The National Prosecuting Authority presented a synopsis of its Annual Report, covering the performance against indicators based on its strategic objectives for the Specialised Prosecutions Service, Asset Forfeiture Unit, Office for Witness Protection and Support Services. The NPA generally met its targets, with the Asset Forfeiture Unit having its best ever performance in several areas. However, the performance in key areas including the numbers of finalised prosecutions for sexual offences and corruption exceeding R5 million were not good enough.
The discussion saw Members being generally concerned about the performance of the National Prosecuting Authority in the fight against crime and corruption. A specific example which applies more broadly is the low numbers of sexual offences prosecuted, as compared to the statistics provided by the South African Police Service which are significantly higher. Members also raised concerns about the low number of JCPS officials prosecuted for corruption, with the same applying to instances of corruption involving in excess of R5 million.
Members of the ANC were concerned about the accuracy of the perception of widespread corruption in the public service, which they felt was not borne out by the statistics provided by the National Prosecuting Authority. They argued that this assumption, without the proper facts, would not help to serve the country and would only give rise to a poor international perception of South Africa and potentially create space for further corrupt activities.
The opposition wanted the NPA to explain several instances which they felt affected the public’s trust in the institution. Specifically, the allegations that Adv Mxolisi Nxasana had been given an offer by the President to vacate his office as National Director of Public Prosecutions and the perceived strained relationship between him and the President. They were also concerned about the handling of high profile matters such as Oscar Pistorius and ‘Jub Jub’ case.
The Special Investigating Unit presented a synopsis of its Annual Report covering its key investigations; the status of human resources, the Unit’s financial status and its operational challenges. The indications were that the Unit was concluding or making progress in several important investigations including the ‘Prestige Nkandla’ investigation and Universal Service and Access Agency of South Africa matter. The Unit indicated that it was pursuing, with difficulty, the acquisition of experienced lawyers to lead investigations. The only major concern in SIU finances was the R14 million irregular expenditure noted by the Auditor General, which it explained was an irregularity carried forward from previous years. The operational challenges centred around the collection of monies owed to it by various government departments for services rendered, which they claimed had not been budgeted for and therefore could not be paid.
The discussion saw Adv Soni emphasising that irregular expenditure was a procedural problem and did not necessarily indicate malfeasance or corruption, in response to concerns from the opposition. The opposition asked on the Prestige Nkandla matter, why the SIU had chosen to focus on Makhanya, rather than pursue a claim based on the law of unjustified enrichment against the property owner. The SIU’s reaction was to quote its report on the matter, which in sum indicated that the pursuit of disparate smaller claims based on unjustified enrichment would be more complex and potentially less fruitful as “they would only be liable to the extent to which they continued to be enriched”.
The Chairperson commented that a document had been presented to Members, authored by “concerned groups”, which has no status in the meeting. Further, that as the Committee does not deal with things without authors, he asked the Members to return the document to the Committee Secretary.
Mr S Swart (ACDP) said that the letter is addressed to the Chairperson and, having read it, he sees that it deals with very serious issues. Albeit the matters are not for the present meeting, but Members need to prepare themselves for the afternoon session and the issues ought to be deliberated upon. Therefore, he felt that there was no need to return the document, which was also addressed to the Committee.
The Chairperson replied that he had only had sight of the document now and had not authorised its distribution. Parliament encourages transparency and any member of the public may raise any issue. However, if people do not disclose their identities, yet make allegations, how would the impugned individuals defend themselves. He therefore suggested dealing with it in future, but presently focusing on the agenda.
National Prosecuting Authority Annual Report (NPA) 2013/14 & April to September 2014 performance
Adv Mxolisi Nxasana, National Director of Public Prosecutions, said changes have been made to the presentation and said the new documents have been circulated. The changes result in both the Annual Report and performance up until August being dealt with simultaneously.
Adv Nxasana said the National Prosecuting Authority’s (NPA) mandate is derived from section 179 of the Constitution and provisions of the National Prosecuting Authority Act, particularly section 20(1). Various other Acts contribute to the NPA’s work including the Criminal Procedure Act, Prevention of Organised Crime Act and Child Justice Act. The Policy mandate derives from outputs from the JCPS Delivery Agreement and chapters 12 and 14 of the National Development Plan. The NPA consists of five sub-programmes: National Prosecutions Service (NPS), Specialised Prosecutions Service (SPS), Asset Forfeiture Unit (AFU), Office for Witness Protection (OWP) and Support Services. Four strategic objectives guide the NPA:
- Improved successful prosecution;
- Improved successful prosecution of cases that require specialised prosecution;
- Ensuring that profit is removed from crime; and
- Ensure threatened witnesses are successfully protected.
He moved on to an overview of the NPA’s performance saying that the NPA had achieved 68% of its targets for 2013/14, while 11% were marginally below target and 21% not achieved. Aside from noting that there was a significant overall improvement in courts, he said that 71.4% of the NPA’s performance indicators had seen improvement and 92.3% of its Estimates of National Expenditure indicators improved. The NPA also achieved a positive case clearance ratio, with 931 799 new cases enrolled and 962 632 cases finalised. The NPA reduced the number of cases withdrawn from the court roll and concluded 1 323 plea and sentence agreements, with 54% of the agreements resulting in direct imprisonment. Challenges include case flow management remaining problematic and impacting negatively on court performance; fewer trial cases being placed on court rolls with inadequate numbers of back-up cases; postponement of cases due to unavailability of magistrates and legal aid practitioners; and ineffective implementation of screening protocols in some regions. Adv Nxasana noted that the NPA spent 100% of its budget during the year under review, received a second clean audit and submitted all budget planning documentation within the prescribed times. The NPA has extended its awareness campaign to include a television broadcast called ‘NPA for my Justice’ and recruited 67 aspirant prosecutors for the financial year.
Dr Silas Ramaite, Deputy National Director of Public Prosecutions, dealt with the performance under Strategic objective 1: Increased successful prosecution which is the responsibility of the National Prosecuting Service (NPS). The main performance indicator for the NPS is the number of criminal court cases finalised, including through alternative dispute resolution mechanisms (ADRM). This target was met with 505 342 cases being finalised, 2.4% above the target. This was a 38% increase from the previous financial year. However, the target for the number of court cases finalised with a verdict was not achieved, by 8.3%, although this was a 1.3% real improvement from the previous financial year. The reason cited was the reduced number of criminal court days, combined with the unavailability of magistrates and to a lesser degree Legal Aid South Africa representatives. The number of cases finalised through ADRM surpassed the target by 23.8%, due to more cases being identified for diversion away from the formal criminal justice system. There was however a 3.8% decrease in the number of diversions under the Child Justice Act.
The targets for the conviction rates at district, regional and high court levels were all met. Improved screening processes at all court levels resulted in fewer cases being withdrawn. Under the specific crimes, including sexual offences and trio crimes, targets were generally met aside from poor performance in the numbers of JCPS officials convicted of corruption which was 37.2% under target. The reason cited was that the NPS has to wait for a referral from the South African Police Service (SAPS), before it can take action. The NPS performed well in achieving convictions for cybercrimes which exceeded its target by 11.1%. The NPS exceeded its target for the value of compensation orders obtained by 108.1%, with a monetary value of R73.2 million through 1 061 orders. The Ka Bona Lesedi Court Preparation programme continued to prepare witnesses for court in all crimes and thereby reduced secondary traumatisation and improved conviction rates. The performance improved with 96 436 witnesses assisted in 2013/14, compared to 91 255 in 2012/13 and 4 715 more instances of assistance were given relating to sexual offences.
Dr Ramaite said that the NPS performance for April to August 2014 is generally good thus far. The only instance of poor performance is the conviction rate for trio crimes which is 4.7% under target to date. This has been due to cases not being finalised, as evidence was not accepted by the court.
Specialised Prosecution Services:
Adv Nomvula Mokhatla, Deputy National Director of Public Prosecutions: National Prosecuting Authority, dealt with Strategic objective 2: Improved successful prosecution of cases which require specialised prosecution. The Specialised Prosecution Unit (SPU) comprises the Specialised Commercial Crimes Unit (SCCU), Priority Crimes Litigation Unit (PCLU) and Sexual Offences and Community Affairs Division (SOCA).
Adv Mokhatla said the conviction rate in complex commercial crimes was 95.8% in dedicated courts, but had a -0.1% deviation from the target in all courts at 93.9%. There had been poor performance on the number of fully operational Thuthuzela Care Centres (TCCs), being five under target which translates to 11.9%. There are however 51 centres in total, but only the fully operational centres were counted. The conviction rate at TCC was 1.9% above target at 65.9%, a 4.9% improvement from the previous financial year. The number of persons convicted of corruption was 63.3% below target, with only 21 individuals convicted which was half of the previous year’s number. The reason given for this underperformance was that these “cases are complex and take a long time to investigate”. However, Adv Mokhatla said that the NPA was working on a system to implement a 12 month turnaround time for these cases and that a workshop had been planned.
On the performance overview of SOCA, she said that 158 prosecutors were trained in sexual offences, 50 in maintenance matters, 185 in child justice, 54 in domestic violence, 193 on trafficking persons and 564 stakeholders received integrated training at TCCs. There were a total of 194 608 formal and informal maintenance enquires of which 128 410 (65.9%) were finalised – a 25.9% improvement from the previous year, also the best performance in the past five years.
She then dealt with the Priority Crimes Litigation Unit (PCL), saying that this is where the SPU handles terrorism cases. In these cases, terms of five, eight and 12 years were imposed, while one person became a state patient. In an arms smuggling case, a person received a five year term. The Missing Persons Task Team works off of the recommendations which came out of the Truth and Reconciliation Commission and 23 cases were finalised. In TRC cases the correct remains are exhumed and handed over to the families.
Adv Mokhatla said that the Office for Witness Protection had maintained the record of the past 14 years where no witnesses were harmed or killed. The Office saw 160 witnesses and 163 related persons come onto the programme in 2013/14, bringing the total to 661 persons managed on the programme. The Office failed to meet its 1.3% target for ‘walk offs without notification from the programme’ which were 12 (3.7%).
Moving to performance this year from April to 16 August, the SPU has surpassed the target for convictions for complex commercial crimes by 0.9% with 446 convictions. There has still been underperformance in operational TCCs. The SPU has managed to increase the number of convictions for corruption involving over R5m, which is now 15.8% above the target and the number of JCPS officials convicted is 22% above target. The number of convictions for cybercrimes is below target by 1.2%, due to vacancies, a lack of dedicated courts and fewer investigations being completed.
Asset Forfeiture Unit (AFU):
Mr Willie Hofmeyr, Deputy National Director of Public Prosecutions, dealt with Strategic objective four: Ensure that the profit is removed from crime. The Asset Forfeiture Unit (AFU) had a good performance across the board by meeting 6 of the 8 targets and performing 24.2% better than the previous best year which was 2010/11. This was due to better engagement with stakeholders, such as the Hawks, Anti-Corruption Task Team (ACTT) and Special Investigating Unit (SIU); as well as increased capacity. For the number of completed forfeiture cases, where the target was exceeded by 25% at 390 cases, a performance that was 21.1% higher than the previous best ever. While, the target for the value of freezing orders was missed by 1.2% at a value of R701.5 million, this was a 35.4% improvement on the previous year’s performance. The other target which was not met was the number of competed forfeiture cases for JCPS prosecutions for corrupt activities, where five, rather than 11, cases were completed. The AFU achieved its best ever performances on the targets for the value of completed forfeiture cases and the number of freezing orders, which exceeded their targets by 74.4% (R296.4 million) and 29.2% (363 orders) respectively. Another best performance was achieved for its target for the value of freezing orders relating to corruption involving an amount of more than R5 million, by obtaining freezing orders to the value of R451.6 million. He noted that the AFU had made its largest ever deposit into the Criminal Asset Recovery Account, with R98.5 million deposit.
On the performance to date in 2014/15, Mr Hofmeyr said that the targets for the value of freezing orders has been greatly exceeded due to a case relating to Gauteng Health; with the general target being exceeded by more than 700% and the value of freezing orders in cases of corruption where the amount involved is greater than R5 million, was exceeded by 1301%. The targets for the value of completed forfeiture cases and completed forfeiture cases involving JCPS officials have not been met, being R18 million and 3 cases below the respective targets. Mr Hofmeyr noted that the AFU have asked for a new indicator rather than the focus on JCPS officials in the current year. The other target which has not been met is the value of payments to victims through orders under the Prevention of Organised Crime Act (POCA), which is 25.3% under target. He added, that the AFU is confident of meeting its targets in the second half of the year, although the last year’s performance is unlikely to be repeated.
Adv Karen van Rensburg, NPA Chief Executive Officer, said the Annual Report has information on resourcing of the organisation and the human resources oversight report gives comprehensive information on employment equity, recruitment and performance rewards. The presentation contains a synopsis of this information. She moved on to a snapshot of the establishment over the past five financial years. The vacancy rate has greatly increased from the previous financial year, but this is due to the increased numbers of posts. Further, the past practice was to not reflect unfunded posts in the statistics, but now these are funded and therefore reflected. Two important posts have been filled in senior management: a National Director of Public Prosecutions (NDPP) and a Director of Public Prosecutions (DPP) for Kwa-Zulu Natal. There have been a large number of applications for retirement, which one is eligible for after the age of 55 and mainly white males have begun to retire, allowing space for improvements in employment equity at the top of the structure. The DPPs for North and South Gauteng offices remain vacant, due to the need to finalise the establishment for the Mpumalanga and Polokwane offices. There is a recruitment process underway which is seeing results.
On skills development, she said that as the NPA is a legal organisation the bulk of its skills development programmes, beneficiaries and costs are for legal personnel and the second focus is support and management which is to foster the provision of quality services. The same trend is seen in the bursaries given to staff. The reason for an arts and culture bursary being granted is to enable a court preparation officer to study a bachelor of arts in criminology. The number of bursaries for law is not as high as one would expect, however this is because previously there had been a drive to ensure staff have an LLB, rather than a B Proc or B Juris and most staff have done so. The internship intake has not been as high as the NPA would have been liked, however 67 aspirant prosecutors have been taken on in the year under review. Another intake of interns is planned, which will focus on aspirant prosecutors, as well as support services.
On employee relations Adv van Rensburg said that generally the amount of disciplinary action taken against employees has reduced. There were 166 instances of grievances, 104 misconduct cases, and 15 external disputes in court of with a success rate of 92%, in the year under review. The most prevalent type of misconduct was dishonesty, corruption, bribery, fraud and abuse of position, with 19 instances, comprising 18.3% of the total.
She said that for the past two years the NPA had received a clean audit, however this does not mean that there were not areas of emphasis. The NPA does have an audit action plan to deal with the issues picked up by the internal audit committee and the progress is reported to an external audit committee located within the Department of Justice and Constitutional Development (DoJCD).
Finance and Procurement:
Ms Hanika Van Zyl, NPA Acting Chief Director: Finance and Procurement, said the NPA spent 100% of its allocation and the largest area of expenditure is compensation of employees consuming 80% of the budget. The NPA is the second largest programme in the DoJCD budget. The budget growth over the MTEF period for the DoJCD is 5.68% and for the NPA it is 4.8%. The NPA views this as sufficient for achieving its strategic objectives. Turning to budget allocation per sub-programme, the largest portion goes to NPS and the second largest is support services, which has fixed budgetary items including ICT services, the security fleet and accommodation.
Ms van Zyl moved on to 2014/15 performance up to August 2014. Although current expenditure, at 37.93%, is indicative of an underspend, large procurement projects are under way and the planned resourcing of prosecutors in lower courts will cause the budget to be spent. An area of concern is production of annual financial statements, which is difficult to consolidate with those of the DoJCD. The NPA has therefore applied for approval to report separately. This has not yet been granted and if it is not, then the audit findings will be affected.
Mr Swart noted the several areas of improvement and the manner in which the NPA has handled the Oscar Pistorius matter, particularly the way in which the prosecution was portrayed in the public domain. He asked when the NPA would know whether it would appeal the judgement in that case, although the sentencing would be completed shortly. On case withdrawals, he was trying to understand the numbers against the statistics provided for ADRM and diversions and asked for more detail on this. Sexual offences was a topic which visiting institutions and the Committee continued to highlight and which the Committee was concerned about. Noting that the SAPS statistics indicate that 46 253 rapes occurred in 2013 and according to the NPA presentation 8174 sexual offences cases were finalised, which includes all other sexual offences. Considering the South African Medical Research Council’s assertion that only one in nine incidents of rape are reported, the picture is grim. He therefore asked for comment on how to improve the reporting of cases and the number of prosecutions, although the conviction rate is good. Under the NPS performance. he asked the NPA to unpack the total number of prosecutions. Particularly as the reason cited for the reduction of 6.3% was the reduction in court days, leading him to ask why and how the use of court days could be improved. He noted the 23.8% improvement in the number of cases identified for ADRM and diversion out of the formal criminal justice system. He wanted to know whether this was all diversions or if it included plea bargains and further what monitoring is done in diversion cases. He commended the improvements in maintenance prosecutions, which has been problematic in the past and affects a vulnerable group. He said the same of the AFU, but wanted to know whether it was still suffering from the legal and financial investigative capacity which had limited its performance for the past two years. He had strongly argued for the increase in capacity for such institutions, because the results would be repay the output costs, however he understood the limitations of the fiscus. The NPA had made the Committee aware that convictions of JCPS officials was a problematic area. Although he accepted that the NPA was dependant on other departments for referrals, but if only SAPS 48 officials were referred, when SAPS numbers were around 150 000, there an absence of convictions of Correctional Services officials and only two officials from the South African National Defence Force, while it is know that there are issues of irregular expenditure and corruption. Therefore, there was a concern about the very low numbers and this was mirrored in the numbers of corruption convictions by the NPS (54) and SIU (19). Lastly, he asked the NPA whether it was happy with progress towards finalisation of the National Prosecuting Authority Amendment Bill which had been referred back by the Minister and how the Committee could assist.
The Chairperson asked for Mr Swart to clarify his question about the appeal in the Oscar Pistorius case.
Mr Swart explained that he had been unaware that the sentence had been given and was asking whether the NPA will appeal either the judgement and/or sentence; but he left it up to the Chairperson to determine whether it was appropriate to comment.
Mr Nxasana said he was unaware that the sentence had been handed down, because it was being read during the meeting. From the comments in the meeting he had learned that the sentence was five years of direct imprisonment. His comments on the issue of appeal were that the record will be studied and a decision made after consultation with the prosecution team.
Dr Ramaite said that his comment would be the same and the proper manner would be to consult with the prosecution to perform a post-mortem of various issues. He said that “even senior people in the NPS are quite agitated, wrongly so he said to them, because he felt it was premature”. The NPA will have to tread carefully, because the thinking of the public may be different. The “Jub Jub” case was another such case and there are various issues which must be considered, including the fact that the judgement was that of a full bench. The NPA must look at these matters as judges would, because this is where they will end up and this will help ensure that the NPA is not found wanting when taking a matter on appeal. Rather this than be chastised by the appeal court for rushing into an appeal.
Dr Ramaite continued by answering Mr Swart’s questions, saying that from the NPS’ point of view the reporting of sexual offences cases is to be aided by SOCA, which while Dr Ramaite was part of that division had sought to determine the factors affecting the reporting of cases, including the elimination of secondary victimisation. The Minister has said that ‘the offended’ is a better term and in the past their experience of the criminal justice system has not been good, although there has been an improvement in reporting and finalisation. However, the conviction rate which is only around 60% may be deterring victims who feel that reporting will not yield results in any case. What is key is identifying the underlying reasons for non-reporting. The reduction in criminal court days was due to other roll players, more so than the prosecutors, particularly unavailability of presiding officers, who are in charge of enrolling matters. The NPA has engaged with regional court presidents to try and address these problems. Initially the problem used to lie with Legal Aid South Africa (LASA), but the NPA’s engagement with LASA has improved matters. On the increases in ADRM, he said this was a cause of concern shared by the Minister and Deputy Minister of Justice. The core of the concern is the lack of concrete monitoring requirements and this has lead the NPS to draft a policy document to form the basis for future legislation. He added that there have been instances where prosecutors have diverted where there was no need to divert, in order to record the case as a successful statistic, for example where the parties have reconciled privately. However the Directors of Public Prosecutions are currently evaluating the situation. On the JCPS convictions, he said that despite knowledge of the problems, the NPA had to rely on referrals because SAPS had the mandate to investigate and he suggested a coordinated effort to improve this aspect. The NPS corruption convictions were mainly local officials, rather than the major instances of JCPS corruption.
Adv van Rensburg said that the statistics for withdrawals per forum were provided on page 56 of the Annual Report, which is broken down into a comparison of the aspects. Further, plea bargains were not included in the statistics for ADRMs. This is reflected on page 51 of the Annual Report, which shows that an ADRM case is a verdict case.
Ms G Breytenbach (DA) said that Ms Bulelwa Makeke, NPA Chief Director Communications: National Prosecuting Authority, had reported that Mr Hofmeyr was the Acting-NDPP and wanted to know the need for this as the NDPP is present. She asked for Adv van Rensburg to explain the R411000 in irregular expenditure and why all civil claims were opposed. It has been reported widely in the press that Mr Nxsana had received an offer to vacate his office and that he had made a counter offer and she asked for comment. Further, if there was a plan to address the reputational fallout for the NPA as a result of the tension between Mr Nxasana and the President, because she had heard this was affecting morale within the organisation.
The Chairperson asked if this was a fair question, as the matter was being handled in the executive.
Ms Breytenbach replied that the executive was present and that the matter had been dealt with widely in the press, resulting it being appropriate.
She continued by asking how separation from the DoJCD would enhance the organisation’s independence. Also, while the number of finalised appeals was good, there is no indication as to how many of these were successful and why fewer cases were finalised in the high court. She asked to be directed to where in the Annual Report the backlog in the regional courts was addressed, a the backlog in the district courts is dealt with extensively. She noted that cases lost or withdrawn had increased from 33% to 53% and asked for more detail on this. Under the Integrity Management Unit she saw three programmes, which appear to be funded, and would like to know the differences between these, as they all seemed to be the same programme.
The Chairperson asked Adv Nxasana to proceed, but said he did not have to answer questions which were not fair.
Adv Nxsana replied that Ms Breytenbach had said it had been reported that he had been given an offer to vacate his office by the President and said that he had been interviewed and refuted this allegation. On the reputational fallout, he said that there had been no reputation damage, aside from the institution of an inquiry into his suitability to hold office. That is all there is and there is nothing untoward that can be read into this. On increased independence, he said that the point had been alluded to by Mr Swart where he asked how the Committee can assist with the NPA Bill. The NPA is currently considering the Bill and will report its intentions to the Minister upon completion of the deliberations. Mr Hofmeyr will be the Acting-NDPP from the following day, because he would be out of the country on business.
The Chairperson asked for an indication of how long the drafting of the NPA Bill will take.
Adv Nxsana answered that extensive work has been done and all that is left is to tie up loose ends which will be corresponded in a memorandum. He estimated that this would be sent within the year.
Dr Ramaite replied, on the statistics of successful appeals, that this was not done and agreed that this would be a good idea going forward. Further, the statistics on backlog cases in the regional courts are not kept by the NPA, but by the DoJCD which is charged with determining the need for more courts to deal with the backlog. The reason fewer cases are being dealt with in the high courts, is due to the increased jurisdiction of the regional courts and the tendency for high courts to prioritise civil matters.
Adv van Rensburg noted that irregular expenditure means that value for money was obtained, but the procurement process was not properly followed. Once potential irregular expenditure is identified an investigation is carried out within the organisation to determine how it occurred and whether a particular person is responsible. Thereafter in law the funds can be recovered from the person. Regardless of their personal liability, every person will face disciplinary action. The irregular expenditure reported on was largely due to the DPP: Kimberley office lease procurement which was concluded years ago and a criminal case is in the process which is currently with the Specialised Commercial Crime Unit (SCCU). There is a breakdown of the irregular expenditure on page 199, including consequential actions including condonation by senior management. Many of the instances of irregular expenditure occurred as far back as 2004 and the NPA has applied to Treasury for condonation and this has not been granted meaning that the NPA will have to live with this figure which must be recurrently reported. On the civil claims, she differentiated claims which are contingent liabilities from provisions as reflected in financial statements. Contingent liabilities are those cases where one does not believe the likelihood of being found liable is very high, but this must still be reflected in the financial statements. The cases referred to by Ms Breytenbach are contingent liabilities and the cases where there is 80% chance or less of winning are declared as provisions. Also note that NPS civil claims are not under the NPA, but rather dealt with by DoJCD. On increased independence, this does not relate to the prosecutorial independence, but rather financial independence by replacing the DoJCD Director General as accounting officer for the NPA and this requires there to be a good relationship as DoJCD is entitled to refuse funding for certain things within the organisation.
Mr J Selfe (DA) wanted to go deeper into what constitutes success for the NPA. Speaking to page 16 of the presentation there is a distinction between counts and cases in trio crimes, he asked whether a conviction on some counts but not all or the most pressing is counted as a success. His point was about the inter-departmental cooperation necessary for the prosecution of JCPS officials. In the annual report of the Department of Correctional Services (DCS) there were 2 960 disciplinary cases, 103 of which resulted in dismissals and 82 which were for theft, bribery or fraud. He understood that the NPA has argued that it has to wait for referrals, but asked if there are not better ways of achieving this. He referred to a case which Mr Hofmeyr had dealt with as Acting Head of the SIU, where in about 2009 Mr Hofmeyr investigated the DCS finding widespread corruption and tender fraud, even citing a person called Patrick Gillingham who should be prosecuted. To Mr Selfe’s knowledge, nothing has been done to date. At the moment there are 43 853 remand detainees, costing the tax payer R300 each per day, and the average period of remand is 176 days. He would like to know what efforts the NPA is making to reduce this figure. Lastly, he asked for the NPA’s views as to whether corruption is a Western concept and a victimless crime.
Adv Nxasana replied that the concerns raised are shared with the NPA, however the difficulty is, even in the case which involved Mr Hofmeyr, that a SAPS docket would still be required subsequent to the recommendation and without this the NPA cannot act. Despite what was said in the DCS Annual Report, the fact remains that the cases were never referred. Agreeing that this was a concern, he suggested that a joint effort with all stakeholders be embarked on to aid the situation.
The Chairperson said the NPA is merely sharing concerns and not committing itself to anything concrete.
Adv Nxasana replied by reiterating his suggestion and saying that this should be dealt with at the JCPS level. He therefore committed the NPA to raising these issues there and finding the best possible way of identifying these matters, tracking them and eventually ensuring referral.
Dr Ramaite replied to what constitutes a successful prosecution and this has been debated within the NPA. What guides the organisation is what is in the Strategic Plan and these indicators guide the organisation, more than the actual on-goings of the prosecution itself. The NPA considers a prosecution successful where it receives a lesser, but competent verdict and even where no conviction is obtained but the prosecution was run well. On remand detainees, he said that this was similar to the corruption cases, because their matters have not been finalised due to factors outside the immediate control of the NPA. The NPA is however concerned and is looking into partnerships with SAPS and the DCS. Replying to whether corruption is a Western concept and a victimless crime, he said that as a prosecutor the answer is simple. As where the crime has been legislated all that remains is to prosecute offenders, whether the crime is victimless or not would be of interest, but not in the context of prosecutions.
Mr Hofmeyr added that the definition of a success is on page 224 of the Annual Report, which indicates that where any person is convicted on any charge it is counted as a success. On Mr Gillingham, it related to the Bosasa matter and recently a parliamentary question had been asked on the case, with details having been provided there. On the JCPS matters, he said that this is a shared responsibility with the Anti-corruption Task Team (ACTT), which has held a conference with all the JCPS partners the previous year. This was both to deal with the capacity to investigate matters, but also to encourage referrals.
Mr M Maila (ANC) said that he was disturbed by the one sided manner which the conviction rate of JCPS officials was being interpreted, because the facts presented by the NPA indicate that fewer than expected officials have been convicted. Mr Swart and the NPA had said that there is widespread corruption, but this does not sit comfortably with the facts presented. The Annual Report presents facts which must be correctly interpreted. If there is corruption which is not coming to light, then what is the problem and have the NPA interrogated it? There could be cover ups and if this is the case, such people must be rooted out. On the other hand, he warned against portraying public servants as generally corrupt, as the potential is there that 20 years into democracy, South Africa could have a public service which is maturing and which is moving away from corruption. A thorough analysis should be made, rather than “wild allegations”. A certain number of persons were expected to be convicted, but fewer than this were convicted and these are the facts which should be kept in mind.
The Chairperson agreed with Mr Maila and said that if there are fewer convictions then it is a positive indication.
Adv Nxasana said that the comment by Mr Maila was fair. When he had spoken to the corruption matters, he said that he had been consistent in saying that it is the inflow of cases. Where Mr Selfe referred to the DCS Annual Report, he had been unaware of these number as they had not come to the NPA.
Mr Swart clarified that his statement that there is widespread corruption was based on the estimate of R30 billion in procurement irregularities and the statistics which Mr Selfe had raised which indicated that while disciplinary action is taken, this does not reach the NPA, as demonstrated in no DCS officials being charged. The Committee should not fool itself and there is a problem with corruption in South Africa, particularly with irregular expenditure. He did not want to intentionally create a negative image in the media, but this problem must be confronted frankly.
The Chairperson thanked Mr Swart for clarifying the question, because activities such as irregular expenditure and disciplinary hearings, do not fall within the NPA’s definition of corruption.
Dr Ramaite said that corruption is well defined in the Prevention and Combatting of Corrupt Activities Act and it is the job of prosecutors to enforce the law as is.
The Chairperson said that it is correct for the NPA to be guided by the law, but it was open to the public to debate the issues and reach different conclusions.
Mr W Horn (DA) said that on slides 41 and 42, only 21 people were convicted of corruption involving in excess of R5 million and asked for figures on on-going cases which have been enrolled, but not yet finalised to allow the Committee to gauge the NPA’s handling of the problem. Further, the decreased number of withdrawals must be read with the 1 216 more matters struck off the court roll during the financial year, which is a much more negative indictment by the presiding officer and he would like comment on the correlation between the increase in strike offs and reduction in withdrawals. On witness protection, he said that in the past two proclamations have been issued for the SIU to investigate allegations of abuse of assets belonging to the Office of the Witness Protection (OWP) by officials and wanted to know what steps have been taken to strengthen control over these assets to prevent recurrence. Picking up on Mr Selfe’s concerns about defining the NPA’s success. While agreeing with Mr Swart that the increase in finalised maintenance cases was positive, his concern was that as in practice maintenance is a “quasi-criminal affair”, that this is where control over the quality of service and turnaround times ought to be measured. Despite the high number of completions, he continued to be confronted by allegations from constituencies that the assistance in maintenance courts is sub-standard. On public trust in the NPA, he referred to highly publicised “Jub Jub case” where a conviction of murder following death as a result of a motor vehicle crash, was overturned and became a conviction for culpable homicide. With the NPA having decided that in all such incidents, it would bring a charge of murder and noting the amount of negative public sentiment following the appeal, he asked if the directive still stands and how this has affected the belief in the public that each case will be dealt with on its merits. Having heard the input on the independence of the NPA, he wanted to lend his voice and say that as institutional independence is a good thing the NPA should bring the Bill as soon as possible for the Committee’s assistance. On the other side of the coin, the public’s perception of the NPA’s institutional independence and integrity is obviously affected by the “scathing comments by the judiciary about the two senior deputy DPPs and the question was what steps have been taken to address the court’s concern.
The Chairperson said that the issue of public trust is interesting, because in the Pistorius case, sections of the public had already convicted him of murder and decided upon direct imprisonment, and the same thing can be said here about the NPA. While the public may feel certain things ought to happen, these are governed by the law and what the public wants may be contrary to this. Therefore, in such cases, must the outcome be guided by public opinion or the law?
Mr Horn submitted that the Constitution calls for the NPA to prosecute without fear favour or prejudice and the application of this would obviously enhance the public’s opinion of the NPA. In the Jub Jub matter from a legal standpoint it would be difficult to see a finding of dolus eventualis, a form of intent, from the facts of the case. His comment was that the NPA must be seen to apply the law without fear, favour or prejudice in order to foster public trust.
Dr Ramaite replied to the correlation between withdrawals and strike offs, saying that the withdrawals are now focused as this is within the control of the prosecutors. The NPA has encouraged prosecutors to only enrol cases which are trial ready. He explained that the strike offs are mainly older cases which were not meant to be on the roll or trial ready, from when the NPA discouraged withdrawals. Prosecutors are now beginning to screen cases to ensure they are trial ready and have prospects for successful prosecution.
Adv Mokhatla said that there are 57 cases of corruption in excess of R5 million, on the roll as of September and it may be fewer with the convictions obtained since then. On the maintenance matters, she said that the NPA receives representations of poor service at the maintenance courts and the NPA is looking into the matter. She noted that prosecutors at these courts come from both the DoJCD and NPA. There is a review process underway which will answer what is being done to improve the inflow of maintenance as well as sexual offences cases. This review should be completed by the end of the month and handed to the NDPP.
Adv van Rensburg said that there were two reports on premises which were not assets, but rather were leased by the OWP. The allegations were that the premises were used for personal use, rather than witness protection. At the stage that the proclamations were issued, the CEO of the NPA did not have delegation over the OWP, however the Director General of the DoJCD has delegated this for the past three years. Further, there have been regular meetings in this regard, noting that where an operation is covert, it becomes a high risk environment which must be closely monitored. On the leases, she said that there were questions of the rotation of leases and individuals benefiting from these leases. The processes and controls the Director General is satisfied with.
Adv Nxasana said that the action taken towards building trust in the NPA consequent to the “scathing” remarks by the courts, is that he has written to the impugned officials, asking for responses on the matter and these are being awaited.
Ms M Pilane-Majake (ANC) built on Mr Maila’s comments about the perception of widespread corruption in government departments which the country is grappling with. This needs to be dealt with in a way which acknowledges that there is corruption and where it is understood how it is being addressed. If the situation persists where assumptions are used to gauge the levels of corruption, things such as the downgrading in the global competitive indices occur. Further, the corruption which is said to be prevalent is not demonstrated in the Committee. She said that moving forward in the future, the NPA needs to disaggregate the statistics on things such as femicide and drug dealing, so that the reports presented can indicate the focus areas of the NPA. Disaggregated reports will help give a clearer picture of what is happening within the organisation around specific crimes. The statistics provided do not interrogate the true nature of the performance and can be misinterpreted on the face of it. More specific things such as the length of time taken for a particular case needs to be reported and this will aid to dispel the myths that are so damaging. She did not intend to say that South Africa is a country free from crime and corruption, but it would be unfair to paint South Africa generally with the same brush, without proper information. On maintenance, the suggestion echoed by the DoJCD should be implemented, that the movement of defaulters be restricted, particularly well to do persons. She was also concerned about the number of unrepresented women who must face represented defaulters and the NPA should look into that matter, in tandem with LASA which has made a similar commitment. The NPA also indicated that there is a decrease in the number of chid justice diversions between 2013/14 and 2012/13, but she was concerned that this has led to an increase in the number of child remand detainees in prison and she would like to know what is being done at cluster level to address this. She noted that “everyone in South Africa wants to be independent”, but cautioned that the fight for independence ought not to lead to organisations becoming silos which work in parallel isolation towards the same end.
The Chairperson said that when the NPA deals with the independence question, it must be linked with accountability to Parliament. There is a tendency to de-link these two phenomena and this is not consistent with constitutional democracy, which endorses both. He asked the NPA to help clarify the meaning of the terms, so as to prevent misuse. The NPA provides statistics on corruption and the conviction rate resulting there from and this is important in order to protect South Africa from the perception that the entire country is corrupt but to work off of the facts.
Adv Nxasana said that he had not been able to determine if there was a question within Ms Pilane-Majake’s comments.
Ms Pilane-Majake clarified that the questions included what is being done at cluster level to deal with remand detainees and whether the court roll was a contributing factor. Further, she recommended the restriction of defaulter movements and she had asked if she could make the statistics speak to the true context within the organisation and fight against specific crimes. This was important, because as the NPA leads the fight against crime in courts, that it is their responsibility to provide facts and not allow the public to lose faith in the courts.
Mr M Redelinghuys (DA) commended the NPA on an improved position in the year under review, particularly since there has been such uncertainty in the organisation for the past five years. The stability in the Office of the NDPP is noted, although whether this will remain so is to be seen. On the independence of the NPA, he said this is not new or merely a “nice to have” and this has been confirmed by the Constitutional Court, where the last Acting-NDPP was removed for this reason. The independence of the NPA is particularly important as South Africa comes from a past of arbitrary prosecution and where threats to the state were prosecuted. This cornerstone of our democracy should not be lost sight of. The Annual Report speaks of R11 million worth of staff debt, of which R4 million is older than three years. He wanted to know how the NPA is seeking to recover this and how such old staff debt remains on the books. He asked whether prosecutors have been trained in the Prevention of Torture Act and whether any cases have been brought to the NPA under it. Following Mr Horn’s concerns about the senior prosecutors who have been referred to the bar for unethical behaviour, he said that the legal opinion of Adv Pat Ellis advised the NDPP that all three should be suspended. While there are provisions which enable suspension, this has to be done in conjunction with the President or the Minister in the case of a Director. He believed that the executive has been approached on this matter and hoped it was being treated with urgency. This is particularly so as the judgement was in relation to the performance of their functions, either refusing to prosecute a case or withdrawing a case. He asked what the status of the investigation was, as well as the request to the President, which evidently had not been acted upon as two of the impugned officials were present.
The Chairperson asked whether it is fair to ask officials to monitor progress with the President or Minister.
Mr Redelinghuys rephrased his question to say on what date was the request submitted to the President or Minister and the Members will be able to draw their own conclusions from there.
The Chairperson said that when Dr Ramaite replies to Mr Redelinghuys, he should also deal with the questions of Ms Pilane-Majake.
Dr Ramaite replied that the problem of high levels of remand detainees does not lie with the prosecutors, but rather with the case flow management system applied in courts. The NPA has not interrogated the effect of the case flow management system on remand detainees, but this will have to be looked into, particularly when there is an increase in the number of child remand detainees. On the inter-linkage between independence and accountability, he said that the NPA is aware of the differences as it operates within these concepts. As he understands the Constitution, the NPA is fully accountable to Parliament for the decisions which it makes independently.
The Chairperson said that the problem with lawyers is that if you approach 100 lawyers, you may get 100 different opinions. If a legal opinion is accepted which recommends suspension, there may be a later legal opinion which contradicts this conclusion. Therefore, the Committee should allow those with authority to take the decision. He said that Adv van Rensburg would be the last speaker.
Adv van Rensburg, on the question of staff debt, said this came from an era where the NPA received disclaimed audits and there has been a push towards obtaining a clean audit. Part of this was moving towards the recovery or writing off of staff debts, in cases where it was appropriate. Staff debt generally averages around R3 million, but this is in the context of a staff budget of R2.2 billion. The sources of the debt are from bursaries which people owe as they have not passed and the recovery is difficult at times requiring civil court processes. She assured the Committee that the NPA aggressively recovers debt and where there is fruitless expenditure such as a no-show at a hotel or the loss of a laptop, if the investigation finds liability, the money is recovered immediately from the staff member’s salary. Car accidents also form part of staff debt and the amounts involved would be impossible to pay in a single payment and therefore it must be taken on as staff debt, to be fair to employees. The NPA even monitors the performance of individuals on how well they are able to reduce staff debt. The NPA is not overly concerned and does not feel that it is out of control.
The Chairperson said that the NPA should not be afraid to charge people who breach the disciplinary code, however just because individuals may be charged, does not mean that there is something wrong with the organisation.
Special Investigating Unit (SIU) Annual Report 2013/14 & April to September 2014 performance
Adv Vas Soni (SC) said there are four major issues to be covered: the key investigations which the SIU is involved in; the human resources status, the financial status and operational challenges. There were seven proclamations, which led to 30 presidential reports. Three of the nine targets were not achieved and this is set out in the Annual Report. When he had briefed the Committee earlier in the year, he had indicated that the SIU was to become more outcomes orientated. The nine targets are still based on the previous approach and the three unachieved targets have been labelled as outdated as they do not fit in with the nature of their investigations, while the other six are still deemed relevant. An example was the investigation into the pension fund fraud, due to the length of time taken with the investigation, it became seen as a target but can no longer be seen as such, because it is now at an end.
Turning to its key investigations, he said the investigation into the prestige upgrades at Nkandla has recently been completed and the slide sets out the SIU achievements including a civil claim for R155 million and the referral of four criminal matters. In the Universal Service and Access Agency of South Africa (USAASA) matter, there is little to say aside from the matter is in court currently. Although he had indicated in May that the matter would be in court shortly, this was impeded by the new CEO of USAASA raising a number of technical points about the case. In the Media Corner investigation which is to set aside a contract for R756 million entered into by the Department of Communications, the SIU interventions have had to be creative, because the contracting party was relying on an arbitration clause to avoid court. The SIU has assisted the Department by arguing for the invalidity of the contract, which would result in the invalidation of the arbitration clause. The SIU’s usefulness in protecting government funds is demonstrated in the Gauteng Health matter. Here the winning bidder had claimed R1.3 billion and this had been confirmed by the high court and supreme court of appeal, however the SIU had managed to show that all transactions were tainted with fraud. He added that there are ten further matters which are almost at the stage to be litigated and the amounts involved are significant amounts and these will be reported on at the next interaction.
Moving on to human resources, he said that at 1 April 2014, the SIU has a staff complement of 445 operational staff and 119 non-operational staff. In the year under review, 29 staff left and 10 new appointments were made, showing stability in the workforce of the SIU. He noted that specialist skills are contracted in as the SIU requires, including lawyers practicing at the bar and side bar, quantity surveyors and security experts. Further, the SIU is looking to bring on board more forensic lawyers to direct the investigations and all that remains to be determined is how many are required and at what level. Lastly, he said that there is a single corporate lawyer.
On the financial aspects, he said that the income has been stable for the past two years with R503 million in 2013/14 and R497 million in 2012/13, while the budget for 2013/14 was R448 million. The highest expenditure was due to employee costs, which was unsurprising as the SIU was a service organisation. He noted that the use of consultants within the SIU has come to a stop and this has led to a reduction in costs However, the bulk of the forensic consultant fees borne by the SIU are due to the ACTT. The ACTT is comprised of officials from the Hawks, AFU and SIU, which work in tandem to streamline finalisation, particularly of criminal matters. The majority of the ACTT funding comes from the SIU which does not control the appointment of people to the ACTT and therefore does not control the expense. For the current financial year, although budgeted expenditure was more than R30 million above the actual, this was because SIU could not control all the points at which it would incur costs, and he expected that by the end of the year the figures will have balanced out.
Adv Soni said that the SIU had received an unqualified audit, although there was one matter of emphasis by the Auditor-General which appears on note eight, paragraph 32 of page 71 of the Annual Report. Steps are being taken to deal with the matters raised. These matters are a result of restating prior year errors which have been corrected. Further, matters derive from section 55(2)(b)(i) of the Public Finance Management Act read with Treasury Regulation 28.2.1, which is irregular expenditure. A total of R14.3 million has been reported as irregular expenditure and while he was not trying to cast it as regular, this is not fruitless or wasteful expenditure or unauthorised expenditure. An instance was the renewal of a contract of a travel agent, which in fact cost less than it otherwise would have, and this was a question of non-compliance with process rather than loss to the state.
Lastly, Adv Soni dealt with the operational challenges faced by SIU. First, the SIU has problems with collecting funds from institutions which it provides services to, as enabled by the Special Investigating Unit Act, where government entities claim that the additional expense was not budgeted for and therefore cannot be paid. The SIU is engaged with Treasury to determine a mechanism for enforcement, in pursuit of making the SIU dependant only on the funds it recovers. Next, the length of time taken to complete investigations has been perceived as excessive. Adv Soni said that this is not an incorrect allegation. However, the investigations which the SIU has to undertake are at times by nature protracted, such as land reform investigations. Further, the SIU is involved in the pursuit of remedial action by being empowered to send either criminal or disciplinary dockets to the NPA or relevant department and more important SIU officials are witnesses in the action that follows. The new strategic direction of the SIU will hopefully see turnaround times decrease as it becomes more of an investigative body. Lastly, specialist skills is a challenge which is being eased through contractual relations with the bar, however the SIU still faces challenges in attracting senior lawyers with specialist skills to SIU to fully realise its focus on producing legal outcomes, rather than merely reporting. Such lawyers will be instrumental in leading investigations, as they will be aware of what evidence is relevant.
Mr Horn commented that the Committee accepts the explanation given for the irregular expenditure, but raised concerns that a lack of adherence to administrative procedure was occurring in one of the primary bodies tasked with investigating such maladministration. He emphasised that this irregular expenditure could point to corruption and the Committee ought to take the stance that this is unacceptable. Adv Soni had previously raised the issue of targets for the SIU and in the past these had been picked up by the Auditor General. Although there was no finding in the year under review, he understood that there were new targets in the financial planning of the SIU. He therefore wanted to know if the SIU had discussed the new targets with the Auditor General in order to pre-empt any potential problems in the audit. He also would like to hear more about the outcomes of the matters handled by the SIU, particularly civil litigation on behalf of the state. On the Prestige Nkandla matter, he asked if the SIU had at any stage considered civil litigation against the property owner based on unjustified enrichment and if not, why not, particularly, as it is common cause that there was benefit? He would also like to know if the SIU made a finding that the enrichment was unjustified.
The Chairperson asked Mr Horn in which report he got the basis to say that the enrichment was unjust.
Mr Horn replied that this was precisely his question. He recalled the SIU making a finding of benefit and from this flows the question of whether this was justified.
The Chairperson asked if it would not be better to leave this question to another Committee of Parliament which was dealing with this matter.
Mr Horn disagreed, as he felt that the question dealt with an activity mandated under the Special Investigating Unit, i.e. the pursuit of civil litigation in order to reclaim state funds.
Adv Soni, in order to clarify the uncertainty about the SIU’s findings, quoted the SIU Report under the heading The Claim for Damages or Losses, at paragraph 7 on page 231-233:
“what our investigations reveal, and we must record that all the important and relevant evidence gathered has concisely been set out in this Report, may be briefly summarised as follows. Through decisions formally but unlawfully and wrongfully taken by the DPW, Makhanya was placed in virtual control of the process. However, through the unlawful, wrongful and negligent use of the powers that were granted to him, Makhanya inter alia increased the scope and extent of works by designing and authorising items which were not for security purposes, as determined by the SAPS and SANDF, designed and produced more than had been requested and authorised and certified over-payments. As a result of inter alia such action on his part, the const of the project soared from an initial estimate of some R27 million to some R216 million. We contend that in conducting himself thus Makhanya acted in breach of his contract with the DPW. As a result of such breaches, the DPW suffered damages or losses totalling some R 155 million.
It is clear from the Particulars of Claim that as a result of Makhanya’s actions, many people were enriched. In Claim C for example, we set out how some of the consultants and contractors were enriched. It is also implicit from the claims based on the increase in the scope of works that the value of the President’s or the Zuma family’s residential complex was enhanced. Clearly, to the extent that these claims are well founded, the President or his family were enriched.
Be the foregoing as it may , it is clear that the DPW suffered massive damages or losses. These needed to be recovered. The choice that the SIU faced was this. It could institute separate claims against each of the persons who or entities that were enriched, in which case it would largely rely on principles of unjust enrichment. Alternatively, it could claim the full extent of its damages or losses from the person who was directly responsible for causing them, namely Makhanya.
After consulting our lawyers are we chose the latter option. Among the considerations that we took into account were the following. The institution of separate claims would complicate matters and would raise questions of joinder and eventually consolidation. In any case, individual claims from the beneficiaries of Makhanya’s breaches would not entitle us to claim the full amount of the losses that were suffered: in each case our claim would be restricted to simply the extent of enrichment, which, having regard to the findings of our experts, could in some cases be less than the damages or losses that DPW has suffered. In addition, there are a number of items that we would not be able to claim for, for example the losses that were suffered as a result of the increase in scope of the SAPS and SANDF accommodation and related requirements. Based on among others these considerations, we opted for a single claim against the person whom we say was responsible for causing the damages or losses. Such a claim, we considered would be the most effective and efficient means of recouping the maximum for the State.”
Adv Soni continued that the above was contained in the report and therefore the SIU knew these questions would arise.
The Chairperson said that when he was appointed Premier of Gauteng in 1998, the SAPS did an assessment of his security needs. They decided what must be done and his approval was not sought; all that he had to do was remove anything that could be an obstacle. Had the prices been inflated and his property enhanced without his consent or knowledge? He would like to know if such enrichment would lead him into liability, as a result of the corrupt activities of others.
Adv Soni said that the law of unjustified enrichment would deal with such a matter and a court would decide. As the SIU, the main function is to recover the maximum amount of monies improperly taken from the state and this is what has been done. If people believe that another action should have been taken, they are entitled to this belief. The SIU has not acted on its own, Adv Maleka, one of the most eminent advocates in South Africa, drafted the claims.
Mr Horn then said that the SIU has posited its duty as to recover state funds and to try to recover from a single functionary, where the benefit lies elsewhere does not make sense. Secondly, he understood the contention that the option to first pursue the architect, does not exclude an action for unjustified enrichment against the property owner. Therefore the question must be answered, why it was decided to only go after the architect.
The Chairperson said that he was not sitting as a lawyer, however reminded the Committee that the matter was sub judice.
Ms Pilane-Majake said that as other fora are concerned with the Nkandla matter , only points of clarity ought to be sought, rather than trying to give ideas as to what should be done. She commended the SIU on the clean audit and encouraged it to continue its good work. She was concerned about human resources, she asked for a disaggregation of the operational and non-operational staff to indicate their functions, their level of employment and their demographics. She felt that 29 people leaving the organisation was too high and asked for an indication of the reasons given. Further, the SIU indicates that it contracts in experts, but did not indicate the numbers of these various professionals. On irregular expenditure, she said that there is a tendency to view this as stolen money and due to corrupt activities; but her understanding was that this means that the prescripts of supply chain management were not followed and if goods were procured, they are indeed there and it did not necessarily mean anything was stolen. The Committee must continue to educate people, lest the newspapers begin to say that there is corruption within the SIU.
The Chairperson said that he had no intention of suppressing Mr Horn, however there was a rule of natural justice which states that one cannot be a judge in one’s own matter. The SIU decided upon a course of action, rightly or wrongly and to ask them why they did not pursue the other is to ask them to be judges in their own case. The matter is before the courts and if they made the wrong choice, the appropriate independent forum will determine the matter.
Ms Breytenbach said that the Annual Report speaks to the development of forensic lawyers and she would like to know if they are going to be used to prosecute criminal matters and, if so, how this is to pan out. She commented that when the investigations are listed, it would be useful to include the result, such as how many instances lead to successful prosecution. On the SIU’s involvement with the ACTT, she asked whether the involvement is leading up to the ACTT being a standalone body, or incorporated within the Unit in the future. On the USAASA matter, she was aware that a criminal matter had been referred some time ago. She wanted to know what the status of the case was and if the SIU had inquired about the reason for such slow progress. She had enquired from the Minister why it was taking this long and the response she had received was that it was still under investigation. She understood that when the SIU refers matters they are not at that point prosecutable, but the ground work has been done and the matter did not need to be prosecuted en masse.
Adv Soni replied that the legal specialists which the SIU is seeking to attain are to lead investigations and acquire evidence with a lawyer’s eye, and it is not planned to have SIU staff do prosecutions themselves. The types of specialists being sought are more civil and labour law orientated. On the reporting of the results of investigations, he agreed that the Committee ought to be appraised of the results of investigations on an annual, if not six monthly basis, and committed to doing so in the future. On the ACTT, this is a multi-agency body, which does not have a corporate entity, which is funded by the SIU and therefore if an appointment to the ACTT is irregular, this reflects on the SIU’s audit. Prior to 2012 the SIU had been geared towards being an investigating unit focusing on the filing of reports without substantive follow ups, but the change in emphasis post 2012 has been more results driven. This leads to the absence of information on the progress of the information. Therefore the SIU is not in a position to give this information and it will be a massive task to collect it. This is now central to the reports to the President. The USASA matter is somewhat an anomaly, in the sense that individuals were being prosecuted to pay back welfare benefits which they unlawfully obtained, more often than not through criminal means. The SIU is at the point of closing its investigation and has been involved in the prosecution in tandem with the NPA. However figures cannot be given as this predates the shift in operational focus which came about in October 2012. Mr Swart had previously been concerned that the SIU had dropped its targets. Regarding the USAASA matter, all the information will be given to the Department of Social Development, which will be tasked with referring it to the NPA. However, it is difficult to justify the use of experienced investigators in fairly simple matters and therefore the agreement with a department is to collect whatever information possible and hand it over for the department to take the necessary action.
Mr Maila asked about the role of organised labour in the SIU and any engagements which are underway.
Adv Soni replied that there are two recognised unions: NEHAWU, being the recognised majority union, and there is a presence by Solidarity. These unions would, as per normal, seek to influence the manner in which the work of the SIU is conducted, including the direction the organisation should take and the investigations to be undertaken. He noted that the mandate of the SIU is to investigate specific matters and the Act makes it clear that the Head of the Unit is to determine the manner in which investigations are done. This is obviously challenged by the unions and at times taken to the appropriate forum. He however could not concede to a situation where an investigation or the manner in which it is conducted is dictated by employees, where they have no statutory obligation to fulfil these requirements.
The Chairperson said that the manner in which the SIU conducts its business is very good and it helps the Committee to account to the public. The report indicates the number of proclamations, the investigations being carried out and even in “the DPW matter” the Committee knows what steps have been taken and by whom. This does not leave space for speculation or the forming of the perception that even the investigators of corruption are themselves corrupt.
Ms Pilane-Majake asked whether the SIU felt that it was making an impact in fighting corruption and if so why. Further, she asked for an indication of who the donor funders are, either foreign or local.
Adv Soni replied that the funding structure of the SIU is a third from its revenue generating activities and from two thirds from government. He had indicated that the aim is for the SIU to eventually become self-funding. It does not receive donor funding, although it has in the past, but not while he has been the incumbent. On whether the SIU is making a difference, he said that there is a perception that the public service is generally corrupt. However, it is important to note distinctions such as the difference between irregular expenditure; fruitless and wasteful expenditure; and maladministration and corruption. To say irregular expenditure is tantamount to maladministration is to misuse the word, because maladministration indicates malfeasance at the core, while irregular expenditure is a procedural concern. What needs to be done by all entities fighting corruption is to demonstrate to the public that it can win the fight against maladministration and corruption, which are themselves different in nature. The difference which the SIU is to make depends on the success of endeavours such as recovering the moneys lost at Nkandla and the impact the SIU makes, will be based on whether they are feared because they produce results.
The Chairperson said that in many buildings he sees posters from the Department of Labour indicating grievance procedures and the like. Perhaps a similar poster on the differences between corruption and maladministration should be produced. This is especially seeing as even in Members of Parliament are not fully sure of the definition of corruption.
Ms Breytenbach said that the SIU presidential reports submitted in 2013/14 from investigations finalised in the previous financial year numbered 30. Of these, 21 were submitted before 30 April and six in May. She therefore wanted to know why there was a rush at that point of the year and if this holds any significance.
Adv Soni said that he cannot give an explanation as he was not there at the time and handed over to Mr Kwant.
Mr Chris Kwant, SUI Head: Project Management Office (PMO), said there was a special project to conclude reports to the President as it was a matter which was not receiving sufficient attention in the past. Reports were given to the departments themselves and implemented at this level, but there were a number of outstanding reports to the President. This led to the high number of submissions in April.
Ms Pilane-Majake supported the Chairperson’s suggestion for the creation of a charter explaining corruption, to help guide the public and show how it is dealt with. This will help to teach people what to do when they are confronted with an instance of corruption. This had arisen earlier in discussions with the NPA, whose figures do not ratify the high levels of corruption spoken of in the public arena.
The Chairperson agreed and said he was happy with the SIU report. He then declared the meeting adjourned.
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