DoJ&CD reduction of targets (with Minister & Deputy Minister); NPA & SIU 2023/24 Annual Performance Plans
Justice and Constitutional Development
12 May 2023
Chairperson: Mr G Magwanishe (ANC)
Meeting Summary
The Committee held a follow-up meeting with the Department of Justice and Constitutional Development on its 2023/24 Annual Performance Plan. The Minister and his deputy were in attendance.
At the first meeting, the Committee was frustrated with the reduction and removal of some performance indicators. Of particular concern were the indicators for the appointment of people with disabilities, the finalisation of corruption cases, the reduction of irregular expenditure, and the briefs allocated to women. The Committee was concerned that the Department was hindering service delivery and progress by reducing or removing targets. The Committee suggested this dedicated meeting focusing on the indicators and targets so that the Department could properly explain the motivation behind reducing the highlighted indicators.
The National Prosecuting Authority (NPA), and the Special Investigative Unit (SIU) briefed the Committee on their 2023/24 and Annual Performance Plans and budget.
Members were informed that South Africa's greylisting by the Financial Action Task Force (FATF), is a top priority for the NPA and its partners. The most important thing is that this will provide the NPA with an opportunity to really reflect on its collective interventions and strategies to deal with money-laundering and terror financing. The entity has been working really closely with law enforcement agencies to do everything possible to ensure that South Africa is taken off the grey list as soon as possible, which will reduce the costs of doing business in our country, as one of the benefits.
The NPA reported it is working together with the Department of Justice on legislative reform to be considered by Parliament before it rises this year to ensure that the Investigating Directorate within the NPA is established as a permanent identity as the President announced, in October 2022, in response to Parliament on the recommendations of the State Capture Commission.
The prosecuting body highlighted that there has been a successful turnaround in returning the NPA to a period of institutional growth and stability. The entity had seen an upward trajectory in its annual performance in the past three years, from 50% in the 2020/21 financial year to 71% in the 2021/22 financial year, to 75% in 2022/23. The entity is going to do all that it can to make sure that the trajectory continues on the upward trend.
A series of questions were posed by Members of the Portfolio Committee, the most notable being the question about the official recognition of the Investigating Directorate as a permanent entity, progress in prosecuting matters coming from the Zondo Commission and Nulane cases, which had been the presumed source of distrust in the NPA by the general public.
The SIU stated that corruption was still a global worrying factor and that South Africa had neither approved nor declined its score of 44 in the Corruptions Perception Index.
There was a slight upward trajectory in the number of allegations referred to the SIU between 2020/21 and 2021/22, and this was attributed to matters referred to during the Covid-19 period. It reported that there has been an upward performance trajectory in the SIU which stretched over three financial years: 2019/20, 2020/21, and 2021/22.
The SIU was questioned about its proposed funding model that was rejected by National Treasury, released reports on the Master’s Office, Office of Attorneys, and the construction industry and root causes of vulnerabilities in the SIU’s risk assessments
Meeting report
The Chairperson officially opened the meeting and gave the Department of Justice and Constitutional Development (DoJ&CD) an opportunity to present its briefing.
DoJ&CD 2023/24 Annual Performance Plan
Adv Doctor Mashabane, Director-General, DoJ&CD, introduced the presentation, highlighting discussions regarding certain concerns such as the appointment of people living with disabilities. Pointing out that the Department had not previously achieved its 2% target as required by Government prescripts, he explained that the target was achieved in the 2021/22 financial year, which then prompted the Department to increase its target upwardly from 2% in the estimated performance to 2.2% in the 2023/24 financial year target.
Another area of concern was the value of female practitioners, which was set at a target of 28% in the previous year. During the 2021/22 financial year, a target of 29% was obtained which informed the Department’s decision to adjust its target to 30% starting in the 2023/24 financial year and to apply it over the next two to three years of the Medium Term Expenditure Framework (MTEF).
The third area of concern was the addressing of fraud and corruption within the Department. The fraud and corruption case targets were adjusted from 70% to 80% as a minimum but not as the ultimate. Meaning that the 80% is the minimum target that the Department should not fall below. The Department anticipates achieving a target of between 85% to 90% once the Labour Relations Unit of the Department is properly capacitated.
In the previous year, the number of output indicators totalled 91, but in the current year, there were 96 indicators as reflected in the Annual Performance Plan (APP). Adv Mashabane explained that some indicators would not be in the APP because they were time-bound meaning that they were one-year indicators and an example was given through the conferment of the silk guidelines. In previous years, there was never a guideline, and silk was conferred without guidelines that were guiding the process. The guidelines have been developed and so it was no longer necessary to have them again this year.
Adv Mashabane asked Mr Gelebe to introduce the new indicators that were not previously there and explained that they will not have a base to grow from.
Mr Fhatuwani Gelebe, Acting Chief Director: Strategy, Monitoring and Evaluation, DoJ&CD, said, that the Department is sitting with 96 indicators.
Directing the Committee Secretary to slide 10, Mr Gelebe explained that on the slide there are two indicators, the first one being the percentage of total workforce positions occupied by people with disabilities, which was adjusted from 2.1% to 2.2%. The MTEF targets were also adjusted for the 2024/25 and 2025/26 financial years.
The audit outcome for outcome three in Programme 1 was assessed and the Department had a target of 300, where it had planned to do public education and communication activities. The target was also adjusted for the 2024/25 financial year MTEF period.
Bringing the Committee’s attention to outcome four in Programme 1, Mr Gelebe explained that the Department did a total assessment of all the indicators, and the indicator in point 4.3 was adjusted from 91% to 92% because it was not aligned with the audited performance. So the Department looked at the resource challenge that it had and agreed on 92%.
Under point 4.5, the Department reconsidered the figure after looking at what was on the system in terms of numbers and it committed that in this financial year, it will clear the backlog.
Under points 4.8 and 4.9 Adv Mashabane said that those indicators talk to the Family Advocate litigation and non-litigation matters.
Mr Gelebe explained that the new indicators that were included in the APP were displayed from slide 20, the first being Programme 2: Court Services outcome 4. In terms of the targets set for protection orders and the decree of divorce, the Department has agreed that it needs to set a target for itself, which is 95%.
Mr Thabiso Thithi, Branch: Institutional Development and Support, DoJ&CD, confirmed that under Programme 3: Legal Services, new indicators were included in the APP are the National Conference on the State of Human Rights in South Africa and the ratification of international instruments. Directing the Committee to page 31, he explained that in the APP, the Department decided to include Constitutional dialogues to be held to advance Constitutionalism and there was an indicator included to indicate the number of awareness programs that will be done in conjunction with Community Advisory officers. The number of advice offices that will be capacitated through this program, in this financial year has also been included.
The Department intends to develop a framework that will assist with international relations engagement, which will be submitted to the DG for approval. There are 15 indicators, indicated in the APP and that is why the Department has 96 indicators as compared to 93 that were in the previous year.
Adv Mashabane pointed out to the Committee that there are two indicators that the Department desires to have sit at 100% one of those being the serving of protection orders for domestic violence. This is a new indicator, so the Department is setting its target at 95% as it is building a base and capacity and making sure that it puts systems in place. The desire of the Department is that in the upcoming financial years, the target can be moved to between 98% - 100%. The other new indicator in the APP is that of divorce matters and again the Department is setting its target at 95% due to its high dependency. The Department is rebuilding its system and there are some challenges which include the availability of power supply at the different courts and training that needs to be conducted to build capacity in personnel. Although the target is set at 95%, it does not stop the Department from achieving 99% which will be a great achievement, but ultimately the Department wants to achieve 100%.
(See Presentation)
The Chairperson thanked the Department for its presentation and asked Committee Members if they had any comments based on the issues that were raised. No issues were raised by Committee Members.
Minister Lamola, along with Deputy Minister Mr John Jeffrey, asked to be excused from the meeting as the presentation had been completed. Deputy Minister Jeffrey also requested that officials from the Department that had come for the earlier part of the presentation also be excused.
The Chairperson gave permission and accepted Mr Jeffery’s request.
The Chairperson welcomed the office of the National Director of Public Prosecutions (NDPP) from the National Prosecuting Authority (NPA) to present its briefing.
National Director of Public Prosecutions Annual Performance Plan & Budget Presentation
Adv Shamila Bathohi, National Director of Public Prosecution, NPA, greeted the Chairperson and the Committee and extended a particular greeting to members of the public and the media following the briefing as it happens. She also welcomed Senior Managers of the NPA, the Deputy National Directors of Prosecutions - Adv Ouma Rabaji-Rasethaba, Adv Anton du Plessis and Adv Rodney de Kock as well as various Special Directors and all colleagues from strategy and finance who were also present in the meeting.
She went on to explain that the NPA appears before the Committee at a rather precarious time for justice and the rule of law in South Africa. It is a time when the rule of law is in a dire state and despite the NPA's efforts to rebuild it, it continues to face strong headwinds. The NPA of late has been experiencing a significant amount of critical and negative reporting relating to it in the criminal justice system. However, despite that Adv Bathohi said that the NPA recognises and thanks the Committee for the robust way in which it is discharging its mandate of oversight and accountability in relation to all entities in the justice system. This is evidence of a really vibrant, constitutional democracy.
Getting back to the negative reporting on the NPA, Adv Bathohi said that this has been in the context of two matters for which it has been heavily criticised. The application for the extradition of the Gupta brothers as well as the Nulane case. With that being said it would be unfortunate for the Committee to calibrate the discussion of the day through the lens of these two discussions alone. Whilst these two cases have indeed been a setback for the NPA, she also said that the NPA needs to guard against throwing the baby out with the bath water as this will be in no one’s best interests except for those trying to escape accountability.
The NPA has a solid criminal justice platform built on almost 30 years of experience and leading jurisprudence to which it has significantly contributed, especially in the last couple of years. The time has now come for the NPA to build on this and not break it down.
Adv Bathohi told the Committee that the APP builds on two years of post-Covid investment in building a solid platform for the NPA. A year and fourth months after the first year in which the NDPP was appointed, two Deputy National Directors were appointed and another year passed before the third one was appointed. 16 months into the National Directors term, nothing had changed except that there was a new National Director and it was not easy to do much in that except to understand what was going on in a very complex organisation. With the senior leadership coming on board, at a time when the country had been hit by Covid, it set the entity back in terms of getting onto the journey of rebuilding the NPA. If one takes time and effort to delve into detail regarding what the NPA has done to rebuild and the progress to date, from the initial commitment in the annual report of the 2019/20 financial year, where the NPA stated that it is embarking on a journey to rebuild under the theme ' Rebuilding an independent professional, accountable and credible NPA'. In the 2020/21 financial year, the NPA committed itself under the theme 'Commitment to reclaiming its role as lawyers for the people', and in the 2021/22 financial year the commitment was based on the theme 'Reaching solid ground to deliver justice' as the NPA was finding itself on very shaky ground, which was the same year in which she took office. The theme for the 2022/23 financial year is 'Commitment to reach new heights', which is what the entity will present to the Committee.
Adv Batohi told the Committee that there is a lot that the NPA has achieved post Covid and it is very confident that it is in the process of making a lot more progress that it will demonstrate not just by achieving its APP targets, but really meeting new heights and building a fit for purpose NPA. The path to this point has been challenging and the NPA does not expect it to get easier, but it remains confident that the strategy that it has developed, has placed it on the right path with each passing year.
In the interest of time, Adv Bathohi confirmed that the entity will be delivering a high-level presentation, which has been submitted in two parts.
Introduction
During its recent strategic planning sessions, the NPA reaffirmed and recognised that there is a lot more that it needs to do, which includes being more efficient in its work and moving forward in this particular year. It is focusing again on identified prioritised high-impact driven prosecutions. Although it cannot do everything, it knows about the type of prosecutions that will enhance its credibility and show that accountability and the rule of law are part of its strategy for its road to recovery.
The NPA is selecting high-impact cases for prosecutions like it did last year with the Investigating Directorate (ID) and the nine seminal cases. Another important aspect is that of asset recovery, particularly related to high-level and complex corruption. The NPA is looking to put asset recovery at the front and centre of its work, dealing more with asset recovery in terms of civil forfeiture and working with a range of partners not limited to just the Government. The DPCI is one of the NPA's key partners in asset recovery as it assists with identification and investigations.
The NDPP told the Committee that the NPA is looking to engage the private sector and NGOs that are working in various areas of accountability so it can enhance asset recovery and assist in the rebuilding of the country in a way that the communities can feel change in a tangible way.
Strategic Priorities
Adv Bathohi told the Committee that as much as it is important for the NPA to comply with the strategic targets, which increase year on year, simply complying with those targets is not enough. The entity needs to have certain strategic initiatives that really support the building of the NPA into one that is fit for purpose.
The four strategic priorities that the NPA decided on at its recent strategic review session, will form the basis of the entity’s performance in the current financial period. These four priorities have been entrenched into the operational plans, individual performance agreements of staff and the delivery will be managed at an EXCO and MANCO level.
The APP introduces four key strategic priorities, as part of the NPA's efforts to future-proof it. The strategic priorities are as follows:
Prioritisation
Adv Bathohi said that there is a question about how prioritisation will work as a matter of practice and policy. Prosecuting for the NPA is not about ticking boxes, but prosecuting more smartly and strategically, so that together with its partners the NPA is really able to target offenders and strategic syndicate leaders as well as their assets so that it can really have an impact on public safety and dealing with certain crime types, like sexual and gender-based violence and various types of organised crime. If the NPA does not deal with these issues in collaboration with the South African Police Services (SAPS), in a strategic way, it will continue to be on the slippery slope that it is on as far as organised crimes are concerned.
Community Prosecution Initiatives
This strategic priority is really about considering long-term proactive solutions, to deal with community irritants that have an impact really on the communities’ feelings of safety. This is more of a long-term strategic initiative but what is most important for the NPA is to be able to work with all the partners and ensuring that communities are part of the solution. This is one of the NPA's key strategic priorities moving forward in the next year.
Service Delivery Improvement
With this strategic priority, the NPA strives to be victim centred by ensuring that the people it serves are satisfied with its level of service. This will include conducting surveys on how the NPA can be more responsive to its customers’ needs.
Amplifying the NPA's voice and strategic influence on broader Justice, Crime Prevention, and Security (JCPS) priority matters
This strategic priority looks at how the NPA can move the dial, with regards to dealing with some of the strategic issues at the JCPS level, in particular organised crime and asset recovery.
Concluding the strategic priorities, Adv Bathohi said that in addition to the deliverables and outputs which are outlined in the APP, the NPA is going to pursue these key activities in order to enhance its ability to deliver for greater impact, which is what is important. In this period the NPA will pursue a number of interventions and strategies and will build on what it has already done in the previous years in order to ensure that it can in fact reach greater heights in this financial year.
In summary, Adv Bathohi said that the detailed strategy for the Asset Forfeiture Unit (AFU) is contained in the annex. With regards to organised crime, this is a significant threat to the South African people, economy, and democratic institutions and has a negative effect on all sectors of society as well as the country's international reputation. The NPA has been in collaboration with the Global Initiative Against Transnational Organised Crime (GIATOC) in order to develop a very precise and focused NPA strategy. The entity does recognise that the success of any such strategy is highly dependent on collaboration with its JCPS partners, particularly the Directorate for Priority Crime Investigation (DPCI) and Crime Intelligence (CI).
She confirmed that the NPA is working closely with the DPCI to address these issues, but there are lots of challenges in this regard.
South Africa's greylisting by the Financial Action Task Force (FATF), is a top priority for the NPA and its partners. The most important thing is that this will provide the NPA with an opportunity to really reflect on its collective interventions and strategies to deal with money-laundering and terror financing. The entity has been working really closely with law enforcement agencies to do everything possible to ensure that South Africa is taken off the grey list as soon as possible, which will reduce the costs of doing business in our country, as one of the benefits.
For its part, the NPA will really focus on identifying and enrolling cases that are linked to money-laundering and terror financing and it has put in place a mechanism to ensure that, with its partners, they are on track with meeting all obligations in terms of the FATF action plan.
Adv Bathohi confirmed that the NPA is working together with the DoJ on legislative reform to be considered by Parliament before it rises this year to ensure that the ID within the NPA is established as a permanent identity as the President announced, in October 2022, in response to Parliament on the recommendations of the State Capture Commission.
It is equally important to establish a permanent ID with the requisite criminal investigative powers as this will allow it to be capacitated properly. Also for the NPA to recruit investigators, and analysts permanently and all of the specialised skills that are needed to support the work of the ID and NPA Prosecutors. The NPA will continue to coordinate and monitor progress on complex corruption and asset forfeiture cases through the integrated NPA-DPCI task force. The NPA is also working on bringing the Financial Intelligence Centre (FIC) and the Special Investigative Unit (SIU) on board, to work within the framework of the task force. There are very good projects in the context of dealing with money-laundering particularly the enablers of money-laundering for example estate agents, autocar dealerships, lawyers, and the financial sector as a whole. These are also enablers of corruption in particular State Capture.
Adv Bathohi reminded the Committee that the current APP builds on gains that the NPA has made over the past couple of years, and the key gains include everything that is on slide six. There has been a successful turnaround in returning the NPA to a period of institutional growth and stability. Considerable progress has been made since inception with regard to the task force mentioned earlier.
The NPA has seen significant improvements in certain focus areas and is certainly looking to ramp up recoveries from the corporate sector and companies in particular as it moves forward. In its alternative dispute resolution mechanism, the NPA will ensure that it brings back significant amounts of money to the country.
Adv Bathohi asked the Committee to reflect for a moment on the very good work that the NPA has been doing, which was acknowledged last year by the Committee. There has been an overnight growing narrative that the NPA is failing and the basis for this narrative is the "failed" extradition that the South African Authorities and NPA could do nothing about. There has been a lot regarding this issue in the media, and also the Nulane case which is the subject of an appeal.
The NDPP said that the NPA understands the impact of the Nulane matter and is making an application for leave to appeal and that the legal process must take its course. The NPA will look for lessons that it can take from the process, but firstly it wants to deal with the appeal process in its entirety and then see what more it can do as the NPA with regard to the various issues. The narrative that the NPA is failing is a dangerous and flawed one because the achievements that have been outlined demonstrate that the NPA is making significant progress. In a very difficult and sometimes toxic environment, the work that the motivated and committed people within the NPA have done is affected by the negative commentary. The prosecutors in the ID and Head office as well as all prosecutors across the country, including far-flung rural areas are working really hard to turn the NPA around. In as much as there is a lot more that still needs to be done, the work that the NPA has done is work that any Prosecuting Authority in the world would be proud of.
Adv Bathohi said that she would like to thank the Prosecutors of the NPA for the hard work that they have done and assured the Committee that the NPA will work much harder. The good work flies under the radar sometimes because the negative news is what sells, however, the NPA understands the impact of this and knows that it needs to deal with the matters and look at how it can improve.
It is the first time that the NPA is making progress in terms of accountability for the TRC cases. The entity has also brought in a lot of new capacity, with over 700 young professionals through the Aspirant Prosecutor Programme and this was the biggest intake through the programme since it was relaunched.
The number of DNA reports that were fast-tracked, is an astronomical amount and what the NPA has done with this amount, together with SAPS, particularly in the field of Gender-Based Violence (GBV), is to identify a number of serial rapists. The NPA is now looking at how it can actually target these serial rapists.
These are all important successes for the people of this country and they need to be understood in the context of the huge limitations that the NPA is actually facing and also in the limited mandate under which it operates.
NPA Mandate
The mandate of the NPA which is to prosecute within the broader criminal justice system, is very specific and limited, except now with the ID with its very limited powers.
Directing the Committee to slide nine of the presentation, Adv Bathohi told the Committee that in addition to the Constitutional mandate, there are ambitious commitments that the NPA has made in its current strategy and it is really working hard to achieve these high-level outcomes as well as meeting its APP commitments to Parliament. These are really critical for the NPA to become what the country wants it to be which is a credible and high-performing entity.
Adv Bathohi did not dwell much on the five-year strategic outcomes and initiatives, except for stating that the entity was working very hard to achieve these outcomes, in order to rebuild the entity’s credibility and citizens’ confidence in the NPA.
Annual performance over the past three years.
Adv Bathohi presented that the entity had seen an upward trajectory in its annual performance in the past three years, from 50% in the 2020/21 financial year to 71% in the 2021/22 financial year, to 75% in 2022/23. The entity is going to do all that it can to make sure that the trajectory continues on the upward trend.
Ms Bathohi concluded her presentation, and called upon her colleague, Ms Salome Baloyi, Chief Director: Strategy, NDPP, to present the APP.
The Chairperson asked that before Ms Baloyi proceeds, the NDPP give an explanation for its failure to submit responses to the Committee regarding the 220 task force cases, that were discussed when the Committee met with it on 25 October 2022. It was agreed that the responses would be submitted in writing, seeing as some of the cases had issues relating to case numbers, and to date, no responses were received by the Committee.
Ms Bathohi apologised for the failure to formally submit responses to the Committee and stated that the entity had been regularly submitting progress responses to an integrated team led by the Presidency, especially with matters regarding the Zondo Commission case. She assured the Committee that figures and responses were readily available, and would be provided to the Committee at the end of the meeting.
Ms Baloyi stated that from the outset the NPA wanted to make a few points regarding its targets. The NPA is part of a complex high-value chain and cannot control aspects affecting cases which can therefore affect its performance. It has complicated and ambitious outcomes that speak to the increased feelings of safety, improved investor confidence, and improved access to the services of the entity, which effectively deals with people’s lives.
Therefore, increasing the numbers of the entity can create perverse incentives to choose easier cases that might have less impact just to meet the higher targets. The NPA targets are ambitious even if they may not be or be achieved at times. Ms Baloyi said that the NPA has noted the concerns that the community has regarding the reduction of targets, however, it should be emphasised that the NPA has not reduced its performance targets for the 2023/24 reporting period because it has maintained much of its performance targets over the MTEF period and that was largely due to the further considerations that the NPA has a number of indicators linked to the conviction rate, which are sometimes questioned. However, these convictions speak to the core function of prosecutors, which is to take a decision on whether to take a matter to trial or not.
The prosecutions are not about seeking a conviction at all costs but ensuring that justice is served by assisting the court to arrive at a fair and just judgement. The conviction rate is also an acceptable indicator that is internationally measured by many jurisdictions, although they measure it differently due to different legal systems. The NPA's indicators are carefully considered and selected after a thorough analysis has been done along with research and consultation through discussions and essentially this led to a decision for the entity to keep its indicators the way that it has kept them.
The indicators on slide 13, speak to the fraud and corruption dealt with. Ms Baloyi touched on the revised performance indicator that reads: 'Number of state capture and complex corruption matters enrolled' which previously read 'Number of state capture matters enrolled'. Explaining that this is an indicator that has been revised, she said that this was done for the purposes of reflecting the collective mandate of the ID rather than its narrow interpretation which was focused mainly on the Zondo Commission. Another indicator that has changed in the APP, reflects the number of prosecutions instituted that involve money-laundering charges. Previously it was reading 'Number of cases finalised with a verdict involving money laundering'. This indicator was reviewed following the FATF evaluation, which requires a number of prosecutions instituted to include various typologies that deal with professional enablers, various money laundering networks, illicit flows of funds across borders, and third-party laundering. The rest of the indicators are still as reflected in the previous years.
Slide 14, which deals with addressing the proceeds of crime shows indicators that are mainly MTEF indicators that have been retained accordingly because this is the last year of the MTEF period so the NPA will be ensuring that it finalises those indicators and the targets as reflected.
Ms Baloyi told the Chairperson that slide 16, speaks to the issues on risk, based on the strategic risk profile that the leadership has identified through a risk assessment process and seven top risks were identified, as reflected, and they will be monitored through the NPA's EXCO and MANCO on a quarterly basis.
Ms Hanika Van Zyl, Chief Director: Finance, NPA, presented the budget overview of the APP. She presented the Unaudited NPA Budget vs Expenditure as of 31 March 2023.
She told the Committee that there has been overspending in the compensation of employees in the 2022/23 financial year, which was for an amount of R60 million due to the cost of living adjustments, and Aspirant Prosecutor intake in conjunction with the DoJ.
As a result of the overspending, funds have been viremented from sectors that had underspending, to defray overspending in the audited budget. An example of this was the underspending in Machinery and Equipment which was viremented to Goods & Services to defray overspending. The overspending on Goods & Services was because of increases in services such as library subscriptions, witness fees, fleet services, computer services, and VIP Protection Services.
Ms Van Zyl confirmed that there was an additional amount of R1 billion allocated to the NPA. R134 million of the allocated funding was reserved to be used to increase the ID and NPA with the remaining balance being allocated towards objectives in the Goods & Services sector.
Adv Bathohi addressed a controversial question making the rounds as to why the NPA had not prosecuted anyone from the Zondo Commission as yet. In her response, she said that the question was not factually supported and confirmed that the NPA was actively making efforts while awaiting reports from the Presidency. The NDPP's priority in the coming months would be on selected impactful cases (which have caused significant harm to the country) across specialised areas (OCC, SCCU & STU). However, this would only be possible upon the amendment of the NPA Bill which would recognise the ID as a permanent entity, allowing it to perform all duties assigned to it without limitation.
(See Presentation)
Upon conclusion of the presentation, the Chairperson gave Committee Members the opportunity to raise questions, issues, and concerns.
Discussion
Adv G Breytenbach (DA) acknowledged the large responsibility that has been bestowed upon the NPA, and that it deserves to be commended for its duty. However, this did not mean that it could be absolved of accountability, especially with big cases that stirred up sensationalism in the public due to their grievous effects on the justice system of the country.
She expressed disappointment in the progress presented by the NPA and asked about the public trial, the big arrests, and high-profile prosecutions and convictions. The public had not seen that hence the lack of confidence in the NPA. No one in South Africa feels safe.
Adv Breytenbach requested an explanation about why the Nulane case was being appealed as a s174 mistrial. Expert witnesses in the matter admitted to errors in the analysis of the financial network of the Guptas. How did the NPA not realise this, given the magnitude and severity of the case? Why were there admissibility problems in court?
It was the obvious procedure for the South African Police Services (SAPS) to lead investigations, and the NPA to lead prosecutions, however, it was misleading for the NPA to pin the duty of investigations on SAPS, when units within the entity, like the Specialised Commercial Crime Unit (SCCU) and the ID exists to lead investigations in cases of their nature. Prosecutors were supposed to communicate with investigators on a regular basis to form watertight cases for trial. At this stage Prosecutors do not have input in how cases are led, and ultimately in the performance of the NPA.
Organised crime is not a new problem in South Africa. What protocols are in place to deal with these problems? Why is there no credible Crime Intelligence Unit within the police, seeing as it is the only option that would possibly curb organised crime?
With regards to the extradition matter, Adv Breytenbach asked what led to the failure of the extradition and who was to blame. What was the point of re-appealing if no one knew where the Guptas were because there were also rumours regarding the Guptas having never been held in custody, could anyone in the NPA address these rumours?
Adv Breytenbach stated that it was important for the NPA to account, as it had a duty to South Africans.
Mr W Horn (DA) remind Adv Bathohi of her own words when she appeared before the Committee in a prior meeting, where she informed the Committee that she and the management of the NPA were fully aware that the response to the findings of the Judicial Commission of Inquiry would define the credibility of, and the public trust in the NPA in the period to come. The credibility of the NPA was thus concerning, given all the findings of errors unnoticed by the Board of Prosecutors.
It had been made clear in the NPA’s 2022/23 APP that there had indeed been senior prosecutors in the NPA that aided and abetted state capture and corruption over the years. Adv Bathohi stated in a media briefing, after a senior ranking official’s resignation, that there had been investigations in place to establish guilty parties, and that they had progressed to an advanced state. There was, however, no proof presented back to the Committee in writing, to back these claims. How far was the investigation, and what were the outcomes?
There was a depletion in the layer of freshly experienced prosecutors who would work in Regional Courts with commercial crimes, during years of state capture. There was an undertaking of suitable candidates being elevated in rank. Mr Horn asked what progress had been made. There was also an undertaking of a mass recruitment process, with a budget allocation, wherein new prosecutors would be appointed and lured in to fill the layer that had been depleted during state capture years, what was the progress? He went on to commend the Aspirant Prosecutors Programme.
The NPA still had to address all negative publicity seeing as it arose from its lack of response to important inquiries by the public. Like the Bushiri case, wherein the suspect was accused of a number of heinous crimes, such as sexual violence, but had not yet been extradited to be trialed and to account. Mr Horn said that this is one matter that the Committee needs an update about.
Mr Horn expressed concern over the issue of greylisting, stating that it was evident that the implementation plans in place are seemingly not effective, as this was a growing problem. The Deputy President, Mr Paul Mashatile, had made mention of action plans in the National Council of Provinces (NCOP) with the help of the NPA. Why was there no mention of this in the NPA’s report?
Mr Horn asked about the alleged information received from the Al-Jazeera news network, where it was alleged that organised crime syndicates had been using or were assisted by South African banks in fraudulent and corrupt activity such as money laundering. No matter how true this was, it was proof that the current action plans in place were not effective in curbing organised crime.
After much consideration of examples, Mr Horn concluded that the NPA was not considerate of the analysis of crime trends, and therefore could not assist SAPS and other sectors of the law with restoring and maintaining law and order within the justice system as a whole.
Regarding backlogs, there was no integrated and fully reflective report addressing the issue of backlogs in criminal courts. What was being done about the reduced court hours? And with the issue of the sudden decrease in backlogs for sexual and gender-based violence, how many of these cases had received a verdict? How many were withdrawn?
Dr W Newhoudt-Druchen (ANC) also asked about the decrease in the sexual offences backlog, how many did not have DNA testing?
Dr Newhoudt-Druchen expressed satisfaction in the increased number of TCCs from 55 to 62, and the prospect of their increase in number. Where were they located, and were they fully operational? Where would the new ones be located?
She questioned the NDPP’s community initiative, had there been communication with any particular community? Did these communities express confidence in the NPA?
Dr Newhoudt-Druchen questioned the lack of an indication regarding cable theft.
Dr Newhoudt-Druchen asked about the defraying and virementing of funds – would the savings suffice in covering the overspending?
When would the strategy on organised crime be complete? Was it already underway? When would it be completed?
Dr Newhoudt-Druchen questioned discrepancies in the budget allocations, specifically with the ID, where a certain item had been allocated double the amount of what was allocated to the entire sector. With regards to money laundering, what were the baseline numeral values?
The Chairperson asked if the NPA had cases where they had effected high-profile arrests. Were those cases monitored? How many of the cases had started, and how many high-profile individuals had pleaded in these cases? How many of these cases were standalone money laundering cases, which would lead to convictions?
Why were there no indicators in the APP to measure cases that had been disposed of through informal mediation processes? How many prosecutors had been trained to deal with alternative dispute resolution methods?
It had been previously noted that NPA policy directives were confidential – if this was true, why was this the case?
Why was there no target for community prosecutions?
The Chairperson expressed concern about the 1.07% increase in the AFU’s performance, considering its duty to fight crime and corruption, saying that the increased rate is alarmingly low.
Is there any integrated action plan in the 2023/24 APP in order to ensure increased investigation and prosecution with regard to money laundering and cases of a complex nature?
Adv Bathohi expressed gratitude for Adv Breytenbach’s recognition of the efforts made by the NPA and promised better progress.
Adv Andrea Johnson, Investigating Director: ID, NPA, answered Adv Breytenbach’s question regarding the Nulane case saying that with regards to s174 of the Criminal Justice Act, the Nulane case was heard in the Supreme Court, and appealed on the reservations of the questions of law. The appeal was on issues around:
- The application of laws in s174
- Common purpose
- Section 204 of the act
- Witnesses
- Admissibility of documentary evidence
She confirmed that the leave for appeal application was still in process, with procedures to be followed. Other aspects of the case could not be discussed as they were considered confidential.
Adv Johnson mentioned the culture of reviewing within the NPA, wherein different units of the entity were reviewed, and reviews were presented to the NPA’s advisory panel, which was in the SCCU. This was proof of the presence of regulatory bodies in place, to maintain the optimum operation of the entity, because public confidence in the NPA was of utmost importance.
With regard to the Gupta extradition, Adv Johnson stated that the NPA, along with the DoJ had done all they could to communicate with the UAE for assistance, and had not yet succeeded. Without being evasive, she said that she did not have answers to the Committee Members’ questions.
Adv Bathohi answered the question regarding the arrest and custody of the Guptas, stating that the NPA could only confirm what they had been told; that the Guptas were in custody.
The UAE rejected the extradition applications due to the cancellation of arrest warrants. These warrants were cancelled and amended to prevent the breach of exchange control regulations. Another matter brought forth was that the UAE stated that it had its own concurrent jurisdictions with regard to money laundering, and could thus prosecute the Guptas. These matters were not discussed with the NPA, but instead, the application was declined.
Adv Anton Du Plessis, Deputy National Director of Public Prosecutions: Strategy, Operations, and Compliance, NPA, answered the question about the NPA’s progress with regard to its progress with state capture and corruption cases. He agreed that there was a need for more progress, however, with the consideration of the level of corruption in South Africa, the NPA’s efforts were commendable.
He gave the following statistics with regard to the ID:
- 34 matters had been enrolled
- 89 investigations declared
- Almost 200 people accused in state capture matters
Adv Du Plessis explained that the nine seminal matters that had been enrolled by Adv Johnson were not only high profile, but they proved the public’s confidence in the NPA when Adv Johnson was awarded Person of the Year by readers of a local newspaper, upon enrolling the nine seminal matters.
In terms of capacity, Adv Du Plessis admitted that the NPA did not have the capacity to perform at an optimum level, due to various factors such as personnel shortages, however, the entity was doing its utmost best to remedy the situation by hiring over 1200 new personnel, appointing 800 Aspirant Prosecutors, and working with partners to enforce s38 senior appointments to bolster the NPA’s capacity.
He also explained that it was not possible to train Prosecutors to reach performance levels or specialisation wherein they would immediately be able to tackle high-profile cases – it was a skill that required ample experience. Prosecutors of the NPA displayed remarkable general prosecutorial skills, but could not exercise them as the environment was not conducive to doing so, i.e. lack of amenities such as proper working spaces and reliable internet. He asked that patience be afforded to the NPA.
In terms of budget allocations, a large amount of funds has been allocated to the NPA in relation to dealing with state capture crimes and they were broken down as follows:
- 122 new employees were appointed in the ID
- 138 new appointments underway
- Number of employees in the ID increased from under 100 to 215 in just a year and a half.
The challenge faced by the ID was that it was not yet an officially recognised unit, and thus the required allocation could not be legally fulfilled, until approval by the authority. There was still a huge gap for specialised personnel.
Adv Du Plessis commended the Committee for engaging with civil society, based on the research reported by the Africa Criminal Justice Reform (ACJR) to it,
He confirmed that regional data was available on the NPA website, and had even been previously made available in previous APPs, however, the APP this time around was more concerned with the priorities discussed.
Crime trends were considered for the determination of prioritisation, and Adv Du Plessis stated that prosecution, although an important instrument of the law, was not the absolute solution to the issues faced by the criminal justice system in South Africa. It was necessary to gather enough evidence to determine the amount of harm caused by crimes, in order to consider prosecution.
To answer the question on community initiatives, Adv Du Plessis explained that there had been a ‘housebreaking’ project, which was clearly outlined in the annexure to the presentation.
He further answered the question on overspending saying that there was no need for concern over the virementation of underspent funds, as there had already been prior planning and discussions in place to avoid deficits. The over-expenditure had been neutralised.
The allocation to the AFU was not to be an area of concern, it was indeed a priority and was further explained in the annexure.
Adv Rodney De Kock, Deputy National Director of Public Prosecutions, NPA, responded to questions regarding the confidentiality of the policy directives, stating that there had been a prosecutions policy that was published and publicly accessible which held Prosecutors accountable to the public. It was also the directive that was presented in Parliament.
There were, however, policy directives that were not publicly accessible, because they had to do with internal processes, and the internal work of prosecutors, hence the confidentiality. In exceptional cases, certain directives could be publicised by virtue of legislation, e.g. sexual offences and child justice directives.
Adv Bonnie Currie-Gamwo, Special Director of Public Prosecutions: Sexual Offences and Community Affairs, NPA, responded to questions about sexual offences and the TCCs.
63 TCCs were in operation, with the 63rd being in operation from 1 May 2023 in Ejozini, KZN. The seven TCCs that were added to the previous 55 were located in Paarl, Upington, Wynberg, Cradock, Limpopo, Komani, and Nelspruit.
She told the Committee that the objective for the upcoming four years was to have four more TCC centres in Mitchells Plain, Brits, Northern Cape, and Stellenbosch. In Mitchells Plain, the structure was already up and was the first modular home and would be in operation soon. There was already financial commitment to this objective.
There was a need for the expansion of the TCCs footprint, as they had evidently aided the conviction rate in sexual and gender-based violence offences, with a conviction rate of 16.1% from 2010-2023.
Adv Currie-Gamwo mentioned that there was a need for re-accommodation for a number of TCCs that have encountered issues such as lack of space. It was important to note that some of these TCCs had been in operation since early 2001. The NPA was in the process of achieving financial commitment for this cause.
With regard to the rapid reduction in the sexual offences backlog, Adv Currie-Gamwo explained that there had been an establishment of a DNA Task Team, between the NPA and the SAPS Forensic Laboratory Team, which ensured the prioritisation of addressing outstanding reports due to DNA issues and the result is that it reduced the backlog.
Adv Pierre Smith, Deputy Director of Public Prosecutions, NPA, answered questions regarding the DNA in detail stating that as of 2 May 2023, 31 266 DNA reports were submitted to the Forensic Science Laboratory. It was important to note that not all these reports would be submitted to the courts – only those with positive results would. Of the 31 266 reports, 3156 (18.9%) reports were found to have a positive result.
There were also negative reports, which assisted the prosecution in the determination of inadequate evidence placing alleged suspects at crime scenes. There was a 23.1% finalisation of negative reports. There was also a possibility of reports wherein there was either insufficient or no DNA detected. In the last submitted report, cases where no DNA was detected amounted to 2 156, and insufficient detection cases, were 1 148, which amounted to 36.4% in both instances.
This rate was improved by 28% in December 2021, to 64% due to specific interventions by the NPA and the SAPS Forensic Science Laboratory, and detectives to increase the number of DNA submissions to the laboratory. These reports assisted with the uncovering of the modus operandi of serial rapists, and they aided in centralisation whenever required by Directors of Public Prosecutions (DPPs).
With regards to community prosecutions, 25 sites had been identified and represented nationally in all DPP divisions and 14 of these sites targeted GBV.
Solutions to rid communities of social ills are underway, and an example of this was the handling of stock theft in regions such as Mpumalanga and the North West, wherein investigations had led to long-term convictions in Mpumalanga, and investigations were underway in the North West.
In areas like the Eastern Cape, and Gauteng, the identified issue was the illegal sale of alcohol in ‘shebeens.’ The pertinent focus was put on these shebeens to ensure that they get closed down. There had been progress in Gauteng, wherein a number of shebeens had been closed down, and liquor was confiscated, with prosecutions in progress.
Adv Smith stated that the permanent work plans of Senior Appointed Public Prosecutors have been revised so that they take on the role of being Provincial Coordinators of the community prosecution initiative in their respective divisions. Gauteng and the Northern Cape were the two divisions awaiting appointments. The Western Cape Senior Prosecutor had recently resigned and joined a different division.
There was an objective to establish three more sites in the current financial year, which would provide reports on a quarterly basis to the National Office, which was responsible for the coordination of monitoring and evaluating the progress of sites.
Adv De Kock stated that the involvement of DPPs in the community prosecution initiative would bring the NPA closer to communities, rebuilding the public’s confidence and tackling community crime more effectively.
In terms of stock theft in the Free State, 280 cases of stock theft had been registered with the courts, of which 102 cases were being heard in regional courts.
Adv Sibongile Mzinyathi, DPP: Gauteng Division Pretoria, NPA, answered the question regarding the Bushiri case, explaining that the extradition proceedings of the case began in 2020. It was during these proceedings that the accused and his wife insisted that witnesses and complainants to the case be present for cross-examination by the accused’s legal representatives.
The DPP in Malawi, in liaison with South Africa, opposed this, on the basis that witnesses were to give evidence in a proper trial and not an extradition case. The Chief Resident Magistrate of Lilongwe ordered, on 20 August 2022, that witnesses testify before a court in South Africa, and be cross-examined as per the accused’s request. Mr Shepherd Bushiri appealed this order before the Malawian High Court, saying the Magistrate erred on nine grounds.
As of February 13, 2023, the Malawian High Court agreed with the Lilongwe Magistrate to have witnesses answer in the extradition case. These witnesses, however, would not be victims, but South African appointed officials who would be cross-examined to determine that the accused was not a political prisoner, nor was he sought after for prosecution, and would not be punished, if surrendered to South Africa, due to factors such as race, religion, nationality, or political opinion.
The Judge in the appeal case made it clear that the requesting state would have to meet the requirements of the Malawian extradition regulations and that the requested witnesses would be cross-examined to determine whether extradition regulations were met.
The extradition case hearing was scheduled for 30 May 2023, in Lilongwe Magistrate Court. The South African High Commission had notified the DPPS, the DPCI, and Central Authority that they were expected to attend, for cross-examination and evidence, as previously requested. Attendance arrangements were underway.
Adv De Kock also answered the question regarding the capacity of the SCCU, indicating that the initial number of 105 Prosecutors appointed countrywide had been increased to 344. In relation to backlog cases in 2020/21, there was a 22% decrease in court rolls. SSCU prosecutors dealt with the most complex cases and this approach encouraged focus.
In terms of dealing with backlogs that responsibility rested upon all aspects of the criminal law justice system, and not the NPA alone. Backlogs are handled by the Judiciary, with a Provincial Efficiency Committee, headed by Judge Presidents of respective Provincial Divisions. Meetings by these committees were attended by all sectors of the criminal justice system, and collective solutions to reduce backlogs were discussed. Backlogs had reduced as follows:
- 28 000 backlogs in district courts as of 2021 had been reduced to 27 000 as of March 2023
- In Regional Courts, figures went from 24 000 in April 2021 to 23 000 in March 2023
- In High Courts, numbers had reduced from 455 in 2021 to 440 in 2023.
Adv De Kock told the Committee that load shedding had a negative impact on the functioning of the courts and that the NPA is keeping statistics of courts negatively affected by load shedding on a monthly basis.
With regards to the greylisting of the country, the NPA was involved in the resolution of the money laundering issues, however, it was the National Treasury that was in the lead of the process in response to the grey-listing.
Ms Bathohi expressed gratitude for contributions made by the private sector to the NPA.
Adv Breytenbach asked how invested SAPS was in organised crime strategies. What was the delay in the officialising of the ID? Regarding cable theft, were the kingpins being pursued?
Adv De Kock replied that various meetings were held with IPID, and the NPA was involved in a number of its operations. An integrated system was underway.
On cable theft, the target for convictions was 80% and the objective was to bring whole syndicates to account. Racketeering prosecutions had been implemented because asset recovery had to be ensured. The DPCI and SAPS were involved, and it was agreed that organised crime would be considered a priority crime by the Committee responsible for upholding the SAPS Act. Quarterly reports would be made available to JCPS leadership, and all challenges encountered with regard to organised crime would be addressed.
A number of other objectives were underway to develop strategies to combat organised crime.
Adv Bathohi added to the response on cable theft saying that most arrests made were for individuals in the lower end of the syndicate, and not kingpins. There was a need for a strategy to remedy this, as the arrest of kingpins would prove more successful in combatting criminal syndicates.
A revised draft from the DoJ was still expected by the NPA with regard to the officialising of the ID.
The Chairperson stated that the NPA had committed to providing responses as agreed in October 2022, at the end of all presentations
Adv Bathohi stated that she had already provided responses in her presentation, but would also submit responses in writing.
The Chairperson thanked the NPA for its presentation and was excused from the meeting.
The Chairperson invited the SIU to present to the Committee.
SIU APP Presentation 2023/24
Adv Andy Mothibi, Head and Chief Executive, SIU, stated that he was present alongside other SIU officials.
Adv Mothibi explained that the sections covered in the presentation would be:
- mandate
- strategic focus
- performance measures
- financial information
- human capital
- regional & international Collaboration
- future prospects.
The Chairperson suggested that the SIU skip the presentation of its mandate.
Adv Mothibi accepted the Chairperson’s suggestion but asked that a few sections of the mandate be considered. He brought the Committee’s attention to slide six which referenced relevant court rulings. He requested the Committee pay particular attention to the specific ruling made that the Special Tribunal is not a court. However, it has jurisdiction to adjudicate legality reviews in terms of the SIU Act.
The impact of this judgment meant that Special Tribunal’s powers would now increase the outcomes of recovery litigation substantially.
Matters in the Special Tribunal and the High Court, as of the end of March 2023, were displayed for the Committee. (See presentation)
External environment
Adv Mothibi stated that corruption was still a global worrying factor and that South Africa had neither approved nor declined its score of 44 in the Corruptions Perception Index (CPI).
Internal environment
Slide 20 depicted the number of allegations referred to the SIU between October 2018 and October 2022. There was a slight upward trajectory between 2020/21 and 2021/22, and this was attributed to the number of allegations referred to during the Covid-19 period.
Adv Mothibi told the Committee that there has been an upward performance trajectory in the SIU which stretched over three financial years: 2019/20, 2020/21, and 2021/22.
Corruption Vulnerable Sectors Risk Management Approach
In collaboration with other stakeholders such as the Anti-Corruption Task Team (ACTT), and informed by the G20 Anti-Corruption Working Group, Parliamentary oversight committees, Auditor-General audit outcomes, investigation report outcomes by law enforcement agencies and other Chapter 9 institutions, vulnerable sectors to corruption were identified
A high-level risk assessment was conducted to identify corruption vulnerable sectors and prioritise those ones that required immediate attention or interventions which was done in 2018.
Open data sources from key stakeholders such as Auditor General audit outcomes, whistleblowing reports from civil society, investigations, reports, outcomes from law enforcement agencies, Parliamentary oversight reports, and anti-corruption international forums such as G20 & BRICS were also considered.
The Health Sector was used as a pilot and thus had a risk assessment done and a forum dedicated to it from as early as 2019. This assessment was conducted in the health sector with the objective to identify key vulnerabilities, root causes, and strategic interventions.
Adv Mothibi told the Committee that the purpose of conducting the Corruption Vulnerable Sector Risk Assessment was to identify those sectors that are highly prone to incidents of corruption, with the objective of identifying & prioritising vulnerable sectors to corruption and then implementing strategic interventions to mitigate key risks or vulnerabilities in the sectors identified.
Partnering with CSIR
The SIU concluded a Memorandum of Understanding (MoU) with the Council for Scientific and Industrial Research (CSIR) on 22 August 2022. In terms of the MoU, the parties would collaborate in the field of information and cybersecurity, data intelligence, and market data analytics including anti-fraud and anti-corruption initiatives.
Budget Overview
Mr Andre Gernandt, Chief Financial Officer, SIU, presented the budget overview.
From the budget presentation, Mr Gernandt told the Committee that it was evident that most of the allocation went toward the investigations and legal counsel.
In the second slide, still on the budget and MTEF estimates, there had been an indication of a deficit identified, which, after consultation with National Treasury, would be remedied by virementing funds from the SIU’s financial reserves.
Feedback on Operation Khokhela, a debt recovery programme developed in August 2022 was presented. It was established from the results of this programme that it was better to have face-to-face interactions with State Institutions to yield positive results. The disadvantage of this, however, was how time-consuming the facilitation of such interactions was.
The payments received post-Operation Khokhela amounted to R341 million, and there was an additional R62 million payment received from the DoJ & CD.
Adv Mothibi emphasised that the SIU did regular assessments on the capacity required to perform at an optimum level with regard to performing its duties. As of the end of February 2023, there had been an indication of an 83% upward trajectory in the headcount number.
Human Capital Overview
Ms Neptune Masombuka, Chief Human Capital Officer, SIU, said that the staff complement as of Quarter Three of the 2022/23 financial year was 593, of which 585 (99%) were permanent and 11 (1%) fixed-term, as compared to 531 in the previous year. At least, 1.1% were persons living with Disabilities.
The SIU’s Resourcing Model which encapsulates the resourcing approach aligned to its funding model and operational needs, sought to capacitate the organisation with capable talent. The planned vacancy rate target was 12% as against progress of 19.1% by Quarter Three compared to 13% in the same period. The resourcing model was balanced with a mix of permanent, fixed-term contracts and independent contracts to manage the risk of the unsustainable cost of employment. 81 out of 96 contracts were converted to permanency and 80 appointments were effected, made up of 40 internal and 40 external appointments.
The staff turnover for the 2022/23 financial year was 4% including 25 terminations and against a 4% planned target, with resignations being the main contributor compared to 3.2% of the same period in the 2021/22 financial year. To retain SIU employees and maintain high-performance standards, the SIU is focusing on further improving its Employee Value Proposition.
Ms Masombuka told the Committee that part of the SIU’s strategy was to increase pipeline talent and address its aging workforce gap. During the period under review, 26 new interns in the Enablement Business Units were boarded on a 12-month Multi-Disciplinary Internship Programme. Furthermore, in the quest to close the scarce skills gap, the SIU entered into a funding agreement with North West University to fund 15 Forensic Accountant (FA) learners as well as 16 SIU internal members on an Integrated FA Learning Programme.
The SIU was partnering with other entities within the ACTT to share its expertise in the area of cybercrime/forensics. The SIU was also an actively participating member of the Commonwealth Africa Association of Heads of Anti-Corruption Agencies, between 19 Commonwealth Africa member States.
This arrangement mainly existed to share expertise, skills, and knowledge on anti-corruption. The SIU has hosted and trained several investigators from within Commonwealth Africa and vis-versa. The SIU also participated actively in training initiatives within the Southern Africa Development Community (SADC) and has contributed immensely towards the development of the SADC Standardized Anti-Corruption Curriculum which was being rolled out amongst SADC member states.
Adv Mothibi concluded the SIU’s presentation by briefly discussing the remaining two main sections – regional and international collaborations, and the future prospects of the SIU.
(See Presentation)
The Chairperson welcomed deliberations from Committee members.
Discussion
Mr Horn questioned the funding model asking if the SIU had suggested a garnishee order to National Treasury to remedy the issue of consistent inability to pay by tiers of government that were in arrears.
He requested feedback on the progress of cases heard in both the Special Tribunal and High Court, were they flowing consistently?
How many of the five judges allocated to the SIU to deal with Special Tribunal matters were active? What was the progress on referrals with regard to the DoJ?
Had the SIU considered strengthening the protection protocols for whistleblowers?
Dr Newhoudt-Druchen questioned the decision of the National Treasury to not support the funding model proposed by SIU. Did the SIU assist relevant departments with payment irregularities?
Had the SIU released reports on the Master’s Office, Office of Attorneys, and the construction industry?
What was the progress on combatting the issue of mafias in the construction industry?
How were the root causes of vulnerabilities in the SIU’s risk assessments resolved?
Adv Breytenbach questioned the safety of investigators. How were other Departments assisting to ensure the safety of investigators?
The Chairperson asked whether the DoJ had repaid its debt to the SIU after the last meeting.
Adv Mothibi stated that National Treasury rejected the funding model because according to it, collection of debt was the priority. He agreed that the garnishee order idea was a good one, and could be implemented immediately, with the approval of Treasury.
The progress of Special Tribunal matters would be made available in the future. Answering the question about the activity of Judges allocated to the SIU, Adv Mothibi stated that some judges were still in their courts, dealing with both High Court and Special Tribunal matters. The prospect of having Judges allocated to the Special Tribunal was 100% underway.
Adv Mothibi stated that the SIU was doing its best with regard to the safety of whistleblowers, given its financial resources.
On the issue of construction mafias, an Infrastructure and Building Anti-Corruption Forum had been launched in cooperation with the Minister of the Department of Public Works and Infrastructure (DPWI). The ACTT and the DPCI were also involved in monitoring the risks.
The root causes of vulnerability were attributed to a lack of consequence management, and an example of this was the slow speed of prosecutions.
There was a need for an allocation in the budget for the protection of investigators, and this had already been in discussion with the Chief Risk Officer of the SIU.
The DoJ had paid an amount of money back to the SIU.
Mr Gernandt stated that the SIU had consulted National Treasury on a model similar to the garnishee order, where National Treasury would collect funds from the entities indebted to the SIU, and then directly pay the SIU upon receipt of invoices.
Treasury was helpful in putting pressure on the tiers of Government that were indebted to the SIU.
Mr Gernandt stated that the DoJ had repaid R64.2 million to the SIU and that the repayment of the balance was in progress.
The reports requested by Dr Newhoudt-Druchen were available as follows:
- Master’s Office investigations were almost finalised with 23 cases already finalised. 200 referrals were received from whistleblowers, for which 9 matters were remaining in the reporting stage with their investigations finalised. The outcomes were as follows –
- 38 referrals to the NPA
- 20 disciplinary referrals
- 6 referrals to professional bodies
- 3 referrals to AFU
- State Attorney Office investigations were finalised with matters referred for civil litigations supported. A course consultant had been called in for the quantification of matters to be submitted to the Special Tribunal. The outcomes were as follows
- 20 referrals to NPA as per crimes committed by members of the legal profession and Office of State Attorneys
- 11 disciplinary referrals
- 14 referrals to professional bodies on lawyers’ conduct
- 19 civil matters to the value of R600 million underway. Processes to retrieve funds were in progress.
- 3 blacklisting referrals to Department
- On construction, the investigations around the building of courts were concluded. Outcomes were:
- 6 NPA referrals
- 6 SARS referrals
- No disciplinary referrals due to deceased or resigned members.
There had been the appointment of quantity surveyors to investigate the courts built. Structural faults had only been found in two courts in Limpopo and Mpumalanga where there were issues with drainage, power supply, and other utilities.
The investigations on the Department of Correctional Services (DCS) had also been finalised with –
- 4 referrals to the NPA
- 3 disciplinary referrals
- 2 blacklistings.
Contractors had been taken to court to retrieve amounts owed to the department.
Mr Leonard Lekgetho, Chief National Investigations Officer, SIU, discussed the DCS investigation in KZN. This investigation had been finalised and submitted to the Presidency. Its outcomes were as follows:
- 16 NPA referrals
- 3 SARS referrals
- 6 blacklistings
- 3 AFU referrals
Adv Mothibi stated that the report presented by Mr Lekgetho was available for presentation in the event that the Committee expected one. He suggested a meeting to discuss the report in detail.
The Chairperson supported Adv Mothibi’s suggestion. He thanked everyone for being present in the meeting.
The meeting was adjourned.
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Present
-
Magwanishe, Mr GB Chairperson
ANC -
Breytenbach, Adv G
DA -
Engelbrecht, Mr J
DA -
Horn, Mr W
DA -
Jeffery, Mr JH
ANC -
Lamola, Mr RO
ANC -
Newhoudt-Druchen, Ms WS
ANC -
Ramolobeng, Ms A
ANC -
Swart, Mr SN
ACDP -
Yako, Ms Y
EFF
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