National Prosecuting Authority on its 2015 Strategic Plan

Meeting report

National Prosecuting Authority: 2015 Strategic and Annual Plan

Mr Mxolisi Nxasana, National Director of Public Prosecutions, National Prosecuting Authority, apologised for the absence of Adv Nomgcobo Jiba, Deputy Director of Public Prosecutions, and said the National Prosecuting Authority (NPA) was committed to playing its role in realising the goals set in government’s National Development Plan. Its Strategic Plan was aligned to the Medium Term Strategic Framework(MTSF). There were five sub-programmes in the Estimates of National Expenditure: National Prosecutions Service (NPS), National Specialised Prosecutions Services (NSPS), Asset Forfeiture Unit (AFU), Office for Witness Protection (OWP) and Support Services (SS).

Mr Nxasana said the NPA had four strategic objectives:

• Increased successful prosecutions
• Improved prosecution of cases that require specialised prosecution
• Ensuring that profit was removed from crime
• Ensuring that threatened witnesses and related persons would be successfully protected.

Each objective was specifically linked to a sub-programme, as reflected in the budget, and the planning documents linked the strategic objectives to the budget structure, Furthermore, each Deputy National Director of Public Prosecutions was responsible for a sub-programmes for improved accountability.

The only material changes in the 2015/16 Annual Performance Plan (APP) related to the removal of the performance indicator “percentage of legal opinions provided to the NPA within 20 days” and the technical refining of indicator descriptions for audit purposes. With the Chief Justice having taken responsibility for the performance of the High Courts and indicators around the finalisation of criminal cases, including through Alternative Dispute Resolution Mechanisms(ADRM), the NPA had now been restricted to measuring performance in the lower courts. The NPA, however, continued to monitor the conviction rates in High Courts as a performance indicator. Targets in the APP had been increased in line with previous increases, although the budget increased less than previously. Certain targets were not increased, due to optimal performance. These included conviction rates for High Courts, Regional Courts, organised crime, trio crimes and complex commercial crimes.

Strategic Plan 2015-2020
Ms Karen van Rensburg, Chief Executive Officer NPA, said the organisational structure of the NPA had remained the same, save for the appointment in acting capacity of Ms Bulelwa Makeke, Deputy Chief Executive Officer, NPA. The NPA’s strategic outcome orientated goal was “improved prosecution services” and its goal statement was to “render a prosecution service that is effective”.

Ms van Rensburg said each of the sub-programmes of the NPA was linked to a strategic objective and a particular Deputy National Director of Public Prosecutions (DNDPP). Sub-programme 1: National Prosecutions Service was linked to the strategic objective of increasing successful prosecution, and so its statement of objectives read : “ to increase the number of criminal court cases finalised, including through Alternative Dispute Resolution Mechanisms (ADRM) in the lower courts to 504 489 by 2019/20, from a 2013/14 baseline of 504 316."

Sub-programme 2: National Specialised Prosecutions Service was linked to the strategic objective for improved prosecutions of cases that require specialised prosecution. Its objective statements were to increase the conviction rate of complex commercial crime cases to 93% (966) and to increase the number of operational Thuthuzela Care Centres (TCCs) to 75 by 2019/20. These were calculated from a baseline of 95.8 (747) and 38 operational TCCs in 2013/14.

Sub-programme 3: Asset Forfeiture Unit was linked to strategic objective 3: to ensure that the profit motive was removed from crime. Its objective statements were to increase the number of completed forfeiture cases to 450, and to increase the value of freezing orders to R1.3 billion by 2019/20. These were calculated, respectively from 2013/14 baselines of 390 and R701.5 million.

The Office for Witness Protection sub-programme was linked to strategic objective 4: to ensure threatened witnesses and related persons are successfully protected. Its objective statement is to ensure no witnesses or related persons were harmed, threatened or killed whilst in the Witness Protection Programme, from a 2013/14 baseline of no witnesses or related persons harmed.

Ms van Rensburg said the main risks identified at an institutional level were public perception and reputation of the NPA, breach of information security and minimum information security standards, provisioning of resources, participation and cooperation from stakeholders and other partners, and ability to respond to trends in the commission of crime. Each of these were the responsibility of an DNDPP or herself and there are mitigating plans in place.

Annual Performance Plan 2015/16
Dr Silus Ramaite, Deputy National Director of Public Prosecutions: National Prosecuting Service, noted that he was responsible for sub-programme 1: NPS, where the main indicator related to the number of criminal court cases, including ADRM, finalised in the lower courts with an estimated performance of 472 269 and a 2015/16 target of 278 686. Other notable indicators included conviction rates in high courts, which were at 87% (979) in 2014/15 and were targeted to rise to 87% (897) in 2015/16; the conviction rates in district courts which was at 87% (266 849) in 2014, and targeted to be 88% (255 928) in 2015/16. Conviction rates in trio crimes were targeted to grow from 1 563 in 2014/15 to 1 630 in 2015/16, although Dr Ramaite doubted whether this would be achievable, as obtaining evidence had been a problem in such cases. Lastly, the NPS would now keep statistics on conviction rates in violent protests and industrial actions prosecuted, and had set a 2015/16 target of 74%.

Ms van Rensburg said the NPS received the largest allocation in the NPA, at R2.29 billion in 2015/16, which represented a 6.54% increase. The bulk of this would be put to compensation of employees which consumed R2.19 billion. The sub-programme contained 3 564 legal personnel and 551 administrative personnel.

Adv Nomvula Mokhatla, DNDPP National Specialised Prosecuting Service, said the targets for conviction rates in complex commercial crimes remained at 93% over the medium term, with the estimated performance for 2014/15 at 93% (919). The number of operational Thutuzela Care Centres was estimated to be 55, growing by five each year over the medium term, to 65 in 2017/18. She noted that the target of 20 persons convicted of corruption or offences related to corruption where the amount benefited was more than R5 million had been exceeded in 2014/15, and the target for the outer years of the MTSF was for 30. The target for number of government officials convicted for corruption or related offences had been broadened to all government officials, rather than only those in the Justice and Crime Prevention Cluster, and it was targeted at 91 in 2015/16. This was in pursuit of meeting the total incremental target of 1000 convictions by 2017/18. The target for conviction rates in PCLU had been reduced from 100% to 80% over the medium term, because it had been realised that not all cases would be finalised within one financial year.

Mr Willie Hofmeyr, Deputy National Director of Public Prosecutions: Asset Forfeiture Unit, NPA, said the targets of the AFU had seen a general increase significantly over the period. The targets for the number of completed forfeiture cases increased by almost 50% over the MTSF, growing from 324 in 2014/15 to 440 by 2017/18. This was largely the result of an initiative with the Deputy Public Prosecutor in the Western Cape to roll out smaller forfeiture cases in the Magistrates Courts. The rest was due to increased productivity, and Chapter 6 matters, which did not depend on a conviction before the AFU could act. The value targets had generally been increased even more, with the value of freezing orders growing from R755 million to R1.2 billion by 2017/18. This was largely due to an increased focus by government on corruption cases and the good cooperation which had developed at the Anti-Corruption Task Team. There was not much movement in the targets for the number of freezing orders, as there had been a slump previously, due to capacity constraints. The 2014/15 performance (281) was not as good as the previous year, but it was decided that targets around 320 could be achieved over the medium term.

The targets for the value of freezing orders related to corruption where the amount benefited was more than R5 million were an area where the effectiveness of the AFU could really be seen, with the target for 2011/12 being R144 million, growing to R700 million in 2014/15 and reaching R1 billion by 2017/18.  He noted that already, the actual value of freezing orders had reached more than R1 billion for 2015/16, against a target of R800 million. The target for its success rate remained stable over the MTSF, at 93%.

A new target has been inserted regarding the value of recoveries relating to corruption, and here the target had doubled from R30 million in 2014/15 to R60 million in 2017/18. He noted that, as with much of government in other sectors, there had been only small increases seen in the budget allocations over the MTSF, aside from inflationary increases. However, the AFU was finding more and more work to be done, and for the first time it was having to turn down work due to capacity constraints. He clarified that the AFU had two classes of professional personnel, with 82 lawyers and 26 financial investigators, who essentially found where the assets had been hidden, and enabled the proving of the financial flow.

Adv Mokhatla spoke to the Witness Protection Programme, noting that the two performance indicators related, in turn to people on the programme, and those off it. The first target spoke to the number of witnesses and related persons harmed, threatened or killed whilst on the witness protection programme, and this would remain at nil over the MTSF, a continuation of the performance over the past 12 years. The second was the percentage of witnesses and related persons who had walked off the witness protection programme, and that was targeted at 1.5% over the period.

She outlined that in the OWP, there were 109 people engaged in core business, who were the protectors and some social workers, and 49 administrative personnel. The model of the OWP was to have a 24 hour protection service available. It was understaffed at present and in the future more money would have to be channelled here, to maintain the performance of 0 persons harmed while in the programme.

Budget Status
Ms Hanika van Zyl, Acting Chief Director: Finance and Procurement NPA, said the NPA was a programme of the Department of Justice and Constitutional Development (DoJ), although it was not a separate entity, constitutional institution or department. It had compiled separate financial statements up until 2013/14, but from 2014/15 it would be consolidating its financial information with the DoJ. The same applied to the Annual Performance Plan, although, in compliance with section 35 of the National Prosecuting Authority Act, a separate document would be submitted to the Minister for tabling. The capacity of the NPA to spend its budget had been successful over the past few years, and it had needed to surrender (as unspent) only 12c in 2012/13, R4 in 2013/14 and 25c in 2014/15. While the entire budget had been spent by 31 March 2015, shifting of funds between the various economic classifications within the overall allocation would be done.

The NPA’s audit outcomes have also been an area of success and in 2013/14 the NPA received a clean audit with drastically reduced housekeeping findings. Due to the consolidation of the NPA’s financial reports with the DoJ, only one audit report would be done in the future.

Ms van Zyl said the Medium Term Expenditure Framework (MTEF) budget allocation as a programme under the DoJ showed that it was the second largest programme, with a budget of R3.19 in 2015/16,  increasing on average by 6% per year over the MTEF. However, the increase in 2015/16 was only 3.68%, due to National Treasury cuts. This would impact on the goods and services, but the NPA anticipated the limited increases and should be able to achieve all its targets for the year. The bulk of the budget in 2015/16 was dedicated to compensation of employees, constituting approximately 83% of the budget. The other major cost driver was goods and services, which had decreased from R5.13 million to R4.84 million in 2015/16. She spoke to a graph which depicted the steady increase in the allocation for compensation of employees, against the stable spend on goods and services over the MTEF, and said that it might create problems in the outer years.

Ms van Zyl said alternative funding was received from the Criminal Assets Recovery Account (CARA) with a bid for R45 million was submitted in March 2013, although no feedback had been received. A separate bid was planned for funding for the OWP, to asset with ACTT matters. The spending patterns regarding CARA had also been good and at March 2015 only around R2 million remained unspent. The NPA also received funding from the Integrated Justice System in 2013/14 and this was spent on the Integrated Case Management System, the department BI and MIS project, the departmental  integrated solutions, departmental infrastructure and capacity. The NPA managed to spend 100% of its allocation and in the coming year it would receive R86.55 million. For 2016/17 it would receive R73.6 million, which it also estimated would be spent in full.

Ms van Rensburg dealt with some of the key resourcing issues. The first was the Electronic Case Management System (ECMS), which was an important instrument which would allow for the tracking of a case down the value chain from the time it was registered with the police. This was being piloted at two sites. She explained that the docket information would firstly be captured, allowing the NPA to see the information at the service courts. This included the particulars of the accused and charge, allowing the generation of a specific charge sheet. At the court, the DoJ would take over responsibility for the matter, and the progress in the case would be recorded, such as whether the accused was granted bail or released on a warning. From there, the information was available to the Department of Correctional Services, which enabled it to do demand management, by seeing what sort of future inmates were anticipated to come into the system. The ECMS captured information such as the race, gender and nationality of the accused, allowing these statistics to be readily available. Further, the business intelligence component allowed the generation of comprehensive management reports on performance, including lead times for certain processes within the criminal justice system. The system was being developed very slowly, and 28 key performance indicators had been agreed upon throughout the value chain, providing management with this information.

She noted that there had been a number of teething problems in this complicated project, notably with bandwidth within the DoJ, which was due for an upgrade, hopefully speeding up the system. There were 22 planned sites and 170 additional sites were also planned for 2015/16. A total of 481 sites existed and all of these should be serviced, because this would reduce the administrative burden on not only prosecutors, but also on the police and all other role players.

Ms van Rensburg said some of the NPA’s Information and Communications Technology (ICT) equipment was reaching end of life, which was an important point, given that technology could be a cost saver on travel. The problems included an outdated telephony system, computers and printers. A notable concern was bandwidth, which is constantly utilised above 100% capacity, resulting in hampered efficiency. The NPA therefore had implemented mitigating measures. It had, for instance, seen to the upgrading of video conferencing which was complete except for a few sites where although everything had been paid for and delivered, only the installation still needed to be done. The replacement of network switches that had reached end of life had been completed in all offices. Computers or laptops had been procured for prosecutors, and this was being rolled out nationally. Network bandwidth was being upgraded, also catering for remote access to NPA business applications. Lastly, the upgrading of the telephony system had commenced.  As these were expensive endeavours the NPA had planned appropriately and began paying for these projects in previous financial years where the money was available, in view of the impending budget cuts.

Ms van Rensburg said ethics management remained a critical component for the NPA, and a zero-tolerance approach had been adopted towards fraud and corruption. A fraud and corruption prevention plan had been developed and its implementation was being monitored. Three prosecutors were convicted of offences related to corruption in 2014/15, while two cases were dealt with. One had resigned before the completion of the disciplinary matter, but the criminal case was proceeding, and in the other progressive discipline was decided upon, due to reluctant witnesses and a lack of cooperation from the supervisor, but again the criminal prosecution would be continuing. The NPA had ethics promotion officers and engagement occurred at various levels, with “coffee shop ethics forum” being a successful example. This, she explained, was setting aside two hour meetings on Friday afternoons where ethical issues were discussed over coffee and this was yielding remarkable results, because it provided prosecutors with a favourable environment to talk about the issues they were faced with on a daily basis. This allowed peers also to relate how they dealt with these matters.

Ms van Rensburg said public awareness and outreach remained an important programme, with face to face engagement with indigenous communities being a priority. There was also the flagship community television campaign called “NPA for my justice” which had successfully increased public awareness. Season 2 was planned for roll out during the current financial year.

Discussion
The Chairperson said the coffee shop ethics initiative was a good effort, because it allowed room for discussion with others, which also allowed people to deal better with the stresses of their work environments. He observed that Dr Ramaite had said that if it were not for poor investigations and lack of evidence, performance would be better. This could be seen as casting aspersions on the South African Police Service (SAPS), unless it was explained in some other way, and he asked that the NPA clarify this point further, and it might be able to assist where possible.

The Chairperson thought it was problematic for the NPA merely to say that it had projects which could not be implemented due to lack of funding, without actually outlining what those projects were, and if there was better clarification on this point, it may even allow "the holders of the purse" to assess for themselves the importance of funding such projects.

He noted that Mr Nxasana had referred to a slump in performance but that he had not mentioned the constraints which affected the success of prosecution. \

He was interested in the money recovered by the AFU which was deposited with CARA. Victims of crimes, unlike in traditional courts, did not get any compensation and the Chairperson wondered if these recovered funds should not be directed towards victim compensation. He wanted to know if the law did not allow this, or whether it was a matter of practice or whether it was related to the need for alternative funding. He asked if social crimes and the moral degeneration of society were not placing a burden on the NPA, and whether it was not possible that community courts or traditional courts could assist in this regard.

The Chairperson noted that there were concerns about dockets being lost and asked whether the ECMS was not designed to deal with this problem. With the project in the pilot stage, he asked for a sense of whether these dockets were being lost by accident or by design.

Ms G Breytenbach (DA) noted that there were many people present in an acting capacity and she asked whether there was a reason for people not being appointed permanently in the NPA.

Ms Breytenbach reminded the Committee about the case of Inge Lotz, where Fred van der Vyver had been prosecuted and acquitted in the Western Cape (but questions raised subsequently). She wanted to know what the situation was, having received an indication that was confusing, asserting the matter was finalised although no prosecution had succeeded.

Ms Breytenbach asked what was happening around Occupation Specific Dispensation (OSDs) and Level 10 employees. She was receiving complaints, daily, from prosecutors to the effect that this matter was going nowhere.

Ms Breytenbach asked how the new High Courts in Polokwane and Nelspruit were going to be staffed. She also asked about the position with the Pretoria office and how the staff there, who were going to be transferred voluntarily or involuntarily, were being handled.

Ms Breytenbach noted that the ECMS was an effort that had now been running for a number of years. However, despite the time and money put into the system it did not seem to get off the ground. While she was glad that it had been stated that the project had been piloted, she asked how many case dockets had been loaded onto the system, how many had been successfully used in trials and how police and prosecutors were being trained to retain the integrity of the information. The Minister of Police had indicated that only one docket had been loaded on the system; while she was sure this was a mistake it seemed to indicate an inordinate amount of money being spent on one docket.

She asked Mr Hofmeyer what the current state of affairs was with the Andrew Phillips matter and The Ranch, because she understood it was an on-going issue.

Ms Breytenbach noted that she was appreciative that there was a concern about cybercrime, but asked how the police and prosecutors were being trained to deal with the ever changing landscape of cybercrime. Furthermore she asked what was being done with legislation in the pipeline regarding this issue.

She noted that the NPA could not possibly be happy with how the Dewani matter turned out and asked what remedial steps were being taken. On the matter of the previous Judge-President of the Kwa-Zulu Natal High Court, Mr Patel, she asked what the current position was, how this had happened and what was occurring with the civil claim. She also congratulated the NPA on the outcome of the J Arthur Brown matter, with a much better sentence being handed down after the appeal.

The Chairperson said there is a practice in this Committee that where a Member asked a question which the officials were unable to answer the officials would be allowed to prepare a written response, and this was done in order to avoid officials believing that they may have to answer something on which they were not prepared, which might lead to accusations that they had lied to the Committee.  The NPA had correctly prepared the presentation focusing on the budget, but Members could not be stopped from asking other questions, and so if some of these questions could not be answered at the moment, they could be responded to in writing.

Mr Nxasana said when he had introduced the delegation; he had mentioned three acting persons.

Mr B Bongo (ANC) interrupted saying that, due to time constraints he would like suggest that Members be allowed to ask their questions first, and that all answers be given at the end.

Mr W Horn (DA) said it may be that there would still be follow up questions on some of the answers. He would be wholly unsatisfied with only one set of answers, and would also argue that the Committee had not discharged its duty if it were to accept only written answers.

The Chairperson said he had said that there was a practice that if matters cannot be dealt with in the meeting, officials are allowed to send written responses. He had not yet asked for written responses, If Mr Horn had made his remarks in response to Mr Bongo his response was irrelevant. He said that after the NPA had answered, an opportunity would be given for follow up questions and nothing would disadvantage Members in that regard, aside from a protracted discussion now on the approach to be taken.

Mr S Swart (ACDP) said it was also a practice that two rounds of questions were allowed,and seeing that the Chairperson and Ms Breytenbach had asked a number of questions, perhaps it would be best to allow answers to these.

The Chairperson said he thought the second round would be for Members to ask follow up questions.

Mr Nxasana continued with his answers. He noted that the Chief Financial Officer position had been advertised, short-listings had been done and interviews would soon be conducted, which hopefully would identify a suitable candidate. The previous Deputy Chief Executive Officer had recently retired and the post would be advertised. The position of advisor to the NDPP had also been advertised and Support Services was busy with the shortlistings.

Mr Nxasana said that he would have to respond on the Inge Lotz matter in writing. On the Dewani matter, he agreed that the NPA was not happy and a report had been requested from the DPP of the Western Cape. This case was one where the evidence to be relied upon was the oral evidence of an accused, who became a witness under section 204 of the Criminal Procedure Act. Unfortunately, the NPA could not control a witness testimony on the stand and this witness had recanted from his original statement. There was little that the NPA could do, but it was looking into ways of dealing with similar matters in the future. On the Judge Patel's matter, thus far, as reported in the media a letter of demand had been received by the NPA in consequence of the charges brought against him, which were later withdrawn.

Ms van Rensburg responded that the ECMS had indeed been a protracted project. The main challenge had been to get all the various role-players, different Ministries and Departments, to agree on what the Key Performance Indicators ought to be. This took a number of years and the current challenges were infrastructure-related, such as getting the equipment and space in courts. All the various role players were involved in trying to meet these challenges - for example, SAPS hosting the backup systems. The funding came from the Integrated Justice System, which all the criminal justice departments were a part of, and they each paid for their respective elements through a bidding process for the IJS budget. This provided a very good understanding of what the relevant departments would be doing with the money and what the management requires the ECMS management reporting to include. It had been piloted at two sites. She was not in a position to comment on what the Minister of Police may have said. She was aware that at Davidton there were 100 active dockets and at Benoni there were 60 active dockets. The system was designed to deal with docket security, with the entire docket being scanned at the police station, so that if the docket was lost, it would be the hard copy lost only, while there was a complete back-up. System security and data integrity were protected by requiring certain user rights at that point in the system and if anything was added or removed, this was recorded with an exception report detailing who had made the change, and when. Dealing with classifications on charge sheets took a year to be agreed on in itself, because the NPA and SAPS classified charges differently. This was an important aspect that had to be attended to, because consensus among the role players must be built, and this would ensure that everyone’s requirements from the system would be satisfied. Presently, the SAPS was at a stage where it was willing to roll out far more sites than the NPA could handle. At present there were "growing pains", but the NPA was confident that the system would make everyone’s lives easier.

Ms van Rensburg responded that there was indeed movement on the OSDs and LP-10, and it was sought to be implemented specifically to deal with people at level 13, who were at times earning less than those at LP-9, as people in LP-9 were able to get two notches if they scored above 140. A proposal had been brought to the NDPP about the implementation of LP-10, and a meeting would be held with the relevant directors and DNDPPs to discuss the nitty-gritty of the implementation. The fact of the matter was that the NPA could not retrospectively implement, because it simply did not have the funds, and it would be meeting with the union on this matter. Funding was an important consideration and would dictate how many LP-10 positions are created. In the OSD certain criteria must be met and once this was properly understood the number of posts could be determined.

Ms van Rensburg noted that in respect of the new High Courts, the building was nearly completed in Limpopo, and occupation would soon begin. The recruitment processes were completed, the posts were advertised and all individuals were able to apply for them. In Mpumalanga, accommodation had been found while the court was being finalised, although in the meantime full capacity has been recruited. The Pretoria office would lose a lot of its workload, because the relevant courts previously did not sit on a permanent basis and were serviced by people from the Pretoria office. Not many people from the Pretoria office had applied for the posts in new courts, and this meant that there was therefore over-capacitation at the Pretoria DPP office. The NPA has liaised with the unions and established a committee which was representative of the staff at the Pretoria, Johannesburg and Thoyandou offices, because these were all affected. Terms of reference had been signed off and the committee would be making recommendations to herself and the NDPP around how requests for transfers were to be dealt with. There were plenty of places in the organisation for people to be accommodated, and the NPA was confident that there would not be loss of jobs, although people would have to be redeployed. Regular communication with staff about this matter was done through a newsletter.

Adv Mokhatla answered the questions on cybercrime, and said the NDPP had appointed 24/7 nodal points for the cyber programme. The NPA had strong relations with the global project on cybercrime, funded by the European Council. Training was happening, and in fact on the previous day a programme was finalised with 20 participants from various DPP’s offices, SCCU prosecutors, and coordinators of mutual legal assistance within the DPP’s offices. In the near future, there would be a roll out of a programme where the SAPS investigators would be trained along with the Prosecutors. The SAPS had already received basic training, and in May another training session would happen on cyber-crime funded by the United States Department of Justice. The NPA had been invited to participate.

Mr Hofmeyer said that in respect of The Ranch matter, the prosecution lost on appeal and the AFU had been attempting to return the asset, but Mr Phillips refused to have the property returned until a large amount of money had been spent on it. The AFU is currently litigating to have him accept the asset and hopefully the matter would be expedited.

Mr Horn said the Committee should be generally happy with the NPA’s achievements of targets and if he was to focus on failures, this should not be interpreted as being totally critical of its work. He questioned why the 88% target for the district courts had been set lower than what was achieved in the last three years. He said there were two cases involving minors which have been reported on, where the NPA had failed to act in accordance with the Child Justice Act, and in the latter instance that the NPA failed to insist that the charges be read to an accused child. In this case, it later turned out the child was charged with four charges, three of which were under repealed sections of the Criminal Law (Sexual Offences and Related Matters) Amendment Act. This does not necessarily indicate a pattern, but it brought to light the need for extra sensitivity on matters relating to sexual offences and minors. The Committee did not get separate reports on these sorts of matters and he would like an indication of the situation, if not on these specific cases, then at least generally.

Mr Horn noted that page 36 of the presentation set out targets for recovery from government officials which grew from R100 000 to R400 000 over the medium term. While this had not been a target previously, he wondered if these were really in line with the perception of wholesale corruption. He also differed from the indication from Mr Hofmeyer that these were ambitious targets.

Mr Horn noted that there had been an apology from Adv Jiba, but no reason was given for this. The NPA had said that it had a zero tolerance policy towards fraud and corruption, yet Adv Jiba had been charged with fraud. While he was appreciative that it was not within Mr Nxasana’s authority to suspend Adv Jiba, pending the outcome, he wondered how he was dealing with the fact that someone on his senior management team had been accused of criminal conduct.

The Chairperson interrupted to point out that people were presumed innocent until proven guilty.

Mr Horn responded while that may be the case, it was not an uncommon practice for people to be suspended from their position while facing such serious indictments. He thought that with the NPA this would definitely, rather than potentially, apply. He continued that Adv Sibongile Mzinyathi and Adv Lawrence Mrwebi also faced applications for being disbarred, perjury charges and charges of defeating the ends of justice. While he appreciated that there were processes, the question was what leadership could be provided in that situation; the people were surely compromised in their task of managing prosecutions. He wanted to know whether these charges and the lack of suspensions had compromised the institution and how it was being dealt with. Lastly, he noted that the case against Adv Mrwebi had been struck from the court roll and the reason this was done was that the NPA applied for a postponement to get an opinion from a senior counsel. The magistrate was of the opinion that the postponement was not warranted, because the NPA was meant to be the expert on prosecution and the criminal law. He therefore asked for an explanation of why the NPA felt it could not handle the matter, without the opinion of a member of the Bar.

The Chairperson said he was not going to suppress questions, but he did not feel debates based on the media or debates which are before the courts were appropriate

Mr Horn said this was why he had suggested that the NPA may respond generally, rather than on the specific cases regarding minors that he had mentioned. The problem was that there was no other reporting of the prosecution of sexual offences by minors, and there was a perception that this was still being handled sloppily at times. On the Mrwebi matter, the Committee should be able to ask why the NPA allowed the matter to be struck off of the roll.

The Chairperson said where the delegation was not able to respond, the Committee would not hold this against them.

Mr Horn disagreed, and said he would indeed hold it against them.

Mr Nxasana spoke to the Adv Mrwebi matter, and said that, as he understood the matter, what was sought was not an opinion from Counsel, but rather the postponement was intended so that Counsel could be briefed. He believed the case had been withdrawn, but it had been referred to the General Council of the Bar. He said he was unfortunately not at liberty to discuss the questions around senior members of the organisation facing criminal charges or applications for disbarment.

Mr Horn said he had not asked for comment on the matters, but had asked how the NPA was dealing with the members continuing to be in office, where it had to ensure that the integrity and credibility of the institution was not compromised.

Mr Nxasana said there were management meetings held, with the head of the institution playing a supervisory role. In his view the fact that these people were facing charges had not prejudiced the institution.

Ms Makeke, speaking to the perception of the organisation, said the media played a major role in sending out messages about what was happening with the organisation, and there is a media monitoring mechanism which tracked what was said about the NPA on a daily basis, with a response plan where there was inaccurate or negative information.  From a strategic point of view, perception drivers were identified which included leadership. Whenever something relevant was occurring, the NPA would try to communicate. The best positive driver was performance of the organisation and services provided, and the NPA tried to make use of un-mediated platforms such as community outreach where the NPA could communicate directly.

Mr Swart acknowledged that the NPA had performed well given increased targets and a strained budget. He did not want to ask Mr Nxasana about the inquiry, but he was concerned about the delay in the finalisation of the inquiry, as it impacted on the NPA. He urged all the parties involved to try and finalise it as soon as possible.

Mr Swart wondered what steps the NPA was able to take for xenophobia matters, to ensure speedy prosecution of people involved in xenophobia, because this could be an effective deterrent.

Mr Swart was glad to hear the AFU was dealing with smaller matters, and would like to know if it planned to roll this out to other provinces. Previously, he had raised the lack of capacity being given to the AFU. It was a win-win for if it was properly capacitated it would be able to collect vast funds. On the NPA’s relationship with the SAPS, there may need to be discussions with the Portfolio Committee on Police. This was a problem which affected the NPA as whole, given media reports about the service of certain subpoenas and complaints from the judiciary about sloppy investigations. He made the point that it was difficult to hold the NPA accountable for not meeting its targets, where there could be an underlying problem with investigation and he wanted comment in this regard.

Mr Swart noted that, in relation to witness protection, he received complaints from members of the public who were having their lives threatened, and he would like to know what the criteria were for including people on witness protection programme. He had received two confidential matters, where the matters had not yet reached the NPA, still being with the SAPS, but where actual attempts have been made on witnesses’ lives already. He wondered why the police were not referring these matters to the NPA, and asked whether it was only when the docket reached the NPA that witnesses were protected.

Mr Nxasana said there were engagements with the SAPS and courts on xenophobic violence. The attacks this year started in Kwa-Zulu Natal, and so far, a multi-disciplinary approach had been used, with the judiciary providing dedicated courts and magistrates. The DPP for Kwa-Zulu Natal had appointed a senior Deputy Director to coordinate prosecutions. The matters were then referred to the chief prosecutors, and dockets were referred to senior public prosecutors only for screening. Once there had been an arrest on matters linked to xenophobia, SAPS would immediately inform the NPA, which would allocate a senior prosecutor to guide the investigation. It was hoped that, by using this approach, it would avoid fingers being pointed between the NPA and SAPS. In Gauteng a similar approach was being used, although there had not been dedicated courts, but there were dedicated personnel in the form of magistrates and prosecutors. These matters were dealt with in the office of the DPP and were delegated to senior state advocates as they arrive.

The Chairperson said perhaps his legal knowledge was out-dated, but questioned why it was that people who appeared to have acted on common purpose were not arrested, charged and made to reveal people who had not been found.

Mr Nxasana said the multi-disciplinary approach would hopefully allow for this to happen. This was why the matters had only been allocated to senior prosecutors and advocates in the DPP’s office in Gauteng. This would allow screening, and assist in guiding the investigations, so that where others were identified the prosecutors could ensure they were arrested and charged.

Mr Hofmeyer said the AFU was only starting to turn away work, and that this was given the number of large cases, so that only smaller matters were turned away, and these are not cases dealing with hundreds of millions or billions of rands. Speaking to what happened to money recovered, he explained that the money was paid into CARA and National Treasury saw that settling the expenses of the AFU was the first call for such funds. A lot had been received over the years, and it has been dedicated to the Anti-Corruption Task Team and other law enforcement projects. The limitation was that the money could not be employ people, as it has to treated as once off funding rather than recurrent funding.

Mr Swart commented that, initially, money received from the Competition Tribunal went to the fiscus, until the Minister of Economic Development insisted that it go to the Competition Tribunal itself. Where bodies such as the AFU and Special Investigations Unit collected funds and where they were struggling with capacity issues, an argument could be made out for their receiving the funds themselves, as there was now precedent from other departments.

Mr L Mpumlwana (ANC) said there used to be a good relationship between the SAPS and NPA, whereby the decision whether a person should be arrested or prosecuted was a matter of discussion between these two institutions. However, this was done without consultation with the victims, particularly people in rural and poor areas. He asked whether the NPA was holding regular meetings with the SAPS, to try and work out the delays due to poor cooperation. He noted that there were minor crimes, such as illegal gambling, happening in small towns and there seemed to be no prosecution of this at all. There was also a trend where identity fraud was being perpetrated, particularly against elderly people in rural areas, and once again no prosecutions would follow. Sometimes police were not even aware that this was a crime. Yet another example would be the illegal fishing going on in rural towns. He asked that the NPA ensure that prosecution was improved in these matters.

Mr Mpumlwana felt the ECMS was a good initiative, but he wanted to know who exactly was paying for the system, as several institutions were involved. He asked whether there was any portion of the funds which the AFU recovered which had been returned to the NPA. Furthermore, with the increasing targets for funds recovered where offences related to corruption were concerned, he wondered whether this was a suggestion that government was losing the fight against corruption.

Mr Mpumlwana said that another critical area of concern was that court proceedings were conducted in English, which was a foreign language to the majority of people in South Africa. Many people did not understand what is going on in courts and many policemen also did not speak English, but had to write statements in English which drastically affected other people’s lives. He would suggest that all proceedings be conducted in a language which was understood by those involved, from the docket to the judgement. If the NPA was concentrating on justice for all being done, then it was important that the court processes were accessible to accused persons. This was coupled with the fact that the court procedure itself was foreign to many people, because in the African culture the families would be involved, interrogate the accused and then determine appropriate steps including restitution. However, in the current system people were simply found guilty or not. He felt this was oppressive to the majority of people in the country and while it used to happen, it could no longer be accepted as normal.

The Chairperson commented that this was an important point made by Mr Mpumlwana, because language could lead to a miscarriage of justice. He did not feel that there was any reason to plead with the courts or NPA to use indigenous language. He suggested making it law; so that in order to qualify for a law degree a student must demonstrate full capability in an indigenous language. A meeting may be required with the universities to demonstrate how language was posing barriers, and to deal with the legal curriculum once and for all. It may be that the situation at present was looking at access to courts, rather than access to justice.

Mr Nxasana said there were forums where the NPA would meet with the SAPS, but he had not had the chance to meet with the Commissioner of the SAPS. Recently, a workshop resulted in the formulation of a strategy for identifying matters at an early stage, to work with the police under a prosecutor-guided investigation model. The cases where prosecutor involvement was required were identified early, which also helped to translate to expeditious prosecution. On the issue of language, he agreed that this had been raised in several fora and has been identified as one of the challenges in legal practice and for access to justice. There was a time when indigenous courts were piloted, and set up to use indigenous languages, but this was stopped as it was deemed by the DoJ to be impractical to use indigenous languages.

The Chairperson asked for the impracticality measures to be unpacked.

Ms van Rensburg said the Department of Justice and Constitutional Development would be better placed to answer, as it was an initiative of this department. One of the major challenges was the balancing of employment equity, so as to ensure that every single office was representative of the country as a whole. In some areas it was a struggle to ensure a court had a magistrate, a clerk and other staff who could all speak the same language. Another problem was where a docket was written in an indigenous language and a different prosecutor might have to take it over who could not read that language.

Mr Romeo Adams, Deputy Director General: Corporate Services Department of Justice and Constitutional Development, said he was unable to answer at present and would ask for the Committee’s indulgence to respond in writing. He said he would refer the matter to the Director General and Deputy Director General: Court Services for their response.

The Chairperson said perhaps this was an instance of asking the right question in the wrong context. As matters stood at present, the universities were producing lawyers who did not understand indigenous languages, and it was impractical therefore to require the prosecution and courts to operate in these languages, because there were not enough lawyers with the correct knowledge. He felt the Committee should not be a spectator, and an indaba with the universities and the Department of Justice and Constitutional Development was needed, to discuss language as a barrier to justice. His view was that all that was required was that study of indigenous languages should be compulsory for law students, and for social workers who were involved in court processes.

Mr Adams added that it would be recalled, from the previous day’s engagement, that the Director General had indicated that Departmental representatives were involved in discussions with the Council for Higher Education. The response, which he again suggested be in writing, could address the indigenous courts, rather than about the curriculum.

The Chairperson said this bar to justice affected the majority of the people in the country and it could not be left to various offices to deal with the situation. Rather, the question should be taken to the people to determine how to deal with the situation. He said the Committee would contact the Minister and Director General with a view to holding the proposed Indaba.

Mr Mpumlwana appreciated what the Chairperson was saying, but said that there were injustices presently being perpetrated and convictions handed down now may be prejudicial to accused persons. He said unless languages were used that people understand, injustices would continue to occur.

The Chairperson said no one would disagree. All that was being suggested was that all the role players must be brought together, made to understand the problem, and a complete solution must be found. 

Mr M Maila (ANC) said the NPA identified public perception and reputation of the NPA as a risk. He would like to know how far the NPA had come, and what was being done, to ensure that this was not negative. Mr Horn had raised the targets for convictions rates as being lower than the achieved performance over the past three years, and he would also like to know why this was so. On witness protection, he said there was no indication of witnesses harmed or killed while in the programme over the past several years. However, people did walk away from the programme and he would like to know why this occurred and how it was being combated. Speaking to the conviction rates in violent protest and industrial action, he asked that whilst people were being convicted, this could perhaps also be part of public outreach, as this would assist in avoiding the problem.

Mr Nxasana said people in the witness protection plan were left on their own to decide if they needed to stay, and if they left, this was what was meant as "a walk off". The NPA had no power to stop people leaving, but in most cases they remained and the best that could be done was to advise them of the benefits of remaining in the programme,

Adv Mokhatla expanded on this, saying that there were two stages to entry into the witness protection programme. Firstly, temporary entrance into the programme, with applications under section 7 of the Act, spoke to a "witness", which the NPA had interpreted to mean both a current and a potential witness. If a person felt that s/he had relevant information and that life could be in danger, there were several places that a person could go to for help, including the Director of Witness Protection, the prosecutor who was in charge of the matter, the DPP’s office and the investigating officer. The turnaround time was generally that the person would be placed in a position of safety within two hours.  Witnesses were then placed in temporary protection for two weeks, while an assessment was done as to whether the circumstances of the case would warrant protection of the witness. After this two week period, the witness, if accepted onto the programme, would sign an agreement form which stipulated the conditions around the programme. She agreed that walk offs happened, because people could become tired and the case might not be proceeding. The NPA, as far as possible, tried to expedite the cases that involved protected witnesses. It was not the case, as Mr Nxasana had suggested, that they would be "left on their own" but rather that they would retain freedom of movement. Some people signed the indemnity document before leaving, but others simply left.

Mr Bongo wanted to know about the effect of the vacancy rate vis-à-vis the workload to be generated by courts which were in the process of being built in Limpopo and Mpumalanga. On the indicators for conviction rates for offences related to corruption where the amount benefited is more than R5 million, he wanted more comment on the target of 20. On the establishment of a body to review the decisions of the NPA, he wanted comment, given that there was no complaint management process internally. He was interested in a plan to deal with the delays in prosecution. He would also like a demographic breakdown of the NPA, and how transformation was being implemented.

Mr Nxasana noted that a body to review the decisions of the NPA was a suggestion raised by the Institute for Security Studies, which indicated this approach had worked well abroad. The NPA was looking into its viability in South Africa.

Ms van Rensburg said of the total NPA staff, 51% were women. On the racial demographics, she noted that a challenge remained with senior management and top management, also in regard to gender equity. African females made up 30% of the total staff, coloured females were at 6%, Indian females were 3.7% and white females were 11.2%. 34.5% of the total NPA staff were African males, 4% were coloured, 1.7% were Indian and 8.4% were white males. The challenge with top management was being treated as a priority and there was an equity strategy in place. Recruitment could only be done in line with the targets set.

Adv Mokhatla spoke to the target for corruption where the amount benefited was more than R5 million, and said the target of 20 was a cumulative target over a period of five years.

The Chairperson said he personally was satisfied with the answers, but asked that if any other Members were not, this should be communicated to his office, and any questions would be transferred to the NDPP for written response.

Mr Horn asked if this was the Chairperson’s way of indicating that the questions that were yet to be answered would be answered in writing. He asked if there would be another round of follow up questions.

The Chairperson said the remaining questions would be answered in writing, and there would not be follow up questions.

Ms Breytenbach asked about the USASA matter that had been dragging on for years and she wanted to know when it would go to court, and what was causing the delay.

Mr Horn wanted to return to his question about the integrity of the institution, given the current disciplinary processes. Whilst the Chairperson had rightly indicated that the NDPP could not be the judge and juror in its own case, he wanted to ask whether management had done an appraisal of the risk of adverse findings on fitness and propriety ultimately being made. To his mind, should this happen, there would then be a risk of wholesale or high profile applications to review cases. He wanted to know what checks and balances were in place to avoid wholesale review proceedings being brought against the institution, either by the NDPP or his deputies.

The Chairperson said if anyone decided to investigate whether a person was fit and proper, this was not a finding and had no effect on anything.

Dr Ramaite said there was a decision of the Supreme Court of Appeal, regarding the former National Director of Public Prosecutions, Mr Menzi Simelane, to the effect that a finding that he was not a fit and proper person did not affect his decisions while in office.

The meeting was adjourned.