The National Director of Public Prosecutions, Mr Shaun Abrahams, reported on the First Quarter performance of the four programmes of the National Prosecuting Authority. Reasons for under achievements in trio crimes; number of persons convicted of corruption or offences related to corruption where the amount involved was more than R5 million; as well as the conviction rate for violent protests and industrial action. The achievements of the Asset Forfeiture Unit (AFU) were also highlighted. However, targets for the value of freezing orders and for recoveries relating to corruption involving more than R5 million were not achieved.
Adv Abrahams commented on topical concerns and cases in the public space, starting with the criticism against him on the silence exhibited on some matters. He expressed his willingness to appear before the Committee to address these when the need arises. On the State of Capture Report, he noted that a team of experienced prosecutors were constituted under the leadership of the head of the Specialised Commercial Crime Unit to provide requisite guidance to the Hawks investigation. A team of asset forfeiture specialists were added and the leadership of the head of operations of the AFU Unit. An analysis of the State of Capture Report warranted criminal investigation, hence the appointment of a team of prosecutors to provide guidance to the Hawks’ investigation. The NPA could not make a pronouncement on the merits of the matter until investigations were concluded. An eighth leg has been added to the investigations carried out by NPA, and details of all legs of the investigation were given.
Adv Abrahams emphasized that his appearance before the Committee was not to pronounce on the guilt or innocence of any person purportedly implicated in the ongoing investigations. He noted that he would be happy to engage with the leadership of AMCU on the issues bothering the organisation, which led to a communication of intention to embark on a protest march around the NPA building on a day when he would not be present in the office.
On the case involving Mrs Grace Mugabe, he said that no meeting was held by him with Mrs Mugabe’s lawyers and the national division of police, contrary to media reports in the country. It was confirmed that the statement of the Acting National Commissioner of Police was taken out of context.
Adv Abrahams concluded by stating that allegations of selective prosecutions were unwarranted and untrue; and should be stopped. He noted that decisions were made in jurisdictions of directors of public prosecution offices and not by himself or his deputies.
The Acting Special Director of Public Prosecutions responsible for the Asset Forfeiture Unit spoke to the underperformance of the AFU. He gave background information on the value of freezing orders, noting that most of the high value complex and in depth cases were investigated by the task team. NPA had identified and prioritised cases that would assist in meeting its targets. He explained the processes involved in recoveries and the reasons for underperforming. He assured the Committee that AFU would improve.
The Acting Chief Director on Financial Management said that NPA had overspent its budget by 0.72% by the end of Quarter 1 and provided a breakdown of spending. Cost pressures meant that NPA projected a shortfall of R71 million for personnel. The projection had been communicated to the Department of Justice and National Treasury, with the latter approving a virement of R57 million to cater for compensation of employees. This virement would have an impact on the NPA operational budget in areas such as machinery and equipment; travel and subsistence; property payments; consumables; and communications. The NPA had lost 156 officials during 2016/7 and 55 officials in the current financial year but it was unable to employ new officials. It was also unable to continue the aspirant prosecutorial training programme which has been suspended for two years which was key in bringing in new prosecutors.
The Deputy NDPP emphasized that the inability to fill vacant posts was critical. Unfunded priorities also posed a great challenge for the institution.
In the discussion, MPs asked about the loyalty of the NDPP to the principles that underpinned his office and the oath he took; overspending recorded under households and the Office for Witness Protection; whether forced savings would have a negative impact on the service delivery of the affected programmes; status of the Electronic Case Management System; difficulties facing the Polokwane and Mpumalanga High Courts; progress in implementation of the inter-agency strategy between the South African Revenue Service and NPA; whether the Memorandum of Understanding between the NPA, Special Investigating Unit and Directorate for Priority Crime Investigation has been finalised; the need to set realistic targets going forward; the need to address the backlog of cases; measures taken to address political killings; explanation on the practice of private prosecutions; as well as the need for the Committee to intervene on matters affecting the NPA in carrying out its functions effectively. One such matter was the filling of critical posts as a matter of urgency; and addressing the high levels of crime. A proposal was made for the Committee to request a briefing on the manner in which corruption and corruption-related cases were being handled by the NPA.
MPs sought clarity on the status of a number of cases including those relating to the leaked Gupta family emails; the handling of the docket on the charges of corruption in the Nkandla matter laid by the Democratic Alliance leader in 2014; the Phalane matter; investigation of the former acting IPID executive director and the break-ins at the office of Gauteng’s Director of Public Prosecutions and Pretoria Magistrate Court as well as the status of prosecuting cases of the Zama Zama phenomenon.
National Director of National Prosecuting Authority (NPA) briefing
Adv Shaun Abrahams, NPA National Director, reported on the four programmes: National Prosecutions Service (NPS), Asset Forfeiture Unit (AFU), Office for Witness Protection (OWP) and Support Services.
Of the 22 targets, 15 were achieved (68%) for the first quarter of 2017/18. The NPS achieved nine out of 12 targets (75%). A conviction rate of 91% was achieved in the high courts against a target of 87%. A conviction rate of 81% was achieved in the regional courts against a target of 74%. In the district courts, a 96% conviction rate was achieved against a target of 88%. A conviction rate of 94% was achieved in complex commercial crime cases against a target of 93%. A conviction rate of 94% was achieved in organised crime matters against a target of 90%. A conviction rate of 73% was achieved in respect of sexual offences against a target of 69%. However, a conviction rate of 80% was achieved in trio crimes against a target of 85%.
The underachievement recorded in trio crimes was due to investigations yet to be concluded and perpetrators yet to be identified. Despite this underachievement, the regions made a positive impact in combating trio crimes. A total of 419 case convictions relating to 495 counts comprising of 258 house robbery counts, 129 business robbery counts and 108 vehicle robbery/hijacking counts were recorded. A further analysis revealed that of the trio crimes, the highest conviction rate was achieved for house robbery at 82.4%, while the lowest conviction rate was for vehicle robbery/hijacking at 78.3%.
A conviction rate of 57% was achieved against a target of 74% in respect of violent protests and industrial action. Such matters were faced with inherent challenges such as the reluctance of witnesses to testify; identification of perpetrators and the notable significant discrepancies amidst evidence, which hindered NPA in proving the guilt of accused persons beyond reasonable doubt. In addressing these challenges, training has been provided to the police unit responsible for attending to riots and protest action, as well as to members of the detective services.
A conviction rate of 100% was achieved for persons convicted of corruption or offences related to corruption where the amount involved was more than R5 million. However, the target set on the number of government officials convicted for corruption or offences relating to corruption was not achieved, as NPA only successfully prosecuted 49 cases against a target of 53 cases. This was due to the non-finalisation of several matters as opposed to the number of cases anticipated to be finalised.
A conviction rate of 98% was achieved for cybercrime prosecution, against a target of 74%. A conviction rate of 77% was achieved for matters reported to the Thuthuzela Care Centres (TCC), against a target of 68%.
The NPA continues to be represented at the forum of heads of entities convened by the Director General of Justice and Constitutional Development to ensure effective delivery in the criminal justice system. It was represented at Provincial and National Efficiency Enhancement Committee meetings chaired by the judiciary to improve on challenges around case flow management. Criminal practice directives for the regional courts, issued by the regional court president forum came into effect on 01 September 2017, and this initiative was welcomed by NPA. The directives were aimed at improving uniformity; promoting best practices and eliminating delays in court proceedings.
Adv Abrahams’ concern around the application of the policy directive on Section 105(a) of the Criminal Procedure Act (CPA) plea and sentence agreement has resulted in the establishment of a task team to advise him enhancing the checks and balances created therein. It has placed greater responsibilities on the Directors and Deputy Directors of Public Prosecution, as well as National Deputy Directors of Public Prosecution. NPA was optimistic that further progress would be reported to the Committee in October.
On its accountability structure, final touches were being put in place as envisaged in Section 22(5) of the NPA Act. It is expected that the final submission would be done on or before 15 September 2017, after which it would be presented to the Committee in October. Also, a team has been constituted to revisit the policy directive on alternative dispute resolution (ADR) mechanisms to enhance uniformity in its application.
The Asset Forfeiture Unit (AFU) achieved four of its eight targets (50%). Completed forfeiture cases were 153% against a target of 96%. The value of completed forfeiture cases was R120.1 million against a target of R120 million. The percentage of freezing orders was 120%, against a target of 100%. A success rate of 99% was achieved for litigated matters by AFU, against a target of 93%.
AFU did not achieve its target on the value of freezing orders, as it achieved only R167.9 million as opposed to the target of R600 million. The target for the value of freezing orders obtained for corruption where the amount involved was more than R5 million was not achieved. The target on the value of recoveries in terms of the Prevention of Organised Crime Act (POCA) was not achieved, as only R26.8 million was achieved of the target of R60 million. AFU failed to achieve its target for value of recoveries relating to corruption where the amount involved was more than R5 million, specifically for proceeds of crime and government losses.
The Office for Witness Protection (OWP) achieved both targets set. No witnesses were harmed or killed while on the witness protection programme; and only one out of the 486 witnesses currently under the care of witness protection walked out of the programme.
There was still a need for greater collaboration and cohesion between law enforcement authorities and communities in the fight against crime, particularly for combating the use of drugs and drug trafficking, human trafficking, gangsterism, money laundering, illicit financial flows, corruption, illegal possession of firearm, crimes against women and children, rape and murder. NPA remained committed to creating a more impactful synergy with its stakeholders in order to improve the lives of South Africans. Numerous bilateral agreements have been entered into with stakeholders; memorandums of understanding (MOUs) have been signed in certain circumstances, while some draft MOUs were in the process of being concluded.
However, budget constraints remained a constant challenge for the NPA.
On topical matters and cases in the public space, Adv Abrahams noted that there have been media reports of questioning by some people, including Members of Parliament on his whereabouts. He emphasized that his silence did not mean that no work was being done by the NPA. He was obligated by the NPA Act and the Constitution to report to the Portfolio Committee, Parliament, and the Minister of Justice and Correctional Services. He expressed his willingness to appear before the Committee once again later in the year. The NPA media spokesperson and other delegated members also engage with the media and the public in given circumstances. He remarked that there were many leaders in the NPA apart from him.
He noted that the powers of other institutions have been attributed naively or incorrectly to him or generally to the NPA. The entity has tried to remedy this position through various engagements to no avail. According to Section 205(3) of the Constitution, “the objects of the police service are to prevent, combat and investigate crime; to maintain public order, to protect and secure the inhabitants of the Republic and their property; and to uphold and enforce the law”. The preamble to the South African Police Service (SAPS) Act called for the lead of a directorate dedicated to the prevention, investigation and combating of national priority offences, particularly serious organised crime and transnational crime, serious commercial crime, and serious corruption. This resulted in the creation of a Directorate for Priority Crime Investigation, also known as ‘The Hawks’. Section 17F(4) of the SAPS Act obligated the National Director to ensure that a dedicated component of prosecutors were available to assist and cooperate with members of the Hawks in their investigations. NPA has continued to carry out this obligation.
Section 17D(3) of the SAPS Act enjoined National Head of the Hawks to request the National Director to exercise the powers of Section 28 of the NPA Act where a national priority offence has been or is being committed. In other words, the Head of the Hawks could under specific circumstances, request the National Director Of Public Prosecutions to appoint a director of public prosecution or a special director of public prosecution as an investigating directorate who would then join investigative powers. Adv Abrahams said that no such request has been made to him for any matter to date.
He pointed out that Section 41(e) and (f) of the Constitution provides that spheres of government and organs of state were obligated not to assume any power or function except those conferred on them; as well as to respect the constitutional status of institutions, powers and functions of government in the other spheres. Section 179 of the Constitution provides for a single national prosecuting authority in South Africa that is vested with the power to institute criminal proceedings on behalf of the state, as well as carry out necessary functions incidental to the institution of criminal proceedings. Such functions included the provision of guidance to investigating authorities that have been constitutionally mandated to conduct same. However, Section 179 did not specifically state that only a single national prosecution existed. Neither was there provision for a parallel structure.
On the State of Capture Report, Adv Abrahams recalled that the Public Protector, Adv Busisiwe Mkhwebane referred the State of Capture Report of Adv Thuli Madonsela to his office and the office of the head of the Hawks. He subsequently constituted a team of experienced prosecutors under the leadership of the head of the Specialised Commercial Crime Unit (SCCU) to provide the requisite guidance to the Hawks investigation. A team of asset forfeiture specialists were added and the leadership of the head of operation of the AFU unit. An analysis of the State of Capture Report warranted criminal investigation, hence the appointment of a team of prosecutors to provide guidance to the Hawks’ investigation. The NPA could not make a pronouncement on the merits of the matter until investigations were concluded.
The investigations were divided into seven legs, six of which were mentioned at the SCOPA meeting in May 2017. An eight leg has been added to the investigations. The first leg of investigation was known as the Mentor investigation; the second leg was the Jonas investigation. The third leg focused on the Government Communication Information System and The New Age investigation. The fourth leg dealt with the allegations of Eskom over Tegeta. The fifth leg was for allegations involving Transnet and Trillian. The sixth leg dealt with allegations about Denel and VR Laser. The seventh leg related to charges laid by Maimane in Rosebank. The leaked emails were part of these investigations. Numerous engagements have taken place between NPA prosecutors and The Hawks investigators. Investigations were ongoing. The allegation about the Vrede dairy farm in the Free State constituted the eighth leg of the investigations. A team of prosecutors and asset forfeiture specialists were working on this matter as well.
Adv Abrahams reiterated that he was not appearing before the Committee to pronounce on the guilt or innocence of any person purportedly implicated in these investigations. He assured the Committee that work was being done on these matters. No comment could be made whether anyone would be charged at this stage of investigations. The responsibility lay with decision makers to make such comments after investigations have been concluded. He also could not speak on the existence of a potential asset forfeiture application and when such application would be made. It would not be in the interest of justice to publicly announce the status of ongoing investigations.
On the Marikana matter, it was pointed out that a team of prosecutors were appointed by Adv Abrahams after the release of the Farlam Commission of Inquiry report. The team of prosecutors served under the leadership of the head of the Priority Crime Investigation Unit in Adv Abrahams’ office. The unit was required to provide the requisite guidance to the IPID investigators. Their responsibility was to assist them in matters where members of SAPS were potentially implicated. Different legs were identified for the events of 12 to 16 August 2012. Announcement of decisions about the event of 12 August 2012 was expected to be made in the coming weeks as investigations have been concluded. Although IPID publicly announced that the docket for the events of 16 August 2012 had been given to the NPA and investigations have been concluded, this was in fact not the case. The docket was received but investigations were yet to be concluded. Critically, the scene was yet to be reconstructed for this matter and there were other investigations that were required to be conducted. Hence, the investigations were not concluded.
Adv Abrahams mentioned an allegation made the previous day about AMCU requesting permission to march around the NPA offices next week on a day that he would regrettably not be present at the office, and after which AMCU intended to hand over a memorandum for his attention. He would be happy to engage constructively and meaningfully with the leadership of AMCU on the topical issues they would like to raise.
On the Grace Mugabe issue, he said that he did not have any meeting with Mrs Mugabe’s lawyers and the national division of police, contrary to what was contained in media reports. As a matter of fact, the issue became public as a result of a statement made by the Acting National Commissioner of Police while in Parliament, which was completely distorted. Adv Abrahams spoke with the Acting National Commissioner sometime after, and he confirmed that his statement was taken out of context. Adv Abrahams was never in any such meeting. He had no knowledge of who Mrs Mugabe’s lawyers were. He emphasized that the matter was never settled by himself or the NPA. The matter was the subject of a police investigation where Mrs Mugabe invoked diplomatic immunity, which was subsequently granted by the Minister of the International Relations and Cooperation in terms of section 7(2) of the Diplomatic Immunities and Privileges Act. The NPA was never in the picture and is still not in the picture. This was despite the Democratic Alliance having cited Adv Abrahams as a respondent in its review application.
On the allegations of selective prosecutions, Adv Abrahams said that such allegations and notions were entirely misplaced. Decisions were made in jurisdictions of directors of public prosecution offices. Such decisions were made in the provinces and not by himself or the Deputy National Director of Public Prosecutions. These decisions were made in the regions on a daily basis. He stressed the point that he did not ordinarily make prosecutorial decisions neither did his deputies; regardless of the fact that he possessed the power to do so. Rather, he acted on his powers of review as enshrined in the Constitution and the NPA Act. No decisions made were influenced by him. He was, however, briefed on many high profile and contentious matters, as the law enjoined him to request such briefings. This did not mean that he has taken decisions to either prosecute or not prosecute on such matters, neither did it mean that he has influenced the decision to prosecute or to decline to prosecute such matters. He urged that this incorrect narrative should be changed.
He concluded by thanking the Committee for its guidance and support in the execution of its oversight responsibility at every occasion that NPA appeared before it. The engagements with the Committee usually provided NPA with a solid foundation for a more efficient criminal justice system to improve the lives of all South Africans, as well as ensure that the country was a safe place for all.
The Chairperson thanked Adv Abrahams for his input and for dealing with topical issues facing the country.
Asset Forfeiture Unit (AFU) briefing
Acting Special Director of Public Prosecutions, Adv Knorx Molelle, said that the current AFU performance was not as good as it should have been. NPA, however, deemed it necessary to contextualise some of the important aspects while highlighting challenges and how such challenges were being dealt with.
On the value of the freezing orders, the AFU derived the bulk of its value cases from the Anti Corruption Task Team (ACTT). Most of the high value complex and in depth cases were investigated by the Task Team. During the period under review, NPA had identified and prioritised certain cases that would assist the institution in meeting its target. However, the delay in the finalisation of certain aspects of the investigations, including the asset forfeiture investigations, led to the underachievement of targets. He confirmed that NPA has since commenced its road shows together with its ACTT partners to assist the regions in dealing with challenges, and ensuring that matters were finalised speedily. Subsequent to the reporting period, NPA had matters that would be enrolled in court to ensure that it was up to speed on its target for the value of freezing orders. However, a closer consideration of the targets would show that the NPA in actual fact, achieved its targets, as the report highlighted the part of cases handled in terms of chapter 6 of the AFU processes. The highlight was done for specific focus areas, which were impact cases. The NDPP already mentioned the achievement made on trio crimes addressing a variety of focus areas including drugs. The failure to achieve the values should be seen in the context of some impact being made in other focus areas. Values were not necessarily the only way of reflecting the emphasis of making an impact on crime.
On recoveries, particularly for completed forfeitures, NPA did in fact achieve its target in terms of the number of cases. The failure to meet its target on the recoveries was due to certain administrative processes that needed to take place. Once a forfeiture or confiscation order was made, the process for disposal of the asset and paying the money into the Criminal Asset Recovery Account must commence. Delays were inherent in that process. This was inclusive of the appointment of a curator who was required to report and account to the Master of the High Court about the estate. That milestone of recovery simply meant that the money was not yet in the bank. Although a case could indeed be completed and the asset would have been disposed of, the actual process of ensuring that money has been properly accounted for and the money reflected in the bank could take a longer period. NPA would, however, address these to ensure that the targets were achieved.
On value of recoveries relating to corruption, a number of cases have been finalised. A consideration of the number of cases may not necessarily correspond to the value AFU has recovered. In many instances, the number of medium sized complex cases finalised were not necessarily of great value. There were a number of cases in excess of R1 billion that the NPA was hoping to recover this year. These were highly complex cases being litigated in the anti corruption space. In the last financial year, two major cases were finalised where the investigation had commenced in 2009, but NPA was only able to realize the actual payment of the funds in 2016. This reflected the complexity and length of time it took to resolve some of these cases.
He concluded that the report on the AFU performance was worrying. NPA was, however, comforted by the existence of a solid plan to address the identified challenges which were flagged and were not insurmountable. NPA’s coordination with its counterparts was gradually improving and it was expected that the second quarter performance would be better.
NPA financial and human resources report
Ms Hanika van Zyl, Acting Chief Director: Financial Management, presented the budget and expenditure totals and breakdowns as at 30 June 2017 (see document). NPA spent 25.72% of its total allocated budget for the first quarter, which was 0.72% more than the targeted 25% spending per quarter. NPA was challenged by its budget constraints for compensation of employees. The spending on the operational budget (goods and services) was also high, as it stood at 28.96%. However, this was due to big invoices paid in the first quarter of the financial year. An area of concern was the OWP where 29.6% was spent. In OWP, there was no budget pressure for personnel but due to the high expenditure on NPA witnesses.
With regard to cost pressures, NPA projected a shortfall of R71 million for personnel. This projection has been communicated to Department of Justice (DoJ) and National Treasury but the feedback received was that there was no additional funding to be allocated to NPA. However, Treasury approved a R57 million virement of operational budget for its personnel, specifically to cater for the warm bodies. The virement would have an impact on operational budget in areas such as machinery and equipment; travel and subsistence; property payments; consumables; and communications. NPA would be unable to sustain the virement from operational budget to compensation on an annual basis.
The projected shortfall of R71 million has affected NPA in diverse ways. The institution was unable to fill critical posts. The NPA lost 156 officials in 2016/7 and 55 officials in the current financial year. NPA was not appointing new officials yet as it was unable to sustain this. It was also unable to continue with the aspirant training programme which has been suspended for two years. NPA’s aspirant prosecutorial programme brought in new prosecutors from the bottom for training. The NPA could not be sustained without the aspirant programme. DPSA was currently looking into a tool for early retirement packages that would bring relief in the outer year. This was because the shortfall of R71 million rose to R200 million in 2018/19 and R223 million in the outer financial year. The impact of the reduction in the personnel budget and change in NPA personnel numbers were detailed. The average attrition rate for prosecutors was 60%, advocates 20% and management and administration 20%. Details of the costing for the aspirant prosecutor training programme were highlighted as were the interventions to curb over-expenditure.
Adv Abrahams added that there were several factors that led to the exit of personnel. These included dismissals; resignations based on various reasons such as securing a better job or prevention of the result of disciplinary actions instituted against officials; early retirement; and even death.
Adv Abrahams said that the NPA could no longer sustain the aspirant prosecutor programme. However, a structure has been established to be known as the NPA training academy that would incorporate training for prosecutors and administrators. An official has been appointed to head the structure. NPA was targeting the new intake for the aspirant prosecutor programme for April 2018. Failure to do this would lead to the inability to sustain NPA going forward. Resources were needed for this structure.
On the non-filling of vacant posts, there were currently 45 critical posts that NPA needed to fill as a matter of urgency. The second phase reflects the need to fill another 112 posts that should be advertised within the next few weeks. NPA, however, needed money for these positions to run.
Mr Silas Ramaite, Deputy NDPP, added that the non-filling of vacant posts was critical. He emphasized the cost and funding pressures facing the institution. The shortfall on the personnel budget was for the people that carried out the actual prosecuting job. He repeated the point about the NPA plea made to the Treasury, which led to the R52 million virement. However, taking away this sum from goods and services had an effect. Although the virement had helped, there was still a projected shortfall of R14 million.
There were also unfunded priorities. An example of a critical priority could be seen in Limpopo where there was a need to recruit staff to ensure full operation of the court. However, additional funding of R35.8 million was needed to recruit the staff; as well as address Polokwane and Mpumalanga issues. The 45 critical posts mentioned by the NDPP have been advertised; interviews have been done; selections and recommendations have been made but there was no money to commence recruitment. This reflected the dire situation facing NPA. There were other pressures, such as the posts of special directors and DPPs. There was a need to consider the possibility of appointing investigating directors.
Mr N Matiase (EFF) said that the Committee had been anticipating this briefing. The Committee had been updated on various NPA cases and he expressed satisfaction the Free State dairy farm case was receiving some attention and the culprits would be prosecuted. It was expected that the NPA would assist in recovering the funds lost to the public in the form of generous donations made to the Gupta family. R30 million was a lot of money, considering R70 million citizens were living below the poverty line on less than R450 per month, which translated to less than R15 per day. Yet the country was able to give a generous donation of R30 million to a foreign couple.
He noted the widely reported matter of the former acting Commissioner of Police, Mr Phahlane. According to media reports, IPID sent its report on Phahlane's alleged fraud and corruption as a result of bribe taking to the NPA National Director three months ago and the matter was yet to be dealt with. Specifically, the content of the IPID application was about the need to seize assets which were the proceeds of corruption and fraud. He asked NPA for an explanation about the delay. He asked NPA to explain the means by which "profit would be removed from crime" in its strategic objective 2 since it had been hesitant to take action on a widely reported case of corruption and fraud. Adv Abrahams was asked to justify why he was hesitant in attending to the Phahlane matter.
He said the NPA National Director was a person of repute. However, he suggested that Adv Abrahams sounded "angelic" about the measures he intended to put in place to deal with malfeasance, corruption, looting of public resources and state capture. So far, there have been no results from the measures announced by Adv Abrahams at his press briefing after his appointment. The National Director of NPA was a shadow of its former self.
Mr Matiase paused with his comments to seek protection from the Chairperson based on inaudible comments emanating from other MPs.
The Chairperson appealed that MPs should not be judgmental. Words like ‘hesitant’ and ‘angelic’ were judgmental. He implored MPs to pose questions and reach conclusions on the basis of the answers that emanate from such questions. Arriving at conclusions before answers to questions were given would amount to unfair behaviour by the Committee. Attacking civil servants was not permissible, regardless of personal opinions one had about officials of the institution.
Mr L Mpumlwana (ANC) agreed.
Mr Matiase quoted an idiom: "Never teach an ostrich to run because it will run faster than you". He said that his comments emanated from what he had observed and how the former Public Protector was dealt with.
The Chairperson interjected to emphasize that the Committee was dealing with matters of public interest. The NPA should be afforded the opportunity to address factual matters for which the public sought answers.
Mr Matiase asked if Adv Abrahams was loyal to the principles that underpinned the office and the oath that he took or was he loyal and obedient to the principal that appointed him; despite the overwhelming evidence that the sitting President should be having his day in court. Was Adv Abrahams loyal to the principles and ethics of the profession or was he loyal to his principal?
Ms M Mothapo (ANC) proposed that the Committee should intervene about the vacant critical posts and assist NPA in finding a solution, especially since it was affecting provinces such as Mpumalanga.
She thanked the NDPP for addressing topical issues in the public domain, despite the fact that they did not fall within the period under review. The information given on the eight legs of investigation was valuable.
She was concerned by the overspending under households by 9% and OWP by 5%. Expenditure should not be more than 25% per quarter. On the cost pressures, she asked if forced savings would have a negative impact on the service delivery of affected programmes. The shortfall of R71 million posed a serious concern. She emphasized the need for the Committee to assist NPA in addressing the budget constraints. It was particularly necessary to assist the NPA as a constitutional body, which was a part of law enforcement seized with the responsibility of ensuring the safety of South Africans.
She congratulated NPA on the cybercrime prosecution. She requested details of the prosecution and crime.
She restrained herself from commenting on the Dr Grace Mugabe case, especially because the DA has cited the NDPP as a respondent in the case. South Africans do not condone the ill treatment of women. She emphasized the need for NPA to be left to carry out its functions based on the Constitution and the NPA Act, and without fear, favour or prejudice.
On the statement issued by the Acting National Commissioner of Police, she said that she was initially worried having heard only one side of the Mugabe matter. It was, however, necessary to abide by the rules of natural justice which was to the effect that both sides of a case should be heard. It was a relief to hear that the NDPP was not involved in the matter.
After confirmation of the total number of NPA officials lost in the previous and current financial year, she repeated the need for the Committee to intervene on these issues affecting the institution.
The Chairperson agreed with her and said the NPA could not be expected to perform optimally without the necessary resources provided for such optimal performance.
Ms G Breytenbach (DA) said that in March 2014, the leader of the Democratic Alliance laid eight charges of corruption with the police at the Nkandla Police Station on the President’s Nkandla residence matter; with the docket CAS 123/03/2014. The Minister of Police in a parliamentary question told MPs that the docket was handed over to Adv Abrahams on 25 August 2015. In March 2017, the Minister of Justice, in replying to a parliamentary question, said that the matter was still under consideration by the NDPP. Ms Breytenbach asked for the current status of this matter, as well as the reasons for the delay in attending to the matter.
Ms Breytenbach said that a lot of time, money and effort have been spent on the Electronic Case Management System. She asked for the status of the programme; the number of cases that have been dealt with in that session; and the number of cases that have been successfully dealt with in court in that session. She asked for details on the difficulties facing the Polokwane and Mpumalanga High Courts, and whether the courts were in operation and were fully functional.
She referred to the NPA submission on the cost of curators used by AFU significant, which has led to the establishment of a task team to bring the cost down. She asked about the progress of the task team in; the means by which NPA would bring the cost down; and the composition of the task team.
The office of the DPP in Pretoria was broken into some time ago and two laptops were stolen. There was also a break in at the Pretoria magistrate court and the office of the Chief Prosecutor was targeted. She asked how access was gained into the buildings; the status of investigations on these matters; whether anyone has been arrested; and the impact of the break-ins on cases currently being dealt with.
She asked about the progress of the implementation of inter-agency strategy between SARS and the NPA that should have been implemented in June 2017. She asked if the MOU between NPA, Special Investigating Unit (SIU) and Directorate for Priority Crime Investigation (DPCI) has been finalised; and what should be expected in this regard.
On the Esidimeni matter, she asked if a criminal investigation had commenced; and if so, what the progress was, and whether prosecution could be anticipated. The same question applied to the PRASA matter.
She asked for the status of investigation into the activities of the former acting IPID executive director, Mr Kgamanyane. Mr McBride, current head of IPID, has complained about a 2010 matter involving Major-General Mabula. According to him, the case was withdrawn so that the matter could be centralised by NPA. NPA was asked to confirm the accuracy of this position, as well as explain the reasons for the delay in placing the matter on the roll. She also asked for progress report on the matter relating to Vlok Symington.
Mr W Horn (DA) referred to the targets set by NPA. He recalled the meeting where the targets were presented to the Committee, where MPs raised questions about the lowering of targets. An analysis of the first quarter performance report showed that the criticisms made by MPs at the presentation of the targets were fair. This was because the report showed that although the targets were exceeded, they were a mirror of the performance reported in the last financial year. It therefore seemed unfair to attest to an improvement or exceeding of target. It also raised the question about being realistic when considering the Annual Performance Plan (APP) of the coming financial years. He asked for comment on this.
Mr Horn noted that the underperformance in the value of recoveries and freezing orders has been an ongoing trend which the Committee has noticed. The submission that the institution would address such underperformance in subsequent financial years was also a practice. However, the reality was that massive information existed in the public domain about continuous corruption. In ensuring trust in the NPA by the public, it was necessary to question the actualisation of the NPA’s intention to address underperformance.
He proposed that the Committee should request a briefing on the manner in which corruption and corruption-related cases were being dealt with by the NPA. The briefing should be aimed at assisting MPs in understanding how the processes worked, as well as informing MPs on the status or progress of each case. He referred to the PRASA matter as an example to buttress his point. As at July 2017, the NPA informed the public that by the end of July, a decision would be made on the alleged corrupt contract. To date, no decision has been made public about this.
On the report on the functionality of the criminal justice system, he recalled that the Committee had posed questions to the Department about court hours, backlog of cases, and the strategy to address these. The Department, however, informed the Committee this year, that it was no longer in full control of happenings in the courts. The Office of the Chief Justice also denied having control over these issues. From the NPA presentation, it seemed it also took the same stance. This raised concern about the efficiency of the criminal justice system. The relevant entities that made up the Efficiency Enhancement Committee should reintroduce accountability measures that would make them accountable to the Committee.
On the vacant critical positions, he agreed with the Chairperson and Ms Mothapo on the need for the Committee to assist the NPA. Prosecution services must keep being a critical service and must be provided for regardless of the bad economic situation. Failure to provide for this critical service would have a negative impact on the country as a whole.
The NDPP has already referred to the possible inaccuracy of media reports. Earlier this year, there was a front page headline to the effect that the NPA was skeptical about the so-called leaked mails and did not see any value in them, but this was denied by the institution. The NPA was asked to state its position on the leaked emails for the record. It was also asked to explain the status and relevance of these emails.
At a previous appearance of the NDPP before the Committee, he was asked to explain the involvement of
Ms Jiba and Mr Mwrebi and he replied that they were still on voluntary leave, and that any information on their attendance at any NPA meetings was incorrect. However, the NDPP confirmed at a Standing Committee on Public Accounts (SCOPA) hearing that he regularly attended meetings with Ms Jiba. This statement was captured in the SCOPA minutes. He therefore asked for clarity about this.
On the Dr Grace Mugabe matter, Mr Horn said that the PMG minutes captured the Police Commissioner’s indication on obtaining an opinion from Adv Abrahams, to the effect that Dr Mugabe must go to court. However, the presentation made today reflected that Adv Abrahams was uninvolved in the matter. He asked for clarity.
The Chairperson said the Committee had a responsibility to ensure that the DoJ accounted on the functionality of the criminal justice system, as it led the implementation of the integrated justice system.
Mr B Bongo (ANC) observed that Adv Abrahams led a solid team and this was commended. He pointed out that Members of Parliament and the Portfolio Committees did not take the work they do lightly. The report presented to the Committee reflected the fact that Adv Abrahams was leading a stable institution. However, there was a need to place emphasis on some issues, such as the ones raised by Ms Mothapo and Mr Horn that called for the addressing of challenges as a matter of urgency in anticipation of the BRRR process. It was necessary for these to be addressed because the current stability of the institution would not continue progressively if the aspirant prosecutor programme was not reintroduced. While some people exited the institution on the basis of better opportunities, and others were dismissed, the intake of personnel into the institution was a problem. It was not the responsibility of the Committee to explain the importance of prosecution to Parliament. NPA was required by the Constitution to act without fear, favour or prejudice.
On AMCU embarking on protests around the NPA office, he advised that NPA should find an alternative way of addressing this. Such protests may put the institution in a prejudicial position to carry out its functions in a faster way than was required or possible, and this may affect the responsibilities of the institution. NPA was advised to have meaningful engagements with AMCU. Alternative dispute resolution (ADR) methods should be adopted in dealing with this matter.
He commended NPA on cybercrime efforts. The Cybercrimes and Cybersecurity Bill was with the Committee in Parliament, which should be addressed as quickly as possible. Inputs from NPA may be required in addressing the Bill.
On the Zama Zama miners, he asked for a progress report on prosecuting this. There were reports attesting to the prevalence of this phenomenon in Gauteng, Mpumalanga and Free State.
He also asked for progress report on the Life Esidimeni and licence delay matters. He recommended that these, together with other concerns previously raised by the Committee should be addressed through a dashboard exercise that would table responses to these separately from the responses emanating from the Quarter 1 report. The dashboard exercise should also reflect the progress in addressing the topical issues in the public domain. Briefings should then be received on a quarterly basis on progress in addressing those topical issues to ensure that the public and Committee are continually informed on these.
On the leaked emails, he asked for the status of the leaks from a legal and constitutional point of view. He opined that the leaks should constitute a crime from a legal point of view. He asked the NPA to bring the legal implication of leaks to the relevant authorities for them to deal with, and ensure prosecution was done where necessary.
The NPA was asked to clarify the role of the police and the prosecution in a case, and explain the stage at which the prosecution kicks in. He concluded by stating that the DoJ must be seized with the responsibility of ensuring the implementation of the integrated justice system. The roles of different entities in the integrated justice system should be clarified by the DoJ. The NPA vacancy rate was also a matter of concern.
The Chairperson added that there may be a need to organise a workshop to educate MPs on the competence of both the NPA and the Police.
Ms C Pilane-Majake (ANC) commented on the behaviour of MPs when making reflections on presentations, stating that MPs should always be objective and put forward fair and factual arguments. She congratulated NPA on the achievement of most of its targets. She agreed with the observation of MPs on the lowering of targets by the NPA, which has led to the challenge of determining targets. She asked what formula was used in determining its targets, in a bid to ensure that the achievement of targets was not criticised by MPs going forward.
The level of crime was a big challenge in South Africa. It was particularly a challenge for both NPA and SAPS. She asked if SAPS was in a position to successfully apprehend culprits. Another area of concern was the high level of drug addiction. She also asked if drug addicts were being successfully prosecuted and apprehended. Reports on such prosecutions were needed in order to determine if the war against drugs was effective. Cable theft was yet another serious crime that should be curbed. It was important to focus attention on addressing this crime. The NPA should focus its attention on dealing with these crimes and ensuring that the liberties promised to South Africans were realised in the absence of crime. She noted that the NPA report did not mention the number of successful prosecutions on violence against women and children. She urged NPA to provide such statistics in future.
She asked for an explanation and clarification on the practice of private prosecutions, noting that it was important to educate South Africans on this in order to clarify the notion that prosecution would be accompanied by monetary benefits only.
On the suggestions made about the leaked emails, she asked for details on the collusion of banks. How far has the NPA gone in dealing with this?
She supported the R57 million virement for compensation of employees. This was regardless of her observation on NPA underspending on compensation of employees. She sought clarity on the underspending and the measures that would be taken to address this underspending going forward.
Mr L Mpumlwana (ANC) appreciated the NPA for the good work it was doing. He was impressed by the report presented to the Committee. He sought clarity on separate or parallel prosecution by AfriForum, as he was aware of young people getting trained in certain parts of the country.
He asked about the relationship of NPA with the Police and the impact of this relationship on the successes of various target indicators of the NPA. What can the Committee do to assist the NPA where serious cases are dismissed in court due to challenges with the investigations?
On the backlog of cases, Mr Mpumlwana said that it was painful for people to be detained while awaiting trial for several years before their cases were prosecuted, with some prolonged for more than two to five years. He asked for statistics on such cases and what measures can be put in place to address this. The relationship of the NPA with the justice system also needed to be addressed, especially the dismissal of cases on which the NPA has worked hard.
There was an understanding that the NPA was not just a regular department. Revenue was generated from asset forfeiture. He asked if Treasury gave NPA a percentage of the amounts recovered from asset forfeiture and if not, what assistance was required by the NPA from the Committee in this regard. He emphasized the Committee’s willingness to assist the NPA in ensuring a smooth relationship with other entities that NPA worked with.
Mr L Mbinda (PAC) asked about the NPA’s involvement in the ABSA bank matter and the status of the case.
He asked if NPA was doing anything about the political killings in KwaZulu-Natal and what the status of this was. The killings have been going on for almost two years. Was NPA doing anything to address these killings? He agreed with Mr Mpumlwana that the report presented noticeable improvements in the institution.
The Chairperson said that the responses should be succinct due to time constraints. Detailed responses on matters may be sent in writing to the Committee afterwards.
Ms Breytenbach replied that the meeting began later than the set time. The institution appeared before the Committee for the purpose of reporting and responding to questions. Limiting the time for responses would defeat the entire purpose for which the institution had been invited. However, if detailed responses would be sent in writing, she would like to receive such responses, as she had never received any of the promised detailed responses in writing from any entity.
Adv Abrahams replied that NPA had a bilateral meeting with IPID on 14 August 2017. Fifteen minutes before the meeting commenced, NPA received a letter that was unfortunately released into the public domain.
He noted that the criticisms directed at him were unfair. It was unfair to dislike him based on a dislike for the person that appointed him to the position he was. The office which he held should be respected alongside the institution and the work done by the institution. He attested to being a career prosecutor that has never acted unethically in the course of his career. He took an oath of office as the NDPP; he was an officer of the court; he has always respected the work he does and delivers as per his office. The criticisms he has received since his appointment to the post of NDPP have been unjustifiable and should stop. He was not a politician and should not be treated as one; neither should the institution be treated likewise. In the event that the institution had been used in the past to play political games, such has not and would not repeat itself under his watch. It was precisely because he had not allowed the institution to be politically utilised that some criticisms have been made. Recommendations can be made to the institution for the prosecution of persons. However, the onus still lay with NPA to decide which persons would be prosecuted based on the merits of each matter. Where the decision of a prosecutor or DPP was not satisfactory, an application can be made to the NDPP for such matter to be reviewed. Where the decision of the NDPP was not satisfactory to applicants, such applicants can approach the courts to review the decision. Matters should not be unnecessarily politicized.
He, however, stated that he was not loyal to anyone. He was only loyal to himself and God.
On Dr Grace Mugabe, he said that the National Commissioner engaged with him on the facts presented and he (Adv Abrahams) did say that Dr Mugabe must be charged based on the facts presented. Although she subsequently applied for and was granted diplomatic immunity, the docket was never presented to him or to the DPP office. Adv Abrahams had no right to make a decision over a DPP matter, as the matter was within the jurisdiction of the DPP. However, there was nothing wrong in the act of the National Commissioner in phoning to ask for advice from the NDPP. There was nothing wrong in anyone seeking his opinion on a matter.
On Mpumalanga and Limpopo, the reality was that the satellite office in Limpopo prior to the court being promulgated, had adequate resources to operate. The challenge was securing permanent staff for the office. There was, however, a need to consider equitable use of resources to address the current challenge of resource constraints. Other offices with excess staff would be looked into to transfer excess staff to the satellite office, and address shortage of staff needed for efficient performance. There was also a satellite office in Mpumalanga. The court was yet to be promulgated. It was expected that the court would be promulgated around April 2018. Resources were also needed for optimal performance in that satellite office. The need for additional resources has been identified.
The Chairperson said that it was improper for Ms Breytenbach to interrupt Adv Abrahams while answering questions that were posed to him.
Ms Breytenbach replied that Adv Abrahams was answering the question she posed and he had the propensity to go into more detail than was necessary.
The Chairperson corrected her that the questions raised ceased to be her personal questions after they were posed. They were now questions of the Committee to which the NPA should be allowed to respond.
On the office break-ins, Adv Abrahams noted that two people have been arrested, linked by fingerprints. The crime and subsequent arrests had nothing to do with the matters with which the prosecutors were involved in. The office of the chief prosecutor was not broken into. Instead, it was the office next to the chief prosecutor that was broken into. Video footage also existed to implicate the culprits. NPA was satisfied with the progress made on this matter. Investigations into the break-ins were still ongoing.
The SIU and NPA have entered into a MOU that was signed two weeks ago. The MOU was necessary because of the work of the SIU, which was to recoup government losses. Once proclamations were received by SIU, investigations and legal processes were commenced. This raised the question of why separate investigations should take place; and why SIU should embark on such investigations seeing that potential criminal liability was a foreseeable factor. It was for this reason that it became critical to enhance the cooperation between SIU and NPA, hence the MOU. Similarly, the AFU can assist SIU on some of the work that SIU would need to do. An example was the proclamations signed by the President on the SABC matter and the matter of the KZN provincial government. There was nothing wrong in sending copies of these proclamations to the NPA as it worked closely with the SIU, the Hawks and the AFU in embarking on confiscatory investigation. The MOU was therefore signed to enhance efficiency in the cluster.
Adv Abrahams replied that he was not aware of an undertaking made by NPA to reach a decision on the PRASA matter by the end of July 2017. The matter was still under investigation and at the purported deadline, the prosecuting team had received a lot of files containing affidavits and other evidence.
On the low targets, NPA would look into it addressing this. It was an ongoing exercise for the institution to analyse its performance in comparison with the performance of stakeholders.
The concerns raised about the AFU were accepted. Indeed, the AFU can perform better, and this concern was also raised in a meeting of executives a few days ago. NPA was looking at a reinvention of the AFU. Adv Abrahams committed to impressing the need for AFU to perform better on the unit members. Key discussions have been held about certain strategies. The NPA would report on progress made to the Committee as time goes on. NPA urged the Committee to maintain confidence in the institution and AFU.
Engagements were welcomed on the functionality of the criminal justice system, and measures to be introduced to enhance the system.
On leaked emails, he pointed out that much speculation had arisen on the matter. The reality was that the journalist did not speak to any member of the prosecuting team, neither was the journalist aware of who the members of the prosecuting team were. Similarly, some officials of the NPA and MPs had no knowledge of who members of the prosecuting team were. The identity of members of the prosecuting team has been hidden to prevent the leaking of information. Therefore, the notion that the NPA took a position on the matter was disingenuous. The NPA cannot take a position on issues still under investigation. The leaked emails needed to be investigated. It would be impossible to make a determination on the admissibility of a matter that was still under investigation. Constitutionality was yet another matter to be considered under the scope of the matter after all evidence and information have been analysed. People who leak information to the media and other sources were not part of the team; they were irrelevant people that sought relevance; they were people who had been privileged to receive information on issues for many years and have had their hands tied to the back. It was the conduct of such people that brought disrepute to the integrity of the institution.
Adv Abrahams replied that he had addressed Adv Jiba’s appearance at an ACTT meeting. Adv Jiba attended one ACTT meeting at the request of Adv Abrahams, as she was part of the team working on the operational plan with the head of the Hawks. It was therefore necessary for her to attend the meeting for the purpose of that exercise. This was the position that was tabled before SCOPA. He also informed SCOPA that he would request the input of Adv Jiba and Adv Mwrebi whenever the need arises to attend to issues where he deemed fit. Adv Jiba and Adv Mwrebi were still on special leave.
On the AMCU protest march to NPA offices, Adv Abrahams instructed his head of communications to engage with AMCU and identify three to five members of the leadership which he would engage with on the issues affecting the organisation. Adv Abrahams was willing to engage with the AMCU leadership to consider alternative ways of addressing the concerns raised during the protest marches.
NPA has provided inputs on the Cybercrime Bill, and would continue to provide more inputs when required.
An announcement would be made on the status of the Marikana case in due course, in a few weeks’ time.
NPA welcomed the development of a dashboard that would enable it present feedback to the Committee on a regular basis.
Comments would be made on the blurred roles of prosecutors and investigators at a later time.
NPA was sensitive to the plight of South Africans for the various crime typologies affecting communities, regardless of the fact that prosecution statistics on specific crimes were not provided in the report. Convictions have been made on crimes such as cable theft, organised crime, corruption, trafficking of women and children. There were statistics on these matters. NPA was working closely with stakeholders in the criminal justice cluster, such as Crime Intelligence, State Security, the Hawks, Financial Intelligence Centre. NPA omitted the statistics and details of these crimes because the report was centered on a quarterly review. However, details of these crimes could be given at the presentation of the Annual Report.
AfriForum was addressed earlier when Adv Abrahams mentioned the provision in the Constitution for a single national prosecuting authority. The Criminal Procedure Act (CPA) provided for private prosecution. There was, however, a process to be followed. For example, the Grace Mugabe matter was never tabled before the NPA. It was therefore, surprising to hear that the NPA would prosecute the matter. The DPP was yet to make a decision on the matter. The process was such that once matters were received from the police or an investigating structure and investigation has been completed, a decision would be made on whether or not such matter should be prosecuted. A dissatisfied applicant in the matter can apply to the DPP for a review of the decision of the prosecutor. If the party is still not satisfied, an application can be made to the NDPP for further review in terms of the Constitution and the NPA Act. The Constitution did not provide for an alternative prosecuting structure. The reality was that the percentage of successful prosecutions where applications for a certificate of nolle prosequi (private prosecution) were made, has only one conviction in the history of South African law, which was a murder case in the Western Cape. All other private prosecutions were unsuccessful. The crime typologies also differed.
On collusion of the banks, NPA has engaged with the Competition Commissioner, SARS Commissioner and the head of the Hawks on a range of matters. Collaboration was taking place to deal with these matters and a report would be given to the Committee in due course.
NPA was mindful of young boys getting trained on farms. If the training was military training, it would amount to a contravention. There were laws to regulate and prevent unlawful conduct around military training. In the event that the alleged training received by the young boys was military in nature, such training would be to the detriment of the South African citizenry, as well as the detriment of the constitutional democracy. NPA called on the intelligence structures to look into this matter, and bring this to the attention of investigating authorities, including the NPA to allow for proper investigation to be carried out on this.
NPA would revert back to the Committee on the statistics for the backlog of cases. This was a sensitive issue for the institution and it considered it on a monthly basis. NPA was part of a committee that looked into the status of backlogged matters, the circumstances surrounding such cases, and the nature of the crimes involved. The aim was to alleviate the plight of the correctional service facilities, as well as the plight of the individuals concerned.
The process of seizing monies and property, and also selling such property cost NPA money. The process of litigating such matters cost NPA money. When proceeds of crime are seized and property sold, the money goes into a Criminal Assets Recovery Account (CARA) Fund. POCA provides for a Criminal Assets Recovery Account committee to be chaired by the Minister of Justice. The committee comprised of two other ministers and the NDPP. Recommendations were made by the committee on how the monies paid into the Fund should be distributed. This would be discussed at Cabinet in due course.
The political killings in KZN were a critical issue for NPA. The institution has been asked to provide information to the Moerane Commission and to testify before it. NPA has written back to the Commission requesting specifics on the information to be given by NPA. It was suggested that the evidence leaders of the Commission should meet with NPA to discuss and narrow down the issues that NPA should testify on.
Adv Abrahams replied to the question on measures the NPA had taken on KZN political killings, saying that a team has been constituted and a person appointed at the NPA head office to coordinate political killings and violence across the country. NPA was awaiting a report on the work that has been done. There were teams working in close proximity with the police and other authorities on the political killings in KZN. There was still a lot that needed to be done. One of the mandates of the Moerane Commission was to establish the root causes of these political killings, as well as develop measures to be used in eradicating them. However, decisions have been made to institute prosecution in matters with sufficient, reliable and admissible evidence. Some matters required further investigation. The challenge faced was for the witnesses. Communities have been reluctant to come forward to enroll in the witness protection programme. This posed significant challenges in dealing with most of the political violence cases. Nevertheless, NPA was engaging with the provincial government on this and has committed itself to rendering assistance to the provincial government and the investigating authorities where necessary.
Adv Sibongile Mzinyathi, Acting Deputy National Director of Public Prosecutions, replied that the Kgamanyane matter was investigated by IPID, and a decision was made to decline prosecution. IPID applied for the decision to be reviewed by the head of NPA. The matter was receiving attention.
On the complaints around the Mabula case, he said that a decision has been made in the matter, to prosecute some of the suspects in the regional court. IPID complained about the length of time it took for the matter to be investigated and a decision reached. This was one of the issues raised in the letter sent by IPID to the NDPP on 14 August 2017. NPA was in the process of giving IPID a response on the reasons for the delay in reaching a decision on the matter.
The Office of the DPP has reached a decision to decline prosecution on the matter of the break-ins. The reasons for the decision have been forwarded to the NPA. Based on the evidence gathered on the two break-ins at the Office of the DPP and Magistrates’ Court in Pretoria, no connection could be made between the suspects and the cases being handled by the prosecutors. It was confirmed that the two suspects arrested for the break-ins were the same people. Two laptops were stolen from the DPP office, while a laptop was stolen from the Pretoria Magistrates’ Court. The last report received did not indicate that any docket had been stolen from the Magistrates’ Court.
Investigations were still ongoing in the Life Esidimeni matter. A series of inquests were currently being undertaken. Inquests were investigative by nature. Depending on the outcome of the inquests, there may be decisions to prosecute if the magistrate deemed it fit. The Department of Health (DoH) was also taking disciplinary action against decision makers involved at the time of the procurement of the service providers.
He replied that NPA did not have a specific focus on the Zama Zama phenomenon. However, since a vast majority of instances showed that illegal miners worked in conjunction with organised crime syndicates, all NPA offices with organised crime components and the Hawks had various operations dealing with the Zama Zama phenomenon. The undercover operations and organised crime projects currently underway were looking at the illegal procurement of these precious metals and the refining of the metals by unqualified personnel. The matter was being dealt with on the broader level of organised crime.
In addition to the comments made on the political killings, he added that apart from the coordinator referred to by the NDPP to deal with matters in KZN, attention has been given to the Eastern Cape as there have also been political killings in that province and political unrest cases in Limpopo.
On the IPID complaint on the asset forfeiture process, Adv Knorx Molelle replied that it was unfortunate that the IPID correspondence sent to the NPA (which necessitated the engagement between NPA and IPID, and in which all the issues were discussed and resolved) was sent to the media. The best way to destroy a case as a complainant in an asset forfeiture process is to divulge information on the investigation to the media before the case is finalised and without prior notice to the NPA to avoid the prospect of assets being dissipated. No application was drafted by IPID on this matter. NPA was currently engaging with IPID on the asset forfeiture process in the context of investigations being carried out. The asset forfeiture proceeding was one of the processes.
Adv Molelle confirmed that he had a meeting with the IPID head of investigations. It was a follow-up meeting of the undertaking agreed to by both entities, with the aim of finalising investigations and making informed decisions. There was no instruction to suspend the application. Once proceedings of this nature are brought, NPA ensured that a proper case is made before the court. The engagement with the IPID head of investigations resulted in finding a common ground in addressing the issue at hand.
Communication of decisions in a premature manner had an adverse impact on interested members of the public in the matter. It was therefore, important for NPA to be cautious in approaching and dealing with matters to prevent the perception of abuse of processes by the institution.
On the steps taken on curator costs, Adv Molelle pointed out that NPA has reviewed its processes to ensure that costs are curbed where necessary. However, it was important to note that curators emerged by virtue of asset forfeiture processes. In view of the cost cutting measures in the period under review, NPA has explored various ways in which the curatorship bill could be managed and reduced, starting with NPA’s engagement with SCCU and other prosecuting units. A curatorship and auctioneer panel has been appointed in each province to ensure streamlining that would result in availability of capacity. This would assist in effective management of curators. The location where the services were required was close to the location of service providers. NPA was also looking into the curatorship backlog in terms of outstanding payments.
On the emphasis placed by Members on certain crime typologies, Adv Molelle replied that although details were not given on these crimes in the report, the NPA was able to finalise and record an excess in the achievement of targets for the specific focus areas highlighted by the Committee. NPA was addressing these focus areas to make an impact on crime.
The Chairperson said that all issues could not be exhausted.
Adv Malini Govender, Acting Special Director of Public Prosecutions: Specialised Commercial Crime Unit, replied that NPA had various cybercrime cases, many dealing with unauthorized accessing of data. Those cases were generally dealt with in the environment of general prosecutors. The SCCU had a substantial number of cases on intrusive attacks, which were a lot more complex; the use of attack techniques to compromise computer systems; dating romance scams; and matters involving syndicates that dealt with bank card crimes. One of the reasons for the success rate recorded is the existence of dedicated prosecutors trained to address these challenges and who provide assistance to other prosecutors dealing with these matters in other courts.
On the Nkandla matter, it was noted that NPA has always provided information and reasons for decisions reached whenever this was requested. This matter was referred to Adv Govender by the NDPP because the SCCU had made a decision not to prosecute in four out of five of the cases referred by SIU to the SCCU. However, there were four other cases that were reported by various concerned citizens and/or leaders of political parties. In the circumstances, the cases had the exact same complaints. It was therefore, necessary for all the matters to be considered together. This led to the direction of certain investigations and the attorney of one of the political parties was informed. Adv Govender said she would also be required to consult with the directors of public prosecution in terms of Section 24(3). Once investigations have been finalised and processes attended to, the necessary decision would be communicated to the attorney.
The PRASA investigations were ongoing. No communications were made on ongoing investigations. It was, however, important to note that this was one of the matters with prosecution-guided investigations.
Adv Govender said that the NDPP had requested her to attend to the inter-agency strategy with SARS and FIC. These engagements have been ongoing and progress has been made in extending the current mandate on the MOU between SARS and the NPA. A meeting is scheduled in September to take the process forward.
The Chairperson thanked the NPA for responding to the questions raised, including issues that were personal to some MPs and should not have been raised at the meeting.
The meeting was adjourned.
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