A summary of this committee meeting is not yet available.
JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
5 June 2002
NATIONAL PROSECUTING AUTHORITY; ASSET FORFEITURE UNIT, SPECIAL INVESTIGATING UNIT, DIRECTORATE OF SPECIAL OPERATIONS: BUDGET HEARINGS
Chairperson: Adv De Lange (ANC)
Acting Chairperson: Imam Solomon (ANC)
Documents handed out:
Sexual Offences and Community Affairs Unit (SOCA) Presentation
Asset Forfeiture Unit PowerPoint Presentation
Special Investigating Unit PowerPoint Presentation
The National Prosecuting Authority was invited to submit its annual report to the Committee.
In the afternoon session the Asset Forfeiture Unit (AFU), the Special Investigating Unit (SIU) and the Directorate of Special Operations made their presentations to the Committee. The reports suggest that the AFU and the SIU are very successful crime fighting units. Both the AFU and the SIU expressed concern about the need to redraft certain provisions in legislation to enable them to step up the fight against crime. The constant court challenges affect their ability to fight crime. To remedy the situation, amendments will be tabled later in the year.
Adv De Lange (ANC) explained that the Committee had engaged with the National Prosecuting Authority at the NPA headquarters, and that the intense level of interrogation on that date meant that it would not be necessary to engage to the same extent in this meeting. He stated that the Committee was not there to hold the NPA accountable. However, the meeting was an opportunity to give the public an idea of the work done by the NPA.
Mr Ngcuka began by explaining why he had brought a larger delegation with him to the meeting. He stated that it would be important for the committee to see the persons in the NPA that actually did the work. In addition, it would also be important for the NPA to interact with the Committee.
Adv De Lange (ANC) suggested that the financial input should be made early in the meeting in order to ensure that he would hear it.
Mr Ngcuka accepted the proposition.
Mr Ncguka said that he was happy to present the report for 2000/2001 to the Committee. The NPA had three objectives:
-To influence the public confidence in the criminal justice system.
-To influence a reduction in the crime rate.
-To improve the efficiency of the criminal justice system.
In light of the objectives, the NPA had to:
-Increase the number of finalised cases.
-Reduce the backlog in the courts.
-To make recovery account deposits.
He was pleased that for the first time ever, the asset forfeiture of the unit would not be in the red. He explained that by the end of July 2002, the unit would have made a profit of approximately R5 million. Thus it was clear to see that their investment was beginning to bear fruits. He added that he was also happy to say that their court hours were now in the region of approximately four hours. They continued to run Saturday and Additional courts, and about 24000 cases had been finalised by the aforementioned courts. He said that there were unprecedented levels of commitment from all their people, and referred to the Scorpions and to the Asset Forfeiture Unit in that regard, stating that the conviction rates in those units exceeded 90%.
Despite the significant progress, the NPA still faced many problems. In that regard the unit was failing to work with all the other stakeholders in the criminal justice system as one. Nevertheless, he felt that this problem would be taken care of. The present picture of the criminal justice system was positive, and he could firmly state that there was no crime that could baffle the NPA. Thus he thanked all his colleagues for the wonderful work
Adv De Lange wanted to know the extent of influence that the Saturday courts had on the fact that the court times were rising.
Mr Ncguka explained that the times of the Saturday courts would be calculated separately. He added that the Saturday court hours would even reach five hours.
Adv De Lange wanted to know what the conviction rates were.
Mr Ncguka responded that they remained quite high, and referred to the average of about 80% in the District Courts.
Ms Camerer (NNP) began by stating that she was impressed. However, she referred to the high percentage of withdrawals, and wanted to know what could be done in that regard.
Mr Nguka, with the permission of the Chair, responded that her question would be dealt with later on in the meeting.
Mr Ncguka called on Ms Majokweni from the SOCA unit, and stated that Ms Sparg would deal with the budget after her.
Ms Majokweni stated that the SOCA unit was established in September 1999, and that the unit was divided into four sections. After going over the objectives of the unit, she explained that one way of tackling the objectives could be improving the capacity and the number of specialist prosecutors. She referred to the key areas of intervention, and then moved on to deal with the Sexual Offences Courts. In that regard, she highlighted the Umtata court and the work that had been done by the single prosecutor in that area. She explained that for the 2002 financial year, specialist sexual offences courts had been established. In relation to the other areas of intervention, she referred to the establishment of the multi-disciplinary care centres. She stated they had already established three centres over which an audit of some of the victims was currently underway. As far as capacity development was concerned, she explained that their aim would be to standardise the training given to prosecutors in order to produce quality prosecutors.
Adv De Lange asked if that training would be directed solely at the prosecutors.
Ms Majokweni responded that the training would be multi-disciplinary, thereby improving that quality of all officials in the criminal justice system.
Adv De Lange asked when it would be ready.
Ms Majokweni explained that they were currently awaiting the implementation of the legislation.
Adv De Lange stated that the initiative was wonderful because it would be vital to capacitate people. He asked that a standardised document be made available to the Committee and the Committee would have the task of fixing it up.
Ms Majokweni added that they circulated bulletins to prosecutors on a monthly basis in order to update them on any developments.
Adv De Lange indicated that he was pleased.
Ms Majokweni explained that they were currently developing a domestic violence multi-disciplinary training manual.
Adv De Lange said this was excellent. He hoped that such initiatives were being made in all the specialised areas, and said that the Committee would have to wait to hear from the other units.
Ms Majokweni moved on to the next question of how to deal with the high withdrawal rates. She referred to a victim assistance programme. In addition, she repeated that the unit had public awareness programmes. She stated that the aim would be to go into schools as well, and she pointed out the 200 schools that had been identified in that regard. She added that they were engaged in recruiting maintenance officers and were looking to employ 100 of them by June 2002.
Adv De Lange (ANC) stated that the news was just wonderful! Nevertheless, he felt that the officers would have to be trained in the courts where there are no prosecutors in order to further capacitate them.
Ms Majokweni responded that they would be given a broad jurisdiction in order to enable them to take care of areas without prosecutors.
Adv De Lange mentioned the fact that the Director General had announced that he would be spending his contingency budget on appointing maintenance officers. Thus he directed the unit to integrate its project with the initiatives to be taken by the DG.
Ms Majokweni explained that her unit was expected to engage with that section, and she referred to Mr Gianni in that regard.
Ms Majokweni moved on to the Child Justice Programme and stated that work was being done in that area.
Adv De Lange wanted to know whether the unit was using the amended S 63 (d).
Ms Majokweni responded affirmatively. She made particular reference to Durban in Kwa-Zulu Natal, where youth offender courts had been introduced. She pointed out that they would be dealing with only children awaiting bail.
Adv De Lange wanted to know whether there were already mechanisms in place to deal with such issues.
Ms Majokweni stated that a Committee was currently looking over the work on a monthly basis.
Mr d'Olivera added that Cape Town had been used as a guinea pig. The result was that they were currently developing guidelines for the Department.
Adv De Lange was pleased. He emphasised the fact that protocols would be necessary, thus it would be up to the various units to identify areas. Nevertheless, he said that he would raise the plans with Mr Ncguka at a later stage.
Ms Majokweni dealt with the last issue in her presentation, the development of an anti-rape strategy. She noted that the unit had felt a need to catch up on this area. She pointed out that safety and security had been omitted by error.
Adv De Lange (ANC) was impressed with her specialised unit. He wanted to know what the level of co-operation with the units of police was.
Ms Majokweni pointed out that the police were probably doing better work than her unit in that they were specialising in areas where the unit was not specialised. Nevertheless, she stated that there were linkages.
Ms Majokweni ended by stating that the unit was looking at the strategic framework of prevention, reaction and support, and that this would be very important.
Adv De Lange (ANC) stated that her input was wonderful. He explained that in some countries there would be a duty to continue with prosecution even after withdrawal. He wanted to know what the pros and cons of such a system would be in South Africa. That is, he wanted to know whether the South African investigations would be efficient enough to make it obligatory to continue with prosecutions following withdrawal.
Mr Ncguka explained that it would not be possible to give an affirmative or negative answer because the position would vary within the units. However, he explained that he had directed the DPPs not to withdraw cases simply because the complainant made such a request. He noted that the process could be difficult.
Adv De Lange wanted to know whether it would be better to leave it to the administration of the NPA at this stage, and not to make it obligatory.
Mr Ncguka affirmed that position. He did not feel that the SA system had reached the requisite level of sophistication.
Ms Camerer wanted to know what the rate of withdrawal was and whether it had changed in any way.
Adv De Lange directed the NPA to organise the figures for the Committee in order to reflect the position.
Ms Majokweni responded that she did not have the figures on her.
Imam Solomon (ANC) referred to the use of medical and DNA evidence when dealing with infant and children abuse. He wanted to know who bore the responsibility of determining whether surgeons would be available.
Ms Majokweni responded that the DNA would be of limited use. She pointed out that when dealing with children beyond twelve years, consent would become an issue. The result was that they would be concentrating only on children below twelve years. She stated that it would be useful to have a DNA policy in that regard.
Adv De Lange (ANC) added that the DNA would at least be valuable where a man denies the crime.
Ms Majokweni went on to say that the DNA would be of limited use where consent could be raised. She noted that the unit was trying to work in the absence of medical evidence.
Adv De Lange (ANC) wanted to know the level of technology in South Africa to check DNA.
Ms Majokweni responded that the DNA would have to be referred to the two labs currently in operation in the country, namely in Cape Town and in Pretoria.
Adv De Lange (ANC) wanted to know how long the waiting period would be.
Mr Ncguka responded that it would be 84 days.
Imam Solomon (ANC) used the Northern Cape as an example of an area that faced a seasonal increase in the populations in certain towns, and where this would lead to an increase in the crime rate. He wanted to know how the unit would deal with such instances.
Adv Masutha confirmed the statement made by the previous speaker.
Ms Majokweni stated that these crimes were a major problem.
Adv Masutha (ANC) stated that he saw prosecutors as the pivotal entity surrounded by the other role players, with regards to co-ordination. He wanted to know the extent to which the unit would be able to provide the vital support to a prosecutor, on a case-by-case basis, in order to achieve the co-ordination.
Ms Majokweni explained that they would encourage relationships with the provinces. This is because they could not be available on a daily basis.
Adv Masutha made particular reference to the homelands situation, and stated that it was clear that the system was not working. He noted that in the former TBV states, prosecutors would not even understand the word "conviction", and that such problems led to huge backlogs. He wanted to know what the strategy in that regard was.
Adv De Lange asked the Committee to avoid general questions at this stage.
Mr Ncguka stated that general questions would be answered in later inputs.
Adv Masutha referred to the situation where children, especially under the age of ten, would have to give evidence in sexual offences cases. He wanted to know whether there would be any way to change the system in order to avoid placing children under cross-examination.
Mr Swart (ACDP) referred to the Child Justice Bill and wanted to know whether the delay in passing the Bill had affected the work of the unit.
Ms Majokweni explained that the delay had not deferred them, and stated that they had dealt with more that 10 000 such cases in 2001.
Adv De Lange questioned their work with Social Services.
Ms Majokweni responded that they had been working with this Department.
Mr Swart (ACDP) noted that it seemed that a large number of persons were kept in prisons for committing lesser crimes, although they could be released.
Mr Ncguka added that they had begun pilot programmes in the Western Cape. Although these were working, he explained that the problem lay in the fact that upon cleaning up the system, it would fill up again. This meant that the problem lay in the courts and the result was that they were in the process of establishing a more systematic and ongoing process.
Adv De Lange pointed out that at some stage he would like to see each court meeting with Correctional Services.
Mr Kahn responded that this occurred on a monthly basis.
Mr Ncguka added that they had signed performance contracts with the DPPs in 2001, and that the monitoring was one of the key introductions into the system.
Adv De Lange suggested that the figures should be made available to the Members. He emphasised that the figures should not be determined by bail amounts.
Ms Mahlawe began by appreciating the work done by the unit. She wanted to know whether the visits to the schools had been included in the unit budget.
Ms Majokweni repeated that the unit would be focusing on the 200 schools that had been identified.
Ms Mahlawe wanted to know whether there would be any criteria for setting up the multi-disciplinary unit.
Ms Mahlawe asked that the documents be translated.
Mr Delport (DP) said that cross-examinations would sometimes only prove that the witness was a good liar. He suggested that the time had come to revert to the inquisitorial system when dealing with child criminals because he did not like the idea of children having to give evidence of sexual offences.
Mr Maseka was concerned with the rape victims because they would usually be children. He wanted to know whether it would be possible to provide other alternatives to the giving of evidence in open courts.
Ms Majokweni, in answering this question and all the questions raised concerning cross-examination, stated that cross-examination was necessary. She explained that children below eighteen years would have the assistance of an intermediary, thereby avoiding the need for the children to go to court.
Adv De Lange called for the NPA to deal with the next unit.
Mr Ncguka handed the floor over to Corporate Services, and stated that this would include the budget.
Corporate Services and the Budget
Ms Sparg began by dealing with the Shared Services in the NPA. She explained that the vision shared in January 2001 had been achieved through the Shared Service Centre. She moved on to major successes and highlighted that completion of Project Hareyeng in that regard. As far as what happened on the way to the forum, she stated that the unit was faced with a crisis nine months later. A critical challenge faced was the need to reassert the validity of the shared services model. She explained that the context at that time consisted of time and work pressures, and the existence of time frames. She pointed out that the DG had described their situation as the classic predicament for new units.
Ms Sparg explained that a period of consolidation was clearly required after this. However, the unit was faced with high service demand, and she pointed to the June 2001 recruitment drive. She listed major reasons for the difficulty, and made particular reference to capacity, communication and inherited backlogs.
Ms Sparg stated that the unit decided to internally engage in a number of acts, such as the 'Back to Basics' campaign and the 'Reassessment of Capacity'. Externally, the unit engaged in major projects, including performance management and performance budgeting. She pointed out the unit was currently evaluating tenders for a management development programme.
Ms Sparg gave the Committee an idea of their position today, six months later. She emphasised the fact that the unit was beginning to form and function as a team.
Ms Sparg moved on to the financials. She stated that the first internal audit had a positive outcome and that this would be confirmed by the external audit in July. She was pleased to know that their books did balance. In that regard, she thanked Ms Mahlala for the wonderful job that she was doing. In relation to the challenges on the governance side and on the funding and service delivery side, the non-personnel budget for the prosecutors in the lower courts, and the entire lower court system in the department, was severely under-funded. In addition, there were other areas of under-funding, and she stated that the approximate total amount was R100 million, and R70 million for non-personal budgets.
She handed the meeting over to Mr Bika for the NPA budget.
Mr Bika referred to the budget inputs for the current year and stated that they would have to be very careful with their scarce resources. He pointed out that although the funds were increasing, inflation had a dampening effect on these amounts. He proceeded to list the budget of the nine items. The NPA budget per business unit was given. In that regard he stated that the non-personalised items had little money, thus the items had been centralised in order to get the best value for money. He highlighted the DSO budget per business unit, and noted that witness protection was the smallest unit. In relation to the expenditure reports and to the variance analysis, he hoped that they would be ready to take corrective measures by August 2002. He stated that budget and actual expenditure up to 30 April 2002. The NPA had a personnel budget of 76% whilst the non-personnel budget sat at 24%. After dealing with the centralised and non-centralised items in the NPA, he moved on to the DSO personnel costs. The centralised items of the DSO were referred to, following which he ended by outlining the monthly reports.
Adv De Lange (ANC) referred to two items in the report:
-The committee would have to wait for the external audit. However, there were indications that the results would be positive.
-The overall restructuring of the corporate aspect.
Ms Camerer wanted to know the meaning of professionalism.
Mr Ncguka responded that this was a sore point for many years such that many prosecutors took the Department to court for its failure to pay notch pay increases. The result was that all DPP budgets were reduced by 10% and that money was used to pay the notch increases. He explained that backlogs still existed and thus they had agreed with the department to pay the increases themselves. However, he stated that they did not have access to the relevant information because it was still in the possession of the Department. He pointed out that they had made requests to the Department for the provision of the information.
Adv De Lange enquired into the response.
Mr Ncguka responded that they would receive the information by 10 June 2002. He explained that the NPA had undertaken that by 1 August 2002, every prosecutor would be paid on the correct notch. He noted that they had been able to ascertain all the correct salary levels.
Ms Camerer referred to the under-spending of R96 million in the 2001 budget. She sought clarification regarding the use of the money.
Mr Ncguka explained that the money had been used. He stated that they had started with a deficit in 2001. The result was that no units were be filled on the prosecution side. However, the money for the vacant posts was transferred to the NPA, and although this was only discovered at a later stage, the money was then used to deal with the deficit.
Adv De Lange wanted to know why then it had been referred to as under-spending.
Mr Ncguka explained that it had been spent under the personnel for the entire Department.
Ms Sparg added that their under-spending had helped the Department with its overspending.
Mr Ncguka stated that the Auditor General's Report would not show any under-spending.
Adv De Lange confirmed his understanding that they were under-funded by R1million.
Ms Mahlawe wanted clarity of the budget and in particular where the money would be received from.
Ms Sparg responded that the department would be used as their treasury, although the unit would run its own systems.
Ms Mahlawe wanted to know whether there was any unauthorised spending.
Ms Sparg stated that the unit ran the same risks as any other Department. Nevertheless, the internal audit test had revealed that the system was positive.
Imam Solomon wanted to know how the severe underfunding of the lower courts could be rectified.
Adv De Lange (ANC) added that it was his nice way of saying that those at the top were overfunded whilst those at the bottom faced severe underfunding.
Mr Smit pointed out that irony in that the heading stated 'excellence in service delivery' whilst a crisis was faced. He pointed out that Mr Mackenzie from Business Against Crime had indicated a preference for pilot projects, and wanted to know their position on the matter.
Ms Sparg said that pilot projects would certainly be one way to go. However, it would not be possible for the unit to go back. She explained that the unit did go for the 'big bang' approach because the NPA realised an opportunity. However, this led to a dip around September 2001. Nevertheless, she explained that recovery was now on the path.
Adv De Lange mentioned that all the teething problems had been referred to. He sought for an indication as to when they would be sorted out.
Ms Sparg stated that there would not be any finality in the matter.
Mr Ncguka added that the response did not rest solely with the courts. This is because the need for co-operation with the Department led to many problems.
Adv De Lange (ANC) said that they would not be entering into that debate during this meeting.
Adv De Lange (ANC) referred to the very fruitful conference where the possibility of a new salary structure had been raised. He wanted to know the position in that regard.
Mr Ncguka explained that a new salary structure had been developed in 2001. The Minister of Justice had approved the proposal, although certain amendments were made. However, the Minister stated that the matter could not be finalised until the department had provided a solution for dealing with its legally qualified employees. Thus the Department was given three weeks to respond to the matter, and he explained that the NPA currently had two weeks within which to expect anything.
Adv De Lange pointed out that the Human Rights Commission, the Gender Commission and the Public Prosecutor were also now insisting on salary increases. The result was that the possibility of further delays existed. He emphasised the repercussions of the proposal to change the salary structures.
Mr Ncguka stated that the position had been untenable because the remuneration of services had been on the basis of tenure and not on the basis of service. He added that there was also a need to create a career path for prosecutors, and this could only be done by linking remuneration to performance. He firmly stated that if other bodies used the NPA system as a model, there would be no harm.
Adv De Lange wanted to know who would judge the performance.
Mr Ncguka responded that he would. He pointed out that the system was objective and that the results would be based on the employment contract.
Adv De Lange stated that it would be necessary for the Committee to look at a typical employment contract at some stage. He added although he was fully in favour of the system, it would be necessary to look at the criteria.
Mr Ncguka noted that R2 million had been set aside for performance management.
Mr Ncguka called on Mr Jordan to deal with the SCCU.
Specialised Commercial Crimes Unit
Adv De Lange (ANC) handed the seat of the Chair over to Imam Solomon (ANC).
Mr Jordan stated that the unit was established on 1 August 1999. He dealt with: -
In that regard he highlighted the objectives that had been achieved.
-Case dockets and results.
-Co-location of the SAPS and Prosecutors.
-Case planning and Post-Trial Reviews.
-Specialised Commercial Crimes Courts.
-High profile cases.
Mr Ncguka wanted to know what the figures of the Kinsley Report of 1996 were.
Mr Jordaan responded that there was a total of fifteen crimes.
Mr Ncguka explained that he felt that it would be necessary to make that reference in order to show the Committee where they were coming from.
Imam Solomon stated that they were dealing with a very important unit. The meeting was then handed over to the floor.
Mr Swart (ACDP) wanted to know whether there would be a roll out to other provinces.
Mr Jordaan responded that it would be the prerogative of the NDPP to make that decision. Nevertheless, he pointed out that he had been directed to compile a report indicating the feasibility of such a measure. He pointed out that he would be meeting Mr Kahn to discuss the matter.
Mr Swart (ACDP) wanted an indication of the extent of usage of external advocates.
Mr Jordaan stated that 2538 appointments had been made. As a result, external advocates would be used if it would be possible to appoint junior staff.
Mr Ncguka added that a large number of advocates were appointed in other areas. In addition, they would also work together with the private sector. He noted that the Asante case in Johannesburg had been finalised in 2001, and that a 1600 year sentence had been received.
Mr Swart (ACDP) commented that he was definitely supportive of private advocates as this indicated a positive move towards skills balance.
Mr Smit stated that his impression was that the unit was involved only in Pretoria.
Mr Jordaan explained that they were concerned only with Pretoria at this stage. In addition, ad hoc assistance would be provided to the other provinces.
Mr Ncguka added that he had commissioned a report in order to establish whether it would be feasible to roll out. He pointed out that it appeared to be a successful project.
Mr Smit asked for an indication of how many dockets were on the roll, and of how many outstanding cases were on the roll.
Mr Jordaan said that by December 2001, there were 725 cases. However, not all of them were on the roll, and approximately 200 of them were outstanding. He pointed out that the outstanding cases were cases currently under investigation, and that the committee would have to appreciate the nature of the investigations.
Mr Ncguka added that new dockets would not necessarily be new cases.
Imam Solomon wanted to know where the crimes were being heard and what the criteria would be for a crime to be heard in the High Courts.
Mr Jordaan replied that a number of factors would have to be considered, and gave the example of the profile of a case. Thus a definite cut off position could not be made. He pointed out that the case in the High Court was currently there because Mr d'Olivera decided that it would be most appropriate because the accused engaged in delaying tactics. He explained that the case had been running for approximately 14years.
Mr Magwanishe (ANC) asked whether any exchange programmes were underway.
Mr Ncguka explained that they had arrangements with a number of countries. He stated that early this year, 2prosecutors had been sent to the UK, and that they spent about I month observing the work in the UK. He added that he was currently working with the DPP of New South Wales. Nevertheless, he explained that a major problem was the current exchange rate. He pointed out that the UK had paid for the exchange programme.
Mr Ncguka handed the meeting over to Mr Adam of the Witness Protection Office. He explained that Mr Adams used to be the Head of the Scorpions. He pointed out that two of his witnesses were killed and that it was clear that he understood the plight of witnesses.
Witness Protection Office
Mr Adams stated that he honestly believed that the other units could not be successful without an efficient witness protection system.
Mr Adams dealt with: -
-The Justice vision from the 2000 documentation.
-The acknowledgement from the Inter-Departmental Clinic.
-The challenges faced as per 1 August 2001 when he was promoted to the post. He noted that he inherited an institution that was basically in a mess.
-The obligation on the state to protect the evidence of valuable witnesses.
-The essential points and priority challenges. In that regard he explained that there would be a need to redesign and transform the system.
-Challenges per the vision of the NDPP.
Mr Adams pointed out that he could not regard witnesses as criminals because he had a duty under the Constitution to protect the witness. In light of that, he moved on to deal with the aims and the legal mandate in terms of Act 112 of 1998. He outlined the current structure and human resources within the unit.
He emphasised the need for an effective Witness Protection Programme.
Strategic and Business Plans. He highlighted the fact that the primary objective would be to obtain value for money.
The audit and review process. He explained that it would be necessary to clean up the Witness Protection Programme and to transform the services. He pointed out that a total of 62 witnesses had been removed since his appointment in August, and up to February 2002.
Current Statistics. In that regard he noted that approximately 90% of the witnesses would be high risk.
The number of successful convictions. He explained that between August 2001 and October 2001, although a few witnesses had been harmed, none of them had been killed.
He concluded by stating that an adequate and effective protection system would encourage witnesses to come forward.
Ms Camerer stated that it sounded like the WPP was in enthusiastic hands. She pointed out that she had always been told that the unit was underfunded. Thus she wanted to know how goals would be achieved.
Mr Adam responded that in light of his vision and the funding received from the NDPP, the funding was definitely inadequate. He gave the example of a crucial witness that was very ill. This witness had medical costs of approximately R10 000 per month.
Ms Camerer referred to the extend family and wanted to know whether many witnesses were going alone.
Mr Adam explained that in most of the instances, the extended family would also go on the programme.
Mr Maseka wanted to know what would happen to the witnesses upon the finalisation of cases.
Mr Adam stated that he had identified the same shortcoming. He said that persons would not necessarily testify for reward. Nevertheless, there would be a need to re-integrate persons. He added that this would be linked to the strategy programme. He pointed out that his vision was such that there would be a need to monitor collaboration with other government departments.
Mr Swart referred to the problems surrounding the schedule, and wanted to know whether the provisions would be brought before the Committee for amendments.
Mr Adam stated that he could envisage amendments in that regard and that they would soon be approaching the Committee for assistance. He added that the Witness Protection Act would also have to be linked to the National Prosecuting Authority Act.
Mr Swart (ACDP) wanted to know whether efficient clean up procedures had been installed. In that regard, he wanted to know if there was a problem with the screening process.
Adv Masutha asked whether there was any interaction with the other Dpartments in order to facilitate the re-integration of a witness.
Mr Adam said that some of the witnesses would be allowed to work whilst in the programme. He added that a risk assessment and identification programme had been established, and distinctions would be made between the inner, outer and middle circles.
Mr Smit wanted to know whether there were various degrees of interaction with the community.
Mr Adam explained that he did not have his own capacity. In light of that, some assistance would come from the SAPS. However, he stated that these would be issues of integrity, and pointed out that the NDPP had established an IMU unit in order to monitor.
Mr Solomon (ANC) wanted a comment regarding the co-operation with the SAPS because he felt that it would be crucial.
Mr Adam firmly stated that the situation was unacceptable. He explained that the dual loyalty would be required because in certain instances the SAPS officials on the programme would not understand the Act. Nevertheless, he said that the officials would be required to follow his instructions.
Adv De Lange (ANC) pointed out that the meeting would have to be finished by 3pm at the latest. He directed the committee members to bring with them copies of the ICC Bill and the Insolvency Amendment Bill.
Mr Solomon (ANC) explained that the next presentation would have to be brief in order to make room for a lunch break.
Mr Ncguka called on Mr d'Olivera as the head of the National Prosecuting Service.
The National Prosecuting Service
Mr d'Olivera referred the Committee to pages 9 to 17 of the report. He explained that the NPS would be responsible for the traditional prosecuting authority structures. In that regard, he pointed out that four of the DPPs were present at the meeting.
Mr d'Olivera began by giving an overview of the NPS, and highlighted the fact that it was the product of mergers. He then moved on to deal with: -
-The responsibility and the chief prosecutors.
-The tasks of the NPS.
-The District Courts. In that regard, he referred the committee to page 12 of the report.
The Regional Courts.
-The Saturday Courts. He added that the great pressure on all courts nationally made it necessary to lessen the burden. Thus these courts were created in February 2001. He noted that a substantive part of the backlog had been cleared as the result thereof.
Additional Courts during the week.
The High Courts. He pointed out that they although they seemed to be slower off the mark, there were many factors that influences the progress. He stated that it would be important to note that the minimum sentence cases were producing an extra load.
The High Court audit of 2001 over 32items.
Training. He stated that he was proud to say that they had a training manual, and that this would cater for prosecutors without libraries.
Constitutional Court Cases. He explained that they had an arrangement in terms of which they would be informed of all cases that could possibly impinge on the National Prosecuting Authority. He said that 30 cases had been received.
Interaction and co-operation. He pointed out that he had great liaison with overseas sources.
Mr Ncguka stated that the question dealing with withdrawals had been noted.
Mr Smit found it strange that the unit was complaining about a lack of expertise although the District Court figures were 83% whilst the Regional Court figures sat as 63%. He wanted to know why there was such a disparity between the DC courts with the more inexperienced prosecutors, and the RCs with the more experienced prosecutors.
Mr d'Olivera said that the Committee would have to bear in mind that there would be greater legal representation in the District Courts. This would serve only to further complicate matters. He pointed out that a two thirds conviction rate was commendable.
Mr Smit pointed out that there were more withdrawals in the DCs. Thus the possibility existed that he figure did not accurately reflect the situation.
Mr d'Olivera explained that there were a large number of factors influencing withdrawals. In addition, a withdrawal would not necessarily mean removal from the system. He stated that system errors were possible causes. Nevertheless, withdrawals would have to be recorded.
The floor was handed over to Adv Smit, one of the DPPs.
Adv Smit explained that withdrawals could be divided in the following manner. Cases finally withdrawn and therefore unlikely to re-enter the system. He stated that 30% of all withdrawals consisted of such cases. He explained that these cases were the result of many factors, such as the lack of prima facie proof. The result was that police would be encouraged to open dockets but to make arrests. He said that this would be in the aim of reducing withdrawals.
Cases withdrawn but likely to re-enter the system. He explained that the real problem lay with such cases, and mentioned possible reasons behind the withdrawals:
The docket not available at the trial. He stated that police officers would simply not bring dockets to court, with the result being that presiding officers would refuse to postpone the case.
Of the 50% of the documents at court, not all witnesses would appear.
He explained that they were trying to address the problems.
Mr Magwanishe stated that he would be very happy if he could be provided with a breakdown of that statistics.
Mr Magwanishe turned to page 54 and wanted to know the course that had been attended by the 3advocates. In that regard, he wanted to know whether they were senior or junior advocates.
Mr d'Olivera responded that it was a training course. He explained that at the DPP level, an advocate seminar would be held once a year. He added that the course would be run purely on operational availability, with the result being that any rank could attend the course.
Mr Magwanishe wanted to know why the Venda province did not have a DPP.
Adv Masutha resuscitated the question that he had raised earlier in relation to the homeland areas.
Mr d'Olivera explained that Chief Prosecutors would look after the clusters of courts. Thus monitoring would enable the identification of persons.
Mr Swart wanted to know what PDI on page 16 referred to.
Mr d'Olivera responded that it referred to District Courts.
Mr Swart commended the unit for the huge work that had been done. He referred to the court days on page 14 and wanted to know days were being lost.
Mr Kahn referred to:
The recess system in terms of which judges would have to be given time within which to consider their judgements. He pointed out that the days taken off to consider judgements should be part of the system.
Systematic factors resulting in the loss of days.
Imam Solomon thanked the speakers.
Asset Forfeiture Unit (AFU)
Willie Hofmeyr (Head) and Ms Ouma Rabaji (Head of Operations) briefed the committee on the AFU.
Mr Hofmeyr said that the mission statement of the AFU is to take profit out of crime by providing an effective asset forfeiture service to government agencies and the public of South Africa. In 2002, it will do this by ensuring an 85% success rate, seizing assets in 150 cases involving R250 million, applying for forfeiture in 100 cases involving R150 million and obtaining forfeiture orders in 75 cases involving R75 million.
The strategic objectives of the AFU is to test the law by taking test cases to court. This will create legal precedent to allow the effective use of the law and to build capacity to ensure that assets forfeiture is used widely and makes a real impact in the fight against crime.
To date there has been 150 seizures to the value of R373 million with a success rate of 88% 55 forfeitures were granted to he value of R22 million also with a 88% success rate. Twenty one cases have been completed with a total value of R5 million. There have been twelve deposits in the Fund. The total value in the fund is R700 000.
Since the annual report was published at the end of March, forfeitures granted have tripled in value form R22 million to R65 million. Cases that have been completed now total R26 million that translates into a fivefold increase. A further R12 million has been deposited into the fund and the Criminal Assets Recovery Account (CARA) now stands at R 13 million.
Mr Hofmeyr said that 2002 will see large deposits into CARA. In the first half of this year there should be at least another R40 million deposited. R12 million from the Hout Bay Fishing Case is already in. Orders that have already been granted included R6 million from the Durban drug dealer Ronny Johnny Smith, R15 million from the Durban illegal casino kingpin, Gayadin and about R6-8 million from the sale of another Hout Bay Fishing Boat.
The Aim of the AFU was to bring in more money that its costs. The target was to achieve this in the first 4 years but this aim will be achieved early. The initial investment in the AFU will be covered. The funds are available to fight crime, but Mr Hofmeyr said that it was very difficult to spend the money and told the committee that amendments to the legislation are needed.
To achieve the objectives the AFU would like to double the number of cases and value each year. The past year the AFU did achieve exceptional growth. The number of new cases and other applications were doubled. The value of assets were nearly doubled. The AFU aims to achieve this again in this year.
The types of cases dealt with by the AFU include:
-Economic Crime accounts for 34% of the cases and 50% of the assets;
-Corruption is 16% of the cases and 7% of the assets;
-Drug cases are 31% of the cases and 4% of the assets;
-Violent cases are at 7% and account for 2% of the assets;
-Natural Resource cases take up 6% of the cases and 18% of the assets.
-Abalone smuggling and over harvesting has become a major area of concentration.
Priority cases of the AFU are:
Serious violent crime with economic motive;
Serious economic crime especially where public funds are involved;
Cleaning up areas of community irritants;
Property used to commit crime and
To fight crime the AFU is focussed on building partnerships both locally and internationally. There has been extensive help from USA, UK, Canada and the UN. Currently a UN employed British Barrister with extensive litigation experience is in South Africa for a two year period in an advisory capacity. Locally good relationships have been built with all law enforcement organisations. There is also a focus on partnerships with the private sector to assist with growing forfeiture more quickly and to help build business confidence in South Africa.
In the coming year the staff of the AFU will grow to 76 including 48 lawyers. Decentralising the operations have been vital in growing the AFU. There are offices in Cape Town, Johannesburg, Durban and East London. This year offices will be opened in Port Elizabeth, Bloemfontein, Kimberley and Pietermaritzburg.
In respect of promoting representativity, the AFU is proud of what it has achieved in an area where specialised skills are required but more needs to be done to promote the representivity of African people.
Cases that have come before the court include the Phillips matter (The Ranch brothel) where Judge Heher delivered a 120 page judgment dealing with a number of issues. The Bathgate judgment confirmed that Chapter 5 is constitutional. At the moment the Kyriacou case is considering whether Chapter 5 applies when the benefit has been lost. In this case all the stolen goods have been recovered. The Rebuzzi Case in the Supreme Court of Appeal settled the issue that the AFU can act even when all the recovered assets will go to compensate the victim. The Mohammed case was first to be heard in the Constitutional Court and judgment is expected in July. Judge Cloete ruled that the Prevention of Organised Crime Act (POCA) compels ex parte proceedings and is therefore unconstitutional. The AFU argued that that it is not, alternatively that POCA does not in fact exclude the discretion of the court to allow for a hearing when it feels that an ex parte proceeding is not justified.
Ms Rabaji dealt with the benefits of asset forfeiture.
She said that crime today is committed for an economic motive. Unless one can increase the risk and decrease the profits, it will be impossible to deal effectively with crime.
Forfeiture has an important deterrent effect by hitting the crime boss where it hurts the most, in the pocket. Many criminals see jail as an occupational hazard and expect that their families are comfortable while they are inside. Putting their families on the street causes real pain.
When it is not possible to convict syndicate heads, civil and criminal forfeiture has proved valuable. This ensures that the business, properties, cars, bank accounts and other assets used by the organisation does not remain behind for the new leadership. It is very difficult to convict syndicate heads because they are seldom involved in the crime. Civil forfeiture enables the state to get at the assets of the syndicate and at least hurt then financially. Civil forfeiture has an easier burden of proof. The case only has to be proved on a balance of probabilities. It can therefore be used when evidence is not strong enough to prove guilt beyond reasonable doubt. Civil forfeiture has been used successfully to close down infrastructure used for criminal activities, such as drug houses, cars, bars and clubs.
The funds that are seized and not returned to victims must be used for law enforcement. She said that this should not become the main purpose of the AFU but that it was an important incentive to persuade law enforcement agencies to devote their scarce resources to doing the additional work required for forfeiture.
She concluded by saying that asset forfeiture is an important part of the war against crime. It is a vital part of increasing deterrence especially in areas such as economic crime where deterrence is low. Most importantly forfeiture is a vital weapon to take profit out of crime. She said that if crime is to be dealt with effectively, it must be true that crime does not pay.
Imam Solomons noted the difficulty that the AFU has with legislation and particularly the difficulty with spending money.
Adv Schmidt (DP) asked how long, in the light of the experience gained by the AFU, does it take to complete a case.
Ms Camerer (NNP) wanted an explanation as to how a brothel could have been worth R30 million. She also asked for the Cloete Judgment to be explained so that the Committee can have a better understanding of the problem and what needs to be done.
Ms Mahlawe (ANC) asked why it was difficult to get at the heads of the syndicates. Secondly, she asked what happens to the children when the parents house is forfeited - as the children are not responsible for the actions of their parents.
Adv Masutha (ANC) asked for clarity on the amounts deposited in the fund and how the process worked.
Mr Hofmeyr replied that the time to take to complete cases varies. Civil forfeiture can take six months when unopposed. This is normally the case when drug money is seized. The matter is unopposed because people do not want to go under oath and answer questions. In cases like the The Ranch, action started in February 2000 and it has been going on since then. He added that sometimes the people being dealt with have a lot of money and can fight all the way.
Answering Ms Camerer, he said that Mr Phillips (The Ranch) made about R70 - R80 million from the Ranch and the R30 million is a conservative figure. The other funds are still being traced.
The Cloete Judgment dealt with the procedure in the Prevention of Organised Crime Act (POCA). The AFU is of the view that they are entitled to apply for a seizure order ex parte. The judgment upheld this but said that there is no room for the court to ask for proper motivation to grant the order and decide that notice should be given to the Respondent - for this reason it is unconstitutional. Trengrove (SC) argued for the State and said that discretion for the court is not excluded, but even if it is excluded then it is still constitutional. The case has impacted on the work of the AFU in that there have been no Chapter 6 matters taken to court for the past 2 months.
Responding to Ms Mahlawe, he said that the reality of the situation is that the top criminals have nothing to do with crime. But there is at least a mechanism to take the money and property that is used to commit crime and to take the proceeds of crime. The top bosses stay away from the crime but not the money so the burden of proof to get to the assets is lower.
Mr Hofmeyr said that he has learnt to become hard and added that no child has the right to live off the proceeds of crime. If the parent was to be poor but for the proceeds of crime, then the child must learn to live like a poor child. Criminals must realise that that their families will suffer.
Answering Adv Masutha he said that there are four steps in the process. The assets are first seized. The application for forfeiture comes next. If the application is opposed then there is a waiting period for the matter to be concluded. Once a final order for forfeiture is obtained then the assets must be sold by auction. Once the assets have been realised, only then does the money get deposited into the special fund.
Adv Ngucka (National Director of Public Prosecutions) added that when criminals get sentenced to prison terms, the State has no obligation to look after the children. The same principle applies to asset forfeiture.
He commented that when the assets have been seized the disposal of it is a huge problem. He said that the legislation should allow for assets such as houses and cars to be used in the fight against crime. Houses could be used for witness protection and the cars can be used for the police. At times investigators have to hire cars at huge cost to the State but there are very good cars that have been seized and forfeited to the State.
Special Investigating Unit (SIU)
Willie Hofmeyr (Head of SIU) made the presentation to the committee.
The Mission Statement of the SIU is to provide the highest quality professional forensic investigation and litigation service to all state institutions at national, provincial and local levels. The activities of the SIU are designed effectively to combat maladministration, corruption and fraud involving state institutions and to protect state assets and public money.
The advantages of the SIU is that it has a unique role as it is the only institution that uses the civil law to recover money or assets. The SIU does the whole process from investigation to final litigation. The case only needs to be proved on a balance of probabilities. In civil law negligent or innocent misrepresentation is sufficient, unlike criminal fraud where the state has to prove subjective intent.
The SIU provides forensic investigations at no additional cost to government and can match almost all private sector services at about a third of the cost. A properly completed investigation is provided because the SIU has full investigative powers. After private investigations, reports usually need to be backed by proper evidence leading to delays. The SIU also assist with the investigation and prosecution of criminal matters thereby alleviating the resource constraints in the criminal justice system. The special tribunal speeds up litigation as opposed to the lengthy delays that could occur in other courts.
SIU is committed to building partnerships. It sees its main role as working with government but this can be difficult or even impossible when a senior official is investigated as the department may resist investigation.
Mr Hofmeyr said that the period prior to his appointment as head of the SIU was marked by much uncertainty due to the Constitutional Court judgement in the SA Association of Personal Injury Lawyers (SAAPIL) matter. The Court had ruled that a judge could not head the SIU. Consequently the then SIU head, Judge Heath, took long leave and later resigned. The Minister then requested an audit and Adv Henning (SC) concluded that the SIU did valuable work, had unique powers, skilled staff and played a vital role in the fight against crime. He recommended that the SIU continue its work. Due to the uncertainty at the time, a third of the staff had left. No new cases had been referred to the SIU resulting in time being wasted on old cases that had little prospect of visible results. The fact that there was no head aggravated matters but the management committee had done an excellent job.
After Mr Hofmeyr was appointed as Head of the SIU in July 2001 immediate steps were taken to address the problems. A ten point strategy was developed to put the SIU back on track as the premier corruption fighting institution.
The Ten Point Strategy:
1. Creating certainty about the future of the SIU
The major challenge was to create certainty about the future of the SIU for its staff. The appointment of a new head made clear government's commitment to the SIU. The Henning report contributed greatly to achieving certainty.
2. Referring new cases
New cases are vital to address the morale of the staff who were working on old cases that were going nowhere. Several new cases were referred.
3. Filling of vacancies
The immediate priority was to fill 40 vacancies. The process was completed at the end of 2001. Mr Hofmeyr found it encouraging that many employees who had left reapplied for vacant positions.
4. Improving representivity
The SIU has an employment equity plan in place plus an employment equity forum. A major focus of the recruitment drive was to improve the representivity, especially at a management level.
5. Ensure competitive salaries
It is a priority to re-evaluate the salary structure to ensure the SIU can compete for the best skills. A proposal has been submitted to the Minister.
6. Promoting greater efficiency
The Henning audit identified delays as a problem and the SIU has therefore been restructured on a project management approach. The SIU has been successful in introducing clearer time frames and greater accountability.
7. Legal challenges to improve effectiveness
The legal judgments severely hampers the effectiveness of the SIU. Adv Trengrove (SC) has been briefed for advice on possible amendments to legislation. The Minister will table new legislation in Parliament in the second half of the year.
8. Establishing a national presence
Previously the SIU was based in East London with a team focussing on each province. It has been decided that it would be more effective to have a national presence. The Pretoria office has been set up as well as small offices in Durban and Umtata.
9. Improved cooperation with law enforcement
The SIU has made a special effort to improve cooperation with other law enforcement agencies to ensure effective criminal action where evidence is available indicating a criminal offence. With the resource constraints in the criminal justice system, it is not sufficient to simply refer matters to the police because there is not always the capacity to deal with them effectively. The SIU has therefore made investigators available to assist the police in compiling dockets that are court ready. An example is the Nontenja prosecution in Umtata where the SIU investigator prepared the docket and will assist in court during the prosecution. Also in the Bisho massacre matter the SIU assisted with leading evidence and tracing witnesses. An exciting development is that the NDPP is prepared to give delegations to experienced lawyers in the SIU to do the actual prosecution in cases investigated by the SIU.
10. Building partnerships with government
Mr Hofmeyr covered this at the beginning of his address.
Notable cases dealt with by the SIU is the Nontenja matter. Nontenja is an Umtata Attorney who defrauded the state attorney of about R19 million. The prosecution is about to commence. Another matter is the investigation of widespread corruption by officials of the Witness Protection Programme in KwaZulu Natal. Also in KZN, the SIU investigated the fraudulent reduction of licence weights of vehicles. This resulted in losses of millions of Rands to the State. Businesses who benefited from reduced fees will probably pay it back. In Limpopo, all drivers licences issued since 1994 are being investigated. This is a tedious task but is necessary to root out corruption.
The SIU is further involved in a massive investigation into all state housing subsidies granted in Gauteng, KZN and Northern Cape. Many conveyancers entrusted with housing money are included in the investigation. A permanent national project is being discussed with the Minister of Housing to combat corruption is this area. A staff member from the SIU managed to convince the University of Natal Law Clinic to assist victims who had lost small amounts of money.
In concluding the presentation Mr Hofmeyr said that the SIU has excellent administration and financial controls, it is PFMA compliant, makes good use of information technology and is serious about training, especially computer based training.
Ms Camerer referred to the comment "that it is impossible to investigate senior officials". She said that this is a real problem highlighted by the opposition in the past and wanted to know how it is addressed.
Adv Masutha said that at the same time as the SAAPIL judgment there were many cases relating to the misappropriation of the funds of the Road Accident Fund (RAF). He asked how far is the work of the SIU in getting the attorneys involved.
Adv Swart (ACDP) asked what the main areas of concern for the SIU was.
Mr Hofmeyr replied that at the moment the Minister must still issue a proclamation for an investigation into officials to take place. He said that the proclamation process needs to be looked at seriously. There is no sense in telling the wrong doers that the authorities are coming for them. The investigation of officials must be like usual law enforcement.
Answering Adv Masutha he said that the Scorpions are investigating, but are not doing the same work as the SIU who looked at the relationship between the client and the attorney. The Minister has all the files but a decision has not yet been taken on how to deal with it. He added that action has been taken such as in the cases of Mohammed and Choohan - but this is a major unresolved area.
Responding to Adv Swart, he said that the first major issue is that the law talks about a justiciable dispute. Judge Pickard said that this meant that a party must give notice of opposition. This causes real problems for the work of the SIU and needs urgent attention. The second problem is one of locus standi - whether the SIU can recover money itself or if the victim / government department must be the main plaintiff. This area also needs attention.
Directorate of Special Operations (DSO)
Mr Percy Sonn (Head of the DSO) made a short address on the DSO.
He said that the committee was aware of the big problems that faced the DSO and he is happy to tell the members that the problems had been solved. One of the problem areas was accommodation and by October all the accommodation needs will be satisfied completely.
Since the DSO came into being an audit and review process has been undertaken. All cases on the books in the whole country have been looked at. The resources were audited. This process is now complete. All the cases not within the mandate of the DSO have been moved elsewhere. Since the process has been completed, the DSO has taken on much more work between January and March 2002.
A series of workshops have been embarked upon to assess the direction of the DSO in term of the work that must be done and the resources that are available. He said the DSO is a new organisation and it is difficult to cost the resources that are needed.
Serious Economic Offences is a major area of focus and it is important that the DSO link up with organisations that know what is going on in the country. For this reason a close relationship has been forged with the Financial Services Board (FSB) because they know about price manipulation and insider trading etc.
The DSO has completed the manuals on policy, directives and procedures and it has been forwarded to the Minister.
There is a focus on training and thus far there have been 28 training interventions where forensic capacity is being developed and DNA / crime scene management is taught. Crime scene management refers to the entry into an office and de-briefing the staff, computers cellular phones etc. Skills are being developed to assist the Financial Intelligence Centre with its work.
Currently 80 new recruits are on boot camp and are being trained to be special investigators.
The DSO realised that there is a lack of skill in financial investigations and to lift the basic skill level of all investigators, British trainers are training DSO staff who will thereafter train all DSO investigators.
Adv Masutha followed up on his question about the RAF and said that is unacceptable that files are just lying around. He added that the attorney profession does not seem to be acting. He felt that the disabled were disempowered and had to be made aware of their rights.
Adv McCarthy (Head of Operations - DSO) replied that that there is national project to deal with RAF matters. In Gauteng, 10 out of the 23 attorneys that were involved in fraudulent claims were arrested. In the broader Gauteng there has been plea bargaining in respect of certain attorneys and officials. Last week in Germiston an attorney was arrested. The Mohammed and Choohan cases are well know in Cape Town. In Durban there has also been arrests recently. He cited these as examples of work that is being done.
Adv Ngucka said that he would be happy to convene a meeting with organisations representing disabled people to try and get to the bottom of all the problems.
Mr Hofmeyr added that that the SAAPIL judgment meant that because there is not enough evidence, there is no basis to search a premises. The process mentioned by Adv Ngucka is important for getting more evidence. He said that there should be a lobby to get the attorneys profession to act more effectively.
Mr Frank Khan (Attorney-General of Western Cape) wanted to commend the committee on the Plea Bargaining Legislation. He said that it has had a positive impact and that it was working very well.
Imam Solomons thanked the officials for the presentations and said that the National Prosecuting Authority and its sub directorates was a spot of excellence in the Justice Department and he hoped that the other departments will learn from the NPA and that the NPA would assist the other departments.
The meeting was adjourned.