The Committee was briefed by the National Prosecuting Authority (NPA) and the Independent Police Investigative Directorate (IPID) on the recent civil unrest in the country and the measures the entities had implemented to mitigate against health and safety concerns associated with the COVID-19 pandemic, including the vaccination of their staff members. The virtual meeting took place during the Committee’s week of oversight from 16 to 20 August aimed at understanding the impact of the COVID-19 pandemic and the extent of the recent civil unrest. This would be followed by a debate on these matters in the National Council of Provinces (NCOP) on 22 August.
Reporting on the unrest between 07 and 11 July, the NPA said that 170 new cases involving 190 accused persons had initially been enrolled at the courts. The week that followed was critical in terms of the work that was being done, and by 19 July the situation had improved and 618 new cases involving 1 249 accused persons had been enrolled. There was currently an ongoing trickle of arrests in relation to investigations regarding the looting. The COVID-19 pandemic had also affected the functioning of the courts, because that was at the stage when the country was going through the peak of the third wave. Unrest in most other divisions were prevented as a result of the communities’ intervention and the presence of law enforcement in some areas. The large number of people involved had hindered the SAPS’s ability to obtain information for consideration of bail, and the overcrowding of prisons and holding cells required quick processing. The vaccination of NPA staff had started on 29 July, and 47% of the staff had received at least their first vaccination. The entity continued to encourage staff to get vaccinated.
The IPID reported that it had received a total of 74 cases related to the recent unrest, of which 61 were in KwaZulu-Natal and 13 in Gauteng. The majority were cases of death as a result of police action (26 cases), followed by assault (25 cases), complaints of discharge of an official firearm (17 cases), and four deaths while in police custody. Two dockets involving torture were opened. The Phoenix police station had received a high intake of cases of a serious nature, with six assault cases reported and three cases of death as a result of police action. Challenges encountered by IPID included uncooperative witnesses, and difficulty in accessing some victims and witnesses owing to the volatile situation, as the police were also attacked in certain communities.
The Committee expressed concern at the overall lack of cyber investigative capabilities and the lack of resources at the NPA for the entity to conduct its work efficiently and effectively. Clarity was sought on the measures that had been put in place to ensure that cases involving gender-based violence and femicide received adequate attention. Members wanted to know to what extent children had been affected by the unrest. They stressed it was crucial that perpetrators be dealt with decisively, given the disastrous consequences of the unrest for South Africa. The Committee was of the view that the work of the NPA inspired confidence that the justice system would take its course.
The Chairperson convened the meeting and welcomed Members and the delegations in attendance. She recognised that Ms Patricia Whittle, Parliamentary Researcher, and Dr Irvin Kinnes, Content Advisor to the Portfolio Committee on Police, were also in attendance.
She said the meeting was taking place at a time when the National Council of Provinces (NCOP) had scheduled a week of oversight from 16 to 20 August to understand the extent of the COVID-19 pandemic and the recent civil unrest. This would be followed by a debate in the NCOP on 22 August on these matters.
The purpose of the meeting was for the Committee to be briefed by the National Prosecuting Authority (NPA) and the Independent Police Investigative Directorate (IPID) on the recent civil unrest in the country and the entities’ implemented measures to mitigate against health and safety concerns associated with the COVID-19 pandemic, including the vaccination of its staff members.
The delegation from the NPA consisted of Adv Shamila Batohi, National Director of Public Prosecutions, Adv Rodney de Kock, Deputy National Director of Public Prosecutions, Adv Anton du Plessis, Deputy National Director of Public Prosecutions: Strategy, Operations, and Compliance, and Ms Bulelwa Makeke, Executive Manager: Communications.
The delegation from the IPID consisted of Ms Dikeledi Ntlatseng, Head of IPID, Ms Felicia Ntshangase, Provincial Head: Gauteng, Mr Matthews Sesoko, National Head of Investigation, Mr Robert Mamabolo, Representative from the IPID, and Ms Antonett Mphago, Chief of Staff.
NPA: Civil unrest and mitigating measures against COVID-19 pandemic
The Chairperson said the Committee had undertaken to meet with the NPA to understand the impact that the recent civil unrest in South Africa had had on the entity’s caseload, and to learn about the efforts to mitigate the impact of the COVID-19 pandemic within the entity. It was expected that the briefing from the NPA would shed light on the cases and operations in relation to the unrest, the coordination and cooperation of the South African Police Services (SAPS) and other relevant structures, the action plan moving forward with prosecutions and convictions, and the lessons learned in the process.
Adv Batohi commented that the foundations of South Africa's constitutional democracy had been shaken by the recent events. The eruptions of violence and looting were an unprecedented assault on SA's democracy, social contract, and the rule of law. Confidence in the rule of law and the ability of the justice system to uphold it, had been severely shaken. However, despite numerous challenges, the duty of the NPA was to ensure that justice prevailed. The NPA had a plan in place to ensure effective and evidence-led prosecution through close consultation with its partners in the justice, crime prevention, and security (JCPS) cluster.
The focus of the discussion for this meeting was related to the unprecedented violence that shook the country. South Africa was already in a position where the rule of law was already stretched almost to breaking point, and the recent unrest had certainly added to that and severely shaken it even more. The NPA had held meetings with the National Commissioner of Police to organise the response of criminal justice system and in particular, the police and the NPA. She noted that there were layers of perpetrators during the civil unrest who ranged from mere opportunistic looters to the more organised ones. There were also a significant number of perpetrators who had incited on social media and other platforms. There was a differentiated approach in respect of how the NPA would deal with each of those categories. She commented that to deal with this kind of attack on democracy, particularly getting to those most responsible, required a very dedicated, focused approach.
Overview of NPA’s cases and operations relating to the recent civil unrest
Adv De Kock said the NPA was bound to refrain from discussing its methodologies in detail, as the entity was required to keep its information relating to the investigation of crime confidential. This was because the NPA did not want to alert the perpetrators of crime to the manner in which it operates during the investigative phase. For these reasons, a high-level briefing would be provided to the Committee. The NPA was working very closely with the relevant law enforcement agencies to bring those accountable to justice.
In relation to the recent civil unrest between 7 and 11 July, 170 new cases had initially been enrolled at courts, involving 190 accused persons. The week that followed was a critical week in terms of the work that was being done and the further cases that were reported. By 19 July, the situation had improved, and 618 new cases involving 1 249 accused persons were enrolled at court. There was currently an ongoing trickle of arrests in relation to investigations regarding the looting.
The biggest operational impact of the recent civil unrest was in the provinces of KwaZulu-Natal and Gauteng. The biggest impact was on housing and transport-related issues, which had an effect on the access to courts. The COVID-19 pandemic also played a role in relation to the functioning of the courts during those periods, because that was at the stage where the country was going through the peak of the third wave. Unrest in most other divisions had been prevented as a result of the communities’ intervention and the presence of law enforcement in some areas. The volume of people involved had impacted the SAPS’s ability to obtain information for consideration of bail, and the overcrowding of prisons and holding cells required quick processing during the large number of arrests.
Each case that came to court was considered according to normal principles and guidelines, and bail was opposed only in serious matters. This was done on the basis of evidence that was placed before the NPA by the investigating authorities. The NPA works closely with the investigating authorities to try and assist in the preparation of investigation and case dockets, to ensure that the evidence that is collected is admissible and credible for the purposes of taking a case to court. The NPA follows the principle of “no case, no enrolment,” which requires the screening of matters.
There were serious disruptions, particularly in the initial phase in the first week of the unrest, that impacted on the NPA’s ability to process cases efficiently and effectively through the courts. All efforts were made to release the perpetrators at the first available opportunity, when bail was not opposed, to avoid overcrowding at correctional facilities. The Committee needed to take cognisance of the heightened state of the COVID-19 pandemic during this time, and that there was an imperative on the NPA to ensure that people were not held in conditions that would actually facilitate the spread of the virus. Court cells were not conducive to housing large volumes of people, so the NPA needed to ensure that there was a quick and efficient movement of people through the court system. As security was an important aspect to consider, three security management meetings were held every day under the leadership of the joint forces.
There were initially four categories of matters that were dealt with. These were subsequently condensed into three levels, with the first level consisting of primary and secondary crimes. Primary crimes involved the actual looters and persons participating in stealing from shops and outlets, while secondary crimes involved persons found in possession of stolen property. These matters were still being investigated and arrests had been made. Justifiable cases from the above categories may result in restorative justice or alternative measures, such as admission of guilt fines, diversion, or plea-and-sentence agreements. Each case was being dealt with on a case-by-case basis, depending on the evaluation of the merits of the matter.
The second level consisted of groups and individuals stealing property in big quantities in an organised fashion, which gave rise to cases of a more serious nature. The third level consisted of persons involved in initiating the unrest, enticement, and inciting public violence. Four high-profile cases involving incitement were under investigation in KwaZulu-Natal, five in the Gauteng province, and one in the Western Cape. Investigations were ongoing regarding the instigators and planners of the recent civil unrest.
The NPA played a role in assisting to ensure that the investigation was directed in a particular way that would add value ultimately to the decision-making process, where prosecutors needed to decide later on whether or not to prosecute. The NPA noted the challenge of the investigating authorities to deal with the cyber forensic capabilities, and engagements with the Directorate for Priority Crime Investigations (DPCI) were ongoing to strengthen the cyber forensic capabilities of the state. This was crucial to ensure that evidence was analysed properly before the trials commenced. Two murder cases had been enrolled in the Pietermaritzburg High Court, and one was under investigation. In addition, the Mamelodi court matters on public violence would be transferred to the Pretoria Regional Magistrates’ Court to deal with the increased volume in accused persons.
Most courts had reported a decline in general cases enrolled, though a large number of public violence cases, as well as cases in terms of section 36 of the General Law Amendment Act 62 of 1955 regarding the possession of suspected stolen property, were noted.
On 12 August, the Department of Correctional Services had reported a decline in number of remand detainees in the provinces of KwaZulu-Natal and Gauteng, with an overall decrease of 17.22%. One of the focuses of the NPA’s approach was to ensure that overcrowding challenges were not exacerbated in correctional facilities. Another focus was to ensure that the spread of COVID-19 was prevented, which required a decrease in the number of people who were housed in a correctional facility. Despite the increase in arrests, there had been a decrease in the number of people in correctional facilities because of the NPA’s ongoing interventions through its senior public prosecutors and advocates, to ensure that detainees were either released on bail or warning so that the only people remanded into custody were those that were immediate threats to the government or the state, including those who were likely to commit further offences.
The seizure of abandoned looted goods had resulted in no cases being opened, as no offenders could be linked to it. The mass seizures in certain areas had led to no arrests.
During the unrest and looting outbreak in these divisions, the SAPS’s detention facilities had been overcrowded and access to food for detainees had become a challenge. In addition, because of the unrest, vigilante groupings had sprouted, and crime scenes had resulted in challenges with regard to the identification of criminal elements. Progress was still being monitored in collaboration with other stakeholders at all levels.
The challenges during these processes highlighted the importance of using technology during investigations and at the courts. There was a lack of resources, both in the equipment and staff required for technology, as well as the infrastructure and maintenance of electronic equipment, and there was a need for legislative changes to allow for the acceptance of evidence and the usage of technology. There was a need to increase the engagement and coordination between the SAPS, the NPA, and the Department of Justice and Constitutional Development at the district level, to deal with operational challenges. Provincial senior management of stakeholders needed to be proactive and meet immediately when unplanned actions like these arise.
Impact of COVID-19 pandemic on NPA and the vaccination of staff
Adv De Kock said the NPA monitors the situation relating to the COVID-19 pandemic on a daily basis in all of its offices across the country. The isolation and quarantine of staff members and the decontamination of offices still impact the NPA’s performance, and the affected parties include not only prosecutors, but also all court staff, police officials, correctional services, attorneys, the accused and witnesses. The rotation of staff amongst role-players was important, but was sometimes complicated and logistically problematic.
The vaccination process of the NPA’s staff had started on 29 July, after the vaccination sites were communicated by the Department of Health. Some staff members had already received their vaccinations before then. He confirmed that 47% of the NPA’s staff had had at least their first vaccination in the vaccine roll-out process, and the entity continued to encourage staff to get vaccinated.
The Chairperson said she appreciated the work done by the NPA during the period of civil unrest.
Ms M Bartlett (ANC, Northern Cape) referred to the lack of cyber investigative capabilities. What steps had been taken to resolve the challenge and the time frames for the resolution of this matter? It was important for the Committee to discuss the lack of resources at the NPA. She asked the NPA to elaborate on the extent of the resources required for the entity to conduct its work efficiently and effectively. How would that be addressed moving forward, and what measures would be implemented? What measures had been put in place to ensure that cases involving gender-based violence and femicide (GBVF) received adequate attention?
Ms N Nkosi (ANC, Mpumalanga) asked for more information regarding the nature of the challenges involving the NPA and the SAPS that required additional training. Regarding the mention of restorative justice measures being implemented for certain matters, she asked that the Committee be provided with clarity on the nature of these cases and the current number of these cases resulting in restorative measures being implemented. Had any children been affected by the unrest? What other alternative measures were being implemented within the criminal justice system in relation to children?
Mr T Dodovu (ANC, North-West) applauded the NPA for the work being done. It required commitment and the utmost dedication to ensure that they deal with the challenges that were facing the country. The NPA was making good progress in prosecuting the perpetrators of the serious crimes which had been perpetrated in KwaZulu-Natal and in Gauteng. He expressed concern that not enough focus was being placed on holding the instigators and planners of the recent civil unrest accountable. It was crucial that the perpetrators be dealt with decisively, given the disastrous consequences of the unrest for South Africa. He commented that the work of the NPA inspired confidence that the justice system would take its course.
The Chairperson referred to the integrated task team on the management of unrest-related cases convened by the Department of Justice and Constitutional Development. How effective had this task team been in addressing blockages across the criminal justice value chain? How effective had it been to date, and what were the current challenges and lessons that it had learned? She sought clarity on the key lessons and proposals made by the NPA to strengthen the entity going forward. What needed to be put in place to mitigate against some of its challenges in future?
Adv Batohi commented that it was good that the Committee had raised the issue of the lack of resources within the NPA and the JCPS-cluster. These entities had received additional budget allocations to deal with some of these aspects. The 2% budgetary increase that the NPA had received was very small, and would not aid the NPA’s budget for goods and services, which were under significant strain. The lack of resources remained a significant problem for the NPA. The entity was looking at identifying specific skills that were scarce in the NPA by developing its scarce skills framework to attract people with those skills with a slightly better remuneration package. However, this required additional resources. There was a project in the JCPS cluster to deal with setting up a forensic capability within the government to cut down on the expense involved in obtaining these services for cases.
Adv Andrea Johnson, Deputy National Director of Public Prosecutions, responded to the question of training with the SAPS. The NPA assessed the training needs of the law enforcement agencies. The first week after the NPA received cases, it had become very apparent that the quality of investigations unfortunately left much to be desired. The management of law enforcement agencies had been engaged, and an urgent training intervention took place virtually on 26 July. The biggest shortcoming that was considered was the lack of cyber investigative capabilities in the SAPS. The nature of the training was on evidence collection. The training sought to guide investigators and to reassure them that prosecutors remained available to guide investigations to ensure the proper collection of evidence.
Adv De Kock responded that there were sufficient resources to give cases of GBVF the appropriate attention. The bulk of the matters, however, were dealt with in the NPA’s general court rules, particularly in the district courts. These matters were still being prosecuted or processed through the courts. The resourcing of the NPA remained a priority for the organisation going forward. He noted the questions on the entity’s cyber investigative capability and the ongoing training that was being done by the NPA for the SAPS. The NPA had enhanced its focus on issues of GBVF through measures like additional training and capacity within its various offices.
There were dedicated sexual offences courts, and the NPA had to develop incentives that provide services and comfort to the victims. The objective was to ensure that these cases got the necessary attention, both from an investigation and a prosecution point of view. As far as children were concerned, the Committee would be provided with the information when it became available. The NPA had requested that all the dockets that were struck off the roll or withdrawn be analysed with a view to establishing what the reasons were, so that it could be corrected. In those cases where the decision had been made to prosecute, those individuals would be brought back to court to face the consequences of their actions.
He appreciated the words of encouragement from the Committee. Regarding the question on the established integrated task team, he responded that the matters considered included the blockages of matters being brought to court, the number of people who were arrested, and the impact on the NPA’s infrastructure. He commented that the NPA’s operations at the courts remained effective and the situation had normalised, showing the effectiveness of the task team.
Adv Batohi said that it had already been established that the effectiveness of the JCPS-cluster left a lot to be desired. The integrated task team was focused on conducting a review of the work of the cluster and addressing serious institutional problems that had to be acknowledged for entities to ensure that the JCPS cluster was reformed. There was a struggle against the weakening of the entities. There was also a lack of skills, and staff were demotivated by the high levels of corruption within the ranks of the entities themselves. These factors created a difficult environment to operate in, but these systemic endemic problems needed to be addressed.
The Chairperson thanked the delegation from the NPA for the comprehensive responses to Members’ input. She appreciated the insights that the briefing had given the Committee related to the recent civil unrest. The Department of Justice and Constitutional Development had noted the need to increase the engagements between the SAPS and the NPA at the district level regarding operational challenges. The Committee wished to continue to commend the NPA for the work it does, and encouraged improved cooperation among the entities.
IPID: Civil unrest and mitigating measures against COVID-19 pandemic
Mr Matthews Sesoko, National Head of Investigations, IPID, provided the Committee with an overview of the civil unrest cases reported to the IPID in KwaZulu-Natal and Gauteng. It had received a total of 74 cases, of which 61 were in KwaZulu-Natal and 13 in Gauteng. The majority of those reported were cases of death as a result of police action, with 26 cases reported, followed by assault (25 cases), complaints of discharge of an official firearm (17 cases), and four deaths while in police custody. The least cases reported were torture, with two dockets opened. The Phoenix police station had received a high intake of cases of a serious nature, with six assault cases reported and three cases of death as a result of police action.
The IPID was receiving a high level of cooperation from key stakeholders. There were challenges identified during the period of looting in both provinces, which included uncooperative witnesses. In addition, the situation was so volatile that it was difficult for the IPID to access some of the victims and witnesses. The high case intake during the unrest made it difficult to attend some of the crime scenes timeously. Another challenge was that crime scenes were not attended immediately due to safety reasons, as the police were also attacked in certain communities. It had also been difficult for the IPID to access crime scenes during the unrest. Communities were sometimes reluctant to cooperate with investigations for fear of being investigated by the SAPS or law enforcement agencies for their role in the looting.
He reported that the COVID-19 pandemic had impacted the ability of the IPID to effectively conduct its investigations, with the following added concerns:
Witnesses, complainants and other role players not wearing masks or observing safety protocols;
The closure of some police stations and forensic laboratories due to COVID-19 reported cases; and
The reluctance of witnesses to meet investigators due to the COVID-19 pandemic.
Ms Bartlett asked what internal reflections the IPID had conducted to determine how to manage situations like this differently in the future, particularly in light of the challenges that had been identified. The Committee needed to understand how efforts would be more effective and responsive in the future.
Ms Nkosi referred to the high level of cases reported, and asked for clarity on the progress of the investigations and the projected timeframes for finalising the cases. What was the current level of cooperation with the NPA in respect of the cases under investigation by the IPID?
The Chairperson asked whether the IPID was investigating any matters where law enforcement officials had been found in possession of items looted and stolen during the recent civil unrest. She asked whether there were any guidelines on the use of live ammunition and the use of rubber bullets during periods of unrest. When no live ammunition was used, did this still constitute the discharging of a firearm?
Mr Sesoko responded that the specific situation of the unrest had been a difficult period for the IPID. It was informed of the matters of the civil unrest by the SAPS. Once it was notified, officials from the IPID would attend the crime scene and assist specifically in a situation where there had been violence. When IPID investigators approached, it was difficult to get into the crime scene, as they had to wait for the SAPS to clear the scene. Most crime scenes had been destroyed by the looters, making it difficult to get evidence.
The investigations were still at a very early stage, and the IPID was still working to piece together the evidence. It had met with community leaders in some instances to try and establish who the witnesses were who could assist with the investigations. It was difficult to establish timeframes when crime scenes had to be reconstructed. For the IPID to be able to reconstruct the crime scenes, investigators needed people who had been there at the time when the crime was committed to assist in the reconstruction.
He said that the IPID received good cooperation from the SAPS as the entity who reported the matters to the IPID. There had been no reports to the IPID with allegations that a police or law enforcement official had been involved in the looting.
Regarding the question of whether there were guidelines in relation to the use of live ammunition and rubber bullets, he responded that rubber bullets were normally used to disperse a crowd, but the SAPS also had standing orders to use rubber bullets that could be shot at close range. Law enforcement agencies and officials were allowed to use live ammunition to defend themselves or others only in a life-threatening situation.
The meeting was adjourned.
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