Meeting report
National Prosecuting Authority 2012 Strategic and Annual Performance Plan
Adv Nomgcobo Jiba, Acting National Director of Public Prosecutions (NDPP) said that she would commence with the Strategic Plan for 2012/17 first.
Strategic Plan 2012/17
Adv Jiba said that the National Prosecuting Authority (NPA) had taken a full review of the internal and external environment and the factors that had impacted on this. The NPA appreciated that it faced serious challenges in terms of achieving its objectives and one of the key reasons was budgetary constraints. The Strategic Plan was based on the Justice Crime Prevention and Security Cluster (JCPC) agreements. The NPA had maintained its objectives as well as its indicators and the percentage improvement per year. The NPA recently held a summit with all of its leadership in attendance and it was revealed that the organisation’s performance had been steadily declining. The leadership then made a commitment to deliver on its mandate. The only changes made to the Strategic Plan were structural changes. The manner in which the NPA was structured had an impact on performance. The NPA has reverted to the previous structures before the changes. There were bound to be problems where control of an organisation was centralised to one person only. The National Prosecuting Service (NPS) had been brought back as the core of the organisation resided here. It was important to have somebody to drive and push the NPS. The Specialised Commercial Crimes Unit (SCCU) had declined and to address this, the reporting lines had been changed and it had been kept separate from the Directors of Public Prosecutions (DPP). It should be noted that the previous organisational structure changes were not the only contributors to the decline in performance. The strategic objectives had remained the same, for example increased successful prosecution of serious crime, improved collaboration with JCPS partners, improved prosecution of JCPS partners, improved justice services for victims of crime and the increase in successful prosecutions of serious corruption. One of the biggest challenges was the resourcing in the lower courts. The NPA had put together a strategy to ensure that there was service delivery at the lower courts. The organisation would appreciate any assistance from the Committee.
Adv Willie Hofmeyr, Head, Asset Forfeiture Unit (AFU), stated that the NPA had tried to align its six objectives to the new outputs for the JCPS delivery agreements. Strategic Objective 1 talked to the JCPS output on reducing the levels of serious crime. The indicator was successful prosecutions where the sentence was ten years or more. The second indicator was ascertaining how fast cases were processed through the system. Strategic Objective 2 was the effectiveness of the Criminal Justice System (CJS) that is integrated and dispensed with fair justice. The indicators related to the conviction rate and number of cases finalised. Strategic Objective 3 was on the eradication of corruption amongst officials of the JCPS. The contribution from the NPA was the number of successful prosecutions. Currently there had been 32 personnel convicted and the NPA aimed to increase this to 200 by 2016/17. Strategic Objective 4 was to promote trust in the CJS. To achieve this trust the NPA aimed to increase the number of Thutuzeli Care Centres (TCC) to 55 by 2016/17. Strategic Objective 5 was to improve investor perception by taking legal criminal action against a defined number of highly visible corruption cases. The NPA aimed to increase the number of successful prosecutions and the freezing of assets. Strategic Objective 6 was to increase the number of cyber crime prosecutions. The NPA aimed to increase the number of cyber crime trained prosecutors.
Slide 19 talked to the Annual Performance Plan. In Strategic Objective 1 the NPA planned to increase the number of successful prosecutions by 2% every year. Convictions in criminal court cases measured against the number of new cases enrolled in the Regional and High Courts was 25 663 in 2011/12. The aim was to increase this to 45% by 2014/15. There had been an overall improvement in the conviction rate under strategic Objective 2 which remained at 88%. There had been a significant decline in the overall conviction rate this year however, the number would be in the region of 300 000 as compared to the target of 337 666. The figures for Strategic Objectives 3 and 4 were a conviction target of 150 which was a significant improvement from 32 in 2010/11. The assets frozen were R3 million against a target of R500 000, this was an indication of the improvement in the increased number of cases. There were 30 TCC’s for this year which matched the target set. The NPA aimed to build 5 TCC’s per year. There were no convictions under Strategic Objective 5, the target was 100 convictions by April 2014 and this was a difficult target to meet. Many of the investigations were complicated as the state was dealing with wealthy individuals with huge resources. In terms of the freezing orders there were seven in total for the past financial year. The NPA had trained a significant number of prosecutors for the purposes of meeting its target under Strategic Objective 6. There were 144 trained prosecutors for 2011/12; this was just short of the target of 191.
Ms Karen Van Rensburg, Acting Chief Executive Officer (CEO) of the NPA said that the organisation was under severe financial constraints going into the current financial year. The NPA had tried to reduce the vacancy rate which was down to 12%. The impact of Occupation Specific Dispensation (OSD) was underestimated as regards the carry through costs. There would have to be a virement of R50 million from goods and services to compensation of the employee budget. The NPA was going to be constrained as the adjusted appropriation was at 6%. In order to deliver on objectives there would be a need for additional staff and there were no funds for this. The biggest concern for the NPA was compensation of employees at the moment.
Discussion
Mr J Jeffery (ANC) said that the Committee could do something via a parliamentary amendment of the budget during the second half of the year. It was concerning to hear that there was no money to fill the vacancies. The Committee’s budgetary report for last year (2010/11) indicated that the NPA had a vacancy rate of 12%, the current figure for that year was now indicated as 14% in the annual report. Was the Committee being given wrong figures? The vacancy rate had improved from 2008/09 where it was 24% but the mismatch in figures for 2010/11 called into question the current 12%. When was the CEO going to be appointed, had there ever been a CEO for the NPA? It would be appreciated if the NPA could furnish information relating to whether it had the capacity to deal with serious corruption cases, was there training and assignment of prosecutors to cases because the figure of zero cases was worrying. The figure for the Alternative Dispute Resolution Method (ADRM) was not a good one. On page 24 of the Annual Performance Plan there was a glossary of what was meant by ADRM, there it was stated that “informal mediation was the process in which the prosecutor duly authorised thereto and with the ambit of the restorative justice guidelines while acting as a mediator between a victim and the offender resolves the conflicts which results in the criminal court case or addresses the harm caused in a manner that does not require formal justice but seeks to deliver justice and the matter is withdrawn”. The problem was that diversion was fine; it took place under the aegis of a presiding office usually a magistrate. Diversion was also provided for in the Child Justice Act. The problem with informal mediation was that it was not provided for and the figures for informal mediation and diversion were lumped together and it was not clear which figures were for which process.
Mr Jeffery said that the concern of the Committee was that it had been complaining about this for a while as evident in its report dated 26 October 2010. The Committee had recommended that the ADRM be regulated with appropriate guidelines put in place. This concern was again expressed in last year’s Budget Report. It seemed like nobody was listening, a stronger approach had to be adopted towards addressing ADRM. Last year the NPA had said that it was monitoring this, could this monitoring be provided to the Committee if possible? It was good that the number of TCC’s was increasing but the conviction rate was not increasing. More detail should be provided on sexual offences because it seemed like the battle was not being won here.
Ms M Smuts (DA) commented that the reversion of the structures to what they were was good news. Section 35 of the NPA Act provided for the accountability of the NPA before Parliament including decisions regarding prosecutions. It was an offence under the NPA Act for anybody to interfere with the functioning of this office, there had been widespread impression that there had been political interference in the withdrawal of the murder and fraud charges against Mr Richard Mdluli. Had there been a political instruction or pressure on the NPA to withdraw the charges against Mr Mdluli? Who within the NPA gave instruction to Glynnis Breytenbach to discontinue prosecutions in the Mdluli matter with respect to the fraud charges and to Mr Chauke in respect of the murder charges? With respect to the murder charges was legal opinion sought from senior counsel as to whether there was a prima facie case against Mr Mdluli? If there was an opinion what did it say? Did Adv Faith Radebe advise that the charges against Mr Mdluli should be reinstated? Was the acting NDPP aware that Adv Radebe made such recommendations to the Acting Police Commissioner? In the case of Glynnis Breytenbach was Adv Radebe threatened with suspension and why? What was the sequence of events in regarding the Mdluli fraud charges was Mr Breytenbach threatened with suspension, what happened?
Ms D Schäfer (DA) said that given reports that there had been missing case dockets and evidence in the Mdluli matter, had there been discussions between the NPA and the South African Police Service (SAPS) on what to do next and if so what action would be taken? Had Mr Hofmeyr been provided with reasons for his removal as head of the SIU by the President and if so what were they? Why was it that the cyber crime policy framework had been removed so that it now fell under the auspice of state security? How many matters relating to the obstruction of police during the course of their work were referred to the NPA by SAPS? In the slide presentation document the NPA stated that the vacancy rate had been reduced by 0.16% yet there was an increase of 5% in the number of prosecutors how was this possible? Despite the fact that prosecutors were being paid quite well now they still wanted to leave in large numbers this was a sign of an unhappy organisation, why would prosecutors want to leave and what was the culture at the NPA at the moment. The figure for convicting officials involved in corruption on page 22 was high, was this based on suspicions of how many cases of corruption there were in the CJS? There was a budget for advertising; this was not needed by the NPA. On page 31 there was a definition for crimes, it was stated that domestic violence matters were not included in the definition of a crime; this was a major problem. Specialised Sexual Offences courts have not been functioning as they should a lot have been closed down, what discussion were there to change this and get the numbers back up again?
Mr S Swart (ACDP) asked to what degree National Treasury had been approached on the issue of finances. What was the withdrawal rate like? Prosecutors on the ground had raised concerns about police training- which was not deemed adequate, what impact did this have on the withdrawal rate and how could it be addressed? Another view from prosecutors on the ground was that there should be an attempt to align targets in the JCPS cluster. There had to be an explanation as to why the conviction rate was just under 300 000.
Ms Chaana (ANC) asked if the NPA attributed the decline in performance only to the restructuring or were there other reasons. Why had there been a decline in the number of convictions? It would be good if the asset register and records of the NPA were presented before Parliament together with an explanation on what happened to these assets. What would the role of the CEO be in the new structure? Could there be clarity on how the money was spent for personnel.
Adv Jiba replied that the NPA had realised that it might lack capacity to successfully prosecute complex commercial crimes by itself. It had become apparent that some of these cases might have to be outsourced. This was not to say that outsourcing was going to occur across the board as there was senior counsel available within the SCCU. Informal mediation was somewhat problematic which was why there were guidelines distributed to prosecutors. There were however no method of monitoring ADRM cases. There was a meeting which was organised by the Chief Justice (CJ) where Adv Thoko Majokweni requested the judiciary to re-consider the stance it had taken regarding sexual offences cases at magistracy level. The CJ had been engaged on this matter as these types of cases were on the rise; he was open to discussions and supported the view that there might be a need for the specialised courts to be brought back. To address the issues raised by Ms Smuts it should be known that the NPA had to make decisions without fear or favour as guaranteed by the Constitution. It would be a sad day if the NPA had to make its decisions based on political pressure. There had been no outside instruction on how the matters raised by Ms Smuts should be dealt with by the NPA. There had been no political pressure on the NPA on its discretion to make decisions. In the media there had been a link established between Adv Breytanback and Mr Mdluli, it was not clear where this link came from because the advice received on this matter had been to the effect that the matter was brought to the attention of the NPA far back. As the Acting NDPP one should tread carefully so as not to create a precedent where prosecutorial decisions were discussed in Parliament. The issues raised were still going to be ventilated in court. There had been no outside instruction to Adv Chauke and Adv Breytenbach to withdraw charges; the decisions were made independently by the prosecutorial directors. There were processes that had to be followed in the NPA Act and one could not comment on whether the charges had been provisionally suspended or withdrawn.
Adv Jiba said that the legal opinion was sought by the DPP in South Gauteng and he did obtain it. The legal opinion was not closed, the matter was currently sub judice and as the process was ongoing it might still be relevant at a later stage. Details on the missing dockets and evidence were not on hand at the moment. The NPA participated in the JCPS cluster and the interests of the NPA were looked after so the fact that the cyber crime policy framework had been moved would be of no impact, this was however a policy decision. The fact that some prosecutors had left was not reflective of unhappy staff members at times people lose interest in what they did and sought greener pastures. The NPA had tried to engage with Treasury however the issues with the NPA’s budget stretched two years back when the OSD was implemented. The problem seemed to be related to planning and it seemed like Treasury was not amenable to issuing more money as there was none. At various summits prosecutors trained police members on handing over dockets. There was a screening protocol; even though it had not been signed the NPA had taken the initiative to apply the screening mechanisms contained in the screening protocol so that dockets were screened so that the withdrawal rate was reduced at the court level. The alignment of targets was a thorny issue; the police had to maintain their stats in terms of arrests. These would be the issues that the NPA would be dealing with going forward. The decline in performance was not only because of the restructuring there were other reasons both internal and external. Case flow management was one of the factors that have impacted on the NPA’s performance and the CJ has taken this matter seriously. Certain courts had been identified as priority courts where there was a number cases that came on the role, it had been decided that resources would be pulled together to alleviate the backlog and the judiciary was on board with this.
Adv Hofmeyr added that he did not think that he could continue with two jobs for the price of one anymore. The target for successful prosecutions for corrupt personnel in the JCPS cluster was set because it was realised in the presidency that crime and corruption could not be dealt with if those who worked within the cluster could not be dealt with. Information relating to the asset register would be furnished to the Member. Assets that were seized and frozen were looked after by an independent curator and not the state. The target of 100 corruption convictions was in relation to for corruption charges only; the focus was on people who have made a lot of money from corruption. The NPA and DoJ&CD were facing a real crisis. The alignment of targets in the JCPS cluster should be aligned because a successful arrest should mean a successful prosecution as well, the Department of Planning, Evaluation and Monitoring was looking towards aligning the targets of state departments.
Ms Van Rensburg said that she has looked at the figures for the vacancy rate the NPA had failed to update the figures, this was an error. The Director General (DG) for the DoJ&CD was the accounting officer and the NDPP was responsible for prosecutorial functions. The CEO was responsible for all corporate functions.
Mr Jeffery asked who appointed the CEO.
Ms Smuts asked what happened to shifting corporate services to the DoJ&CD by the previous NDPP.
Ms Van Wyk replied that corporate services would remain within the NPA, the delegation to appoint the CEO was with the DG for the DoJ&CD however the NPA was of the view that it should also be heavily involved in this. The CEO reported to the NDPP and took decisions in consultation with the NDPP. There was also a reporting line with the DG of DoJ&CD as she was the accounting officer. The advertising budget was for posts in newspapers. The NPA had requested additional funding which was R111 million for 2012/13; R119 million for 2013/14 and R130 for 2014/15. The NPA wanted the additional funding to increase capacity in the AFU and also provide for the rollout of TCC’s. Of the requested additional funding R198 million would go towards compensation of staff. On page 24 of the Strategic Plan the number of employees were set out, there were 4247 prosecutors employed by the NPA. There was a perception that there was a lot of turnover but this was not the case, the bulk of turnover was in corporate services and not within prosecutorial services. Staff turnover was less than 4% per annum.
Ms Bulelwa Makeke, Executive Manager: Communication for the NPA said that the organisation and to do a whole lot of communication in order to reach its audience. There was a lot of confusion on what the NPA did and more and more money was being spent on community based projects in order to educate the public.
Ms Schäfer repeated her question to Adv Hofmeyr as she had nowhere else to ask, had the President given reasons for his decisions in terms of the law as required and if so what were they?
Mr Jeffery said that it would be useful to start getting a breakdown of the figures for ADRM. The Committee had never really been given a withdrawals figure. On page 14 of the Annual Performance Plan, Key Activity 3: Specialised prosecutors to deal with serious corruption had to be fleshed out more, in other words more information had to be provided.
Ms Smuts said that she did not receive a reply on the questions relating to the recommendations made by Adv Faith Radebe. What was the sequence of events on the Mdluli charges?
Ms Chaana asked what would happen if there was a disagreement between the DG and the NDPP.
Adv Jiba said that the information said that the information requested by Mr Jeffery would be made available. Informal mediation had to be regulated. It would be difficult to give a sequence of events on the Mdluli matter as he had not applied my mind to this. A proper response would be given at a later stage.
Ms Smuts followed up and asked if it was the case that Adv Radebe was of the view that the reasons advanced by the NPA on the withdrawal of murder charges against Mr Mdluli were legally flawed and inaccurate?
Adv Jiba replied that this was the view expressed by the Inspector General. As a point of correction; Adv Radebe’s views were on the corruption charges not the murder charge.
Adv Hofmeyr said that he did not want to belabour the point however what was discussed and accepted was that continuing to do two jobs could no longer be continuous. On page 20 of the presentation one could provide a rough figure of ADRM cases from the difference between the figure for overall convictions and the number of criminal court cases finalised which was roughly 130 000. Of this 130 000 about 83 000 was informal mediation. About 40 000 of the 83 000 was admission of guilt and the other 40 000 was diversion after enrolment.
Mr Jeffery said that the historical figures for informal mediation were worrying, the cases were 15 000 in 2007/08; 68 000 in 2009/10 and now in was 83 000 in 2010/11. Did informal mediation include withdrawals through insufficient evidence? The Committee had to know how many informal mediation cases were being withdrawn before they were being enrolled.
Adv Jiba said that the information would be provided by the end of the month.
Mr Jeffery said that the budget vote was on 4 May 2012 and could the information be furnished before then please.
Ms Schäfer asked if the other replies including the reply to her question on the charges on obstructing the police be also furnished.
Ms Van Wyk said that the NPA did not keep data on specific crimes so there was no data available however the NPA was in the process of developing an Information Management System (IMS) and when this was fully rolled out the information would be made available. It was possible that there would be conflict between the DG and the NDPP but right now it had not happened. However it should be known that the DG was the accounting officer and thus had the final say.
Adv Thoko Majokweni, Director of the Sexual Offences and Community Affairs (SOCA) unit said that the NPA had engaged with the CJ on the issue of dedicated sexual offences courts and he had made certain observations and commitments. The CJ would then be invited to a meeting with the Minister of Justice to settle this matter once and for all. 63 courts had been established and once the matter was finalised the NPA would look at how these could be re-established and re-aligned with the TCC’s.
Ms Smuts asked how far the Fana Hlongwana matter has developed. What was the situation with witness protection?
Dr Silas Ramaite, Deputy National Director of Public Prosecutions (DNDPP) said that the Fana Hlongwana matter originally emanated as an investigation of the Directorate of Special Operations (DSO) and came to the NPA via this body. After their disbandment the matter was referred to the Directorate of Priority Crimes Investigations (DPCI) as the NPA did not have investigative powers. The NPA could only wait and if there was material on which the NPA could make a decision then it would duly proceed.
Adv Hofmeyer said that the current NDPP took the decision to not proceed and that was how far matter had come.
Adv Jiba said that witness protection programme was under the DoJ&CD however currently it was under the NPA’s administration.
Mr Jeffery thanked the NPA for their presentation and expressed appreciation that the NPA had said that there were areas where improvement could be made and they were not defensive on matters that were untenable.
The Chairperson thanked the NPA and adjourned the meeting.
