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JUSTICE AND CONSTITUTIONAL DEVELOPMENT AD HOC COMMITTEE
17 June 2004
NATIONAL PROSECUTING AUTHORITY: INPUT ON BUDGET
NPA presentation to Committee
National Prosecuting Authority (NPA) Report to Parliament 2003-2004
[available shortly on the NPA website at www.npa.gov.za]
Through the Asset Forfeiture Unit and effective implementation of the asset forfeiture provisions in the Prevention of Organised Crimes Act, the NPA has managed to freeze assets valued at approximately R600 million. More than R100 million has been returned to the victims of crime. The Specialised Commercial Crime Unit has maintained its high levels of productivity and conviction rates. Significant advances have been made in witness protection so that no witness or family members had been murdered in the last year. Court hours are beginning to show some improvement and as a result backlogs are stabilising. Community courts would be established in all provinces. Some significant breakthroughs have been made in car hijacking, bank robberies and cash in-transit heists and corruption cases.
Adv Bulelani Ngcuka, National Director of Public Prosecutions, introduced his colleagues from the NPA, then proceeded to summarise the 2003-2004 Report to Parliament from the National Prosecuting Authority (see document).
The Chairperson thanked the NPA for the progress they have made in combating crime. She congratulated all the 'ordinary people' who were responsible for the progress.
Ms S Camerer (DA) congratulated the NPA on their achievements in the fight against crime. She observed that one of the corruption cases dealt with in the Report to Parliament was that of Mr S Shaik. However, there was no mention of Mr J Zuma although there was a two-year investigation. She asked how much the investigation had cost.
Mr Ngcuka replied that it would be difficult to give the exact figures involved. A system whereby one is able to quantify the costs relating to each investigation has been introduced. There is a need to know if one is getting value for money. Justice is expensive and it is not only the actual amount of money spent on investigation that one has to consider. There is also the cost to democracy if no investigation is instituted.
Ms Camerer noted that there is a huge amount of money in the Criminal Asset Recovery Account (CARA). The Minister had indicated that some of the money would be used to support victims. She asked if the NPA has applied for some money from the account to help victims.
Mr Ngcuka replied that one of the proposals was that some of the houses involved should be given to the Department of Social Development to use as shelters for the indigent and the homeless. A proposal would be made for some of the money to be given to the victims support programme. The NPA has decided to emphasise the need to care for victims. The victims' charter would be finalised this year and the victims support programme would be launched throughout the country.
Mr S Swart (ACDP) observed that the Report indicated that the NPA still faces legislative constraints. It was suggested that the Public Finance Management Act (PFMA) should be amended so as to enable the NPA to be listed as a constitutional institution. He asked if the authority has succeeded in having the amendment passed and if they are still struggling with the legislative constraint.
Mr Ngcuka replied that part of the problem is that part of the budget falls under the Director-General of Justice and part under the CEO of the NPA. The personnel budget for lower court prosecutors is with the NPA whereas the non-personnel budget (used to equip the prosecutors) is with the Department of Justice.
The NPA wants all of its budget to fall under it so that it can manage it according to NPA needs and resource its prosecutors. A proposal has been made and presented to the Ministry of Justice but no response has been given yet. It is hoped that Parliament would help in the resolution of this issue by effecting the necessary amendment.
Mr B Magwanishe (ANC) asked if there was any action taken against 29 division supervisors who did not certify the payroll for accuracy and validity. He also asked how much money is involved with regard to the payment of ghost employees.
Ms Beryl Simelane (Deputy CEO) replied that there were two fictitious employees. One of the NPA's employees had been sentenced to five years imprisonment. His assets and pension fund had been taken and the NPA managed to recover most of the money that he had taken. He had taken about R190 000 from the institution. Two other employees were given final written warnings. They were negligent in discharging their duties but not directly involved in the scam. After this the NPA certified its payroll and did hand cheque payment in August 2003 and no ghost employees were found in this process.
Mr Swart said the Auditor General had raised an issue on the payment of Value Added Tax on donor funding. He asked the presenter to comment on this issue.
Mr Magwanishe observed that the NPA had not registered with SARS for VAT purposes and the VAT on foreign donor transactions had not been accounted for. He asked the delegation to indicate when the NPA would register.
Ms Marion Sparg (CEO: NPA) replied that registration for VAT purposes had been done and would be reflected in the financial statements that are currently being audited.
Imam G Solomon (ANC) said that the NPA plays a major role in court performance. The Report indicates that the NPA has still not obtained the full budget for lower court prosecutors. It has funded the needs of such prosecutors by approximately R8, 3 million. He asked how the Authority plans to recover this money. Secondly, there is an internal audit committee in the NPA. However, the Report does not show anything that the Committee does except that it has commented on the Auditor General's report. He asked for an explanation of their role in the NPA.
The CEO replied that the R8, 3 million is for subsistence and travel allowances. The NPA had to incur this expenditure because the payroll of the lower court prosecutors is part of the NPA's payroll. Such allowances had to be processed through the NPA financial systems. No refund has yet been made and there is currently a discussion with the Department of Justice on whether a refund is possible. The NPA receives only the personnel budget for the lower courts. The former Minster of Justice and the Justice Board had decided that the entire budget for the lower courts should be split. The difficulty with the non-personnel budget is the lack of funding. The Department has been claiming that funds are scare and consequently they are unwilling to divide scarce resources.
On the functioning of the internal audit committee, the CEO said that this committee had only started its work in August 2003. Hence it appears as if they were not very active. They are in fact a very active committee and the report that they will be tabling would indicate that they look at various issues. The NPA management tables regular reports before this committee for in-depth discussion.
The Chairperson felt that it would be better if the NPA supplies some information on what it gets to spend and also how much money the Department keeps. This would enable the Committee to see how the budget is constructed.
Ms Chohan-Kota said that there are difficulties in understanding the accountability delineation in the justice system. It is difficult to understand who is responsible for what funds. It is encouraging to see that a process has been initiated with the Department of Justice to try and sort out the lines of accountability. The Committee should be kept informed on the plans to resolve this issue.
The CEO replied that the NPA is responsible for its entire budget. As the accounting officer in terms of legislation, the CEO is responsible for funds specifically allocated to the Directorate of Special Operations. There is an accountability framework in place. An amendment to the PFMA would help make the framework very clear.
The Chairperson observed that the NPA has recorded net savings of R12, 8 million pertaining to unfilled posts. There is a need for a report on the nature of the unfilled post so that the Committee could see the impact this had on the efficiency of the courts. She asked if there is any commitment on when the posts would be filled and if Treasury had given permission to use the savings in this year's budget.
Mr Ngcuka replied that this is a constant problem because people resign and it takes time to fill the post. The NPA had to factor this in when doing its budget for this year. One knows for a fact that there would probably be a 3% attrition rate and it would probably take three months to fill vacancies. Some kind of savings would consequently be made. The NPA had been trying to use this money to create additional and Saturday courts.
The CEO added that last year's financial statement that is being audited would show that there are no savings in personnel. There is an over expenditure of about R500 000. The issue now is ensuring that there is no over expenditure. All vacant posts that arose last year have been advertised and are in the process of being filled.
The Chair noted that with regard to Information and Communication Technology (ICT) maintenance a total of 16 000 problems were logged last year and these have been resolved. However, the problem is that there is no dedicated internal maintenance unit. One wonders if this does not pose a security risk.
The CEO replied that a tender was issued through the State Information Technology Agency (SITA) nearly two years ago. SITA is unwilling to award the tender. An external evaluation of the tender was made and the tender is now ready to be processed through the NPA's tender committee.
Imam Solomon welcome the establishment of the Hatfield community court and the proposed roll-out to other cities. This was good but the places where people were feeling the effects of crime and where the 'second economy' is affected are in the townships. He asked why community courts are not being rolled out in townships.
Adv J Henning (Deputy National Director of Public Prosecutions) replied that it easier to establish such courts near universities because they have the required facilities. He agreed that there is a need to have such courts in the townships and the NPA is looking into this.
Adv Ngcuka added that President Mbeki had said that there would be two community courts per province. The idea is that one would be in the urban area and the other in rural areas. With regard to the Western Cape the intention is to have three.
Mr Magwanishe observed that the NPA's staff profile does not indicate people with disabilities. He asked if there is a strategy to attract such people. He also asked if prosecutors are trained in Information Technology law.
The Deputy CEO apologised for not having figures on people with disabilities. She indicated that the NPA head office switchboard operator is blind and there are also disabled prosecutors.
On the issue of IT law, Adv Ngcuka replied that it is a complex subject but it is receiving attention. Some training programmes were conducted for the Directorate of Special Operations. The NPA is trying to set up a cyber crime unit. There is a need to develop an understanding of this law so that one would be able to detect crimes when they are committed. There is no specific training targeting cyber crimes.
Ms Camerer said that the Report to Parliament refers to the Hefer Commission of Enquiry as one real test the NPA has had to face. However, there was no explanation on why this was the case. She asked the NPA to elaborate on this. The question on when to prosecute a suspect is another test that has come up. There was a lot of fuss over the pronouncement that there was a prima facie case of corruption against Deputy President Zuma but no prosecution would follow. The prosecution policy does not refer to a prima facie case. She asked for a clarification on the meaning of a prima facie case.
Mr D Mvelase (Head of Internal Integrity Management) replied that as the new democracy develops new mechanisms of holding various institutions accountable, the NPA had the biggest test as a result of the Hefer inquiry. The integrity of the head of the organisation was questioned and questions were asked on whether the NPA conducted itself in a manner befitting its constitutional mandate. Each and every prosecutor or investigator had to ask themselves if they were doing the right thing.
Adv J Henning continued that at the end of the state's case an accused would often apply for a discharge and the prosecutor would stand up and say that there is a prima facie case. The presiding officer might agree that there is a prima facie case and ask the accused to defend it. The accused might close his or her case without testifying or calling witnesses. Despite this he or she is still acquitted and the question becomes why he or she was acquitted. The expression "prima facie" has different meanings depending on the sense in which it is used. In one sense it means that if there is nothing from the accused's side to create some doubt, the prima facie evidence becomes conclusive proof and the accused would be convicted. It also means that if there is no response, the accused runs the risk that he might be convicted. The strength of the risk differs. Here one has a situation where after the state had closed its case, the presiding officer refuses to discharge an accused. The accused closes his case without testifying or calling witnesses but is still acquitted. The mere fact that there is a prima facie case does not necessarily mean than a conviction would follow.
Ms Chohan-Kota indicated that the Department of Justice had informed the Committee that Saturday courts would be phased out in September. There are indications that case backlogs have been stabilised but new cases are increasing. She asked if backlogs would not result following the discontinuation of Saturday courts. The Department wanted to improve the cycle time (the amount of time spent on a case once it gets to court until its conclusion). The postponement of cases presents a major challenge. In line with getting magistrates to be more active when it comes to control over courts, the Department has introduced the idea of a system that would allow only limited postponements. She asked for a comment on this.
Adv Henning replied that the Department receives statistics from the NPA. Had the Department done its homework, it would have realised that the NPA would not cope if Saturday and additional courts were to be phased out in September. There is no way that these courts could be completely be done away with in September. These courts help put court rolls under control.
With regard to cycle times, Adv Henning said that the NPA is also measuring cycle time and there are specific targets. For instance, in Regional Courts the case cycle should not be longer than six months and in High Courts the cycle should not be more than twelve months. Prosecutors have been urged to do everything possible to reduce the cycle times. There is a lack of strict enforcement of discipline in courts by some judicial officers. Some lean over backwards and allow unnecessary postponements. An agreement was reached with the lower courts management committee that they would ensure that there are no unnecessary postponements. There has been no discussion between the NPA and the Department on the issue of limiting postponement.
Mr Swart asked for a brief outline on the policy and projects that prosecutors are adopting in dealing with awaiting trials.
Adv Henning replied that prosecutors are urged not to enrol cases if there is no case. The withdrawal rates have gone down. There must be proper screening of cases. In cases where the bail amount is set at R1000 or less prosecutors are encouraged to do their utmost best to ensure that the accused is released on warning or the bail amount is reduced. The problem is that there are many warrants of arrest for people who fail to appear before court. This places a strain on the system because the police have to go and look for those people.
The Chair commented that the Committee's onsite visit had revealed enormously enthusiastic young staff members, and suggested that the NPA cultivate that enthusiasm as their careers develop.
The Chair was concerned about conviction rates. One would expect some difference between specialised and ordinary courts. Generally the differential is not great except when it comes to sexual offences courts. Regional courts have a 42% success rate and specialised courts have an over 60% success rate in sexual offence cases. This difference in success rates in unacceptable in a justice system. In effect it means that a rape victim who goes to a specialised court has a greater chance of success than in an ordinary court. This is an unacceptable situation particularly given the fact that rape is a priority crime. This is one area that the NPA had to concentrate on with regard to training of personnel.
Adv Henning replied that the increase of the jurisdiction of the Regional Courts has seen serious cases coming before these courts. An average Regional court prosecutor goes to court everyday with four or five of these cases. The prosecutor does not always have the time to consult properly with the client. This is why there are special courts especially for child abuse cases. If these cases are on the general court's roll, prosecutors would not be able to devote special attention to them. The goal is to have two regional court prosecutors per court. This is already the case in sexual offences courts.
The meeting was adjourned.
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