National Prosecuting Authority Annual Report 2021/2022

Meeting report

The Chairperson stated that the Committee would be receiving a briefing from the National Prosecuting Authority of South Africa (NPA) on its annual report for the 2021/2022 financial year.

Briefing by the National Prosecuting Authority on Annual Report

Introduction

Adv Shamila Batohi, National Director of Public Prosecutions (NDPP), NPA, stated that the NPA was presenting its report to Parliament as required in terms of the Public Finance Management Act (PFMA). It was also presenting in light of the NDPP’s Report, in terms of section 22(4)(g) of the NPA Act.

• The NPA is midway through implementing its 2020 2025 strategic plan and rebuilding efforts are bearing fruit.
• NPA has achieved a marked improvement in performance during this financial year and has clear initiatives in place to maintain this progress.
• The 6-months priority plan resulted in impactful prosecutions instituted, and significant asset recoveries obtained.
• The Investigating Directorate (ID) enrolled over 20 matters charged 65 accused and obtained freezing orders of R 5.5 billion including the biggest restraint ever of R 3.8 billion from the Gupta network.

High impact prosecutions enrolled

• Gauteng seized assets worth R 1 4 bn relating to Kusile power station (extradition hearing of Michael Lomas in the UK, who was an Eskom contractor).
• Free State Department of Agriculture PFMA, fraud and money laundering.
• Restraint order of R520 million Nulane Investment, and Gupta company, Islandsite.
• Provisional restraint order against Edwin Sodi of almost R300 million.
• Approximately R500 million involved in the Free State Housing matter.
• Finalised 1 leg of Steinhoff matter MLA requests being finalised.

Other notable cases

• Bathabile Dlamini convicted of perjury, and sentenced to 4 years imprisonment or R200 000 fine
• Dudu Myeni, charged with defeating the ends of justice sentenced to 2 years imprisonment or
R120 000 fine.
• Government employees convicted of corruption increased by 38.4% and private sector convictions
increased by 39.5%
• Continued focus on crimes that affect the quality of life, specifically gender-based violence (GBV):
• 74.3% conviction rate in sexual offences
• 94.3% conviction rate in femicide and
• 93.8% in intimate partner femicide.

• 3 600 murder cases were finalised, and 2 787 convictions were obtained (77.4%).
• 1 038 convictions were obtained in trio crimes with a conviction rate of 81.3%.

Adv Batohi added that those were high conviction rates, which showed that with cases that did come to court, such cases were well-investigated, and the NPA was able to get convictions, while also working closely with its colleagues in the South African Police Service (SAPS). The reality was that conviction rates did not always translate to people feeling safer. The NPA recognised that there was a challenge regarding detection, and increasing crime rates in South Africa. The NPA was trying to work very hard with the SAPS to be more focused in terms of dealing with quality of life crimes (e.g. house-breaking. serial rapist cases, etc).

• Significant progress in implementing innovative strategic initiatives to drive implementation and
sustainability of our strategy, i.e. but not limited to (discussed in more detail later in the presentation)
• Office for Ethics and Accountability;
• Community Prosecution Initiative; and
• Capability Enhancement Initiatives.

• New monitoring and review processes to ensure implementation and accountability 3 main performance monitoring and accountability reviews form part of the Executive Committee (ExCo) and Management Committee (ManCo) oversight which are:
• Organisational performance review NPA core performance indicators as per the annual performance plan (APP);
• Six-month priority review six-monthly priorities, as well as task force (related to the Zondo Commission) input and identifying
interventions needed; and
• NPA strategic initiatives review NPA’s longer-term strategic priorities and initiatives to build a fit-for-purpose organisation.

• The NPA sustained its recruitment drive and over the past 4 years, more than a thousand
employees were recruited, creating much needed capacity in critical areas.
• The EE profile significantly improved 54% of all staff are female (0.8% increase), with 65% of
women in key management positions – many high level, new appointees, are women.
• Budget advocacy has yielded results, and we are grateful for the additional budget for the current medium-term economic framework (MTEF) period (but further increased budget is required, and we must expand our partnerships to continue the current performance trajectory).
• With the nature and scale of challenges facing the NPA, additional funding will be vital to deliver effectively and to ensure the NPA becomes a cutting edge and modernised prosecuting authority
• NPA is delivering on what we promised during last year’s presentation to the Portfolio Committee – it is by design and not by default that we are not reacting but rather working more strategically.

• The NPA committed to enrol, and successfully enrolled, 9 seminal matters before end September 2022 as part of its constitutional mandate to take decisive and visible action against high level corruption and state capture

• Cases listed below are seminal because these exemplify the workings of state capture, involving accused persons from both government and the private sector who allegedly played vital roles in repurposing state institutions, syphoning off public funds for private gain and committing the most damaging forms of high-level corruption, including crimes committed as part of the state capture project:
- Estina Dairy Farm;
- SAPS Tender Corruption;
- Asea Brown Boveri (ABB); and other cases.

[Please see the document for details.]

Performance Overview 2021/2022

Adv Rodney de Kock, Deputy National Director of Public Prosecutions (DNDPP): National Prosecutions Service, NPA, presented.

Overall Performance on NPA Annual Performance Plan

The NPA achieved ten out of 14 indicators (71%). This was an improvement from the previous financial year for the NPA. The indicators that were not achieved were:
- Conviction rate in complex commercial crime;
- Number of government officials convicted of corruption and/or offences related to corruption;
- Number of cases finalised with a verdict involving money laundering; and
- Value of recoveries relating to corruption or related offences.

Outcome: Improved Investor Confidence in SA Through High Impact Prosecutions

On the indicator of “Conviction rate in complex commercial crime”, Adv de Kock noted that there was a marginal underachievement. The planned annual target was 93%, and the actual achievement was 90.5%.

• The Specialised Commercial Crime Unit (SCCU) focuses on serious and complex commercial crime cases 380 cases were finalised with a verdict and the 344 convictions illustrate significant improvement of 24% compared to the previous financial year.
• 18 dedicated specialised commercial crime courts were established.
• 209 persons were convicted of private sector corruption, significantly exceeding the target by 32%.
• 130 government officials were convicted of corruption – a significant increase of 44 (51%) compared to the previous financial year.
• 86 cases involving money laundering were finalised, which is a significant increase of 42 (95%) compared to the previous financial year.

Reasons For Not Achieving Targets

• Complex commercial crime cases: Failing memory of witnesses, uncertainty in evidence, contradictions and uncorroborated evidence.
• Government officials convicted of corruption: The number of persons convicted significantly increased. NPA does not have control over the number of cases received; cases were intricate and there were several legal challenges causing delays.
• Money laundering matters usually consist of several charges and intricate financial investigations, which are time consuming, trials are protracted with several legal challenges cases involve accused with financial means, who are often aware of probable long term imprisonment on conviction, therefore drag out trials if possible as they know court rolls are packed, especially within SCCU more than 80 of cases are currently outstanding longer than 12 months, much has been done with DPCI and other agencies on improving detection of money laundering.
• Value of recoveries: Serious corruption cases take long to finalise in many cases, large amounts are under restraint and will remain so until the accused are convicted accused in high value corruption cases have the means to vigorously oppose all actions, which leads to delays once cases are finalised, vast amounts stand to be recovered.

Adv de Kock also presented interventions for the targets that were not achieved.

[Please see the document for details.]

Overall Performance on Corruption

Despite a decrease in new cases from 394 to 381, the number of convictions in corruption increased from 233 to 339.

[Please see the document for details.]

Performance of SCCU Courts

- Less than 10% of Specialised Commercial Crime Unit (SCCU) cases were disposed of within 9 months.
- High backlogs and long outstanding cases impact on the availability of witnesses, the memory of witnesses and credibility findings.

Adv de Kock added that the NPA raised the issue of the SCCU cases with the Chief Justice, and the NPA also raised the issue in the National Efficiency Enhancement Committee (NEEC) meeting. In the latter meeting, the NPA said that because of the huge volumes of cases on the court rolls, as the NPA brought more corruption matters onto the court roll, it would compound that challenge. By the direction of the Chief Justice, the NPA was to engage with the Judge Presidents of each of the divisions to make particular arrangements of how it was going to manage and case process the corruption matters on South African court rolls. It was work in progress, and was one of the issues that would receive prominence in the strategic planning processes of the prosecution during November 2022. 

[Please see the document for details.]

Serious Violent Organised Crime

- 3 600 murder cases finalised by the NPA, with a verdict;
- 2 787 convictions obtained, with a conviction rate of 77.4%;
- 95.9% conviction rate in organised crime (92.5% in 2021); and
- 97.1% conviction rate in environmental crime (96.8% in 2021).

[Please see the document for details.]

Gender Based Violence and Femicide

- 94.3% conviction rate in femicide prosecutions (94.3% in 2021);
- 93.8% conviction rate in murder intimate partner femicide prosecutions (93.1% in 2021); and
- 74.3% conviction rate in sexual offences (75.8% in 2021).

Operational Thuthuzela Care Centres

- DNA GBV analysis reports between NPA and SAPS (FSL) assisted to reduce backlog of related cases in court since October 2020, Sexual Offenses and Community Affairs (SOCA) unit consolidated & facilitated 16 084 DNA reports and identified 1 235 serial rapist reports from Oct 2021.

[Please see the document for details.]

Adv de Kock added that the NPA was putting in a lot of effort under the new Special Director to ensure that more Thuthuzela Care Centres (TCCs) were established throughout the country, particularly in rural areas.

Outcome: Improved Investor Confidence in SA Through High Impact Prosecutions

Adv Ouma Rabaji-Rasethaba, DNDPP: Asset Forfeiture Unit (AFU), NPA, presented.

• Freezing orders to the value of R5.5 billion were obtained, target exceeded by 129%; this significantly exceeds the performance of the previous financial year by 800%.
• NB: The recovery of proceeds is the last step in the asset forfeiture process and the significant success achieved in the value of freezing orders obtained will translate to a success in recoveries. Close collaboration between AFU and ID contributed to this outstanding performance, as large State Capture orders were obtained.
• AFU obtained recoveries in the amount of R117 million in corruption matters, which is a significant increase of R114 million from the previous financial year.

• The focus was on capacitating and empowering the AFU.
• Commenced with implementation of the High Performance Plan.

• Capacitating the AFU:
• Developed an Asset Recovery Strategy (local and international);
• Developed novel approaches to recovery of funds lost in state capture and other serious corruption matters;
• Developed Non-Prosecution Resolution guidelines;
• Appointment of International Asset Recovery Specialists policy developed;

• Filling of vacant management posts – very important.

• Strengthening Partnerships:
• Skills development in conjunction with ACTT Partners;
• Co-location with the Directorate for Priority Crime Investigations (DPCI) completed;
• Participation in several multi-disciplinary structures.

Asset Forfeiture Significant Cases

• Enegamba (Nigerian Syndicate) – R7.7 million preserved
• Impossible Solutions (UIF Fraud COVID 19 Funds) – R112 million preserved and R114 million returned to victims
• Project Phoenix (Drug Kingpin) – R31 million preserved
• Sunny Penny Matter (Lesotho Nationals laundering proceeds of fraud and corruption in Lesotho R26 million preserved, R18 million forfeited and paid back to Lesotho
• Nulane Investments (Iqbal Sharma)Sharma)(FS Department of Agriculture) R47.2 million restrained
• Optimum Coal Mine and Colliery Tegeta Exploration Guptas) – R3.975 billion preserved
• Tegeta/Templar/OCM R1.385 billion preserved.

Corruption

- 34 Freezing orders, R7.075 billion
- 33 Confiscations/forfeitures – R133 million
- R118 million recovered.

Other AFU priorities

- Precious Metals and Stones
- Drug cases
- Fraud/Theft
- Money Laundering
- Illicit Financial Flows
- Environmental Crime

[Please see the document for details.]

Strategic Initiatives to Professionalise and Future-proof the NPA

Adv Anton du Plessis, DNDPP: Strategy, Operations and Compliance, NPA, presented. He took the Committee through the NPA’s strategic initiatives, culture enhancement initiatives, misconduct and disciplinary hearings finalised, and human resources capacity

Adv du Plessis added that the NPA was enhancing existing skills (as well as adding new skills). There was a narrative that the NPA did not have skills and that it was a hollowed-out organisation. The NPA did need new skills, and the nature and extent of the challenges it faced meant that it had to do more. But it had done a lot in capacity-building, and not built capacity “blindly”. It embarked on an extensive capacity review process where it benchmarked its capacity and the skills needed to deal with high-level corruption and complex corruption matters. That benchmarking was completed, and it was informing the development of the NPA’s bespoke training and capacity-building programmes for staff.

There was a vacancy rate of 16% under prosecutors. Adv du Plessis added that some of those posts were being removed from the NPA, and being re-purposed so that it made sure that all its funded positions were used for the right priority areas.

[Please see the document for details.]

Budget Overview

Budget vs Expenditure as at 31 March 2022

• The NPA spent 99.72% of the total budget allocation as at the end of March 2022.
• The R74 million additional funding viremented to the NPA in respect of goods services relates to overspending due to State Attorney payments.
• The biggest contribution to the underspending of 0.28% relates to Machinery and Equipment (R12 million); this was due to service provider delays in the delivery of laptops before the end of the financial year.
• The NPA demonstrated the capacity to spend allocated budget which is an indication of
correct budgeting additional funding requested through the MTEF process of R1.8 billion to enable us to continue with our fight against crime and corruption.
• The total budget for the year was R4.5 billion, and the largest area of expenditure was on compensation of employees.

[Please see the document for details.]

Avoiding FATF Grey-Listing

Adv Batohi stated that the Financial Action Task Force (FATF) grey-listing was a very important issue. Avoiding grey-listing had an “all of Government approach”, and there were various Government departments that needed to do a range of things in order to avoid grey-listing. From a justice and law enforcement perspective, the NPA could say that it had done a lot to avoid grey-listing. She further observed that the FATF review was conducted in 2019, at a time when there was “no political will” to deal with corruption or state capture, or to deal with money laundering cases, etc. But what had happened was “remarkable”. For the FATF to impose a grey-listing on South Africa at that stage would be “counterproductive” to what the FATF was actually trying to achieve.

[Please see the document for further details.]

Conclusion

Adv Batohi said that the NPA was “finally reaching solid ground”. She felt that one of the indications that the wheels of justice were turning was the increase in attacks that the NPA was facing, including comments such as “biased prosecutions”. Those were clear indications that those who feared accountability were trying to undermine the work of the NPA. The NPA wanted to give its commitment to the people of South Africa that it had been a tough period, but it would not give up its fight for justice. Its five-year strategy (2020-2025) was crafted out of the ashes of state capture, and birthed into the clutches of the Covid-19 pandemic, but has effectively guided the NPA’s path towards sustainable impact. The next two years will be pivotal for the NPA, and the rule of law in South Africa.

She added that impunity was no longer a given, and the fact that the NPA was increasingly being attacked was a clear demonstration that that was the case. The NPA would always do what was justified in terms of evidence. It would always adhere to the values of the Constitution. The NPA was made up of “fiercely independent prosecutors”, and as the NPA and as individual professionals, it would not compromise that for anyone.

Adv Batohi then thanked all of the prosecutors for the hard work they had put in over the past year to deliver the kind of results that the NPA had been able to do. The NPA knew that it still “had a mountain to climb”, but with that ongoing commitment and dedication, she had no doubt that the NPA would make even greater strides in the next two years.

Discussion
Adv G Breytenbach (DA) congratulated the NPA on its improvements. There were obvious improvements, and it was very gratifying to see them. It was a “steep hill to climb” for the NPA, and it had only just started. Notwithstanding the improvements (which she knew had been hard-won), which had not been easy to achieve, there were still a range of issues that were of concern and needed to be dealt with. The first issue was the FATF grey-listing. The NDPP said (“with some conviction”) that if the FATF grey-listed South Africa, then the FATF would not achieve what it set out to achieve. The fact was that South Africa was in “great danger” of being grey-listed, and grey-listing seemed “almost inevitable”. All were aware of how serious an issue that was for South Africa. She observed that the NPA did not meet its targets for prosecuting money laundering cases. The FATF issued a deadline on those prosecutions. The Committee needed more information on how the NPA intended to improve money laundering convictions. What are high-level interventions that the NPA referred to, and that it would employ to improve those convictions?

Despite increases in the Specialised Commercial Crimes (SCC) Courts, the NPA did not meet its targets for convictions of complex commercial crimes. Less than 10% of the SSCU cases were disposed of within nine months. It was true that the passing of time did impact on witnesses’ credibility, memory, and availability. The case “decays” on both sides over time, both the prosecution and the defence. What would be done to ensure that those targets were met, especially bearing in mind the relatively large increase in SCC courts?

Reference was made to the Steinhoff matter. It had been “a long, sad, and dragged-out investigation”. The South African Reserve Bank (SARB) had reacted, and rather alarmingly, and noticeably, the NPA “was absent from that action”. In her view, there had been enough time to finalise at least some portions of the investigations. She was an exponent of prosecuting people for what one had, and holding such people to account. It was “a luxury to prosecute for every single thing imaginable”. She hoped that that is not what was happening, because it was “flogging a dead horse”. Lieutenant-General Godfrey Lebeya, National Head, DPCI, told Parliament on 19 October 2022 that he had expected criminal prosecutions to have taken place, at least in some of the issues related to Steinhoff. What was the nature of the hold-up?

Adv Breytenbach observed that organised crime was “alive and well, and thriving” in South Africa. The Global Initiative Against Transnational Organised Crime (GIATOC) Risk Index found that South Africa was not meeting expectations. South Africa had a strong legal framework when it came to the prevention and prosecution of money laundering and other crimes, but law enforcement agencies (of which the NPA was admittedly only one player) had failed to check the expansion and evolution of organised crime. The GIATOC’s report stated that the drugs trade in South Africa had become a transnational hub. She listed the following issues from the report:
- Firearms were fuelling organised crime, particularly gang violence;
- Extortion, particularly in the construction industry, and kidnapping for ransom and extortion (which was on the rise); and
- Critical infrastructure theft (South Africa had been “stolen blind”), with very few consequences.
She wanted to get more details on how the NPA planned to combat those and the other issues that were referred to in that report. 

She then referred to what Adv du Plessis was saying towards the end of his presentation – she wanted to hear about the progress of the establishment of the NPA Office for Ethics and Accountability. It was a very important office, especially when everyone knew that “seriously compromised people” continued to hold high office in the NPA. Such people actively promoted state capture and appeared to be carrying on regardless. What progress was being made – if any – on holding those people to account?

Adv Breytenbach congratulated the NPA on finalising 3 600 murder cases with a verdict. The police crime statistics for the first quarter of 2022/2023 indicated that 71 people were murdered in South Africa per day. That gave approximately 25 900 people per annum. 3 600 matters finalised was “but a drop in the ocean”. That figure would have to be improved, and improved significantly. She then moved on to her “old bugbear” – the occupational-specific dispensation. She was told by prosecutors within the NPA that there had been a raft of unfulfilled undertakings and unkept promises. What was the progress with the occupational-specific dispensation? It was “completely destroying morale within [the NPA]”. What was the NPA doing about it?

The NDPP had said with conviction that impunity was no longer a given. Adv Breytenbach hoped so, and all would be “very happy” if that were the case. She wanted to point out that it was not strictly true until people were convicted, and sentenced to imprisonment successfully. The NPA met its target to arrest important individuals, and “few people were happier than [Adv Breytenbach]”. But arrests did not translate into successful prosecutions, nor did they translate into convictions. What South Africans wanted to see was accountability. If the NPA was fuelled by fiercely independent prosecutors, then the NPA needed to act against those people who actively cooperated with, and advanced, the agenda of state capture within the NPA. That was not happening, and there were many South Africans who were watching that, and many who were affected by state capture. All of those people were waiting to see some kind of consequence. Adv Breytenbach asked for more details on what the NPA was doing about the people who advanced the state capture agenda in the NPA. Lastly, she joined the NDPP in thanking the prosecutors who were going to work every day and doing their best, for what was largely a “thankless task” at that point in time. She also expressed gratitude that such prosecutors were working hard to improve things.

Ms Y Yako (EFF) appreciated that the presentation was not made to be complicated. She observed that one of the presenters mentioned how there was a rise in crime and corruption. Had the NPA sat with the ID to find a root cause of why South Africans at a high level in particular were not respecting the rule of law. E.g. white collar crime, political corruption, etc. were at an all-time high and was continuing to rise, and the NPA was not being respected in the part it played in prosecuting criminal activities. Had the NPA had engagements with the ID on why South Africans had that notion that they could get away with this? Why was there a rise in crime? The Committee was finding out that entities such as the NPA were under so much stress, and did not have enough capacity to withhold the amount of crime and corruption that was there, because crime was rising so much. Had the NPA done a study on how to combat the rise in crime in a way that the NPA was respected as an entity that investigated crime to a level where perpetrators were prosecuted, and to a level where people accounted for the crimes that they had committed? Such a study would not intend to scare people but would say that the NPA existed, and was for the country.

Adv S Swart (ACDP) congratulated the NPA on its improvements, given the constraints that it was facing. He acknowledged the prosecutors that went out on a day-to-day basis under great challenges. There were a number of aspects that constrained the NPA improving to a greater extent, and the situation of crime-fighting was “mammoth” in size.

On crime in general: He wanted to ask the same question about murders being approximately 25 900 per year. If one went back to the number of dockets that were opened, then such a statistic was reflected in those dockets. The NDPP admitted that despite high conviction rates, people still did not feel safe in their houses. That was elucidated by Adv Breytenbach in reference to the GIATOC’s report. The report also noted that organised crime was becoming an existential threat to South Africa’s democratic institutions, economy and people. He was sure that that was of great concern to the rule of law, which was under attack in South Africa. Whilst the NPA was doing its best, it was dependent on other role players and their capacities.

Adv Swart touched on the issue of grey-listing. Adv Breytenbach mentioned the money laundering aspect. The NDPP referred to a 2019 assessment. In October 2021, the FATF’s assessment stated that South Africa had convicted one person for terrorist financing since the last mutual evaluation, and was prosecuting one case. That was inconsistent with South Africa’s significant terrorist financing risk. The Committee appreciated hearing about the money laundering aspect, and the attention given to it. But clearly, the terrorist financing was the second leg, and could the NDPP indicate what had been done in relation to that to avoid grey-listing? He appreciated that it was part of a process, and part of a number of bills that were being addressed. But 20 areas of weakness were identified in the mutual evaluation report, one of which related to prosecutions. He agreed with the NPA that there was no way that South Africa could afford grey-listing. Grey-listing would raise South Africa’s risk profile to unacceptable levels. The second aspect related to whistleblower protection. It was highlighted in the NPA’s report, and it highlighted the challenges with the safety of whistleblowers in high-ranking police matters. The Committee was also aware that the issue was mentioned in the Zondo Commission, and President Cyril Ramaphosa’s response to the Commission’s recommendations. What would the NPA be doing to enhance the Office for the Protection of Witnesses? Did the NPA also anticipate proposing legislative changes to the Protected Disclosures Act?

Adv Swart also focused on the challenges highlighted in the NPA’s report with the ID. That related to the NPA’s working model, and its reliance on the SAPS to investigate matters. He felt that that was something the Committee needed to look at very carefully. The Committee had an understanding that there were challenges with the secondment of investigators from the SAPS and the DPCI (also referred to as the Hawks) that were dealing with those high-level matters, at the same time as having to deal with the SAPS matters. There needed to be some legislative intervention to allow the ID an investigative capacity. He understood that there was a task team looking into that. There was a task team looking into the independence of the NPA. Such things could not be waited for too long. It could be that if the NPA came directly to the Committee, it could consider a Committee Bill to assist with secondments, given the large number of matters that the NPA was facing from the Zondo Commission report from the recommendations, and what was being required there. It could be that the Committee could assist in a far quicker method when it came to assisting in that regard. He asked the NDPP to comment on the dependence on the SAPS to assist the ID through secondments. The presentation referenced bank statements from financial institutions, mainly for Transnet and Eskom, which were delaying matters. That was an issue of concern for the Committee, specifically where there were delays in that regard. With the aspect of the absence of the capacity to analyse, process and present digital evidence, he wanted to understand all of the information that came from the Zondo Commission that went across to the NPA. To what degree was that collated, and were analysts also transferred across? What were the challenges when it came to the absence of the capacity to analyse, process, and present digital evidence? How could the Committee assist with that? It was probably a budgetary issue (when it came to capacity).

There were challenges the NPA had faced related to the infrastructure of the courts, court hours, and court sittings. Specifically, there were challenges related to load-shedding and infrastructure. That impacted on targets and performance. Those were issues beyond the NPA. Even basic issues such as Legal Aid South Africa (Legal Aid SA) defence attorneys not being in court, resulting in further delays of prosecutions.

The Committee was aware of budgetary constraints. R1.1 billion was given over the medium-term. Given the huge amount of work, the Committee would do everything to ensure that the NPA was properly capacitated to do its work.

With the cooperation with the State Attorney’s Office, Adv Swart observed that there seemed to be concerns about matters related to civil litigation against the NPA. What were the challenges there, where pleadings might not be filed in time, leading to judgements against the NPA in civil matters, which arose from its criminal matters?

Ms N Maseko-Jele (ANC) echoed her colleagues’ words of thanks to the NPA on the progress of the work they were doing. She felt that there were still other areas where the NPA had to work hard. She appreciated that the NPA’s employees were 60% women. The issue was not numbers – the NPA needed to make sure that it supported those women, and made sure that they were capacitated with work tools so that they could do their work properly. This would avoid the issue of women being said to be incompetent.

She observed that there was an increase in kidnappings for ransom. How would the NPA improve on prosecution for that? It was a serious issue that needed attention.

Ms Maseko-Jele mentioned the Bokgabo Poo murder that was reported in the media. That girl was brutally murdered by a man, and the reports were that the suspect was not committing a crime for the first time. He was out on bail, and raped a nine-year-old girl. The NPA “did not oppose the bail”. She wanted to confirm if what was reported was true. Why did the NPA not oppose the bail, especially on an issue related to GBV? The Committee was working hard on trying to stop GBV, and trying to uproot GBV from Members’ communities. She wanted the NPA to confirm if it was true that it did not oppose bail for the abovementioned suspect. What would happen to the team who was working on that case, if the matter was true?

Dr W Newhoudt-Druchen (ANC) thanked NPA for a lot of improvement it had made, and for the work that the NPA continued to do. She mentioned a target that was not met on the conviction of government officials; 130 out of the target of 232 people were convicted. There was an increase in the number of convictions, but why was it only 130 out of the target of 232?

On the TCCs: In the 2021/2022 financial year, 60 centres were operational. Was there a new number that the NPA had added for the new financial year? Was there an increase in the target?

Dr Newhoudt-Druchen observed that the vacancy rate in the North West was very high. Were those vacant positions critical positions, and where were those vacancies within the North West? What was the current percentage of people with disabilities employed at the NPA? She observed that the NPA gave the number of women but not the number of disabled employees. What was the number of youth currently employed in the NPA?

On the DNA issue: previously, it was said that the DNA testing had a backlog. Where was the backlog, and had there been any improvements in that? Was there a big backlog currently, or was it “moderately okay”?

She mentioned that the AFU’s target was not met. What were the interventions that the NPA would employ in that area? On the cultural changes programme: The NPA had a webinar on racial inclusion. Was there an update on that, and did that webinar assist with solving some of the issues within the NPA regarding racial inclusion?

The Chairperson asked who extended the NPA building lease to a month-by-month contract. What were the financial implications? He added that if the NPA did not have the answer, it could give the Committee a written response. With respect to the building and the increased number of people occupying the building (which resulted in a need for more space), did the NPA think of a “hot desk” approach, to try and ensure that it innovated around the issue of space within that building? How long would the process of finalising the permanent structure of the ID take? The President had already made mention that the ID would be made permanent, and that the NPA would be working on the structure, so the Committee wanted to have a project plan on when the NPA anticipated that structure being finalised.

What was the strategy on dealing with outdated technology? The Committee understood that this was not only the NPA’s problem, but it was a “big problem” in the security cluster that would make the fight against crime and corruption into “a mockery”. Adv Swart had mentioned the issue of terrorist financing – the NPA would also need up-to-date technology to fight that.

Adv Breytenbach had raised the issue of the differences between the NPA and the Hawks with respect to the Steinhoff matter. Had the NPA received any donations from the German government, or what was the nature of the support it received from the German government? Had the NPA received any donations besides that from the German government, if it had given the NPA anything?

On the Aspirant Prosecutor Programme: it was the Chairperson’s view that those applying to be aspiring prosecutors were largely young people starting with their careers. He suggested that the NPA try to link the Aspirant Prosecutor Programme with the Youth Development Strategy. It would then perhaps be important to ensure that the programme was accredited by the Legal Practice Council (LPC). Young people might want to move to other careers in the future, so perhaps the NPA could ensure that it had a programme that was accredited. If young people wanted to join the Bar, they would not have to start from the beginning.

The Chairperson observed that the NPA spent 99.7% of its budget (which was commendable), but achieved 71% of the results. Would the NPA say that that was the most efficient use of financial resources? With cases, how many of the 220 persons or entities recommended for prosecution by the Zondo Commission were currently being dealt with by the NPA task force? Of the 220 being addressed by the task force, how many had been arrested and brought before court? Of the 65 accused enrolled for prosecution in 20 cases, how many were on the list of the 220 persons recommended for prosecution by the Zondo Commission? Of the 27 cases recommended by the Zondo Commission for recovery of assets, how many were being dealt with by the AFU, and how many had preservation orders? How many had been forfeited to the state? Could the NPA provide in writing the list of case numbers and the values involved, and identify the corrupt contracts or bribes that the order related to? Had the NDPP come to a conclusion on whether any Member of the NPA contravened section 32(1) of the NPA Act? Had the NDPP taken any steps in terms of section 4(1) of the NPA Act against any person?

The Chairperson observed that Members had shown a lot of interest in the topic of the potential grey-listing. Members felt that the Chairperson might not have given the NPA enough time to explain the grey-listing. If there was anything that the NPA was not able to say, it could start by speaking about grey-listing for a few minutes. It was something that was topical, and of serious interest to South Africans and to the rest of the world.

Adv Batohi gave an overview of the grey-listing issue. Adv de Kock would speak in more detail on the issue, as he straddled the strategic and technical levels, where the progress was being monitored on the action plan that was developed by various entities in Government. Those Government entities were required to do various things to try to avoid grey-listing in the past year. In that regard, there was a range of Government entities which were required to do various things related to the various immediate outcomes of the FATF review process. These entities included law enforcement, the NPA, the DPCI, and also various entities in the financial sector, such as the Treasury, the Financial Intelligence Centre (FIC), the SARB, etc. The Treasury had taken over the coordination function. The entire action plan was being closely monitored in service of what South Africa needed to do to avoid grey-listing.

Members had raised questions on standalone money laundering cases and terror financing matters. If one looked at the annual report, there were a number of money laundering cases that had been prosecuted. Those cases were predominantly ones where the person that was responsible for the predicate offence was also the money launderer. Such cases did not deal with so-called “professional money launderers”. For example, dealing with banks, estate agents, lawyers who used trust funds, etc. to launder money. That was where South Africa had been found to be lacking. This related both to money laundering and terror financing, where the financial sector played a very important role. The FIC, working with law enforcement, played a crucial role, in addition to working together with the banks and the private sector in general. It was only with good financial intelligence that law enforcement would be able to properly deal with those matters. When it came to high-level interventions, the NPA had been engaging with the FIC, and also looking at engaging in the various fora such as the South African Anti-Money Laundering Integrated Task Force (SAMLIT), where the banks were also represented. Such a forum also involved private sector and Government entities. South Africa had to find a way where the financial intelligence was better regarding those issues, so that law enforcement could have good analytical reports and act on them. The NPA had been engaging with Adv Xolisile Jennifer Khanyile, Director of the FIC, to look at how the NPA could get a better product, so that law enforcement could act.

Adv de Kock said it was important to recognise that South Africa’s response to the mutual evaluation report was not just an NPA response. It was a whole of Government response. That response was led by the Treasury, and by the FIC. The NPA was largely responsible for three of the outcomes from the FATF report. Many of the outcomes were talking to the financial sector, and talking to regulations applicable to both the banks and other industry players that were dealing with cash, with flows of money, with trust funds, and trust accounts. A lot of work that was relevant to the FATF outcomes spoke to the financial sector, hence the legislation tabled by the Treasury to address many of the gaps identified by the FATF in its evaluation of South Africa. As far as prosecution and investigation was concerned, this was where the NPA and investigating authorities had an active role to play in addressing those particular outcomes, as well as the AFU, and the Asset Recovery disciplines within the state machinery. The NPA also had a role to play in international cooperation, mutual legal assistance, and the extraditions that happened within South Africa. The NPA was working very closely with the FIC and the DPCI. A workstream had been created to address the issues of intelligence, investigations, and prosecutions. As a result of the work within that workstream, the NPA had identified that since the evaluation report was done in the country until the end of March 2022, when it submitted information to the FATF, the NPA had finalised 534 money laundering cases within South Africa. Those 534 cases spoke to the collaboration between the FIC, the DPCI, and the prosecution. A lot had been done to address the issue of money laundering, but more needed to be done to address the issue of standalone money laundering. That was where the NPA charged individuals with money laundering counts as standalone counts, as opposed to charging individuals on money laundering in relation to cases that involved other offences, which the NPA called the predicate offences. At that moment, the NPA had an additional 72 money laundering cases on the court rolls. This was the challenge that he spoke about in the meetings of the directors of public prosecutions – those were the cases that were linked to other offences, and that was the reason why the NPA sometimes had difficulty in getting those cases finalised speedily. It still remained an NPA priority to finalise such cases. With investigating and prosecuting money laundering offences, the NPA had also created the Money Laundering Desk, which coordinated the work of all its business units, including the AFU. Some of the information that had been provided to the Committee on recoveries, particularly recoveries linked to state capture, had already been furnished to the FATF in terms of some of the successes that the country had gone through. The second important feature was the creation of the ID. When the FATF evaluation took place, the ID was still in the early stage of being set up. Since then, there had been a significant amount of money and budget allocated to the creation of the ID. One of the main issues addressed in the FATF evaluation was South Africa’s inability to deal with serious and complex corruption, and the inability to deal with state capture. In the interim, the NPA had submitted to the FATF as part of the response of the country, that the ID had done significant work in taking that forward, and cases had been forwarded to the FATF to demonstrate work done on corruption and state capture. The evaluation hub was sitting within the FIC, and on a quarterly basis, the directors-generals of the NPA’s various departments were meeting in the inter-departmental committee. At the last inter-departmental committee, which was chaired by the Treasury, the NPA was commended for its work with the DPCI in the interim in the last two years. The presentation to that committee noted that the NPA and the FIC had made great strides in investigating and prosecuting, and it had demonstrated that via the evidence it submitted to the FATF. The FATF would have to do an evaluation, which he understood would happen in January. The NPA was confident that it was doing significant work to speak to the outcomes relevant to investigation and prosecution.

As far as terror financing aspects were concerned, those matters were led by the intelligence agencies of South Africa. The NPA was participating in that workstream, and there was another workstream that dealt with terror financing. The NPA had a significant conviction since the last FATF evaluation. One was The State v Thulsie and Another, which involved twin brothers who were South African citizens being charged with 12 counts relating to contraventions of South Africa’s primary counter-terrorism legislation, the so-called POCDATARA. This was in relation to a conspiracy to carry out terrorist activities in South Africa, and to leave South Africa to join a terrorist entity named the Islamic State of Iraq and the Levant (ISIL) in Syria. The accused were convicted. Another important matter in which the NPA obtained a conviction was The State v HJ Knoesen. Knoesen was a retired pastor and former South African National Defence Force (SANDF) member who was planning terrorist activities and a coup d’etat between December 2018 and 2019. Knoesen, the general of a right-wing group called the Crusaders, was accused of planning an insurrection and genocide of South African citizens, particularly black South African citizens. More than two years after his arrest, his trial started on 28 April 2022. Hefty sentences were handed down, and he was given two life sentences of imprisonment for terrorism-related charges. There was also another significant matter that the NPA believed would help it in the new evaluation – this was an application by the United States of America (USA) for assistance in relation to the “black axe” scam, which was an internet dating scam. Those suspects were arrested in Cape Town on 19 October 2021. The US Secret Service was investigating that matter. The NPA ensured successful extradition in relation to that particular matter. The amount of money involved in that scam (which related to money laundering) was €1.2 million (euros). Internationally, the Secret Service was looking at 75 suspects, 49 properties, and Interpol notices had been issued for at least seven accused. Adv de Kock was highlighting those incidents because it was what the FATF evaluators would want to see. Specifically, the FATF would want to see how South Africa cooperated with its international counterparts, what measures it was putting in place in order to deal with it, and what case studies it could present to the FATF to demonstrate the work it was doing. As he spoke, the FATF had just concluded a plenary session in France, and the NPA participated in that plenary. The NPA participated alongside colleagues from the Treasury, the SARB, the Financial Conduct Authority (FCA), and colleagues from other South African institutions. It was clear to the NPA, from where it was with its evaluation at the moment, that South Africa was in a much better position now than it was in 2019. South Africa was in a better position to respond to the issues that were identified as gaps within its financial system. Secondly, it developed legislation that would hopefully be passed before the next evaluation happened. Thirdly, it organised its law enforcement agencies to cooperate better with each other. The NPA depended on the FIC to give it better quality reports that provided an analysis and would help law enforcement to investigate those matters. Fourthly, there was the fact that Judge Raymond Zondo was appointed to look at the question of corruption in South Africa, and what went wrong; that had now been completed. The work of the Zondo Commission was not completed at the time of the FATF evaluation. Additionally, South Africa had a comprehensive response that the President would table in Parliament that would indicate the steps the country was taking to address corruption in particular. A lot of the initiatives that the NPA had identified within the scope of that work had spoken to some of the issues identified by the FATF as part of deficiencies within South Africa’s system. If one looked at South Africa’s progress holistically, it had made significant progress. Whether or not South Africa would be grey-listed would depend on the evaluators, and the way in which the evaluators receive the information and the case studies presented to them. The NPA was confident that the manner in which the NPA was organising itself meant that it would be able to put up a good case to the evaluators when it met in January. The matter of the initiatives related to the FATF evaluation was a very complex and technical area of the NPA’s work. It could provide written responses on all of those matters. He had highlighted some of the areas that the NPA was currently busy with.

Adv de Kock addressed the Steinhoff matter. As far as the Steinhoff case was concerned, the NPA and the DPCI had put a great effort into trying to get that matter to a state of readiness required for the purposes of a criminal prosecution. South African organisations had “left no stone unturned” in addressing that matter. At a national level, organisations were meeting to receive reports from the prosecution team. He reassured the Members that the Steinhoff matter was getting the necessary attention that it deserved. The challenge was that the NPA could not speak too much about what it was doing as far as Steinhoff was concerned. He highlighted some of the issues that the NPA was busy with. Prosecutors were focused on ensuring that the required evidence that was necessary to support a successful prosecution of the envisaged preferred charges was being secured. A number of outstanding witness statements were being dealt with. The NPA was assisting the investigators to compile the evidence in that regard. There was a number of outstanding pieces of chain evidence that needed to be gathered. There was the completion of outstanding legal mutual assistance requests from foreign jurisdictions that the NPA also needed to finalise.

On the Price Waterhouse Coopers (PWC) auditor’s report: The NPA had received an updated report from PWC. Adv de Kock elaborated on the complexity involved in that particular matter: The PWC report had not been finalised because the matter was so complex. The prosecutors had engaged with PWC on its audit and its audit findings. There was still some action required on the PWC report. To date, 329 statements had been filed in the case docket, including affidavits from the various Steinhoff investors, the CIPC registration documents of companies incorporated, and various other documents that had to be sourced from the stock exchange from the external auditors of Steinhoff. There was still much work to be done with the mutual legal assistance application. Two requests for mutual legal assistance had been submitted to two European countries (Adv de Kock would not name the countries). There were still outstanding mutual legal assistance requests that were expected from seven countries, from which the NPA needed to obtain information urgently. The NPA was also looking at people acting as two or four witnesses in that particular matter, and consultations were currently happening in relation to that. The prosecution team had engaged the assistance of the private sector to support the work of the prosecution and investigation team. The NPA was awaiting a particular report from experts that had been assigned to assist the prosecution team. A draft indictment had been prepared, although the final decision as to who would be charged, how many accused would be in that particular matter, and the final indictment would still need to be finalised. The AFU was involved and was working closely with the investigators and prosecutors assigned to the case. Overall, the NPA had said to the team that it needed to move the case along as speedily as possible. One of the initiatives it recently decided on was that the team would be located together so that team members could work with each other on a daily basis. Premises had been identified in Gauteng for that purpose, i.e. to ensure that the team could do everything in its power to move the case along. The NPA was also in consultation with the German authorities to see what additional support it could get from them to deal with its case, particularly those citizens of Germany that the NPA was interacting with. There were one or two people who were critical to that investigation whom the NPA was interacting with. On the DPCI: The NPA had two recent meetings with the DPCI. One was over the previous weekend. The DPCI confirmed that it was on the same page as the prosecutors in that matter. The question was raised with the DPCI whether there was any disagreement in terms of the approach that had been followed. The DPCi confirmed that there was no disagreement to that effect. The NPA’s understanding was that previously, there was a suggestion raised that there could be a prosecution on a share trading issue. That was raised more than a year ago. Subsequent to that, the tribunal that was seized with that particular matter ruled that the FCA’s decision in relation to the share trading issues was overturned by the tribunal. The share trading issue was the only thing the NPA could think of that could have been potentially prosecuted, but the DPCI and prosecutors were aligned. The teams were working together to ensure that that case was brought to court in the shortest possible time. 

Adv de Kock said that the SARB and the DPCI, concerning the investigation of the exchange control regulations, had been in touch with each other. He understood that a further meeting was going to be held with the SARB to understand whether or not the SARB wished to refer criminal charges for investigation to the DPCI. That meeting had not happened. In the interim, the officials dealing with the matter had raised the secrecy provisions relevant to the work of the SARB. But those ongoing discussions with the members of the DPCI were currently taking place with the SARB.

Adv Rabaji-Rasethaba spoke to the value of recoveries relating to corruption or related offences, and what the AFU would do as far as not achieving that target was concerned. A lot of interventions had occurred. The NPA had over 25 DPCI investigators co-locating with the AFU. That was a “game-changer”, and would help the AFU to speedily deal with investigations of the proceeds of crime, to ensure there was no dissipation of assets. The AFU was working closely with a task team that included DPCI colleagues as well as prosecution colleagues, on a matter related to corruption or related offences. Whatever strategies that the task team or the ID had put in place, as far as dealing with corruption was concerned, the AFU would then be able to with that matter.

On the 26 recommendations made by the Zondo commission, and how many the NPA had dealt with: the Chairperson had said the NPA needed to submit a response in writing with the case numbers. The NPA had dealt with well over 13 matters out of the 26.

Adv Rabaji-Rasethaba observed that there were a lot of NPA interventions. Some of them related to the AFU targets, and others related to the FATF recommendations. The FATF recommendations relating to asset forfeiture were Immediate Outcome 8, which dealt with the fact that the AFU (at the time of assessment in 2019) had not done any recoveries related to state capture. As it stood, the AFU recorded over R13 billion in frozen assets. The AFU had signed an MOU with the DPCI, SARS, and the FIC relating to the Unexplained Wealth Orders. The NPA had seconded four senior members of the AFU to work at SARS on that initiative. That would address fighting corruption, as well as the FATF recommendations.

Adv du Plessis spoke to the progress of the Office of Ethics and Accountability (OEA). There had been extensive progress – the NPA had done the organisational design, and had done a significant amount of internal engagement, training, and preparations for it. The NPA could not finalise the process, and appoint staff to the Office until the regulations had been signed off on. The NPA was at the final stage of that, and hoped to do it before the end of the year. The Minister of Justice and Constitutional Development had also committed to that. Once the regulations were in place, there would be a process to appoint the new leadership and the new team. It was a transition process because the NPA had the Internal Management Unit that the OEA would be taking over from. There had also been a lot of engagement with the bargaining council. It was a complicated process, but very well advanced, and the NPA was hoping that from early next year, the structures would be put in place for all the reasons that were mentioned.

There was a question on the Deputy Director’s salary – it was not just an Occupational Specific Dispensation (OSD) process, and it was broader than that. The NPA was fully aware of how demoralising that issue was, and the NPA had been working on it for a long time. There was ongoing litigation related to that matter. There were “a lot of moving parts”, but the NPA had engaged with its counterparts in the Department of Public Service and Administration (DPSA), and had its concurrence with the proposal the NPA made for a new salary dispensation for the affected colleagues. The colleagues were Deputy Directors of Public Prosecutions, and certain Chief Prosecutors. That proposal had been discussed extensively with the team that had been set up. The NPA had an internal team that it was working with; it also met with the team regularly. The final decision was not in the NPA’s hands; it was a decision that had to be signed off by the Minister of Finance. The NPA was also engaging with the Director-General (DG) of Finance, and with the Minister. The NPA’s Minister was also very supportive. The final step was to take the proposal back to the Treasury. That was happening in the context of a very complicated wage negotiation, and broader discussions around the issue of the OSD and the LP-10. It was a complicated situation, but the NPA felt that it had made progress on that. The perception that nothing had been done about it was incorrect; the matter had been a major priority for the NPA, and it, unfortunately, involved sign-offs from other departments.

The Witness Protection Unit (WPU) discussion was ongoing. One would have seen in the President’s response to the Zondo Commission on Sunday night that the decision had been taken that there would be a review of witness protection but also of the Protected Disclosures Act to make sure that both of those were bolstered in light of recent experiences that the NPA had, and the priority that had to be given to whistleblowers. There was engagement with civil society actors on that. The NPA was part of the team working on that legislative reform. There needed to be a decision taken as to the final placement of the WPU. It was currently based within the NPA; theoretically, it should be under the Department of Justice and Constitutional Development (DoJ&CD). That discussion was ongoing, and once the amendments to the legislation were made, the NPA would be in a better position to decide. At that moment, witness protection was still being managed by the NPA. It still had 100% performance achievement in that space. The issue of witness protection was currently outside the mandate of the NPA (for reasons that the Committee knew about), but it was something it spoke about regularly, and it knew how important witness protection was. It was not just about protecting witnesses; South Africa also had to move the process forward on whistleblower protection. That would involve not just Government, but also engagements with the private sector.

On employing people with disabilities and youth: there were 24 people with disabilities who had disclosed their disability at the NPA. The NPA had a campaign around that. It was not a high percentage of people, but it was something that the NPA took seriously. It engaged on a number of initiatives around that segment of staff. The category of youth was defined as people under 35. The NPA was proud to say that 21% of the NPA fell into that category. In line with the Minister’s commitments to modernisation of the organisation, and to bringing younger people into its ranks, it would be ramping that up. It did not have specific targets yet within its annual performance plan (APP) for next year, but it would be targeting youth employment extensively, and not just in the aspirant prosecutors programme. This would also be part of how the NPA engaged with its broader recruitment strategy. The NPA needed to bring more youth into its organisation.

Adv du Plessis observed that racial inclusion was an ongoing process. It had an important impact, because cultural enhancement cut across many areas. Racial inclusion, or the question of racial diversity in the organisation, was vitally important. The racial inclusion seminars were a key pillar of that (and one element in a broader process) and there would be further seminars of that nature. If the Committee wanted more information, the NPA could send it the write-up of that seminar.

On space, and innovation around hot-desking: Covid-19 showed the NPA that it needed to do more on that. It was a bit difficult with the nature of the work that prosecutors in particular did, and the engagements they needed to have with witnesses. Hot-desking was more complicated, but in the context of its head office staff, it was something that the NPA was looking into. The NPA was also looking at the future of the building it was in, with expanding the building or discussions it was having with the DoJ&CD on that. The owner of the NPA’s building was in business rescue, so there were some complications in engaging with the owner. The NPA was ensuring that all staff had a space to work in. Hot-desking was one of the options that it was exploring, and it was taking lessons from the Covid-19 era.

The permanent structure of the ID was pertinent with regards to what happened the previous Sunday night. As one would have seen from the NPA’s press statement, it was a game changer for the NPA, and was something it had been working hard on for some time. The announcement of the President was a key step, but legislation would need to be amended. Section 7 of the NPA Act needed to be amended. It was not just about the permanence of the ID, but also about the expanded powers, particularly amending section 30 of the NPA Act. The NPA reported to the Committee that last year, the NPA took the decision to create the ID as a permanent structure, through its own organisational design process. The NPA had put out advertisements for positions. There were over 80 positions advertised. Those positions were part of the move towards permanence, and the NPA was in the process of filling those positions. Now that the announcement had been made by the President to include the expanded powers, the NPA needed to move the process forward to create a new entity within the NPA with those additional powers. Such an entity would require new protocols, new procedures, and very important changes in how the ID operated within the NPA. The NPA had just come out of the ID strategic plan meetings, so there was an operational work plan that was being developed. The NPA’s intention was that as soon as the legislation was amended – the Minister was committed to that process to expedite it – then the plan could be finalised. Adv Swart had asked what the Committee could do in relation to the ID, and Adv du Plessis remarked that it would be really good to expedite the process of expediting the amendments, particularly section 7 and section 30 of the NPA Act. The NPA would then be able to move ahead “full steam” with the permanent and expanded ID process. The NPA had not waited for that moment; it had been working on the ID-related process for some time.

Adv du Plessis observed that the NPA had engaged with Germany on many different operational levels. The NPA had gone on a number of exchange visits and study tours over the years. With actual funding from the German government, there was a discussion that the NPA was having with the Treasury and the German government for a multi-year capacity-building initiative. That funding would not come to the NPA; it would go through the Treasury according to the prescripts that had to be followed, and to protect the NPA’s independence. That negotiation was still in process, but it would be managed by the Treasury, and the money would be allocated to the NPA through the normal fiscal process, i.e. through the Reconstruction and Development Process (RDP) fund. This was reported in the NPA’s annual report, and it would continue to do so moving forward.

On the aspirant prosecutors programme: it was important within the initiatives that the NPA had to bring the right people into the organisation. There was an in-depth negotiation in progress to amend the Legal Practice Act, and the associated amendments that were required to the NPA Act. The NPA could not look at an accreditation of the aspirant prosecutors programme until the amendments happened. There were many amendments that would give a higher status to prosecutors within the legal profession, largely through amendments that the NPA was proposing to the NPA Act, as well as to the Legal Practice Act. There would also need to be an in-depth engagement with the LPC to make sure that that level of status of prosecutors (including the NPA’s aspirants) was elevated, including through the LPC’s accreditation of the aspirants.

Adv du Plessis responded to the Chairperson’s question on 99% expenditure against 71% achievement of performance goals. It was a difficult comparison to make, because the NPA “did not work in a scientific space”, where 100% meant 100%. Adv de Kock made the point that 71% compliance with performance indicators at that level was tracking historical trends of the NPA. It was an improvement on previous years. It also tracked international trends. It called into question the larger issues around the NPA’s performance indicators, and whether or not they were 100% useful in broader questions that the NPA was asking itself: Was it making South Africans safer, and was it in a better investment climate? Perhaps the Chairperson had sparked an important discussion as to whether or not those indicators were the right ones.

Adv de Kock responded on the SSCU cases. Concrete initiatives were a work in progress. The NPA established 18 more SSCUs in the country. Previously, the SSCUs were only in the larger centres of South Africa. Since the NPA started that initiative last year, it had SSCUs represented in all the provinces. The NPA did an evaluation of court rolls to understand where the greatest demand was, and hence the initiative to increase SSCUs at those centres where additional SSCUs were required. The NPA was reviewing the manner in which it enrolled cases within its SSCUs. There was a period in the NPA’s history in the prosecution that its SSCU colleagues were given targets to achieve. The NPA had moved away from that completely. It now said that it wanted to make an impact, and it wanted to prosecute complex and serious corruption. The court rolls were congested, and that remained a challenge. An additional initiative that the NPA had taken was to enrol cases in the high courts. It had demonstrated recently that more and more cases that would have previously been enrolled in the SSCU courts were now being enrolled in the high courts. The third initiative related to the NPA’s interaction with the judiciary. The judiciary was responsible for managing the cases on the court rolls. That was an onerous responsibility, because the court had to weigh up the competing rights of the accused and the state, particularly in criminal matters. The NPA was competing for time and resources on the court rolls. There was a massive challenge with South African court rolls being overcrowded. The NPA had engaged with the National Efficiency Committee of the Chief Justice. That committee had been resuscitated by the Chief Justice. Committee meetings had been held recently. One of the things that the NPA would look at was how better to manage cases through the courts.
The finalisation of court work would be the result of both the active participation of the lawyers of accused persons, and for the prosecutors representing the state. That was not a one-sided issue. As an example: When lawyers were bringing “thousands and thousands” of interlocutory applications to delay cases, one needed to think about that. One needed to think what it was doing to the system when cases could not move. On a regular basis, lawyers were bringing all sorts of applications to delay the progress of cases on the court rolls. Adv de Kock said unequivocally that “in many instances, these applications are being brought to delay cases from progressing on our court rolls”. The NPA had briefed Senior Counsel to also look at how to deal with the question of delays that arose because of various interlocutory applications that were brought in particular in relation to complex commercial and complex corruption cases. The NPA’s Senior Counsel had recently produced a document. The NPA was also looking at the kind of approach that its prosecutors must consistently follow in terms of opposing interlocutory applications where it was justified to oppose it, and also to insist that prosecutions must proceed, so that delays could be avoided. The Committee could also assist the NPA with that issue. Perhaps it was time to review the Criminal Procedure Act. The NPA had been talking for a long time about the Law Commission looking at the Criminal Procedure Act. There was a need to consider if there were other measures that the NPA needed to introduce in order to speed up the process of cases on South African court rolls. The Chief Justice had indicated to the NPA and to the NDPP that in order for the NPA to deal specifically with the question of commercial and corruption matters, it must engage with each of the Judge Presidents of the divisions. The NPA had already issued a directive to all of its DPPs to do that. The NPA would try to do that on a more case-specific basis. It would look at the cases with the greatest impacts, and try to advance those cases on its court rolls as best it could in collaboration with the legal profession, and ultimately under the direction of the court itself. The NPA remained a participant in the criminal justice system, but was not in control of how cases were finalised on the court rolls.

On the number of government officials convicted of corruption, and the target not being met: this also spoke to the way in which the NPA sometimes set its targets. It would review that in the upcoming strategic review of the NPA in November. If one looked at slide 11 of the presentation, there was an increase of 51% of the number of government officials that were convicted. That demonstrated that a lot of work was going into that specific area. 44 more officials were convicted during the reporting period. The other significant issue to recognise was that conviction of officials was also linked previously to the work of the SSCU, where the target was set according to the number of people convicted. The NPA had since changed the focus of the work of the SSCU to deal with more highly complex work. That had also impacted on the number of ordinary corruption matters involving government officials being brought. The NPA wanted to make a case in terms of the broader corruption work, and the broader complex commercial work. It would review that as well as part of the process of review within the NPA.

Adv de Kock touched on the issue of organised crime. The NPA was in partnership with the police. The police were mandated to investigate organised crime, and to ensure that cases were brought to it for prosecution. The first important initiative that the NPA was currently strengthening with the police (and the DPCI in particular) was the parties’ ability to work collaboratively with each other. The NPA identified that there was no holistic organised crime strategy that had been crafted. The NPA recognised that it was time that it ensured that a holistic organised crime strategy was crafted. The NPA had various strategies to deal with specific aspects of organised crime. For example, the NPA had a gang strategy, a rail theft strategy, a non-ferrous metal theft strategy, and an Eskom strategy (and challenges relating to Eskom, etc.). But the NPA did not have an overarching strategy to deal with organised crime in particular. The NPA felt that in light of the GIATOC report (which was presented to the NPA management team), one of the key points that came out of that discussion was that the NPA would engage with its police counterparts to develop such a strategy, in consultation with some of the experts in that field. It would then urgently drive the process forward, so that it would develop a coordinated organised crime strategy for the country. In the interim at an operational level, the NPA did its best to focus on specific crime types, such as essential infrastructure. It also had another initiative looking at Eskom, where it was looking at cases that had been referred for investigation, so that it could “double up” and ensure that those investigations could be finalised as speedily as possible, and bring various perpetrators to court. It was important to look at things holistically, and see how to bring down the ability of organised crime to feature in South Africa, and to take root within the country.

On the Bokgabo Poo murder and bail granted to the accused: Adv de Kock was not sure of the details of that particular case, so the NPA would provide written response after it obtained the information from the relevant DPP.

Adv de Kock addressed a question on the figure of 3 600 murders that was presented. The NPA was very concerned about the murder rate in South Africa, and the increasing murder rate in the country. The NPA had engaged with the National Commissioner’s office. The NPA set up an initiative to look at how best to address that collectively between itself and the police to ensure that the murder rate could be brought down. One of the initiatives would be dealing with dockets that were not getting attention at police stations. The NPA wanted to identify the police stations with the highest number of dockets on murder, and for prosecutors and investigators to look at all of those dockets. There were so many dockets that had been opened at police stations but were not getting attention. That was one of the initiatives that the NPA wanted to enhance, to ensure that it played its part in preventing murders from happening going forward. Another key initiative was the community prosecution initiative. The NPA had established a community prosecution initiative. The further implementation of that initiative would be the next phase of the work of the NPA. One of the areas that the NPA had to identify in community prosecution was serious violent crime. The NPA would have to work very closely with the police (in reactive investigations), and work with communities in preventing crimes (and particularly serious violent crimes) from happening. The NPA would have to work with local councillors, with non-government organisations (NGOs), and with municipalities. The NPA hoped that that would also bring about a change in the crime rate. The implementation of the crime prevention strategy was something that was spoken about during the presentation by the GIATOC. The NPA felt that more could be done by the country to deal with the crime prevention strategy.

Adv Nomvula Mokhatla, DNDPP: Legal Affairs, NPA, responded to the question on the NPA’s relationship with the State Attorney’s and the increase in the default judgements. It was not only an NPA problem; it was an issue that all Government departments had. She felt that the question should have been answered by the Solicitor-General, but she would answer it, because the NPA really wanted to be independent. In the near future, the NPA would be attending to its own matters, so the NPA had done that in order to address those issues that had been raised. The NPA had reached out to the Solicitor-General to ask it to increase the capacity within the State Attorney’s Offices, in order to at least dedicate certain people to deal with NPA matters. The NPA represented approximately 60% of the matters that the State Attorney was dealing with countrywide. An MOU was signed between the NPA, the NDPP and the Solicitor-General, which enjoyed the backing and support of the Minister. The MOU spoke about increasing capacity by increasing the establishment of the State Attorneys countrywide, and those people would in turn be placed in the DPP’s offices to service the NPA in their region.

Internally, the NPA had gone through a work study, which had been approved. Out of that work study, the NPA had identified that it needed to increase the capacity of the Legal Affairs Division. People would be placed in the regions, and the NPA was looking at 35 more personnel to be placed in the regions. In doing so, further processes would then unfold, which included the decentralisation of the services that had been offered at the regional offices. The offices would now be provided at a divisional level under the leadership of the DPPs. Head Office would then deal with the matters that were related only to Head Office, and certain specialised divisions. Additionally, the ID and the AFU required highly skilled attorneys and professionals to deal with their matters. In that regard, the NPA asked the Solicitor-General to give it some of his delegations, so that some of the NPA officials would be able to provide the ID and the AFU with the State Attorney services. The NPA was proud to say that in a meeting the previous week between the Solicitor-General, the NDPP and the Minister, an agreement was finalised, and the NPA was hoping that it would be getting those delegations the following week. The added funding that had been provided to the NPA had afforded it an opportunity to go through a tender process, which had been finalised. The supply chain had gone out to the market to look for a digitised system, which would enable the NPA to link up NPA processes and programmes with that of the State Attorney to avoid duplications of matters, and to avoid certain matters slipping through the cracks. The MOU that the NPA had signed with Business Leadership South Africa (BLSA) had afforded the NPA an opportunity to get an expert who was looking at the NPA’s processes and ensuring that it could compete with the “big guns”. The NPA was anticipating that a lot of challenges would come out of the state capture matters, and corruption matters that were being dealt with. The NPA anticipated “Stalingrad tactics”, and South Africa definitely needed to have a hands-on State Attorney. There was a need for hands-on counsel who would be dealing with the NPA’s matters. Adv Mokhatla wanted to assure South Africans that the NPA was doing its best to look at opportunities and ways to talk to its counterparts and stakeholders, so that it could look at ways of getting proper counsel onboard to assist the NPA with its AFU and ID matters to deal with state capture matters.

Adv Andrea Johnson, Head of the ID, NPA, spoke to IT and Zondo Commission resources. The NPA had already been in communication with Prof Mosala from the Zondo Commission. Those engagements began in March 2022. Much work had been done to first understand what the database was composed of in terms of hardware and software. It was an “impressive piece of equipment”, but there was a lot of upgrading to be done, with both the hardware and software. The NPA had engaged on IT specifications, and was in the process of procuring what it needed to set up its digital lab within the NPA premises in Silverton. The NPA had also been able to onboard the staff that were at the Zondo Commission. In the main, it would be those who accessed the data, did data analysis, as well as the key person, who was the only person who had the key access to all of the Zondo Commission data. Those people were currently in the ID space, and the NPA received confirmation the previous day that all of their contracts (14 of them) would be extended for a further period of 12 months. Additionally, the NPA was still engaging with Prof Mosala, who was engaging with the Office of the Minister of Justice and Constitutional Development. Such engagements had indicated that it might be best, now that Judge Zondo had presented his final report, that all of the data (the database) be under the NPA, so that the ID had unrestricted access, and was still able to allow access to other law enforcement agents and interested parties, albeit that access must be very controlled so that the data was not compromised, and/or there was no unauthorised access.

Adv du Plessis commented on the building lease. The NPA was no longer on a month-to-month lease. That had changed a year ago, and the NPA was now on another five-year lease. The building was on a month-to-month lease for so long because of complicated negotiations with the Department of Public Works and Infrastructure (DPWI) to include the services in the current contract that the NPA had. The NPA was no longer on a month-to-month lease with the VGM Building.

Adv Batohi commented on whether any staff members were in contravention of section 32 of the NPA Act. Section 32 dealt with the requirement that NPA staff members must act independently and in good faith. Section 32(1)(b) dealt with interference in the work of the NPA, and those were criminal offences in terms of the Act. The NPA would respond in writing to that question, as well as to a question on statistics. On the issue of contraventions, the Committee had the NDPP and the ExCo’s full commitment on this issue. It also gave the assurance that prosecutors who did not act in accordance with section 32(1)(a) of the NPA Act would be dealt with in disciplinary processes or criminal prosecutions. Regarding section 32(1)(b), the NPA was in accordance with the Rodrigues judgement. The NPA had informed the Minister that it would be appointing counsel to look at all of the initiatives and efforts that the NPA was making to deal with the Truth and Reconciliation (TRC) matters, and any possible interference in the work of the NPA.

Adv Batohi pointed out that in order to deal with organised crime effectively, one had to have a very effective crime intelligence capacity. There was no other way of dealing with organised crime effectively if South Africa did not have a highly efficient, uncompromised, crime intelligence division, acting with the highest standards of skills and integrity. The NPA also had to look at levels of corruption in law enforcement, and how this affected the ability of law enforcement to deal with organised crime. The GIATOC Risk Index was referred to, and as Adv de Kock said, the NPA invited the entity that conducted the research to present to the NPA and its ManCo, and also to the Justice, Crime Prevention and Security (JCPS) Ministers’ Retreat because of its importance. She pointed out that kidnapping was an organised crime phenomenon. The NPA was not sitting back as a “passive passenger” in that. It realised that it needed to work closely with other entities, and that was why it had been engaging with external partners, and also with its colleagues in the SAPS to try and become more focused in dealing with various organised crime matters in a collaborative way. The NPA was “joined with the SAPS at the hip”, and it did require all of the capacities and capabilities in the SAPS before it could deal with those issues in the way that it should. It was a poor reflection on South Africa if it was regarded as a haven for organised criminals.

On holding senior members to account: the NPA was aware of the issue. There had also been media reports about a particular DPP, and processes relating to a DPP. There were also processes related to certain senior members of the NPA. Those processes were at an advanced stage. There had been engagements with the staff members concerned. Those were formal engagements. The NPA had received responses, and there had also been engagements with unions and legal representatives. The NPA had received responses from staff members. Her understanding was that some of those matters had been set down for December and January.

On the issue of women getting support: Adv Batohi observed that the NPA was serious about empowering women in the NPA, particularly in senior leadership levels. The NPA had employed women not simply because they were women, but because they were highly skilled, and came with high standards of integrity. These women were experts in their field, and the NPA gave them significant support. The NPA was also trying to empower women at the lower levels so they could take up leadership positions moving forward.

Adv Batohi was also quite astounded when she read in the media that the perpetrator in the Bokgabo Poo murder was out on bail regarding another rape matter. She had asked for a report on that matter, and once the NPA received it, it would send the report on to the Committee.

Adv de Kock also noted that the targeted number of TCCs for the current financial year was 62, so there would be an additional two TCCs added during the current financial year.

Adv Batohi said that the work being done by the new Special Director in the new SOCA unit, Adv Bonnie Currie-Gamwo, Special Director of Public Prosecutions: Special Director: SOCA, had been “absolutely astounding”. Adv Currie-Gamwo’s team had been the same. The NPA was working very closely with the private sector to ensure that the existing TCCs were all upgraded, and that the required refurbishments were being done. The NPA had had incredible support from the private sector. The NPA was also working with the private sector to set up new TCCs in various areas. A new TCC would be launched in November in Limpopo. This TCC would be using a new operating model. In the past, TCCs had always been a space within a hospital. Adv Batohi acknowledged the NPA’s partners working in the space of sexual and gender-based crimes. The NPA dealt with many different entities besides the police and government partners; it dealt with many NGOs that helped the NPA to support victims and survivors of sexual and gender-based crimes. The TCCs also worked with the Department of Health (DoH). The TCC in Limpopo was a new model, and it was the first one where, together with the private sector donation, there would be a new TCC built from the ground up. The NPA was trying to increase the number of TCCs. The NPA was also working with the SAPS Forensic Services Division, and looking at all of the help desks. With the help desks, the NPA was trying to see how it could link the help desks in the SAPS stations to the TCCs. The NPA would be able to update the Committee on that work.

On impunity: the NPA agreed it was hugely important for there to be convictions, and for people to face the consequences of criminal conduct, and to be imprisoned. That was not the only measure of whether the NPA was winning the battle to end impunity. The fact that people were being arrested showed that impunity was no longer a given. The very fact that people were no longer confident about never being arrested, and the fact that people would be wondering when (not whether) the “knock on the door” would come, was an important step in the fight against impunity. Even though people were not physically incarcerated – the NPA was doing everything to deal with Stalingrad tactics, etc. – it would happen. But people would be “mentally incarcerated” by wondering when the knock on the door would come. That in itself was a consequence.

On the root causes of crime: Adv Batohi observed that for a long time, South Africans were comfortable in the thought that they could get away with corruption in particular. There was no will, and there was the capture of many state institutions. Prosecutions were not taking place. But the tide was changing. If one had to consider the root cause of corruption, it was a lack of good governance and ethical leadership. She had said before: “We are not going to be able to prosecute ourselves out of corruption”. It was important for the preventative steps to be there, and to ensure that there were systems and processes that made it very difficult for corruption to thrive. South Africa needed to ensure good governance and ethical leadership.

The Chairperson raised the Optimum Coal Mine case. How far was the NPA in that case? There were some people who were scared they would lose their jobs. What was being done to ensure that people did not lose their jobs during the legal process?

Adv Rabaji-Rasethaba said that the NPA met with the National Union of Mineworkers (NUM), which represented the employees of the mine. It also met with the community, and with NGOs. When the NPA argued the preservation application of the mine, by that time the NUM had intervened as a party to the proceedings. Both the NDPP and the NUM filed a joint practice note, where the NPA emphasised that it was trying to do the opposite of people losing their jobs. The NPA was trying to get the mine forfeited to the state, after which it would be sold at market value, so that the members of the community who lost their jobs would benefit – there were people who were out of employment as soon as the mine was placed under business rescue. The NPA wanted to make sure that such people got their jobs back.

Closing

The Chairperson thanked the NPA for the briefing, and said that the Committee was pleased with the NPA’s improvements. It was the beginning of a long road. The Committee’s aim was to ensure that by the end of its term, the NPA’s performance against its targets was 80%. That was the standard set by the Presidency. The Committee was pleased that there was movement. From the report, it was quite clear that there was still a long road to be travelled.

The Committee noted that there were issues that cut across multiple Government sectors. For instance, the parties involved in a matter would be the NPA, the State Attorney, the Information Regulator (IR). The NPA indicated that it needed a Deputy Director-General (DDG) to facilitate better coordination of delegation of power for administrative purposes. The Committee decided to have a physical meeting where all the entities that reported to the Committee would be part of the meeting. The DGs, the National Commissioners and the Minister would also be present. The Committee would want each entity to prepare a presentation on the urgent issues it wanted resolved. The Committee wanted to deal with those administration issues (even if they were complex) once and for all. The meeting would be in-person, and held in Pretoria. The Committee also wanted to have quarterly meetings. In those quarterly meetings, the Committee would ensure that it did not meet during the time when the House was sitting. The Committee had outstanding matters with the NPA, the Special Investigating Unit (SIU) and the Hawks. It had outstanding matters with the NPA with respect to the TRC cases. The Committee would want those quarterly meetings to be consolidated so that the NPA did not have to come to the Committee many times to report. There were other issues that the Committee needed more time to engage on with the NPA. From the report that the NPA gave the Committee on the grey-listing matter, the Committee was cautiously optimistic. The Terrorist Financing Bill was still in the National Assembly. It would have to go to the National Council of Provinces (NCOP) and to the President, so the Chairperson did not think the country would meet that February target. He was not sure of the implications of that. The Committee was cautiously optimistic that the state of affairs since 2019/2020 had shown improvement. Part of the FATF evaluation happened in 2020, not in 2019. He hoped that South Africa would not be grey-listed. If it was grey-listed, it needed to ensure, like Mauritius, that it was able to come back much quicker, and not take more than 24 months to improve. The Committee might need to get a coordinated briefing on what was being done. Even if South Africa was not grey-listed, it would not be the last evaluation. How would South Africa make sure that it was not grey-listed at all?

The Chairperson thanked Adv Batohi and her team. He also congratulated the prosecutors, who were “lawyers for the people”. He liked how in the USA, it did not say “the State v”, but “the People v”. A prosecutor was the lawyer of the people, for the people. It was not an easy job. It was a very difficult job to prove a case beyond reasonable doubt. The prosecutors were the “soldiers on the ground” who ensured that those cases were proved beyond reasonable doubt. He also thanked the auxiliary services of the NPA that supported it.

Adv Batohi thanked the Committee for its support and guidance.

The meeting was adjourned.