National Prosecuting Authority on its 2017/18 Annual Performance Plan

Meeting report

Briefing
Adv Shaun Abrahams, National Director of Public Prosecutions, addressed concerns raised by a Member the previous day on the effects of crime on victims of crime and of economic exclusion. He referred to the Service Charter for Victims of Crime approved in 2004 and said that the Minister had commenced an evaluation process about the implementation of the Victims Charter where a ministerial task team would identify gaps and challenges in implementation. He noted that Acting Minister Muthambi had said the previous day that the NPA had been at the forefront of developing a victim centric approach to gender based violence against women and children out of which had emerged the Thuthuzela Care Centre (TCC) model. There were 55 TCCs and the NPA wanted to expand that to 60 in the next three years. In 2016, it had organised a crime workshop to improve synergy in combating GBV. The Asset Forfeiture Unit (AFU) would be reprioritising to concentrate on high value cases and an informal working group had been established to eradicate illicit money flows. Budget constraints however remained a major problem for the NPA.

The Chairperson said questions remained around the communications breakdown between the ministration of justice and people because of language. Lawyers were all English speaking while the majority of people spoke indigenous languages. In the future lawyers should know one of the African languages and a social science. African human rights instruments were not being used; rather there was a focus on UN human rights agreements. Universities did not teach African restorative justice or African law. Justice has to be accessible to the people.

Dr Silas Ramaite, Deputy National Director of Public Prosecutions, presented the NPA Annual Performance Plan (APP) for 2017/18 and budget. He said no amendments had been made to the strategic objectives of the plan. The indicators for number of cases finalised with verdict and those finalised through ADR were removed and would be reported in a consolidated manner under all criminal/court matters. The TCC target of 60 would be reduced to 55. The number of completed forfeiture cases and freezing orders would both be changed to a percentage value to address audit queries by the AG and ‘success rate’ would now read as ‘litigation success rate’. The Plan provided targets for various court conviction rates in Programme 1. The NPA had used its 2016/17 performance as targets for 2017-2020 for various high, regional and district courts and for conviction rates for complex commercial crimes, organised crime, sexual offences and trio crimes. He went through the targets for Programme 2: AFU and Programme 3: Office for Witness Protection (OWP).

Ms Hanika Van Zyl, NPA Financial Director, spoke to 2016/17 expenditure as at 15 March 2017. She said the National Prosecution Service (NPS) and AFU had effected savings but it was a challenge. She was concerned about curator expenditure and overspending on witness protection services because of higher costs. Moving to the budget for 2017/18, she said there was only a 3.5% budget increase which was a concern because it would not cover the cost of living increase of 6.6% so there was a need to implement cost containment measures. The budget was R3.5 billion; 84% of the budget was for compensation of employees which was a big concern as the norm was a 75:25% split between cost of compensation and goods and services. There was a projected R36m shortfall for the personnel budget and, after interventions, there would be a R42m saving because of people lost through retirement for example. However, the impact was that there was an increased backlog of cases, increased absenteeism, increased cost of Employee Wellness Programme services, negative impact on court performance and increased threats to witnesses. It would also impact on future funding needs for the establishment of offices in Polokwane and Mpumalanga, on 53 additional posts and on enrolment into the aspirant public prosecutor’s programme.

Adv Abrahams said the aspirant public prosecutor programme was critical to sustain the institution, and this is not tenable.  He said the current situation was completely unacceptable. It has major negative repercussions for the future sustainability of the institution if it could not continue with the aspirant public prosecutor programme. It had reached the stage that the programme must be re-initiated. He had appointed a senior person to take over the programme and it would be called the National Prosecution Authority Academy or similar. They wanted to recruit the best people and it was critical that funds be found for the programme.

Mr Ramaite said the idea was to have something similar to the profession’s candidate attorney programmes.

The Chairperson asked who worked at the TCCs.

Adv Thoko Majokweni, who heads the Sexual Offences and Community Affairs (SOCA) Unit but is currently Acting Deputy National Director of Public Prosecutions and Acting Head of NPS, said it was staffed by medical and social workers, NPA staff, a victim assistant officer, a case manager and a site coordinator.

The Chairperson commented that unemployed graduates could be used there.

Adv Abrahams said although vacant posts were not being filled, he has taken a decision that critical posts must be filled. The AFU was required to use curators but the costs were huge. He had established a task team to bring those costs down. The Criminal Assets Recovery Account (CARA) funds did assist in this regard. He said the number of witnesses and related persons were out of their control and so costs of the OWP could increase astronomically.

Discussion
Mr W Horn (DA) asked about the possible prosecution of Mr Pravin Gordhan over the rogue SARS unit.

Mr L Mpumlwana (ANC) said that matter was not relevant to the presentation. The Committee should not enter into political issues therefore he objected to the matter being raised.

Mr Horn replied that the matter was raised precisely to ensure that cases the NPA pursued were not politically motivated.

The Chairperson said Parliament could not pre-empt the work of the prosecution authority.

Adv Abrahams replied the matter was not under the NPA’s ambit at present; it was under investigation by the Hawks unit of the police and the investigations were still ongoing.  He said the NPA only had the power of review over cases.

On the operational structure of the NPA, Mr Horn said two of Adv Abrahams’ deputies were placed on special leave by their own request. What were the positions of Adv Jiba and Adv Mwrebi and, given the NPA budget constraints, had the NPA thought of withholding their remuneration pending their appeal outcome. He noted the Minister of State Security had said he was concerned about state security and that there might be a need to regulate social media. Was there any interaction with the Minister either before or after his statement? He said that while there was sympathy for the downward trend of the NPA’s performance caused by budgetary constraints, it did not make sense to reduce Thuthuzela Care Centre (TCCs) from 60 to 55 when it was doing so well.  He said it must be a worry that budget constraints were used to set underperformance targets for various conviction rates, for cybercrime targets which were nowhere near 2013/14 targets and targets for government officials convicted of corruption. Was the downward trend ascribed to a lack of proper legislation for cybercrimes? He was also concerned about the targets for the value of freezing orders for amounts less than R5m and the value of POCA recoveries.

Mr Mpumlwana asked for the NPA’s comment on the use of video-conferencing and African languages in courts.

Mr S Swart (ACDP) said that at a recent joint Portfolio Committee meeting on illicit money flows, it was alleged that the NPA did not have the capacity to follow up cases of suspicious transactions reported by the Financial Intelligence Centre (FIC). This raised concerns about the capacity constraints of the NPA. What could one expect about an improved response to FIC information? Similarly, he asked about the impact of capacity constraints on the protection of witnesses and whistleblowers as well as on the Prevention and Combating of Corrupt Activities Act. Had there ever been a prosecution arising from the latter Act? He asked that the AFU performance targets be explained further because they had been substantially reduced. How many cases had been finalised through alternative dispute resolution mechanisms? He said the fact that court performance targets would no longer be reflected was important because it impacted on the NPA’s performance. This issue needed to be raised with the Office of the Chief Justice. He asked if the reduction in the Legal Aid budget had influenced postponements and hence NPA conviction rates.

Ms M Mothapo (ANC) said the reduction of the TCC target was a concern. What was the difference between TCC and victim empowerment centres at police stations? She said NPA prosecutors were well trained to tackle racism, which was rearing its head such as the comments made by Ms Helen Zille, Ms Kohler-Barnard and Ms Sparrow, and especially as Parliament would be dealing with the Hate Crimes Bill.

The Chairperson said that those matters could be addressed when the Hate Crimes Bill was before the Committee.

Ms Pilane-Majake said that Mr Horn’s questions had started this diversion which took the focus away from the APP. She wanted the Committee to focus and engage on the APP.

Ms Mothapo asked why trainers trained on gender based violence in a NPA project could not be used in TCCs. She wanted clarification on the powers and duties of the National Director of Public Prosecutions because there were perceptions that the director was interfering in some cases. She expressed concern on the overspending by the witness protection unit and asked for more explanation. She wanted the increase in the compensation of employees / goods and services ratio explained. How was the NPA losing personnel?

Mr M Maile (ANC) said one major problem was overcrowding in correctional services. The presentation noted challenges in NPA case flow management which impacted on overcrowding. How was case flow management done efficiently? The presentation also noted NPA’s victim centric approach, without indicating how offenders were held accountable. How was NPA fighting corruption in government and in the private sector? His impression was that it only dealt with the public sector. He wanted instances of cases involving the private sector. The Criminal Procedure Act made provision for private prosecutions and Afriforum had launched a private prosecution unit, headed by Gerrie Nel. Would this bring radical new prosecutions?

On Afriforum, Mr B Bongo (ANC) said doubt was now cast on public prosecution in favour of private prosecution. How had this affected staff morale? On indicators and targets raised by Mr Horn, he said the NPA needed to look at its projected targets which fluctuated. Alternate dispute resolution was the future and would cut down on case backlogs. How much was involved in the freezing of account orders?

Adv Abrahams said it was not accounts that were frozen, it was amounts that were identified as proceeds of crime that were frozen.

Mr Bongo wanted to see an increase in the 72% prosecution for sexual offences. He wanted comment on the Occupation Specific Dispensation and to what extent it was affecting the NPA. He asked about the general turnaround of NPA case flow because he was interested in a particular case, that of Ms G Breytenbach.

Mr N Matiase (EFF) said that in most countries, the strategy was to remove criminals from society and to eliminate underlying causes of crime like unemployment, poverty, illiteracy, social inequality and youth delinquency. He said it was unfortunate this was not the mandate of the NPA and perhaps the Committee should make recommendations based on these.  It appeared the NPA was not obliged to prosecute once a case has been made by other agencies, because of the NPA’s power of review to decide whether to prosecute or not. Was this power ethically and competently used or was it open to abuse? Was it designed to serve justice or selective prosecution? Would they be eager to open the Andries Tatane case which had been closed due to lack of evidence, not withstanding video evidence to the contrary. Would they tackle the Tatane case with the same eagerness and vigour displayed in the Oscar Pistorius case?

The Chairperson asked if he were saying the Committee should decide which cases to open or close.

Mr Matiase said the important thing was that the NPA should take urgent steps to enhance public trust in the NPA. He noted that inadequate baseline information had been given to assess the conviction rate targets set for different court levels and therefore it would be difficult for the Committee to do its oversight work. The Committee should also be informed on how the case backlog would be reduced. What was the level of the court case backlog? Could the NPA develop a strategy to relieve correctional centres by having alternative means of dealing with awaiting trial prisoners?

Ms Pilane-Majake said the Committee needed to move away from micro-managing government institutions. She believed in the entity but she was concerned about the overspending and the reduction in the NPA’s budget. She felt that numbers gave a better sense of the NPA’s impact rather than the percentages that were used in the presentation. A comparison with previous years’ figures would also assist.  How did the efficiency enhancement committee operate and would it have any impact on remand detainees because this figure needed to be reduced? She wanted a 100% conviction rate for rape cases and harsher sentences for violence against women.

Adv Abrahams said it was correct that Advocates Jiba and Mrwebi were on special leave.  He had written a letter to the DA’s lawyers setting out the terms of the special leave they had requested and which he had acceded to. A condition was that they come to the office should the director require them to based on work that they had done for the office. They have only come back for one day to do work and he had not requested that they come back. It was not up to the NPA to decide whether to revoke their salaries, it was up to the President to invoke section 12(6) of the NPA Act and the President had stipulated he would not suspend them nor hold an enquiry into their fitness to hold office and would await court processes to be concluded. 

On the NPA’s Priority Crimes Litigation Unit and whether they had engaged with the Minister of State Security, Adv Abrahams said advice on security matters had to be given to the National Director of Public Prosecutions. None of the Priority Crimes Litigation Unit (PCLU) members had engaged with the Minister of State Security.

He said there had been a vacancy of a special director in the AFU and he had brought in the experienced Adv Knox Molele to strengthen the capacity of the AFU.

On awaiting trial detainees, Adv Abrahams said he would provide a response in writing on the statistics requested. The NPA met with stakeholders on a monthly basis to revisit cases where bail was to be paid and that by the following appearance the prosecutor and investigator had to have considered alternative means to have them released from custody, especially for non-serious offences. This was reducing the remand detainees. Another project was the release or amendment to bail conditions based on prison conditions such as overcrowding. There was a team working on this and they would make a submission. Once directives were concluded they would be submitted to the Ministry and to Parliament for ratification. This would have a very positive impact on reducing remand detainees.

Adv Abrahams said video-conferencing was being used for the postponement of matters, but it was not rolled out to all centres and there were challenges in its implementation.

Adv Abrahams supported the use of African languages in court proceedings especially where all parties were speaking the same language, such as in rural areas. The challenge was when reviews and appeals were heard and records had to be transcribed and interpreted.

The Chairperson said that if this was the argument, then things were being done for the convenience of the judges and not for the convenience of the people and it should be a requirement that no one could become a lawyer in South Africa unless they knew an African language. Justice had to be accessible to the ordinary person.

On the NPA’s capacity and ability to deal with illicit financial flows and money laundering, Adv Abrahams said that when Financial Intelligence Centre Act (FICA) was promulgated, the preamble called for the established of the Financial Intelligence Centre and a Counter Money Laundering Advisory Council. FIC was created but the Counter Money Laundering Advisory Council was never created. FICA provided for representatives of government and other stakeholders to be part of the Counter Money Laundering Advisory Council. The role of the Counter Money Laundering Advisory Council was to advise the Minister of Finance on money laundering, tele-finance and illicit flows. The Amendment Bill then did away with the Counter Money Laundering Advisory Council and he had made a recommendation to the Finance Committee that the removal of Counter Money Laundering Advisory Council was a grave error. Serious consideration should be given to revisit this matter as the work of the Counter Money Laundering Advisory Council could not be left to ad hoc committees. There was a need to create this structure because of the uncontrolled increase in illicit flows with billions leaving the country on a monthly basis.  Cooperation and collaboration was needed amongst government agencies and private institutions to curb the scourge. The NPA would welcome more funds to have increased capacity to deal with illicit financial flows.

The Chairperson asked why off shore banking was allowed, when there were complaints that funds left the country. How did one distinguish between legitimate and illegitimate flows?
           
Adv Abrahams said there were various means to bypass the formal banking sector.

On whether there had been any prosecution of individuals who were obligated in law to provide information but had failed to do so, Adv Abrahams said he was unaware of any such prosecution having taken place to date.

The Chairperson asked if whistleblowers had the right to decide whether they should be a whistleblower or not.

Mr Swart said there was an obligation to disclose when you, as a public servant, became aware of corrupt activities which were in excess of R100 000.

On the measurement of convictions, Adv Abrahams said this had to be taken up by the Office of the Chief Justice and it impacted on the NPA and the measuring of the NPA’s performance.

Adv Abrahams the NPA did not reduce the number of TCCs. It currently had 55 centres and ideally wanted 60 centres. It had approached the CARA Fund to establish five centres in the next three years. The 2014 target had been 55 not 60 due to financial constraints. But the number 60 had remained as the written target.

Adv Abrahams said the National Director had the power to decide whether a matter would be prosecuted or not in any court in the land.

Adv Abrahams said losing personnel was not good, but one could not stand in people’s way when they wanted to move on and he wished them well as they moved on.

On Mr Maile’s questions on case flow management, Adv Abrahams said it used to be the responsibility of the NPA but was now the responsibility of the judiciary. He added that perhaps it was time to revisit this and make it the NPA’s responsibility once again.

Adv Abrahams said the NPA did hold offenders accountable for their crimes.

On private prosecutions, Adv Abrahams said there was no need to be concerned or excited. Private prosecutions could be applied for where individuals were affected and suffered harm.  Entities could not apply. There had been only a handful of private prosecutions and only one successful one concerning a murder case in the Western Cape.

Mr Ramaite said cybercrime targets might have to be revisited. He would be meeting with the Specialised Commercial Crime Unit to reassess the targets. Given the capacity constraints, he did not think the NPA would meet targets it had reached previously. One could call for stretch targets but this would result in people burning out as evidenced by employee wellness reports.

Mr Ramaite noted the over expenditure in the OWP, because of the high operational costs of witness protection. The budget had been set at R49m but expenditure would be R64m. The budget had increased overall by 4.94% but leases had increased by 10% and this excluded maintenance costs for safe houses and vehicles. The OWP was with the Department of Justice.

Ms Majokweni said 27 correctional centres had video-conferencing facilities to deal with postponements and the NPA was looking to extend this to cover bail hearings which would reduce the number of escapes.

She said the NPA was monitoring the withdrawal of cases. The targets stood at 7% for the district court, 3% for the regional courts and 1% for the high courts and average court hours were 3 hours 12 minutes.

Ms Majokweni said the NPA had not reduced TCCs but had stopped growing the number of them. There had been a programme which had enhanced a traditional leader’s capacity to handle domestic violence and sexual offences. This was done after the NPA had done a study which indicated that many of the rural women preferred going to traditional leaders for redress rather than to go to courts. This initiative was followed up by imbizos.

Ms Majokweni said the victim empowerment rooms at police stations provided a good space to take a statement, otherwise there were no services offered there as were provided at TCCs.

Adv Abrahams said they would provide responses in writing to some of the questions that were posed.

The meeting was adjourned.