National Prosecuting Authority on cases referred by SIU

Meeting report

The Acting Chairperson said the Committee would be briefed by the National Prosecuting Authority (NPA) on matters that were related to finalised investigations by the Special Investigating Unit (SIU). The Committee wanted to see how far the NPA had gone with the finalised reported instances which related to cases that had been gazetted for the SIU's investigation.

NPA on cases referred to it by the SIU

Adv Shamila Bathohi, National Director of Public Prosecutions, made introductory remarks and introduced the team from the NPA. She apologised that the NPA had sent through the presentation late. The NPA had had a three-day strategic planning and implementation session last week. She commented that the work of the SIU was one small aspect of the corruption work that the NPA was dealing with. The briefing to SCOPA was appreciated -- it was an important parliamentary oversight role that the Committee played. The top priority of the NPA for the next six months would be to focus on corruption. She hoped that Members would have noticed that the wheels of justice were beginning to turn concerning corruption. The NPA was starting to move slightly more quickly. There had been a couple of notable arrests and processes initiated in recent weeks concerning public and private sector corruption.

She had been in office since the beginning of February 2019, and it had been an extremely challenging three years. The NPA had hoped that it would have been a little more down the line in terms of the cases and bringing the cases to court. It was clear that even though the NPA was not where it wanted to be, it was far from where it had started. There was a lot of work that had gone into the past three years, and there was still a lot of work to happen.

She referred to the primary challenges of resources and capacity. The NPA now had a full leadership team at the helm. This was a leadership team that was strongly committed to the rule of law, to accountability and to ensure that the NPA held people accountable for all of the different crime types that it had to deal with. The NPA was a lead player in the national effort to deal with all of these damaging crimes. It worked within the broader law enforcement and criminal justice system. It was as strong as its weakest link. The NPA was not as strong as it wanted to be, but it was getting there.

There needed to be a holistic approach to reform and the improvements that were needed in the broader criminal justice system. There needed to be better coordination. There had to be more effective alignment of performance indicators and various processes. All of the role-players needed to act with a joint sense of urgency. The rule of law in South Africa was on life support at the moment, and it had to be addressed now. To do this in the criminal justice system, all of the relevant role-players had to draw on each other’s strengths. The legal mandates of all the role-players in the criminal justice system, which were very different in terms of roles but complementary, needed to be respected. Whilst internal competition could be healthy, it needed to be assured that all the role-players were pulling in the same direction to make accountability the norm and not the exception.

Adv Bathohi said she engaged regularly with her counterparts on these efforts, including the SIU, through various forums. Three weeks ago there had been a principals meeting with the heads of the SIU, the Financial Intelligence Centre, the Directorate for Priority Crime Investigation (DPCI), the South African Revenue Service (SARS) and the NPA, as the key law enforcement principals in terms of dealing with accountability. The purpose of the meeting had been to try and enhance collaboration among law enforcement stakeholders. It was important for law enforcement stakeholders to work together. The public needed to understand the various roles. A false narrative in the media that pitted the different law enforcement agencies against each other should not be allowed. The unique contributions made by each agency needed to be highlighted in this important fight.

She referred to the SIU referrals in particular. The NPA and SIU were governed by different Acts and operated under very different legal regimes and mandates. The SIU was governed by the SIU Act and was mandated to investigate maladministration in state institutions and municipalities. Its mandate was to provide investigations primarily for civil recovery. The police and the NPA were mandated to conduct criminal prosecutions. There was a big difference between investigations that were civil and investigations that were criminal. It was an important difference to understand. The burden of proof in civil investigations was on a balance of probabilities. However, the burden of proof on the NPA, in criminal investigations, was beyond a reasonable doubt. This was a much higher standard of proof.

In terms of the SIU Act, it was required to refer matters to the NPA. That was a piece of legislation that possibly needed to change. The NPA did not do criminal investigations. However, with the recent proclamation of the Investigating Directorate (ID), there were some matters that the SIU had been seized with that the ID was dealing with, where it did have the mandate to investigate criminally. Most of the matters that were referred to the NPA created the impression that they were ready for prosecution, and that the NPA had to decide to prosecute. That was not the case. The work of the SIU was very important. The NPA forwarded these matters to the DPCI to investigate.

In the meetings held to enhance collaboration, it was discussed that the SIU was also forwarding matters to the DPCI to expedite matters. The NPA felt that legislative changes were required to address this so that referrals to the NPA were not necessary, but referrals to investigative agencies became the norm -- which could be the ID and the DPCI. Investigations done by the SIU had certain powers to do civil recovery processes. Several cases that had asset recovery potential were actually dealt with in the SIU before they came to the NPA. That was why there was a very low figure for asset recovery concerning SIU matters in the NPA. This was because the matters were being dealt with in the SIU, and had to be looked at holistically.

She discussed the recent developments at the NPA and the establishment of the ID. A number of resources would be migrating to the ID, which would boost its capacity to deal with these cases more effectively. The second phase of the ID was an exciting one, and hopefully, this would be demonstrated through cases that would be coming to court. There were challenges with the current legal framework and a lack of specialised resources. The NPA was looking at being more innovative in how it brought resources on board. It was even looking at engaging the private sector, working through National Treasury and putting in place the required safeguards to ensure that the objectivity and independence of the NPA were not compromised in any way. The NPA was also looking into setting up a donor oversight mechanism to ensure that there was proper oversight concerning any donations that the NPA may receive. She highlighted the support that law enforcement needed while also protecting its independence and objectivity.

The presentation detailed the NPA’s progress on SIU referrals. This included the progress made by the Specialised Commercial Crime Unit (SCCU), the Asset Forfeiture Unit (AFU) and the Investigating Directorate (ID).

 

Progress on referrals

There were currently 1 098 referrals under investigation by the DPCI. Of these, 253 were declined to prosecute, 41 were on court rolls, there were 41 guilty pleas, 23 other accused were in court, eight warrants of arrest had been authorised, and two matters were with the NPA for decision. The bulk of the matters was still under investigation.

SCCU Court rolls

The total outstanding roll at the end of December 2021 was 1 667. There were also 821 corruption cases.

Fusion Centre cases

As of 3 February 2022, 51 cases in court were related to 104 accused persons. Multiple accused were involved in these offences, which were not only related to corruption. Some involved Unemployment Insurance Fund (UIF)-related offences, and other less serious offences.

SCCU constraints

• Cases often had to be closed without prosecution as witnesses or evidence were no longer available due to long time lapses.
• Referrals of individuals connected to one matter were misleading and difficult to follow up.
• The SIU referral process of matters based on suspects, rather than cases involving the finding of criminality, created a misalignment in respect of the cases generated.
• Prosecutors and DPCI investigators dealt with facts contained in the case dockets, and persons or identities identified in SIU referrals did not always emerge as suspects in the criminal investigations

Concluding SCCU remarks

The NPA provided updates to the SIU in 2018, and thereafter regions were required to jointly report with their SIU counterparts in terms of the memorandum of understanding (MOU). As indicated, due to additional staff at the national office of the SCCU, the data was still being cleaned, purified and properly analysed to establish where the gaps in reporting were, given the obligations on both parties in terms of the MOU. Coordination with other stakeholders -- the SIU and the DPCI -- was ongoing. Managers were taking responsibility for ensuring the processes, progress and records were monitored, interrogated and analysed.

Asset Forfeiture Unit

There had been 48 confiscations/forfeitures to the value of R1.7 billion, and 70 preservations to the value of R4.1 billion. The value of recoveries was R1.7 billion. Many referrals had no or little AFU potential, due to the SIU proceeding with civil recovery. Referrals required substantial additional criminal investigation when received from the SIU. The SIU was included as a key stakeholder in a number of the anti-corruption structures, such as the Anti-Corruption Task Team (ACTT), the Fusion Centre and the priority case review process.

Investigating Directorate's powers and functions

The powers and functions of the ID were set out in Chapter 5 of the NPA Act. They include the powers to:

• subpoena witnesses to furnish documents or to answer questions;
• apply for and execute search and seizure warrants;
• compel witnesses to answer questions under oath, including self-incriminating questions, subject to a use immunity;
• prosecute cases after consultation with the relevant Director of Public Prosecutions (DPP), and bring asset forfeiture applications.

Institutional impediments

The ID was dependent on personnel on secondments from law enforcement partners, the NPA Act and temporary contractors. The NPA Act does not make provision for the appointment of investigators in the NPA permanently.

There were dire skills shortages in the public sector, with constraints on employing skills outside of the NPA. The recruitment of financial investigators and critical litigation skills at sustainable remuneration rates remained a challenge.

The ID had obtained a deviation to recruit skills and capacity from the commissions, but plans to transition the State Capture Commission resources and capability to the ID had been delayed by the Commission's extension, with significant impact on the ID's work. Slow procurement processes within the state were a further delaying factor.

Digital and commercial investigative capabilities were critical in cases where terabytes of data had to be analysed and processed.

 

Discussion

The Acting Chairperson noted the scope of the presentation which had sought to cover a number of areas, which had been very necessary for the Committee to comprehend. The Committee’s basic interest had been on what the NPA had been doing about the SIU referrals. The presentation had dealt with matters that related to the SIU Act and the inhibiting factors.

The Head of the SIU, Adv Andy Mothibi, was present in the meeting. He asked Adv Mothibi to comment on the report that had been presented by the NPA. Thereafter, the Members would be allowed to make comments.

Adv Mothibi said that all the law enforcement stakeholders needed to ensure that they collaborated to achieve the results that were expected of them. The work of all law enforcement stakeholders had to make an impact. The meetings that all the heads of the ACTT were a part of had been held to ensure that the collaboration continued well. There was the MOU between the SIU and the NPA which had been signed in 2017. The SIU was of the view that it needed some improvement, and that was being worked on. The SIU would reengage with the NPA to ensure that that process was brought to finality. There would be a revised MOU that took all of these views into account. He believed that by doing so, the work would be taken forward in a manner that made an appropriate impact.

He said Adv Bathohi had referred to the SIU work as being a small fraction of the work that the NPA did. He believed that if it was dealt with appropriately and speedily, that small fraction would make a huge impact on the public space. He highlighted the respect that was needed for each other’s mandates. It had been mentioned that the focus of the SIU investigations was primarily civil. When the MOU process was reengaged, the SIU would bring out clearly that in terms of the SIU Act and most of the proclamations that had been signed, most of those proclamations had taken into account the legislative mandate of the SIU to investigate corruption. Corruption was a criminal offence. SIU investigations were focused on ensuring that it uncovered corruption and other related offences. When the SIU picked up the evidence, it was the investigators' view that there would be a prima facie case and should be subjected to the prosecutorial process.

Adv Mothibi discussed the referrals made by the SIU to the NPA. At the moment, the law required the SIU to refer evidence pointing to the commission of a criminal offence to the NPA. What the SIU had done, as a result of its interactions, was to look at how it could bring efficiencies into this process to ensure that the DPCI was referred to in time. When the SIU referred to the NPA, it would now also refer to the DPCI. That was taking into account that in some of the aspects that were required for the investigation, like the opening of a docket, the NPA may point out they had been done under the auspices of the DPCI.

With the SIU and NPA reengaged, there was an opportunity to make a check on the need for matters to be investigated afresh. Some did need to be investigated afresh. The SIU and NPA would reengage so that they were all on the same page in terms of the need for these matters to be re-investigated, or the extent of the investigation that was still required after the SIU had completed its investigation. He discussed whether the nature of the evidence gathered by the SIU would stand the scrutiny of criminal prosecution, and stand the test of a criminal court. The SIU needed to go back and check the extent to which approach had been used. In the past, there had been a huge investigation involving the South African Social Security Agency (SASSA) that had been investigated by the SIU. It appeared that most of the matters in that investigation had been taken straight to the criminal court, and some success had been achieved. Perhaps there was an opportunity to reengage, make a check of the nature of the evidence and whether it could really stand the scrutiny of the criminal courts.

Until the current legal framework was amended, the SIU would try to make the best of what it could do to ensure that there were efficiencies and that matters were dealt with speedily to produce the results within the current framework.

The Acting Chairperson thanked Adv Mothibi for his comments and the perspective of the SIU on the presentation by the NPA. The Committee appreciated the fact that there was such a level of engagement. There needed to be a prosecution at the end of it all. He commented that the success of prosecutions was amazing, taking into consideration the capacity levels of both institutions.

Ms B van Minnen (DA) said she had a number of concerns and questions. She had a legal background and understood how the process worked. There were a number of things that stood out in the presentation. The NDPP had been in office for three years, and that was a long time, and she was concerned about the challenges that had been brought up by the NPA. She mentioned the quote of Edmund Burke, that all it took for the triumph of evil was for good men to do nothing. She was concerned that the wheels of justice had essentially seized up, because progress was not being seen at any kind of speed that moved the NPA forward, with enormous challenges that it faced. She understood that it was not all due to the NPA, which had to connect to a number of other organisations within the criminal justice system, but the allegations and investigations needed to end up in convictions.

 

The MOU regarding the referral process from the SIU to the NPA was still in draft. How long had it been in draft? What progress had been made there? The Committee had heard from the SIU several times about when it would reengage with the NPA regarding the draft. Why had that process been disconnected? The DPCI needed to be included. Why had the DPCI not been included previously? It seemed that there was a certain amount of replication, as the DPCI had to investigate matters that had been referred to the NPA. That was something that could be improved enormously. Why was the DPCI being included only at this point?

She acknowledged that the court rolls were a challenge. The magistrates’ courts were under-resourced, and Covid must have had an enormous impact in all sorts of spheres over the last two years. It still appeared that the lack of capacity and the slowness with which things were moving forward were in and of themselves a threat to the criminal justice system. These delays mitigated against getting successful convictions.

One thing that really concerned her was that the Committee kept on hearing that the agencies had to work together, and needed closer cooperation. She quoted Adv De Kock as saying "very often, proper investigations reveal that matters are not what they appear to be initially.". Everyone said that these cases needed to be reinvestigated. What was that indicating? Was there a feeling in the NPA that the other agencies were not doing sufficient work? Was that something that was being discussed?

She said the 90% conviction rate was all good and well, but surely the actual conviction rate should be factored in as to how many matters were referred and how many matters were investigated. One could easily point out that if one cherry-picked matters, then there would be a high conviction rate. What was the genuine conviction rate compared to matters that were actually investigated? What happened to the matters that were not proceeded with? How was that determined? Was there a form of cherry-picking going on? She noted that long time lapses were a big issue within the chain of evidence, and it was very concerning listening to this report. It seemed that the whole system was jammed up. There were budget and resource constraints, but what could be done to improve the speed at which this happened? At this point, if the system was not working, it ultimately became part of the problem, and this gridlock needed to be un-jammed to start seeing results.

Ms V Mente (EFF) said that the issues of the mandate were interesting, but it had to be sped up by the Portfolio Committee. The Committee needed to intervene, especially in terms of the lack of capacity in the area of human resources in the NPA. The aspect of capacity needed to be dealt with speedily. She would appreciate it if the NDPP could take those matters up with the Committee as soon as possible. The issue of capacity and the shortage of human resources should not become a stumbling block to advancing governance.

She discussed the work that the Committee had asked the SIU to perform and commented that there was a large number of declined cases. The NDPP had said that it was due to a lack of evidence, or that there were no prospects for successful prosecution. She understood what Adv Mothibi was saying -- that the mandate required the SIU to refer cases where it sensed there was criminality to the NPA. Did the SIU just send these cases without having assured itself that there was enough evidence that would result in a successful prosecution of a particular case? If that was not the case, why would the NPA decline to prosecute such cases? That was very problematic. The SIU was an agency where the mandate was understood, and the Committee trusted it was not working on something that it knowingly felt there was not enough evidence and information. What would be the reasons for referral of such cases? The Committee needed that clarity. The Committee would then deal with individual cases at a later stage.

She had picked up a problem with the turnaround times of the referrals and the cases. There were cases where it seemed like there was no interest, or there was a laissez-faire attitude towards it. There was just a snail's pace in terms of some cases, and then there were other cases where the status was promising. She mentioned the 2017 case involving the Swiss ABB engineering group. It was moving at a snail's pace, and she did not know why that was the case. The case was straightforward in terms of its originality and how it had started. It was very similar to cases that had been concluded. She discussed the case of the student who had spent money that had been paid to her irregularly. It had been wrapped up within no time, but in the case of ABB, nothing had been wrapped up since 2017. Nothing had been finalised. How did justice work? It was a very similar case that involved money being sent by a specific institution into a bank account. There were complexities when it came to ABB -- complexities that were dragging the case since 2017 to date. Then some cases got finalised as soon as possible and there were no issues. The NPA needed to clarify this, as it did not add up at all.

She discussed the issue of private funding which had been mentioned in the opening statement. There was already a very dark cloud hanging over the justice system regarding the finalisation of cases and how different cases were dealt with. The NPA wanted to receive money from the private sector, yet the NPA had to prosecute them. The objectivity of the NPA would be called into question. It did not matter that the NPA wanted to create a committee that would oversee whoever donated money and that the money would end up with National Treasury. If people put money towards the mandate of justice and not the government, then there would be the risk of those people not being prosecuted for whatever they had done. It should not be that Treasury did not have enough money to finance the justice system, given the high rate of crime that had to be prosecuted. That was another matter that the Portfolio Committee needed to look at. As a Member of Parliament, she could not sit there and say that it was fine. She quoted Thomas Sankara as saying that "the hands that feed you, control you." There was no way that private individuals should be used to make sure that the justice system was operating because of the manner in which they were funding it. People who funded anyone in South Africa needed to be known.

She said there was a problem with forensic investigations. The NDPP had highlighted some of it. What was the plan with forensic investigations? The SIU had the problem of not having forensic investigators, and now the NPA was facing the same issue. No one had mentioned a plan for getting that component in action as far as justice was concerned. The reason why many criminals were never captured was that the justice system lacked those particular aspects of investigation, which was in the forensic sector. To date, no politician had been successfully prosecuted, and neither were officials. She knew of only one -- John Block of the Northern Cape. She did not know of any other person. People were involved in serious maladministration and misalignment of funds. That money was channelled to the pockets of people. This was why people said that there was no justice in South Africa. The NPA needed to be clear and had to move at a faster speed. It could not move at a snail's pace.

NDPP's response

Adv Bathohi responded to the comments about the MOU still being in the draft stage and said there was an MOU that had currently been signed between the SIU and the NPA. The draft was being revised. In that process, it had been realised that because the DPCI played such a critical role in the entire value chain, it needed to become a tripartite agreement, including the DPCI. That was the current process. There was a draft that was currently with the colleagues in the SAPS. The NPA needed to get SAPS to come to the party a little more quickly. The NPA had been following up and would try to make sure that was speeded up. She agreed that the draft needed to be finalised. There were some issues that SAPS had had with it. The NPA needed to engage and get the tripartite MOU finalised between the three agencies.

She said the NPA did not cherry-pick cases, and certainly not the SIU matters. From the statistics that were presented, there were only two matters that were in the NPA where a decision was still awaited. The other matters the NPA had taken decisions on. Those matters were still in the DPCI space with regard to investigations. She agreed with the Members who said that the pace of the investigations needed to be picked up. It was not just about capacity in the NPA or the SIU, but about capacity in the DPCI. The DPCI was a critical agency in this process and was not capacitated properly to deal with these investigations speedily. It was not as if investigations had been completed and the matters were sitting in the NPA, and it did not have the capacity to process it. There were only two matters within the NPA that were awaiting a decision. The rest of them were all in the DPCI space. She had raised this issue in the Portfolio Committee at any opportunity she had. The NPA was as strong as the weakest link in a system. The investigative capacity was absolutely critical to move cases along. Any assistance that the parliamentary committees could give to enhance the capacity, capability and skills within the DPCI would be really appreciated.

She responded to the issue of the declined cases and the standard of proof. The NPA had tried to explain in the presentation the fact that the investigations of the SIU were not criminal investigations per se, although Adv Mothibi had nuanced that somewhat. The DPCI was the mandated agency to do criminal investigations. The NPA could engage with Adv Mothibi. Adv Mothibi had mentioned that in the past there had been cases that were ready for prosecution. She was not sure what evidence had then been presented in those matters. The cases that came to the NPA were not ready for prosecutions because of the differing mandates. Adv De Kock had spent time explaining it in the presentation because the NPA knew that it would be an issue.

In response to Ms Mente, she said that it had not been that there was insufficient evidence. It was about what standard of proof was required at the relevant stage of the process. At the stage of the process of the SIU, the standard of proof was one relating to the balance of probabilities. That was a much lower standard than was required for prosecutors deciding that there was sufficient evidence to prove beyond a reasonable doubt that criminal charges could be preferred and that the probabilities of a successful prosecution were high. Prima facie was not good enough. There needed to be evidence that reached a standard of not a balance of probabilities, but the reasonable prospects of a successful criminal prosecution. The standards were very different and that needed to be understood. The DPCI needed to then interrogate and work closely with the SIU. The work of the SIU contributed to the work that the DPCI would do. The DPCI needed to be involved at an earlier stage together with the SIU investigations. Maybe prosecutors could also be involved at an earlier stage. The NPA did not want to complicate processes and trip on each other’s mandates, but there needed to be ways of collaborating better so that cases were speedily brought to court. The pace needed to be picked up, but it was all about the investigation stage where things needed to move a lot faster.

She implored Members to have an open mind on the issue of private funding. The NPA did not want to be accepting a donation from entity x, when entity x was the subject of a prosecution. That was not the way the NPA envisaged the concept around receiving assistance from the private sector, for law enforcement to receive assistance. The NPA was looking at various options. It wanted to engage with Treasury about Treasury setting up a trust where people could make anonymous donations. These options were still being explored. The NPA was looking at what would work best. It had been engaging with Business Against Crime. This was not a new phenomenon. Business had been helping various government departments, including the justice system, for many years. The Specialised Commercial Crime Court had been set up almost exclusively with money from business, channelled through Business Against Crime. The Thuthuzela Care Centres received all kinds of funding assistance. Members needed to have an open mind and understand that the NPA would not want to open itself up for criticism that it was not prosecuting certain entities because they were funding it. The NPA was looking at this carefully, but it was not a new phenomenon. The NPA would look at safeguards and how Treasury would be involved. A donor oversight committee was an important safeguard in this process. The NPA understood the challenges, appreciated the risks and was looking at the matter very carefully.

Responding to the issue of the forensic investigation, she agreed with Ms Mente that forensic investigations cost the government an enormous amount of money. It was making forensic companies rich. Ms Mente had asked the right question -- what was the plan? After Covid, in the economic recovery strategy, at the Justice, Crime Prevention and Security (JCPS) level, it had been decided that government must set up its own forensic investigative capacity so that law enforcement was able to do these investigations properly. A multi-disciplinary task team had been put together that had done some research into this. It had looked at various initiatives to deal with creating this capacity within government. There was a plan, and it was very complicated. It required funding and money, but if one looked at the amount of money government was already spending on these investigations, her view was that it did not require new money. It was not something that could be created today and would then be up and running. It was something that government needed to build, and in the meantime, the NPA was forced to still acquire these resources from the private sector.

Adv Anton du Plessis, Deputy National Director of Public Prosecutions, Strategy, Operations and Compliance, said that there was another aspect of resource and capacity that needed to be spoken about. This was the type of specialised capacity that was needed to deal with these kinds of crimes. The NPA was dealing with the most complex crimes. He pointed out the level of counsel that some of the accused in these cases would bring. It was difficult for the government to pick up the pace as quickly as it needed to get the resources or additional skills, without being innovative and bold in how it did so. That meant engaging with relevant partners in the private sector, sometimes at the bar association, sometimes with private law firms, while also ensuring that the independence of the NPA was protected.

Another fundamental point was in regard to the legal architecture that had been referred to earlier, and the associated challenges. Challenges of cooperation were normal in any system. The collaboration needed to be ramped up. Ultimately, what was needed for these kinds of crimes was a more systemic and sustainable model of prosecution-guided investigations. The NPA used to be world leaders in this. It still had the experience and expertise, but it required a mind shift change in terms of how the legal framework operated. That was an ongoing discussion that was needed. Once the changes were made to that legal framework, then the question of what capacity the NPA could bring in and what skills were needed in terms of the prosecution and investigation could be answered.

He referred to the more complex and transnational nature of crime. Even with corruption, which was being increasingly an organised transnational phenomenon, the NPA would need to bring in skills that allowed it to deal with those kinds of crimes. There were also the advanced cybercrime and forensics capacities that the law enforcement needed to bring into the NPA system permanently. That was why the discussion around the permanence of the ID and how it was capacitated had to be ramped up. He appreciated the calls from the Members to say that the parliamentary committees could support this. This was a discussion that needed to be had. He hoped it would happen in the coming months because it was something that needed to be recognised. The NPA would not be able to keep pace unless it looked at the kinds of capacities that needed to be brought in, not only with regard to the crimes the NPA was going to face today but the crimes that would be faced over the coming years.

Adv Ouma Rabaji-Rasethaba, Deputy National Director of Public Prosecutions, Asset Forfeiture Unit, responded to the question on the ABB investigation. The difference between this investigation and the one relating to the student was that in the case of the student, it had been a single transaction. In the ABB case, the NPA was looking at other contraventions as well. Three senior counsels had looked into this matter before it went to the SIU. They had considered the conduct of the employees, and the conduct of the employees had been absolved. The case had already been to the SIU and the DPCI. The DPCI was also investigating at the ID. The case was now with the NPA. This showed the complexity. The NPA could not finalise the case without looking also at the evidence that was going to come out of Report Three of the Zondo Commission. The NPA needed to see whether there were additional people that may be implicated. This was just how complicated these cases were. She had referred to the amount of data that was involved in these cases. It did have some servers in certain cases that it was going to look at. There was a server that had information. This was being done to ensure that the NPA was not missing any information.

Adv De Kock assured the Committee and the public that it did not matter who the accused were. If the evidence was strong and credible, then those prosecutions would happen. The NPA agreed with Adv Mothibi -- the NPA and SIU needed to work more closely together. The NPA would ramp up these investigations and work collaboratively. If it included politicians that had to be prosecuted, then they would be prosecuted. The NPA was not targeting anybody in its processes and investigations. It would make its decisions based on the evidence.

Adv Bathohi responded to Ms Mente and said there had been a strong focus on prosecutions in the municipalities. There were a number of municipal officers that had been charged. There were a couple of racketeering authorisations that had come before her desk involving some provincial politicians. The NPA did not target people, but it targeted the evidence. If the NPA had the evidence, then it did not matter who was at the end of it, the NPA would prosecute.

Ms N Tolashe (ANC) said that the Committee should have received the presentation earlier so that maybe the Members could have made recommendations on what was being dealt with today. The entire presentation had emphasised that there needed to be collaboration, as Adv Mothibi mentioned. She was worried that there were issues that were related directly to policy. SCOPA needed to interact with other relevant committees. It was in its interest to make sure that these matters were being concluded. The NPA was working in an environment that was hostile. South Africans had the feeling that one could get away with any crime in South Africa, and nothing would happen. If the NPA was the sole institution with the responsibility to make sure that the government dealt with corruption, and it took this long with its turnaround strategy, then the country would have problems. She suggested that the Committee interact with other portfolio committees that were directly involved in all issues that spoke to policy. It was important for the committees and the relevant institutions to conclude on the issues of policy. All the institutions needed to be able to do what they were supposed to be doing. A meeting needed to be arranged between the two relevant portfolio committees and to hear from them how they were going to fast-track this process so that there was a conclusion. SCOPA also needed to contribute on how best they could work together.

 

She was worried that there was a lot that had been sent by the SIU to the NPA, and that very little was coming back. She suggested that the Committee receive a detailed report on each case and where it was. There needed to be a percentage stated of all the things that the NPA had been able to do and achieve. She had heard about Eskom and Transnet, but those could not be the only two. There was a lot that the Committee still needed to hear from the NPA.

She said the turnaround strategy was a problem. She had heard that all the officials who responded had the answers in their mouths, but the Committee did not need the answers to be in their mouths -- it needed the answers to be implemented. A lot had been said about forensic investigation. Departments were already wasting a lot of money by embarking on that while the government was claiming to not have money. This was a serious contradiction. As the Committee interacted with different departments, it got to hear that they were taking these matters for forensic investigation, which was quite expensive. If government at that level could do this, then it should be Treasury that took that decision. The money that a department wastes should not be the case. Treasury should take that responsibility. She thought that all of this was a waste of time. With the forensic investigations, a lot of money was wasted. As the NPA discussed the issue of forensic investigations, it needed to note the fact that the excuse that there was not enough money could not stand the test of time. A lot of forensic investigation was taking place in these different departments.

She wanted the Committee to be taken into confidence regarding private funding. Adv Bathohi had spoken about it extensively. Politically, there needed to be a buy-in. The Ministers concerned needed to engage with the Committee so that it could raise its concerns and be taken on board so that there could be trust. All she had wanted to raise had been raised by other Members.

She noted with concern the length of the turnaround time, which was a problem. There needed to be speedy implementation of all the answers. If there was a need for the Committee to talk with anyone beyond the Ministers and the Portfolio Committees, it should be advised. The situation outside was not so friendly. There was a perception that one could get away with murder in South Africa. Crime escalated because people thought that if they needed to wait for justice, it would never happen, and they took matters into their own hands.

After hearing the detailed presentation, there was still a lot that needed to be done. The Committee needed to do whatever it could do it make sure that the policy matters were being concluded, and the turnaround time should be clearer and should be monitored. The NPA had again dropped the ball. The NPA had been good at taking society on board with the kind of work that it was doing. Once people knew what the NPA was doing and what the difficulties were that it faced, then they would be appreciative of what was being done. The perception now was that nothing was being done and nobody cared. It was a problem in society. There was a perception that there were no consequences.

The Acting Chairperson said that justice delayed meant justice denied. The country yearned for justice.

Mr A Lees (DA) said that Ms Tolashe was completely correct when she said that there was money, but that it was being spent in the wrong way. The country was borrowing over R1.5 billion a day as a country, and it was spending far too much. Government spent money in a way where it did not achieve the sort of outcomes that it would like, particularly when it came to justice being seen to be done. In the current financial year, it was quite comfortable to spend R13 billion on a vanity project that was SAA, but it could not pay the money to make sure that criminals were put behind bars. This was what the Committee heard every time it received this briefing. Every time, everyone agreed that there needed to be more resources put into this. The next time the NPA came, the Committee would hear that there was a resource challenge. It was outrageous that the government could spend money elsewhere, but it did not spend it on key aspects. Vanity projects were okay, but the government was not making it easy for criminals to be put behind bars. Why was this the case? Was it too close to home? He wondered about that.

It was quite clear from this meeting that the Fusion Centre and the MOU, and all the nice words that the Committee had been hearing, simply were not working. Yet there was the successful model of the Scorpions. It had worked. Why did law enforcement not take a model it simply knew worked? It could be funded properly and given the resources. It had been incredibly successful. It had been shut down for political reasons, but it had worked. Why had the government not set it up? Was it on the agenda? Was it something the NPA, the SIU and other agencies would support?

Adv Bathohi responded to the comments made about forensic capacity. It should not be an issue of funding -- a lot of money was being spent by various government departments on these investigations. There needed to be a transition process, because work still needed to continue while capacity was being built up. She agreed that it needed to be speeded up and get the support of all of government and the relevant departments to achieve that capacity.

She discussed the NPA dropping the ball in terms of explaining what it did, and the impression that nothing was being done. The NPA needed to take some lessons from the SIU, who did well at marketing and communicating what they did. It really needed to ramp up its communications. It was nowhere near where it wanted to be. There was lots of good work that was being done that needed to be communicated better. It would work on that.

She agreed with the Acting Chairperson, that justice delayed was justice denied. There was a serious problem in the country, and it was not just with regard to corruption. There was a whole range of different crime types. Every day videos were circulating of brazen criminals in the country committing crimes in full view of the public, yet it seemed like there was impunity. The capacity for law enforcement, particularly in the SAPS, needed to be ramped up considerably. People should not think that they could commit crimes in this country and that there was no justice.

She agreed that with private sector funding, there needed to be strong buy-ins from all sectors of government. It was a delicate balance, but she thought that it could be done without compromising the independence and objectivity of the NPA. These options need to be explored. It was critical. The NPA needed highly specialised skills that were available in the private sector, with which the private sector was willing to support and assist. The NPA needed to look at how it could strike that balance.

She responded to Mr Lees’ question about how the NPA spent its money. She stressed that the budget of the NPA was slightly over R4 billion, which was a small budget in the context of government’s spending as a whole. SAPS had under-spent by about R4 billion last year. The NPA’s budget was really small in terms of fighting crime -- not just in the corruption space, but with regard to all the complex crime types. Government had been forthcoming in terms of supporting the NPA in giving it a budget to do its work and had received an increase in its allocation over the next three years. The NPA was being supported.

She noted that Ms Tolashe had said that the NPA was the sole entity to deal with corruption. It was not the sole entity to deal with corruption. That was the challenge. The ID was being capacitated as it investigated and prosecuted. The majority of the cases that the NPA prosecuted were investigated in the DPCI. She reemphasised the importance of making sure that the DPCI was properly capacitated so it could speedily bring the NPA high quality investigations that it could move on.

She responded to Mr Lees questions about whether the NPA would support the Scorpions and said the NPA would absolutely support that idea. Government was taking too long to decide on the issue of a single entity, as had been mentioned. The Scorpions were not perfect, but lessons had been learnt from that. There was a model that the NPA knew worked. The ID that was being set up was halfway there. It was an entity that was meant to work with different capacities and disciplines under one roof, with a prosecution-led model. The challenge, however, was that it was sitting within a weak legal framework. When the Scorpions were dissolved and the relevant sections of the NPA Act were removed, one of the important sections that was removed was the ability of the NPA to hire criminal investigators. That was not in the NPA Act at the moment. There was an ID that needed criminal investigators. This was one of the big challenges that the NPA had faced in terms of trying to capacitate the ID properly. It had been engaging with the SAPS -- even looking at the SAPS creating a unit where it would hire criminal investigators, and second them to the ID. The NPA would pay the criminal investigators from its budget. Government was taking too long on the single entity. It needed to make these decisions more quickly. The ID was being set up. Whatever the government decided on the single entity, the ID was being capacitated to be the single entity to investigate and prosecute complex corruption. There needed to be a stronger legal framework for it to be really capacitated. The NPA would support something like the Scorpions "Version Two," and take up those lessons because it had not been perfect. The NPA could improve on that.

Chairperson's summation

The Acting Chairperson suggested that the NPA provide the Committee with a detailed account of the specifics of the referrals which had been made to them by the SIU. Through that report, the Committee would find specific reference to those cases that needed further investigation. It would also highlight those instances where the SIU had made headway in terms of its own process to recover the necessary profits of crime. The specific instances would be very important.

In the meeting, it could be detected that there was somewhat of a wastage because the SIU would make investigations and make some referrals to the NPA. He highlighted the repetitive instances of doing the same thing. Maybe the NPA needed to be involved earlier in the process to deal with those matters and finalise them. The Committee needed the specific references to those matters. If the Committee advanced a point in terms of a report to Parliament, and the Committee wanted to make a case on the matters that had been discussed by the NPA, then it needed to get the NPA’s report. It needed to move on from the SIU report and see where the country stood and how some kind of arrangement could be fostered to make things faster.

The quicker the matters were finalised the better for justice to prevail. The Committee urged the NPA to look into those details in terms of the referrals which had been made by the SIU. Ms Tolashe had made a critical point. The NPA had raised a number of policy-related matters which infringed on the NPA succeeding in its core competency as a functionary of the state to improve the sense of justice in the country. The Committee needed to understand the policy matters because this had been raised in the meeting. There might need to be an engagement between SCOPA and the relevant Portfolio Committee.

He noted that the President had received the final report of the SIU on the personal protective equipment (PPE) expenditure, and there was an expectation that now something would be done about those matters that had been identified. Why were there delays when these things had been tabled and referred? That sort of detailed presentation would assist in popularising the steps which had been followed to the finalisation of those reports. A lot of work was being done through the Fusion Centre, and that was appreciated. Through collaboration, the ability of the state to deal with these complex matters could be enhanced. He appreciated the work the NPA had done but was also wary of the lapses on some of the matters. It would be good if there was an enhanced ability that would drive both institutions, the SIU and the NPA, to succeed with the referrals.

He asked Adv Bathohi to make closing remarks.

NDPP's closing remarks

Adv Bathohi responded to the Acting Chairperson’s request for a detailed account on specificity. The last time the NPA presented before SCOPA, it had presented with the DPCI as well, because all of these investigations were with the DPCI. The DPCI had all the information regarding the status of the investigations. A balance needed to be struck between how much information could be shared on this public platform about the status of investigations. It was a difficult balance to strike. It was squarely with the DPCI because it had all the referrals. The DPCI would have to prepare the report, but the NPA needed to be very careful about what it shared. It had to balance complying with the Committee’s request whilst it did not compromise investigations. These were all in the investigation phase, and not in the NPA phase. The NPA did help and guide the DPCI on the more complex matters. The NPA would see how it could address that, working with the DPCI, and would come back to the Committee.

The Acting Chairperson said that the Committee understood that there could be no loopholes regarding the NPA informing the Committee and the public. The NPA’s openness would be safely guarded. For the Committee to be able to speak on these matters and advance the voice of the NPA, it needed to appreciate the aspects that were a hindrance to the NPA’s primary responsibility of prosecuting successfully.

Adv Bathohi said the NPA took all of the Committee's questions very seriously. It understood the frustrations and thanked it for its support and its oversight role. The NPA knew that it had to deliver and deliver much faster. It was trying very hard, but it was complicated. It would try to provide the Committee with a better understanding of the challenges. It was far from where it had started, and she was positive about the outlook moving forward.

The meeting was adjourned.