received value for money and how the NPA accounted to National Treasury regarding this contract, as it was a sale and a leaseback. The Auditor-General was of the view that there was no value for money received however the Department felt that there was and it was backed up by a finding from an external contractor. If National Treasury and the Auditor-General were of the opinion that the money should be returned then the NPA would do so. She was in constant dialogue with the NDPP and senior management within the NPA on how best the organisation could be structured so that it supported the delivery agreement that the Minister signed as well as addressing the audit queries raised by the Auditor-General. The issue of assets was dealt with vigorously at a system and verification level. An asset register had been already established by the time the auditors had started to conduct their work, however they still pointed out that there was no verification system. To answer the Chairperson’s last question, the NPA would not be able to turn the corner however there would be some issues that would have been sorted out. These issues would be the R19 million contract of Rand Works, employee benefits and leave. The area where there was no progress was that of irregular expenditure.

Mr Gordon Hollamby, Executive Manager:Finance and Procurement, dealt with the issues raised by the Chairperson on slide 6. The underspending by Support Services had to be done due to preparations for the Occupational Specific Dispensation (OSD). The overall figure that was saved was the R143 million under the virement column.

The Chairperson asked about the R12 million that had been shifted.

Mr Hollamby replied that the figure was under the balancing column, which was within the shifting. Money from Corporate Services had been taken and given to Public Prosecutions, Witness Protection etc. This was as a result of the budgetary prioritisations done throughout the year.

In reply to the Chairperson asking what was the budget for Corporate Services for the current financial year, Mr Hollamby said that it was R460 million.

Mr Landers commented that financial disclosures did not just refer to the individual persons but also their companies or companies that they had shares in, doing business with government.

The Chairperson thanked all those who had attended the meeting including the Director General of the Department and adjourned the meeting.

 

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