Department of Justice and Constitutional Development & Special Investigating Unit: 2023/24 Strategic and Annual Performance Plans; with Deputy Minister

Meeting report

The Chairperson said the Committee received an apology from Minister of Justice, Ronald Lamola, who was currently overseas with the Director-General (DG).

Deputy Minister Opening Remarks

Mr John Jeffery, Deputy Minister of Justice and Constitutional Development, said the head of the Special Investigating Unit (SIU) could not attend the meeting as he was on the interviewing panel for a position in the SIU. The Department of Justice and Constitutional Development (DoJ&CD) was led by the acting Deputy Director-General (DDG), Ms Kalay Pillay. The DoJ&CD’s delegation included provincial Heads of Departments (HODs), DDGs, and other departmental officials. The performance of the DoJ&CD and its related entities continued to improve in the Medium Term Strategic Framework (MTSF) period. The National Prosecuting Authority (NPA) was gradually regaining its momentum while Legal Aid South Africa continued to be a beacon of hope for accountability and good governance with their annual clean audits. The DoJ&CD was aware of and would not disregard its existing challenges. At the inception of the sixth Parliament’s administrative period, the performance of the DoJ&CD stood at 50%. While the low performance was extremely concerning, the DoJ&CD’s performance currently stood at 80%. The DoJ&CD’s performance significantly improved and performance measures would continuously be implemented to greatly impact service delivery.

The policy imperative behind the Annual Performance Plan (APP) was the need for an accessible justice system in a vibrant and evolving constitutional democracy. The policy considerations aimed to enable justice, advance constitutionalism, and respect for human rights and the rule of law. The 2023/24 APP had ten outcomes and 96 indicators. 81 aggregated outcomes and indicators were attributed to the DoJ&CD while 15 were attributed to the NPA. Eight indicators from the 2022/2023 APP were not included in the current financial year’s APP because they were either achieved or planned for one financial year. In total, 15 new indicators were included in the APP for the 2023/24 financial year. The DoJ&CD tabled its 2023/24 financial year APP on 26 April 2023 and subsequently presented it to the portfolio committee in the National Assembly on 3 May 2023. The portfolio committee in the National Assembly expressed concerns about reducing certain targets, and the targets were subsequently amended upwards.

The DoJ&CD was disappointed with the complaints received from the public about their interactions with the Master’s office and the DoJ&CD would be resolving the matter by addressing its systematic deficiencies. The DoJ&CD would also outline the progress made on modernisation and digitisation in its presentation. Some of the priorities for the 2023/24 financial year were modernising and digitising the justice system platforms, increasing access to the justice system, transforming state legal services, transforming the legal profession, improving and transforming the Master’s office’s services, and advancing constitutionalism, human rights and the rule of law. Being in the current administration’s final year, there was a renewed commitment and sense of urgency to finalise and complete all the outstanding initiatives and programmes undertaken in 2019.

Service delivery and justice for all remained the utmost priority and the DoJ&CD would continue to support and strengthen the magistrate courts in the best way possible. The DoJ&CD was addressing the backlog issue in the Magistrate’s courts with the assistance of the magistrates, chief magistrates, and regional court presidents. Additionally, the DoJ&CD was working on providing electricity in its courts during blackouts. The relevant departments and entities under the ministries would present a detailed plan for the 2023/24 financial year. The DoJ&CD was working hard to create a better life for its people and make access to justice a reality for all.

DoJ&CD Annual Performance Plan 2023/24

The following officials presented the DoJ&CD’s APP:

• Ms Kalay Pillay, Acting Director-General (DG), DoJ&CD;
• Mr Fhatuwani Gelebe, Acting Chief Director: Strategy, Monitoring and Evaluation, DoJ&CD; and
• Ms Tshidi Modise, Acting Deputy Director-General (DDG); DoJ&CD.

Ms Rofhiwa Irene Singo, Chief Financial Officer (CFO), DoJ&CD, said the DoJ&CD had a budget allocation of R23.1 billion in the 2023/24 financial year and R25.1 billion in the 2025/26 financial year.

She said the major cost drivers for programme one were the rental and lease of departmental office buildings and the maintenance of Information and Communications Technology (ICT) systems which fell within the sub-programme office accommodation (54%) and corporate services (28%) under the Goods and Services item.

The major cost driver for programme two was the compensation of employees (66%). The functions performed in the programme were labour-intensive. The lower courts were the largest spending sub-programme within the programme, with a 76% budget allocation. The Goods and Services budget allocation of 23% was for the operational costs to support the functioning of the courts.

The major cost driver for programme three was the compensation of employees (88%) as most appointments were Occupational Specific Dispensation (OSD) appointments.

The National Prosecution Services was the largest spending sub-programme in programme four with 73% of the budget allocation. The major cost driver for that programme was the compensation of employees (77%).

The entities made up the major cost driver for programme five (78%). Other major cost drivers under Goods and Services were the Integrated Justice System (IJS) and modernisation of ICT systems, accounting for 19% of the allocated budget in this programme.

The projected cost for implementing the 7.5% salary adjustment for the DoJ&CD and NPA amounted to R763 million. The preliminary indications were that National Treasury (NT) proposed the absorption of the cost within the DoJ&CD's baseline for the 2023/24 financial year. With 46% of the budget being allocated to the compensation of employees, the wage bill issue would continue to be a challenge if there were expectations to fund it from the current baseline.

The expectation that the Department must fund emerging pressures for Entities and the Commissions of Inquiry was hindering the Department’s ability to effectively and efficiently manage the implementation of its APP and budget. The DoJ&CD tried its best to ensure that service delivery issues at the court level were funded.

Highlighting the plans to reduce irregular fruitless and wasteful expenditures, she said the irregular, fruitless, and wasteful expenditures for 2023 significantly decreased by 72.5% for irregular expenditures and 90.8% for fruitless and wasteful expenditures. The root causes were analysed and mitigation measures were implemented through an internal compliance control committee to strengthen controls. Fruitless and wasteful expenditure arising from no-shows of witnesses continued to be a challenge.

Highlighting the high-profile cases being investigated by the Investigating Directorate (ID), she said the work of the ID focused on 13 major investigation categories covering the public and private sectors in the following entities: Transnet, Eskom, Bosasa, Estina Company (Pty) (Ltd), South African Police Services (SAPS), the NPA, State Security Agency (SSA), Bain (SARS), McGowan, Alexkor, South African Airways (SAA), and the Public Investment Corporation (PIC). The ID enrolled 18 criminal cases in the year under review, from authorised investigations, work that led to the arrest of 77 individuals. Furthermore, 13 new investigations were authorised for the 2022/23 financial year. The total value of forfeitures and confiscations in all state capture matters currently stands at R2.9 billion. The Asset Forfeiture Unit (AFU has restrained and preserved a total of R14.169 billion in State Capture and related matters and R5.4 billion has been recovered.

The budget could never be enough to cover all the priorities of the Department. However, the Department carefully allocated its budget to accommodate most of its priorities. The DoJ&CD would be embarking on a business process review to optimise the delivery of its mandate within the allocated budget.

[Please see the 80 presentation slides for details]

SIU 2023/24 Annual Performance Plan

Ms Ntombi Mthobeli, CFO, SIU, said the SIU had total expenses estimated at R1.1 billion in the 2023/24 financial year and R1.5 billion in the 2025/26 financial year. Investigations and legal counsel accounted for 62% of the expenses. In comparison to the expenses, the estimated total revenue in the 2023/24 financial year was R1 billion, and R1.5 billion in the 2025/26 financial year. NT approved the deficit in 2023/24 on condition that the SIU funded the shortfall and that no deficits were obtained in the 2025/26 financial year. The SIU would utilise the funds in its coffers to fund the deficit.

Highlighting the debtors outstanding per sphere of government as of 28 February 2023, she said the outstanding debt amounted to R827.7 billion, with the largest debtor, the public entities owing 31% of the aggregated amount. The payments received post-Operation Khokhela amounted to R341 million. Face-to-face engagements yielded positive results, which led to payments from state institutions.

Ms Thenjiwe Dlamini, Head of Strategy, Monitoring and Evaluation, SIU, also presented on the SIU’s APP.

[Please see the 85 presentation slides for details]

Discussion

The Chairperson recalled that the President made an announcement during the State of the Nation Address (SONA) on the NPA Amendment Bill which would establish the ID as a permanent entity. She asked for an update on that process.

Ms A Maleka (ANC, Mpumalanga) asked for an update on refurbishing and upgrading the court facilities. What challenges were faced during that process? What were the successful outcomes and challenges of establishing and operating the TCCs? How would the DoJ&CD describe its staff's morale and were there systems in place to create a healthy working environment for the employees?

Ms M Bartlett (ANC, Northern Cape) asked for an update on the progress made on the GBVF programme. What challenges did the DoJ&CD face in promoting women to occupy senior positions? What did the public education awareness sessions entail? What were the successful outcomes and challenges of the public education awareness sessions? Was the public informed about the amendments made to the GBV legislation during those sessions? How were the related pieces of legislation generally implemented?

Mr G Michalakis (DA, Free State) asked for an explanation behind the late tabling of the DoJ&CD’s APP report. The maintenance of court buildings was considered the DoJ&CD’s major challenge. However, that task was within the jurisdiction of the Department of Public Works and Infrastructure (DPWI). When would the Service Level Agreement (SLA) be effected and will it address the court buildings’ maintenance backlog? Many courts were predominantly affected by load-shedding as they could not operate during the scheduled times. Considering the existing backlog in courts, how was the court’s load-shedding issue being addressed? Did the DoJ&CD and DPWI discuss the possibility of removing courts from the grid and making alternate energy arrangements to mitigate the impact of load-shedding on their operations? He said he often got queries about the backlog in the Master's office. Research has shown that only 7.85% of the backlog in the Master’s office has been addressed. However, the NPA had committed to clearing the backlog by December 2022. Why was only 7.85% of the backlog addressed and why was the targeted deadline not met? Given the Master's office's historical pace in reducing the backlog, what was the estimated period for addressing the existing and expanding backlog? Was the DoJ&CD confident in the State Information Technology Agency’s (SITA’s) ability to provide services to modernise and digitise its systems? He expressed his doubts about SITA’s ability to provide adequate computer systems with the necessary security features. Since the DoJ&CD was dealing with sensitive information, what measures would be implemented to ensure that SITA’s services were effective and secure enough to process the public’s information? How has the upward adjustment of targets affected the DoJ&CD's planning and what was done to ensure that the advanced targets were met?

The Chairperson said that the Independent Police Investigative Directorate (IPID) and the SAPS reported that the NPA declined to prosecute on several occasions. What were the main reasons behind the NPA’s decision not to prosecute? What was the nature of the NPA's relationship with the other stakeholders in those cases and what challenges did it face? What was the nature of the relationship between the NPA and other stakeholders in ensuring that state capture cases were prosecuted and what challenges did the NPA and SIU face in such cases? How would the resources and capacity of the DOJ&CD, NPA, and SIU be described? How would challenges be effectively managed going forward, especially those experienced in state capture cases and South Africa’s grey listing status, money laundering, and terrorism? What were the effects of fruitless and wasteful expenditure on the Limpopo high court building and would the building be condemned?

Responses

Deputy Minister Jeffery said a draft Bill dealing with the issue of establishing the ID as a permanent entity was in preparation. The Bill would be presented to the cabinet soon because the DoJ&CD planned to send it to the National Assembly in the following month.

Ms Constance Mametja, DDG: Corporate Services, DoJ&CD, said the DoJ&CD had installed 139 generators in its courts and would be continuing to install more generators. The DoJ&CD was working closely with the DPWI. The DoJ&CD would utilise the R1 million approved delegation threshold to acquire more generators. The DoJ&CD was working on a temporary contract to provide and maintain alternate energy sources as it was considering installing solar panels in some courts. Solar panels and other energy sources had already been installed in some courts. The DPWI increased the DoJ&CD’s R100 000 threshold to R1 million and the Departmental Financial Instructions (DFI) had been revised to give managers and the regions more maintenance responsibility. The DoJ&CD has never exhausted its facilities maintenance budget. The DPWI appointed service providers to assist in instances where major renovations and repairs were required. In some courts, it was discovered that some service providers were not performing as required, which delayed the repairs and maintenance completion process. However, the budget was available and the delegations had been approved for implementation. The SLA was currently being vetted by the DoJ&CD’s legal services and would be sent to the DPWI for sign-off. The SLA would become effective once signed by both parties as it outlined the implementation processes of the different programmes and how payments would be made.

The DoJ&CD currently has four programmes:

• Programme one: refurbishment and repairs.
• Programme two: upgrading and additions: the courtrooms would be extended where necessary.
• Programme three: plant maintenance
• Programme four: total facilities management: the recently completed courts were the Booysens Court, Magistrate Court Point, Limpopo High Court, and Mpumalanga High Court. The DPWI was assisting in establishing the facilities management solutions in those projects.

The city of Polokwane, including the Limpopo High Court, was sitting on a water bed that was currently being pumped out. The DoJ&CD had obtained occupational certificates and engineer certificates and thus the Limpopo high court would not be condemned.

The DoJ&CD and other departments often encountered challenges with SITA. The Director-General (DG) of the DoJ&CD previously met with the newly appointed Managing Director (MD) of SITA. SITA agreed to send the DoJ&CD its action plan on how it would expedite the DoJ&CD’s numerous projects. The DoJ&CD analysed the rebuilding of the data centre and was finalising the migration of the business applications into the new data centre. The DoJ&CD successfully migrated the financial management system (MojaPay system) and the Integrated Case Management System (ICMS). The migration of other business applications was in progress. The DoJ&CD included a private cloud in its data centre. The DoJ&CD would monitor the improvements made by SITA following the commitment they made. The DoJ&CD and the DPWI would have a meeting with the Committee to address the court maintenance delays.

Mr Rodney Isaacs, Acting DDG: Court Administration, DoJ&CD, said one of the key strategic activities of the DoJ&CD was to improve access to the Survivor Support Services through a victim-centric criminal justice service that was sensitive to and meets the needs of survivors (i.e. humanising service delivery and addressing the unequal and inequitable spread of victim services). The DoJ&CD developed a safety plan for survivors of domestic violence and phase two of the online web portal where domestic violence applications could be submitted. Thus, victims would not be subjected to the traumatic experience of appearing in court. In addition to the Domestic Violence Amendment Act, the DoJ&CD was also developing the integrated electronic repository which would store past, present, and future protection orders. The DoJ&CD was responsible for:

• Appointing more intermediaries as they were required in sexual offences courts. Additionally, intermediaries were required to appear and assist in non-criminal proceedings. Trauma debriefings were also conducted for the intermediaries.
• Strengthening the capacity within the criminal justice system to address impunity and facilitate justice for the GBVF and GBV survivors.
• Resourcing the infrastructure and human capacity to facilitate effective service delivery by establishing sexual offences courts as indicated in the Key Performance Indicators (KPIs) of the APP.
• The development of phases three to six of the Femicide Watch. The DoJ&CD was the Lead in pillar three of the Femicide Watch and would ensure that continuous research and monitoring were conducted to assist in preparing and developing appropriate interventions for an ever-changing society.
• Fast-tracking the vetting process of the national register for sexual offenders. Some individuals aspired to work in schools, hospitals, etc. Thus the DoJ&CD has set pre-performance indicators to support the application for the related certificates.
• Amending the GBV-related legislation if it was built onto legislative reforms initiated under the emergency response emergency plan. The DoJ&CD developed a category of crimes constituting GBV and developed a category of GBVF crimes in the new South African law, which fell under the research and monitoring function of pillar three.
• The finalisation of the Prevention and Combating of Hate Crimes and Hate Speech Bill by Parliament.
• The overhaul of the Criminal Procedure Act, of 1977, made it victim-centric, which included reviewing bail provisions. The new amendment to the Bill on such crimes provided that police officials or prosecutors would process no bail. The bail application had to go to court and the case's merits would be determined.
• Finalising the Traditional Courts Bill. The part of the law that required GBV victims to be taken care of played a huge role in the Traditional Courts Bill.
• Determining the policy direction of the legislative frame governing the sale of sexual services and related activities as it related to the sex workers' legislation.

Adv Lloyd Lotz, Chief Director: Constitutional Development, DoJ&CD, said the DoJ&CD continuously provided education on constitutional rights and human rights to advance constitutionalism, respect for human rights, and the rule of law. By providing public education, the DoJ&CD aimed to educate the public about the Constitution, various pieces of legislation, and the departmental services available to them. The DoJ&CD also conducted campaigns to address issues around xenophobia and other intolerance. Additionally, the DoJ&CD educated the public on the use of equality courts, equality acts, and the importance of utilising the DoJ&CD's various legal services. The DoJ&CD worked with Chapter Nine institutions such as the South African Human Rights Commission (SAHRC), civil society, and other key stakeholders. The work of the DoJ&CD continuously evolved and focused on informing the public about the diverse services provided in different regional and provincial offices.

Ms Penelope Roberts, Acting Chief Master of The High Court, DoJ&CD, said the Master's office had targeted to address the backlog in the 2022 financial year. However, 18.65% of the backlog was reduced, not 7.55% as indicated earlier. The target was unmet due to the Information Technology (IT) system’s downtime, connectivity issues, and load-shedding struggles. Hopefully, the anticipated interface with SITA would address the IT system challenges faced. The Master’s office was working on securing an uninterrupted power supply to address power outages and ensure that the backlog is reduced. The target for the 2023 financial year was set at 75% but once the Master’s office services were modernised, the DoJ&CD aimed to reduce the backlog by the end of the current financial year. The Master’s office piloted an online system in Johannesburg, Durban, and planned on further piloting the system in Cape Town by 1 September 2023 before implementing it in its national offices.

Ms Modise said the NPA embarked on a recruitment drive in 2019 which was further implemented in the 2023 financial year, resulting in 8 000 employees being hired. The NPA currently had 344 aspirants in training who would form part of the headcount in the NPA. Additionally, 700 young professionals were added to the NPA's ranks in the previous financial year. The NPA was aware that capacity did not only pertain to increasing the number of employees but also related to increasing the capacity as it pertained to the skills. That was done through the capacity enhancement initiative. The NPA performed a comparative study to determine the capacity required in other jurisdictions that dealt with commercial crimes. The comparative study was further measured against the NPA's prosecutors. Following the study, the NPA was aware of its shortcomings and focused on addressing them through several interventions. In addition to the NPA's normal training and mentoring programmes, a job pairing programme would be implemented for employees to gain the required skills for performing their respective duties, especially on duties related to commercial crimes and corruption.

Adv Anton du Plessis, Deputy National Director of Public Prosecutions (DNDPP): Strategy, Operations and Compliance, NPA, said the NPA was given an additional budget allocation under the Medium-Term Expenditure Framework (MTEF) period specifically for addressing state capture-related matters. The NPA has invested its efforts and funding into the capacitation of the ID. The ID's recruitment numbers had increased in the last 12 months and a similar increase was observed going forward.

The establishment of the ID as a permanent entity and the capacitation of the ID were crucial matters. However, capacity did not solely depend on the number of employees. As per the President's remarks and the Zondo Commission's report, capacity related to the skills that the ID did not currently possess and could not acquire due to the legislation that needed to be amended. Capacity was not only about permanence. The additional capacity that the ID required, such as criminal investigative skills, would be acquired once the legislation was amended. Following the legislation’s amendments, the NPA would be able to proceed with acquiring criminal Investigative capacities, and additional digital and forensic analytical capacities. The capacity review initiative gave the NPA a benchmark beyond the scope of the ID as it looked at the NPA's ability to prosecute high-level corruption matters. The pioneering initiative highlighted areas where capacity was required and the appropriate pipelines for sourcing that capacity. The assessment showed that the NPA already possessed a high level of required basic skills and capacities to tackle corruption cases. The NPA identified cyber-crime and money laundering as areas it could potentially invest in through its training and mentoring programme by using the capacity of its existing senior staff and retired colleagues.

A study conducted showed that the NPA did not just lack capacity but it lacked an enabling environment for prosecutors to work in and be able to deliver on challenging issues such as state capture matters. The NPA would have a discussion with the DoJ&CD on its facility and connectivity challenges and other environmental factors which affected the prosecutor's ability to deliver on an ideal level. The NPA used an evidence-based approach to determine the capacities required. The NPA was aware that it would not be able to recruit the required skills overnight. A collaborative approach would be taken by partnering with organisations that have the required skills and capacities. It was futile to develop the NPA's capacity in silos. The NPA would look through its various initiatives with the SAPS and other related entities in the criminal justice value chain to develop its capacity. The NPA was assessing how it could leverage its capacity-building initiatives to ensure that it aligned with other capacity-building initiatives required within the broader value chain of the criminal justice system.

Adv Rodney de Kock, DNDPP: National Prosecutions Service, NPA, said the NPA had an exceptional working relationship with all the law enforcement agencies. The NPA coordinated the activities of the law enforcement agencies to ensure that the deficiencies identified by the Financial Action Task Force (FATF) in the money laundering system were addressed. The NPA entered into a Memorandum of Understanding (MOU) with the SIU, Directorate for Priority Crime Investigation (DPCI), and SAPS in December 2022, to strengthen how SIU matters were addressed and to ensure that they were prioritised when referred through the Specialised Commercial Crime Unit (SCCU) to the NPA and DPCI. The NPA would provide feedback to its role players on the decision-making process. However, the prosecutors and investigators worked closely in all the national priority work conducted either through the SIU, DPCI, or ID. They followed the prosecutor-guided investigations approach while the ID followed the prosecutor-led investigations approach. When the prosecutor decided not to prosecute under the prosecutor-led investigations approach, all role players would be involved in the decision to ensure that the decision taken was fully understood. The prosecutor-led investigations approach was used for all priority cases.

The NPA had a task force that coordinated the work of law enforcement agencies with the ID according to the Zondo Commission recommendations. The ID reported its progress and the challenges experienced on the task force. The NPA and its stakeholders were working effectively with the available resources. When resources were insufficient, the NPA pulled together its resources and prioritised the enrollment of identified priority cases. The NPA received directives to identify new matters on corruption for enrollment. Therefore, the NPA will work with its partners to ensure that the directives are achieved.

The NPA played a significant role in the coordination of the work of law enforcement on the greylisting plan. A lot of work was currently being done and the NPA worked closely with the NT which led the NPA's response to the greylisting issues. The NT also assisted with the coordination through the inter-departmental Committee which housed all relevant duties. The inter-departmental Committee also monitored the progress of implementing the NPA's response. The law enforcement agencies developed an action plan which addressed the key strategic outcomes of the deficiencies identified by the FATF. A bulk of the outcomes outlined the approach to complex money laundering investigations and prosecutions. The NPA was currently identifying cases qualified as serious and complex money laundering. Additionally, the NPA was developing a database to track the progress of new and previous money laundering matters.

The NPA was identifying key asset recovery areas to focus on. The NPA was examining the matters that qualified as terror financing to ensure they were investigated immediately. The NPA had a joint training requirement to ensure that all law enforcement agencies were trained according to the new legislation and the amendments to the Protection of Constitutional Democracy against Terrorist and Related Activities (POCDATARA) legislation and other key legislations. The coordination with the financial sector was well established. The NPA was working closely with regulatory authorities such as the Financial Intelligence Centre (FIC), the South African Reserve Bank (SARB), the Financial Conduct Authority (FCA), and other authorities that had the responsibility to ensure that risks in the system were identified and to refer relevant cases for investigations and prosecutions.

Adv Bonnie Currie-Gamwo, Special Director of Public Prosecutions and Head of the Unit, NPA, said the TCCs across the country were managed by the NPA's Sexual Offences and Community Affairs unit. TCCs were introduced in South Africa in 2001. The most recently established TCC started operating on 1 May 2023 and was located in Jozini, KwaZulu-Natal. There were currently 63 operational TCCs across the country. However, the TCCs were insufficient to service all GBV victims in South Africa. Consequently, many communities were excluded from the services of the TCCs. The implemented TCC model was internationally recognised and was the best pre-trial service currently available in South Africa for GBV victims. However, TCCs had their challenges. The expansion of the TCC footprint was hampered by the absence of a GBV-specific budget for building TCCs. That was significant because TCCs were multi-sectoral and relied on the Department of Health (DoH), Department of Social Development (DSD), and the SAPS to provide pre-trial services to victims.

There was a space limitation for TCCs at public hospitals, where they operated. TCCs were constantly contending for space and thus restricted the expansion of TCCs. The space insufficiency was affecting several operational TCCs and alternatives and compromises had to be made to provide the best services for communities. Numerous TCCs were housed in park homes that exceeded their five-year lifespan, posing several issues. The locations and services of the TCC were not popular enough for the use of centres to be fully optimised. The NPA addressed the highlighted challenges by establishing private-sector partnerships which assisted by increasing the number of TCCs from 55 to 63 centres in two and a half years. The NPA obtained a financial commitment from the private-sector partnerships to at least increase the number of TCCs to 70. Instead of relying solely on the public hospital to accommodate TCCs, The NPA searched for places to house its TCCs. With the private sector's assistance, the NPA moved TCCs into brick-and-mortar buildings, and several park homes were upgraded to modular homes. Additionally, the NPA combined its resources by merging with forensic clinics to establish hybrid TCCs. Negotiations with the mining sector were underway to convert its GBV Centres into operational TCCs. To increase the visibility and accessibility of the TCCs, media campaigns through social media and private-sector marketing were conducted. If more people knew about the TCCs, they would be able to access their services. The TCC and NPA logos and the TCC email address were printed on the SPAR grocery bags. The campaign connected people seeking GBV-related advice with the TCC. A certain cellphone provider was working on getting the TCC’s message through its systems to enhance its visibility and services.

The most significant success for the TCC was the increase in the conviction rate, from 60% in 2010 to 76% in 2022. The TCCs assisted a total of 34 456 people. TCCs were initially introduced as an anti-rape strategy. However, the mandate has been broadened to service all GBV victims. A domestic violence protocol was introduced, assisting victims to apply for and obtain protection orders. The accessibility for physically disabled people was enhanced. The deaf community would be able to engage with the services of the TCCs as they would be shown a video in sign language explaining the purpose of the TCCs, the services offered, the people who would assist them, etc, to create a safe space for deaf persons. The NPA hoped that the visibility it created around the TCCs would increase the number of people it serviced to fully optimise its services to GBV victims. The NPA made the necessary adjustments and amendments to its training manuals to align with the latest GBV legislation around domestic violence and sexual offences.

The Employee Wellness Programme (EWP) complained about staff morale. The NPA approached its internal EWP and the private sector to schedule debriefing sessions. Annually, prosecutors were trained on all aspects of GBV. The training was amplified by the community prosecutions initiative which had 13 sites focusing on GBV which was a channel to communicate with communities and empower them to address GBV either as a victim or as an individual assisting a GBV victim.

Adv Shamila Batohi, National Director of Public Prosecutions, emphasised that the community prosecution initiative was a significant channel for the NPA to engage with communities. The NPA would provide the Committee with further information on the initiative in a written statement. Without the assistance of the private sector, the NPA would not have been able to expand the TCCs’ footprint. The growth of the TCCs was exponential as seven TCCs were added to the existing 55 centres in two and a half years. The newly established TCCs owed their existence to the in-kind support granted by the private sector.

Adv Andrea Johnson, Head of the ID, NPA, said that nine seminal matters of notice were enrolled between 1 April 2023 to 30 September 2023. In December 2022, the ID embarked on an alternate dispute resolution mechanism where the ID engaged with a certain entity and recouped R2.553 billion which was kept in the criminal asset recovery account. Due to capacity constraints, the ID was only able to recruit financial investigators and prosecutors in the past three months. Consequently, the recruitment allowed the ID to amplify its work and increase its pace. However, the ID was still unable to recruit criminal investigators because it was awaiting the amendment of the NPA Act to reflect the permanence and powers of the ID. The ID relied on the duty reassignment of seconded personnel, 12 of which were from the DPCI and four from the IPID. Considering the volume of work within the Zondo Commission, Mpati Commission, Nugent Commission, and any other high-level matter referred to the ID, it was clear that there was a capacity and criminal investigators limit. Additionally, to speed up the investigations, the ID considered using data analysts. The volumes of data that investigators and prosecutors had to go through were alarming and the specialised rare data analytics skills were required as Data analysts understood what to search for and the relevant product to send out. The ID was considering entering into private partnerships and other avenues to recruit the data analytics capability as it was a resource that would change how quickly and effectively the ID focused on its investigations and prosecutions. Once the ID had authority, it would be able to change the landscape of the outcome.

The ID engaged with law enforcement agencies like the SIU, DPCI, FIC, SARS, and partners in the private sector. The ID has built relationships with the highlighted parties and was able to leverage those partnerships. The ID has worked smoothly with the State Capture Commission and Professor Itumeleng Mosala in accessing the data required during various stakeholder engagements. There was a common understanding of what was required in addressing high levels of corruption. However, due to the current challenges, the focus was on achieving the ID’s objectives.

Adv Batohi clarified that the NPA received a directive to identify more impactful corruption matters from the National Director and not from an external source.

The Chairperson asked if the SIU could comment on the question asked about its capacity and resource challenges. She said she was aware that mitigation strategies were implemented to manage the risk resulting from threats directed at whistleblowers and investigators. How effective was the internal integrity unit in ensuring the safety of whistleblowers and investigators? Did the SIU coordinate with the SAPS and NPA witness protection programme? She asked Deputy Minister Jeffery to respond to the question on the challenges faced in promoting women into senior positions and the question on the DoJ&CD’s staff morale.

Follow-up Questions

Mr T Dodovu (ANC, North West) said he was concerned about the delay in prosecuting high-profile cases. The state capture issues were crucial and had to be investigated properly. Would the DoJ&CD meet its targets as outlined in the APP? Two years ago, there were issues around the inter-ministerial task team in the North West province where a total of 95 cases were tabled and most of them were directed to the NPA and were awaiting a decision. To this date, the NPA has not dealt with the cases. What were the challenges of the NPA in addressing the issues in the North West? The media reported that the SIU submitted many cases to the NPA and when the NPA decided not to prosecute, the SIU could not do anything about the case. Why was the prosecution process slow? What challenges were faced in addressing the pace at which the NPA prosecuted its cases? The Committee received a presentation from the South African Law Reform Commission (SALRC) in 2022, and the Committee had an issue with the existing laws as they did not reflect the principles and values of the new democratic order. For example, the Prescription Act 68 of 1969, State Liability Act 20 of 1957, and Commissions Act 8 of 1947 were outdated laws. It was important for South Africa to enter the process of transforming the stated laws. Was the law transformation process in motion? The laws needed to be compatible with the current democratic period.

Responses

Ms Dlamini said the NPA was managing its staff turnover rate which currently sat at 4%. The NPA had a Resource Strategy Model and “was growing its own timber” by capacitating and upskilling its people. The NPA entered into a partnership with the French Embassy and the partnership would improve the capacity and competencies of the ongoing Cyber Forensic Investigators’ pilot. The pilot would assist law enforcement agencies in the region and South Africa by ensuring that there was capacity. The NPA was managing its capacity and human capital and aimed to be the best employer of choice.

Mr Leonard Lekgetho, Chief National Investigations Officer, SIU, said the SIU monitored the whistleblower risk. The risk was considered from the whistleblower's and the SIU employee's perspective as employees were usually threatened. To mitigate the risk, the SIU collaborated with the NPA to provide witness protection. Whistleblowers were placed under witness protection when they received threats. The SIU also worked with Crime Intelligence by conducting a threat analysis and providing the necessary protection for victims. It was critical for the SIU to ensure that its employees were safe and thus the risk was monitored regularly.

Adv de Kock proposed that the NPA submits a written response on the progress made on the North West cases. As indicated by the ID, progress was made on the state capture cases identified in the Zondo Commission. The NPA was working tirelessly on building the capacity of the ID. The legislation establishing the permanency and powers of the ID would be presented to Parliament. The issues highlighted above contributed to the NPA’s ability to conduct investigations quickly. The NPA worked closely with the SIU, DPCI, and referral to the MOU concluded on crucial corruption-related matters. The work conducted by the SIU would ensure that the matters were finalised quickly. Forensic investigations were identified as an area of weakness in the state. Thus, the state's forensic capability and capacity would be developed in the Financial Intelligence Centre (FIC) and the NPA would capacitate the capacity within the FIC to assist with the forensic investigations. Through the work of the National Task Force, the NPA would ensure that the cases were prioritised through the justice system. Once cases were on the court roll, other challenges impacted the NPA’s ability to finalise the cases.

Adv Batohi said it had been four years since she was appointed as the NDPP. The NPA needed to deliver on its mandate and ensure that high-profile cases were brought to court. The appointment of the NDPP in 2019 was the only change in the NPA. In 2020, the NPA appointed two DNDPP’s during the COVID pandemic. It was only in 2022, after the COVID pandemic, the appointment of the DNDPPs, and the appointment of key senior leadership positions, that the NPA was able to embark on the journey to rebuild the entity and ensure that the perpetrators of state capture were dealt with accordingly. A lot of work had been done and unlike the SIU, the NPA did not present all the strategic initiatives that assisted it to deliver on its core mandate. Efforts were focused on ensuring that the NPA was a cutting-edge organisation that was fit for purpose and could deliver on its core mandate. The NPA’s courts were dealing with over 850 000 cases annually. Building the NPA as a solid institution that can withstand future attempts to capture it was important. The key metric for South Africans was whether the perpetrators of state capture would be convicted. However, such cases took time but prosecutions would follow in the proceeding year.

The Committee should also consider that the ID had over 90 continuing investigations, and enrolled over 34 cases involving over 200 accused persons, including senior politicians, current and former ministers, Chief Executive Officers (CEOs), provincial leaders, and some of the largest corporate companies in South Africa. The NPA had secured restraining orders to the value of R7.18 billion. As part of the ongoing criminal investigation into complex corruption at Eskom, a settlement agreement of R2.5 billion for punitive reparations was received and deposited into the fiscus. The Asset Forfeiture Unit (AFU) obtained 2 000 confiscations and forfeiture orders involving R4.5 billion, the majority of which has been ploughed into the Criminal Asset Recovery account in support of the criminal justice system. The AFU and its partners had frozen over R13 billion in stolen funds over the past four years. The Anti-Corruption Task Team (ACTT) has identified high-priority investigations and prosecutions and adopted the integrated approach. The ACTT enrolled 78 cases involving almost 400 accused persons. Consequently, it should be recognised that a lot of work has been done. Looking at the nine seminal cases enrolled by the ID in the previous year, there were many high-profile accused persons in those cases. Several enrollments would be made in the upcoming year and once such cases were enrolled, the NPA dealt with a lot of delays in the criminal justice system and the NPA had to consider a range of issues to address. Besides the challenges encountered in the criminal justice system, the NPA had to deal with the Stalingrad tactics employed by the accused persons to ensure that their cases were not adjudicated upon. The delaying tactic was a strategy that ensured that perpetrators were not held accountable. However, the NPA developed guidelines outlining the strategy and approach to addressing delaying tactics and the guideline would be implemented frequently. The prosecutors would be more vigorous in applying section 32(2)(a) of the Criminal Procedure Act 51 of 1977, where the court would make an inquiry on the delay of the cases. The NPA considered various ways to address the delaying tactics and recognised that it had to work even harder. Hopefully, with the ID being a permanent entity and a good collaboration with the NPA’s partners, South Africans would see an escalation of progress from the NPA.

Ms Pillay said there would be an update on upcoming legislation. Several pieces of colonial and apartheid-era legislation were among the Bills included in the legislative programme. One of the targets in the APP was related to the repeal/review/replacement of old-order legislation. The Criminal Procedure Act 51 of 1977 was being reviewed and a Bill was currently drafted alongside the SALRC. The Bill should have been completed a long time ago but a team and a new project plan were finally established. The full-time Commissioner of the SALRC would lead the project.

The DoJ&CD conducted a broad review and some research on the Commissions Act 8 of 1947. The Bill would be finalised for possible introduction in the new administration. The DoJ&CD was considering a replacement mechanism to implement in the Bill, looking at how the commissions were conducted, the duration of the commissions, and the related costs. The State Liability Amendment Bill was a long outstanding matter. The amendment related to one aspect of the State Liability Bill on the medical-legal claims and an interim recommendation received from the SALRC on claims. The Act had to be reviewed once the report was finalised in June 2023. The DoJ&CD was hoping to repeal the Riotous Assemblies Act 17 of 1956 which was declared unconstitutional, the Extradition Act 67 of 1962 which was old-order legislation, and the Criminal Law (Sexual Offences) Act’s provision that related to the criminalisation of sex work. The DoJ&CD tried to consider the requests from the entities in respect of amendments, constitutional court cases, and new Bills. As per the APP targets, the DoJ&CD repealed about four cases annually based on all factors that should be considered when promoting a piece of legislation.

Closing Remarks

Deputy Minister Jeffery said there were challenges engaging with the Committee as it exercised oversight over numerous departments and entities. A similar engagement in the National Assembly portfolio committee would have taken three days. However, the Select Committee did not replicate the National Assembly’s portfolio committee. The Committee, as a committee of the National Council of Provinces, had provincial interests evidenced by questions relating to the Limpopo High Court and the North West matters. He thanked the Committee, NPA, SIU, and DoJ&CD for their participation and said the DoJ&CD would continue to engage and do better by the people of South Africa.

The Chairperson thanked the Deputy Minister, DoJ&CD, NPA, and SIU for the engagement. The information provided to the Committee was useful in understanding the state of the DoJ&CD and its direction going forward. The Committee also raised pertinent issues raised in its provincial engagements. The Committee expected a written response from the NPA on the North West issue. The DoJ&CD, NPA, and SIU should continue conducting their respective duties. The DoJ&CD should ensure that the legislation is implemented successfully and that the transformation of the legislation is in line with the democratic order. The SIU and NPA should continue their relentless work and ensure that state capture cases are prioritised. The DoJ&CD, NPA, and SIU were further encouraged to work within their budgets and promote access to justice for all citizens. The engagement would culminate in the budget policy debate on the budget and APP for the DoJ&CD.

The meeting was adjourned.