DoJ&CD & NPA 2020/21 Annual Report, with Deputy Minister

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Justice and Correctional Services

12 November 2021
Chairperson: Mr G Magwanishe (ANC)
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Meeting Summary

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Audio Part 1

Annual Reports 2020/21

The Portfolio Committee on Justice and Correctional Services (the Committee) convened in a virtual meeting for briefings by the Department of Justice and Constitutional Development (DoJ&CD) and the National Prosecuting Authority (NPA) on their 2020/21 Annual Reports.

The Committee was concerned about the trend of a significant decline in the performance of the DoJ&CD over a four year period, i.e. from 85% in the 2016/17 financial year to 51% in the 2019/20 financial year. The upward trend to 66% in the year-to-date performance was met with scepticism. Members were not convinced that the Department was able to improve performance under Covid-19 conditions, considering the concerns raised by the Auditor-General about the reliability of information relating to court services. The Chairperson proposed quarterly meetings with DoJ&CD officials to track progress and monitor performance.

The cyber-attack impacted negatively on service delivery and emphasised the need to accelerate the modernisation of Information Communication Technology (ICT) infrastructure. The Committee was assured that a rebuild and modernisation plan was in place and the DoJ&CD would be taking the lead in modernising the integrated justice system (IJS).

The level of neglect and lack of maintenance at some of the courts rendered it not fit for purpose. The Committee was informed that the DoJ&CD was dependent on the Department of Public Works (DPW) to fix dilapidated courts in need of renovation. The significant delays in restoring burned court buildings were due to the lack of provision for insurance on government buildings. The DoJ&CD proposed a review of government policy in this regard.

The NPA raised concerns about the independence of the organisation. The Committee was informed that the NPA would be engaging the Minister on the Draft Act about the powers of the Asset Forfeiture Unit (AFU). A strong case for NPA independence was made in an affidavit submitted to the Zondo Commission. The Committee assured the NPA of its continued support and backing in terms of getting adequate resources to deal with complex commercial crimes.

The Committee found the inaction regarding the issue of whistle-blowers troubling. The NPA recognised the need for intervention and was engaging with the DoJ&CD to introduce the legal framework for dealing with this matter. A call for urgent intervention was made to other government departments and businesses. The delay in finalising the Truth and Reconciliation Commission (TRC) cases left the Committee with a sense of disquiet. The NPA assured the Committee that TRC cases had been prioritised.

The Committee was concerned about the stability of the Investigative Directorate (ID). The shortage of skills remained a challenge for the ID and was exacerbated by the lack of experience in South Africa with regard to complex commercial crimes. A new Digital Forensic Specialist position was created and an additional budget was requested to appoint 20 prosecutors with specialists skills. In addition, the services of retired experienced prosecutors were being retained on a contract basis to serve as mentors.

Meeting report

Opening Remarks
The Chairperson welcomed Members and everyone in attendance. The DoJ&CD and the NPA had been invited to present their Annual Reports and to report on the Year-to-Date performance.

The Chairperson welcomed the Deputy Minister, Mr John Jeffery, and invited him to make his opening remarks.

The Deputy Minister said the team was led by the Director-General (DG) Adv Doctor Mashabane, who would be introducing the officials.

The Deputy Minister requested in anticipation to be excused at about noon as he was required to deliver a farewell speech in another virtual meeting.

Overview by the DG of the Department of Justice and Constitutional Development

Adv Doctor Mashabane welcomed his colleagues, Senior Management of the Department, Heads of Regional Offices and of the State Attorney Offices and Members of the Executive Committee and thanked the Ministry for the executive oversight and support. He stated that he joined the DoJ&CD on 1 March 2021. The Department would be presenting the 2020/21 Annual Report with comparisons to performance cycles of the previous years. He acknowledged that the Department faced a challenge of declining performance and negative audit findings but he would report on efforts to improve performance and reflect on some of the challenges. 

One of the key challenges was the aging ICT infrastructure. Even before the ransomware experience, a report pointed to the ICT infrastructure no longer being fit for purpose. The Department started to modernise ICT before the unfortunate ransomware attack happened. It was just a matter of time that such an attack would have happened. The system was back online but the systems vulnerability that the attack revealed necessitated the rebuild and modernisation of the ICT infrastructure. Most of the services to the public were highly system dependent. The objective was to improve the system and to address complaints from the public about the lack of services. It was the duty of the Department to take the lead in modernising the integrated justice system (IJS).

The DG indicated that he had visited all nine provinces since his appointment to determine the state of infrastructure of the courts. He found some of the courts dilapidated and in need of renovation but the Department was dependent on the Department of Public Works (DPW). Funds should be increased to allow for renovation and construction of courts. The processes and proposals could run for more than five years, for example, the Pretoria Magistrates Court burned down ten years ago but had not yet been fixed. The Covid pandemic exposed challenges but the courts remained open during all lockdown levels. The challenges were particularly dire in rural areas where there were problems with access to water which result in blocked toilets. The Department was waiting on the DPW for the installation of boreholes in rural areas.

Covid-19 had an impact on the work of the Department but it would not be used as an excuse. The DG thanked his colleagues for their commitment to serve the people under very difficult conditions. Significant progress had been made with the filling of vacancies. The turnaround strategy, to reverse the failures of the Department, was based on eight pillars. Significant progress had been made to address challenges in terms of the qualified audit report.

Presentation by the Department of Justice and Constitutional Development

Adv Samuel Mgiba presented the Annual Report on behalf of the Doj&CD.

Performance overview
The filling of senior management positions brought stability to the Department and prevented further decline in performance as evident in the improved performance from 51% in the 2019/20 financial year to 66% in the 2020/21 year-to-date performance. The Department had 92 annual planned targets for 2020/21 financial year and achieved 61.


Improved access to justice
Six new Special Commercial Crime Courts (SCCCs) had been established to facilitate the implementation of the anti-corruption strategy. All regions had now been resourced with a SCCC.

Improved administration
A Cashless Court Solution system was deployed in 25 courts. The third party management system, MojaPay, was implemented in 483 courts. Through the IJS Transversal Hub, 1 144 police stations had been linked to 509 courts across all provinces.

Key challenges
Mitigating strategies were implemented to arrest the declining performance. Controls were strengthened to ensure the reliability of information which was the basis of the audit qualification. A skills audit was being conducted to allow for the alignment of vacancies in order to decrease the high vacancy rate. The ransomware attack impacted not only the existing services but also the progress on the modernisation programme. Efforts were made to reduce backlogs and measures were implemented to restore the modernisation programme.

The Department received a qualified audit opinion on the Vote Account and Predetermines Objectives. The basis for Audit Qualification: Vote Account: Contingent liabilities - The department did not have adequate internal controls to estimate the likely settlement amounts for claims against the state and Predetermined Objectives: (Programme 2 Court Service selected for audit) - The achievements reported in the annual performance report materially differed from the supporting evidence provided.

Guardian’s Fund, CARA and President’s Funds, all achieved clean audits.  

(See Presentation)

Discussion
Mr R Dyantyi (ANC) raised his concern about the length of the presentation which lasted for nearly two hours. He requested the Chairperson to, going forward, ensure a fair balance between the time allocated for presentation and time for Members to get answers from the officials. It was significant that the Annual Report, covering the period 1 April 2020 to 31 March 2021, included at least two Covid-19 waves. It was however curious that the performance increased from 51% to 66% under Covid-19. He observed that underspending of the previous year compared to the current year was not reported in the presentation and questioned whether the 66% achievement under Covid conditions unlocked a sleeping giant or whether the Department was taking short-cuts. The key success factors, according to the DG, included the 1 500 laptops that were given to the Department and the improvement in the number of virtual cases. Considering that the success factors under Covid was so underwhelming, he asked what the Department was planning to introduce into the Annual Plan going forward.

Mr Dyantyi was interested in the status of the Magistrate and Lower Court Bills and asked for specific detail on the issue. He sought clarity on the R12 million over expenditure on Sale of Goods, and fines and penalties was requested. The accounting officer was asked to assist in providing detail regarding the entities, i.e. Council of Debt Collectors, Rules Board for Courts of Law and South African Board of Sheriffs. These entities were reporting to the Department but the Committee had never been able to interact with the institutions. Although they were publicly funded, there was nothing in the report in this regard. He was of the view that there were many issues that related to failures regarding to the issue of Risk Management that was raised by the Auditor-General. The major contributing factor was the Department’s approach to Risk Management which needed mitigation. He wanted to know about the role of consultants in the ICT systems of the Department which was in a messy situation during September to October 2021. The reasons for vacancies not being filled were not convincing. The 420 resignations were an indication that people were deserting the Department. He questioned the need for the appointment of foreign interpreters considering the high level of unemployed South African youth.

Adv S Swart (ACDP) said he might have missed some of the input as he was involved in the Medium Term Budget meeting. He commended the Department on the improvement and appreciated the work that had been done given the financial challenges and budget cuts. He joined Mr Dyantyi in his request for more time for engagement with the Department. He asked for an update regarding the recovery of payments that the State Attorney Office was making on behalf of other departments and for the Department to advise the Committee on the report regarding the investigation into the State Attorney Office and the recovery of assets. The SIU made recommendations on the Masters Offices with regard to referrals and disciplinary actions on officials. The challenges of the Masters Offices were concerning as Members of Parliament and individuals often get queries from the public about the Masters Offices whose services had an impact on the economy. He sought clarity about the CARA Fund, i.e. the names of members of the CARA committee and the decision-makers with regard to the allocation of funds and why some entities, e.g. the State Security Agency (SSA) received funds while the NPA did not receive any funds. He welcomed the Rapid Result Initiative on GBV and requested an update on the matter.

Mr W Horn (DA) found the introductory remarks of the DG regarding the ICT environment worrying. The Department faced a situation of no meaningful repair of the current infrastructure, therefore the Committee should be sceptical that a turnaround was happening. The engagements with practitioners and the public even before the cyber-attack revealed a slow pace of services and maintenance payments by the Masters Offices. The situation had been exacerbated by the attack but could not be an explanation for the number of complaints. The reliability of systems information was the basis for the qualified audit opinion and therefore the Committee was sceptical about the reliability of the report. The factors that contributed to the underperformance had been plaguing the Department for years but the Committee was hopeful that the proposed strategies to address the problems would bear fruit.

Mr Horn requested more detail about the audit findings that related to contract and supply chain management issues as there appeared to be a disconnect between the AG report and the report of the Department. He proposed that a further briefing be scheduled to see whether the audit action plan had come to fruition. He sought clarity on the Contingent Liability matter as it was not included in this report although the Committee was able to get the information in this regard in prior year reports. The Department claimed that it was not able to determine the liability but according to the AG, it should be possible for the Department to do so. He found it unacceptable that the roll out of the number of Audio-Visual Remand (AVR) system was reported as zero. It was expected that amidst Covid, the target of 18 should have been exceeded. He was concerned about the vagueness of the strategy to deal with the backlog cases on the priority roll and asked for an explanation about the matter. In interactions with the Department and the Minister in July 2020, the Committee had been assured that action plan was being rolled out but in terms of this report, the drafting of the framework was still in progress. In the past, the Committee was offered feedback on progress regarding the legislative programme of the Department. He requested an update on the Lower Courts Bill, which was a key piece of the puzzle to complete the transformation of the court system but appeared to have dropped off the radar.

Dr W Newhoudt-Druchen (ANC) thanked the Department for the presentation. She appreciated that the DG was appointed during the lockdown period but remained concerned about the vacancy rate. The Committee was supposed to have received a number of reports by July 2021. She asked whether the 2019/20 BRR reports were still in progress. Access to justice for persons with disabilities was a concern as the report was silent on the 75 courts that were supposed to have been made accessible. She was approached by a person with hearing disabilities about the postponement of a case due to the unavailability of an interpreter. Although it was best practice to observe interpreters in court, DEAFSA staff had on occasion been told by a magistrate to leave the court. She pleaded with the Department to allow people doing sign language to access court proceedings. The Department made submissions for the condonement of R237 million. She asked how this decision was reached and whether the money from the non-VAT vendor was recovered. She wanted to know what protective measures the Department had implemented before and after the cyber-attach. According to the DG, the Department had a staff shortage. She questioned why unemployed skill staff were not being considered for employment. In 2019, a court burned down in Malmesbury but to date it had not been rebuilt. She wanted to know whether it formed part of the planned renovations. The Department of Correctional Services made use of consultants to successfully turnaround the department. She asked whether the DoJ&CD would consider using consultants to help with the turnaround strategy or whether the Department would be able to remedy the situation by itself.

Adv G Breytenbach (DA) said she was left with a feeling of disquiet about this report. It seemed that issues were glossed over with generalised comments which were not helpful. The type of language used in the report portrayed the problems as not being so bad but it was common knowledge that the Department was in serious trouble and things were not being fixed. The ICT attack was devastating which needed a mitigating plan. Information about the attack was available on social media. She wanted to know why the Department was dependent on contractors. The comments about the happening of the attack only being a matter of time showed the casual attitude by the DG, which was deeply concerning. She was informed that there was no maintenance contract in place for the CRT system and that the CCTV system was in the same position. If the CRT system were to break down, the whole system would stop functioning. The Department of Public Works could not be blamed for the state of the infrastructure was appalling and did which did not become dilapidated overnight. The Pretoria Magistrates Court, for example, burned down ten years ago. She requested more detail about the strategy to deal with the Masters Court issues and about the Master Classes. It was her view that EXCO members did not need Master Class interventions and questioned the claim that achievements could not be backed up with evidence.

The Chairperson indicated that the Deputy Minister would be leaving the meeting at 12:00 and advised him to respond to the questions.

The Deputy Minister replied that Members should carry on with the questions as the meeting, where he was due to make a speech virtually, was running late and he did not want his response to the questions to conflict with the speech.

The Chairperson proceeded and asked how many staff members the Department lose due to Covid. He observed that the Department spent 94,9% of the budget to achieve 66% of reduced targets. He questioned the reduction of target in terms of appointment of women and persons with disability. The 66% was an improvement on the 51% of the previous year but the AG report raised concerns about the reliability of information relating to Court Services. The performance agreements of 33 SMS members were not signed. He asked the DG to explain how he planned to do his performance review under these conditions and what was being done to ensure that agreements were signed. The Chairperson felt that it was unfair towards litigants to have to pay R4 per page to make copies of documents due to the State Attorney office in Cape Town not having a photo-copying machine. He questioned whether the Department was serious about modernisation and 4IR if it underspent on computer services. He was concerned about the audit finding that the Department paid in excess of prescribed Personal Protective Equipment (PPE) prices and that procurement quotations did not comply with local content requirement. He asked what was going to be done about the issue of poor security of court records and asked for an explanation about the more than R1 million that was paid for Gender Mainstreaming. He requested an update on the investigation into the R859 million contract awarded to a service provider that submitted fraudulent bid documents. Newly built courts had been experiencing problems, e.g. the bathrooms in the new Magistrates Court in Gqeberha were not working. He wanted to know whether the buildings were verified as being fit for purpose before handover by the DPW.

The Chairperson asked for responses from the Department.

Deputy Minister Jeffery indicated that he would give his input but the DG and the officials would respond to questions on the report to which himself and the Minister had oversight.

Deputy Minister Jeffery remarked that he had previously spoken about the reduction in backlogs at the end of the financial year. Backlogs decreased from 53% to 48,7% at Regional Courts and from 48% to 14,14% at District Courts. The reason for the reduction was due to the Court Optimisation Committee that was established and which involved all stakeholders including SAPS and the Social Services Forum. The idea was to identify problems that were causing the backlogs and to find solutions. But the Regional Courts complained that the process was interfering with judicial independence because the meetings were convened by the Deputy Minister and decided to stop attending the meetings. The initiative had been discontinued after interventions between the Deputy Minister and the Regional Courts had failed. The Regional Courts remained the key problem where backlogs were concerned as the NPA was referring too many to the Regional Courts instead of the District Courts.

According to the Deputy Minister, the Board of Sheriffs was a new board but the 2018/19 reports on the Debt Council had been submitted while the 2019/20 reports were being prepared and could be made available. The AVR system was outdated and could be replaced by modern equipment such as laptops or iPhones. The Magistrates Bill was ready for public consultation and the Lower Courts Bill was being finalised. The process had taken longer than expected and was influenced by Covid factors. The Deputy Minister proposed that the issue of sign language interpreters would be better managed if information was provided upfront so that it could be taken up with the court concerned.

The Chairperson had two further questions that he wished to raise. Firstly, he was informed that some officials were reluctant to participate in the Bid Committee process which to him was a symptom of bigger problems in the Department. Secondly, the bonus strategy seemed not to be linked to organisational performance. He questioned whether bonuses should be paid if the Department was not performing and requested a detailed response in terms of what the bonus payments were based on and which units of the Department paid bonuses to their officials.

Ms Thabita (Conny) Mametja, Deputy Director-General: Corporate Services, DoJ&CD, explained that based on a recent summary of resignations, employees left for better promotion opportunities elsewhere and for cashing in on pension funds. A number of employees resigned due to employee wellness issues caused by Covid-19 while others left before disciplinary processes could be completed. The Department was continuing with conducting exit interviews and was in the process of reviewing the staff retention policy. The foreign language interpreters were a necessary service in courts. The Covid-19 figures showed that 1779 employees were affected and 118 succumbed to the disease. The unsigned performance agreements could be attributed to various reasons, e.g. system downtime, two employees were under suspension and left before completion of disciplinary processes. For the period under review, five agreements were not signed and in total 25 agreements remained unsigned.

The Chairperson asked whether salary payments could not be suspended while disciplinary processes were being finalised.

Ms Mametja replied that she was not in a position to respond to the salary suspension question. The performance bonus percentage was reduced to a minimum compared to previous years. The problem which was identified by the DG: DoJ&CD, related to performance assessments for levels three to five being based on individual agreements with management and which was moderated by a committee while the performance for SMS members were linked to organisational performance. The policy would be reviewed.

A male official from the DoJ&CD said the biggest issue about rolling out the AVR system, was resourcing the system due to the shortage of hardware and officials working from home as a result of the lockdown. Even before the cyber-attack, the Department had comprehensive systems in place but many were in disarray due to licenses that were not in place. Fixing the infrastructure had been accelerated by the cyber-attack. In terms of the current operating model, technical work is being outsourced to industry partners due to not having a permanent structure. As part of the restructuring process, an interim structure had been approved. The Department was not aware of the social media postings about the cyber-attack but had since developed a plan to prevent and minimise the impact of an attack in collaboration with other departments. The official confirmed that there was currently no contract in place in respect of the PABX-system and that the CRT architecture was going to be replaced with mobile recorders. An interim plan was in place to kickstart an emergency process to replace the PABX maintenance contract, which ended early last year.

A male official from the DoJ&CD explained that not all of the R20 million expenditure related to indicators. Some of the indicators were personnel driven of which almost 93% of the budget was spent. The regression could be attributed to natural attrition and loss of lives due to Covid. The Department received additional funding in the previous year to fund the appointment of NPA prosecutors. Most of the NPA vacancies had been filled towards the latter part of the financial year which explained the R331 million underspending in Compensation of Employees. Goods and Services were a huge contributor of underspending with an increase from R41 million in the previous year to R375 million in the current financial year. This was partly as a result of underperformance of the integrated computer system. In addition, the expenditure in terms of psychiatric observations, which increased sharply, was not reflected in the indicators. There was an increase in fines in the previous financial year due to penalties that was imposed for breaking Covid regulations. The official explained that the procurement process was risky because of the associated personal accountability, which accounts for the reluctance of officials to participate. The DG had since made it compulsory for all senior managers to participate. The non-compliance with local content was an oversight which occurred mostly in the regions. A circular on this matter had since been distributed to all regions. A forensic audit report was expected on the issue of quotations above National Treasury requirements. The condonement was referred to National Treasury. Labour Relations was finding it difficult to hold the officials who committed this irregular expenditure to account as they had since resigned. The Department was doing its best to comply with the audit qualification relating to incompleteness but was facing a blind-spot in terms of the overstatement of balances. Debt of over R1,6 billion was owed to the Department by client departments, e.g. Department of Health, SAPS, Department of Basic Education. Collections have improved since the creation of Debt Management Committees in the previous financial year. The official stated that he was not able to comment on the issue of the non-VAT vendor as the matter had been referred to the State Attorney. The Committee would be provided with an update when information is made available.

A female official from the DoJ&CD said the investigation into the R800 million irregular expenditure, which related to fraudulent certificates used by service providers, was at an advanced stage. The Department of Labour confirmed that the certificates were not issued by them and that some of the service providers reported the matter to the HAWKS as they were also unaware of the certificates that were issued in their names. The security at the vaults had been strengthened, i.e. cameras were installed inside and outside the vaults, the locks were changed and a security guard was appointed. There was uncertainty about the impact of the malware on the documents that were stored on the shared drive. A Deputy Director-General was appointed to secure Contract Management and to ensure continued interface between the Bid Office and the Contract Office. Measurements were introduced to minimise instances of contracts that went beyond their life cycles and without a new service provider being appointed.

A male official from the DoJ&CD commented on the issue of the Council of Debt Collectors and the Board of Sheriffs. These entities related to civil justice systems and were under no obligation to submit annual reports to the Committee. A process was under way to harmonise the forfeiture orders issued by the SIU and to allow the Special Tribunal to minimise delays. He stated that Cabinet was responsible for the allocation of CARA funds with the focus on two specific areas, i.e. interventions to combat crime and to support organisations that support victims of crime. In this regard, R50 million was allocated to the Thuthuzela Care Centres (TCC) and another R50 million to the SSA to deal with cyber-crimes, which had not yet been claimed by the SSA. The allocation of the money was strictly based on the presentation of detailed plans. The clean audit on this matter was due to the strict governance system in place. The framework for resolving the case backlogs was a medium to long-term strategy. Short-term measures were implemented to keep the courts operating during the hard lockdown period. Finalisation of the framework was dependent on consultation with various stakeholders including the NPA, SAPS and the judiciary. At this stage, only matters of urgency were being attended to while outstanding matters would be dealt with in 2022. The Minister would be presenting the Court Administration Model to Parliament while the process of engagement about the model was ongoing. The Committee was assured that extensive research on the model was being harnessed by the Task Team, appointed by the DG. During the lock down period, foreign language interpreters were not able to travel between provinces. A language database had subsequently been created and a booking system was developed that allowed for interpreters to be booked ahead of time. Payments to interpreters were no longer based on the level but at a fixed rate of R935 per hour. The funds to restore burnt courts could only be recouped through Vote Allocation as the Department did not have the money. The policy in terms of insurance on government buildings needed to be revised. To improve the speed of building maintenance, the Court Manager could consult the service provider database for a quotation.

Adv Praise Kambula, Chief Director: Promotion of the Rights of Vulnerable Groups, DoJ&CD, said the 100 days Rapid Result Initiative was introduced in response to one of the indicators of the National Strategic GBV plan. The purpose of the initiative, which was piloted in ten courts, was to improve the turnaround time in terms of issuing protection orders. A success rate of 98.9% was achieved. She explained that sign language had not yet been recognised as a universal language as there was no common understanding of the dialects and court users were not able to understand it. It was the policy of the Department to increase accessibility to courts, hence a process of minimum standards was being implemented in compliance to the National Framework.

The Chairperson requested a response to his earlier questions regarding the payment of R1 million for Gender Mainstreaming and the finalisation of Magistrates Courts tender documents.

A male official from the DoJ&CD, in response to the mandamus applications, said the lapse around the issue of appointment letters needed to be investigated. For every record on the database, the Department kept a record and pass a record on, together with an instruction, to the relevant unit. Part of the challenge regarding this matter was that staff worked on a rotational basis during the hard lockdown period. The backlog cases were attributed to Covid-19, resource constraints and loadshedding. The Department embarked on working extra time from 8 November 2021 and implemented a two to six week plan to address the backlog.

Mr Fhedzisani Pandelani, Solicitor-General, DoJ&CD, said the Committee indicated in the previous sitting that it would want to hear from all stakeholders regarding the SIU investigation.

The Chairperson replied that the Committee had background information on the matter and agreed to meet twice a year with the NPA, SAPS and the HAWKS.

In response to the copying facilities in the State Attorney office in the Western Cape, the Solicitor-General, DoJ&CD, said he became aware that the State Attorney office in Pretoria was in a similar position. He relied on Transversal Services in this regard and indicated that the CFO or DG should comment on the matter.

The CFO, DoJ&CD, replied that he only learnt about the challenges the previous day. The Department did not have a Transversal contract for photo-copying machines and the three-quotation route would have to be followed. He assured the Committee that he would personally investigate the matter.

The Chairperson asked whether the CFO’s response was fair to people who relied on services from the Department. According to the Chairperson, the submission was signed in January 2021.

The CFO replied that it might not be fair but his response was limited as he only received the information the previous day. He was not sure whether the service provider did not have the capacity but he needed all the facts to deal with the matter.

A male official from the DoJ&CD, remarked that reconciliations formed part of the interventions to address the audit finding about the unreliability of information. The data was being validated by reconciling it to source documents. The audit action plan was a standing item in EXCO meetings and the implementation thereof was led by Internal Audit.

Adv Mashabane commented that in terms of the bonus strategy, a reduction in the bonus percentage was recommended and a no bonus policy, for senior management of departments who did not perform, was applicable. In addressing the issue of Master Classes, he explained that it was based on his determination of a skills shortage. The Justice College was not an expensive exercise. The Change Management course was offered by the University of Pretoria without charge. The Project Management course was to assist in addressing the low performance. The reason for the skills audit was to assess capabilities. In response to the PPE corruption matter, the DG said officials left on early retirement. The experience after the ransomware attack highlighted the risks associated with ICT. Cyber-governance was a challenge not only for the Justice Cluster but a broader government challenge. Only a few state agencies were able to provide assistance. The Department would engage with Correctional Services about the issue of making use of consultants to implement a turnaround strategy. The DG was not familiar with the Gender Mainstreaming issue and promised to investigate the matter.

Mr Dyantyi thanked the officials for the responses. He was however concerned that none of the officials knew about the R1 million that was spent on Gender Mainstreaming as the information was recorded in the Annual Report.

Ms Maseko-Jele asked whether it was not possible to submit cases to the SIU in situations where officials resigned before they could be disciplined or investigated. She wanted to know if pensions could not be withheld to settle the matters.

The DG said it was becoming a tendency for people involved in crime to resign but the Department will continue to investigate the options for recouping monies while investigations were ongoing.

The Chairperson replied that it was not new for people who faced disciplinary hearings to resign. He proposed that criminal charges be laid against officials who were involved in criminal activities.

The DG said the Department had been disadvantaged as officials involved in PPE fraud left before the investigation could be completed.

Concluding Remarks

The Chairperson asked the Deputy Minister to make his concluding remarks.

The Deputy Minister said it was an exhausting session and he had nothing further to say at this point.

The Chairperson stated the declining performance of the Department over the five year period, i.e. 85% in 2016-17, followed by 74%, 73%, 51% in subsequent years and 66% in the current year. This decline in the level of performance was of concern to the Committee. He noted that the Department responded in detail to findings in the AG report and said the Committee was expecting the same level of response in terms of what, where and by whom. The Department should then be able to achieve clean audits, which was a minimum standard for government spending. He proposed that quarterly meetings be scheduled to track the progress on outstanding issues. A quarterly progress report would ensure a common programme to monitor issues and achieve better performance.

The Committee concluded its engagement with the Department.

The Chairperson welcomed officials of the NPA who had been on the platform since the previous session with the DoJ&CD. He invited the National Director of Public Prosecutions (NDPP), Adv Shamila Batohi, to proceed with her opening remarks.

Adv Batohi stated that she was joined by the NPA team. The intention was not to go through each slide of the lengthy presentation but in the interest of transparency and time, the focus would be on strategic high-level interventions to respond to the challenges facing the NPA. She felt confident that there was a light at the end of the tunnel but the NPA was still facing a lot of hurdles. In terms of the structure of the presentation, Adv Batohi indicated that she would cover the introduction and overview, and the remaining sections would be dealt with by designated members of the team.  

Presentation by the National Prosecuting Authority

Introduction and Overview
Adv Batohi stated that the NPA remained committed to improve on the ability to deliver justice to the people of South Africa. In this regard, building an Independent, Professional, Accountable and Credible (IPAC) NPA was one of the most important initiatives to address the declining performance. Efforts to bring the corrupt to justice had been patchy and slow but progress had been made. Covid-19 impacted negatively on the achievement of targets but the NPA continued to deliver uninterrupted services.

The independence of the NPA was a priority. An affidavit, making a solid case for NPA independence, had been submitted to the Zondo Commission. Discussions with the Minister of Justice were underway to establish a working group to ensure that all role players were on the same page about the independence of the NPA.

The Community Prosecution Initiative (CPI) was a proactive initiative. The NPA was aware that crime was off the charts and the Prosecution Prioritisation Policy initiative would assist in prioritising those who, for example, did housebreaking as a career. The prevalence of housebreaking was on the rise and was reported as the crime that citizens feared the most.

The NPA accepted that achieving seven of the fourteen indicators was not good but the impact of Covid-19 on productivity should not be underestimated. The NPA was particularly affected by Covid-19 and lost a number of colleagues due to Covid. The reorganisation and expansion of skills would bring improve on the quality of prosecting. The shortage of skills was still a very serious challenge also in SAPS and the ID.

Serious violent and organised crime
Adv Rodney de Kock, DNDPP: National Prosecutions Service, reported a high conviction rate of 96,1% in organised crime cases during the year under review. Gender based violence (GBV) cases which had been identified from court rolls, were prioritised and resulted in a 94% conviction rate in femicide cases. The police was facing a huge challenge in terms of the forensic laboratories but the NPA was coordinating with SAPS to prevent cases from being struck off the court roll.

Capacitating the National Prosecuting Authority
Adv Anton du Plessis, DNDPP: Strategy, Operations and Compliance, reported a 10% increase in capacity. To deal with the growing complex nature of crime, the NPA was focusing on skills development through various initiatives, e.g. unplanned training programmes, mentorship programmes and upgrading of the Justice College by introducing a School of Prosecution to professionalise the training of prosecutors. Strategies were in place to deal with the LP10 matter, pending the outcome of the court decision.

Enhancing staff morale and well-being
According to Adv Nomvula Mokhatla, the initiatives to improve support services to all staff was a huge success. The issue of the Eastern Cape prosecutors remained unresolved despite the various attempts by NPA EXCO to amicably resolve matters. Adv Batohi resolved to submit a report on the issue to the Committee.

Truth and Reconciliation Commission (TRC)
Adv de Kock said TRC cases remained a serious concern and should be handled in a project management approach. Archived records were a major constraint. Dedicated prosecutors were appointed to improve on the performance on these cases.

Financial Action Task Force (FATF)
According to Adv de Kock, the release of the FATF report created a great deal of negative publicity. The NPA was working closely with the FIC to address FATF recommendations.

Asset Forfeiture Unit (AFU)
Adv Ouma Rabaji-Rasethaba, DNDPP: AFU, said the NPA worked with colleagues at the Fusion Centre and partnered with the FIC to seize crime proceeds. The focus was on training of staff and strengthening of partnerships to augment the capacity of the AFU.

Investigative Directorate (ID)
Adv Hermione Cronje, Investigating Director, stated that the ID was a small unit which had been capacitated through secondments. Insecure appointment contracts resulted in staff losses. It was initially expected to be a short-term initiative but the need for a permanent structure became evident. The extensions granted to the State Capture Commission impacted on the plans that the ID had in place. The digital capabilities of the State Capture Commission would be relocated to the ID as soon as the work of the Commission was completed. The recruitment of staff from the Commission made a big difference. Additional funding was needed to upskill staff, especially in respect of data intensive cases. The ID was looking forward to policy and legislative changes dealing with non-trial resolutions. The absence of legislation was restrictive. The one significant achievement during the period under review, was finally being able to move into an office building. Adv Cronje was hopeful that the ID would achieve more successes in the next half of the financial year.

Budgeting
Ms Morakile stated that the NPA would not be able to effectively serve the country if it was not sufficiently funded. The NPA submitted a needs request of R363,4 million to National Treasury to cover the growing workload necessitated by the Zondo Commission. The assistance of the Committee was requested for the release of the allocated CARA funds to augment the insufficient witness protection budget. The NPA implored the Committee to assist in ensuring that proposed budget cuts were not implemented.

Conclusion
Adv Batohi said the NPA set high level measures in terms of outcomes because it was aware that people felt unsafe. A lot of good work had been done but there was still a long way to go. The FATF report was a serious indictment of the past ten years. The complex nature of crime, particularly cyber-crime must be a national priority. She urged that the request for additional funding was not rejected and that support for SAPS be escalated.

Adv Batohi said the NPA remained committed to doing anything in its mandate to secure the safety of people and to bring justice to victims of crime. 

(See Presentation) 

Discussion

Mr Dyantyi thanked the NPA team for the good presentation of the Annual Report and future plans. He sought clarity from Adv Batohi on a comment that she made in SCOPA, in terms of expressing serious reservations about the extent of detail that the NPA was requested to provide. He asked whether the NPA regarded the oversight role of the Committees as a challenge that could obstruct the organisation in achieving results. He sensed from the report that the results could have been better for the period under review. But he did have a good feeling about future plans that were being put in place. The Committee was opposing any reduction of the NPA and would assist on the issue of funding. The Financial Action Task Force (FAFT) matter was a serious issue because the report demonstrated that so much had been overlooked in the past. The Office of Witness Protection (OWP) had been occupying headlines as it was dealing with serious issues, including the unfortunate loss of life. This was not just a NPA fight but other role players also needed to play their part. There was no reason why OWP could not be assisted through the CARA fund. The retraction of the Red Notice that was issued for the Guptas appeared to be more than a glitch. He invited the NPA to speak the Committee about the issue.

Adv Breytenbach shared the views of Mr Dyanti on having mixed feelings about this report. The lack of achievement was disappointing but the future plans looked promising and implementable although it came a bit late in the day. She was not disregarding the difficulties of the job but the difficulties should not be an excuse for the level of non-performance. The report stated that conviction rates remained high but this statement was meaningless if it was not placed into context. The Committee wanted to know how many cases came into the system, how many withdrawn or acquitted cases were reported and how many cases were dealt with through other means. In terms of the Alternative Dispute Resolution process, she requested more detail about the applicable criteria, conviction rate, who was conducting the mediation efforts and what level of quality control and reporting was being done. More detail about the CARA fund was requested, i.e. what was the fund used for, who was making decisions about the allocation of funds and who was managing the money in the fund. The LP10 matter was a sensitive issue which she would continue to raise until it was resolved.

The Chairperson asked Adv Breytenbach to provide some background for the benefit of people who were not familiar with the issue.

Adv Breytenbach explained that for historical reasons, a Senior Deputy Director who had been in this position for, e.g. ten years, was earning significantly less than people reporting to him. Senior management who found themselves in this untenable position, were unhappy about the lack of progress. The problem involved large sums of money and was not easy to solve. She wanted to know what strategies were in place to deal with the matter. She was pleased that the NPA was dealing with the FATF report but wanted the recommendations to be implemented as the Financial Intelligence Centre (FIC) was producing reports that law enforcement fail to implement. She enquired about the level of interaction with the management of SAPS to address the lack of detective skills in SAPS and commented that the skills of a prosecutor are learnt in court. She questioned the rollout of SCCCs in all provinces and asked where the expertise was coming from and if there were complex commercial crimes in some of the provinces to keep the prosecutors occupied. She was surprised to hear the ID needed money considering the previous comments by the ID Head on this matter. She was interested in the progress on the SSA case involving Mr Frazer and asked why no one had been held accountable. She asked whether the procurement of the digital capacity from the Zondo Commission would be done on a permanent or contract and consultant basis. She was concerned about the skills deficit in the NPA as the skilled people were retiring and losing their skills appeared to be a huge waste. She was aware of at least ten prosecutors who retired. She wanted to know whether there was a plan to retain skills or to use retirees as mentors at the Justice College. She sought clarity on the matter of resolving SOE corruption cases without a trial.

Dr Newhoudt-Druchen thanked the NPA for the presentation. She acknowledged that Covid-19 was quite bad and was sorry to learn about the colleagues that lost their lives. She wanted to know what percentage of staff had been vaccinated and asked for clarification of the AFU indicators on slide eight in the presentation as the wording was confusing. She sought clarity on whether the six CARA-funded TCC sites which were scheduled for completion in March 2022 included the three sites that were not completed in the previous financial year. She wanted to know how many positions the 25% vacancy rate equated to as it seemed to be quite a high percentage. She asked what the NPA was doing about the whistle-blowers situation and whether the person who was shot and the one who left the country had been under protection.

Ms Maseko-Jele emphasised the concern about the protection of whistle-blowers, particularly those that appeared at the Zondo Commission. She wanted to know when the Committee would be receiving a progress report on the TRC cases or on cases of the perpetrators of apartheid. She was concerned about the stability of the ID and asked for an explanation on this matter.

The Chairperson requested an update on the Steinhoff matter and asked whether the NPA would be appealing the sexual offence case of the State v Loyiso Coko. Referring to the issue of the July violence, he asked whether the NPA felt pressured by some of the colleagues in the Justice Cluster when they prematurely made statements about the number of perpetrators involved. He was interested in the number of cases that resulted in private prosecutions and ended in convictions. He was concerned about the targets for the recovery of crime proceeds. Comparing the amounts in the report to the high sums of money reported in the media, was like chalk and cheese. He wanted to understand the circumstances for the abuse of state vehicle which had been reported as a fruitless and wasteful expense. He was concerned about the performance of the District Courts and agreed with Adv Breytenbach on the issue of the conviction rate being meaningless if the full picture was not presented.

The Chairperson asked for responses from the NPA.

Adv de Kock explained that informal mediation had always been part of the justice system and the NPA had a policy framework in place for the process. It was an alternative way to finalise matters of historical backlogs. The NPA would return to the Committee to discuss whether the project should be formalised. In terms of the policy framework, the mediator could be a prosecutor, i.e. a senior prosecutor in most cases, assisted by a social worker. Informal mediation was only considered for less serious offences and serious cases involving rape and murder charges were excluded.

Adv de Kock said matters of CARA funding were being managed through the Department of Justice. The FIC raised the issue of Law Enforcement not acting on investigations in the FATF report, as an area of concern. The NPA was working in close collaboration with the DPCI and SCCCs to investigate FATF findings as the issues were inter-related. All whistle-blowers qualify for witness protection and the NPA engaged with all people who were under threat. No deaths of people in witness protection had been reported. The rationale for the SCCCs in the different provinces was the need to have a uniform approach, i.e. to ensure that the same level of service was available throughout the country. The central point model did not work. The best approach was to have prosecutors closer to the area of the investigations. The challenge was to support the prosecutors and to give them exposure. The prosecutors were all competent but needed additional training which they would get by working with the police. Of the 259 prosecutors appointed at SCCCs, 169 had experience of more than ten years.  

Adv Bonnie Currie-Gamwo, Special Director: SOCA, NPA, confirmed that the three additional TCC sites, i.e. in Paarl, Cradock and Kgapane Hospital in Limpopo were included in the target for this financial period. Services were already being rendered at the Paarl and Cradock sites. The services were offered for victims that were referred to the centres by the police. Case managers had been appointed in Paarl and the Kgapane Hospital. Although the centres were not yet fully functional, services were being delivered where it was possible. The NPA embarked on a mission to identify new sites. Donor funding was being considered for the development of the sites as the NPA did not want to only rely on CARA funds. In Mitchells Plain, the NPA approached the Networking HIV, AIDS Community of South Africa (NACOSA) about managing the building for which they had received the funds to build the structure. The NPA also engaged other stakeholders who were active in the area, including the Departments of Health, Social Development, SAPS and NGOs.

Adv de Kock said the Steinhoff matter had been receiving a lot of attention and was under the direct supervision of the Gauteng High Court. Experts were involved in evaluating the reports and engagement with other countries was ongoing. An international expert had been assigned to be part of the team. Referring to the matter of conviction rates, Adv de Kock explained that the fundamental approach was to take responsibility only for what is within the mandate of the NPA. The focus was on cases that were causing the greatest harm to society and only cases that had been enrolled were being counted. Cooperation from communities and a better product from the police would improve the quality of the work of the investigators but that was not the case at this stage.

The Chairperson said the issue should be based on an integrated justice system.

Adv de Kock agreed and said building blocks were being put in place.

Adv Batohi said the integrated system was critical for delivering justice and the NPA needed to ensure that progress was stepped up.

Adv Rabaji-Rasethaba clarified the AFU indicators which was questioned by Dr Newhoudt-Druchen. The 75% below the target meant that only 25% of the target was achieved. This was specific to freezing orders on corruption cases. The target had since been revised to above 45%. The CARA fund, which was audited by National Treasury, was only for the purpose of fighting crime. She proposed that a full report be written on this matter and that it would be made available to the Committee.

Adv Batohi said it was not unusual for an entity such as the ID to face challenges in getting a strategy and structure in place. The two and a half years had been extremely challenging but the ID had finally been able to move into its own offices.

Adv Cronje conceded that the NPA made a mistake with the issue of the Red Notice. The Interpol system allowed affected parties to challenge a Red Notice and the review process was currently in progress. The extradition from the United Arab Emirates was on hold pending the outcome of the Interpol review. The NPA was following up weekly with Interpol.

Adv Cronje explained that many of the problems of the ID were not strictly budget related. She agreed with Adv Breytenbach that a skilled prosecutor comes into existence through court exposure. She acknowledged that experienced prosecutors were retiring and confirmed that contracts had been signed with at least four people who retired that was mentioned by Adv Breytenbach and requested her to provide the names of the remaining retired prosecutors. The challenge was that very few prosecutors in South Africa had exposure to complex commercial crimes and this was where a lot of her efforts were focussed on. The digital forensic skill from the Zondo Commission would initially be procured on a contract basis as the positions did not exist in the current structure to allow. A position for a Digital Forensic Specialist with specialised skills in new technology would be included in the structure. A request had been made for an additional budget to appoint 20 prosecutors in what is termed an enhanced prosecutors programme with specialists skills to be matched with senior council. Non-trial resolution could make a significant difference in the recovery of crime proceeds. It was an effective mechanism in the resolution between ABB, a company based in Switzerland with offices in New York, and ESKOM officials involved in bribery. The SSA investigation had been authorised a year ago but there had been huge challenges. The ID had been able to make progress with the appointment of the presidential Task Team for serious commercial crime.

Adv du Plessis said the LP10 matter was awaiting judgement and sought permission from the Committee to provide a written response on this matter. The vacancy rate of 25% equated to 1 527 positions, including 827 new prosecutors positions. The fruitless and wasteful expenditure was a new case and although it involved a small amount of R5 000, it was being treated as a serious matter. With permission from the Committee, he would also provide a written response about the Skills Development Strategy that had been adopted by MANCO and EXCO, as well as on the vaccination statistics.

The Chairperson agreed that written responses were in order. No objections were raised by Members.

Adv de Kock explained that TRC matters were receiving urgent priority and the NDPP made recommendations in terms of the delay in finalising these cases. He was aware of only one case of successful private prosecution of two to four years ago but would confirm with all DPPs about other cases. He said the NPA was not happy about the performance of the Fusion Centres and a lot more could be done in terms of the approach to corruption. Of the 233 incidents registered, 185 were under investigation and 48 had been closed. Of the 191 registered cases, 110 were under investigation, 51 were closed and 30 cases were in court. 

Adv Batohi stated that a detailed response about PPE corruption at SOEs would be given in writing. Regarding the SCOPA comment, she explained the context in which a lot of detail was requested and which felt uncomfortable. The NPA needed to strike a balance between what can be shared and the accountability to Parliament without compromising any of the investigations. The FATF report highlighted weaknesses in the system but there was a Task Team and Action Plan in place that allowed for the period of a year to implement interventions to meet the requirement. A report on how the issues raised in the FATF report were going to be resolved, would be sent to the Committee. The issues were hugely important and reflected poorly on the reputation of our country. She agreed that the issue of professional money launderers had been a serious gap in prosecutions. There had been a number of convictions in terms of the stand-alone money launderers but there are always predicate defences. The NPA would be focussing on the role of banks and insurance companies and sometimes even lawyers in corruption and money laundering. She raised it as an important issue that the NPA should really pay attention to but recognised these were complex investigations. The issue of building networks was important to effectively deal with corruption. Colleagues in the AFU, ID, SCCCs had regular engagements with a range of partners both locally and internationally to ensure better collaboration. She said the informal collaboration drives formal collaboration and it was important to have networks in place.

Adv Batohi commented on the issues of witness protection and whistle-blower protection. The NPA was challenged in terms of what it could do at the present time because there was no legal framework in place for whistle-blower protection. The Witness Protection Act locates the protection of witnesses in the office of the Department of Justice but the location of the capacity and capability was unclear. Although it was currently in the NPA, in terms of the act, it should be in the Department of Justice. The DG requested a meeting to decide about the proper location of the programme. If in the NPA, the legislation must be changed but if in the Department of Justice, the programme must be moved from the NPA. The programme was being managed well within the NPA and no witnesses had been killed while in protection of the NPA. The whistle-blower issue was hugely important but the whistle-blowers who appeared at the Zondo Commission did not fall with the mandate of the NPA. Recognising the need for intermediate intervention, the NPA was engaging with the Department of Justice to deal with this matter. Many parties, including government departments and businesses, needed to come together urgently while the legal framework was being considered.
 
Adv Batohi said the July violence was one of the biggest attacks on our democracy. As law enforcement, the cluster should not demonstrate that it was unable to hold those people responsible to account. There was no guarantee that it would not happen again. Although the NPA was not investigating the matter, it had been collaborating with SAPS and working closely with the DPCI to bring to book those most responsible for the violence. She recognised that the DPCI had challenges but General Lebeya, the National DPCI Head, was doing his best to address the capacity and capability challenges. Adv Batohi proposed that Command Centres be set up to deal with this matter which required important skills. With permission of the Committee, she would respond in writing on the performance of the Regional Courts.

Finally, Adv Batohi commented on an issue of the amendment of the SIU Act in terms of asset recovery which had been raised in the earlier session with the Department of Justice. She wanted to inform the Committee that the powers of the AFU versus that of the SIU was a very important issue and it should be dealt with carefully. The NPA was aware of the existence of a Draft Act and was trying to engage with the Department of Justice. It was important to ensure that consultation processes happen so that all role players could do what was best for the country. 

Concluding Remarks

The Chairperson, after confirming with Members that all questions were answered, thanked the NPA for spending their time with the Committee. He reiterated that the NPA could count on the support of the Committee. The criminal justice system had been underfunded over a long period of time and that had come to bite us. The NPA, Intelligence Services, SAPS and Defence entities should all be properly capacitated to not be caught off guard, should a terrorist attack take place. It was important that the NPA was given adequate resources to deal with complex commercial crimes. He said the presidential Task Force was jittery about the close link between money laundering and terrorism. The Committee would continue to raise the issue of resources and was in support of the NPA regarding retention of resources. The Chairperson wanted to know whether it benefitted the NPA that a number of advocates closed shop during Covid.

The Chairperson thanked the NPA for the fruitful engagement. The Committee acknowledged that legal processes required more than mere quick fix solutions but the Committee had a sense of discomfort about the issue of the TRC cases as it was becoming more difficult to prosecute. The matter would be raised in the reports of the Committee. A cluster approach was needed on the issue of funding as the NPA would not succeed without SAPS also being properly funded.

The Chairperson again thanked the NPA for their company and also thanked Members for their diligence.

The meeting was adjourned.

 

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