NPA 2019/20 Quarter 2 & 3 performance; recruitment plan & progress in establishing Investigative Directorate; Magistrate salaries, with Deputy Minister

Meeting report

Opening Remarks
The Chairperson welcomed Members of the Committee, the National Prosecuting Authority (NPA) and members of the media. The meeting would begin with a briefing by the NPA. The Committee would also deal with the matter of magistrate’s salaries.
 
The Chairperson informed the NPA of the decisions taken by the Committee during its strategic planning meeting. The decision was that presenters would have to submit the presentation or briefing one week before the meeting so that Members and Committee Researchers would have time to interrogate the documents. That timeframe was incumbent on the Committee informing the departments and the entities of the programme timeously. There would also be a time limit on the presentation and only the most critical issues should be presented as Members would have had time to read the documents beforehand. The SCOPA approach of a limited time for each Member to put questions would be adopted.
 
Mr Q Dyantyi (ANC) pointed out that, the previous day, the NPA had sent a short version of the presentation but he noted that the officials had brought a longer version to the meeting and that had only been sent the previous evening. Presenters could present a short version but Members always needed the long version to prepare for the meeting.
 
The Chairperson agreed that the longer version was required by the Committee before a meeting.
 
The Chairperson suggested that the Minister should be asked to inform the Committee when senior positions in the NPA would be permanently filled. He noted that there were three active partners in the business of appointments: the Minister who consulted with the NDPP and the President who appointed the personnel. The acting positions had to come to an end before the business could be fixed.
 
Adv Shamila Batohi, National Director of Public Prosecutions (NDPP), NPA, noted the decisions arising from the strategic planning session. She agreed that the number of acting positions was a concern. Regarding the long and the short version of the presentation, she explained that she had been in a quandary because she had been informed that the NPA only had a 15-minute timeframe for presentation and so the short presentation was sent. The previous day she had been requested to present for almost an hour by the Portfolio Committee on Cooperative Governance and Traditional Affairs so the NPA had prepared the longer version for the meeting. She would also ensure that presentations were sent in time. She apologised to Mr Dyantyi for not providing the longer version prior to the meeting.
 
Mr Dyantyi said that, in future, it was possible that Departments would not present at all but the time would be spent interrogating the documents sent prior to the meeting and asking questions.
 
Adv Batohi stated that she would also provide a narrative document in future as that would make it easier for Members to get a better understanding of the figures in the presentation.
 
Presentation by the NPA
Adv Batohi was supported by Adv Hermione Cronje, Director of the Investigating Unit, Adv Sibongile Mzinyathi, Asset Forfeiture and International Cooperation (previously National Prosecutions Service), Adv Priya Biseswar, Acting Deputy National Director: Asset Forfeiture Unit, Adv Karen van Rensburg Acting Head of Administration and Witness Protection, Adv Rodney de Kock, Acting Deputy National Director: National Prosecutions Service and Adv Pierre Smith, Acting Special Director for Sexual Offences and Community Affairs.
 
Overview
Adv Batohi stated that the NPA had failed in respect of all the outcomes. It had failed dismally in the five objectives designed to fulfil the mandate of making people in South Africa feel safe.
 
She presented an overview that indicated the challenges experienced. Appointments in critical positions were imminent and interim changes in place. Recruitment of staff, especially prosecutors, was underway. The increase in budget had a huge influence on staff morale.
 
She said there was a need to stabilise positions but acknowledged that there was a large number of dedicated and competent acting heads and public prosecutors. She indicated that the number of convictions from cases tried was very impressive but acknowledged that it was not evidence of success and did little to address the extremely high rates of crime in the country. Of a total of 28 targets, 17 had been achieved and 11 had not been achieved. The Asset Forfeiture Unit had dealt with 75 cases and had seized over R7 billion and so there was success in high impact corruption cases. 
 
Prosecutions
Adv Sibongile Mzinyathi spoke to the conviction rates and the Trio Crimes. There had been good achievement in respect of gender-based violence. Originally the Anti-Corruption Task Team (ACTT) had been an effective task team but over the years, it had lost its nature and capacity as a task team when officials had moved to the regions and the ACTT existed in name only. Conviction rates had declined but it was back on track. The structure was undergoing reform and civil society and business would be involved in the new structure.
 
Adv Batohi explained that the NPA had previously not been getting the high level cases but now the NPA was currently getting the higher level cases and so numbers would be lower, but impact would be greater.
 
Adv Mzinyathi stated that the definition of corruption was very broad and offences were listed in the Act for Corrupt Offences. Private sector corruption figures showed any act of corruption in the private sector. It would include a range of cases including even a person bribing a traffic officer. There was confusion about how to define private corruption. The 198 showed all acts of corruption by private persons. He was concerned that some of the successes did not find their way into the media. 340 people had been sentenced to life for sexual violence in the year to date.
 
Adv Mzinyathi noted that for trio-crimes – business robberies, house robberies and car hijacking – the conviction rates were good, except in the case of car hijackings. The failure to achieve targets in car hijackings was because the fear factor of being hijacked meant that people could not identify their hijackers.
 
The Truth and Reconciliation Commission (TRC) prosecutions were a new focus area – the Timol case had been finalised lately. There were many cases in process but between 1963 and 1990 there had been 69 deaths in detention. The approaches to the NPA by families were only in respect of a few deaths. The NPA wanted to do a joint inquest of all deaths with common factors, for example, all deaths in a particular police station. That meant that there was a delay in moving cases forward. The Hawks had promised to follow up as rapidly as possible because people were dying.  Rodrigues, who had been involved and convicted in the Timol case, had gone to court to apply for a permanent stay of execution. He had lost the case but the judgement found that the NPA was guilty of preventing certain cases from going forward. The judgement required that the NPA investigate those NPA officials who were involved in delaying the cases.
 
Adv Batohi said that the judgement referred to broader government officials and not just NPA officials.
 

Investigating Unit
Adv Hermione Cronje reported on the status of the Investigating Directorate since its establishment in April 2019.  The intention was to prosecute complex and high level corruption, commonly known as state capture. Six months previously, she had spoken to the Committee about the chaos in the system and the Directorate had attempted to get a case into court, but she had found that there was no shortcut. She had discovered how hard it was to put a matter on the court roll. The critical issue was that they were looking at high level cases - they were not doing work on dockets. The people involved in the high level corruption were not named in the dockets. To deal with the high level people, the unit needed capabilities that were not currently available in the NPA. They needed to look at electronic communication, cell phones and money that was moved around the world. The NPA was working on getting the capability and now it had to work on how to mine the data, bearing in mind privacy protections, and doing that was taking an enormous amount of time. Her unit needed capability to read reams and reams of bank statements. The NPA was missing data analytic capacity. The NPA was looking at partners who were also in the game. The Zondo Commission had been developing that capability but they had to be careful not to contaminate a docket as the NPA was working within the Criminal Procedures Act while the Zondo Commission was much broader and had greater powers.
 
Adv Cronje stated that the key issue had been seconding people from other organisations, such as SARS, etc. as the Public Service had different rules for different sectors. For example, SARS officials could not drive in the same car as an NPA official. The biggest problem was that there were so many organisations working on corruption that the NPA had to ensure that it had all the correct documents, affidavits,  etc.
 
She admitted that her answer was not satisfactory but the work was taking a lot longer than she had ever imagined. It was not possible to cherry pick cases and try those because the NPA needed the capacity. She was a little worried that her prosecutors might become nervous of being the first one to go to court because of the high expectations. She added that international cooperation was critical as money, suspects and evidence were abroad. The NPA had engaged with Foreign Affairs and was trying to find a strategy. The Foreign Corruption Act gave other countries the possibility of addressing crimes in SA but the NPA was looking at the international jurisdiction and had to rely on the Executive to make that happen. The Minister was being supportive.
 
Adv Batohi stated that maintaining the integrity of the work that the NPA was doing was a real challenge and mechanisms had been developed to identify those persons not acting with integrity. That issue remained a major challenge.
 
The Chairperson stated that the Committee had indicated the focus areas and it was important that the presentation dealt only with the focus areas.

Aspirant Prosecutors
 
Adv Mzinyathi stated that the Aspirant Prosecutor Programme was a programme to attract new talent
and develop it for the purpose of creating a pool from which the NPA could appoint permanent entry-level prosecutors.  There were currently 92 aspirants in the programme who would finish in August 2020. A difference in the new intake was that they had not been placed in particular towns with a tutor that offered classroom type training before they went to courts. When the budget had faltered, the tutors had been absorbed as senior prosecutors and management. The 92 had, therefore, been placed in areas where there was the greatest need and they were being trained in the centres where they were most likely to be deployed. In the future, aspirant prosecutors would again be placed in groups under a tutor.
                                                                                                                                                                  Recruitment
Adv Karen van Rensburg state that there were 4292 posts in the NPA and1351 vacancies. Not all posts could be filled within the budget. 155 had been filled and offers for other posts were in progress. Panels were sitting on a daily basis and leave had been cancelled for Human Resources officials in December. The number of posts filled was changing and about 15 to 20 appointments were being made per day. Thousands of people had applied for district posts but promotions were largely going to be internally advertised to improve staff morale as some people had been in the same position for many years. That meant that numbers would not change initially but the aspirant prosecutor programme was critical to fill the junior prosecutor posts that would arise.
 
Adv Batohi stated that outcomes could not be achieved without building the institution and the NPA was looking at integrity internally as well as externally. There was a need to look at the intractable problems that related to all institutions.
 
High level corruption cases were highly sophisticated. The NPA would have to look at technology to do the work and so the IT systems as well as staff had to be upgraded. The NPA had to upgrade the skills of all public prosecutors. Cooperation across the Justice cluster was crucial. She added that a retreat for the Justice cluster had been arranged to look at enhancing the management of corruption.
 
Discussion
The Chairperson advised that the NPA should read the invitation very carefully in future and stick to those topics.
 
Adv G Breytenbach (DA) noted that the NDPP had brought a large delegation and so a lot of money was being spent but most officials had not said a word. Also the members of the team were practically all acting. She understood how decimated the NPA was but someone like Priya Biseswar had been acting for years and should have been permanently appointed. Why were Adv de Kock and Adv Pierre Smith acting when they knew how to do the job? Rodney de Kock had run the most successful division in the country for years. Who was holding things up? If it was the Minister, Adv Batohi should tell the Committee.
 
In addition, Adv Breytenbach pointed out that it took a long time for things to get to court and by the time the five years needed for preparation were up, the contracts of everyone in the Investigating Unit would have expired, so who would prosecute the cases? What was the NPA doing about the expertise of people who had or were retiring, even if it was merely assisting in the aspirant prosecutor programme? There were several excellent prosecutors who had retired who had immense experience. It took 10 to 20 years to become an expert prosecutor, at which point the prosecutor was headhunted, if not before. Although the NPA had recruited people, they would take years to train and they too would be headhunted.
 
Adv Breytenbach asked what had motivated the decision to appeal the decision in the Pretoria High Court on the matter of the Occupational Specific Dispensation (OSD). When preparing the case for court, the people who would be involved in the prosecutions were impacted by the OSD and those people were angry and were saying that they were expected to be loyal but the decision to appeal was a slap in the face for them. Each one of them had phoned her saying that they would not take the cases to court. She had heard from the Deputy Minister that it was about money. She suggested that the NPA should find the money. She was very disappointed in the NDPP’s decision to appeal the court’s decision.
 
She asked why the NPA was worrying about cases of corruption of R5 million – that was pocket money. The Committee was interested in the big cases. She worried about Adv Cronje’s unit because she would not be able to motivate people to do the huge amount of work when they were employed in temporary positions. Furthermore, their contracts would be up before the cases got to court. Few people had been investigated so far. The investigation into the Master’s Office, Office of the State Attorney, etc. would bring in hundreds of cases. How was the NPA going to deal with the deluge of work? The NPA would have to find a new and more innovative way of dealing with the work because if every prosecutor in SA worked for 24 hours a day for the next ten years, they would not be able to manage all the work coming the way of the NPA. And everyone knew that prosecutors already worked overtime without pay. The number of people employed was just insufficient for the numbers needed to do the work. When prosecutors got snowed under they gave up or dealt only with the easy stuff. When people were too busy, the difficult cases went to the bottom of the pile and over time evidence was lost. She offered to give the NDPP a copy of the presentation detailing the investigation into the Master’s Offices, etc.
 
Adv Breytenbach agreed that conviction rates did not mean much. As the only one on the Committee who had prosecuted, only she understood what a conviction rate meant. She knew how conviction rates were rigged to look good. The Committee needed to know how many cases came into the system. How many were lost? How many were withdrawn? Of the withdrawals, how many were re-prosecuted? There had to be comprehensive statistics.
 
She was concerned about the definition of private corruption and the perception that a business had to be involved. She noted that the prosecutors ensured that long sentences were imposed but the prisons were overcrowded. As a prosecutor, she had not been concerned about what happened in prisons, but now she was, as those people were her constituents. There was terrible overcrowding in prisons. What happened to people when they went to correctional services? Correctional Services had to be fixed.
 
Adv Breytenbach asked whether the police were able to bring the cases to the NPA, considering the capacity of the police. There were huge capacity constraints in the police and yet the NPA was only as good as the police who brought the cases to the NPA.
 
She was horrified at the situation regarding the TRC cases. What had happened to the TRC cases over 25 years? Why had nothing been done? Ms Breytenbach had herself been a prosecutor for years so she was equally guilty, but what was being done to address the matter urgently.
 
Finally, Adv  Breytenbach asked about consequence management. She was pleased to see that the NPA had had the good sense to withdraw the case against the Rogue Unit but what consequences were there going to be for those who had driven the case? It had cost the NPA a large amount of money.  What was the consequence management for prosecutors where such cases were withdrawn, especially where the NPA would be sued, and successfully? What would happen to the people who had driven those cases? She had many other questions but had to give her colleagues an opportunity.
 
Ms N Maseko-Jele (ANC) appreciated the progress made in the one year by Adv Batohi but she noted, without being negative, that a lot still had to be done. She had so many questions and the presentation had not focussed on areas agreed upon by the Committee. A lot of time had been spent on the Investigative Directorate (ID) and the people who were acting. People were being paid and they had to work. They were being paid and had to do the work and not complain about being in acting positions.
 
Regarding the case that had been dropped against the Rogue Unit, Ms Maseko-Jele requested a summary of why the case had been dropped. Regarding recruitment, she wanted a breakdown of the type of posts advertised, the timeframe and more details. She wanted to get rid of the thing so that the NPA did not give stories the next time, but tangibles. She wanted to know in which provinces jobs were being advertised.
 
With the ID, Ms Maseko-Jele had heard only a story of complaints from Adv Cronje and not what she had done. What had she done in the year? Additional money had been provided and yet the Unit still did not have expertise. Where had the money gone to? Despite the money that had been re-directed to the NPA, there was still a shortfall. The presentation and narrative was needed before the meeting. In the presentation, the NPA only gave numbers. The NPA did not give the narrative of what was happening. She wanted the number of investigations taking place in the ID, the method used and how the team was structured so that she could see what was happening. She wanted to know where the unit was – it was the baby of the President. Last year, she had asked about the cases but the NDPP came this year and reported casually about difficulties.  She wanted the money from Bobroff as there were orders for him to pay money. Was Adv Cronje not aware of the treaties that SA had with other countries? She was mentioning problems as if she was not aware of the treaties.  Could she please use those treaties to get the money back?
 
What about the Steinhoff case? Her interest was in the cases dealing with big money. There was no money in the country. The NPA came to the Committee and requested money but where was the Committee going to get the money if the NPA did not attach the money that had been stolen from the government. The media had revealed the stories. Should the media also confiscate the stolen money?

Citizens were keen to get justice done but it seemed that the NPA outsourced its work. It was done by a certain panel – one went outside and got panels to deal with cases while the citizens were looking at the cases with interest as they were keen to see justice done. Was the NPA not outsourcing its work? Some cases dated back to Public Protector Thuli Madonsela, such as the Estina Dairy case.
 
Ms Maseko-Jele said she wanted reports on the Eskom and Transnet cases. People were interested in those cases that had always been there even before state capture.  She wanted a report on each case so that the Committee could take out new issues and deal with them.
 
Mr W Horn (DA) reminded the NDPP that she had identified seven issues the previous year and she had admitted that that she did not know who to trust, even amongst senior staff. Had that been resolved? Were the divisions in the NPA responsible for the lack of permanent appointments? On corruption, the NDPP said that the NPA had to prioritise cases but it seemed that there had not been much prioritisation. The NPA seemed to be completely overwhelmed by the reports on corruption and did not know where to begin. The results in terms of those targets were unacceptable.
 
He stated that the AFU results were scary in respect of recoveries relating to corruption above R5 million. There was zero recovery in the year-to-date actual. It was fair to say that complex cases were built over time but the Committee needed to know what had been done over three years, five years etc. Why was there a zero recovery? The Committee needed to look into the ACTT. Other role players had suggested that the Task Team was meeting regularly and it was doing well but the NPA was suggesting otherwise. Who was chairing/coordinating it? How often had it met over the past year? If answers were not forthcoming, the Committee might have to look into the ACTT in future meetings.
 
Mr Horn noted that the last time that the NPA had appeared before the Committee there had been a briefing on how it was contributing to strengthening the structural systems to deal with Gender-based Violence (GBV) and sexual offences.  Could the Committee have an update on the roll-out of the Thuthuzela Care Centres (TCCs) and what was being done to capacitate the new sexual matters courts?
 
In respect of the ID, Mr Horn got the sense that, at some stage, the crooks in SA went high tech, high-level and law enforcement was left behind or was eroded as part of a multi-pronged strategy by the crooks. It was not good enough, given the challenges that lay ahead, to tell the Committee about the foot faults in thinking when the ID had thought it could take one or two cases to court to gain public favour, but now they were looking for expertise and were struggling. The Committee could not accept that that if the fight was to be won, the NPA would just tread water when the expertise was out there, even if it was in the private sector. To what extent had inter-departmental secondments been realised or was the NPA going to look at consultants. Even though the Committee frowned on the cost of consultancies, it might be necessary in that case to speed things up.
 
Mr Dyantyi said he was smiling because, when Mr Horn raised the ACTT, he saw from the naughty faces of the NPA that the ACCTT was not working.
 
He had some proposals and he wanted to complicate the space by inviting the NDPP to have a conversation on some of the difficult things out there in the public. He began with an analogy of twelve months and nine months. The best nine months of his life was when his mother carried him but he did not feel that Adv Cronje had a child about to be born. Adv Cronje had spoken of what she knew today but had not known when she previously presented. However, now that the NPA knows what it now knows, it was nowhere nearer to bringing matters to court. The NPA had a weight on it. A miracle was expected from Shamilla Batohi, given the sickness of society.
 
Mr Dyantyi explained that he chaired a Subcommittee on Correctional Services and knew that there was immense overcrowding but there was an attempt to move out those people who were there because they smoked dagga, etc. because there was a long queue of people that the NPA should be sending into correctional services. He was suggesting that the very first case was critically important and should not be brought because of an expectation. If the NPA failed in the first case, everything else drops. If the case succeeded, everyone would be motivated. The NPA should not bring a case unless there was a definite success in the offing. It had to have a very good case with a definite chance of success or Adv Batohi should not bring the case.
 
Mr Dyantyi continued his analogy. In 12 months, a child had teeth and was walking but Adv Batohi was still crawling. Last year, the Committee had said that the honeymoon was over and the NPA had been asked for a plan as to how she was turning the ship around. He had not received the plan but he saw signs of a plan coming together. After listening to her, he had changed his mind and decided not to beat her but to help. He was missing a followable roadmap so that when the chair called her back, the Committee could interrogate progress against the roadmap. Some things were in her control and others were not. The roadmap would indicate what dependencies there were. How much more time did she need? Finances were being sorted but what were the other issues? The Hawks were essential to the NPA. If the Hawks did not bring the cases, the NPA could not move forward. He suggested that the Chair might need to call the Hawks and the NPA. 
 
He admitted that secondments were critical because new people would not have experience but the NPA had indicated the difficulties of arranging secondments. What were the long term things that they could do quietly, such as building an institution, for which the Committee could give time for the work to be done? But what were the low hanging fruits? How did the NPA prioritise those things that could be done quickly and successfully? Some of the issues were in the control of the NPA. It had to be a reputable organisation It had to be driven by integrity. It was an organisation driven by people.
 
The bad news was that Adv Batohi was going to be judged by how she managed the institution. There were allegations in the media that there was nepotism and he knew that she had responded at the bargaining council but Africans said that they were being overlooked, even in the shortlisting. Some of the things were historical and the people were making connections to how she operated. When someone from the NPA had died in the Free State, the family had said that the NPA should not go to the funeral. She was apparently investigating the matter, but it was a painful situation. Adv Batohi could not be successful when the internal processes were so problematic. It was further complicated by the situation in the Western Cape. She had announced two acting positions, and he was happy for Rodney de Kock to be given an acting position who was such an experienced old hand, but in the Western Cape, Advocate Nicolette Bell would serve as Acting Head for the Western Cape and the most senior person had been overlooked for the acting appointment. That gave credence to the stories that she was deliberately overlooking certain people.
 
Ms W Newhoudt-Druchen (ANC) asked why slide 19 referred specifically to two accused. She was concerned about the low figures in terms of convictions. Slide 23 showed 25% (354 out of 1 413) in 2018/19 and 28,4% (340 out of 1 199) in 2019/20. What was Adv Batohi going to do about it?
 
She agreed that car hijackings were traumatic. If the victims could not identify the perpetrator, was there no other ways of identifying the perpetrator, such as where the car was found? Slide 27 showed that 392 aspirant prosecutors were training in 72 training centres, i.e. five per centre. Who was supervising training and who was doing actual training?
 
Ms Newhoudt-Druchen noted on slide 42 that the 23 investigators worked part-time. Why? Were there no full-time investigators? As far as recruitment was concerned, 921 posts had been advertised 155 posts had been filled. What had happened to the remainder? There were 400 vacancies that had not been advertised. Why?
 
She noted that the NDPP said on slide 4 that it wanted all people to feel safe, especially against gun violence but girl children were being shot daily, especially in the Western Cape. What did the NPA discuss in the Justice cluster about gun violence? In the Western Cape, children were being shot every day.
 
Finally, she was concerned about cybercrime and developments in technology, but the prosecutors were not trained in cybercrimes. What training would they get?
 
The Chairperson called for a very brief break for the NPA to prepare to answer.
 
Response by NPA
Adv Batohi said that she had plans but she had thought that it was a Q2 and Q3 presentation. The NPA had several plans in place to deal with the different challenges. She was aware that the Committee had asked about the NPA plans at the previous meeting and so her intention had been to touch on the slides when she came to the end of the presentation. The Committee would note that the last slide was entitled “Strengthening the NPA”. She asked that her colleagues be permitted to respond to some of the questions.
 
Adv Smith informed Mr Horn that 55 TCC sites were in operation and the NPA was currently establishing another six using the Criminal Asset Recovery Account (CARA allocations) to the NPA. The plan had been for five but it would be possible to create six sites. The deadline for establishment of the new centres was March 2021 and the sites were in various stages of development. The establishment of TCC sites also included purchase of park homes as there were no facilities available in all the hospital buildings. Personnel positions would be created for each site and filled by the deadline as that process had already been kick started. That would include the site coordinator/site manager, a victims assistant officer and the sexual offences prosecutor or case manager.
 
Adv Smith added, that to capacitate the sexual offences designated courts as per the recently promulgated section 55(a), the NPA was appointing Sexual Offences-specific Prosecutors and was working with DoJ regarding regulations and directives for the prosecutors had been prepared. The NPA had also advertised other vacant posts at TCCs and they would filter into the designated courts. The NPA had so-called “Pure courts” that dealt 100% with sexual offences and the NPA was considering linking those courts with the designated courts as they could kickstart the process.
 
Adv Smith responded to Ms Newhoudt-Druchen’s question about the TCC cases where in 25% of the cases there were convictions of life or 25 years. The percentage of those convicted who had received severe sentences had increased by 3.4%. However, the number of 340 cases was lower because fewer cases had been finalised in 2019/20. The NPA was addressing the issue of fewer cases being finalised.
 
Adv Karen van Rensburg informed the Committee that posts had been advertised in stages as the NPA had not received all the money at the same time and it was not possible to manage all at the same time. She pointed out that the NPA never received enough money to fill all posts, so prosecutor posts had been prioritised and advertised as well as critical administrative posts. The first batch of 390 appointees would all be placed in the lower courts. The date of assumption of duty was 1 April 2020 because the South African Qualifications Authority (SAQA), which had to verify all qualifications, closed in December.
 
She added that another 62 posts had been advertised, prioritizing prosecution and corporate services in regions as well as advocates. The date for submission of applications had been 31 January 2020. The NPA had also been permitted to advertise for contract appointments and about 50 employees had been appointed on a one-year contract to fast-track processes. She could, by Friday, provide the Committee with a detailed report on each post advertised and the steps completed in the appointment process for each post. All 900+ posts were at different stages of the process but she had a tracking mechanism which tracked every step of the process for every one of the 900+ posts.
 
Adv van Rensburg assured Mr Dyantyi and the Committee that the NPA was absolutely committed to the equity requirements of government and they were scrupulously adhered to, even in shortlisting. All appointments fell within equity targets and she could emphatically state that there was real application of the equity criteria. She assured the Committee that she could provide a list of the race of every person appointed following those advertisements and they all fell perfectly within government’s equity targets. It was simply not correct that black people had not been appointed. She pointed out that there were certain requirements for each post which applicants had to fulfil, in addition to the equity requirement so anyone not appointed had not fulfilled one or more of the criteria. Grievances had been lodged and the grievances had been finalised. There had been no discrimination. With regards to the death of the prosecutor in the Free State, it was still confidential but the full report had been received and she assured the Committee that the facts had not been correctly reported in the media.
 
Adv Priya Biseswar responded to the Bobroff matter. SA had obtained a preservation order for the money, in excess of R100 million that was held in Israel. The matter had been opposed by the Bobroffs and a letter had been sent by SA to Israel to preserve the money. The money was being preserved in Israel and the Bobroffs had received leave to appeal the forfeiture order. The Bobroffs had received leave to appeal on 6 February 2020. So the matter was in process and if the Bobroff’s appeal did not succeed, the NPA would request the return of the money from Israel.
 
She agreed that at the end of Q3 there had been zero recoveries in ACTT matters in excess of R5 million but at the end of Q3, the AFU had recovered in excess of R181 million, but those matters were not on the ACTT list. There were various reasons for not meeting targets. In a large number of matters, the AFU had freezing or preservation orders and many matters were in process so only when the matters were finalised, could the AFU continue and claim that money. The matters were very complex and generally took a number of years. Once the matter was settled, there would be a confiscation order and the assets would be sold. When the money was approved, it would be paid over to victims and CARA. When the cases were finalised, they would contribute significantly to the amount of recoveries.
 
Adv Mzinyathi responded to the question as to why only 2 accused in the COGTA conviction were noted on the slide. As he had indicated, those were the only two convicted in matters above R5 million in the quarter.
 
Regarding the trio-crimes (slide 25), Adv Mzinyathi stated that the lack of identification of the hijackers was not the only reason for the low conviction rates as the police did not rely only on identification to catch hijackers. Identification was a factor observed in trio crimes. Car hijackings had the lowest conviction rates but they were not particularly low. He cited the conviction rates in trio crimes for Quarter 3: house robberies - 225 convictions and 22 acquittals; business robberies - 94 convictions and 28 acquittals; carjacking – 87 convictions and 105 acquittals. In the most feared crime, house robberies, satisfactory results had been obtained.
 
Adv Mzinyathi responded to queries about the recruitment of aspirant prosecutors. He explained that the aspirant prosecutors had not been broken into equal numbers per centre as they had been sent to areas where there were critical needs. Those centres were in Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, North West, Mpumalanga and Western Cape. The Chief Prosecutor in the other provinces indicated that additional entry level prosecutors were not required. In each province the aspirants would be trained at the centres where there was an acute need. The NPA had to be careful about recruitment of aspirant prosecutors as it did not want to train more prosecutors than could not be absorbed, as such prosecutors were then appointed on contract because there were insufficient vacancies. Hence, in the current year, the NPA was sure that the current aspirants would be absorbed where they were training.
 
He agreed with Mr Horn that cybercrime was a very technical and one had only to read the Cybercrimes Bill to realise that. The Bill identified training for prosecutors, policemen, intelligence service and even the judiciary and the prosecutors acknowledged that they definitely would need training to prosecute those crimes. There were plans for that training but the cyber environment was very complicated and that had led to discussions about whether the Bill should be split or not but the realisation had been that the enforcement part or the creation of offences had to be completed first before the training could be determined, but training would have to be fast tracked before the Bill is promulgated.
 
Adv Cronje said that there was a mismatch between the expectations of the Committee and what the ID had prepared in her report. She agreed that she had presented a narrative as she did not know how to cover all the details in the time available. She undertook to prepare a report by the following Monday on the establishment of the ID and some of the issues raised by Members as it was impossible to address all aspects in a brief response. Questions from Members could be clustered in three groups. The ID had obtained a deviation from the Department of Public Service Administration (DPSA) to appoint people on a three-year contract, including retired persons because experience was critical. There was not a lot of experience in the kind of work that the ID had to do. No serious commercial crime or corruption cases had been tried in SA in the past ten years. SA was not the only country struggling to keep up with the criminals. Law enforcement around the world was behind in technology. A policeman experienced in underlining entries on a bank statement with a ruler and a pen did not help when the ID needed people who could write code. There were consultants and people in the private practice that the NPA could bring in. The NPA had asked for DPSA for deviations to employ such people.
 
Adv Cronje presented an example of the type of case the unit was dealing with. She referred to the data to be analysed in the Regiment case. The NPA had a preservation order for R1 billion against Regiment. R500 million had already been returned to the Transnet Benefit fund. NPA was going to go back to court to ask for an increase of the order to R1.5 billion. The more the unit investigated and mined the data, the more corruption it found and the officials just had to adapt. In order to convict people in the corruption cases, the prosecutors needed admissible evidence in court from email and cell phone communication. The NPA needed the technology to geolocate the cell phones but the criminals were ahead of them and avoided leaving any traces.
 
She believed that all bank statements needed to be put into a single database to facilitate tracking. The Zondo Commission had developed the capacity to deal with such cases and was two years ahead of the NPA. The Zondo Commission was happy to collaborate but the NPA could not see the data that the Commission had collected. The NPA needed a Chinese wall between itself and the Commission.
 
Adv Cronje explained that part-timers were employed because ID was not a permanent organisation. It was intended to bring together a range of capabilities. It was also an internationally recognised practice to increase capability by bringing people together across departments, and the NPA had recruited from South African Revenue Services, Financial Intelligence Centre, police officers, etc. Some of the seconded officers were witnesses. Some had gathered the evidence but they were also working on other cases. The same applied to prosecutors who were in demand across the system. If cases collapsed because the ID had prevented officials from continuing the cases, the NPA would have to account for those cases being dropped. There had been an outcry in the Free State when she had pulled out a prosecutor from the Free State. It was a case of her priority against the Free State’s priority, or whatever other body or unit required the people. It was critical to create a framework where people would come and go according to when specific skills were needed. Those time periods could range from weeks to years. It was a challenge internationally and the NPA was putting building blocks in place.
 
Adv Cronje appreciated the opportunity to account for what she had been doing. The media wanted to see heads roll. She appreciated the Committee wanting to see the results differently. She could put on the table what birthing processes had happened. The challenge was keeping cases and strategies out of the public domain but the NPA would have to find a way of informing the Committee.
 
IN response to Ms Maseko-Jele’s question, Adv Cronje explained that treaties were a big issue. Countries were quick to sign treaties but they were not keen to implement the treaties and assist other countries. The Estina people needed finality as to whether people would be accused or not. A forensic report that had tracked all the money in the case had been received in November and it had now been suggested that the NPA might have to go forward without international evidence as, after two years of trying, it seemed clear that the evidence would not be forthcoming. That position had been communicated to the Executive. It meant that some people would not be held accountable. She currently had two indictments – one with evidence and one without evidence. Treaties were in place but some countries were not honouring the obligations. 
 
Adv Batohi informed the Committee that the Minister had made the point of mutual support in his statement to the United Nations Convention against Corruption (UNCAC). He highlighted the fact that countries were obliged to assist each other, whether there was a treaty of not, but countries were finding excuses not to cooperate.
 
Adv Batohi addressed the allegations by staff members. She was dealing with the staff and so she was wary of discussing details publicly. She noted that discriminatory thoughts led to discriminatory actions. She had never had discriminatory thought but it had to be placed on record. Within a month of her taking up office, complaints had started to come hard and fast against a new NDPP. She asked if the complaints had been raised with the previous NDPP. The NPA was in the process of appointing a person with the right skills and profile to look into the matter and to get the facts. The original person who was to have dealt with it had been unable to do so because the process was quite advanced. That process would be fast-tracked so that there was a proper fact-finding activity, and the organisation would have to deal with whatever came out of that process.
 
Adv Batohi stated that she was not keen to discuss everything in the public domain but Adv Nicolette Bell was a black woman and had been in the DPP’s office since 2002. It was unfortunate that she had been compared to another staff member but the other staff member had one year less experience. She was a black women, the only Coloured woman in a National Deputy position and had acquitted herself well in her job and with judges and magistrates. It was an acting position and there were a number of factors involved, not just colour.
 
Not all acting positions were vacant because some positions were the subject of litigation. She had asked Adv Mzinyathi (and now Adv Smith) to ensure that the acting positions were rotated without jeopardising ongoing cases. She was able to check the competency of people so no one was disadvantaged in the process. She assured the Committee that staff acting were not there to keep the seat warm – they were all highly committed. Adv de Kock, for example, had taken up from Adv Mzinyathi. He had picked up where Adv Mzinyathi had left off and was developing plans as necessary. He was not just a placeholder. He was working in Pretoria without subsistence & travel expenses at considerable personal costs. Other staff were making similar commitments because they wanted to be part of building the organisation. She recognised that she was privileged to have staff of such calibre who were prepared to do that. Some Special Director positions could be filled, such as the position held by Adv Mwerbi, the Special Director for Asset Forfeiture and the DDPP in the Free State. They would be fast tracked.
 
With regard to the size of the delegation, Adv Batohi stated that the NPA had had to respond to all sorts of questions in the past but now that she knew about the strategy of the Committee and that there would be a definite focus at each meeting; she would come with a focused lean and mean team. As far as the losing of expertise was concerned, she informed Adv Breytenbach that the NPA was looking to utilise some of the retired persons in mentorship and staff development, which was a big part of strengthening the NPA.
 
Adv Batohi explained her position in relation to the LP10/OSD case regarding the salaries of Deputy Directors. It was one of the most difficult decisions that she had had to make when coming into office. All the legal arguments in the NPA papers that had been submitted to court were publicly accessible. It was, for her, one of the most difficult litigations that she had had to undertake. She had communicated to all staff as to why she had to do it. Colleagues in her delegation were implicated, but she had explained her position to them. She fundamentally believed that the decision was incorrect. The requirements for how the LP10 was implemented were not in place. She wanted to implement LP10 but she wanted everything correctly in place – the issue was about the law and the correct implementation of the LP10. Cost of living expenses had also exasperated the situation. Senior staff were earning less than the people they were supervising. The salaries of Deputies and Chiefs had to be addressed urgently. There was a large financial implication as well. It was not the fundamental reason, but it was a factor. The country was in a financial crisis but the LP10/OSD would have huge financial implications for government as there were legal employees across all government departments. She hoped that her staff were listening as she was there to look after them and she needed their expertise.
 
The target of R5 million was an old target but Adv Batohi agreed that it was pocket money and added that it would be rephrased in future targets.
 
She would ensure that in future Members received a narrative about the figures. She, too, had asked her staff for an analysis of the figures to understand what the figures were telling one. She had asked Adv Mzinyathi to analyse the Asset Forfeiture Unit figures because sometimes the Unit had one or two big cases that hit the target, but the question was: what else was happening?
 
The TRC cases were a priority for the NPA. Adv Batohi had met with academics and civil society and they recognised that there is a need to address the deaths in detention during the apartheid era in a more focussed way. The NPA was looking at prosecuting apartheid as a crime against humanity and using international law to hold those responsible for the atrocities to account.
 
Regarding the withdrawal of charges against the so-called rogue unit, Adv Batohi explained that she had withdrawn the charges because there was simply no reasonable prospect of a successful prosecution. However, the case was again under review because a political party had written to her about the case and so she could not discuss details, but she would be glad when she could discuss the details and people could see for themselves what the situation was. The review panel was an internal panel consisting of the Director of Public Prosecutions, Barry Madolo, the Acting Director of Public Prosecutions from Umtata, Advocate Indra Goberdan from Grahamstown, and the Deputy Director of Public Prosecutions, Advocate Adrian Mopp from the Cape Town office. They were all very senior and highly experienced prosecutors.
 
Adv Batohi addressed the questions on the ACTT. The new chairperson of the ACTT was trying to build capacity. She empathised with him as he was trying to rebuild an institution without expertise, without finance and one that had been embroiled in corruption. She was a member of the ACTT and was, in fact, meant to be the co-chairperson according to one of the documents, but it did not work like that in practice. The ACTT was a substructure of the Justice, Crime Prevention and Security Cluster (JCPS) and the JCPS had recognised that the ACTT was not working as people did not feel safe, as Ms Newhoudt-Druchen had said, so they were not achieving high level success. They needed to find solutions and she had put on the agenda of the JCPS the question of why they not achieving outcomes. The President should ask whether there was a need for reform. From a political perspective, there needed to be a discussion about how one could make the clusters work. At an operational level, there was an attempt to consider what was working, whether they were deciding matters appropriately, and so on.
 
She advised Mr Horn that the NPA was not saying “well done.” She recognised that there was a lot to be done. She could speak for 15 minutes on prisons and overcrowding. The NPA wanted people to go to jail but prisons were full. Were they filling the jails with the right people? The NPA needed to be more strategic about prosecutions and imprisonments and fill the prisons with the right people. That was something that the JCPS had to look at. The NPA needed to look internationally and understand smart prosecutions and work closely with SAPS about how they dealt with crime. There were low hanging fruits, especially in the municipal spaces, and the NPA was working on that. There was a lot more going on in the NPA than people were aware of and the NPA would work on its communication strategy.
 
Adv Batohi promised Ms Newhoudt-Druchen that she would take up the gun violence issue with the JCPS and see what could be done.
 
The Chairperson thanked Adv Batohi and acknowledged that lots had to be done. He was unable to take further questions from Members as there were many issues that the Committee had to deal with in the meeting.
 
He stated that there was a need to deal with the expectation gaps between the Committee and the NPA, and between society and the NPA. Expectations were high because of what the NPA had promised. It was a victim of its own PR. It was the “year of orange overalls”. He feared repeat of the Magnus Malan situation. If they prosecuted without sufficient evidence to obtain a conviction, there would be a backlash. A three-day workshop with the Committee and the NPA was needed. Adv Breytenbach had raised critical issues and the Committee and the NPA needed to have a common understanding about the ID. By the time the five-year period ended, the cases would only be about to start. The Committee would study the NPA roadmap during the three-day workshop.
 
The Chairperson commented that the Department of Public Enterprises had promoted Maths and Science by using the telematics service at Stellenbosch University. Telematics was the blending of information and telecommunications technologies to convey information over large networks and supported distance learning.
 
The Chairperson stated that the other problem related to the Medupi and Kusile power stations. The Chinese spent five years planning and three years building a power station. SA had spent six months planning while the build programme had gone on more than 15 years. The roadmap and planning was important. Had the NPA done the right planning? There was an expectation that 2020 was the “year of orange overalls” and if that did not happen, there would be difficulties for government. The whole country was gripped by the concept.
 
He agreed with Ms Maseko-Jele about the Bobroff issue. It had occurred in the 1990’s and now most of the people had died without getting the money back. He added that the Committee had received information that R6 billion had been allocated for the building of eight courts but only four courts had been built, and for R8 billion. The NPA had to work more closely with the SIU. He believed that Senior Counsel, whose status was bestowed on them by the state, should do some work pro bono, as well as more junior counsel. It could not only be that government was good when government paid. Mr Horn was talking about expertise in the private sector - those people were in the private sector and they needed to engage in terms of patriotism.
 
He added that he knew Members had questions but they could raise them in the workshop.
 
Adv Batohi asked for adequate notice of the workshop as well as the expectations of the NPA so that she could prepare for a constructive engagement.
 
Committee matters
The Chairperson noted that the Committee was under pressure to finalise the three Bills before the Committee as the National Council of Provinces also had to deal with the Bills before the deadline.
 
He informed Members that the Minister had written to the Committee about the Head of the Special Investigating Unit (SIU). The Secretary would circulate the letter for discussion at a later meeting.
 
Deputy Minister of Justice on Salaries of Magistrates
The Deputy Minister of Justice, John Jeffery, informed the Committee that letters about the magistrates salary increases had been sent to the National Assembly and the NCOP and they had been ATC’d so he hoped the Members had a copy of the letter addressed to the National Assembly. The process was that the Magistrates Commission made a recommendation which had to be considered by the President and then had to be approved by both Houses sitting at the same time.
 
The Commission had recommended 4% for magistrates and 3% for judges but the President had recommended that persons earning under R1 million should receive a 4.5 % increase; those earning between R1 million and R1.5 million should receive a 2.8% increase and there should be 0% increases for those earning over R1.5 million, as was the case with MPs and Ministers. He was asking Parliament to agree to the President’s proposal as a result of the financial circumstances in the country. Only once Parliament had approved the recommendation, could the gazette be published, thereby enabling the payment of the increases.
 
He added that the Commission was busy with a review of remuneration of the judiciary and a report was currently before the Commission for the Remuneration of Public Representatives. He also understood that the Committee had received a letter from Mr Barnard, Head of Judicial Quality Assurance Office at the Magistrates Commission, but in his private capacity, in which he complained about the increases. Those were his personal views. In the longer term, a process was in progress to consider salaries in the courts but any further recommendations should come from the magistrates’ organisations.
 
The President’s recommendations were for 2019 – 2020, backdated to 1 April 2019. They were late as a result of changes at the Magistrates Commission. The recommendations before the Commission for the Remuneration of Public Representatives were for the 2020/21 financial year.
 
The Chairperson commented that effectively the increase was 4.5% and 2.8%
 
Deputy Minister said ordinary district magistrates would get 4.5%, senior magistrates would get 2.8% and zero for judges.
 
Adv H Mohamed (ANC) said that he supported the President’s recommendation as far as the judges remuneration was concerned. He was concerned that there would be another delay before the 20/21 increases were determined. Another delay of 14 months would create a form of hardship as indicated by Mr Barnard in his letter. Magistrates did not receive civil service notches. They remained on the gazetted salary.
 
Adv Mohammed explained that the Commission had recommended 4% across the board but the President had increased that to 4.5% and what it meant was that a senior magistrate would be earning about R2 800 more per annum than an ordinary magistrate. No one would want to be a senior magistrate and take on management and supervisory responsibilities for R2 800 per month. However, he added that the Deputy Minister had said that the next round of salary discussions would start within a month. If those discussions could be finalised quickly, the lag could be alleviated. He understood why there had been delays, but he had wanted to point out that a lag would develop.
 
The Chairperson noted that Adv Mohamed agreed with the President’s determination. He noted that no other Members had input on the matter. He asked the Deputy Minister for a comment.
 
The Deputy Minister stated that he would report the concern. He added that there was a new Commission chaired by Judge President Leeuw from North West. He repeated Magistrates Commission proposals: 4.5% up to R1.5 million and 3% over R1.5 million. The President’s proposal was that persons earning under R1 million would receive a 4.5 % increase; those earning between R1 million and R1.5 million would receive a 2.8% increase and there would be 0% increases for those earning over R1.5 million.
 
He mentioned that magistrates were originally prosecutors but the prosecutors had been getting above inflation increases and so a more significant adjustment was necessary at the lower level of magistrates. He noted the differential raised by Adv Mohamed but that was because of the R1 million dividing line and he hoped that it would not be a problem. There were other anomalies, for example, in the smaller districts, one magistrate was appointed the head of office but earned the same as other magistrates. Then there were cluster heads and some single magistrates were earning the same as the cluster heads. Those situations were problematic but would be looked at.
 
The Chairperson stated that the Committee would approve a report for Parliament on the salary increases at the meeting that Friday.
 
The Deputy Minister asked if the Committee could not approve it immediately as there was a quorum.
 
The Chairperson asked that the Deputy Minister allow Parliament to do its work. The matter would be determined on Friday and it would be put before the House the coming Tuesday.
 
He also informed Members that he would request permission for the Committee to work during House plenaries for the following couple of weeks as there was so much legislative work to be done by the Committee.
 
The meeting was adjourned.