National Prosecuting Authority on its Annual Report 2012/13; DoJCD audit outcomes

Meeting report

Audit outcomes for Justice entities: 2012/13Auditor-General South Africa briefing
Mr Yusuf Essack, Senior Manager, Auditor-General South Africa, briefed the Committee on the audit outcome of the Department of Justice entities. He noted that the Department of Justice and Constitutional Development (the Department) had moved from an audit qualification to one that was now unqualified, and the financial statements were received and audited, but the Annual Report had not yet been tabled. There had been submission of third party statements on financial funds, and there had been positive moves in that direction. In respect of pre-determined objectives, there were some compliance issues still remaining, specifically because of irregular expenditure and some financial statements had to be materially corrected.

He noted that the findings on pre-determined objectives were marked with blue shading and he explained that the financial statements had required material alterations to be made. The issues were more fully explained in the briefing document.

The South African Human Rights Commission (SAHRC) had regressed to a qualified audit opinion. In this entity, system changes made, including the restructuring into new business units, meant that the accounting software changed. The process was not adequately risk-managed. There were challenges in respect of accounts payable, where no proper reconciliation was done, and on asset management, specifically the existence of a proper asset register. Those were the two remaining issues that could not be corrected, and lack of compliance on asset management led to the qualification.

The Criminal Asset Recovery Account (CARA), Legal Aid South Africa, the President’s and Guardian’s Fund showed improvement. All previous errors had been rectified and there were no issues on performance or compliance. The Public Protector’s audit remained as financially unqualified but with findings). There was a supply chain management issue, that led to a non-compliance finding in the audit report.

Mr Essack suggested that the Committee needed to focus on the Special Investigating Unit (SIU) which was financially unqualified in this and the previous year. However, more emphasis was required on performance information, specifically on the usefulness criteria. All entities were performing correctly on their achievements, but the SIU had specific challenges around the crafting of the targets and indicators. There were inconsistencies between what was determined up front and what was actually being done. This was also the only entity which had challenges with meeting time frames for drafting the strategic plan.

Notable improvements were apparent in the NPA, which had achieved a clean audit, with no findings on performance information. There may be findings on the achievement of the targets – the AGSA would put such a finding if an entity failed to achieve 20% of targets - but this did not affect the final audit report.

Mr Essack noted that the further slides (see attached slide presentation) contained information on leadership, performance, financial management and governance, and where there had been lack of compliance, the root causes leading to findings in the audit report were noted. More detail would be found in the briefing document.

Mr Essack then moved on to the briefing document (see attached document). Page 3 analysed the audit outcomes over the last five years. He would focus on the Department and South African Human Rights Commission (SAHRC). The Department had moved from five years of qualifications, to an unqualified report, but the yellow markings indicated that there were still some findings. The SAHRC had regressed. Over the years, the Department had shown progressive improvements, and in the past year, all of the findings had been in relation to the Third Party Funds (TPF), a situation corrected completely in the 2012/13 year. Similarly, there were no outstanding issues on which the NPA must report. He reiterated that the SAHRC had issues around reconciliations and assets not reported on properly.

For the SIU he explained again that the findings related to the non-meeting of time frames for the strategic plans. The other concern on predetermined objectives related to the consistency of reporting; the Strategic Plan had certain indicators and targets, but there should not be new indicators and targets, unless approved by the Executive Authority. The entity had been under the impression that the Minister had approved the revised targets, but the Minister had no recollection of having done so, and SIU thus had to default to what had been approved up front. He thought that the absence of a permanent head had led to that over the period 2011 to 2013 and was hopeful that this would be resolved. In the experience of the Auditor-general (AGSA), progress made depended on active involvement of leadership. The main issues around non-compliance were linked to supply chain management (SCM) challenges.

Mr Essack confirmed that all financial statements for Third Party Funds (TPF) had been audited and finalised, but he urged the Committee to ensure that the annual reports in this regard would be tabled soon.

Mr Essack referred to a table on page 5 was important, where red colour coding appeared for the SIU and SAHRC, which indicated some non-compliance issues. There were some yellow markings for “financial health” and in all cases, that indicated that the 30-day payment of creditors was not being properly tracked. For SIU, there were also instances where debtors and creditors management needed to be improved. SCM markings in yellow indicated deviations from prescripts. The red markings meant that there were findings in the audit report, and the yellow markings meant that corrections were needed.

Significant attention needed to be paid to Information Technology (IT), particularly around user access and management. The person having access to the system at the higher level should be the correct person, and this would have to be checked on a regular basis. He emphasised the importance of system reviews, access controls, and there was also a need to check disaster recovery plans and backup.

In relation to material adjustments to financial statements, the Department, SIU and SAHRC were shown as having needed to correct the financial statements. SIU was shown in red, because there were more changes required than the AGSA allowed without comment, and the SAHRC ended up with red shading because of its qualified opinion, meaning that the systems in place were inadequate.

SIU was the only entity that had a problem with strategic planning. Findings on performance information were listed on page 8, which included comments on consistency of targets for the SIU.

Pages 11 to 22 listed the findings on IT were listed, mostly around disaster recovery plans and user access. Page 25 listed the drivers of internal controls, with categorisation for financial, performance and compliance. IT governance was shaded in yellow, for the Department, although performance information showed this in red, as there were material corrections required. Overall, Mr Essack commented that more monitoring was needed on performance throughout the year.

Mr Essack noted that although SAHRC was qualified overall, because of inadequate financial systems, the summary did not reflect this.

Commitments were obtained last year, and they were still relevant in this year. Monthly financial statements should be prepared. SAHRC, the Department and SIU still needed to give their confirmation that financial statements were prepared monthly. Although there was no regulation requiring this, monthly reporting would make it far easier for management to identify any gaps in performance at an early stage. Secondly, he asked the Committee to ask management for further confirmation that senior management should be reviewing financial statements. AGSA was suggesting that proper plans be put in place, working backwards from 31 May, to ensure that things started happening from 31 March – such as confirmation from creditors that all invoices were received, and planning sufficient time for the audit committee to look into the matters. It should have been apparent to SAHRC at an earlier stage that the assets control were not up to scratch, but it had been forced to submit the statements by 31 May notwithstanding that the matters had not been corrected by that date.

Mr Essack suggested that portfolio committees should call for action plans, which tracked each audit finding. He cautioned, however, that such plans should not list every relevant date as 31 March; some matters could be fixed much earlier. Indicators and targets must comply with the strategic plans. Some matters could be finalised earlier in the year, such as quarterly asset counts, with the asset register being updated within one month of that count, and exceptions being cleared. SMART criteria (specific and resolving the issue, measurable and time bound) were particularly important for action plans. It was also important to look into who was taking accountability, at a high level. In addition, he suggested that confirmations should be sought from the chairpersons of audit committees, to ensure that the decisions of the audit committee were being taken to the correct executive levels.

In summary, Mr Essack noted that AGSA performed quarterly key control evaluations of all entities, and had suggested that there must be a specific focus on SCM, which was coming up year after year. He finally referred the Committee to the combined assurance document of AGSA, which indicated which other entities were also attending to assurances.

Discussion
Mr S Swart (ACDP) said that it was very helpful to see the colour coding, and improvements were commendable. He noted that, in relation to the SAHRC findings; the changes in structure would be raised with this body, and the fact of regression. He wanted to know what steps the AGSA had taken to assist this body in improving, and when an improvement should be expected. He wondered if there was an ongoing relationship.

Ms C Pilane-Majake (ANC) thanked the AGSA for a comprehensive report that linked targets and performance. She too was concerned about the SAHRC, and why, after so many years, it was now getting a qualified report. She asked what type of instruments were being used for the count.

Mr Essack said that there was an ongoing relationship with all entities. However, the SAHRC was a small organisation. The AGSA would only spend about half as long with this entity as it did with other departments. However, it had held a debriefing meeting with management. It had identified, in an earlier meeting, areas such as asset management and quarterly asset counts, that must be performed. By its November visit, AGSA would expect at least one round of asset counts, with sign-off and if this was not done, it would report accordingly. If management confirmed that all was in order, but discrepancies were apparent, the entity would be given one last chance before final audit to fix matters. AGSA was essentially looking to ensure correction of the whole asset system, in a sustainable manner, and not a “quick-fix”.

He noted that in relation to creditors and accounts payable were concerned, it was easiest to work backwards, to the start of the 2012/13 financial year, in order to correct the matters. The AGSA suggested that a creditor listing be drawn and reconciled, simply by checking the information with the known creditors, of whom there were not too many. The necessary corrections would then have to be done on a monthly basis. The other problem was likely to be payment of suppliers without raising an invoice, and AGSA had again suggested ongoing interventions. A more extensive interim audit in the current year would be focusing on risk areas.

Mr Essack confirmed that there was an electronic system in place to deal with asset management. The problem did not lie with the system. If the normal controls – including having monthly fixed asset verification exercises – were not done, then there would be challenges. Most of the problems were not at head office, but at regional level, and AGSA thus suggested that a senior official should go out, quarterly, to see what had been checked and sign off. Accountability was a key issue. The accounting officer should be told not only of the fact that discrepancies were resolved, but how this had been done. Officials had to be educated that if assets were lost or stolen, a police report would have to be drawn.

Ms C Pilane-Majake (ANC) also commented that internal audit was a useful instrument that needed to be closely monitored.

Ms Pilane-Majake was concerned about the implication that the SIU’s targets did not match the strategic plan.

Mr Essack said that more detail was given in the tables. Indicators and targets set out in the approved plan must link to quarterly reports, and the annual performance report. Some targets were included in the approved plan that were not in the quarterly reports, and the entity had tried to revise those targets, but approval was not given, probably as a result of misunderstanding during the year. He repeated that where there was close monitoring by the head of the organization, it had led to improvements in achieving targets and ensuring that quarterly reports were correct. In addition, where the internal audit got involved in the strategic planning, there were less problems, for if something was not clear to the internal audit, it was also likely to cause a problem to the external auditors or executive. In addition, the internal audit check was useful before entities reported to the executive on a quarterly basis.

Ms Pilane-Majake took note of the suggestions that monthly monitoring was needed and the importance of involving the internal audit, but she wanted to know if the internal auditors had identified this problem.

Ms Xolile Ntuli, Senior Manager, AGSA, said that there had been a problem, and although SIU had apparently written to the Executive Authority trying to effect some improvements, the Minister indicated to AGSA that he was not aware of these requests. SIU had to look into its strategic objectives, to prioritise, and she hoped that the matter would be resolved, in the 2015 year; in the current year the problem was likely to persist.

Ms Pilane-Majake asked for more clarity on the adjustments that had to be made.

Mr Essack explained that financial statements were submitted on 31 May. The AGSA would, in preliminary visits and comments, do certain tests on sets of information, and where sets tested contained errors above the “materiality levels”, which would determine whether or not an audit would be qualified, management would be asked to fix the errors. The final audit was then done on corrected accounts. AGSA was particularly concerned if there were recurring matters needing to be corrected. The Department had shown improvements, so the level of corrections needed had reduced, but the SIU had shown no improvement, and the same areas had to be corrected.

Ms S Shope-Sithole (ANC) noted the problems around regular updating of creditors. She had attended a workshop for Councillors on the importance of record-keeping and suggested that a similar presentation for provincial departments would be useful. She agreed that it was impossible to have successful reconciliations only at the end of the financial year.

Mr Essack noted that suggestion.

Prof L Ndabandaba (ANC) raised a general question on what AGSA meant by saying that it would “lead by example”.

Mr Essack explained that “lead by example” meant that whatever AGSA did internally, it tried to give the same guidance externally. AGSA itself would do monthly asset counts and reconciliations, signed off at each cost-centre level, and there was exposure to internal and external audits. It would give advice to other departments on the kinds of systems that it ran itself. AGSA also tried to be more visible. If it knew that there were serious challenges, this would be communicated, early on, to the right levels, and potential areas of qualification would be identified to the accounting officers. AGSA would, whilst maintaining its independence, suggest that responses were needed in certain areas. Its messages would be conveyed in as simple and clear a way as possible. AGSA tried to get organisations to engage with it. For smaller entities, AGSA was involved on a case-by-case basis.

Ms M Smuts (DA) said that the report on the Public Protector noted deviation from prescripts in SCM. The root cause was described as non-compliance with applicable laws and regulations, resulting in a procurement process not followed. R30 000 worth of goods and services had been identified where there were no valid tax clearance certificates, and fruitless and wasteful, as well as irregular expenditure, had occurred. She asked for more details on that, including whether this was only discernible for the first time now.

Mr Essack responded that he did not have specific details on this.

Dr M Motshekga (ANC) was worried about SAHRC, and the Public Protector, where the Accounting Officers apparently did not ensure compliance with the PFMA. There was a recommendation for training, and he asked if this meant further updates. He believed people should be properly qualified before being appointed, and wondered, firstly, if they had the basic knowledge and skills to do the job, and if any action would be taken where they had not done their jobs.

Mr Essack said that skills were a continuing problem in the public service. Some departments seemed to appoint simply to fill the vacancy. The requirements for accounting were quite onerous, with new SCM practices and circulars being issued regularly, but it should be up to the Head of SCM to regularly check the Treasury website to proactively update on what had changed. The responsibility should lie with the entities themselves. He agreed that some basic elements were not in place, and emphasised the need for accountability. There were repetitive findings; irregular expenditure would be condoned by the accounting officer or escalated to National Treasury. Policies and procedures were there; with various checklists in place, but in general accountability was lacking.

The Chairperson noted that this Committee would need to engage with the entities themselves and raise the question as to whether anybody had been appointed purely to fill a vacancy, without having the right qualifications and competence.

National Prosecuting Authority (NPA): Annual Report 2012/13
The Chairperson welcomed and congratulated Mr Mxolisi Nxasana, National Director of Public Prosecutions, on his appointment and said that he would not be judged on the actions of his predecessors This portfolio committee did its business in a fair manner, in keeping with the idea of justice; he had not heard anyone complain otherwise. The Committee was aware of the budget cuts. NPA was congratulated on clean audit The biggest question was whether the new National Director of Public Prosecutions (NDPP) would be prepared to prosecute without fear, favour or prejudice. The Committee was likely to ask for clarity on the recent judgment by Judge Murphy on prosecutions, and a string of other cases.

The Chairperson noted that, quite correctly, independence was accorded to the NPA by Constitution, and it was clearly within the domain of the NPA to decide what to prosecute. However, particularly with high profile cases, he stressed the need for the NPA to clearly explain to the public how it reached its decision, giving clear and cogent reasons, otherwise there could be problems, and the NPA was likely to face challenges against its decisions, and even be instructed to prosecute, which was not desirable.

The Chairperson expressed his disquiet that a case docket or a police investigation docket had landed up in the hands of the BBC, and was aired in a certain manner. He was not sure whether this was a leak or a theft, but if the latter, then the person responsible, wherever residing, should be charged and prosecuted.

Finally, the Chairperson commented that Mr Nxasana had taken on a huge task, and looked forward to his engagement with the Committee.

Mr Mxolisi Nxasana thanked the Chairperson and noted the comments. He indeed acknowledged the huge tasks facing him in his new office. He assured the Chairperson that, in accordance with the NPA mission statement and the Constitution, he would abide by the principle to prosecute without fear or favour.

He introduced his four Deputy National Directors of Public Prosecutions (DNDPP) and thanked Ms Nomgcobo Jiba for having acted before his appointment, as well as the whole management team. He acknowledged the support that the Portfolio Committee had given to the NPA over the years, saying that it had contributed to the NPA getting a clean audit. He also pledged his own commitment to continue to work closely and cooperatively with the Committee. Challenges faced by the NPA included the sometimes negative perceptions of its integrity and credibility. He did not under-estimate the effort needed to improve public confidence in the organisation. He would be remiss if he did not acknowledge the hard work being done by prosecutors themselves, despite financial and capacity constraints. The challenge of huge budget cuts would impact heavily on the NPA as it moved forward.

Mr Nxasana noted that NPA had managed, despite the budget cuts, to improve its targets against those of previous years, although in some areas it had not met targets. He acknowledged the areas that needed special attention and intervention, which included the Asset Forfeiture Unit (AFU). There were improvements which the NPA would expand upon in the presentation.

In relation to high-profile matters, more especially the comment on the judgment of Judge Murphy, he had taken cognisance of, and was aware of, most of the judgments and decisions of the NPA. However, without wishing to proffer any excuse, he did want to note that he would not be rushing into making decisions, and he wanted more time to apply his mind to the matters. He would then do whatever was necessary, and communicate those decisions to the public. He also undertook to attend to the matters needing further work.

Advocate Nomgcobo Jiba, Deputy NDPP, NPA, tabled the vision and mission and then proceeded to a list of the sub-programmes. The strategic objectives had not changed, and NPA was concentrating on increasing the successful prosecution of serious crime, improving collaboration with JCPS partners, reducing corruption and increasing prosecution of cyber crime. The NPA had not managed to reach all targets. 75% of the indicators showed improvements, but only 25% (or 10 indicators) did not show improvements. 66.7% of the core indicators improved compared to the previous year. The NPA set “stretch targets” for the year, indicating by how much it wished to improve. The full figures were shown in the annual report (AR) itself.

The number of criminal cases finalised, including those finalised by alternative dispute resolution mechanisms (ADRM) increased by 4%, with 18 007 more cases finalised than in the previous year. The number of verdict cases finalised increased by 2.3%, or 7 292 more cases. A focused approach on ADRM, to reduce trials, resulted in 8.1% improvement in ADRM cases finalised.

High conviction rates were maintained, at an average of 89.9%. This was broken down into the results for various courts (see presentation for full details). Ms Jiba reiterated that these were calculated according to the same formula as explained in the past. Slide 14 showed backlog, and outstanding cases. The number of outstanding cases was reduced by 5.3%, and the backlog by 11.1%. She noted that the regional backlog courts maintained a conviction rate of 73.7%,and district courts of 86%, which was particularly significant, given the difficulties in these cases.

There had been a positive clearance ratio. 916 917 new cases were enrolled, and 942 792 were disposed of; the difference was the outstanding cases carried forward from the previous year, which was important in keeping the backlogs lower. There had been increases in the number of dockets referred for decision. Much time was spent on the dockets, making decisions and it was important to recognise this as an important step of the process. The target was to finalised 1 683 appeals, but this was exceeded with 2 068 finalised. The number of sentences of ten years or more had increased, by 11%, although this was not up to target. 66 788 formal bail applications were dealt with. She noted that dedicated prosecutors were not appointed just to deal with bail applications, and the bail applications affected the time available for other matters.

Plea and sentence agreements had been increased: 1 277 were successfully concluded, comprising of 7 439 counts. 34% of those resulted in direct imprisonment. In some cases, even despite the plea and sentencing, quite heavy sentences were nonetheless imposed. This represented an increase of 92.6% on the previous year. There were fewer of these in the High Court.

There had been an increase in Thuthuzela Care Centres, of which there were now 35. No witnesses were harmed or threatened whilst on the Witness Protection Programme (WPP). 152 JCPS officials were convicted of corruption with a conviction rate of 82.3%. 42 people were convicted of corruption, where the amount involved exceeded R5 million.

Ms Jiba tabled an input and output trend analysis covering the years 2008 to 2013. There were positive trends on the cases finalised (see slide 19). The court utilisation, showing cases finalised, verdicts, convictions and ADRM, was also tabled (see slide 20), and she noted that utilisation of courts and court time still posed a challenge – the hours spent in court had reduced, down to an average of 3.5 hours. If there was increase in the court utilisation time, this would increase the number of cases. However, this did not lie in the hands of the NPA alone.

For NPA, the main challenges remained as insufficient integrated operational planning with other role players to facilitate practical implementation. There was still ineffective implementation of the case flow management system; in some areas it worked but others it did not, depending on who was driving it. There was still not enough integrated training for JCPS officials. Compensation of employees posed a risk and the Aspirant Prosecutor programme was affected by budget constraints. During her report last year, Ms Jiba had mentioned the new structure, chaired by the Chief Justice (CJ). The NPA had been worried about performance indicators, particularly joint accountability for efficiency in the courts, and the new structure was now seriously looking into all-inclusive performance indicators, to improve the efficiency of the courts.

NPA regarded its greatest achievement as the clean audit, and she thanked all members, in particular the Chief Executive Officer, who had been very stern on all staff. She also wanted to mention the DPPs in various areas. A court judgment was implemented, and employees were paid approximately R55 million for the delay in implementing the outcome of a job evaluation done in 2004. This had been delayed for nine months, because of budget constraints. There were higher than forecasted costs for implementation of the Occupation Specific Dispensation (OSD), for legally-qualified personnel, which impacted also on the Compensation of Employees budget.

The NPA had achieved almost 100% spending of its budget appropriation, with savings of 12 cents! There was a significant reduction of accruals. In this year, there was a huge improvement in the reducing the number of invoices older than 30 days. The long outstanding legal dispute with Imperial Holdings was settled. 99% of staff submitted their performance agreements on time. All disclosures of financial interest by senior managers, except one who was suspended, were submitted on time.

Ms Jiba tabled the Estimates of National Expenditure targets and indicators, showing a comparison of targets and achievements for 2012 and 2013 financial years, for finalised cases using ADRM, verdict cases, conviction rates in High, Regional and District courts. She noted that the increased rates were due to dedicated prosecutors in the courts.

Ms Shope-Sithole interrupted to ask that the acronyms be explained.

Ms Jiba continued that the next slide dealt with the targets and achievements for the Asset Forfeiture Unit targets, and she noted that one of its challenges was the focus on high-value cases and the anti-corruption task team. Targets for the number of new freezing orders were not reached, largely because of lack of capacity. Many cases were not finalised because of the high challenge to cases, and the protracted litigation. The complexity of investigations meant that the cases took time. Overall, the success rate was 94.1%.

There were no witnesses harmed or threatened in the Witness Protection Programme (WPP). There had been a 0.5% walkout, voluntarily, of witnesses from the programme.

The target for the first strategic objective – to increase successful prosecution of serious crime with certain sentences - was not achieved. She said that whilst the NPA could only address the courts on sentences, the final sentence depended on the presiding officers. She noted a correction (the reversal of the figures of cases enrolled) on slide 28. Some matters in the regional courts took long to finalise due to their complexity.

Conviction rates on complex commercial crime were increased to 92.9%, which was 0.1% short of target. The NPA had narrowed the focus of the Serious Commercial Crimes Unit (SCCU) to the most complex cases. Many of the senior counsel defending the accused made it difficult to achieve convictions. Trio crimes (house, business robberies and car-jacking) had also fallen short of target, with 83.4% convictions against a target of 85%. However, the conviction rates for organised crime was at 90.7%, against the target of 85%. Conviction rates for sexual offences cases (65.8%, with increased numbers of convictions) had increased.

The NPA had not managed to decrease the appeals backlogs by the target, as there were still challenges in case flow management and multiple requests for remand by defence.

The SCCU achieved a conviction rate of 92.9% in the dedicated courts for commercial crime, but there were still non-dedicated courts where matters were being dealt with. It had finalised 917 cases in the year. The reduction of the number of cases finalised in the dedicated courts had to do with the more complex cases taking longer to be resolved. Trio crimes finalised amounted to 1 934 trio counts, and 1 527 cases, were finalised. There were challenges around unavailability of other stakeholders, and that explained the lower number of cases finalised compared to the previous year.

The numbers of racketeering cases (convicted under Prevention of Organised Crime Act) authorized were 26, of which 10 resulted in convictions. In one case, the accused were acquitted on racketeering, but were convicted on other offences. 201 organised crime cases were finalised, with a conviction rate of 90.7%, an exceptional number, given the complexity of the matters. There was an increase of 37.3% of guilty verdicts. 7 092 sexual offences matters were finalised, with a conviction rate of 65.8%, and comparisons were given for the previous years.

The next objective was to improve the collaboration with the Justice, Crime Prevention and Security Cluster partners. Overall convictions was at 89.9% but 466 800 cases were finalised. She reiterated the need to finalise cases in courts, and reiterated also that reduced court utilization was part of the problem. The number of appeals finalised was to do with the number of appeals received, but there were delays in transcription of records that led to backlogs. All unfunded prosecutorial posts were abolished. She emphasised that the posts were still needed, but that there were no funds to pay for vacancies to be filled.

Slide 40 reflected on case management. There were 897 842 new cases, of which 448 793 were finalised, and 488 564 were removed. The following slide showed how the cases were dealt with and in what venue. A breakdown was also given on transfers, warrants, mental referrals and cases struck off the roll. There were numerous reasons why cases would be withdrawn, including insufficient evidence, or failure of accused to attend court. A summary was also given of cases finalised, including alternative dispute resolution methods.

Slide 44 spoke to diversion of children in terms of the Child Justice Act (CJA). During 2012/13 2.8% more children were diverted than in the previous year, and this was broken down in a table showing the sections of the Act under which the cases were dealt with. More information had been requested from the various offices, because there might be some inconsistencies in the decreases from one year to the next.

Objective 3 of the NPA related to reducing corruption, and there was a table given of the number of persons convicted, where the amount involved more than R5 million. The matters were very complex, and the convictions had only been achieved once the definition of corruption had been changed. The number of JCPS personnel convicted was 152, which was 82.3% of target. Finalisation of these matters was often deliberately delayed by the defence. 84% of the officials were from the SAPS, the Department and the NPA (see attached presentation for the breakdown). She noted that the NPA officials convicted had been dismissed. There were 64 non-government employees convicted. The next slide showed the number of prosecutions instituted in court, the average time for conviction (14.4 months). Eight freezing orders had been placed on JCPS officials, because only a few of these matters were large enough for freezing orders to be placed.

Ms Jiba outlined the cases finalised by the Specialised Commercial Crimes Unit, which amounted to 917 in all. It had also finalised 22 appeals. It had ensured that over R35 million was returned to the victims of crime and exceeded its target by achieving a 100% conviction rate for cyber-crime prosecutions.

Objective 4 was to improve justice services for the victims of crime, and there were now 35 Thuthuzela Care Centres (TCC). The Sexual Offences and Community Affairs Unit (SOCA) was providing TCC services at 51 sites nationally. Although the target of 63.5% conviction rates had not been achieved, the majority of cases were rape matters, which were more difficulty to prosecute due to the cautionary rules that applied, and the difficulties of conflicting evidence between two witnesses. Case managers had improved the screening of cases. In the POCA matters, only R28.6 million, as against targets of R55 million, was paid out, but this was beyond the control of the NPA and depended on the nature of cases received.
Conviction rates and targets for prosecution of sexual offences were set out from slide 54. She noted that the launch of the new Sexual Offences courts should show further improvements. The actual number of convictions increased by 3.7%. The first SO court at Butterworth had resulted in a heavy sentence for the accused, who was convicted of numerous murders and rapes.

The NPA ran a Ke Bona Lesedi Court Preparation programme, to prepare state witnesses for what they could expect in court, not only in sexual offences matters. This would reduce to secondary trauma and contribute to conviction rates. The Court Preparation Officer (CPO) posts were stationed at 76 lower and 2 high courts. Their performance had improved significantly, with 91 050 sessions with witnesses. Ms Jiba also then outlined the training of prosecutors on the Child Justice, Maintenance, Domestic Violence and Trafficking Acts.

Maintenance matters totalled 158 872, both in formal and informal enquiries, of which 64.2% were finalised. 19 510 civil attachments were facilitated, an improvement on the previous year. Two maintenance training sessions were conducted, attended by 24 prosecutors. She noted that maintenance was a particularly important part of the NPA work.

Ms Jiba mentioned that very few cyber-crime matters were being referred to the NPA for prosecution and the SAPS was trying to capacitate its own investigations. The conviction rates was 97.8%, but the number of prosecutions had declined. There was a special focus placed on skills development of prosecutors.

A separate slide (see slide 60) was given on the Office for Witness Protection, noting that the protection related to evidence in a number of crimes Statistics of international witnesses required to testify at the International Crime Court were also kept.

Asset Forfeiture Unit (AFU) briefing
Mr Willie Hofmeyr, Head: Asset Forfeiture Unit, said that he wanted to take the Committee back over the last few years. The targets (shown in yellow) and the outputs (red lines) had grown very rapidly over the last 12 years, but in the last two years the achievements had taken a downward trend. This was, partially, because the operational staff in the AFU had actually declined by about 19%, and that in turn was impacted upon by the reduction in budget. Whilst some of the staff could be replaced, they were still new to the job and it would take time for them to become fully productive. The reasons why, in the past, the AFU had shown such steep increases, had resulted from combination of resources and budget and productivity gains, but it would not be possible to repeat this over the last two years.

He explained that the values on slide 61 represented combined values. The AFU had requested National Treasury to reduce some targets, in line with capacity, but it still sat with targets that were less than attainable. It had tried to focus on some of the bigger value cases, so that at least it might be able to meet value, if not number, targets. The downside was that the larger cases took time to get ready and to get to court. The work in the last year was only producing tangible results in this year.

He gave some of the details. There were 302 forfeiture and confiscation orders, with 1% below target, and much of that was due to good cooperation with the DPPs, particularly in the Magistrate’s courts in Cape Town. The restraint and preservation orders took up about 60% of the time and that was where the reduction in capacity was so apparent, with it not being possible to meet targets.

The value of completed AFU orders was R119 million, 29% below target. In the current year, AFU was already at about 40% of target. The same applied to new freezing orders, where it had obtained freezing order to the value of R518 million, 14% below target, although in the current year it was looking at cases over R1 billion. Many of the freezing orders were related to corruption cases, with 68% being freezing orders. The overall success rate was that AFU won 289 out of 307 cases.

Work on the corruption cases was more successful and there was close work with Hawks and the NPA. Last year, assets of 23 persons were frozen, and in this year the AFU was confident that it should manage to reach targets. Over the last three years, there was R1 billion frozen in respect of large corruption cases.

Mr Hofmeyr repeated that in relation to the JCPS corruption cases, AFU had dealt with eight matters, below the ten targets, but that was because there were only eight cases where it was freezing orders were warranted. Payment to victims of crime targets fluctuated, according to the cases that came. On the values, he was fairly confident that targets would be met, but numbers of cases might be a challenge.

Mr Hofmeyr noted that AFU was one of the few state institutions that brought in cash for government. It was not expected to operate at profit, but had broken even. Over the last six years, it had achieved payments of about R90 million a year to victims or to the Criminal Asset Recovery Account (CARA). In the current year, the achievements had been good, and there was a steady stream of recovery from corruption cases.

Resourcing in the NPA
Ms Karen van Rensburg, Chief Executive Officer, NPA, noted that on the first slide, there were some changes in respect of the comparative figures for the previous year. In 2011/12 there were 5 012 personnel, and at the end of 2012/13 there were 4 429. The NPA relied heavily on Justice College to provide training and 4 300 people were trained, with the main focus on ensuring that prosecutors received the right training. NPA was active in encouraging its staff to study, and particularly to ensure that all prosecutors had their LLB, not only the B Juris. There were also Masters and Doctoral studies undertaken by a number of members. In the last financial year there were no interns, but in the current year there would be about 100.

Ms van Rensburg also detailed the Aspirant Prosecutor Programme, noting that there had been additional funding made available, from savings, and by February it was hoping to have a further intake of 50 people to increase the staff establishment in the most effective way.

In relation to disciplinary matters, she reported that there were 78 hearings, of which 56 were concluded. 14 employees were suspended, one was given a precautionary transfer. There were 5.3% staff grievances, the bulk of which related to the process of individual performance management. 184 were resolved and 80 were pending. There was a high success rate with external disputes, with an 88% success rate. There were eight dismissals, of which six were linked to corruption offences, soliciting bribes, and all were prosecuted. She also tabled a slide showing the occupational levels of those accused of misconduct. There were three cases of poor performance. Dishonesty, corruption and bribery, at 23% of cases, was still a concern, but this figure was actually quite small, given the number of staff. The managers had taken to heart the call by the JCPS cluster to eradicate corruption.

The audit findings history was given. She stressed that it had taken three years of concerted effort to reach this goal. The environment was complex. This was not a finding that reflected only on corporate services, but also the leadership under Adv Jiba, when she was acting.

Mr Gordon Hollamby, Chief Financial Officer, NPA, took the Committee through the slides on the budget for 2012/13, He noted that savings were forced on goods and services to ensure that all officials were paid at the end of the financial year. He explained some of the budget allocations, and said that the focus was on core business, of national prosecuting services and he reiterated that the baseline had suffered some severe cuts but was now growing from the new baseline.

He noted that National Treasury had been requested for R897 million over the MTEF, and he set out a table showing in what capacity the additional personnel were required. Feedback from National Treasury was that a possible R27 million may be given (not guaranteed). The consequence would be that the NAP would not be able to create any new posts, and as posts became vacant, they became unfunded. A reprioritisation would be needed. The NPA had reached the limit of reprioritising goods and services to compensation, as this would mean that employees would not be able to be provided with the resources to do the work.

Discussion
Ms M Smuts (DA) noted that the judgment by Judge Murphy had set aside the withdrawal of charges for fraud and corruption against Richard Mdluli, and it was therefore the duty of the NPA to reinstitute the prosecutions. She asked what would be contemplated, if the NPA decided not to do so. Judge Murphy had given a very straightforward guidance and she respectfully suggested that the NPA should act upon that judgment, which appeared impregnable.

Ms Smuts added that Judge Murphy had also made various findings that related to the NPA offices. She appreciated Mr Nxasana’s statement earlier to abide by his oath to take decisions without fear or favour. However, the Acting NDPP and DPP had not demonstrated exemplary promotion to the independence of their offices, or capacity to pursue prosecutions without fear or favour. Judge Murphy had commented on the Acting NDPP, who had evinced an attitude of approval for a course of action. During the disciplinary enquiry of Adv Breytenbach, it was noted that the DPP for North Gauteng did not approve of withdrawal of a matter. Certain testimony was rejected by Judge Murphy as “uncreditworthy”. This was a polite word, but it was of huge concern when senior officials ended up with such findings against them. Whilst she suspected that Mr Nxasana would said that he was not ready to give an answer on the Judge Murphy judgment, she wanted to know what would be done in respect of the officers, specifically the DPP for North Gauteng. She was not sure how the matter should be handled. The Mail and Guardian had alleged that the same person was behind the withdrawal of charges in KwaZulu Natal. This indicated a problem at the NPA.

The South African public deserved to have faith in its prosecutors. The last time this was discussed, in April 2012, there was a direct question asked if anyone had tried politically to interfere with the NPA, and in response, Adv Jiba told the Committee that no instructions of a political nature had been given. It seemed, however, that there was interference from intelligence quarters – so it may be a problem of bureaucracy rather than political interference. It was a huge problem if the intelligence services thought that they were outside of the requirements.

Mr S Swart (ACDP) said that there was quite a clear directive from the Court, but wondered if there would be an appeal lodged. He agreed with Ms Smuts that the Court’s findings were worrying. The matter was now in the public domain and he would like to hear the response, particularly on the management issues. Any interference from the intelligence sector would be of major concern. He said that, if necessary, the NPA should come back to Parliament and ask for assistance, as it needed to establish legitimacy in the eyes of the public.

Dr M Motshekga (ANC) noted that there were many capable officials and he had no doubt that the NPA would be able to achieve its task. He was concerned that there may be a major problem with “us” because over time there had been some mistrust in institutions of Government, and there was suspicion of political interference. He feared that people may be pre-judged before they started doing their work. The NDPP had said clearly that he wanted to apply his mind to the matters. MPs in this Committee were asking him to say what NPA was intending to do. Members should recognise that there was room for appeal and should be asking, at this stage, how the NDPP was intending to implement the judgment. He would have thought that “acting without fear, favour or prejudice” should also include “without political pressure” and therefore pleaded that this Committee should not put pressure and set timeframes for the NPA. He hoped that the Committee would assist the leadership of the NPA to move forward.

Mr Nxasana took note of what all Members had said about the judgment and criticisms by Judge Murphy against senior members of the NPA. However, it was also necessary to take cognisance of the fact that there were certain procedures still to be followed. Today, an appeal had been filed, and therefore it would be pre-emptive were he to attempt to deal with the matters now. This appeal process had actually started before he took office, but the filing had been done today, after Counsel had been consulted and had prepared the papers for leave to appeal. The legal process would have to take its course. Judge Murphy’s decision would be kept in abeyance until confirmed by a higher court.

Mr Swart raised a question of clarity, whether Mr Nxasana had participated in that decision to lodge the appeal, or whether that decision had been taken by the time he arrived.

Dr Motshekga wanted to raise an objection, but the Chairperson thought that Mr Nxasana should respond.

Mr Nxasana said that the engagements were already done prior to his joining the NPA, but he had participated in the final decision for the filing of the appeal. After the judgment was handed down, further engagements and opinions had led to the decision to lodge an appeal.

Dr Motshekga wanted to place on record his points around whether the NDPP had participated in the decisions. One issue raised was that when the regional DPP took a decision he had not consulted the NDPP, which suggested that the provincial official should not act without general consultation. A question whether one person participated in a decision of this nature may be contrary to the way in which the NPA acted as a body. Perhaps that was a matter that needed further debate by the Committee.

The Chairperson said that this was not so, and he wanted the team to respond to all questions and comments. The debate that Dr Motshekga was suggesting could be done at some other time.

Ms C Pilane-Majake (ANC) also conveyed her welcome and support to the new NDPP. She urged that the NDPP should not feel under pressure; the questions were crucial and sufficient time had to be given for him to apply his mind.

Ms L Adams (COPE) welcomed the new NDPP. Without putting any pressure on him, she wondered what a reasonable time might be for the NPA to comment on the Judge Murphy judgment. She also wondered what Mr Nxasana saw as the critical challenges of the NPA.

Mr Nxasana said that the “reasonable time” would be informed by the nature of the cases in question. High-profile matters would probably require more time than those less publicised. He noted that it possibly could not be measured in specific days or months. He believed that the critical challenge was to improve the credibility and integrity of the NPA.

Mr Swart wanted to raise some general issues. He congratulated the NPA on the clean audit, and Ms Jiba for her management in the interim. The Committee appreciated the severe financial constraints under which NPA was operating and the Committee would need to consider how it could assist the NPA to get extra funding. He was horrified to hear that only R27 million may be granted over a three year period. The levels of crime in society were well-known. He wondered if it was correct for Parliament to ask for details on an entity’s performance, when it was Parliament itself that was party to the entity getting insufficient funding. Without funding, the NPA could not be expected to keep increasing its performance, and that was a matter that he felt the Committee should be raising in its Committee report, an also suggested that the Committee should approach the Appropriations and Finance Committees.

Mr Swart said that the Committee had expressed concern, previously, about the ADRM. Slide 20 noted that in the last four years, the verdict cases had decreased, but ADR cases increased substantially. He appreciated the number of Child Justice Act cases, which used more formal diversion. He asked how that informal process of ADR worked. He wondered if informal mediation processes would not pose a risk of corruption, and if there were sufficient checks and balances around informal mediation.

Dr Motshekga was not sure if the ADRM were supposed to give effect to what was referred to in the Constitution as “other forums”. If so, he wondered whether sufficient attention was paid to the fact that South Africa was an African country, on the Southern tip of the Continent. Some of the ADR mechanisms were imported from other countries. Judge Hlophe had spoken to “Africanisation” of the law, and the President of “indigenisation” of law. He thought that there was a need to look at how local traditions and cultures could contribute to developing these systems.

Dr Sibongile Mzinyathi, DPP, Pretoria, answered that there had been directives on ADRM issued in September 2012.

Mr Swart noted that the Committee was looking at dedicated courts for Sexual Offences (SO) and was aware that the work in the ordinary courts was continuing. He noted that two prosecutors would be needed for each court, and asked what the impact on the SO courts would be if there were not sufficient and dedicated prosecutors. This area in particular required experienced and dedicated prosecutors.

Dr Silas Ramaite, Deputy National Director of Public Prosecutions, NPA, pointed out that SOCA had actually requested an additional R38 million, which was a small portion of the full amount requested. If the NPA was not able to obtain the full amount it had requested for the dedicated SO courts, it would not be able to fulfill the commitment to two prosecutors per court, and that would obviously impact on its desire to improve the prosecution rate. The Department of Justice was committed to bringing back the dedicated courts. He agreed fully with Mr Swart that if the NPA was limited to the current resources it would not be able to show substantial improvements in performance.

Mr Swart noted the comment that fewer corruption cases were finalised because of their complexity, but pointed out that it was unlikely that the cases were becoming any more complex than in the past. The national budget was increasing, and the extent of corruption was also increasing, but he had the impression that prosecution of these cases was not showing corresponding increases. He also wanted further explanations on the reason for fewer cybercrimes reaching the NPA and courts.

Dr Ramaite noted that one of the JCPS Cluster delivery agreement was a target of prosecuting 50 corruption matters per year. The NPA had prosecuted 42 cases, but was trying to reach the targets in the following year. The focus on these cases was much sharper now than it had been in the past, and there was more concerted effort on the parts of the regional offices to reach the targets. Complexity was one of the reasons, but not the only, factor limiting the prosecution of cases.

He noted that the answer for fewer cybercrimes reaching the courts was contained in slide 58, which noted that the NPA had only started to focus on these cases in 2011/12. The experience in the NPA was that, initially, there were not experienced prosecutors, and there was still a problem in the limited numbers of IT forensic specialists. Prosecution of cyber-crime posed problems in other international jurisdictions, because of the difficulty in finding relevant admissible evidence. The NPA was trying to focus on joint training between prosecutors and forensic investigators. However, it faced the problem that those with skills would be poached immediately by the private sector.

Mr Swart noted that given the background of corruption, it was alarming that the AFU was not able to reach its targets and fully realise its potential. In order to fight corruption, it was necessary to ensure that both the AFU and NPA had sufficient capacity. Mr Swart felt very strongly on this point, and reiterated that the Committee needed to find a way to support the NPA’s request for more funding.

Mr Swart noted that he had tried to gauge whether there was real improvement in the fight against crime, but it was difficult to make comparisons without the police statistics also being made available at the same time. It did not seem, comparing 2008/9 to the present, that there was a substantial increase in the number of verdict cases, or cases taken to trial. He asked why this was so, given that crime statistics had increased

Mr Nxasana noted that South African Police Service (SAPS) had attempted to present its statistics to the relevant portfolio committee, but was sent away to correct those figures. If the NPA attempted to present statistics for comparison, it would have to make sure that it verified them in advance, lest they be found wanting, and he was not sure that NPA had the capacity to do this at the moment. However, he noted that the JCPS Cluster was addressing that matter; he had attended one meeting and better cross-departmental relationships were being encouraged, and it was hoped that the statistics would become more reliable.

Ms Pilane-Majake added that she would have liked to have seen statistics on the types of prosecutions, and how these cases impacted on the crime rate. The same applied to the number of child offenders; slide 44 should have shown how many were diverted, and how this compared to the total number of offenders. She would also have liked to see more details on the Thuthuzela Care Centres.

Ms Pilane-Majake thought it was useful to hear how much money was being obtained through asset forfeiture. However, she was not sure that the targets were worded correctly; the figures gave the impression that the AFU was focused on raising revenue, rather than addressing corruption, and she wanted to hear the AFU comment on how its performance indicators were framed.

Mr Hofmeyr assured the Committee that the main focus of the AFU was not on raising money, but it must be remembered that the financial motivation for most of these cases was very important, and if that financial benefit was not addressed, corruption overall would grow, not reduce. This was not the only answer, but it was part of a much larger “package” of measures adopted by government.

The Chairperson commented that it was extremely satisfying for him, and probably for many other members of the public, to hear that money had been confiscated from crime lords.

Ms Pilane-Majake accepted that, but clarified that her question related to whether the indicators were correctly framed. Whilst it was clear that there was a need to fight crime, she was not sure whether the taking of casualties along the way should form part of the indicators, and they did not show how exactly AFU was attempting to achieve a clean society.


Ms Adams asked Ms Jiba about the News 24 report that she had apparently stopped an investigation into the DPP in KwaZulu Natal.

Ms Jiba said that she was pleased to be able to clarify what had happened. There had been numerous and long-outstanding complaints by prosecutors in KwaZulu Natal (KZN), dating back to the time when Advocate Pikoli was in his position. When she took up the Acting position she was not informed of any specific complaints by prosecutors. Some of the complaints related to performance bonuses and rewards, and there were many other internal issues. She had dealt with a matter relating to the hiring of outside services, but, unbeknownst to her at the time, there were other complaints around maladministration. Complaints that affected management were now being correlated and supported with documentation and minutes and notes, to explain how the internal issues were being dealt with.

Ms Adams asked if Ms van Rensburg knew whether the investigation that she was aware of was still continuing.

Ms Jiba and Ms van Rensburg indicated that it was still continuing.

Ms Adams asked Dr Ramaite about a recent report into an investigation into Dr Neil Aggett’s case. The TRC report had been out for many years, but government had not given an indication whether it intended to pursue any of these cases. The NPA had stated a year ago that it must still take a decision whether to prosecute, and she wondered why the report was apparently not settled yet and whether there would be any prosecutions.

Dr Ramaite noted that these matters were handled by the Priority Crimes Unit, where a number of murder dockets were opened, but then closed for lack of sufficient evidence. In order to complete the process, it was necessary to look at the TRC report. The Aggett matter was one of those already closed, but after the decision to close the matter, more information was provided. The question was whether that was capable of being turned into tangible evidence, so the matter was still pending. The same was true of a number of other cases. The NPA had decided to give itself at least a year to make a decision. When the new information came forward, in most cases, it was handed to the SAPS to pursue further.

Ms Adams said that environmental issues received much media coverage, yet there were only three rhino poaching cases prosecuted. She asked if the NPA regarded rhino poaching as serious, what its plans were and why no statistics were presented.

Adv Jiba answered that the NPA did have a focus on environmental crimes, and that specific prosecutors were assigned to those cases. Although numbers were not shown in the presentation, she would make these available.

Ms Adams wondered if there were strategies in relation to matters where SAPS may be implicated, such as the killing of a 17-year old girl recently during a service delivery protest. Clearly it would not be correct to rely upon SAPS to investigate itself.

The Chairperson noted that Mr S Holomisa (ANC) was unable to attend this session, but had asked him to raise an issue that bothered him, namely, whether postponements were not, firstly, being granted too easily by the courts, and whether those postponement requests were made in an attempt to secure more court hours for the defence attorneys. He asked what steps were envisaged by the NPA to address the issues. The Chairperson himself wanted to take this further and ask about the role of the presiding officer, and he had the sense that presiding officers maybe were too willing to grant postponements for fear of their judgments being taken on appeal.

Mr Nxasana said that his own experience in courts had been that there was no hard and fast rule. The prosecution would do its best to have the matter enrolled for trial. However, as Adv Jiba had noted, prosecutors were not the only role-player in the system, and the court would have to balance the interests of the state, the accused and consider what was in the interests of justice. Prosecutors in fact had little power in relation to postponements, which were granted by the presiding officers. He would not attempt to answer whether the granting of the postponement was an attempt to push up the fees of the attorneys. At the end of the day, however, the presiding officer must make a decision in the interests of justice.

The Chairperson, following on the point that the NPA was not the only role-player in the system, asked for a frank indication whether the quality of the case dockets and investigations received was up to scratch, allowing the prosecutors to take matters further.

Mr Nxasana said that his experience from practice was that this had been a problem; sometimes the case dockets would be allocated for trial before the matter was ready for court, and this was particularly so if the case was referred from district to regional court.

Ms Smuts noted that only recently had the case statistics broken down, and she wondered if it was possible to indicate how many of the cases were diversions and how many were informal mediations.

Ms van Rensburg said that it was clarified in the slides already.

Ms Smuts said that the public had the impression that there was much crime, but also good conviction rates, but somehow the figures did not seem to correlate. Slide 40, dealing with case management, showed new cases for 2012/13, but after some were removed and some finalised, only about one-third of the 900 000 new cases were finalised with a verdict. She recognised the difficulty with the statistics in that the NPA was not just dealing with “new cases”, but also backlogs. She felt that it was vital to give this kind of reporting to the public.

Ms Smuts said that she was frequently questioned on the progress of amending legislation to give the NPA greater independence. She wanted to know if it had been sent back to the Ministry, and wondered why a bill of such importance was languishing for so long at the NPA.

Ms Jiba said that the Bill had been returned to the Minister in around November 2012, and it had come back with a number of comments. It was felt that the permanent NDPP should take the decisions on this, and this was one of the matters that Mr Nxasana would be addressing.

Ms Smuts and the Chairperson noted that he would have several matters to deal with, but agreed on the urgency of the matter.

Mr Rodney de Kock, DPP, Western Cape, wanted to speak to the concerns that the Chairperson had raised around the release of information to the BBC. This was a matter that was being investigated. It must be noted, however, that the docket referred to had been provided to three sets of legal representatives, and the evidence contained in it had already been provided during a trial in South Africa, so it was something that had already been before the court and was in the public domain. The NPA was looking into whether there would be criminal cases to pursue.

Mr Nxasana thanked the Committee for the comments and questions, and particularly welcomed the expression of willingness by the Committee to support the NPA. Any criticisms were accepted as constructive suggestions to help the NPA improve its integrity.

The Chairperson, in closing, wished Mr Nxasana well, but quipped that he could not guarantee that future engagements would always be so pleasant. He was pleased to have the support of mature and responsible MPs on his Committee, who took very few opportunities for political posturing. The Committee would give both support and criticisms, when it felt it necessary.

The meeting was adjourned.