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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
10 June 2003
JUSTICE BUDGET: INPUT BY NATIONAL PROSECUTING AUTHORITY AND SPECIALIST UNITS
Documents handed out:
National Prosecuting Authority of South Africa: Report to Parliament 2002/2003
Special Investigating Unit: Report to Parliament 2002/2003
Special Investigating Unit: Media Release (see Appendix 1)
The National Prosecuting Authority stated it was showing considerable general improvement. Court productivity had improved and conviction rates were over 80% in most courts. Docket screening has been introduced to reduce withdrawal rates. Measures are being taken to improve court performance. The Specialist units (Asset Forfeiture, Scorpions, Sexual Offences and Community Affairs, Specialised Commercial Crime Unit, and the Witness Protection Programme) performed very well. The Rautenbach case raised issues around the effect of an appeal which had to be examined. Some TRC cases are ready to proceed, others await Court and Amnesty rulings. Although significant progress had been made, the NPA still had to face a number of issues.
The Chair of the Committee expressed concern at the low productivity rates of the High Courts, especially in view of its effect on women and children in sentencing case delays. The Committee discussed reducing overcrowding, improved management of the court system, and the need for the NPA to communicate with the public. The Chair stressed that the vast majority of NPA members worked extremely hard.
Briefing on NPA and Specialist Units other than SIU
Mr B Ngcuka (National Director of Public Prosecutions) briefed the Committee. He stated that the National Prosecuting Authority (NPA) had moved closer to their vision. Performance had improved; barriers to service delivery were identified and are being addressed. Court productivity had improved from two hours per day average sitting to three hours and thirty-nine minutes. The improvement was especially large in the district and regional courts. The Chief Justice had become personally involved and Justice Kriegler was looking into the matter. The improvement of eighteen minutes in the District courts was equivalent to establishing 53 new courts. Conviction rates continued to improve, with 83% of cases in the District Courts, 74% in the Regional Courts and 82% in the High Courts resulting in conviction. Saturday and Additional Courts had kept the backlog of cases under control.
To deal with the high number of withdrawals, the NPA was working with the SAPS. Cases were now screened before being placed on the roll. Notably, prosecutors visit Police Stations on Sundays to screen weekend arrest dockets - these were often simply arrests of weekend revellers and not viable for prosecution. Models of case flow management are being developed. Efficiency and efficacy is being improved with fast-tracking of cases where the accused will plead guilty, and decentralised decision-making and discretion.
The Specialist units (Asset Forfeiture Unit, Scorpions, Sexual Offences and Community Affairs, Specialised Commercial Crime Unit, and the Witness Protection Programme) performed very well. In 2002/3. the Asset Forfeiture Unit (AFU) made 147 seizures, with R120 million under restraint. 87 forfeitures had been initiated, with R73 million forfeited. R17 million was deposited in the Criminal Asset Recovery Account (CARA). Over its lifetime, half a billion rands worth of assets had been frozen. All performance measures are trending upwards. Winning the Mohammed Case had been significant since many Courts had refused to hear applications for seizure until the Constitutional Court had ruled on the matter. The AFU now had the backing of the Court's opinion. The Rautenbach case raised important issues. The judge ruled that Notice of Appeal does not reinstate the restraint order. This allowed Mr Rautenbach to remove his assets from the country. This should be looked at by the Legislature.
The Chair interjected, saying that the NPA should bring the matter to the Committee and they would look at it. He was shocked that a judge could allow this and not, at least, order that Mr Rautenbach's assets remain in the country until the matter was settled.
The Scorpions deal with national priority crimes. They employ a unique troika methodology, combining crime analysis, investigation and prosecution supported by technology. They were involved in a number of nationally-coordinated projects, such as investigations into: transnational drug-trafficking, human smuggling and trafficking and cross-departmental corruption. The Racketeering provisions of the Prevention of Organised Crime Act have been applied successfully. The Scorpions are increasing their focus on corrupt professionals. Their conviction rate was 85% for 2001 and 2002. Mr Ngcuka cited a number of successful cases.
The Specialised Commercial Crime Unit had great success and maintains a high conviction rate - 96.2% in Pretoria in 2002/3, 93.54% in Johannesburg in 2002/3. The SCCU was broadening its reach and the court imposed significant sentences. Mr Ngcuka cited a number of successful cases.
The Sexual Offences and Community Affairs Unit played a key role in protecting vulnerable members of society. The NPA wished to know why people committed these crimes and had been working with the Pretoria Technikon and Rhodes University, Grahamstown, to develop an offender profile. SOCA had added 11 courts in 2002, bringing the national total to 39. The Thuthuzela Care Centre (TCC) was created to provide special facilities for survivors of sexual offences. Cases drawn from the TCC had a conviction rate between 70% and 75%, with a turnaround time of six months rather than the standard nine to twelve months. The TCC model was being perfected and would be used in other hospitals around the country. It had been difficult to find Magistrates prepared to preside over such cases; they found it too traumatic. A six month rotation arrangement had been developed to deal with this. 69 of 80 maintenance prosecutor positions were filled and a review of the maintenance system is underway.
The Chair interjected expressing his concern at the diversions for young sexual offenders. Whilst he supported diversions, the programmes for sexual offenders are inadequate. He cited a ten week programme of two hours of lectures per week given to young rape offenders. This was not adequate. He asked for statistics on the number of rape cases and the conviction rates.
Mr Ngcuka replied that there was no agreement on this. He had no figures on the conviction rates for rape cases that went to court, other than those that went to the specialist courts.
The Chair replied that this is unacceptable. Prosecutors should keep track of such figures.
The NPA had taken over the function of witness protection in 2001. The Witness Protection Unit provides this service. The operating model was changed leading to a much improved service. No protected witnesses had been killed or harmed in 2002/2003. 375 witnesses were under protection, with another 360 family members. 105 of the family members were children, with 5 attending crèche and 30 attending school. The conviction rate for persons where protected witnesses testified was 77%.
The Chair interjected to ask about aftercare programmes for Witnesses in the Protection Programme.
Mr Ngcuka replied that this would require the involvement of Treasury. Currently, the programme did what it could, including trying to find people jobs and assisting with relocation.
The Joint Action Corruption Task Team (JACTT) was formed to investigate corruption in the Eastern Cape Provincial Departments. The JACTT assisted in part by providing investigators and prosecutors that were experienced in dealing with fraud. Significant progress was made with 104 arrests, 18 convictions, 10 imprisonment sentences, R4,2million worth of assets under seizure and the establishment of a dedicated Regional Court. High profile and complex cases will be pursued in phase 2.
Some cases emerging from the Truth and Reconciliation Commission are ready to proceed. In others the NPA awaits rulings from the Supreme Court of Appeal and from the reconvened TRC Amnesty Committee.
The Chair interjected to ask if any legislative change was needed to deal with TRC cases where immunity from prosecution was to be offered.
Mr Ngcuka replied that he could see no need for a change in legislation.
The NPA is working with the Road Accident Fund to boost law enforcement efforts and develop an integrated investigation and prosecution strategy. With SARS funding, the NPA is developing a specialist tax litigation capacity. Funding came from funds previously used to employ senior counsel to prosecute cases.
Lack of management skills was identified as a problem. 57 senior managers were sent on the Presidential Strategic Leadership and Development Programme. The impact of the programme is being assessed.
Implementation of the Employment Equity Policy is showing results. When the NPA was first constituted there were eleven attorneys general, all of whom were white males. Now women and black people were represented in the ranks of Directors of Public Prosecution. The process still had a way to go.
Although significant progress had been made, the NPA still had to face a number of issues. Prosecutors should know their contexts and thus the sorts of crime they would have to deal with, and were being given performance management contracts. They should not simply passively receive cases. Mr Ngcuka stated that he could not yet say if the legal system had been sufficiently transformed - that one could say that it is a South African system.
Special Investigating Unit (SIU): briefing
Mr W Hofmeyr (Deputy National Director of Public Prosecutions - Head: Special Investigative Unit) briefed the Committee on the SIU. The State spends a significant amount of money on forensics. The SIU could provide this service cost-effectively at only 30 to 40% of the cost in the private sector. It has shifted from a somewhat confrontational approach to working with Government to identify corruption in Departments. A ten point strategy was developed to revive the SIU: low morale had been dealt with, though the long term survival of the unit was not guaranteed. New cases were coming in, but there tended to be a long delay in getting proclamations. The SIU is seeking to build capacity through training so that it could rely less on recruiting people from other organisations. Representivity had been improved with 67% of staff from designated groups, 43% (48% if contract workers are included) of staff is black. The SIU sought to ensure competitive salaries. Proper project management had been introduced to promote efficiency. Judgements had limited the effectiveness of the SIU - Adv W Trengrove SC briefed the SIU on legislative improvement. Cooperation with law enforcement agencies had been improved. The SIU is building its partnership with Government. Mr Hofmeyr cited several notable successes of the SIU, with R128 million (unaudited) saved through its actions.
The Chair interjected to ask how many investigations the SIU had conducted and how many were finalised.
Mr Hofmeyr replied that this information was in the detailed report.
Briefing on NPA finances
Ms M Sparg (CEO: Corporate Services) stated that in 2001/2, the first year of the NPA's budgetary independence, they had received an unqualified report from the Auditor General. The 2002/3 figures had been compiled and were being audited. She believed that the NPA was on track for another unqualified report. A saving of R20-30million was projected and had been achieved. This was within the 2% Treasury index. Funds saved went to offset Justice Department overspending. The NPA may handle procurement up to R5million, with a committee headed by a deputy director of public prosecutions to investigate wasteful expenditure.
The Auditor General had raised concerns about R523 thousand in unauthorised expenditure. This was expenditure inherited from the Department. It was virtually impossible for the Witness Protection Programme to use ordinary procurement procedures. The NPA was discussing having the necessary spending authority delegated to the WPP with the Tender Board.
The Chair responded that this gave him the impression that there was more stability in NPA finances and under-expenditure had been largely stopped.
Ms Sparg confirmed this.
The Chair asked how the NPA underspent.
Ms Sparg replied that vacancies and a longer than expected approval time for the new salary structure had led to the underspending.
Mr Ngcuka added that about 52 prosecutors had left the NPA for the Magistracy.
The Chair responded that such problems would get worse. As the Department gave up control of bodies, they lost the ability to harmonise them. Prosecutors will continue to leave the NPA if the Magistracy provides a better salary for the same qualification.
Imam G Soloman (ANC) asked how the NPA recorded the value of confiscated drugs.
Mr Ngcuka replied that the NPA simply destroyed items, such as drugs, that it could not use or realise the value of. The value of such items was not recorded aside from these reports. At the Chair's suggestion, he said that the NPA would look into keeping records of such values.
A member asked about the Basson case.
Mr Ngcuka replied that they were studying the judgement. The judges had ducked the real question in the appeal. The problem with the case had to do with fairness. But the judges had ruled simply that the State may only appeal on matters of law, not on matters of fact. The central problem though was that the State did not receive a fair trial because the judge was biased. In their judgement the judges referred to a possible problem. They wondered how one would deal with a situation where one found evidence that the judge had been bribed. There seemed to them no way to appeal even on this fact. The NPA is studying the judgement and getting legal opinion.
The Chair responded that the NPA should take the case to the Constitutional Court. There is a right to a fair trial. He would strongly support them in this. The fact that things had been done a certain way for 500 years was not enough. They should interpret round the Constitution. The Constitutional Court should pronounce on what is a fair trial for the State. He asked about procedural weaknesses that had been referred to.
Mr Ngcuka replied that there had been shortcomings in pagination and there were missing pages in some copies. They had all been technical issues, with nothing that related to the substance of the case. Even so, this should never have happened.
The Chair responded that the problem is that the public think that the matter was mishandled - they do not realise that it was a technical mistake. The NPA should inform the public.
A member asked about the ruling by the Cape High Court that the State had to pay the costs in a case that could not proceed.
Mr Ngcuka replied that the State had been ready to proceed in the case. Problems had arisen because the judge had been unavailable and had requested a certificate from the Director of Public Prosecutions authorising prosecution. This is not required in the High Court, only in lower Courts. The case was struck off the roll and the State ordered to pay costs. The judge had ruled based on a Section not in operation so it is not clear how the order was made. The case had been put back on the roll.
The Chair responded that, again, the NPA should make a public statement. It was ridiculous that a judge could make an order in terms of law that does not exist.
A member asked about the appointment of new magistrates.
Adv J Henning SC (Court Management) replied that he been told about the proposed appointments of forty magistrates. He had not yet received the list from the Magistrate's Commission.
The Chair asked if this meant that they had not identified the courts together.
Adv Henning replied that they had not.
The Chair expressed his exasperation.
Adv Henning noted that at times the Commission appointed Prosecutors that the NPA were happy to see leave.
The Chair stated that the problem was that the Commission were appointing the magistrates in area where the problems are not related to the number of magistrates. Areas with enormous infrastructure received most of the new magistrates. The appointments had not been done in a scientific way. The NPA should intervene if appointments were being made in the wrong areas.
Adv Henning noted that the NPA had been begging for a relief pool of magistrates.
Ms Camerer asked if the NPA and the Specialist Units were over-funded. They seemed the 'Rolls-Royces' of the Department.
Ms Sparg replied that the NPA is not over-funded. Some portions of the NPA are well-resourced but this is not the reason for their success. Problems were due more to broader issues of management than funding.
The Chair added that specialised units inevitably take the best cases and have the best lawyers. It would be bad if they did not have the high success rates they had. The vast majority of prosecutors were in the lower courts. There was a measure of truth to Ms Camerer's point because the Scorpions, AFU were better staffed and so on. This is true all over the world.
Ms Camerer asked about the R210 million reported in the Sunday Times to be in CARA.
Mr Hofmeyer replied that this was not correct. The figures presented in the tables are annual figures. At the end of the previous financial year, there was R18 million in CARA. The amount now was about R27 million. All the money recovered by the SIU was victim money and so returned to the victim (the State) by court order.
Ms Camerer asked about the SIU expenditure being R5 million more than their budget.
Mr Hofmeyer explained that R3 million had been rolled over, so the overspend was partly due to this. Further, the Department of Correctional Services had given the SIU R2,5 million. At the end of the year, there was about R138 thousand in the SIU budget.
Ms F Chohan-Kota (ANC) stated that she was pleased that the NPA was looking at case management and improving court hours. This was a case of working smarter not harder. She referred the NPA officials to the way matters were handled in Port Elizabeth. They had instituted legal aid rolls - public defenders had been paired with prosecutors so that the court could run all day. Further, they had ghost rolls to allow the court to continue when a case collapsed, which would ordinary bring things to an end.
Mr Ngcuka replied that the NPA had been trying to come up with innovative ways to improve productivity. He would encourage the idea of assigning a public defender per court so that there would always be a legal representative present. He stated that courts needed a continuous roll so that they could move on to the next case as the previous one ended. Problems often related to people management. Appointing a new person often led to improvement. The NPA thus sought to foster dynamic leadership. There were a range of things that the NPA could do.
Ms Chohan-Kota stated that she had a problem with magistrates in sexual offences courts working for only six months when the prosecutors worked all year. Magistrate positions in sexual offences courts should be advertised as such and not as general magistracies.
Mr Ngcuka replied that there was a certain tension between the prosecution and judiciary, which is natural. However, this had led to claims that prosecutors vet magistrates, which they do not do. This meant though that the NPA had to be very careful how they dealt with magistracy issues. They had raised the idea of permanent appointments - the six month rotation was a compromise. NPA action on this was limited by assertions of judicial independence.
Ms Camerer asked what the conviction rate was. She stated that the report gave an impression of an 80% conviction rate but this was only of screened cases. She had heard about a million cases being withdrawn.
The Chair intervened to explain to the NPA officials that the figure Ms Camerer was quoting was an error on a slide at a previous presentation and that the presenter had said that the figure was incorrect at the time.
Ms Camerer stated that she wished to ask about withdrawals. To what extent are cases that are reported withdrawn? Research created the impression of an incredibly low conviction rate.
Mr L Landers (ANC) asked that the NPA send the national statistics on withdrawals to the committee.
Mr Ngcuka replied that he would give the figures on withdrawal to the Committee. He stated that the NPA had raised the issue in 2002. The NPA thought important that a decision be taken whether a person is to be prosecuted before they are arrested and placed on the roll. The sole purpose of arrest should be to prosecute the person. Many of the cases on the roll should not be there. Even in the case of the specialised units, only a third of the dockets had at least a prima facie case. He cited the example of weekend arrests of people in shebeens - it is not an offence to be in a shebeen, so these cases had to be withdrawn. The NPA had thus asked that prosecutors visit police stations on Sundays to check for such dockets. Conviction rates were based on cases that entered the system. It made no sense to base them on recorded cases since such a high proportion of them did not even amount to a prima facie case.
The Chair expressed his concern that the police had not 'bought into' this. He had heard that the SAPS have a policy that officers must meet monthly arrest quotas. The NPA should engage with them on this.
Ms Camerer asked what the NPA proposed to achieve a victim-centred approach. She noted that the victims charter and fund were both bogged down. Were there any firm ideas?
Adv T Majokweni (Head: Sexual Offences and Community Affairs Unit) replied that the NPA had been working with the Law Commission on the Victims' fund. They had had two meetings on the Bill and heard a number of proposals. The Bill is on its way to Parliament. A central question was how to manage victims of sexual abuse. The Thuthuzela Care Centre (TCC) had been established for this. The TCC ensured that processes are humane and respectful, and looks at issues of secondary victimisation. It practised total and holistic management of victims as persons, with counselling, examinations by sensitised role-players, ensuring that cases went to trial quickly. The system was designed around the victim's needs. The Victim's charter was in its final draft, in its final consultative stage, with the social cluster of Directors General. The charter would give guidelines for what victims could expect and what would be expected of them.
Mr S Swart (ACDP) asked for the NPA's comment on cases in Cape Town that had to go to the High Court for sentencing because of minimum sentencing rules, thus forcing victims to testify a second time.
The Chair asked that the NPA comment on the issue of minimum sentencing.
Adv Henning replied that ideally such cases should go before the High Court for trial as well as sentencing because the cycle is at times very long. It took up to 400 days from conviction to sentencing. The High Courts do not have the capacity for this.
The Chair responded that the Courts were the cause of the problem. He advised Adv Henning to try the cases in the High Courts.
Adv Henning replied that Judges claimed that they are not production units. If the cases were brought to the High Court, it would be a disaster.
The Chair replied that it had worked in the Eastern Cape - the High Court judges there had increased their rolls. He wondered what the problem is with Cape Town and Johannesburg. He advised Adv Henning to create a crisis in the Courts. The judges had decided that the do not like the law. This meant that women and children had to wait eighteen months for sentencing. Adv Henning should create a crisis where judges are being difficult. The Chair stated that he would consider a law requiring prosecution in the High Court to force Adv Henning's hand.
Adv Henning replied that he could get nowhere as long as the presiding officers did not see themselves as responsible for productivity.
The Chair responded that the judges had managed this on their own in some provinces. It is only Gauteng and the Western Cape where they proved a problem.
Adv Henning responded that the problem, to put things bluntly, is that judges regard themselves as little gods.
The Chair replied that Adv Henning should prove that he did not think that the judges are little gods - he should try the cases in their courts.
Adv Henning replied that the judges would find a way to avoid the cases.
The Chair replied that the judges should be told that they had let women and children wait sixteen to eighteen months for the sentencing hearings, so now the cases are being prosecuted in the High Courts. The Committee would fully support such action by the NPA; it would give effect to Government policy that women and children are a priority. Judges must be told to do their work.
Mr Ngcuka responded that the Chair should consider that this would double the roll of the High Court. The turnaround is already 600 days. He understood the Chair's position, but this would clog the system. He would see what could be done. Additional resources should be considered so that women and children did not suffer.
The Chair asked for a full report on each High Court - how long it took and how many cases were being called back.
Mr Swart asked what the NPA were doing to get awaiting trial prisoners out of jail.
The Chair suggested that the NPA assign a prosecutor to each prison for a fortnightly or monthly meeting to implement Section 63 and see who could be released.
Mr Ngcuka replied that he would look at the suggestion of associating a prosecutor with each prison. The NPA had to look at available resources. The NPA had decided to look into cases where people were unable to meet bail of less than R1000. Where appropriate, such people were released on their own recognisance. He had instructed that this process should continue. Magistrates fought the idea, claiming that prosecutors were interfering with their discretion. The police also object when arrested people are released. However, a substantial number of people had been released under this programme.
Ms N Mahlawe (ANC) asked how decisions were taken regarding the transfer of cases to various courts. In kwaZulu-Natal, she found a lot of overcrowding. Decisions taken at the top level appeared not to be known at lower levels.
Mr Ngcuka replied that all decisions were conveyed and circulars sent out. It is important that there is two-way communication. He asked that instances where policy was not being implemented be reported. There is a division in the NPA to deal with representations from the publis.
The Chair responded, asking if there was any internal monitoring system. The Committee had found people in Port Elizabeth that had been in prison awaiting trial since 1997.
Mr Ngcuka responded that the NPA monitored the rolls and looked into cases that had been on the roll of District Courts for more than six months, Regional Courts for more than twelve months, and High Courts for more than eighteen to twenty-four months. Delays were not always because of the prosecution.
The Chair responded that he was considering legislation requiring a report every three or six months on cases of awaiting-trial prisoners in prison for longer than a cut-off period, whose cases had not yet started. He asked if Mr Ngcuka could see any value in this.
Mr Ngcuka replied that they would find that the long turnaround cases are in the High Courts, where turnaround is two to three years.
A member raised the rejection of dockets. A member of the SAPS had said that there is a standing order that every docket had to be certified by the section head of the investigating department or the prosecutor could simply reject it.
Adv Henning stated that in theory SAPS practice is that the head of the investigating unit certifies the docket. In practice, this did not always happen. However, prosecutors could not pass responsibility to the investigating head. The NPA was having regular meetings with the SAPS and had asked that it return to the practice of certifying dockets before proceeding to court.
Mr Ngcuka added that the NPA had asked the SAPS to appoint officials as liaisons. They were working with the police to ensure this.
Mr Landers asked about the deployment of senior prosecutors to Pinetown to deal with the backlogs there. He had discovered that the bulk of Westville awaiting-trial children went through the Pinetown courts. Could Mr Ngcuka give the Committee and indication of progress in this?
Imam Solomon stated that he had accompanied someone to the maintenance court in Wynberg and had encountered chaos. He wanted to know where the maintenance prosecutors were and if there had been any improvement since their appointment.
Adv Majokweni replied that 55 had been appointed and that the remaining prosecutors to be appointed would be apointed in the next month. The NPA wanted to implement a system of appointments for maintenance cases so that people would know when to come to the courts. The prosecutors did not yet have all the powers envisaged for them in the Act. For example, they could not yet execute warrants and still had to use sheriffs for this.
The Chair asked why the High Courts were so unproductive, sitting for less than three and a half hours on average.
(Although this question was not directly answered, there was an extended exchange on the unproductive nature of the High Courts following the questions about delays for minimum sentencing.)
The Chair asked about aftercare in the Witness Protection Programme.
The Chair asked why such a small proportion of the cases brought to the Commercial Crimes Unit proceeded to court.
Mr Swart asked if there was a link between SIU investigations in the Department of Correctional Services and the Jali Commission.
Mr Hofmeyer replied that the SIU was working on material emerging from the Jali Commission. The Commission only has a mandate to investigate and make recommendations.
The Chair raised a possible problem with decentralisation: high profile cases would not be tried in the High Courts. Major criminals should be tried in the High Courts where they would not be able to intimidate people. It is important for the country to see that such cases are fast-tracked and dealt with at a high level.
Mr Swart asked about the delays the SIU experienced in receiving proclamations. Could the Committee assist?
Mr Hofmeyr replied that delays often resulted because the President is required to consult with the relevant Premier in provincial investigations. Whilst Premiers were usually accommodating when contacted, it was not uncommon for the necessary letters to lie on officials' desks unattended.
Imam Solomon asked if using civil forfeiture, by the SIU and AFU, was unique in the world. He asked how similar bodies elsewhere did their work.
Mr Hofmeyr replied that the SIU was fairly unique in that it was the only organisation that used civil law procedures and had powers of investigation and enforcement.
Imam Solomon asked why Mr Rautenbach was allowed to slip out of the country.
Mr L Mackenzie (NPA official) replied that the case had started in October 1999 and Mr Rautenbach had left the country by Christmas, shortly after the Sunday Times article. Application for his extradition would be brought in July
The Chair responded that Imam Solomon should probably address the question to Justice Rabie.
A member asked about the CARA account. Funds had been sitting in it for some time, with nothing done to ensure that they are distributed to aid fighting crime.
Mr Hofmeyr replied that there was legal uncertainty over whether the money could be paid out since it is in Treasury accounts. Thus it can only be disbursed in budgets. Treasury has agreed that disbursements may be made.
A member asked about the extent to which prosecutors in sexual offences cases had been prepared to deal with disabled witnesses. He cited a possible case of an intellectually impaired child who would easily become an incredible witness.
Adv Majokweni replied that the training for prosecutors included a module on dealing with people with learning difficulties or mental impairment.
A member asked if progress had been made in capturing senior criminals in drug cases.
Mr Mackenzie replied that thirty-six heads of criminal organisations involved in counterfeit goods had been arrested. At least ten of these were also involved in drug trafficking.
The Chair brought to the attention of the NPA African prosecutors and magistrates who experienced problems because they cannot speak Afrikaans. This appeared to be a particular problem in the Western Cape and Free State.
Mr Ngcuka responded that this is a problem. African prosecutors are not being appointed in the Western Cape because they cannot speak Afrikaans. The NPA would appoint translators to help them. The problem applied to judges too. A Judge has been appointed to come up with a policy on language in courts.
The Chair asked for the NPA's comment on Appeals.
Adv Henning replied that there had been an increase in the number of appeals. This was being handled with additional sessions, which some Court divisions sitting during the recess. There were initiatives to deal with the backlog. He believed that there would have to be a sifting process. He had received the draft Bill and comments would be sent to the Committee on 20 June.
The Chair responded that this would be too late.
Adv Henning responded that they had only received the Bill two weeks previously. He understood the requirement that appeals be argued orally would be softened, so that cases could be argued in papers submitted to judges.
The Chair stated that the NPA should be ready to defend the change, with evidence and statistics from periods of automatic appeal and periods with leave to appeal. He did not think that the NPA was ready to defend the alteration in the right of appeal. It should start preparing for when the challenge came.
The Chair asked if the plea-bargaining system was working. What systems were in place?
Mr Ngcuka replied that plea-bargaining had not taken off as expected. Only 68 cases had been finalised with plea-bargaining in 2002, most of these with the specialised units. It had helped though - a case that would have taken two years was finalised in a day. Directors of Public Prosecutions have been advised to use plea-bargaining and admission of guilt, especially in petty cases.
The Chair responded that the NPA should get the police involved - they could tell people they arrested about guilty pleas and plea bargaining.
Mr Ngcuka agreed that this would be a good idea.
The Chair raised his concern about unacceptable diversion programmes. Standards would be created in the Child Justice Bill, but in the meantime the NPA should develop standards.
Adv Majokweni replied that they needed to look at ways of standardising and accrediting diversion programmes. A committee was looking at this.
The Chair asked why the NPA no longer commented on Bills. He had had to telephone the NPA to ask for their view. It is vital that their voice is heard.
Mr Ngcuka replied that he was sorry that the Committee had not received the NPA's responses to the Bills. He would look into it. The NPA wanted the law changed so that the State could appeal on the facts as well as on the law. It is also time that the accused should disclose his/her defence. These matters should received priority attention.
The Chair responded that he thought the Bills addressing this were with the Department, though the Bill on disclosure might still be with the Commission. Neither Bill was on the Department's priority list.
Mr Ngcuka asked that this be looked into.
The Chair suggested that the NPA push for more prison courts. The court at St Alban's prison worked well.
Mr Ngcuka replied that they would be happy with more prison courts. However, magistrates said that they could not go to prisons because they had to sit in public.
The Chair found that there were no Saturday Courts in Port Elizabeth because the attorneys did not want to work on Saturdays. The Legal Aid Board was happy to work on Saturdays though, so this should be relooked with them.
Mr Ngcuka responded that, as far as he knew, it was the magistrates that had refused to work, so the Legal Aid Board's willingness to work might not help.
The Chair asked that Mr Ngcuka get back to him if it was the magistrates.
The Chair stated that the NPA should work to have more children committed to secure care facilities instead of prison. The children belong in welfare institutions. He cited secure care facilites in Johannesburg and Port Elizabeth with spare capacity who were resisting further placings. It would help if prosecutors argued for using secure care facilities.
The Chair presented a series of suggestions for improved court management based on the model adopted by the prosecutor in Port Elizabeth, for whom he had high praise. To avoid dockets going back and forth between the prosecutors and police, there should be an SAPS official working with prosecutors who outranks the investigators. The official can then order investigators to do what the prosecution needs. Dockets should not be sent back to the police but be kept in the court buildings. Dockets would then be in the hands of prosecutors for some time before the hearing. 'Court nags' should be appointed to telephone to check that everything in the docket is in order before the case proceeds to court. Courts should have a permanent public defender for continuous legal aid rolls. Ghost rolls of legal aid cases should be set up to keep the courts running when the roll fell flat. Prosecution officials should establish which prisoners could not meet bail, for possible use of Section 63, and that wished to plead guilty. Coordinating forums should be established - comprising the head of prosecutions, the Judge President, and the head of Legal Aid - led by the Judge President. These forums could talk through problems. South Africa is still a young democracy, so conventions and mechanisms had not yet developed to facilitate smooth interfaces. The heads of the NPA, SAPS and Correctional Services should get together to draw up a protocol for this.
Mr Ngcuka responded that he agreed fully with the principle raised in the Chair's presentation based on the Port Elizabeth system. They had a problem though in that the senior police official was withdrawn. Regarding the coordinating forums, Directors of Public Prosecutions' performance contracts required that the state what they had done regarding dealing with coordination and liaison with stakeholders. He would be happy with drawing up protocols. The NPA was caught in the middle, between the police and the judiciary - such protocols could only assist them.
The Chair stated that the NPA should tell the public that 80%, or whatever the figure was, of cases reported could not proceed because they did not amount to even a prima facie case. The NPA should have press conferences. They should not wait for national figures to talk - speaking to the public should be decentralised.
Mr Ngcuka responded that the NPA had commissioned a study to find what they were doing wrong. One of the recommendations was that they should talk to the public more. It also advised that prosecutors should train with investigators.
The Chair responded that the NPA had a lot of good things to talk about and they should talk about them.
Mr Landers stated that Messrs Ngcuka and Hofmeyr would remember seizing the assets of a Mr Barnabus. The Court had ruled against the seizure because the law was new. The community, which is his constituency, had been asking him about Mr Barnabus. He had told them that the NPA is very thorough and they should wait. He was pleased that the NPA had now moved in on Mr Barnabus. The community is grateful since Mr Barnabus had ruined many lives. They now wanted him arrested and prosecuted.
Mr Swart stated that pre-trial services were working well in Port Elizabeth when the Committee visited. He noted that the police can now "give" fines of up to R2 500 for admission of guilt, and prosecutors and clerks R5 000 without involving a judge or magistrate. He added that he found the report good and the progress encouraging.
Imam Solomon stated that every year brought good stories and stressed the importance of public confidence. He had read in the Star that the DA Safety and Security spokesperson, using figures that were out of context and unjustified, had stated that South Africa has a weak criminal justice system, a criminal justice system in crisis. He asked if there is a crisis in the justice system and wonder what Mr Ngcuka thought of such comments.
A member stated that there tended to be a hangover from what was inherited. He applauded the broader review of the legal system in South Africa. Mr Ngcuka should continue with the process of interacting with role-players so that the legal system could respond to the South African situation.
Mr Ngcuka responded that the NPA had some problems with the pre-trial system implemented in Port Elizabeth in some areas. It had had to be withdrawn completely in some places. Regarding the charge that the criminal justice system was in crisis, he thought it would do to consider where things had come from. There had been bombs in Cape Town, political violence in kwaZulu-Natal, taxi violence and so on. There had been a serious crisis and no-one had the answers to how to deal with it. Currently, there was no crime that one could say baffled the system in this way. Crime remained a problem, but there is no crisis. Whilst the rate was unacceptably high, crime could be beaten. He thanked the Committee for the resources, both financial and legal that the NPA had been given.
The Chair asked that the NPA send him the new salary scales. He stated that the Prosecuting Authority and specialised units were things of which we could be proud. There had been problems, but they had been exemplary in the way they have done things. He had no problem with people criticising the justice system, but some were making cheap politics out of people's pain. This would come back to 'bite' them. Using people's pain and suffering is terrible. 95% of courts work every single day. To say things were in crisis was to negate the hard work. Of course one got lazy court officials, just as one got lazy people in all other areas. However, the vast majority of people worked very hard.
The NPA must engage the public. If the public brought cases without evidence, they cannot expect that anything will be done. This was not to say that police officers that did not do their work should not be pursued mercilessly.
Politicians should be careful in the way they did these things. Information should be used responsibly, otherwise honest interaction becomes impossible. He asked that Mr Ngcuka let his staff know that as far as he (the Chair) was concerned the vast majority of them worked very hard under very difficult circumstances and he appreciated this. One should be supportive and not break down the systems when criticising.
Problem areas should be cleared out - many had got beyond working out who was to blame and should just be cleared out. The system could not afford having major centres that did not work because of egos. The NPA should identify good leaders and put them in major areas.
The NPA should be brave. They should take on the High Court. If they believed that judges are accountable, then they must make them accountable. Judges and courts should be respected, but foolishness must not be tolerated. He did not like treating the judiciary with kid gloves when it came to how much work they did. He thought that leadership was key in this. The NPA should engage the public and explain what was going on. They should stop being shy of things that they had done well.
The meeting was adjourned.
SIU BACK IN BUSINESS -
SAVES MILLIONS FOR STATEThe Special Investigating Unit (SIU) is firmly back in business following the successes achieved during the past financial year.
Highlight of 2002/03
The highlight of the 2002/03 financial year was the recovery of R17 million in the investigation into corruption in the Department of Correctional Services (DCS). SIU investigators found that doctors and DCS officials were colluding to defraud medical aid schemes by submitting false claims.
To date the SIU has recovered R17 million in the form of acknowledgements of debt from six doctors. In one case a doctor had defrauded R7,6 million from medical aid schemes. He has signed an AOD for this amount.
The SIU has worked with the DSO (Scorpions) and the police to ensure that those involved are criminally charged where warranted.
From the investigation it is clear that this is a widespread practice throughout the DCS and it is anticipated that even larger amounts will be recovered in the future.
Recoveries and savings to the state
Last year the SIU set itself targets to achieve:
R40 million in recoveries of cash; and
R60 million in savings (including prevention of loss) for the state.
It managed to exceed these targets by
recovering R37,5 million;
and saving R90,5 million.
Thus in total the SIU recovered or saved the state R128 million. (unaudited figures).
The most important cash recoveries were:
R17 million in the DCS investigation mentioned above; and
R14 million recovered during the ghost worker investigation in the Limpopo Province.
The most significant savings were:
R75,4 million by securing the assets belonging to Agri-Eco, a state controlled s21 company in the Free State Province; and
R14 million in the Namaqualand Housing Project. Contractors were forced to honour a contract to build houses after they had ceased all work when they received payment in advance.
Other action taken
The Limpopo license investigation resulted in the revoking of 1400 licenses. Another 1600 licenses are due for cancellation soon, while a further 7000 licenses have been identified as potentially irregularly issued.
In the Nontenja matter, a member of the SIU was actively involved in preparing the criminal case docket against Mr S Nontenja. Mr Nontenja had defrauded the Department of Justice of R19 million. As a result of the SIU's efforts, he was sentenced to 25 years in prison and his assets were forfeited.
The SIU has also worked closed with the SAPS, the DSO (Scorpions) and the Asset Forfeiture Unit (AFU).
Partnerships to fight corruption
During the past year the SIU developed particularly close working relationships with several state institutions to fight corruption, including:
DCS that agreed to help fund the establishment of a special project team in the SIU to focus exclusively on investigating corruption in prisons;
The Limpopo Department of Transport that is helping to fund the costs of the investigation into all licenses issued in the province between 1994 and 1999;
The KZN Department of Housing that is helping to fund the costs of the investigation into abuse of housing subsidies in the province; and
The Joint Anti-Corruption Task Team (JACT) established by law enforcement agencies to tackle corruption in the Eastern Cape. The SIU played a key role in providing the infrastructure for JACT, including office space and administrative support. Eight SIU members have been seconded to work full-time on JACT.
During the past year the SIU experienced massive growth in its staff complement as a result of the filling of vacancies and the funding received from other state institutions.
The number of permanent staff has grown by 40% from 74 to 103 while the total staff complement (including contract workers) grew even more rapidly by 58% from 84 to 133.
Establishing a national presence
During the past year the SIU has established regional offices in Pretoria and Durban to ensure that it delivers a better service to state institutions in those areas. It is anticipated that further offices will be established in Cape Town and Mpumalanga within the next year.
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