The Department of Justice and Constitutional Development (DoJCD) and the National Prosecuting Authority’s presented their 2017/18 Annual Reports. The Deputy Minister of Justice and Constitutional Development was in attendance.
The Department explained that it had received a qualified audit because it had changed its modified cash standards without due consultation and thorough interrogations between the Auditor-General, National Treasury and the Department.
The Auditor-General found that out of the eight entities linked to the Department, 6 obtained a clean audit and 2 received an unqualified audit with matters.
Further, the Department reported that that only 74% of targets were met and this was generally attributed to the budget constraints. This also meant that it could not fill vacancies and that a number of projects could not be completed. One of the targets was to have 30 344 or less cases on the backlog but the year ended with about 33 000. The Department will ensure that the integrity of the criminal justice system strategy takes hold in order to address this backlog problem. The target for conversion of case backlog courts was also not reached due to financial limitations. There had been delays in finalising the construction of court buildings; these include contractual issues and delays for the Mpumalanga High Court and contractors going on business rescue in the case of the Port Shepstone Court. Another challenge was that the Auditor General changed its audit approach and started to use data analytics. The Department was still using old systems thus the Auditor-General had an advantage on the Department. Every time new legislation is implemented, the Auditor-General audits in accordance to the new legislation but the Department did not have systems to support this.
Accruals were decreased to R8 million, from R492 million in the 2015/16 year. The cost drivers were mostly electricity and water bills, security services and infrastructure, IT systems and support as well as travelling and accommodation expenses. The budget was cut by a total of R607 million in the current year, which impacting project planning and implementation. These cuts included the transfer of funds towards funding the Mpumalanga High Court and the Office of the Chief Justice.
The measures taken to address the audit outcome shortcomings are the new high-priority audit action plan as well as the consequence management initiated by the Accounting Officer, with specific investigations already being authorised into Infrastructure and Supply Chain Management in different regions. From a strategic level, the areas identified for specific intervention are leave management of Magistrates and the procurement of legal services. The Department has requested - and is awaiting -the National Treasury on the outcome for an exemption appeal for service procurement methods such as the outsourcing of legal services, based on the nature of the business.
Some members felt that every time the matter of the State Legal Advisor’s Office and the State Attorney’s Office was on the agenda the Committee would hear the same issues. They wanted the Committee -as an oversight entity – to get more detail pertaining to what was being done to attend to the deficiencies in this regard. In addition, Members asked about supply chain management, targets and their usefulness, the vacancy rate, why there was underspending in some areas, the implementation of the Use of Official Languages Act, the Integrated Justice System Project and the qualified opinion.
The National Prosecuting Authority indicated that 2017/2018 was characterised by outstanding performances in most of the spheres of the organisation notwithstanding the budgetary and resource constraints that the entity had experienced. Budgetary constraints and other resource constraints had taken a toll on the welfare of prosecutors, other staff, their families, and on the institution itself.
The reduction in court utilisation and the inability to optimally employ or use court hours or days hamper productivity and result in an increased case backlog. Budgetary constraints resulted in vacant posts not being filled which in turn placed a strain on the NPA staff establishment. This also affected the Aspirant Attorney’s Programme.
There were two indicators in which the NPA had not achieved its targets. The first area was in respect of the conviction rate with respect to the trio crimes where the target was 85% but the NPA only managed to reach 82.9%. The other area where the NPA did not achieve its target was in relation to violent protest and industrial action. The target was 74% and the NPA managed to achieve 68.8%. There were significant challenges that were systemic: it was rare to get credible evidence in some instances because of witnesses being reluctant to testify, insufficient identification of the perpetrators and significant discrepancies between witnesses.
The NPA did not have enough money for goods and services and to pay for its contractual obligations. The NPA was assisted by the Department of Justice with R34 million at the end of the previous financial year that ended 31 March 2018 as the NPA budget was not enough for the year. The Department also assisted the NPA with goods and services in respect to its Microsoft licenses. Another critical challenge indicated in the NPA was the high vacancy rate. The NPA had over 150 resignations in the first six months of the year.
Members noted that prosecutors were working under extreme working conditions due to cuts in expenditure which had resulted in staff shortages, a higher vacancy rate and inadequate resources. They indicated that the challenge was how the Committee and Parliament expects to hold the NPA and other departments accountable when sufficient funds were not given. They asked about malicious prosecutions, the Timol case, the moratorium on filling vacancies, prosecuting those who did not appear before the TRC or those not granted amnesty by the TRC, the lowering of performance targets, leadership in the organisation, fruitless and wasteful expenditure and the tension between the Special Investigating Unit and the NPA. The NPA was congratulated on how it was handling the witness protection project.
The Department reported that the policy on appointment of insolvency practitioners was declared unconstitutional. A task team had been established to look into the matter and a new policy will be developed following engagements with stakeholders that are scheduled for next month.
Overview by Deputy Minister
Mr John Jeffery, Deputy Minister of Justice and Constitutional Development, extended to the Committee the greetings of the Minister of Justice and Correctional Services, who could not be at the meeting as he was attending the 57th Annual Session of the Asian-African Legal Consultative Organisation in Japan.
He explained that as the end of the MTSF was near, it was important to assess the performance of the Department as a whole, and the extent to which its policies and programmes, have improved the lives of the people of the country. The Annual Report would reflect on the progress the Department had made towards the finalisation of key transformative legislation and implementation of policies and programmes in advancing government’s programme of action.
In the year under review, 73% of the R12 billion allocated budget was spent on the compensation of employees. The slow economic growth and reprioritisation of spending towards tertiary education to assist middle-income families continued to affect the budget of the Department.
The recruitment process of filling the 217 critical posts – which amounted to R58 million - in Court Services, was underway. The Minister has, since April 2017, filled the positions of 1 Regional Court President (for North West, to take office on 1 November), 1 Chief Magistrate (1 October) and 48 Senior Magistrate and 178 entry-level magistrates. The advertisements for the next round of interviews have been placed and it is envisaged that the interviews will be conducted by the end of the year.
The Deputy Minister emphasised that the budget cuts did not make it easy to fill vacancies and it meant that a number of projects could not be completed.
The key problem areas were the Limpopo High Court in Polokwane and Mpumalanga High Court in Mbombela. The recurring day to day maintenance challenges in respect of the Limpopo High Court are domestic water shortage, rising underground water flooding the underground parking area, leaking water pipes, faulty roller-up shutter security doors, lifts constantly get stuck and bulbs blowing up, due to problems with the electricity supply.
The land for the site in respect of the Mpumalanga High Court was donated. The Department had missed the target date for the construction of the left-in-left out access route into the court house from the Samora Machel main thoroughfare and was pushing for completion by December 2018.
The new courts that would be finalised in the 2018/2017 financial year were Bityie in Eastern Cape, Booysens in Gauteng and Plettenberg Bay in the Western Cape.
The procurement of outsourced services by the State Attorney was raised by the Auditor-General as a significant matter of non-compliance with the procurement framework.
The transformation of the legal profession has also been a major concern of the public. To this extent, the Department has started various processes so as to transform the profession and to align its processes accordingly.
The advocate’s profession has not been keen to have information made public on the briefing of counsel and related tariffs as the Department has been reporting on the allocation of work in accordance with policies on a monthly basis and on its website. The amount/value of the briefs is also not shown. His personal view is that, since it is public funds, it should be made public.
The Minister expressed that much progress had been made regarding the transformation of state legal services. An Implementation Plan to transition from the current to the proposed transformed state legal service, as well as a State Legal Services SA Bill was developed. The merging of the State Attorneys offices and the State Law Advisers offices was also being proposed.
The prevention and combating of gender-based and sexual violence remains high on the departmental agenda. The Department continued with the roll-out of sexual offences courts. An additional 17 court rooms were adapted in line with the sexual offences model and this brought the total number of court rooms adapted to 75. The conviction rate for sexual offences and gender-based violence was at 72.7%.
The Sexual Offences and Community Affair (SOCA) unit established 55 operational Thuthuzela Care Centres (TCC), in support of the victims of crime. Funds have been allocated from the Criminal Assets Recovery Account (CARA) for the rollout of another 5 TCC’s over the next 3 years. A remarkable conviction rate of 74,5%, with 1 899 convictions, was recorded in relation to TCC reported cases.
The Deputy Minister established and steered the National Forum on the implementation of Sexual Offences Act which was held from the 30th -31st October 2017.
The comments on the Draft Sexual Offences Regulation are being evaluated after which the regulation will be amended. The Department estimates that the regulation will be finalised in the first quarter of 2019.
With regards to child justice, 75% of preliminary enquiries for children were finalised within 90 days, against a target of 55%. The Child Justice Amendment Bill has been tabled in Parliament.
The Department remains on course to complete the rationalisation of magisterial districts in all provinces by the end of the term of the 5th Administration.
The Chief Justice has in his norms and standards for all courts indicated that in terms of criminal matters accused must plead before 3 months after enrolment and the matter must be finalised within 6 months.
The regulations in terms of the Protected Disclosures Amendment Act were gazetted in September. The Justice Administered Fund Act was implemented with effect from 1 April 2018.
The Deputy Minister was pleased to inform the Committee that the regulations dealing with the appointment of magistrates, as well as a new code of judicial conduct for magistrates (the code of conduct is very much in line with that of judges) - after recommendation by the Magistrates Commission was approved and gazetted on 7 September 2018.
The draft regulations dealing with the leave of magistrates was also recommended by the Magistrates Commission and published for further comment.
The biggest challenge facing legal Aid SA was that of fiscal constraints. The reduction of staff could also result in a reduced coverage of criminal courts.
The SIU once again received a clean, unqualified audit report from the Auditor General South Africa, meeting eight out of its nine targets and concluded 15 comprehensive investigations.
The members of the South African Law Reform Commission were appointed, for a period of 5 years. The members are Judge Narandran Kollapen (chairperson); Irvin Lawrence (vice-chairperson); Professors Mpfariseni Budeli-Nemakonde; Karthigasen Govender and Wesahl Domingo; Advocates Tshepo Sibeko; HJ de Waal SC; Anthea Platt SC, and Herina Margaretha Meinjes SC.
The Deputy Minister thanked the Committee members for their leadership and diligent commitment of oversight responsibility over this portfolio. Their leadership in this regard is highly appreciated.
Policy on Insolvency Practitioners
Ms Tessie Bezuidenhout, Acting Chief Master, DoJCD, verified that the policy was declared unconstitutional. She clarified that there were various issues that were lacking and not addressed in the policy. She added that her predecessors are the ones who dealt with the policy. They had temporarily established a task team, in the office of the Chief Master, with the association of various stakeholders, that would workshop a new policy that is best suited for the whole country, on the 9th and 10th of November 2018. The mandate is aligned with the need for transformation within the insolvency industry; the policy, however, had the effect of companies fronting – only being ‘cheque collectors’ and not doing any administration work. Another goal was to involve other stakeholders, such as financial institutions. For example, SARS has a panel of only 2 people nominated to be liquidators.
Mr D Van Rooyen (ANC) expressed his concern about the retention of the status quo because in as far as the Constitutional Court position. He then asked how the identified discrepancies were - as far as the transformation agenda is concerned - being dealt with. He also asked if there were any clear timelines set towards realising a fully-fledged product that would enhance the agenda.
Ms Bezuidenhout stated that the status quo before the policy was still in place. However, they had assembled a committee that considered a national list of liquidators. She added that there was an application process followed through a panel and there are certain imperative criteria such as tax clearance as well as relevant work experience. The appointment would also be based on the Master’s discretion. In terms of the Insolvency Act, insolvency is a credit-driven process, which means that a creditor would come by way of requisitions and request the appointment of a particular liquidator. Furthermore, the Act obliges the Master to appoint the credit-nominated liquidator. The Master has discretion to appoint a second liquidator, from the national and PDI lists, with the aim of transforming and assisting. She reiterated that was not a bullet-proof process because people are using it to front and this needs to be addressed, with the assistance provided by creditors.
Mr Van Rooyen highlighted the need for the availability of performance updates to be incorporated into quarterly progress reports, for a thorough performance assessment of a Department.
Ms Bezuidenhout replied that the first workshop would be in November. She assured the Members that the Department would try to ensure that a draft policy would be in place by the end of the current financial year, for implementation in the subsequent year. The Department will also consider reporting quarterly.
Briefing by Department of Justice and Constitutional Development (DoJCD)
Mr Vusi Madonsela, Director General, DoJCD, commenced by giving a brief overview of the presentation scope: matters relating to policy updates, the performance overview of the Department, the organisational overview as well as programme performance, which entails programmes 1-5. He clarified that programme 4 concerns the National Prosecuting Authority (NPA) hence a separate presentation has been planned for it.
Ms Lebo Mphahlele-Ntsasa, Chief Director: Strategy, Planning Monitoring and Evaluation, DoJCD, stated that in terms of operations, the file audits had been created to ensure knowledge of the amount of work the state attorneys were doing and how they were doing it in order to maximise their efficiency. One of the key focuses of the year was the consultations relating to transformation of state legal services. The policy position for the judicial governance was drafted for the Minister and was being dealt with through the Inter-Ministerial Committee (IMC). There were a number of issues about the legal system that need to be addressed under the policy framework of transformation: these include the overall of old legislation, transformation of various branches of the law and measures in place to ensure improvement of access to justice. She added that progress had been made - a draft had been prepared to address some of these issues.
The Lower Courts Bill was drafted to align the lower courts with the Constitution. It has been shared with the relevant stakeholders and comments were being evaluated. The paralegal work had been continuing and post-consultation research was currently being conducted. An appropriate funding model was in the process of being finalised before the end of the financial year. Regarding the Reconciliation Commission a lot of work had happened, especially under Basic and Higher Education; however, there are still areas in which the Department had not been doing as well.
The exhumation of freedom fighters was still in progress. A total of 130 people were hanged and the Department had already exhumed 46 of them, hoping to finalise the process by the end of the financial year.
Concerning the access of justice, a total of 148 additional Advisory Board Members as well as 98 Commissioners were appointed during the year. The number of Magistrates’ Courts that use the Paperless Estate Administration System (PEAS) was increased from 206 to 237 over the last year. Court recording technology has been implemented in 145 court rooms, a further 47 mobile recorders were acquired to facilitate the recording of the proceedings and the storage of the data. The MOJA Pay Solutions (third party funds) was rolled out in 8 provinces and 15 state attorney offices; this was a major improvement from the old systems that used to be utilised. It significantly improves the turnaround times of paying maintenance to the children.
Budget constraints were still the basis of the challenges that the Department faced during the course of the year. This is because it mostly outsources from external services providers. The Human Resources post-review Committee identified crucial vacancies and the Department has filled them to ensure that certain services are not affected. The Department had also been supporting the Commission of Inquiry on the State Capture, including providing financial assistance. The conversion of backlog courts was not conducted because there was a need for the Magistrates, along with their support staff, but there were financial challenges that did not allow this.
Ms Louraine Rossouw, Chief Financial Officer (CFO), DoJCD, expressed that the Department was displeased by the outcome of the Audit, but it had accepted the outcome and would improve on it. She commended the staff for achieving a clean audit on third party funds; and indicated that the ICT team won the ICT Service Delivery Transformation Award for public service, in relation to their work on MOJA Pay. However, the Department still uses the old system to manage funds across the country.
The measures taken to address the audit outcome shortcomings are the new high-priority audit action plan as well as the consequence management initiated by the Accounting Officer, with specific investigations already being authorised into Infrastructure and Supply Chain Management in different regions. From a strategic level, the areas identified for specific intervention are leave management of Magistrates and the procurement of legal services. The Department has requested - and is awaiting -the National Treasury on the outcome for an exemption appeal for service procurement methods such as the outsourcing of legal services, based on the nature of the business.
The Department managed its finances quite well. The average annual increase from the previous financial year was 2%, with the compensation of employees increasing by 4% and goods and services by 2%. Accruals were decreased to R8 million, from R492 million in the 2015/16 year. The cost drivers were mostly electricity and water bills, security services and infrastructure, IT systems and support as well as travelling and accommodation expenses. The budget was cut by a total of R607 million in the current year, which impacting project planning and implementation. These cuts included the transfer of funds towards funding the Mpumalanga High Court and the Office of the Chief Justice.
Ms Mphahlele-Ntasa highlighted the challenges faced by the Department, stating that only 74% of targets were met and this was generally attributed to the budget constraints. One of the targets was to have 30 344 or less cases on the backlog but the year ended with about 33 000. The Department will ensure that the integrity of the criminal justice system strategy takes hold in order to address this backlog problem. The target for conversion of case backlog courts was also not reached due to financial limitations. All other initiatives that are linked to perception surveys were also suspended for the same reason.
There had been delays in finalising the construction of court buildings; these include contractual issues and delays for the Mpumalanga High Court and contractors going on business rescue in the case of the Port Shepstone Court. Taxations are meant to be processed within 14 days and the target was 98% but realised only 86%. This was caused by implementation issues of the enhanced taxation systems.
The Letters of Authority that are issued for trusts are also meant to be dealt with within 14 days and only 83%, instead of the targeted 90%, were dealt with on time. This was due to contractual issues that were linked to offside storage of files but this problem had since been addressed.
The target of the number of litigation cases through mediation initiatives was 24 cases but only 4 were addressed. This was because individuals were not compelled to mediate but there are policies being established to improve the case backlogs in the courts. On the transformation agenda, there was also the aim to allocate 40% of cases to female counsels but a notable 38% was achieved.
The Department aimed to complete 91% of extraditions and actually completed 89%, which was very close to the target. An extradition treaty with the United Arab Emirates (UAE) was recently finalised.
Adv Jacob Skosana, Deputy Director General, DoJCD, clarified that the maintenance scheme of the NPA is regulated through the Department of Public Works (DPW). The NPA pays accommodation charges to the DPW annually; a portion of those charges is allocated towards planned maintenance, another is for municipal services. He added that the Limpopo High Court is not yet included within the asset register and the accommodation charges of the DPW, and was thus not maintained by the DPW. The project would first need to be finalised. The NPA obtained a special maintenance programme through National Treasury (NT) for the interim period. The NPA covers the expenses of day-to-day maintenance and is looking to insource its own services for the efficient resolution of routine repairs, particularly for all the processes that do not exceed costing of R100 000.
Mr W Horn (DA) stated that every time the matter of the state legal advisor and the state attorney’s office was on the agenda the Committee would hear the same issues. The only new information was from the Deputy Minister who noted that in the view of the task team, part of the solution might be to incorporate the state attorney with the state legal advisor. He thought that the Committee as an oversight entity should get more detail pertaining to what was being done to attend to the deficiencies in this regard.
The Committee must always insist of the very best audit outcomes. However, he felt a bit of sympathy for the departments after the outcomes by the Auditor General South Africa (AGSA). He got the sense that the AGSA was making audit outcomes with qualified findings. He wondered whether what the AGSA made the findings on had been clearly communicated as a focus area well in advance to the departments. He requested the Department’s views on the matter.
Mr Horn thought that when in came to clean governance, matters like the correct statements of contingent liabilities, the magistrate’s leave and so on were important but he felt that the Committee should focus on the challenges the departments were experiencing for example with supply chain management. He asked that the Department unpack the matter further for the Committee. As far as he knew, there were challenges with the head of supply chain management dating as far back as 2016 and the latest information was that the matter had not been solved yet. He asked whether the impact of the supply chain management challenges on top management influenced the results on the audit outcome. What was the likelihood that the matter would be solved sooner than later? What steps were included in the ‘drastic plan’ mentioned by the Department to iron these challenges out?
In relation to the targets and their usefulness, it was on record that the Committee had a bit of a tussle in terms of what it viewed as a weakening of its role to play a significant oversight through the targets at the time. The targets were more or less insisted by the AGSA. He asked what the process was going forward in respect of the targets. What was the Department going to do to satisfy both the demands of the AGSA and the Committee in respect of oversight?
He explained that when one ties the audit from the AGSA and the advice from internal auditors regarding performance management, there were sufficient timely warnings that the performance management on a leadership scale must address certain aspects of performance management. Why did the Department not respond timely to the advice given by internal auditors in terms of performance management?
He also asked that the Committee be addressed on the old matter of the Integrated Criminal Justice System Project (ICJSP). How far was it from being a fully functional system? He stated that the Committee should welcome that some aspects of the system were now bearing from.
Mr K Mpumlwana (ANC) understood that there were budget cuts but, in the report, there were some areas of underspending. He further stated that when people resign, retire or pass on they are not replaced fast enough by the DoJCD. This affected the efficiency of the Department. He asked that the Department tries to check possibilities around the matter, even with the budget constraints.
He thanked the Department for having a policy that was now starting to consider the implementation of the Use of Official Languages Act. For the past four years he had been saying that access to justice in a foreign language makes one a foreigner in their own country. He asked whether the Department had established a unit in terms of Section 7 of the Act. Had the Department implemented Section 8e of the Act? Does the Department make the annual reports in Parliament in terms of Section 10 of the Act? Regarding the regulations signed on 5 February 2014 by the former Minister, Paul Mashatile, and the methods given to the Department regarding that, it was not clear what the Department meant when it states that it was considering them.
He expressed that the Committee decided at some point that it wanted a Bill that would make the learning of African languages as a requirement for LLB degrees in universities. He asked that the Department could assist on the bill.
He asked if the Department's transformation agenda had considered adding the principles of Ubuntu. If the Department had not considered the matter, he asked that it considers it.
Mr G Skosana (ANC) welcomed the presentations from the DoJCD. He indicated that the Committee was disappointed with the qualified opinion the Department received. The fact that the Department was qualified on a different area from the previous year was concerning. This implied that the Department shifted its focus to immovable tangible assets and ignored other areas. What practical steps was the Department going to take to ensure that it does not get a qualified opinion again in the coming financial year? He explained that he was not talking about an audit action plan. He was referring to practical steps above and beyond that audit action plan.
The AGSA found that out of the eight entities linked to the Department, 6 entities had a clean audit. Two of the entities received an unqualified audit with matters. It was concerning that the Department itself got a qualified audit opinion. In his view, these results should be the other way around. It should be the Department that assists the other entities. When the Department becomes the worst performer than the entities that depend on it, it becomes a serious concern.
On the matter of consequence management, what was the Department planning to do given the audit findings?
Lastly, on the matter of critical vacant posts, some posts had been vacant since September 2016. This affected the performance of the Department. Was there any movement in filling the vacant posts, particularly in the SCM unit? If the Department has not been able to address the matter, what were the challenges?
Mr M Maila (ANC) understood the CFO to have said that the Department was qualified in different matters. He concurred with Mr Skosana.
It appeared that the Department was qualified in different aspects in the current year however; the qualification was actually around the same area of work. This was very concerning for the Committee.
On the IJSP, this was a multi-departmental project. Its success depends on various role players. He asked which body was responsible for the oversight of the project. If there was no oversight board, the likelihood of the project being realised would be very low.
Mr Maila expressed that the Committee appreciates that there were so many Small Claims Courts. However, he was concerned as to how these courts were distributed. Did ordinary people know about these courts? How were they being popularised? Were they accessible?
Mr Van Rooyen thanked the team from the DoJCD. He welcomed the good work that had been done in the financial year under review.
The progress made by the Department regarding the management of its third party funds had given him peace. He was biased when it came to the matter because beneficiaries of the third party fund were from the poorest of the poor and had given the Committee the mandate to represent them.
The good performance that had been demonstrated by the Department on ensuring that the remains of the freedom fighters of the country were brought back also gave him peace. The families were very grateful because in a way it complements the greater effort of bringing closure to the families.
Mr Van Rooyen was concerned about the regress in the Department in the area of financial management and performance to a larger extent. He also hoped that the Ministry was equally concerned as this was a second year where the Department had received a qualified opinion.
He agreed with most of Mr Skosana's submission, but he did not think that the post audit plan should be treated as a by the way exercise. It was very central. If the Committee knows the plan of the Department with regards to the audit outcomes it can monitor it on a quarterly basis. The Committee is empowered and placed at a better position to hold the Department accountable. It also accords the Committee as a public representative the opportunity to enrich the plan and identify areas where it is lacking.
He appreciated that the Department had singled out areas of focus of the post audit plan. This was however not enough. A plan should table who will be responsible for what, what time the Committee should expect the results and what other stakeholders needed to be involved to ensure the objectives of the plan are realised.
The Committee was very worried about the pace at which the Department was addressing the matters that were raised.
Mr Van Rooyen expressed that he knew that to some extent the AGSA had raised concerns about the financial system and the management thereof by the Department with regards to the Third Party Funds. He also expressed that he was not sure to what extent the Committee had entertained the developments around the Guardian Fund on the matter as he had just joined the Committee.
He was happy that the Department had indicated that it would be embarking on a system that it termed the modernisation project, but he was not sure how far it was with the plans. He requested an update on this matter.
Lastly, he asked how the State Capture Commission was assisted. He requested that the Committee receive further details with regards to the matter.
The Chairperson commended the Department on the work pertaining to the returning of freedom fighters to their families. More work still needed to be done. She asked what the progress was in terms of the freedom fighters who were assassinated outside the country. Their families wanted closure.
With regards to the matter of the supply chain management, in 2016 the Committee was informed that there were challenges regarding the procurement of Furniture in the Limpopo High Court, and the State Attorney Office. The Committee was again informed in October 2016 that necessary action had been taken. What was the progress regarding the matter.
The Chairperson expressed that in relation to the organisational structure, there were three key acting positions: the Chief State Legal Advisor, the Chief Station Office and Chief Master. What was the state of the positions currently? Were there any updates with regards to the action taken of the suspended DDG of the Constitutional Development?
Responses from the Department of Justice and Correctional Development
Mr Madonsela replied that in addition to the positions pointed out by the Chairperson, there was now a position of an Acting Deputy Director General in Cooperate Services who had left the Department about two months ago. The process leading to advertising the position was on the way.
Instructions had been given to advertise in earnest the position of the Acting Chief Master. With regards to the Chief Litigation Officer and Chief State Law Advisor positions, the Department had been advised against filling the positions in light of the project that it is undergoing on the transformation of the state legal services. The structure that is proposed for the transformation does not accommodate the two positions in their full capacity. It was best that the new positions be left vacant until a new structure is established.
An investigation was completed on the misconduct concerning the supply chain procurement of furniture at the Limpopo High Court. There were recommendations that the matter be taken up to the Head of Supply Chain. The Department set up the process and the disciplinary hearing. The Head of Supply Chain was removed from the supply chain environment to another position. At the end of the disciplinary process the presiding officer arrived at the conclusion that the employer representative in the disciplinary hearing did not give enough evidence to prove the guilt of the employee party on the balance of probabilities. The Department was then forced to retain the person and return this individual back to the position in which they were in. The Department did explore the possibility of taking the decision on review as it was unsatisfied about the findings but it turned out that it was the failure of the employer representative to lead sufficient evidence not that the evidence was not there. Further developments were that the Head of Supply Chain had made representations that he no longer wished to go back to supply chain and the Department has to find alternative replacement for him. Based on his skills profile, the Department has however struggled to find an alternative replacement for him. The Department has commenced the process of engaging with other Departments to see whether they would be able to accommodate him in areas where his skills may be relevant. The process was receiving considerations from two departments that could not be mentioned at this point. Once the matter was finalised, the Department would then report to the Portfolio Committee accordingly.
Mr Modonsela clarified that the DDG of Constitutional Development was not suspended. She was placed elsewhere in the Department while an investigation into grievances against her was being conducted. Subsequently, the Department has also initiated a disciplinary hearing against her. The proceedings are under way.
In response to the question about the return of the bodies of freedom fighter, the exhumation process the Department was undergoing currently did not cover people outside the country.
Deputy Minister Jeffery stated that strictly speaking the exhumation project relates to people that were identified by the Truth and Reconciliation Commission (TRC). Those are the people that there is money to exhume and rebury. Often when the Missing Persons Task Team at the NPA are looking for someone that had been identified in the TRC, they would find somebody else who was buried with the person - another missing person who was not identified by the TRC. Sometimes the Ministry has been able to find ways, sometimes the provincial governments that have paid for their burials. The matter of freedom fighters outside the country is a big complex matter that needs to be addressed. There was also the challenge of the neighbouring states asking whether they were not looking after the graves properly and why do people want to exhume the freedom fighters. They also argue that it is part of their history.
In response to Mr Maila's question on the Small Claims Court, the Deputy Minister stated that every court has a Small Claims Court. One needs to ask for the clerk of the small claims court and they will help them. Every district has a Small Claims Court. The Department is currently rolling out to sub-district courts. But there are fewer of them. The point raised about whether people knew about the Small Claims Courts was a very valid question. The Department was limited but it did do things like community engagements, but it would help that information is put out better because the Small Claims Courts are entirely free if the amount due is less than R15 000. If the amount due is more than R15 000 one can elect to say that they will let go of the amount by which it is above the R15 000 to keep it within the range.
Mr Madonsela responded to questions raised by Mr Van Rooyen. The assistance given to the State Capture Commission falls outside the year under review in that the commission was established in the current financial year. The Department had given all the assistance that is required to the Commission in the same way assistance is given for all other commissions. It had assisted in the establishment of the commission, terms of reference, the regulations for the commission - together with the Presidency - and support with regards to the administrative support for the commission. Further, it assisted with other administrative matters related to procurements.
The commission has been allocated a budget of R230 million. The budget was predicated on the initial period of 180 days. Now that the Commission has been granted an extension the cost implications would increase, and the matter is yet to be engaged on.
The Guardians Fund as well received a clean audit.
Ms Bezuidenhout responded to Mr Van Rooyen's question by expressing that there were concerns raised as the Guardian's Fund was not purely a financial system, however the Department was at an advance stage of developing that system into a financial system. It started during the beginning of the year and the first testing would occur in November and December. The Department envisages rolling out the new financial system by January 2019.
Mr Modensela stated that the concerns raised by Mr Van Rooyen concerning the regression in the performance and financial management were valid and the Department was not proud that it had two qualified opinions on two consecutive years in the area.
He stated that the Department shared the same concerns as Mr Skosana.
Mr Godfrey Leseba, IJS Programme Lead, DoJCD, replied that there were three key areas in ensuring the functioning of the IJS. These were the case management work package, the business intelligence and the critical part of how persons are managed through the criminal justice system. The latter part was the one which had not been moving fast enough. However, there were critical interventions that had happened which had stimulated some optimism in the area.
Working together with cluster partners and National Treasury, the Department had managed to get the consolidation of the IJS budget. At some point the budget of the IJS was allocated to the Department of Justice and the South African Police Services (SAPS). This created problems in terms of the accountability framework. The problem was now out of the way and the budget would be consolidated and allocated to the Department of Justice vote.
There was also a major intervention to deal with the work which was not moving fast enough in SAPS. The National Commissioner of the Police has appointed a Deputy Nation Commissioner for Crime Detection to chair the steering committee that looks after the integrated programme. He was optimistic that in the next 12 to 18 months much work would be done.
The work done at Home Affairs would also help. Home Affairs has started a project called the automated biometric identification systems. This system would give the Department a broader pool of searches for crime and would include people that come in and out of the country.
The delivery of the project was overseen by an interdepartmental structure that is called the IJS board which consists of the Chief Information Officers of all the departments involved paired with the senior business representatives or people from operations who would ensure that the technology being put in place would address the targeted issues.
Mr Leseba stated that a process had been started with the Director General to review the governance around IJS. This would be pertaining to how to bring the various director generals of the departments closer to the program and how to replicate the IJS board at the Director General and the Ministerial level.
Ms Rossouw indicated that the Department had changed from the risk-based system in terms of the PFMA to a rule-based system. In the rule-based system every year the rules are changed. For example, in the last year, a decision was taken during budget adjustments that the Department could not moving funding away from compensation in whereas it had been different in the year before that. The reason for the under expenditure was that the Department was managing based on a rule from the previous year which was changed in the middle of the year and the Department could not change its management at the point.
The cause of the qualified audit was that the Department had changed its modified cash standards without due consultation and thorough interrogations between the Auditor-General, National Treasury and the Department. In her view, the Department had to be qualified based on the standards last year, but it was an unfair qualification because the auditors understood the challenges.
Ms Rossouw stated that another challenge is that the Auditor General changed its audit approach and started to use data analytics. The Department was still using old systems thus the Auditor-General had an advantage on the Department. Every time new legislation is implemented, the Auditor-General audits in accordance to the new legislation but the Department did not have systems to support this.
In dealing with the changes, she had requested the Auditor-General not to start auditing new items in July. The Department would also be implementing its own data analytics so that it can be able to see what the Auditor-General sees in advance.
With regards to concerns about the deviations in the supply chain, the rules also changed in this area. Previously, if the Department wanted to deviate it could but would have to inform National Treasury, now you need permission from National Treasury. National Treasury always seems to halve the time of deviation requests which was also a concern.
To address the delay matter, Ms Rossouw stated that the Department had implemented processes to improve the quality assurance process for all bids above R15 million, where the Department asked the Office of the Chief procurement officer to quality assure the bids. In the end the office required two months to finish a quality assurance. The Auditor General then regarded this as poor planning stating that the Department could not implement something and not anticipate the outcomes.
The Department sometimes has problems because about a year ago, it experienced irregular expenditure. In its processes, the Department missed bidders who committed fraud. The Department then started to anticipate fraud when suppliers bid, and it had deviations in three large bids where the qualifying bidders were found to be non-compliant or to have committed fraud on such things as BEE certificates. In order not to face the same challenges as the previous year, the Department was working close with Auditor-General in terms of disclosure.
Adv Skosana responded that DoJCD was in the process of establishing the language uit. The approval for the establishment of the unit had been signed and the advert was up and running. The DoJCD has been liaising with the Department of Arts and Culture in dealing with the challenges concerning this.
In terms of policy, the Department had put together a costing mechanism to ensure that funds were going to be channelled to the implementation of the policy. The Department had also looked into the foreign languages capacity and the matter of creating new standard procedures for all the languages. The Department was writing a manual and hoped that the policy would allow it to start putting capacity where it was needed. He assured the Committee that the Department would continue to provide reports to it on the progress and to get guidance from the Committee in respect of the implementation process.
The second point that Mr Mpumlwana raised was whether the Department had started to incorporate the principles of Ubuntu in the legal systems and how the courts operate. This was one of the projects the Department was excited about. It had started on working on the project and would have a chance to come and present to the Committee.
Mr van Rooyen appreciated the responses from the DoJCD. He thought that the Department was working with a moving target when it came to the quality of audits. To get the required quality of audits would take quite a while. This was his personal take.
He asked how the Department felt about the status of its financial management as a whole. Did the CFO think that the DoJCD had the financial skills to deal with the financial mandate of the Department? In his opinion, some of the findings by the AGSA were restated findings. They were not new matters.
Mr van Rooyen thought that the response on the Guardian Fund was flying over the issue and not giving the Committee enough details. He asked - through the Chairperson -whether it was possible to allow the Department to come and present on the new financial model it was talking about.
He asked for the vote that the Department had used for the previous commission.
Mr Mpumlwana thought that the Department would touch on the programme it referred to when it indicated that it was piloting the language programme.
Adv Skosana responded that the Department had undertaken a pilot phase where it was doing consultation with the stakeholders with regards to coming up with uniform standards for languages.
The Department’s vote number was 21.
Since the operations of the Post Review Committee, the Department was given the task to reduce the vacancy rate. The Department had already advertised 224 posts. It had renewed contracts for supply chain management.
The Chairperson stated that the DoJCD would have to respond in writing to some of the questions it had not responded to.
Briefing by the National Prosecuting Authority on Annual Report 2017/2018
Dr Silas Ramaite, Acting National Director of Public Prosecution; NPA, stated that the NPA welcomes and respects the oversight powers of the Committee. It also acknowledged the benefit of engaging with the Committee in bringing service delivery, improving transparency, and building confidence in the administration of justice and in the NPA.
Dr Ramaite stated the mandate of the NPA. He expressed that 2017/2018 was characterised by outstanding performances in most of the spheres of the organisation notwithstanding the budgetary and resource constraints that the entity had experienced. Budgetary constraints and other resource constraints had taken a toll on the welfare of prosecutors, other staff, their families, and on the institution itself.
The reduction in court utilisation and the inability to optimally employ or use court hours or days hamper productivity and result in an increased case backlog. The placement of too few cases on the court roll adds to the burden of no court utilization. The NPA accepted that the lack of court utilisation was unacceptable and did not promote confidence in the institution.
Budgetary constraints resulted in vacant posts not being filled which in turn placed a strain on the NPA staff establishment. This also affected the Aspirant Attorney’s Programme.
Looking at successful prosecution in respect of conviction rates, the NPA had achieved. This was in the district, regional as well as in the higher courts. There had also been significant achievement and success in respect of the specialised commercials crime unit, as well as in orgainised crimes and sexual offences.
There were two indicators in which the NPA had not achieved its targets. The first area was in respect of the conviction rate with respect to the trio crimes where the target was 85% but the NPA only managed to reach 82.9%.
The other area where the NPA did not achieve its target was in relation to violent protest and industrial action. The target was 74% and the NPA managed to achieve 68.8%. There were significant challenges that were systemic: it was rare to get credible evidence in some instances because of witnesses being reluctant to testify, insufficient identification of the perpetrators and significant discrepancies between witnesses.
Dr Ramaite stated that in respect of the asset forfeiture cases, the NPA completed 553 forfeiture cases to the value of R350.95 million and recorded 324 freezing orders to the value R4.4 billion. The asset forfeiture exceeded its target in relation to the percentage of completed cases. However, in respect to the targeted value in respect of asset forfeitures, the NPA did not achieve its target. The indicator in respect of cases completed was actually a new indicator which the NPA had to include as a result of queries from the Auditor General.
The area in which the NPA did not achieve in respect of asset forfeiture was in respect of the value of recoveries associated with corruption to the value of more than R5 million.
The Office for Witness Protection achieved both its targets. No witnesses or related persons in protection were harmed, threatened or killed. This had been maintained for seventeen years now.
Dr Ramaite informed the Committee that in September this year, South Africa hosted the International Association of Prosecutors Annual Conference and General Meeting and the theme was ‘Prosecutorial Independence, Cornerstone of Justice to Society’.
The NPA also wished to put on record that on 16 October 2018, the NPA would be celebrating the 20th anniversary of its existence.
Concerning so-called state capture matters, the NPA was currently assisting the police investigations. There was also a team of prosecutors and investigators from the DPCI who were helping with the matter. The one matter that the NPA had prioritised, which was also already in court, was the so called Estina leg.
Ms Hanika Van Zeil, Chief Financial Officer (CFO), NPA, highlighted that the NPA was assisted by the Department of Justice with R34 million at the end of the previous financial year. The Department also assisted the NPA with goods and services in respect to its Microsoft licenses.
The NPA was also given R58 million of which R32 million went to the NPA set program, the bulk of which relates to the compensation of employees. In support services, the R23 million was the Microsoft licenses paid from the programme. The NPA did not have enough money for goods and services and to pay its contractual obligations.
The compensation of employees was the main cost driver as it constitutes 88% of the budget.
Ms Van Zeil stated that the NPA had over 150 resignations in the first six months of the year.
The NPA created initiatives in order to reduce costs on goods and services. It looked at all the scopes of the contract, the travelling allowance was also decreased, and it had also limited all new procurement to high priority procurements and catering was only done in exceptional circumstances.
There was a transfer and subsidiary over expenditure which related to the leave gratuity paid to the high officials leaving the NPA.
In the last two and half years the NPA had lost over 500 workers which it had not replaced. If somebody left the organisation, the post becomes unfunded and vacant. The current vacancy rate was at 19% of which 17% relates to prosecutorial posts.
Dr Ramaite added that the NPA was part of the exhumation process of freedom fighters through the Missing Persons Task Team which managed by the Priority Crimes Litigation Unit and the priority matters were matters raised in the TRC.
Mr Horn expressed that while it was good news to hear that the NPA was successful in about two-thirds of the civil claims and malicious prosecutions cases, it was still a concern that there were some cases of malicious prosecutions that still occurred. He would like to hear how the NPA dealt internally where the courts have found in favour of the plaintiffs specifically given what happened over the last few years, for example, the recent withdrawal of the case against Dramat. He asked that the Committee be advised on what strategies the NPA had internally to prevent malicious prosecutions.
Mr Horn asked that the Committee be updated in respect of the Timol case, whether other cases where people died during apartheid in similar circumstances would now be revisited now for the sake of transparency and with the aim of true accountability.
In respect of the performance targets, Mr Horn thought it must be said that the Committee had asked serious questions as to why some of the targets in this year’s APP were lowered dramatically. Even though targets had been made, there had actually been a further regression. For example, the number of cases finalised in the High Court were fewer in respect of the targets set though the percentages reflected an achievement. In respect to the trio cases, the actual number of cases finalised had actually increased but the target percentage had decreased. The Committee and the Department should get to a situation where apples could be compared to apples. In respect of APP’s and targets, the Committee should get a real picture of performance.
He thought that there was a good conviction rate in respect of sexual offences but it would seem that less and less of the reports on sexual offences end up in courts. This would not necessarily be ascribed to the performance of the NPA only. He stated that the complete picture should still be concerning.
In respect of sub programme two, it would seem that as of late while the NPA was good at obtaining freezing cases, but there was a struggle to finalise them. Even when the cases are finalised, what is recovered seems to be dwindling. For example, in respect to the value of recoverable corruption cases where the amount benefited was more than R5 million, but the actual money obtained back was R2.54 million.
Mr Horn expressed that the Committee welcomed the feedback in respect to the state capture. The former National Director had spoken about the seven legs. He asked that the Committee be apprised on the progress if any of those seven legs.
Also, with regards to the recent expressions by the former Public Protector that in her view some of the supporting documents to her statement should have led to more or less an immediate prosecution. The way he understood it in the Free State High Court where the order was ultimately not given with finality, there was information that the NPA failed to put in front of the court. These were specific bank statements which were part of the evidential documents contained in the state capture report. If this was the case, why and how did this happen?
Mr Horn stated that his last question was in respect of the top leadership of the NPA. The Committee had learned that the President was to be advised by a special panel in respect of the appointment of a new National Director. In the meantime, there was also a situation where the Deputy Directors were asked to give reasons why they should not be suspended pending inquiries against them. At the time the President alluded to the trust and confidence in the NPA. What were the Deputy National Directors doing at the moment when they report for duty? What steps had been taken in the meantime to ultimately mitigate and protect the NPA in a worst-case scenario from a further loss in confidence?
Mr S Swart (ACDP) thanked the NPA for its work under difficult conditions. It was important to highlight what the Institute for Security Studies (ISS) had said that the prosecutors were working under extreme working conditions due to cuts in expenditure which had resulted in staff shortages, a higher vacancy rate and inadequate resources.
Mr Swart stated that the challenge from his perspective was how the Committee and Parliament expects to hold the NPA and other departments accountable when sufficient funds were not being given. The Committee still had to exercise its oversight, but he wanted to thank the NPA and express that the Committee understood the fiscal constraints it was operating under. With that being said, there was a need to make sure that the available resources were being used to the maximum.
One of the matters highlighted by the Auditor General was the R47.3 million under fruitless and wasteful expenditure which was related to an asset forfeiture due to curator fees. He understood that the value of the asset was about R20 million, but the Department ended up paying R47 million for curator fees. These were things that need to be avoided by the Department.
Mr Swart stated that it was disturbing that the NPA had lost 615 prosecutors. How would the NPA ensure that it was keeping its prosecutors? There were 1064 posts and a high vacancy rate.
He also understood that some of these prosecutors would become magistrates and thought it was crucial to find a way of retaining experienced prosecutors.
When the NPA noticed that there was a prevalence of a certain crime such as cash and transit heists, it decided to work closely with the law enforcing agents. How did the NPA decide on the matter? How does it make such decisions?
He also wanted to raise the matter of the burning of trains in the country. He asked if this was not a matter that would require a similar approach for a higher-level intervention given that the legislation for infrastructure damage was amended. The killings of politicians in KwaZulu-Natal seemed to require a higher-level intervention as well. It would not been unfair to suggest that the matter of farm worker and farmer owner murders needed a similar intervention.
Mr Swart noted that there was a bit of tension between the Special Investigating Unit (SIU) and the NPA where concerns were expressed about the lack of progress with the continuation of cases that were referred to the NPA. There was an ongoing interaction between Advocate Mothibi of the SIU and Advocate Abrahams. Advocate Mothibi expressed his concerns about the hold up of 686 cases. The NPA responded by explaining that the SIU cases were referred to the Hawks because only they were mandated to conduct criminal investigations, but the Hawks counted by saying that the NPA had forensic attorneys, accountants and qualified advocates. There seems to be an issue regarding this matter. Had the matter been resolved? Something of this nature could not continue. It would be a great concern if there were matters referred by the SIU and there was no follow up.
Mr Horn stated that the Committee needed more information with respect the progress of the legs of the state capture matter.
Mr Mpumlwana wanted to find out if what had been said by journalists in respect to the alleged collusion between the prosecutors and the lawyers who were suing the government for huge amounts, especially the Department of Health and the Department of Correctional Services was true. If the NPA had investigated the matter, how far had it gone? Also, with respect to cases involving cyber-crimes that were allegedly dropped, were there any investigations on the matter?
Mr Mpumlwana asked how far the NPA assisted or empowered police in certain areas about crimes committed in those areas. For example, he had gone to a police station where most of the staff did not even know about abalone. This meant that the people who steal abalone just walk through the areas and police do not arrest them and the prosecutors do not even know that there is such a crime.
There was also the matter of micro lenders who illegally take people’s identity documents. Do the prosecutors and police know that? He was using this line of questioning to try and find out how the NPA serves people on the ground. Was the NPA just reacting to what was in front of it? Micro lenders were financial killers of the people on the ground and were involved in numerous illegal activities like taking the bank cards of pensioners. He asked if there were any criminal cases relating to these matters that the NPA had successfully followed up. This is why he was asking whether the NPA was proactive or reactive in its approach. This was part of the transformative progression. Did the NPA have any plans to transform the society?
With regards to the use of African languages in court, the Western Cape was a good example where in some courts everyone would speak Afrikaans. These are the things he was referring to when he asked about the NPA’s plans for transformation. What was the NPA’s transformation plan regarding the inclusivity of African values in solving crimes?
Mr Mpumlwana stated that there were people who did not go to the TRC but were known to have committed crimes during apartheid. Others went to the TRC and did not get amnesty. What had the NPA done about these matters? He requested that the NPA answer honestly to this question.
He asked that the NPA enlighten him as to whom the term malicious prosecution applied to. Did it also apply to the ordinary people put in prisons every day? When does it become malicious prosecution? How does one prove that they were maliciously prosecuted?
Cases were being postponed and delayed. He requested that the NPA limit such instances as there was overcrowding in correctional services. What was the NPA doing to try and overcome the problems of overcrowding? Did the NPA think of other forms of punishment that were not incarceration?
He commended the NPA for the work it had done.
Mr Maila said that there was an indication that the NPA had cases dealing with state capture while there was also a commission on state capture. He wanted to understand which comes first. Does the case go to the Commission first and then the commission refers it to the NPA or are they run parallel?
Mr Maila said that the NPA had indicated that there was a full moratorium on vacancies. He requested the NPA to elaborate on the moratorium pertaining to who imposed it and whether it affected all posts including those viewed to be critical. When would the moratorium end?
It was mentioned that the NPA is a participant in the integrated justice system. How did the NPA view its contribution in the project? What gaps had it identified? What advice could the NPA give to ensure the success of the project?
Lastly, Mr Maila congratulated the NPA on how it was handling the witness protection project.
The Chairperson congratulated the NPA for working hard under very difficult circumstances.
The Chairperson stated that that her questions would relate to the financials. The NPA had overspent on goods and services. She asked that the NPA shed a light on the over expenditure to the Committee.
The Chairperson asked whether the R34 million from the Department related to the cost of living adjustment covered all affected employees or just a few.
She commended the NPA on the Ahmed Timol inquest. As per the inquest recommendations, did the NPA manage to take on the prosecution of the former apartheid security cop who was allegedly responsible for the murder of comrade Timol?
The Chairperson stated that she was a bit concerned about the departure of the prosecutors to the magistracy. She asked if the NPA did not have a retention strategy for all these experienced prosecutors because it would eventually have a negative impact on the fighting of crime and the good work the prosecution is based on.
Finally, she asked if there were any updates on the Steinhoff case.
Responses by the National Prosecuting Authority
Dr Ramaite responded to the question about what happens in the cases of malicious prosecutions when the claimant wins. He stated there needs to be an investigation as to how the malicious prosecution came about. His belief is that people should be disciplined for such matters even if it would go to the extent of people becoming personally liable.
With regards to the Timol and related matters, this was not the only case the NPA was busy with. In all the cases, the NPA had reopened the inquest which was as a result of the cooperation as well as the assistance of family members. The NPA was also currently busy with the assessment of the other related matters. The priority crime investigation unit was dealing with these matters.
He admitted that the question on the lowering of targets was a difficult one. The NPA was faced with a lot of challenges in its planning. He asked whether the NPA could actually afford keeping the targets as they were. His personal view was that the targets should at least be kept were they were instead of reducing them. Some of his colleagues did not agree with his view. This was a matter that the NPA was debating internally and he personally did not think that the target should be increased.
Dr Ramaite stated that these were matters the NPA had not yet settled and was prepared to engage on with the Committee. The NPA accepted the criticism.
He expressed that there was still a struggle factor for the NPA in relation to closing its asset forfeiture cases. This was right from the onset of identifying the cases. He had a similar debate when he was still in the AFU on these sorts of matters. His approach was rather than just focusing specifically on cases with the value of more than R5 million, they should rather stagger the value and it would be easier for the NPA to make a determination of how it was actually doing.
On state capture, Dr Ramaite said he had deliberately refrained from expanding into the legs. It was safe to say that there was one matter that was currently before the court. He was comfortable to speak on matters where a decision had already been taken and not matters where the NPA was guiding the investigations.
The challenges that were surrounding the top leadership were a difficult matter. On the question of those under investigation but were still in the Department, there was nothing in law that said that they should not be at work. This is what the law states.
The curator fees had been one of the troubling matters. Once you have the preservation order of a number of these cases, going forward and getting the final order takes time. A lot of these people resist peace but, in the meantime, there must be a curator. These fees were taken from the NPA budget.
Dr Ramaite stated that he was not aware of any intended prosecutions in the short term related to the Steinhoff matter. In as far as the NPA was concerned; there were no developments that it had for the Committee pertaining to the case.
In matters like farm murders, cash transits and political murder, the NPA did intervene. He did not at the point have information regarding these but the NPA was intervening.
What had happened between the NPA and the SIU was unfortunate. The Minister of Justice had called a meeting between the NPA and the SIU. There was some working around this matter. The history behind the matter was the inconsistent manner in which the SIU had referred cases to the NPA. At one stage they were referred to the DPP and the regional office of the SIU. At some stage during the term of another head of the SIU, they were then referred to the DPCI as well as the NPA. Recently, after a memorandum of understanding between the former NDPP head and SIU head, they were referred directly to the head office of the NPA. The entities were currently working on a policy that should address the inconsistencies.
In response to Mr Maila’s question, Dr Ramaite stated that when the NPA received the recommendations to consider criminal prosecution by the former Public Protector; this was just the beginning. The referral did not necessarily mean there would be prosecution. There has to be an assessment of the evidence that was presented before Public Protector bearing in mind that almost 99% of the evidence presented was inadmissible in a criminal trial. It was a good pointer towards the identification of criminal conduct but the NPA almost had to start all over again.
Fortunately, the prosecution was able to determine much earlier on the institution of a criminal prosecution in respect of the Estina matter. This was not the case in respect of the other six legs. The role of the prosecutors was to institute criminal proceedings. For the prosecution to perform the role, there has to be an investigation and an assessment of whether a crime was committed.
Dr Ramaite further stated that the problem in the Department was much deeper than a moratorium on the filling of vacancies. It was the challenges that the NPA was losing prosecutors because of the cuts in budget. When the posts become vacant, the NPA is unable to fill them because the budget had shrunk to such an extent that the NPA is unable to carry the current bodies it currently has.
He further indicated that the NPA was part of the IJS.
Ms Van Zeil explained that the expenditure of the R34 million related to the compensation of employees. It was used to pay the cost of living and performance bonuses. I the past, the NPA’s budget growth for the cost compensation was in the region of 5.9% but the cost of living adjustment was between 6% to 7%. The cost of living adjustment was higher than the budget the NPA receives. The NPA cannot pay the cost of adjustment. This was the reason for the over expenditure of R34 million.
The over spending in goods and services was due to the payment of the Microsoft licenses. The payment was done in cooperation with the Department of Justice which gave the NPA a go ahead with the agreement to give the NPA the funds at the end of the year.
Ms Van Zeil stated that the NPA would have to keep the moratorium on filling vacancies because it was currently unable to fund posts. It could not even pay its warm bodies. The Department could not advertise any new posts because it did not have any funds. The NPA could only lift the moratorium if it receives more money.
Mr Maila sought clarity on whether the NPA imposed the moratorium on itself?
Ms Van Zeil confirmed that the NPA had imposed this on itself.
Dr Ramaite explained that the moratorium was historical. When the budget cuts were across the board, the moratorium became self-imposed in the sense that even if the NPA wanted to fill vacant posts it could not because it could not afford to pay for them, so it decided then not to feel any vacant posts. The moratorium was initially across the board and later become self-imposed.
Adv Willie Hofmeyr, Deputy National Director of Public Prosecutions, NPA, responded to the matter of malicious prosecutions. The term was a bit of a misnomer because there was no need to prove maliciousness. It was as simple as the prosecutor getting a docket on Monday morning with dozens of other dockets and there would not be enough evidence on the docket to warrant the person being charged.
The more serious cases are the ones where somebody gets detained for a long time without bail because of a prosecution where there never was a case or where the court felt that there was not enough evidence on the docket to put the case on the roll. In such cases, the judgements can go very high. The largest case he was aware of was about R2 million that the NPA had to pay off. Generally, the claims were not that tough. There had not been a case where a disciplinary hearing was called for a prosecutor who had acted maliciously. There were however, cases where the NPA had recommended training for prosecutors because there were aspects of the law in which the prosecutors needed training on.
Adv Rodney de Kock, Deputy Public Prosecutor: Western Cape, NPA, responded to the question on ongoing crimes raised by Mr Mpumlwana. The NPA had an ongoing training programme with the prosecutors and it also trained police investigators from time to time. This particular issue could be flagged to look into so that the NPA could look into the crimes Mr Mpumlwana raised.
With regards to the question of languages, the Chief Justice had indicated that English would be the official language of record in the courts. The NPA did its best to accommodate all languages and had a diverse prosecuting authority. The NPA did all it could to ensure that all languages were accommodated particularly relating to access. As far as the actual courts were concerned, there the NPA still relied on the interpretation services that are supplied by the Department of Justice.
Adv de Kock also replied to the questions about the delay in prosecutions, the NPA opposing bail and the matter related to overcrowding. The prosecution worked very closely with the DCS. There were ongoing meetings regarding detainees who were in custody and the NPA received lists particularly regarding the bail that had been fixed at R1000 that people could not pay. These cases are referred back to court before the next postponement so as to try and get those people released. The NPA does a lot to ensure that only the right people were in custody. There were people who the magistrates fixed bail for and could not go out because they could not afford the bail.
The challenge the prosecution faced was that there are people who repeat crimes while out on bail as Adv Hofmeyr had stated that a large amount of the claims were from such cases.
In response to the question about other forms of punishment, Adv de Kock stated that prosecutors would ask for this. A large percentage of cases are dealt with through other forms of punishment being given. Under restorative justice and mediation which was linked to other forms of punishment, the NPA did have forms of restorative justice where the victims of crimes and often their families did get involved in such processes. The NPA does its best to ensure that prosecution was not the only approach. It does however; have to ensure that the serious cases are prosecuted.
Dr Ramaite responded to the question about what happened after the inquest of the Ahmed Timol case. The NPA was busy preparing for prosecution on the matter. A prosecutor would be appointed for this case.
Mr Mpumlwana followed up on his question regarding people who were not part of the TRC and those who went to the TRC but were not granted amnesty by the TRC.
Secondly, on the question of the African languages there was the Official Use of Languages Act which specifically states there must be a unit in the Department that promotes the other languages. Instead of having somebody interpreting into the record, the NPA could do what was done in the Western Cape. Prosecution was done in Afrikaans in some cases in the Western Cape.
He clarified that when he spoke on the ongoing crimes against old people and ordinary civilians, he was speaking on something that was currently happening. Police and prosecutors do not know about these things. He emphasised that he was asking that the NPA attends to these problems in its transformation programme. He asked that the NPA gives a commitment on this and attends to the problems of the underprivileged people.
The Chairperson stated that she did not know if the NPA would have a way of responding regarding the issue of languages because it had responded that it was in the court’s hands. The DoJCD was better placed to reply to the matter because presiding officers fell under DoJCD.
Dr Ramaite stated that the response to Mr Mpumlwana’s question would be through the TRC itself. It would be the TRC that would have to say if it has people that it had evidence on that they had committed crime, but the NPA did not have much of those yet. If it did, he thought prosecutions would have started already. The second way would be matters which had already been investigated by the police. In the majority of these, those would have been proved. Until these matters come to the attention of the NPA, there is nothing that it could do.
The Chairperson thanked the Deputy National Director and his team. She thanked the Committee members and adjourned the meeting.
The meeting was adjourned.
- Committee Report on Legal Practice Regulations - with corrected heading: section 109(1)(bA) not 109(1)(c) - 23 October 2018
- Committee Report on Legal Practice Regulations - 10 October 2018
- National Prosecuting Authority of South Africa 2017/18 Annual Report presentation
- Department of Justice 2017/18 Annual Report presentation
- Deputy Minister of Justice and Constitutional Development speech
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