National Prosecuting Authority on its Annual Report 2010/11

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Justice and Correctional Services

11 October 2011
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The National Prosecuting Authority (NPA) had been called to the Committee to present its 2010/11 Annual Report. At the outset, Members expressed disappointment at the absence, once again, of the National Director of Public Prosecutions (NDPP), as well as the Chief Financial Officer and other senior staff members. Members also noted that documentation had not been furnished timeously, and some suggested that the meeting be postponed. The Chairperson noted the concerns, but said that the meeting would continue, but also agreed that a separate meeting would be called that should be attended by the NDPP.

The NPA presented its performance information, audit findings, budgeting comment and outlined its major challenges in the 2010/11 financial year. The various appropriations and spending were outlined. The Public Prosecutions programme had spent 99.4%, Witness Protection Programme had spent fully, the Asset Forfeiture Unit had also spent in full, and Support Services had spent 96.6%. Overall, there had been 99.5% spending. The NPA had 5176 posts, of which 846 were vacant. The prosecutorial vacancy rate was at 11.89%.

The Specialised Commercial Crime Unit (SCCU) increased the number of cases finalised by 2%. The 10 dedicated courts finalised 742 cases, compared to 1026 in 2009/10. A 92.5% conviction rate was achieved, a drop from the previous year. 23 plea bargains were concluded. The Sexual Offences and Community Affairs (SOCA) Unit increased the number of care centres from 20 to 27, and outlined its training of prosecutors in relation to the Child Justice Act, the Sexual Offences legislation, domestic violence and human trafficking. The Office of Witness Protection (OWP) increased the number of protected witnesses from 300 to 468, and the numbers of related persons from 500 to 908. Grievances by witnesses had dropped. The average duration on the programme was reduced from 24 months to 18 months

In relation to the audit, the previous findings and reasons for disclaimers and qualified opinions between 2007 and 2010 were given, but it was noted that in 2010/11 an unqualified audit opinion was obtained, although there were matters of emphasis. The spending patterns were outlined. Requests had been submitted for virements, and various adjustments were done in the units, as more fully outlined in the presentation. The main challenges were noted as the
vacancy rate within the prosecutorial component, case-flow related problems, and absence of key role players. There was still ineffective court utilization. There was a shortage of critical resources. Finally, there was lack of alignment in objectives and targets across the criminal justice value chain.

Members congratulated the NPA on its improved audit, but noted that certain of the information in the presentation and the Annual Report did not correlate. They were concerned about the audit findings and asked what was done to address them. They were also concerned about the vacancy rate, asked how many prosecutorial posts were vacant, why there seemed to be difficulties in filling them, how many prosecutors were dismissed and how transgressions noted during a case would be dealt with. They also asked for more information on the acting posts, and the progress of staff establishment in Limpopo and Mpumalanga. Members were concerned at the extent of informal mediation, particularly since there was not legislation on this. They asked how many members of the NPA faced criminal charges, and what the reasons for and status of the charges laid against members of the Special Investigating Unit. Questions were asked about the electronic management system (EMS) that was supposed to be completed by April 2011 but the Department of Justice indicated that a special presentation would be made on this on the following day.
Members asked why so many cases were withdrawn, and interrogated the responses, including the lack of skills at lower court to screen effectively. They asked if more pressure should not be placed on prosecutors to secure convictions. They asked why R1 million was paid on marketing, in view of the shortage of funds,  asked about the write-off of debt, asked if the NPA was likely to be able to recover R175 million that was paid to the Department of Justice. They questioned the Section 300 procedures on payment to victims of crime. Questions were asked about the backlogs and postponements, and the numbers of people attacked on the Witness Protection Programme. Questions were also asked about the future of the Asset Forfeiture Unit, the charges laid, the allegations of weapons taken from the armoury, the reports on conspiracy charges that were alleged to have been laid. The procedure in the Hlongwane matter was questioned, as well as the circumstances around the appointment of the Acting Director of Public Prosecutions in Natal, and the position of Mr Cliff Simelane and his transfer to a prosecutorial post. Questions were also asked about a farm that was forfeited, the difficulties in selling it, and the condition in which assets were kept.

Meeting report

Members’ introductory comments
The Chairperson noted an apology made by Advocate Menzi Simelane, National Director of Public Prosecutions (NDPP), noting that he had said he had other commitments. He said that Ms Nonkululeko Sindane, Director General of the Department of Justice and Constitutional Development (DoJ&CD), was present.

Mr J Jeffrey (ANC) asked why the Chief Financial Officer (CFO) of the National Prosecuting Authority (NPA) was not present.

Ms Sindane replied that the Acting Chief Executive Officer (CEO) was present and would be able to respond to all financially related questions, because she worked closely with the CFO, and was fully updated on the entire financial affairs of the NPA.

Mr Jeffrey again asked for the reasons that the CFO was absent, saying that it was important that the Committee be given reasons for the absence of officials.

The Chairperson agreed with the question asked by Mr Jeffrey and expressed disappointment at the absence of the CFO. 

Mr Jeffrey expressed his overall concern about the lack of senior management present from the NPA, but he did thank Ms Sindane for her presence.

Ms M Smuts (DA) asked the Committee not to continue with the meeting in these circumstances. She said that there were many issues, such as the Ginwala Inquiry into the Vusi Pikoli saga, which needed to be interrogated. It seemed that the DoJ&CD was taking on too many responsibilities, including some functions of the NPA.

Ms L Adams (COPE) expressed her dissatisfaction that the documentation for this meeting had been received only on the previous day, leaving insufficient time for Members to go through the documents. For this reason she thought it should be postponed.

Ms D Schäfer (DA) agreed with the other Members regarding the postponement of the meeting.

Mr Jeffrey asked for the meeting to proceed. The Annual report would have been available but the problem might have been in the Parliamentary distribution of the documentation. He understood that senior officials had other responsibilities and could not just drop everything to attend to Parliament. Parliament was also partly at fault, since it should discuss most suitable dates with entities. He asked for this meeting to proceed and a follow up meeting to be held if needed.

Ms Smuts did not believe that Mr Simelane was always busy, saying that he was “tweeting” most of the time with employees, and that he surely would have time to attend meetings if he had time to do this.

The Chairperson noted and agreed with the concerns raised by Members, but asked that the meeting continue.

Ms Schäfer asked if the Chairperson would agree to set another date aside to meet with the NDPP if the current meeting continued.

The Chairperson agreed.

Introduction by the Director General (DoJ&CD).
Ms Sindane, Director-General, Department of Justice and Constitutional Development, again tendered the apologies of those members of the NPA delegation who were not present. She promised to convey the message about the proposed amendments. She assured Members that the DoJ&CD was not doing the work of the NPA and the NPA fulfilled its own functions. Ms Sindane would have preferred not to attend, but quipped that Parliament was “growing on her”. She acknowledged that she would take up the matter of the Sexual Offences Act (SOA) with the NPA. She confirmed that although she was the Accounting Officer in the DoJ&CD, she did make herself available for consultation.

Ms Sindane noted that the audit outcome had been an unqualified audit, but with matters of emphasis, but the NPA was working towards a clean audit. Ms Sindane was still concerned about certain irregularities within the entity and issues around the backlog, especially regarding the Sexual Offences Act. Justice was not served adequately where backlogs were experienced.

Ms Karen van Rensburg, Acting Chief Executive Officer, NPA, presented the first part of the Annual Report presentation, and indicated that the scope of the presentation related to the performance information, audit findings, budgeting; and challenges. The Public Prosecutions programme received an adjusted appropriation of R1,97 billion, of which 99.4% was spent. The Witness Protection Programme had an adjusted appropriation of R130 million, and all funds were spent. The Asset Forfeiture Unit (AFU) also spent 100% of its adjusted appropriation of R106 million. Support Services spent 96.6% of its R474 million adjusted appropriations. The establishment had 5 176 posts, with 846 vacancies, or a rate of 16.3%. The prosecutorial vacancy rate was at 11.89%. The total amount of adjusted appropriation was R2, 68 billion, of which 99.5% was spent.

Ms Nomgcobo Jiba, Deputy National Director of Public Prosecutions (DNDPP), NPA, stated that the NPA aimed to increase the number of cases finalised, including increasing the numbers finalised through alternative dispute resolution (ADR) mechanisms. It also aimed to increase the number of cases finalised by the Specialised Commercial Crime Unit (SCCU), to maintain the
high conviction rates in all courts; and Increase the number of Thutuzeli Care Centres (TCCs). The target for conviction rates in Regional Courts was 74%, although the actual convictions achieved fell short of this by 0.6%. The target for convictions in the Sexual Offences Courts was 66%, and the entity exceeded that target by 2.6%. There was a reduction of 7.1% in the withdrawal rate of cases through the implementation of proper screening mechanisms. A total of 224 983 cases were withdrawn in 2010/11, compared to the 242 103 during 2009/10. High conviction rates were maintained and a focused approach was followed on the implementation of the Child Justice Act and the diversion of children in conflict with the law. The number of children diverted in 2009/10 was 16 173, but this had been increased to a total of 16 462 during 2010/11. There were 605 442 decision dockets dealt with before enrolment (2010/11) which was 9.1% more than the 554 806 dockets dealt with during 2009/10. A total of 604 section 105A plea and sentence agreements were successfully concluded. In 184 (or 36%) of the cases, the sentences imposed comprised of direct imprisonment.

In addition to the Estimates of National Expenditure (ENE) indicators and targets, several other key indicators were determined and monitored. The NPA had also defined key indicators which enabled the reader of the Annual Report to better understand how the reported figures were calculated, and these could be seen at pages 147-150.

She continued that the diversion of children was
related to the cases that were subjected to Preliminary Inquires, and these comprised 7 309 (52.2%) Schedule 1 offences, 4 647 (33.2%) Schedule 2 offences and 2 034 (14.5%) serious offences in term of Schedule 3. She clarified that the schedules that she was referring to were those in the Child Justice Act, not the Criminal Procedure Act.

The Specialised Commercial Crime Unit (SCCU) increased the number of cases finalised by 2%. The
10 dedicated courts finalised 742 cases, compared to 1 026 that were finalised in 2009/10. A 92.5% conviction rate was achieved, compared to 93.6% in 2009/10. 23 Plea agreements were concluded during 2010/11.

The Sexual Offences and Community Affairs (SOCA) Unit increased the number of TCC care centres from 20 to 27, exceeding its targets. There had been training of 349 prosecutors on the Child Justice Act, 178 prosecutors on Sexual Offences legislation, training of 102 prosecutors on Domestic Violence, and 79 prosecutors on human trafficking. The Office of Witness Protection (OWP) increased the
number of witnesses under protection from 300 to 468 and the number of related persons from 500 to 906. There were 180 witnesses discharged. Five had died, 52 had signed off and 10 walked off the programme during 2010/11. The number of grievances by witnesses was reduced from 10% to 3% and the average duration on the programme was reduced from 24 months to 18.
Ms Jiba noted that a disclaimer audit had been given in 2007/08 and she then summarised the qualified findings, and the reasons for these findings for each of the financial years from 2008/9 to 2009/10 (see attached presentation). In 2010/11 an unqualified opinion was given. The preliminary expenditure outcomes as at end of September 2011 indicated that
the expenditure on Cost of Employees (CoE) was 51% due to the late implementation of Occupation Specific Dispensation (OSD) Phase II. An amount of R30 million was paid in 2010/11. No additional funding was allocated to the NPA for the higher than anticipated Cost of Living Adjustment.
A request was submitted to National Treasury for a virement of R30 million from Goods and Services to Cost of Employees. The high spending on Interest and Rent on Land was due to an insufficient budget allocation to account for the capital interest split in finance leases.  A request for virement of R10 million to this item was submitted to National Treasury as part of the Adjustment Estimates process.

The NPA reprioritised R231 000, which was allocated for entertainment, to training and staff development, whilst R26 million allocated to consultants and professional services was ring fenced within the Office of the NDPP, so that funds on this could be utilised only if prior approval was obtained from the NDPP. The DPP offices were facing severe budget constraints, and no area for reprioritisation was identified.  The OWP reprioritised R201 000 originally allocated for entertainment to training and staff development. Operations increased in respect of Witness Protection fees (including rates and taxes relating to witness houses), resulting in the OWP exceeding its baseline increase. Reprioritisation had to be done within the sub-programme, in order to fund this projected over spend. No further areas for reprioritisation were identified. The amount of R3 million originally allocated to computer services for the procurement of secure networking was funded by Support Services, and that allocation was reprioritised to Operating expenditure within the unit. The Asset Forfeiture Unit reprioritised R25 000 allocated for entertainment to training and staff development. The operational increase within this unit exceeded the 5% baseline increase. Reprioritisation was done within the unit to ensure that sufficient funds were available to fund the essential operational costs.

The Support Services reprioritised R210 000, originally allocated for entertainment, to training and staff development. The amount of R12, 1 million allocated to consultants and professional services was ring fenced within the Office of the CEO and funds were only utilised if prior approval was obtained from the CEO.  The arrangement was implemented to ensure that all related expenditure was properly managed. The amount of R14 million was reallocated to fund subscriptions, loose leafs, intranet and CD ROMS previously paid for by the DoJ&CD. It was anticipated that a settlement amount of R94 million would be paid to Imperial Car Rental.  Various cost saving measures would be implemented that might resulted in certain services being suspended.

The NPA had taken a decision in principle to procure a new voice services which would include Voice Conferencing.  This would constitute an estimated saving of R3 million per annum, and this amount would then be reprioritised to other areas within the NPA.

She summarised that the main challenges within the entity were the
vacancy rate within the prosecutorial component, case-flow related problems, and absence of key role players. There was still ineffective court utilization. There was a shortage of critical resources. Finally, there was lack of alignment in objectives and targets across the criminal justice value chain.

Mr J Jeffrey (ANC) congratulated the NPA on achieving an unqualified audit report. However, he felt it was slightly confusing that some of the information presented did not appear in the Annual Report.  The reflected vacancy rate was at 11.5%, but he asked how many vacancies there were for prosecutors. It seemed that the highest vacancy rate lay with administration staff, but he would have thought that these positions should not be difficult to fill. He asked how many prosecutors were dismissed, and how their transgressions had been dealt with. He asked whether the people in “Acting posts” were paid in full for the positions they occupied. He also wanted more information on the progress of staff establishments in Limpopo and Mpumalanga.
Ms Karen van Rensburg apologised that some of the information may have been omitted from the Annual report. National Treasury required certain information, and only the relevant information was provided, but she took note of comments made by Members.

Ms van Rensburg confirmed that all personnel in “acting posts” were paid an allowance, and payments could not exceed a 12 month period. She could not provide answers on all vacancies because many of these were provincial appointments.

Mr Jeffrey asked what could be done to do away with “acting posts”, saying that they could not be filled while people were acting. He asked if the NPA would make representations to have this position changed.

Ms van Rensburg responded that the NPA was trying, in various ways, to fill all vacant posts as soon as possible. The Department was also attempting to avoid appointing people in “acting” positions.

Ms van Rensburg conceded that more detail should have been provided on the vacancies for prosecutors. Administration posts could be filled more easily, and although the NPA had made huge strides it still faced some challenges in filling certain posts. Candidates were already short listed and interviewed for posts in Mpumalanga and Limpopo. Those posts should be filled soon, and details could be provided to the Committee. The NPA had a database at its office on how many prosecutors had been charged with misconduct, and she confirmed that this information could be made available.

Mr Jeffery asked what “informal mediation” was. He was concerned at the extent to which informal mediation was used without proper regulation and legislation. He asked how far the entity was with the legislation on informal mediation.

Ms Jiba agreed that the figures for “information mediation” were too high. The NPA had policy directives which were still awaiting the approval of the NDPP and there were guidelines that could be used for informal mediation.

Mr Jeffrey asked if Parliament could get those guidelines and asked for a breakdown of the figure representing informal mediation.

Mr Jeffery asked how many members of the NPA might be facing criminal charges. He also asked when the charges were laid against the Special Investigating Unit (SIU) staff, who laid those charges, and what the status of the investigations was.

Ms Jiba stated that the NPA had no idea what was happening with the SIU investigations, but could find out more about this and make the information available.

Mr Jeffery noted that it was previously indicated that the electronic management system (EMS) was expected to be completed by April 2011.

Ms Sindane asked Members if she could make a special presentation on the following day, indicating there was a major concern regarding the Electronic Management System. However, the Cluster had met to discuss the system and its challenges, and it had been concluded that the system would be implemented in the 2011/12 financial year. All the Clusters had built Electronic Management systems but the systems were not talking yet. The system needed to be integrated to work effectively. She would like to make a full presentation to the Committee when the systems would be fully functional.

Ms D Schäfer (DA) congratulated the NPA on an unqualified audit report. She asked, however, why more than half of cases had been withdrawn and what the reasons for those withdrawals were.

Ms N Jiba replied that many reasons led to the withdrawal of cases. This might include the fact that a witness passed away, an accused became untraceable, or a witness who deviated from what s/he initially said. The lower courts did not have sufficient skills to screen cases effectively but in areas where there were more skilled prosecutors, there were less case withdrawals.

Mr J Jeffrey (ANC) asked if prosecutors looked at dockets before or after the matter went to court.

Ms D Schäfer (DA) asked how it was possible that the accused became untraceable. She asked what the police were doing in those cases.

Ms Jiba reiterated that the withdrawal of many cases was due to the lack of skills and insufficient evidence being accumulated to present a useful case.

Mr Jeffrey stated that the police were not prosecutors, and that was why the NPA was there to fulfill that function. He asked if senior public prosecutors could account for why cases were withdrawn. 

Mr S Swart (ACDP) asked why there were such high withdrawal rates if the focus was on a high conviction rate. He asked if there could be more pressure on prosecutors to produce a high conviction rate so that less court cases could be withdrawn.

Ms Van Rensburg noted that the conviction rate for sexual offences was getting much better. All prosecutors had been asked to report on every sexual offences case. This data was being collated and could be presented to the Committee, because it was a critical issue for the NPA. It should be noted that the conviction rate was higher than before, and that could be due to training by SOCA and all other intervention strategies.

Ms Schäfer asked why the NPA had spent R1 million on “captive marketing” while it indicated that it had no money.

Ms van Rensburg answered that the R1 million spent on this marketing had a special focus on Women’s Month and what the Department did to address gender based violence.

Ms Schäfer asked why it was so difficult for the entity to attract prosecutors.

Ms van Rensburg said that people did apply for vacant posts but seldom met the requirements, and NPA sometimes took the initiative of placing some people in a bridging programme.

Ms Schäfer asked why the expenditure listed on page 64 of the Annual Report did not fall under fruitless and wasteful expenditure, and why the debt was written off, as indicated on page 87.

Ms van Rensburg said that this expenditure was related to debt that could no longer be recovered, such as stolen laptops, or high telephone bills, by people who left the organisation. The process of not reporting certain irregularities to National Treasury had been discovered and put in place, but it would not be reflected in current financial year.

Ms Sindane added that money could, in theory, be recovered from people who left the entity, but sometimes the cost of recovery outweighed the money to be recovered.

Ms Schäfer said that she had understood that Justice College was not functional and asked what the reasons were.

Ms Sindane said that the Justice College was fully functional, and perhaps the concerns were related to some other institution.

Mr Swart also congratulated the NPA on an unqualified audit report, but asked how the NPA would recover the R175 million given to the DoJ&CD. He asked how the entity would improve on the challenges indicated by the Auditor-General. He noted that the report indicated payments made to victims of crime and asked to what degree Section 300 should be broadened to cater for victims of crime, in respect of compensation. 

Ms van Rensburg noted that the DoJ&CD was currently not in a position to repay the R175 million given to it. The money was not a loan but it was used by the Department, rather than forfeiting the amount to National Treasury. In relation to the findings, she assured the Committee that the NPA had developed a comprehensive audit plan dealing with all Emphases of Matter indicated by the Auditor-General (AG). The wording used by the AG was very prescriptive and therefore could create the impression that there was no leadership but that was not the case. One of the aims of the NPA was to reduce the Emphasis of Matters in future audits.

Mr Willie Hofmeyr, Head, Asset Forfeiture Unit, replied that there had been an emphasis on using Section 300 for victims of crime. The disadvantage was that various challenges arose when victims claimed from the accused. The NPA currently did not have the capacity to deal effectively with victims of crime.

Mr Swart asked if the NPA would wait for a case to be finalised, or would apply immediate internal disciplinary measures when a prosecutor was charged criminally.

Ms van Rensburg replied that the NPA did not wait for a case to be finalised in court. The entity followed its own internal processes when applying disciplinary measures.

Ms L Adams (COPE) thanked the NPA for good progress made. She said that the NPA launched a 24 hour hotline where irregularities could be reported. She asked what the number was and whether the hotline was fully operational.

The Acting CEO said the number was 0800 212 580 but it was not operational. However it would be operational soon.

Adv Adams asked about the non-attendance of a member of the Audit Committee at meetings.

Ms Sindane responded that this was not due to any fault on that member. On the first occasion, she had not had the opportunity to read the documents. On the second, the date of the meeting was changed at the last moment, to a day when she had other commitments already. She had given specific apologies on both dates.

Adv Adams asked a question about the sale and leaseback.

Ms Sindane noted that the project called “rent-back” was finally resolved, after much discussion.

Adv Adams asked what was being done about the backlog of cases and postponements.

Ms Jiba noted that there was now a system whereby the cases that would become backlog cases, or had been postponed several times, were separately noted. She was unable to report on areas where the backlogs occurred at the moment.

Ms Schäfer asked about the numbers of people killed or attacked under the Witness Protection Programme.

Ms van Rensburg said that manual systems were currently recording information, and that data was not specifically kept, although the prosecutors could be asked to record it. There had been some cases in the past, but she was not sure how many.

Ms Smuts noted that there were comments made at an earlier stage by the National Director of Public Prosecutions (NDPP) about the possible closure of the Asset Forfeiture Unit (AFU). She asked whether the Asset Forfeiture Unit staff in the provinces were still reporting to Provincial Directors of Public Prosecution, and whether the AFU was effectively functioning.

Mr Willie Hofmeyr, Head, Asset Forfeiture Unit, responded that there had been a period during which the future of the AFU was uncertain, and there had been several discussions between the NDPP, the Minister, himself, and other senior mangers. At the moment, the AFU was functioning as it had in the past. It was agreed that there would be a “dotted line” of accountability to the Directors of Public Prosecutions in the provinces, with which he was in agreement, as there should be as much coordination as possible. They also reported to the AFU Head Office.

Ms Smuts asked whether it was true that a pistol had been checked out from the armoury of the AFU, which was alleged to have been intended for use by Mr Molele in a conspiracy to murder case. She also asked whether the NDPP had attempted to launch conspiracy charges against Mr Willie Hofmeyr.

Ms van Rensburg said that she was unaware of whether the NDPP had instituted criminal charges, although there was a disciplinary enquiry against this individual in relation to a number of issues. She was in the process of meeting with the line manager at the Asset Forfeiture Unit to discuss what was to be done. There were some very serious charges, but none related to a conspiracy to murder.

Ms Smuts said that she had wanted to ask questions of Adv Simelane, but he was not present. She had consistently been asking questions about the allegations that the National Director of Public Prosecutions had stopped an interim freezing order in a particular case, and she asked if it was correct that Adv Simelane had decided to lift the freezing order on the basis of contracts reached with Mr Hlongwane, and, if so, enquired what these contracts might be.

A member of the NPA staff responded that the NPA had processed the papers for Mutual Legal Assistance and had sent them overseas, but she was not sure about the allegations relating to contracts and lifting of the order.

Mr Hofmeyr responded that there was a preservation order obtained in the Fana Hlongwana case, which was supported at the time by the DPP. However, representations were then made to the National Director of Public Prosecutions, who eventually agreed that the representations had proved that the income in Lichtenstein was legitimate, and who had instructed the AFU to seek the rescission of the preservation order. That was where the matter stood, as far as the AFU was concerned.

Ms Smuts questioned why, in that case, the comment had been made that “Members of Parliament must trust us that the matter is still live”.

Ms Smuts noted that at the Access to Justice Conference, the NDPP had said that there were difficulties with plea bargaining, but that plea-bargaining should be retained because of other problems with non-custodial orders. She had been told that in the past, senior prosecutors were able to arrange for plea-bargains but that this was apparently no longer the case, and that only the NDPP, or at least two other senior prosecutors, could now sign them off. She asked if this was correct. She also asked if it was correct that non-custodial sentences were seldom, if ever, awarded.

Ms Smuts also wanted to follow up on a question asked by Mr Jeffery, on the circumstances around the appointment of the Acting Director of Public Prosecution (DPP) in Natal. She asked for confirmation that when the position fell vacant, there were two candidates, but that the person appointed was then accused of having made racist comments at a meeting, and there was apparently an enquiry instituted. Another gentleman was then appointed as Acting DPP.

Ms Jiba noted that it was difficult to answer these questions, as none of those present decided upon Acting appointments, which were decided by the National Director of Public Prosecutions, in consultation with the Minister of Justice. She was not aware of the circumstances around the appointment.

Ms Smuts said that she had questioned the position of a Mr Cliff Simelane in the past, but wished to know again whether he was related to Mr Menzi Simelane. Mr Cliff Simelane was apparently appointed as a Corporate Manager, but then completed his LLB degree and was admitted as an advocate. There were allegations that he was now prosecuting, and had risen through the ranks of prosecutors very fast, having been permitted to prosecute in the Regional Court after about two months, and that he had apparently also prosecuted a case in the High Court, despite his lack of experience. She asked what his job description was, and what he was doing.

Ms van Rensburg said that to her knowledge, there was no relationship between Mr Cliff Simelane and Mr Menzi Simelane. Mr Cliff Simelane was employed as a Senior Corporate Manager. He had then requested an LLB degree and he had requested a transfer. In the current system, there was no way to do a direct transition from a corporate manager post to a prosecutor post at the same level. His request had been presented to her, and she had declined it. Although the NPA wanted to encourage staff to study, Occupation Specific Dispensation (OSD) did not allow a person simply to be moved across to a level 13 prosecutorial post, because they must gain experience in that field. Therefore, a person wanting to become a prosecutor would have to take a salary cut and start at a lower level. Mr Cliff Simelane was not the only person who had made such an application, and all those in Corporate Services who were studying for LLB degrees had been told, in writing, that direct transfers across to the same level would not apply.

Mr Jeffery asked if the allegations that Mr Simelane was employed as a court prosecutor were incorrect.

Ms van Rensburg clarified that before she had been appointed in her Acting position, Mr Simelane had apparently been given the opportunity to work as a prosecutor. However, this position had been corrected about two weeks ago, when he had been specifically informed that he would have to follow the correct process if he wished to work as a prosecutor. At the moment he was in KwaZulu Natal, and was linked to the DPP office, but she was not sure exactly what he was doing.

The Chairperson expressed concern that he had apparently appeared in the High Court in a major case, despite lacking experience.

Mr Jeffery felt that a full report was needed on this matter, as well as the matter of the Acting DPP appointment.

Mr Swart asked again about the reduction of commercial crime cases, pointing out that targets were 1465 and the actual numbers achieved were 746, which seemed to be in contradiction with the emphasis on fighting corruption.

Ms van Rensburg said that the NPA was also concerned about the reduction. When the NDPP was appointed, he had audited the cases, and noted that these included some “tactical benefit” cases that did not meet the criteria of a complex commercial case. The former category should be handled in the normal way, and the decision was made that “commercial crime” should apply only to the most complex cases dealt with in the dedicated courts. The previous figures had included other cases handled by the SCCU. There were only ten specialist courts. She could supply the Committee with figures of all cases, and she indicated that there was also a large case being handled in Nelspruit.

Mr Swart suggested that in future it would be useful to include a footnote explaining the figures.

Ms van Rensburg added that it could not be said that no cases would be outsourced. The budget had been ring-fenced in the office of the NDPP, but there would have to be substantive motivations as to why a case should be outsourced.

Adv Holomisa wanted to know whether the farm that was reported upon earlier was a going concern, saying that it was linked very closely to questions of land reform.

Mr Hofmeyr responded that although he did not have intimate knowledge of this issue, there were some complications as the farm had a number of smaller farmers operating, as subsistence farmers, upon the land, so it had in effect already been divided up amongst those with previous claims. He highlighted that the Land Reform programme was different from land redistribution, as it was intended to empower communities to have access to land. The land was redistributed under the Land Reform programme, but this was not done correctly. One of the suggestions under discussion at the moment was whether that farm should be re-allocated to those who had made claims under the Land Redistribution programme. The farm had the potential to support commercial farming.

Mr Holomisa asked what had happened in relation to a house in the former Transkei area, forfeited to the State from a person found guilty of fraud, which had apparently now fallen into a state of disrepair.

Mr Hofmeyr responded that he would need to find out more details. This was one of the first properties forfeited. The problem was that the house had been erected on communal land, so full rights of ownership could not attach. In the end, the occupational rights were forfeited and ceded to a government department, who could then use the property. After the property was handed over, the AFU had not tracked how well the property was being utilised by the State. He added that the AFU had now moved away from the notion of handing forfeited property over to State entities, and instead was selling properties and paying the money into CARA, because there had been a couple of instances where the government department who was given use of the forfeited property was not looking after it properly.

Ms Schäfer said that the AFU should still oversee property. Even if the AFU was not taking direct responsibility, it should try to ensure that assets were maintained in a decent state.

Mr Hofmeyr said that the AFU had taken care of the property whilst under its custody, but in some cases the property was handed to a curator bonis, who would then become liable, and must take out security and insurance policies. The AFU had, in some instances, still ended up paying compensation where property was damaged, despite the fact that it had no direct legal obligation to do so, because it accepted that it must cover its reputational risk.

The meeting was adjourned.
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