National Prosecuting Authority 2018/19 Annual Report

Meeting report

Opening remarks
The Chairperson welcomed the NPA and in particular Adv Willie Hofmeyr with whom he had worked in 1999 before he had run away to the Presidency.

The Chairperson noted that Adv Hofmeyr would be retiring soon. However, he was sure that the Advocate would not sit back and do nothing. It was just an opportunity for him to change the direction of his work. He appreciated the discussions with Adv Hofmeyr and the expertise that he had offered the Committee during his many visits to Parliament. Adv Hofmeyr had made South Africa proud. He had made his contribution to the country before and after 1994, and he thanked him for his hard work and dedication to the people of South Africa. Adv Hofmeyr might not appear before the Committee again and so he was taking the opportunity to express his appreciation and that of the Committee.

The Chairperson invited other parties to express their appreciation of Adv Hofmeyr.

Adv H Mohamed (ANC) rose to express his appreciation and the appreciation of the ANC for the work undertaken by Adv Hofmeyr. He had continued his revolutionary duties in fighting corruption in the justice system and the country, as well as his contribution to the civil justice system. He was retiring but he doubted that Adv Hofmeyr would actually retire, knowing him. The work continued but was not done yet. Although they had come a long way, work still had to be done to protect the safety of both citizens and democracy. He thanked Adv Hofmeyr for his tireless contribution, not only during the apartheid but more especially in protecting the justice system under democracy.

Adv T Mulaudzi (EFF) stood to thank Adv Hofmeyr for his work against corruption and, especially, the work that he had done in the Asset Forfeiture Unit (AFU). He would be appreciative if Adv Hofmeyr assisted Adv Batohi even after retirement as he was at the NPA for a long time, especially in assisting with how to retrieve the assets that had been moved out of the country. Further, he would appreciate the assistance of Adv Hofmeyr in dealing with the asset forfeiture of Steinhoff, and those assets that had been moved to Israel, which did not want to assist in the return of those assets. Finally, he would appreciate him helping Adv Batohi, even if he were retired. He did not want Adv Hofmeyr’s brain to disappear.

The Chairperson welcomed the arrival of the DA delegation and informed them that the Committee was expressing its appreciation of Adv Willie Hofmeyr on his impending retirement.

Adv G Breytenbach (DA) said that Adv Hofmeyr had made a huge contribution to the NPA, even though he had been used as a post office by the previous National Director of Public Prosecutions (NDPP), by his own admission. She did not know if that could ever be properly made up to him. She hoped that his skills would not be lost to the NPA and retained in some form, perhaps in the new directorate. He had the largest body of knowledge on asset forfeiture in the country and it would be an enormous pity to lose those skills. Adv Hofmeyr was still a relatively young man and she had no doubt that he had a lot to offer and it was his nature to offer his assistance. She hoped he would not sit on a rock drinking cold wine, attractive as that sounded. He had always been willing to step up to the plate and she hoped that his abilities would be used. Right now, the country could not do without him. He had made an enormous contribution for which she saluted him. When he left, he left with his head held high.

The Chairperson hoped Adv Hofmeyr would not cry, but he could have a few minutes to say goodbye.

Adv Willie Hofmeyr, Head: AFU, NPA, responded that this was unexpected but he wanted to thank the Committee for its support of the NPA where it needed protection. When the new Constitution was being written, he had spent a lot of time in this Chamber and he had been in charge of the chapter about the NPA and there had been big debates about whether it should be a unitary structure or a nebulous structure which was kind of what the NPA had ended up with. There were discussions on the Bill of Rights, how strong they should be and whether there should be group rights or not and the issues had been strongly contested as different people had different views.

Adv Hofmeyr noted that Parliament had also been through difficult times but the country could be proud of the Constitution and how it had protected the country, even through the very difficult times in the last decade or so. He thought that Parliament played a critical role in the country as administrators could easily get caught up in the day-to-day work and not see the big picture. It was valuable to go to Parliament and be asked uncomfortable questions as it held the administration, and the Executive to account. He wished the Committee all of the best. He was not always optimistic but he had more faith in the country now than over the past five years. One of the challenges was to rebuild law enforcement. He hoped that Parliament would have some input into budget for law enforcement. He had nothing in mind for his retirement as yet but he did not want to stop working as there was still a lot to be done. He felt slightly tearful.

The Chairperson joked with Adv Batohi that he had just welcomed her and she had a long time to go before she could say goodbye. She should not envy Adv Hofmeyr.

Briefing by the National Prosecuting Authority
Adv Shamila Batohi, National Director of Public Prosecutor (NDPP), NPA, thanked the Chairperson for the kind gesture and she knew that Adv Hofmeyr really appreciated it. She admitted to some envy.

She indicated that she was presenting an annual report for the period prior to her appointment but she had brought her team with her. Adv Batohi introduced her team: Adv Hofmeye,  Deputy Director of Public Prosecution Adv Nomvula Mokhatla, Bulelwa Makeke, Head of Communications, Adv Rodney de Kock, Director of Public Prosecutions (Western Cape), Adv Pierre Smith, Acting Head of Sexual Offences and Community Affairs (SOCA), Hanika van Zyl, Acting CFO and Adv Karen van Rensburg Acting Head of Witness Protection and Administration.

The Chairperson asked the NDPP to inform the Committee about her intentions with regard to the Acting Senior Managers. He knew that some appointments were not up to her and he called on everyone concerned to ensure that the NDPP was not surrounded by Acting Senior Managers as it was not good for the organisation.

Annual Performance Report 2018/19
Adv Batohi stated that accountability was one of the four pillars for the new vision of the NPA.

During the 2018/19 period, the NPA had experienced very severe budgetary constraints and that had taken its toll on the employees as could be seen in the high spend on the Employee Wellness Programme.  The budgetary constraints had led to a huge shortage of staff. The number of contract magistrates was another problem.

Key issues noted was that the focus on corruption had been intensified and private sector corruption was also recorded. 143 persons had been convicted. The NPA had a100% conviction rate on the prosecution of money laundering in 84 cases. Special focus was placed on the prosecution of cyber-crime to curb the growing international phenomenon. There had been 444 cybercrime verdict cases with 440 convictions. Adv Batohi stressed the need for the Cybercimes Bill to be finalised, although the NPA was not sitting back waiting for the Bill.

Adv Batohi stated that 28 new requests for extraditions had been received and 12 were finalised. 16 new requests had been made for outgoing extraditions. There was difficulty with regards to an MoU with the United Arab Emirates and while there was an agreement with India, the process was difficult as the other side was not cooperating. The Minister was involved and doing his best to assist. MOUs had been signed with Palestine and Vietnam.

In terms of NPA performance, the NDPP presented the number of cases heard and finalised. She was pleased to announce that the convictions rates were very high and the high court was approaching 90% although the NPA would be looking at impact measures in the next cycle as high conviction rates did not always translate into public confidence in the NPA.

The NDPP noted that there were fewer cases into the system, especially in the regional courts which dealt with the more serious cases. She noted that if crime was increasing, as declared by the South African Police Service (SAPS), the two departments would have to determine the reason for the decrease in cases. In one case there had been over 74 000 counts of fraud and one had over 1 000 counts of fraud. There was a concern about cases that were finalised out of court as the penalties might not be correct. The NPA had a sense that the country was losing the battle against organised crime. She was working closely with SAPS to attempt to increase the impact on organised crime. The conviction rate of criminals involved in organised crime was high but again the issue was about those cases that went to court.

The NDPP noted that a large numbers of public servants had been convicted in corruption cases. The time that it took to conclude cases was a major concern. Such cases did take time, but cases of seven years and over was extremely lengthy.

There had been an increase in the conviction rates of sexual offences. A lot of work had gone into dealing with sexual offences over the years. The conviction rate of sexual offences was up to 75% from 60%. Life sentences and multiple life sentences were frequently passed but did not seem to have a deterrent effect. NPA and SAPS were attempting to improve their strategies and to improve coordination. The NDPP said that they seemed to be losing the battle in sexual offences cases but they were currently investigating cases that had been withdrawn.

Trio crime conviction rates were down by 3% but, although conviction rates were over 80%, people still felt very unsafe in their homes, businesses and cars.

With regard to the Asset Forfeiture Unit (AFU), Adv Nomvula Mokhatla stated that there had been under-resourcing, largely as a result of the North West case. The Judge President had refused to allow the NPA to move cases and that matter had had go to court for the NPA to be able to do so. Of the two AFU members in North West, one was operating as the head but living in Johannesburg and the NPA Asset Forfeiture Unit member in North West had not been able to engage with Asset Forfeiture cases as the North West Department of Health cases had been conducted from her office. The funds acquired by the Unit had not been what had been expected. The Unit had planned for R10 billion but those cases had still not been completed. Cases were complex and linked to corruption matters. The powers of Chapter 5 were such that charges had to be finalised before the NPA could move. Also, there had been no money to take care of assets once finalised (slide 40). She noted that some monies had been obtained the previous year but had not been included in the previous year’s statement because the money had not been in the bank at that time.

The Chairperson noted that the target was R10 billion but the Unit had attained only R500 million. Those big targets created a serious reputational risk to the NPA. It had been an unreasonable target. The Committee would need to look at that.

The NDPP agreed with the Chairperson that the targets were ambitious and unrealistically high. A lot had been put in place but the targets were too high. She knew that cases took a long time but the NPA had to be better at estimating how long cases would take.

Four persons out of 669 persons had left the Witness Protection programme but none had been harmed and the success rate as witnesses was 100%.

Ms Hanika van Zyl presented the Budget Overview 2018/19. There had been a virement of R150 million from Department of Justice for employee compensation and goods and services. 88.7% of those funds was compensation of employees. She indicated a predicted savings of R35 million in 2019/20 as the NPA had lost 73 officials in the first part of the year and they were mostly senior officials. It had been decided to fill posts as people left but the NPA had to stay within the MTEF budget. There were also constraints on the goods and services budget.

The Cost of Employees (CoE) budget shortfall of R68.4m was based on the number of personnel as at the end of August 2019. The operational budget shortfall was R 280m over the Medium-Term Expenditure Framework (MTEF) period. The Aspirant Prosecutors Programme cost R204m over the MTEF period for three intakes of 100 Aspirants each and the absorption of the Aspirants in the outer years. The NPA lacked 158 critical posts which was worth R 285m over the MTEF period. The establishment and capacitating the Investigating Directorate would cost R 377m over the MTEF period and capacitating the AFU, the Specialised Commercial Crimes Unit, Safety, security and witness protection would require R425,1m over the MTEF period. The replacement of 4 000 laptops would amount to R 65m.

Personnel Position
The CoE ratio to goods and services was at 89:11. The moratorium on the filling of posts since 2015/16 had impacted on staff morale, especially as the vacancy rate stood at 21% with increased absenteeism, and an increased cost for the use of Employee Wellness Programme (EWP) services. The suspension of the Aspirant Prosecutor Programme had had a tremendous impact on the sustainability of the NPA prosecutorial service delivery but had been reinstated in 2019. The skills development programme had been scaled down due to budgetary constraints within the limits of the budget scenario. Various programmes had been offered and were attended by 3 086 NPA staff.

Key challenges
There were high expectations of the NPA, but several challenges existed. The NPA suffered from a lack of credibility and there were divisions within the organisation. The severe budgetary limitations had led to high vacancy rates, low staff morale and limited professional development and training. The NPA was suffering from:  
- a weakened sense of values and identity;
- inefficiencies in the NPA and the lack of efficiency of the Justice, Crime Prevention and Security Cluster (JCPS);
- a lack of monitoring of performance;
- the lack of aligned and/or common targets within the JCPS cluster;
- a lack of allocation of dedicated resources and budget to manage JCPS cluster priorities;
- challenges in the JCPS which included: capacity constraints within partners in the CJPS, lack of human and technical resources, a lack of skills and the scourge of corruption;
- demoralisation and apathy.

Discussion
Ms N Maseko-Jele (ANC) noted the challenges on sexual offences cases that had been postponed and withdrawn. News media had reported that 65% of cases were withdrawn. The increase in cases involving children was concerning. The police report gave statistics of 736 cases of murder of children in the previous year and an increase to 1 014 children murdered in 2018/19. The killing of women was another concern.  At least three women died at the hands of their partners daily. Domestic violence was the cause 1 015 murders of women in 2018/19.

She noted that when Adv Batohi had given the briefing, she had kept on saying that they were trying but she did not see that unless more happened and law enforcement worked on it every day. The presentation reported that the community was losing hope in even reporting matters and that was bad. The country was facing a serious crisis in respect of crime. 10% fewer cases had been enrolled in court in 2018/19 than in the previous year. If the Department could not see that, then something was wrong. How could the same important institution not be utilising the courts? The judges were working fewer court hours on criminal matters. A backlog had been reported.

Ms Maseko-Jele said that there was no good thing in the report and the NDPP was not supposed to be using words such as “trying”. The vision of NPA was one thing but the Committee wanted the action plan because it did not seem as if things were happening. The Committee would have to see the NPA more frequently so that it could keep on checking. Members did not want Adv Batohi to sit around. “If government took away a salary for one month, the staff would kill her so they had to work for their money”. Government was paying staff a lot of money and they had to be monitored every day or the outcome would be negative results.

Mr Mohamed thanked the NDPP for the report which was very informative. In 2016/17, there was mention of the engagement with the Ministry regarding the NPA being a Programme within the Department of Justice and Constitutional Development and whether there should be a separate budget for the NPA. What had happened? He knew an Amendment had been proposed. Had any comparatives studies been done?

Adv Mohamed reminded the meeting that on 3 October 2019, the Chief Justice had queried the methodology of NPA performance reporting as it was based on the conviction rate but the court convicted, not the NPA. Could the NDPP clarify that for the citizens. A key area was the number of court hours per day which had dropped to three hours and four minutes per day. The caseload and backlog had increased. He noted that there were reasons for it, including the decrease in the number of cases. How much had the case management flow to do with the judiciary? What were the casual factors?

The President had announced an increase of R1 billion in the criminal justice system for dealing with gender-based violence. Part of that would be the Thuthuzela Care Centres (TCCs) for victims of such violence, and which involved critical staff. A number of TCC’s were not fully equipped with human resources. Had the budget been devolved? He needed an update on the pronouncement by the President.

Adv Mohamed asked about the process of identifying cold cases and the re-opening of sexual offences cases. Had that process started and what did it involve? In the news recently, he had seen the issue about re-opening apartheid-era cases relating to deaths in detention. He was referring to the cases concerning Dr Neil Aggett and Dr Hoosen Haffejee and the submission about Imam Abdullah Haron. What were the processes and timeframes, if any?

He noted that the objective was to enhance and motivate staff by ensuring that vacancies were filled. The Committee had heard that 73 middle management staff had resigned in the current year. High morale was not motivated by the very high vacancy rates of 21%. What were the timeframes for filling posts that had been approved, administrative and professional staff?  The ratio between Employee compensation and operating costs was a bit high. The Committee wanted empirical evidence about vacancies. Could he be given some perspective on that?

Adv Mohamed stated that there could never be enough communication but he was worried about the Life Esidimeni cases that had not been prosecuted. He knew that there was a lack of evidence but that was an inadequate reason. The time was long gone when Public Prosecutors could refuse to prosecute and not give empirical evidence, or at least information. That was important. Another internal matter that kept generating negative publicity was the Lepinka matter that kept coming up. There might be complications, but it had to be finalised.

Adv Breytenbach addressed her questions to Adv Batohi and referred to an unnumbered page in the slides which showed 11 directors, six acting directors and five special prosecutors, were all acting. What was the strategy for changing that, although she knew that there was a small basket to choose from?

Adv Breytenbach stated that high conviction rates were largely meaningless. One could have a 100% conviction rate with one case. How many cases had come in to the NPA, and how long had the cases taken to get to where they currently were? That was the information the Committee needed to make sense of the statistics. Crime statistics showed 2.1 million cases had been reported in the previous year.  964 897 dockets were submitted, 508 455 cases were declined and 329 387 cases were sent back for further investigation. So out of 2.1 million cases, the NPA had prosecuted 124 654 cases. There had to be a better way of dealing with the statistics. The Chief Justice had, wisely or unwisely, expressed a view but saying there was a high conviction rate was a way of disguising poor performance.

Ms Breytenbach noted that the NDPP was negotiating with the Public Prosecution Office of Palestine. With whom was she negotiating regarding legal assistance. Was it with the Palestinian Authority or Hamas?

Court hours was an ongoing issue. It was a case of lack of discipline by some public prosecutors. Thousands of Public Prosecutors did their very best and worked very hard but there are some who arrived late and left early on a regular basis. The NPA, the police and the judiciary worked hard to achieve results, even in cases of public violence and damage to property, which everyone agreed were serious offences, but then the Minister of Justice had said, on record, that he would do his best to get a pardon for a man who had been jailed for public disturbance. How did that affect morale in the criminal justice system? How would the NDPP tell the prosecutors to work hard when their work could be undone at the stroke of a pen? It was irresponsible and would pertain particularly to state capture. She found it astonishing that the man responsible for justice in the country could make such outbursts.

Adv Breytenbach asked about the draft regulations for the Investigating Directorate. What was the status? Had they been presented? Had they been approved? Would there be action anytime soon? What was the status of prosecutions emanating from the Zondo Commission, even if it was only low hanging fruit? When would the NPA take action? The public was becoming impatient and the honeymoon was over. What was happening with the Steinhoff prosecutions? Did the NDPP have any intention of extraditing the Bobroff father and son who had run away to Australia? Was the NPA looking at extraditing Barry Tannenbaum?

Adv Breytenbach noted that judgement had been handed down that morning that the NPA had to implement the Occupation Specific Dispensation (OSD) with immediate effect. Did the NPA have the budget? Was there a contingency plan? What was it? She asked about Seth Nthai, Senior Counsel from Limpopo, who had been struck off the roll in Pretoria but had since been admitted to the bar in Limpopo. In his court papers, he had admitted to taking a bribe to the detriment of his client. The papers had been sent to her and to the NPA. Was the NPA looking into that? If not, why not?

Mr W Horn (DA) commented that Adv Mohamed had referred to the announcement that there would be a further rollout of TCCs, which was to be welcomed, but he was concerned about the vacant positions at the current TCCs. The President had announced an amount of R1 billion but it was not additional money - it was money that was supposed to be in the system, so what amount was going to the intensified programme of action against gender-based violence (GBV)? Where was the money? How would law enforcement make up the R1 billion?

He asked about the sexual offences courts programme which was supposed to have been an accelerated programme but the court regulations had held things up. The previous week the Chief Justice had said that he had signed off the regulations with a warning that, in future, the Judiciary wanted to be consulted earlier. Were the regulations ready for implementation? What was the NPA doing to facilitate the implementation of the sexual offences regulations? In respect of sexual offences and GBV programmes, the NPA had said that the conviction rate was not a fair measurement of success but 66 cases of femicide by partners had resulted in convictions yet the South African Medical Research Council estimated that more than 1100 women died at the hands of intimate partners each year.

Mr Horn asked about the thinking regarding the measuring of the performance rates of prosecutors, especially in respect of dedicated prosecutors? He wanted more tangible information about how prosecutors would assist the system to function more efficiently. A lot of training had been done in respect of SOCA. He noted that the NPA talked about dedicated prosecutors as opposed to special prosecutors. Was it an introductory programme or were the people who attended already specialists? How would the NPA ensure that the specialists would stay at the TTCs? How would people working at TCCs be assisted with emotional fatigue?

Mr Horn noted that the Audit-General had said that the bulk of the R5.27 million fruitless and wasteful expenditure had been caused by AFU curator fees. What had happened there? Had there been consequence management and what would be done to prevent a repetition? Four specialists had been recruited to assist the NPA regarding corruption and state capture. He asked for more detail of their involvement. Were they going to be lead prosecutors or were they just going to evaluate evidence, call for further investigations and determine trial strategies? They obviously had profitable private practices. Would they be put on a retainer or would they invoice for their costs and how would one prevent further delays?

He asked about the seven legs of the NPA announced by the predecessor. Were they still running? Or was there another focus or angle? Regarding the acting positions, and he risked insulting people, but there had to be a clean-up. What evaluations had Adv Batohi done of people who had been at the top for the past ten years and to the extent that those people had not prevented or opposed corruption in the NPA? There were people at the NPA who had attempted to convince Parliament that there was nothing wrong with the integrity of the NPA. What processes had there been to evaluate who brought what to the NPA?

Ms J Mofokeng (ANC) was concerned about the acting personnel, especially the Special Directors, etc. She further asked about the staff morale? Were those people with the wellness programme? What about persons living with a disability? The NPA presentation had not mentioned them? The NDPP had said that there was a shortage of interpreters. How well did she work with the SA Language Board (PANSALB)? The NDPP should work with other entities as well as SAPS.

Ms Mofokeng noted that the NPA had presented high conviction rates but the parole system negated that. Was Adv Batohi looking into legislation changing parole conditions? Did the NPA monitor court buildings? The Chief Justice had said he had not known that a specialised court had been opened. Were there special prosecutors for those courts? A magistrate had been found to have raped. The magistrates, prosecutors and police had to be vetted as women were also failed by some of the people who should be helping.

She added that the NDPP had not mentioned whether the challenges included the forensic laboratories because it was known that they were not functional. Cases of toxicology could take up to ten years. If the NPA wanted things to happen, it should start with the laboratories.

Ms Mofokeng raised concerns about bail being given at night. There had been an embarrassment in Gauteng where a man had got bail on a Friday because he was a powerful man with businesses and money. The police did not even take cases against high profile people and the person had to go to another station far away. Why did people open cases in the night when the wife was still in hospital? Was the NPA looking into bail in cases of GBV, sexual offences and even murder? The NPA had to avoid bail at night because people were losing confidence in the system.

Ms Mofokeng asked about the witness protection programme. Were some of the people in the programme not defeating the ends of justice, especially those that walked out. Did the NPA find out why those people walked out? The NPA had spent money and maybe those people had given false information. Regarding cold cases, had the NDPP planned a budget for that programme and would she be working with the police on cold cases because those cases needed specialised investigation for the NPA to win the cases and give confidence back to the people? Did the NDPP have a roadshow for stakeholder engagement? Most citizens did not understand role of the prosecutor. Did the prosecutors give time to allow people to understand the role of the prosecutor?

Adv Mulaudzi asked about the ten cases of suspensions amounting to R7.7 million. Did that amount include payments for Adv Mrwebi and Adv Jiba?  Were those people being paid while the NPA waited for the processes of Parliament? What about the independence of the NPA? When was it going to be separated from the judiciary? They worked in the same building and same offices. In most courts the NPA and judiciary were together and in the eye of the public, it seemed as if there was coordination. How did the witness protection operate? There was a case in KwaZulu-Natal where a leader of the Youth League, Sindiso Magaqa, was killed. There was a witness who should have been given protection but he had been on TV saying he had not received protection, even after asking the Minister and others, and even though it was political killing. Could the NPA look into that case?

Adv Mulaudzi asked about the situation where about 18 million people had failed to submit tax forms to SARS. The majority of people did not submit tax returns. What was NPA doing about holding them accountable? There were 11 cases concerning the SABC that were not being investigated. The previous NDPP had promised to put someone in charge of all SABC-related matters. Could he have an update on that matter?

He noted that the NPA had been called by SCOPA, together with the Hawks, in the previous financial year and they had promised to work together, especially on the Steinhoff case. Regarding the lawyers who were assisting with the state capture inquiry, he understood that the NPA had said that the Department would help with R20 million. Which Department was this: the Department of Justice and Constitutional Development (DoJ&CD), the NPA or National Treasury?

Adv Mulaudzi asked why the NPA was not getting top lawyers to assist in the cases of the killings in KwaZulu-Natal. Why were those cases not prioritised? He asked for an update on the Gupta-related cases.  For the state capture cases, the NPA was getting the services of legal experts but unless the experts went to court, it would be difficult for the NPA to resolve the cases. Were there plans for them to take the cases to court? In the last budget speech, the Minister had said that the NPA had to be privately funded. How comfortable was Adv Batohi with that and how independent would she be when she did not know the intentions of the private funders?

Mr R Dyantyi (ANC) told the Chairperson that he wanted to make some proposals to the NDPP upfront and, secondly, he wanted to ask questions for which he wanted detailed answers but he was not sure that the Committee was going to get the answers that it wanted. He had listened to the NDPP raising critical issues with the Black Management Forum (BMF) over the weekend. She had raised the issue of the crisis in the NPA and about lots of money leaving the shores of SA. She had said that the structure of the NPA might not help her to achieve what she wanted to achieve because prosecutions were done at a provincial level and her job was just that of review. That was a serious dilemma.

He said that it was clear that there was a shrinking convergence of the NPA: there were no finances and staff and capacity issues were a challenge plus there was an expectation, a mandate, that the NDPP should introduce criminal proceedings on behalf of the state. Adv Breytenbach had made the point that she had been in the position for eight months, but it was a comeback as she had been in the NPA before. There should not have been a honeymoon. In eight months, she could achieve his proposal. Could the NDPP come back in November and present the following: a medium- to long-term plan stating what priorities she could drive in six to eight months given all the issues? Her current report did not help with any of the critical issues such as state capture. He was not looking to 2020 but to November 2019 when the NDPP had to come with a plan about how to deal with the acting issues, fill the vacancies, and all of those issues, and her plan to turn the ship around. That was part A. Part B was about how she was going to deal with low hanging fruits and things that did not need money but just needed to happen. Was she in a position to come back before the end of November and present a plan? The Committee did not have the plan. If she could not produce a plan in eight months, she should not be in that position.  She needed to indicate risks. What about the risk that had come out in the media? Was there truth in the allegation that she was spending a lot of money on the NPA’s investigative directorate head, Hermione Cronje, who had apparently not relocated to Johannesburg? Could she explain?

Mr Dyantyi said that he would not be referring to the presentation but to the actual Annual Report.

National Prosecuting Authority (NPA) Annual Report 2018/19:
Mr Dyantyi noted that in the Foreword of the document, Adv Batohi had spoken of crisis management because of the financial constraints. Was there not a bigger crisis in the organisation of leadership and the direction of the organisation? It was not the case that there had been problems with finances in the past that had brought the NPA to the present situation. Things could not be hidden behind finances. It was the wrong diagnosis. He also noted that Adv Batohi was not in the structure presented in the Report and the former Minister was featured, but she had written the foreword. If she had written the Foreword, then she had to appear as part of the NPA. Adv Batohi had agreed with the Chief Justice that the NPA was not responsible for convictions. So, instead of convictions could she start talking about the enrolment of cases?

Page 32, at bottom of the page: he wanted an explanation of the withdrawals as well as those acquitted.

Page 38, conviction rate of complex conviction crimes: There was a growing scourge of the very same people who were supposed to deal with the work that found themselves on the wrong side of the law, such as prosecutors, police, etc. who were getting into bribes. How was the NDPP dealing with that?

Page 46, conviction rate in violent crimes: the heading was conviction rate in violent protests and industrial action prosecuted. The case was State versus Shabangu and others. That seemed to be a case of murder and not violent crimes.

Pages 51 and 52: he was concerned about the state versus Abrahams and eight others. Abrahams seemed to have been arrested twice on the same case and there was no indication of what had happened to him.

Page 61, in cases where there were acquittals, it transpired in evidence that witnesses might have a motive to falsely implicate the accused: How was the NPA dealing with cases where someone wanted to implicate someone else?

Page 71, specialised prosecutions: Case of state vs Portia Sizani, wife of the Ambassador of Germany. It should not say who the husband was. It was not done in other cases. It was a poor way of putting it.

Page 93, witness protection office: What had happened in the number of counts that the witness protection programming was dealing with in Quarter 2 as hundreds of counts were recorded there, which was out of synch with the other Quarters where there were fewer than a hundred counts?

Finances: R150 million virement in 12 months: That was bad planning and bad budgeting. There was a problem in that particular section.

Page 109, personnel position of NPA: There was no province where vacancies were normal. There were even vacancies in head office. It was not about scarce skills because 35% of the administrative posts were vacant. Was that about a crisis of leadership in the NPA? If it was, the NDPP should not respond but bring a plan.

Page 115, nature of misconduct: what had the person done? What was the breach of confidentiality?

Page 115, Financial Risk Conduct: failure to disclose financial interests. 116 cases reported in the NPA. What was that about because that was where problems started.

Ms W Newhoudt-Druchen (ANC) thanked the NPA for the presentation. Her colleagues had covered some of her questions on the TCC but in the light of the point raised by the Chief Justice that TCCs should be fit for the intended purpose, could she have a model and explanation of how they worked? She was not sure what the Chief Justice had meant as she was new to the Committee. What challenges did the TCCs have and what did they need to function optimally? Did the TCCs have the capability to make an impact on the scourge of GBV? It was reported that R16 million had been received from the Criminal Assets Recovery Account (CARA) to fund the TCC project. Did it include setting up five new sites as well as maintenance? Could she have information on where they are based in the provinces?

The Chairperson gave the NPA ten minutes to prepare themselves as there had been so many questions.

Response
Adv Batohi stated that the NPA team would deal with all the questions according to categories of questions. Adv Smith would respond in respect of sexual offences and GBV.

Sexual Offences responses
Adv Pierre Smith, Acting Special Director of SOCA, NPA, presented the response. Regarding the Rape Care Centres, the Thuthuzela Care Centres, there were 55 sites nationally in all nine provinces. The NPA had requested R23 million for the centres but R16 million had been allocated. R7.5 million was for 7 new sites and R5.5 million was for maintenance costs of all centres as maintenance of such centres was very costly. The centres focused firstly on the relevant stakeholders. When determining where to set up a centre, the NPA looked for the necessity for a centre in terms of police statistics, whether there were Family Violence and Children’s Special Services as well as a hospital with the necessary facilities. All centres were in hospital buildings or in park homes on hospital grounds. R3 million of the R16 million was being utilised for developing the model and improving the knowledge of experts who testified in court and training experts. The centres were staffed by dedicated prosecutors and specialists prosecutors. In 2015, the NPA had advertised for 35 specialist prosecutors. 28 had been appointed but seven posts could not be filled. The NPA had to advertise the 29 remaining posts. Prosecutors were selected to be expert dedicated prosecutors. All prosecutors dealing with sexual offences were trained to do so.

Adv Smith noted the comments regarding the seriousness and the vast gap between crimes and cases opened. The Victims of Crimes survey showed a 55% increase in people reporting sexual crimes, which was the intended outcome and showed that people knew their rights. 90% of the cases were sexually-related offences. 57% of the victims were children and so prosecutors were specially trained to deal with children. TCCs provided a holistic service. The majority of women wanted services but did not want to make a case. Often the assailants were unknown and a case could not be made.

There was a high attrition rate of those cases that had been reported but several interdependencies prevented a case from being taken to court. The NPA was working with SAPS to determine the causes of cases not going to court. The training manual was revised on annual basis and was advanced specialised prosecutor training. Entry level training on sexual offences was also offered, usually to other organisations working in the field.

Mr Dyantji asked that Adv Smith be precise and not start another presentation.

Adv Smith informed the Committee that the responsibility of the Sexual Offences Court was the responsibility of DoJ&CD. Regional Court Presidents had been involved in setting up the courts so he was surprised by the comments of the Chief Justice.

The Chairperson interjected, stating that consulting with the Regional Court Presidents did not remove the responsibility for the Chief Justice to be informed.

Adv Smith agreed with the Chairperson. On the legislation that the Committee had asked about, he informed Members that the legislation was the responsibility of the Legislative Development Unit in the DoJ&CD. He understood that it would be tabled in Parliament in this financial year. He explained that there was an instruction that there should be no weekend or after hours bail for serious sexual offences but he would follow up to ensure that the instruction was being implemented. The Employee Wellness Programme (EWP) had a programme designed to debrief the sexual offences prosecutors, which was actually a huge issue.

On court hours, Adv Smith explained that the time was not set by the NPA and it could not control that factor. He had submitted a plan or spreadsheet of vacancies in the TCCs and how those vacancies should be filled.

The Chairperson was concerned about time and asked the Secretary to monitor the time. The Committee might go over time and the Special Investigating Unit (SIU) should be informed, but the Committee had to hear the SIU that afternoon.

Adv Breytenbach asked whether it was possible to ask for all responses in writing, with a time limit on the return of responses.

Mr Dyantyi agreed that there was a need for the NPA to fine tune responses, which they could do in writing. There was no need for each division to take 30 minutes to respond.

The Chairperson commented that in the future the NPA had to be allocated a whole day to brief the Committee as Members needed to interact with the NPA on high profile cases in the private sector. Like Mr Mulaudzi, the Chairperson wanted a list of corruption cases in the private sector.

The NDPP asked Adv de Kock to deal with court hours.

Response on court hours and tax cases
Adv de Kock stated that the matter of court hours was a collective responsibility of all role players, including the witnesses. Courts heard many other matters, including civil matters. Ultimately the judiciary managed the courts. The NPA ensured that when a criminal case was ready to be heard, the prosecution was ready. Quite often the defence asked for a delay, or investigations might not have been done. Witnesses not in court on the allocated dates was a challenge. A major challenge was the allocation of time to a particular witness or a case, as it was not always possible to predict such matters. There were structures in the system to look at managing of time. In each province, the Provincial Chief Justice, the Regional Court Presidents, magistrates and other role players looked at court time.

The Chairperson said that the issue was understood.

Adv de Kock informed the Committee that the failure to return tax submissions was a matter of concern to the NPA to the extent that each office had certain prosecutors who specialised in working with SARS and a new MoU with SARS was being written regarding how such tax cases would be dealt with, including citizens who failed to submit returns. The Tax Administration Act had recently been amended so that intent had been introduced in the offence and prosecutors now had to show that there was intent not to submit in order to get a conviction. Previously it had been enough to be negligent in that a tax return had not been submitted. The NPA had made submissions requesting that consideration be given to changing the Act.

Responses regarding personnel and witness protection
Adv van Rensburg informed the Committee that Advs Mrwebi and Jiba were not included in the cost of prosecutors who had been suspended because they had not been suspended but were on special leave. She could supply details of their costs. Concerning the money for the specialist counsel that was to be appointed, it was part of the budget and was included in the money to be requested. The funds would cover a three-year period.

Concerning Jackie Lepinka, a court date had been set for 5 December 2019 and the disciplinary matter would be heard on 21 October 2019. Adv van Rensburg was following the matter closely because, as Members had said, it had to be finalised after dragging on so long.

Concerning the number of NPA members who had not disclosed financial affairs, Adv van Rensburg assured the Committee that those officials were not SMS members. They were middle management service members (MMS) and it was a new process for them. The NPA was in the process of implementing that requirement at a lower level than was compulsory in government. The matters were being dealt with through progressive discipline. The EWP services were anonymous to protect the person so she could not tell the Committee who had used the services. In terms of the protected witnesses, she explained that the cases fluctuated. Sometimes there was a big case with a lot of counts and in others, there were fewer counts. It was entirely dependent on the court cases and sometimes there were longer sentences than at other times.

Concerning the witness in the political violence in KwaZulu-Natal, Adv van Rensburg stated that she would have to investigate whether he had applied for the programme and, if so, why the NPA had not accepted him. Concerning the witnesses who walked off the programmes, she stated that the NPA always followed up and the people had testified even though they were not in the programme any longer. She added that it was very hard to be in the programme as the rates paid had not been increased 2003. The rate was only R750 per month and one had to forfeit all contact with family and friends. That aspect was a challenge to the NPA, but it was not a criminal offence to leave the programme.

Response by the NDPP
Adv Batohi addressed the issue of engaging the Minister regarding the NPA becoming a separate entity. It was very much on the table and the current Minister was supportive. The NPA was setting up a section in the office of the NDPP to offer strategic support and innovative capacity and to look at how to deal with key issues, such as that one. The NPA was looking at prosecuting offices in other jurisdictions and would send a proposal to the Minister very soon. The NPA Act allowed for an ethics, integrity and accountability structure to establish some kind of “IPID”, although maybe not going quite so far, as allegations of misconduct had to be properly addressed.

The NDPP reminded the Committee that the presentation was looking at the past year’s performance as it was an Annual Report briefing and the intention of the briefing had not been to submit a plan but she was happy to come and present the plan.

The NDPP had been on a roadshow to the public prosecutors where she had said that high conviction rates was not a good measure. The question was: what are we achieving? As Members had said, the conviction rate of reported cases was shockingly low, shockingly low. SAPS had figures of about 10% and if it was that low, there was something wrong in the system and so the NPA was looking at measures of performance, perhaps joint measures with police and other mechanisms, to manage the situation. Conviction rates was not the best measure but prosecutors were the lawyers of the people and so, to the people, convictions were important. The NPA had a victim-centred approach but that could not be at all costs. The NPA needed measures that also talked to impact.

The NDPP stated that there had been some high profile Truth and Reconciliation Commission (TRC) cases opened because people had the means to push the system. The NPA was looking at all the deaths in detention and not only those where the families had the means to push the process. She had delayed one of those investigations because the NPA had found another death in the same police cells a couple months later. How many cases could one find of a person slipping on soap and dying or be found hanging? So, the NPA was looking at how it could deal with deaths in detention. The NPA had met with the lawyers for the families and was looking to be more innovative by using international law to hold those at a high level accountable for atrocities that had been committed in the apartheid years.

She agreed that the vacancies were not good for morale. The NPA had an allocation and needed to recruit fast as the money was available for six months only. The NPA had begun with internal advertisements for prosecutors to give people in the organisation an opportunity to be promoted. Thereafter external advertising would take place. Only key administrators were to be appointed as the NPA believed that it was more critical to have prosecutors that administrative staff. Adv Batohi pointed out that acting officials were not getting an allowance for acting. There were advantages to acting in a position but there was no monetary reward. One Deputy Director of Public Prosecutions (DDPP) was to be appointed fairly soon. However, there was litigation regarding appointments made prior to her starting at the NPA and that meant certain posts had not been filled. She assured the Committee that the acting DDPPs did not have a morale issue.

Regarding the impact on morale of the #Feesmustfall tweet of the Minister, Adv Batohi said that the NPA worked very closely with the new Minister and he was very committed to the independence of the NPA and was supportive of the NPA. On the #Feesmustfall matter, many cases had been withdrawn for less violent offences but the serious cases had been prosecuted. One simply could not burn down university libraries or set a police car alight with people in it. The NPA would look at the issue but prosecutors would continue to do what they had to do.

She assured Members that extradition was getting attention and the NPA would try and bring back people who should be charged but some people had left a long time ago. Nevertheless, the NPA would try. If it failed, at least it would have made the effort.

The court decision on the OSD that morning would have a serious impact on the NPA and she would have to look at the judgement and then consider how to address that issue with urgency. The issue of the lawyer who had been re-admitted to the bar in Limpopo would have to be looked into and she would give feedback.

Adv Batohi agreed that fruitless and wasteful expenditure in the AFU, especially in the Phillips case about the Ranch brothel that was still subject to litigation, was a bane in the NPA. It was a real problem and she would have to look at it and determine whether steps should be taken against anyone and how to deal with the issues. The NPA was trying to find resolution in the matter, although there was still litigation. The NPA had appointed new counsel but it should never have happened in the NPA.

The NDPP stated that the counsel brought into the investigating directorate were people who were highly respected in criminal law cases and they had been allocated to certain teams. The NPA had needed to find senior counsel who had certain knowledge of the matters, many years of experience, representativity and value for money as they had offered reduced rates. Regarding the clean-up from the top and the fact that some officials had attempted to convince Parliament that there was nothing wrong and had not prevented erosion, she was looking at key matters but could not discuss them in a public forum.  However, she reminded Members that in an institution, one had to work with what one had. One could not dismiss people for not preventing the undermining of the institution, although there was a process for the more serious cases.

Concerning translations and languages, the NDPP explained that the availability of foreign language interpreters was a challenge but it was a DOJ&CD function, as was providing facilities and services for people living with disabilities. She quickly added that the NPA had to understand how it engaged with people living with disabilities. She assured the Committee that the NPA did not only work with SAPS. It worked with many, many other organisations.

The NPA had little or no role in matters of parole but it did not demoralise prosecutors as they knew what their job was and they had to focus on that. Prosecutors did what they had to do but they could not do more than give input into legislation concerning parole. Adv Batohi informed the Members that DOJ&CD had to maintain the infrastructure of courts. She agreed that staff worked under terrible conditions in some cases and that the public that attended court were exposed to the same conditions. There was a National Efficiency Enhancing Committee headed by the Chief Justice and an infrastructure sub-committee headed by Judge Mlambo. The Public Service Minister had said that there might be a case of underspending on infrastructure and NPA had given input into some projects. She would appreciate the Committee’s support in that matter, particularly as the prosecutors were very often at the end of the queue. On the relationship between the judiciary and NPA, she agreed that there was not a perception of independence because prosecutors’ offices had traditionally been built alongside those of magistrates or judges. That was changing in the new buildings.

The NPA was reporting to SCOPA on the SABC cases the following day and the NDPP would submit that information to the Committee in writing. The Steinhoff matter was a key investigation and the Hawks and NPA were working closely on the matter. There had been proposals about steps to be taken in the shorter term but the NPA was reviewing the proposal to ensure that was the right way to handle the matter. A fair amount of work was happening but she and the Head of the Hawks had to move sufficiently forward to get to the deep issues before taking the case to court while balancing that with picking low hanging fruit.

The R20 million for the counsel working on the investigations into the state corruption cases had been received in the additional budget and was for the three-year MTEF.

Adv Batohi said that the killings in KZN was a high priority case. She had gone with the head of SAPS to KZN to discuss the matter. The cases would be managed by the Serious Crimes Unit. A Steering Committee of SAPS and NPA members been established at the national office to ensure that the cases were given priority. Those cases did not need external counsel because they were murders, and not complicated commercial matters. The Minister was assisting in overcoming challenges.

She stated that the issue of private or donor funding was not something new and occurred in many government departments for specific projects. Businesses funded commercial courts and the TCCs had been set up with private donor funding. The Minister had received funds to look at the intractable issues in the justice systems. None of the private funding would be for prosecutions as the NPA prosecutions would always be completely independent. She agreed that the justice system had huge problems and was even dysfunctional in some respects. The leadership crisis was public knowledge but she would present plans for addressing those matters. The NDPP structural issues were also not new issues. Directors of Public Protectors made the decisions to prosecute or not prosecute. Previously, there had been too much interference from the national office. The funding was paying for, inter alia, a leader in prosecutorial reform to assist the NPA to be innovative and to reform the way that the NPA worked. The NDPP did not make decisions regarding prosecution, although she could indicate that policies had to be applied and ensure that prosecutions were in line with values, the Constitution and the evidence available. That was in accordance with the NPA Act.

The NDPP responded to questions about Adv Cronje. Money had been spent but the accommodation was a hotel largely occupied by government officials and they received reduced government rates. She was travelling as she had been living in Cape Town when she was appointed and she was a mother with two young children who had taken the position as head of the new Investigating Unit at great personal expense. She was not flying first class. She had a driver and a car but nothing else. The accommodation had cost R106 000 and the total cost was R304 000. As a single mother herself, she understood the difficulties experienced by Adv Cronje in leaving her children in another city. She assured Committee Members that everything was above board in respect of Adv Cronje.

Regarding the questions on the Annual Report, Adv Batohi agreed that financial constraints was not the only issue but she had been in a difficult position when she had written the foreword. She also agreed that the descriptions of people and their relationships were not acceptable but she would respond in writing to those points.

Response on budget
Ms Hanika van Zyl reported that the virement had occurred because there had been insufficient funding for the CoE as a result of budget cuts in the previous financial year, which had been known from the beginning of the 2018/19 year. The virement was well within the 8% rule of National Treasury as the DoJ&CD had a huge budget. There were contracts that had to be honoured and so the NPA budget office had worked closely with DoJ&CD to manage the expenses and the virement had been made as agreed.

Response on communication and public awareness
Ms Makeke agreed that more public awareness and education was required but it could never be enough. Imbizos were held and publications issued in different languages. Even public prosecutors spoke to the public regularly about their work. The NPA was on Facebook and Twitter. She stated that there had been a lot of public awareness around the Thuthuzela Care Centres and they were well used. 80% of the communication budget had gone to public awareness but the budget had been cut and public awareness had become an issue.

Adv Batohi added that communication regarding cases such as the Life Esidimeni should be more detailed and the public needed to know whatever was possible about why people were not charged in particular cases.

Chairperson’s remarks
The Chairperson thanked the NDPP and her team and said that the Secretariat would communicate to the NPA about those questions that had not been responded to so that the Committee could get written replies. The next engagement would be focusing on the medium-to long-term plans.

The Chairperson stated that there was a huge concern about the NPA engaging outside counsel. Firstly, the NPA had to scout as widely as possible for such counsel. Secondly, in the cases of the assistants to the investigative directorate, she had briefed four male counsels and no female lawyers and that was not acceptable. Thirdly, there seemed to be an unfair advantage of the Johannesburg Bar and the Cape Bar and the Committee wanted Bars from distant rural provinces to be included and counsel from those Bars had to be briefed. That should form part of the medium-term plans that she had to present.

The Chairperson noted that the November schedule was tight as the Committee had to deal with appointment of  new Deputy Public Protector but he would consult the schedule. As much as the NDPP complained about money, when the economy took off, there would be an exodus of PPs joining the bar. People used the NPA as a training experience for the Bar. When there was no money, there was a lot of people to recruit from but not when the economy improved, so what would the retention strategy be? Was there a good programme for commercial prosecutors? Was the NPA engaging with universities?

He added that if the meeting could not be in November, it would take place early in the following year.

The NDPP responded that Adv Cronje was a female Counsel and five junior female counsels had also been appointed.

The Chairperson declared the meeting closed.

The meeting was adjourned.