The Committee met with the National Prosecuting Authority to deliberate on its Strategic Plan. The National Prosecuting Authority had outlined its Priority Objectives as follows: Output 1 was the core function of the NPA which was to reduce the overall levels of crime in the country. As part of improving the efficiency of the Criminal Justice System under Output 2, the NPA aimed to reduce case backlogs and increase the number of finalised cases. Output 3 was to eradicate corruption within the Justice, Crime Prevention, Security cluster. Output 4 was to manage the perception of crime; Output 5 was to improve investor confidence and Output 8 was to address cyber crime. The overall key strategic objective was to increase the successful prosecution of cases. A key revelation regarding prosecutorial work was that the Directives would be refined and changed if necessary. The target for an increase in alternative dispute resolution cases was 20% per annum until 2014. The National Prosecuting Authority wanted to ensure that by 2014 it had 100 convicted individuals who were involved in fraud and corruption to the tune of R5 million. An assessment of risks had revealed that financial controls and management, a lack of coordination within the Justice Crime Prevention Security cluster, and financial resources were areas in need of serious attention. The filling of vacancies remained a challenge. There were accommodation problems and the National Prosecuting Authority was not able to house all its prosecutors and this affected the recruitment drive. The rate of vacancies was currently 15.3%. This had dropped from last year’s 17%. Operation Recruitment Drive had filled 181 posts; the difficulty with this initiative was that most of the promotions were internal. The National Prosecuting Authority would look for external recruits
R1.9 billion of the budget went to public prosecutions. There was a reduction in 2011/12 because of the Occupation Specific Dispensation. The National Prosecuting Authority was trying to ensure that the allocation of resources for support services was evenly spread out. R46 million of the budget was allocated to head office, as there were no prosecutions that came out of this office. Forensic audits had been conducted which revealed irregular expenditure and some individuals were identified. Disciplinary processes had commenced and the relevant individuals had been asked to provide written reasons why disciplinary action should not be taken against them within seven days. The forensic audits had revealed 18 individuals, which included senior personnel. There has been great improvement on leave and the audit would be finalised soon. There were still some difficulties with the disclosure of assets by staff and the relevant individuals had had action taken against them. Operation Recruitment Drive was launched, ran its course and concluded.
The Committee expressed concern that the vacancy rate was still too high, especially given government’s policy that all vacancies should be filled. The Committee requested that this be a standing matter at every quarterly meeting with the National Prosecuting Authority and Department of Justice and Constitutional Development. The Committee was dissatisfied that Phase Two of the Occupation Specific Dispensation payouts had not been effected and this had resulted in a reduction of the National Prosecuting Authority’s overall budget as it fell under underspending. The Committee wanted explanations on how some of the statistics and figures were arrived at in the presentation. The Committee felt that some of the targets were “thumb sucks” such as the number of prosecutors facing corruption charges. The Committee felt that it was unacceptable that some of the targets had dropped below what was achieved during the previous financial year. The Committee felt that the qualified audits received in past years were tied to financial management and suggested that competent individuals should be appointed in the finance department within the National Prosecuting Authority. The Committee asked about threats to the safety of prosecutors and asked the National Director of Public Prosecutions what was being done about this and at what cost. A comment was made that the National Director of Public Prosecutions had wrongly continued with the re-structuring of the National Prosecuting Authority and the result was the specialised units had statistically under performed as a result. Another comment was that cyber crime was not being taken seriously enough. The Committee suggested that in future there should be a common set of indicators regarding the statistics and figures and that there had to be specialisation on how rape victims should be handled by the defence.
Presentation: National Prosecuting Authority (NPA) Strategic Plan 2016 and Annual Plan 2011
National Director of Public Prosecutions (NDPP) Advocate Menzi Simelane said that the NPA, in moving forward, would keep engineering and modernising its business processes. What this meant was that the Directives, which were issued from time to time to prosecutors, would be refined and changed if necessary. The NPA spoke about finalising 2% more cases per annum between 2011 and 2014. The target for an increase in alternative dispute resolution cases was 20% per annum until 2014. The NPA wanted to ensure that by 2014 it had 100 convicted individuals who were involved in fraud and corruption to the tune of R5 million in assets accumulated from such illegal activities. In terms of the structure of the NPA, the prosecutorial units had been broken down so they could specialise and deal with cases in a dedicated manner.
Ms Karen Van Rensburg, Executive Manager for Strategy in the NPA, said that the strategic plan would cover a five-year period. The Annual plan was a lot more detailed. All cases in the regional and high courts were taken seriously. The strategic objective was to increase the successful prosecution of cases. There were 6 Outputs that were part of the Justice Crime Prevention and Security (JCPS) delivery agreements. Output 1 was the core function of the NPA, which was to reduce the overall levels of crime in the country. As part of improving the efficiency of the Criminal Justice system under Output 2, the NPA aimed to reduce case backlogs and increase the number of finalised cases. Output 3 was to eradicate corruption within the JCPS cluster. Output 4 was to manage the perception of crime; Output 5 was to improve investor confidence and Output 8 was to address cyber crime. Cyber crime was on the increase and this required special prosecutorial skills from prosecutors.
Adv Simelane noted that the organisation had conducted an assessment of risks through the office of the Acting Chief Executive Officer (CEO). The first area identified was financial controls and management. The NPA was addressing this. There was a lack of coordination within the JCPS cluster and this was also an area of concern. The third issue of concern under risk management was on financial resources, which would enable the NPA to deliver on its mandate. It was important for the NPA to fight long drawn out commercial crimes cases where the accused persons often had the means to go all the way to the Constitutional Court. The filling of vacancies remained a challenge and the NDPP was engaging with the Acting CEO on a continual basis. The NPA had accommodation problems and was not able to house all its prosecutors - this also affected the recruitment drive.
R1.9 billion of the budget went to public prosecutions. There was a reduction of this figure in 2011/12 because of the Occupation Specific Dispensation (OSD). The second implementation of OSD was R98 million. The NPA was trying to ensure that the allocation of resources for support services was evenly spread out. R46 million of the budget was allocated to head office; it was the opinion of the NDPP that more of this should be spread out to other regions, as there were no prosecutions that came out of this office. The NDPP was engaging with the Acting CEO on this matter. The allocations for the provincial Directors of Public Prosecutions (DPPs) went according to the number of prosecutorial activities and population sizes in each province.
The Committee had raised some concerns in its previous meeting with the NPA and these were addressed:
▪ Forensic audits were conducted which revealed irregular expenditure and some individuals were identified. Disciplinary processes had commenced and the relevant individuals had been asked to provide written reasons why disciplinary action should not be taken by the NPA within seven days. The forensic audits had revealed 18 individuals, which included senior personnel.
▪ There has been great improvement on leave and the audit would be finalised soon, the Auditor General (AG) would be engaged with soon.
▪ There were still some difficulties with the disclosure of assets by staff and the relevant individuals had had action taken against them.
▪ Operation Recruitment Drive was launched, ran its course and concluded. The NDPP had reservations on whether it was money well spent.
▪ There were 71 maintenance prosecutors but the legislation identified every single prosecutor as having the mandate to deal with maintenance issues, which was civil work. Maintenance prosecutions resided under Special Prosecutions under each DPP office. This was not criminal work and there were questions as to whether prosecutors should deal with them.
Dr Kgotso De Wee, Acting CEO of the NPA, said that the rate of vacancies was currently 15.3%. It had dropped from last year’s 17%. 181 posts were filled under Operation Recruitment Drive; the difficulty with this initiative was that most of the promotions were internal. The NPA would look for external recruits to address this in future.
Mr J Jeffery (ANC) said that he was distressed to find out that the Committee’s Budget Review Report (BRR) was not seen by the NPA and the Department of Justice and Constitutional Development (DOJ&CD). It was the responsibility of each entity to get the BBR and not the Committee’s. The report on the vacancies was inadequate. The Committee’s document that was prepared by the Research team revealed that the vacancy rate for prosecutors was 12,12% after the recruitment drive; Dr De Wee has said that it was 15.3% and this was unacceptable. If the number of successful prosecutions were to increase, then there had to be more prosecutors. There had to be a better mechanism for the filling of vacancies. The money on OSD had not been spent and this could result in prosecutors leaving. Could there be more detail on this. The DOJ&CD as well as the NPA had to explain how the stats and figures were arrived at. The target for improved convictions was 45%. How could this be when compared with an overall conviction rate of 88%, this did not make sense? This was particularly when one thought of regional and high courts which were not courts of first instance so the withdrawals would happen earlier on. By the time a matter came before the regional and high court, there would be some sort of case to answer to. The figures for informal mediation were worrying as this was unregulated and they were too high. There had to be statutory regulation and in the meantime there had to be guidelines.
When was there going to be a Director of Public Prosecutions (DPP) for Mpumalanga and Limpopo and where were the NPA’s quarters? Could there be an explanation on the budgets for machinery and equipment for some provinces where there was over expenditure? The input from the NDPP on maintenance was pleasing. The concern was that the prosecutors responsible for maintenance and the DOJ&CD’s maintenance investigators were not communicating. There had to be a structured forum for maintenance for all maintenance officials.
Adv Simelane said that Mr Jeffery was correct on the lack of a forum for maintenance officials. This had to be sorted out. There was no DPP office in Limpopo and Mpumalanga as there were no high courts. In Limpopo there was a circuit court and the NPA had a DPP operating there with 12 prosecutors. There was no regulation of informal mediation but the DOJ&CD was finalising appropriate policy. The Directors-General of the JCPS cluster had approved this policy. There were checks and balances in place as mediation was available in minor matters only. Most of the time it was used for domestic violence issues. Senior management did conduct spot checks; there was one case in KwaZulu Natal (KZN) where a murder case had been resolved by way of restorative justice where the perpetrator paid the victim’s family R150 000. There was still an investigation as to how this happened. In addition there were no Schedule 3 diversions in accordance with the Child Justice Act - this was ascertained with each of the DPPs. The NPA did not have control over the money allocated for OSD, as this was a corporate services matter.
Dr De Wee said that the 15.3% vacancy rate mentioned earlier on included corporate services. The prosecutorial vacancy rate stood at 12.12%. A whole lot more had to be done to reduce this figure though. There were 788 staff members that had to be paid on OSD, of this figure 648 had been paid already. 140 personnel staff were currently being processed and by the end of April all personnel staff would have been paid.
Mr Gordan Hollamby, Head of Finance for the NPA, said that over R50 million had been paid to 648 people and this was from the 28 March 2011. The amounts involved for those, which were still being processed, was not significant. The over expenditure on machinery and equipment was as a result of the classification of the finance leases. The finance leases had to classified according to a split between capital and interest. It was because of this split between capital and interest that there was overspending on capital and underspending on goods and services. This was being fixed through journals at this juncture and the situation would be addressed.
Mr Jeffery asked if the NPA was stating that the OSD matter was sorted out, as there was a R111.6 million reduction in the budget as a result of failure to implement phase 2 of OSD.
Dr De Wee said that it was being implemented and it would be completed end of April.
Ms M Smuts (DA) asked if the unspent amounts would have also been spent at this time.
Dr De Wee replied in the negative, there were some funds that had to be surrendered; the remaining individuals who had not been paid would be paid from the baseline.
Ms Van Rensburg said that a conviction rate was the percentage of cases finalised with a guilty verdict divided by the number of cases finalised with a verdict excluding diversions. The target was high in these cases, the target of 45% was not a conviction rate it was for the number of convictions measured against the number of new cases. Cases were enrolled at the first instance in the regional courts and thus there were a lot of withdrawals at this stage.
Mr Jeffery said that he still did not understand the huge discrepancy in the figures and he had not heard of cases being enrolled in the high court as a court of first instance. Could there be figures provided for this and why were cases being enrolled in the high court/regional court?
Adv S Swart (ACDP) said that the Committee had to assist the NPA in its budget constraints. Underspending of the NPA’s budget was a concern; according to the Committee’s research unit it was R175 million or 9%. Could there be a comment on this, as it seemed like the reduction was as a result of the delay in implementation of phase two of the OSD. It was of great concern that the NPA budget was being reduced from R2.86 billion to R2.64 billion and it seemed that there was a degree of blame that could be placed on the NPA. Tied to this were the qualified audits and the problem was financial management, could there be a comment please. When was the NPA expecting a clean audit, was it expecting a clean audit for 2011/12 financial period and was the financial management problems hampering service delivery. What was the working relationship with the Directorate of Priority Crime Investigations (DPCI)? Would the NPA be making inputs as to the independence of the DPCI following the Glennister case judgment? What happened to the Directorate of Special Operations (DSO) personnel? It was a concern that there were allegations of prosecutors on a hit list in the Radovan Krejcir case. What steps were taken in such circumstances to protect the lives of prosecutors and at what cost?
Adv Simelane replied that OSD was an administrative issue, especially with regards to phase two, which was going to affect a few people who had been in the organisation the longest. There were few contestations where individuals were saying that work they had done prior to joining the NPA should be acknowledged and one could question whether OSD intended to do this. OSD was not going to be provided for permanently hence the reduction in budget and this would eventually fall under compensation of employees. The DSO investigative personnel migrated to the police and those that did not remained within the NPA. This posed a problem from a legislative perspective because the NPA should not have investigators according to the NPA Act. They could be moved to the Special Investigating Unit (SIU), which had investigators. They were 50 people that worked with the Asset Forfeiture Unit (AFU). There were dedicated prosecutors for the DPCI but they were still finalising their set up in the regions, in the meantime the NPA was assisting them with prosecutors. The NPA would provide views when they were requested in the Glennister case judgment. It should be noted that the Ministerial Committee that was criticised was always in existence and did not come with the advent of the DPCI.
There was a threat against a prosecutor in the Radovan Krejcir case and the problem was widespread in the NPA. There were some prosecutors, which were currently subject to police or private security protection. The costs were a problem in the sense that they were not budgeted for, the figure being currently spent stood at R2 million.
Dr De Wee said that most of the underspending was as a result of OSD and compensation of employers. The NPA would report next quarter on this. The NPA was comfortable on the progress made regarding leave, irregular expenditure and fruitless and wasteful expenditure. The main worry was on assets. 14 Interns had been hired to assist and the challenge was verification of assets against the asset register. The AG had already expressed concern. These issues did not affect service delivery, as there were enough prosecutors.
Adv Swart followed up by saying that there had been reports in the media about allegations of senior crime intelligence officials compromising investigations on organised crime. How did this impact on the concerns on the safety of prosecutors?
Adv Simelane replied that if such allegations were true, then it would be a concern for all concerned especially in the JCPS cluster. The threat to prosecutors was always designed to delay a case so that prosecutors would withdraw and the NPA had to start afresh. Threats to prosecutors always involved organised crime. It was an unnecessary nuisance and if it reached really serious levels than it would be dealt with appropriately.
Ms Smuts said that the presentation confirmed that re-structuring was still ongoing. Surely this was now done with the signing off of the Minister of Justice and Constitutional Development and perhaps the President, could the NDPP justify this? The heads of Sexual Offences, Priority Crimes, Specialised Commercial Crimes Unit (SCCU) and Witness Protection were now reporting to Dr Silas Ramaite who then reported to the NDPP. The heads were then detached from their actual units (staff) who reported to a coordinator, where were these posts coming from? Some of the staff were on specialised contracts such as the tax specialists. The NPA had a specialised contract with the South African Revenue Service (SARS). Was it still ongoing and if so why were the tax specialists under specialised prosecutions alongside sexual offences? The SCCU was appointed via a special presidential proclamation, the staff were appointed and interviewed on specific criteria and they had specific job descriptions, was the proclamation to be rescinded and amended and was there a deal made with theses prosecutors who now reported to a coordinator of unspecified description? How could the support services be shifted to the DOJ&CD when it was the government’s strategic position to have the NPA account separately from the Department?
How could the restructuring be justified against the results of the AFU and SCCU when the first quarter of performance dropped by 26.7% in cases finalised and a drop of 22% in cases enrolled for trial by the latter? The AFU had a drop of 81% on the value of new restraints and a 21% drop on new restraint orders. Was the restructuring helping or causing damage?
Adv Simelane replied that the prosecution policies were tabled in Parliament and duly approved. There was nothing new being done and there was no restructuring. All that has happened was that prosecutors were now dedicated to specific work whereas an in the past they did this and that. There was a huge benefit to this because in the Office of the DPP it was known which prosecutors dealt with which matters. General prosecutions constituted the largest chunk of the work in all jurisdictions. This had always been there and there was no re-structuring- this was a misunderstanding. The reports to the DPP were the way they had been structured because the Constitution provided for this. The Constitution recognized the NDPP, DNDPP and the DPPs. The four heads of the units mentioned had always reported under Dr Ramaite, nothing has changed. If anybody was telling the Member that there was re-structuring, they were “using” the Member. Forfeiture proceedings were not criminal in nature and thus did not fall under the NPA Act. The Office of the NDPP had a SCCU, which was where the Special Director would be, this component currently did SCCU prosecutions, the office of the NDPP did SCCU work and this structure was in line with the Constitution. Adv Chris Jordan requested to be relieved and he had left. There was a dedicated tax unit, which was always there and had remained. They fell under were specialised prosecutions
Ms D Schafer (DA) said that she was glad cyber crime was being taken seriously but why were there no successfully finalised prosecutions? How many cases of cyber crime were there? What resources had been allocated towards dedicated sexual offences courts? Why was the estimated performance for 2010/11 lower than the previous years? Why was the value of assets linked to corruption that had been frozen 0 this year; R1 million (estimated) next year and R3 million for the year after? Why were the children in the Jules case prosecuted instead of going immediately to diversion?
Adv Simelane said that cyber crime remained fraud but only via a computer - it was not new. The presentation of electronic evidence in court was the challenge. There was a need to train prosecutors on the litigation skill of presenting evidence in electronic format; this was for all types of matters not just cyber crime. There were not enough dedicated courts to deal with sexual offences cases but the NPA was engaging with the magistrates on this.
Ms Schafer asked what was the cause in the drop in statistics for finalised cases involving sexual offences.
Adv Simelane said that some of the reported cases could not be taken to court and some of the cases involved children younger than 10 years old and these were directed to the social workers. The policy position on the Jules case was that, in matters concerning children under the age of 16, who were involved in sexual matters, was that there should be consistency and equal treatment across the board in all cases. Charging the minors did not mean that they would not be dealt with in terms of the Child Justice Act. There was a risk in dealing with the matter in Chambers from a procedural perspective. The advantage for where a matter was dealt with procedurally was that it was transparent and judicially supervised.
Dr M Oriani-Ambrosini (IFP) said that he had come across three lower ranking prosecutors refusing to prosecute even though a civil avenue for litigation was possible, was this part of policy? Was there a policy for not going after persons who committed crimes in higher offices?
Adv Simelane replied that where there was a civil action within a criminal case, prosecutors had been advised to continue with the prosecution where a complainant insisted that the case continue. The NDPP was not aware of any policy where people in higher office who committed crimes were not prosecuted,. Prosecutors in lower jurisdictions would always decide to go ahead with cases based on the evidence that they had. There were instances where there was representation made to the NDPP for intervention and this has never been considered and the requestors had been informed to raise their points in court.
Adv S Holomisa (ANC) asked how realistic it would be to prosecute 100 people who had assets to the value of R5 million made from the proceeds of crime by 2014? What did it mean that the NPA would deliver justice to the victims of crime? There would be no equality between a victim and perpetrator where a perpetrator had the funds to hire the best legal team to represent him or her and such a team happened to be better than the prosecutor. Should there not be equality in the representation of both legal teams? To what extent would corrupt prosecutors be dealt with?
Dr Oriani-Ambrosini added that there were countries where the victim could propose civil action in a criminal case; what were the views of the NDPP on this?
Adv Simelane replied that the goal for conviction 100 people who had assets to the value of R5 million made from the proceeds of crime by 2014 would not realistically be attainable as there were many individuals whose assets fell below the R5 million and the cases were far from finalised. This target referred to individuals who had grossed a lot of money from corruption, 37 had been identified and the cases would take a long time, as these were perpetrators who fought a lot. The NPA would try and involve victims as much as possible to not exclude them from the process flowing from the case. Often there was no communication and victims were only used as witnesses and later discarded. Prosecutors were being encouraged to involve victims as much as possible to solicit their views on how the cases were working. The Committee kept insisting on a high conviction rate. This was then translated from the prosecutor’s point of view as meaning that every case had to be a conviction no matter the cost.
The fusion of criminal and civil maters was plausible as the entire matter would be finalised and where there was a restorative justice framework, then it would work well. This was a policy matter that the government would have to drive. It was alleged that Mr Krejcir had said that the reason he came to this country was that it had the best Constitution in the world. This was definitely so, given the fact that one could stretch the limits of the legal system. The downside of having the best Constitution in the world was that it would be tested over and over. Having senior counsel on the side of the defence and ordinary prosecutors on the other side did not render a case to have unequal representation. Being a Silk did not just mean that one had to be a good litigator, there were a range of other factors that were involved. The problem of corrupt prosecutors was at 0.6% and they were 24. However the number may be low, but the damage done was enormous. The problem was not so big and it was hoped that their conscience would guide them.
Adv Swart asked if the NDPP had considered the extension of Section 300 of the Criminal Procedure Act. Where the defence was represented by more experienced counsel was it not possible to have the defence disclose its defence along similar lines as the state disclosing its dockets? In the presentation, there were concerns raised over there not being a formalised relationship between the DPCI and the Priority Crimes Litigation Unit (PCLU), could there be comment please.
Mr Jeffery said that there should be a common set of indicators regarding the stats and figures. Some of the targets such as the conviction rate had dropped below what was previously achieved, this should not happen and it was not right and was unacceptable. There was no synergy between the figures either. The figures of corrupt prosecutors were thumb sucks and hopefully they would drop in future. It was unacceptable that there was a 12% vacancy rate of prosecutors and from now on there had to be quarterly reports from the NPA and DOJ&CD. There had to be a meeting with the NPA and Magistrates Commission on the sexual offences matter, as law enforcement was not winning. There had to be specialisation on how rape victims should be handled by the defence.
Ms Smuts asked if the NDPP could confirm if the DPCI was not indeed assisting the PCLU in post Truth and Reconciliation (TRC) Unit matters.
Adv Simelane replied that the DPCI not assisting the PCLU was an old matter as there were no problems now. It would assist to meet the Magistrates Commission on sexual offences. The conviction rate had not dropped and Mr Jeffery had misread the figures. There had not been an assessment of Section 300.
Ms S Sithole (ANC) commended the NPA on its vision and mission. The NPA should fill up vacancies in financial management with competent personnel.
Ms N Adams (COPE) asked if there were any plans for there to be specific crimes created for farm murders, xenophobia based attacks and corrective rape. Would these crimes ever be prioritised within the NPA? Were there any lessons learnt and implemented from the speedy finalisation of cases during the World Cup? It seemed that there was mistrust for the NPA given the NDPP’s comments on the Dewani case, there had been some questionable appointments and Mr Schabir Shaik seemed to above the law, the delays in the Jub Jub case and the handling of bail. How did the NPA intend to deal with this perception?
Adv Simelane replied that the NPA would deal with communication adequately. The filling of vacancies would be speedily resolved. The issue of hate crimes and racially motivated crimes were prosecuted under current law and the other factors would serve as aggravating issues, so it would be argued that a crime was racially motivated, by a prosecutor in court. The NPA was looking into the issue of corrective rape in the Western Cape and trying to gather statistics. A report was submitted dealing with the lessons learnt from the World Cup and there was an attempt to use this in specific cases. The problem of mistrust for the NPA was one to be addressed by politicians and not officials. It was unlikely that officials would control the appointment processes within the NPA. The interview on the Dewani case was within the context of how extradition worked. When it was mentioned that the NPA intended to prosecute somebody of a crime that was committed it was within the ‘innocent until proven guilty’ rule that existed with in the South African criminal justice system. The NPA could submit statistics on cases where bail was granted to cast more light on what happened in the Schedule 5 and 6 offences. There were no delays in the Jub Jub case save for the prosecutor being hospitalised.
The Chairperson thanked the NPA and all officials and instructed the Committee to meet in the afternoon for the SIU presentation.
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