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Justice and Correctional Services

15 May 2000
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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
16 May 2000
NATIONAL PROSECUTING AUTHORITY (NPA): BRIEFING

Relevant Documents
Presentation of the National Director of Public Prosecutions

SUMMARY
Mr Bulelani Ngcuka outlined the structure of the NPA and discussed the activities of the various divisions and units, including the Investigative Directorate for Organised Crime (IDOC), the Asset Forfeiture Unit, the Investigative Directorate for Serious Economic Offences (IDSEO) and the Court Management Unit. He discussed the achievements of the NPA and the problems it is facing.

MINUTES
The Chair, Adv J de Lange (ANC) opened the meeting. He welcomed the representatives from the NPA, especially Mr Ngcuka. He remarked that the progress relating to prosecutions was gathering momentum and direction. He said that the Committee would like to hear where the NPA sees itself going and what it sees as its strengths and weaknesses. He remarked that this briefing was part of the budget vote debates and that the vote would take place on 6 June.

National Prosecuting Authority Presentation
Mr Ngcuka introduced the members of the NPA delegation: Adv J Henning (court management), Mr S Ngema (the "public face" of the NPA), Ms T Majokweni (sexual offences and community affairs), Adv F Kahn (Western Cape Director of Public Prosecutions), Mr W Hofmeyr (Asset Forfeiture Unit), Ms M Sparg (CEO, Administration), Adv P Sonn (Deputy National Director), Mr F Dutton (Scorpions Unit), Adv J D'Oliviera (Deputy National Director) and Dr P Udit.

Mr Ngcuka stated that he would outline the structure of the NPA, its objectives and how the structures operate to achieve these objectives. He said that he would also address the achievements, failures and areas of focus.

He noted that the NPA was established in August 1998 in terms of the NPA Act. There were 4 objectives at that stage:
- To create a national office.
- To create an efficient service.
- To transform the service to make it more credible.
- To lend a hand in the fight against crime.

An organisational structure was developed with financial assistance from the British government. The office of the NPA has four divisions:
- Organised crime and public safety.
- Professional support (dealing with constitutional matters, legislation and extradition).
- Legal services.
- Administration.
Within each of these divisions there are a number of units.

At this point, Mr Ngcuka paid tribute to Adv Brink Ferreira who had been shot and was recovering in hospital.

Mr Ngcuka addressed the issue of development of governance and policy. He stated that the National Prosecution Policy had been tabled in 1999 and that a code of conduct had been drawn up. A prosecutors' manual had been written and has been distributed to all prosecutors. The manual contains the NPA Act, policy documents and the code of conduct. There is therefore a basis for a unified policy and approach.

Mr Ngcuka noted that there have been monthly meetings with Directors and, beginning in 1998, there have been annual meetings with senior prosecutors to review the progress that is being made. He remarked that this contact has helped to build consensus. He said that targets had been set at the meetings in the Drakensberg in 1999 and in Mmabatho in 2000.

Organised Crime Investigative Directorate (IDOC)
He noted that there have been 4 specialised units set up under the Organised Crime Investigative Directorate:
- Gang Violence Unit - Cape Town (dealing with gangs and urban terrorism)
- Anti-Hijacking Unit - Gauteng
- Political Violence Unit - KwaZulu-Natal
- Taxi Violence Unit - Eastern Cape

Mr Ngcuka noted that a more unified approach has been adopted, with investigators and prosecutors working together - there has been more interaction.

He stated that the Western Cape Unit has been working very hard - there have been many arrests and already some convictions and sentences. Regarding drug trafficking, the focus is on the main traffickers and there have been major advances here. He stated that the approach here is not simply to look at the offence, but rather to concentrate on and target specific persons.

Regarding the Gauteng Unit, he noted that the problem in Gauteng is very serious. He said that the same approach was being followed and that there had been very good results: of those arrested, there has been a 100% success rate in opposing bail and there have been convictions.

Regarding the KwaZulu-Natal Unit and the violence in that province (especially in the Richmond area where many people had been killed in 1998 & 1999), he noted that many of those involved in the violence have been identified. There have been some arrests and convictions.

Mr Ngcuka stated that much of the problem in the Eastern Cape was not the fact that people had not been arrested. Many people had been arrested but there had simply been no investigations or prosecutions. He noted that these cases have been fast-tracked.

Asset Forfeiture Unit
Mr Ngcuka stated that the forfeiture of assets has caused a great deal of controversy. The Unit was set up after the passing of the Prevention of Organised Crime Act of 1998. This Act was passed after the previous Proceeds of Crime Act of 1996 proved ineffective. He remarked that the best way of tackling crime was to target the people behind the crime - if the people who actually carry out the crimes are convicted they are simply replaced. He stated that 20 targets have been identified. He noted that in practice it is difficult to establish that money is actually the proceeds of crime.

There has been continuous testing of complex legal issues in court. A difficulty is that the courts are interpreting the Act in favour of the individual. Mr Ngcuka remarked that it was his view that the threat to the individual was not posed by the State but by crime. He stated that the cases that go to court must be selected very carefully as they will set precedents.

He stated that the first leg of the AFU's strategy is to build up a core of expertise and the second leg is to employ specialists in prosecutors' offices. He noted that the AFU has not lost a single case on the merits. Where the AFU has not succeeded, the cases have been lost on legal technicalities. He stated that these cases would be returned to.

He concluded by noting that the AFU is a vital weapon against crime - it will take the profits out of crime. He stated that the funds raised by the Unit must be used to combat crime.

Investigative Directorate for Serious Economic Offences (IDSEO)
Mr Ncguka noted that foreign accountants are relied upon here - matters such as foreign exchange are involved. There have been discussions with Business Against Crime who will provide funding to hire advocates to argue these cases.

Under former National Commissioner Fivaz, special commercial courts had been set up in Pretoria. The SAPS provided investigators for these courts. At that stage, however, there was an increase in violent crime and the commercial courts were neglected.

Court Management Unit
Mr Ngcuka noted that there are approximately 1400 courts in the country and 2200 prosecutors. When the NPA started out there were serious problems: Firstly, the system was ineffective and inefficient - it took, on average, 140 days to finalise an ordinary case and only half of these were prosecuted. Consequently, prisoners were spending unnecessary time in custody. The state was paying to accommodate these prisoners and therefore the system was also wasteful. Secondly, there was a high turnover of prosecutors - prosecuting was treated as a finishing school for law graduates. There was also low morale and there were demonstrations by prosecutors.

He informed the Committee that the government, the NPA and the prosecutors had sat down together. It was agreed that if the prosecutors did more, for example reduced court rolls, the NPA would approach parliament for more money. The prosecutors were given 6 months to improve performance. Performance goals were set, including: increasing average court hours, reducing outstanding court rolls, reducing the number of awaiting trial prisoners and increasing the number of cases finalised.

Mr Ngcuka noted that, although the number of court hours has increased and the number of outstanding cases has been reduced, it would take a number of years to cut down the backlog. There are a number of factors that limit the increase of court time. These include providing legal aid and problems of ensuring that awaiting-trial prisoners are brought to court on time. There have been a number of suggestions to increase the number of court hours, for example providing new courts and more training for prosecutors. Mr Ngcuka said that the NPA has convinced the Department to provide new courts and so far two have been set up in the Western Cape to deal with violence against women and children.

Further improvements in performance are reflected in the text of the briefing.

Sexual Offences and Community Affairs Unit
Mr Ngcuka noted that there has been an escalation in violence against women and children. There have been a number of successes. There is a focus on whether prosecutors are sufficiently sensitive to the needs of the victims.

Regarding the Professional Support division, Mr Ngcuka drew attention to the number of constitutional battles fought and won.

Mr Ngcuka said that in 1999 the President had announced that a task force would be set up to look at priority crimes. The areas of crime to be looked at were organised crime, terrorism, serious economic offences and corruption.

Scorpions Unit
This unit has been set up. The members were selected after a rigorous selection procedure. There were 6000 applicants. The majority of the members have LLBs. There are a number of members undergoing training by the FBI in Washington and a number of members will be going to Scotland Yard. They will all be back by the end of June.

Mr Ngcuka made some concluding remarks:
- In dealing with the backlog of cases, it would speed matters up if the accused could be made to declare his or her documents in the same manner that the state has to make its dockets available.
The issue of plea-bargaining must also be addressed - it would reduce the amount of time spend in court.
- The NPA is very mindful of ensuring representivity in the prosecutions services - the fact that there is a need to be representative is "non-negotiable".

The Chair thanked Mr Ngcuka. He said that the NPA is crucial and that crime is the main danger to a society and individual freedom.

Discussion
Dr J Delport (DP) said that prosecution is the central aspect of the administration of justice. He said that there are great travesties of justice and that it is not only the prosecutors who are to blame, but also the police and the courts. He asked whether the battle will be won and whether effective prosecutions and an effective justice machine will be seen.

Adv H Schmidt (DP) brought up the issue of the accused's making disclosure of his or her documents to the State. He remarked that this was troubling and asked whether this matter had been investigated and compared with foreign practice. He also asked when the 6 months training for new prosecutors would happen.

Mr S Swart (ACDP) asked Mr Ngcuka to comment on the international conference he had attended in Vienna.

Ms D Jana (ANC) asked the NPA to comment on the levels of representivity at the level of senior prosecutors. She referred to the controversy in the Western Cape surrounding the appointment of white senior prosecutors.

Imam G Solomon (ANC) commented on urban terrorism in the Western Cape. He noted that Mr Ngcuka had mentioned that there had been a number of arrests and convictions. He said that the question that always comes up is whether these acts of terrorism will happen again. He asked for more details about the convictions, especially regarding key figures.

The Chair asked how misconduct in the service is dealt with.

Adv Henning responded to Dr Delport's question. He stated that the NPA is very positive and that it is winning. He noted that it was only in April 1999 that a national assessment process was established. It could therefore not be said that there had been any more effective prosecutions before then. When it was discovered what performance in the prosecution services was like, the NPA was horrified. He said that the situation was however changing. There is a new management structure, which includes chief prosecutors who meet with prosecutors and set programmes for each office. He said that the NPA would follow the progress of each office. He remarked that training is crucial - prosecutors will be appointed only after completing the training course. He repeated that he was positive that the situation is changing for the better.

The Chair commented that now that performance is being measured it would be useful to see statistics. He also asked what the quality of the statistics is - what is the breakdown etc?

Adv Henning said that the statistics are broken down into the number of cases finalised, the number of convictions and so on. The Chair asked whether the figures are broken down according the type of crime. Adv Henning said that they were not. The Chair said that this would be useful.

Adv Henning said that the regional Directors do have more detailed statistics. He commented that there are many prosecutors who are working hard. He remarked that even if the court time were doubled the number of outstanding cases would not be reduced significantly.

The Chair said that the suggestion that more courts are required is problematic. He said matters such as prisoners arriving at court on time need to be addressed in order to reduce the number of outstanding cases. He said that court time needs to be increased. Adv Henning replied that where prosecutors are productive and problems such as ensuring that prisoners arrive at court on time are sorted out, more courts are required.

Adv Henning addressed the Chair's earlier question concerning misconduct and discipline. He said that this is still a matter for the regional offices of the Department of justice. He said that some prosecutors have been waiting up to two years for their disciplinary hearings. He said that these prosecutors cannot be replaced until they have had their hearings. He said that the NPA wants to take over the issue of discipline and that this is happening.

Regarding Ms Jana's question concerning representivity at the level of senior prosecutors and the controversy in the Western Cape, he said that two senior prosecutors had been appointed as chief prosecutors. This had resulted in a crisis for Adv Kahn - the senior prosecutors had to be replaced and there were only whites available to fill these positions. He noted, however, that of the four chief prosecutors appointed in the Western Cape, two were women and two were black.

Mr Ngcuka said that regional court prosecutors had complained to him about the draining of senior prosecutors by the specialised units and for other reasons. He said that these posts need to be filled and there is a shortage of people to fill them. The courts must nevertheless keep running. He said that one of the problems in the Western Cape is that African prosecutors are not welcomed - either they do not come or they leave. He acknowledged that there have been complaints that not enough Coloured prosecutors have been appointed but noted that there are not enough qualified people.

He addressed Adv Schmidt's concerns regarding the duty on the accused to disclose. He said that there has been much discussion - the SALC is looking at this and there have been discussions with judges. He said that there is a duty to disclose in the US, New Zealand and Ireland. The question is whether it infringes the right to remain silent. He said that the NPA does not believe that there is a problem with placing this duty on the accused - there is a duty on the State to disclose. He said that having a duty on both the State and the accused would be similar to the reciprocal duty to disclose in civil matters. He said he did not think there was a constitutional problem.

Responding to Mr Swart's question concerning the conference in Vienna. He said it was very interesting and eye-opening listening to presentations by emerging and developing countries and learning about the challenges facing them. He noted that he had delivered a paper on the rule of law in developing countries. He said that a talking point was a report that revealed the crime statistics from other countries and indicated that South Africa was not "the crime capital of the world". He stated that there is a problem in South Africa, but it is not as exaggerated as it is made out to be.

Mr Ngcuka addressed the issue of human rights and racism (social context training). He stated that the NPA had been approached by the SAHRC to investigate racism in the courts. It was decided that the matter would be addressed using mediation. A session was organised in Vereeniging over three days. He said that deep racial hostility was expressed and that he could not believe that those expressing these sentiments were South Africans. In Durban similar levels of hostility had been expressed between Indians and Africans. These sentiments were expressed by professionals and towards collegues. He said that Pretoria, Durban and Port Elizabeth have been targeted.

Regarding Imam Solomon's questions concerning urban terrorism, Mr Ngcuka said that the NPA is certain that the right people have been identified and apprehended. He said that he hoped the courts would agree and that it was simply a matter of time before the convictions are secured.

Adv J D'Oliviera addressed Adv Schmidt's question concerning the 6-month training programme. He said that this is a special programme. At the moment there are ordinary and advanced prosecution courses as well as advocate training programmes. This is the standard training and is organised by the regional Directors. The new programme is a six-month entry programme, one month of which will be theory including social context training. Thereafter there will be five months of practical training where prosecutors will mentor trainees. Trainees will only appointed once they have successfully completed their training. He said that a similar training programme for existing prosecutors who are struggling was being considered.

Adv Sonn also addressed the issue of urban terrorism. He said that since Christmas 1999 investigations had been underway and that the intelligence community had come up with 29 names. 23 arrests have been made in cases where the NPA is confident of convictions. He said that persons are not arrested unless it is felt that there will be a conviction. He said that there may not be a conviction on each of the charges brought against each person, but there will be a conviction.

The Chair asked about the land tenure issue. Mr Ngcuka said that the NPA has been asked to set up a special investigation commission in Mpumalanga to look into farm workers. He said that the NPA was meeting with people from "Natal" and the "Transvaal" to discuss how to deal with these issues.

Ms G Magwanishe (ANC) noted that the figures presented concerning court hours pertain to Magistrates' Courts. She asked whether there were figures for the High Courts.

Ms Jana remarked that there had been reports in the media concerning tensions amongst Mr Ngcuka, the Minister of Justice, the Justice Department and the NPA. She asked Mr Ngcuka to comment on this.

The Chair said that he had seen some statistics that indicate that a high proportion of appointments at lower levels were women. The profile at these levels is black and female, but this is not the case at management. He said that this was simply a comment. He asked whether there would be salary increases for increased productivity - would prosecutors get what they want? He commented on the low productivity of the Sexual Offences Courts. He acknowledged that the fact that children are involved results in cases taking longer, but noted that there are nevertheless concerns over the pace at which cases are being handled. He asked how many cases are going through the commercial courts and what the results were in these courts. He asked what the position was concerning the fund for money recovered by the Asset Forfeiture Unit.

Mr A Nel (ANC) remarked that the AFU had been targeting the "big fish". He said that there are smaller criminals who are known in their communities and who, for example, drive cars that they could not afford from honestly earned income. He said that the impact of this layer of criminals on the community is devastating - it impacts on attempting to motivate children to go to school and to earn an honest living. He stated that these criminals should be targeted.

Ms Jana asked about witness protection programmes and whether there were still problems in that area.

Regarding the Criminal Assets Recovery Fund, Mr Hofmeyr said that it had been arranged for the Minister to set up the fund and the first deposits have been made. There have been no deposits from the big cases but these will be finalised soon. He said that there has been some thought given to making recommendations to the Cabinet Committee on how this money should be spent. One of the recommendations is that some of the money should be used to bolster the capacity of the AFU.

Mr Hofmeyr said that briefing documents had been distributed which illustrate what the AFU has done. The AFU has tackled smaller cases as test cases, but it was only the bigger cases that made the news. He said, however, that the Unit has limited investigative capacity, so in smaller matters, the Unit is only capable of looking into cases where there has been investigation by the police. He repeated that smaller matters will be looked into by the Unit. He addressed possible changes to the bail laws such that bail hearings could be heard in District Courts.

Adv Sonn addressed Ms Jana's question concerning the witness protection programme. He said that there has not been a survey of prosecution offices, but the word is that it is not going well. There are severe budgetary constraints - relocation of persons requires substantial funding. Adv Khan confirmed that there were resource and capacity problems and that the problem was not with the legislation.

The Chair asked whether there was a capacity problem in the police or justice departments, or both. Adv Kahn said that the problems are that it is difficult to determine who is to be chosen for protection, how they are to be monitored and how to determine when they are no longer in danger.

Adv Khan addressed the bail issue. He stated that the Regional Courts are clogged with bail applications. The legislation says that only in exceptional circumstances may bail applications be heard in District Courts. He said that the NPA wants to change this around so that applications are heard in District Courts and only in exceptional circumstances should they be heard in Regional Courts. He remarked that magistrates in the District Courts are competent.

Ms Majokweni addressed the low productivity of the Sexual Offences Courts. She said that the time was not spent on convictions, but on protecting children from further trauma. Longer breaks are required. There is a multi-disciplinary approach, which means that more people are involved. Intermediaries, social workers, doctors and psychiatrists are required and these people must come from other departments. She said that these courts should not be seen as "production courts". She suggested that there should be a central process involving a specialised centre where the experts are situated and from where the prosecutors can direct the process. Reporting could be removed from police stations and taken to the centres. She said that the centralising of the process would increase the productivity of these courts.

The Chair noted that it would be useful to look at statistics to see what these courts have done. He asked about the Maintenance Courts. Ms Majokweni said that prosecutors are being instructed and trained and that the problems are being tackled.

Mr Ngcuka addressed Ms Jana's question concerning the tensions between himself, the Minister of Justice, the Justice Department and the NPA. He noted that the common issue in the reported conflicts was that they all involved himself. He said that the NDPP is central because he must interact with all these departments and people. There have been important positive developments, including the appointment of a new Director General. He stated that he has a good working relationship with all the people concerned and that any tensions were natural in investigation matters. He said that the setting up of the Scorpions has also been very positive.

He added that some people say that the NPA claims credit for the work done by others and this creates tension. He said that this was not true and that the problem lay with dual accountability - police working for the NPA are accountable to the SAPS and to the NPA. He noted that the establishment of the Scorpions has contributed to easing these issues. He said that there are regular meetings with the National Police Commissioner, Mr J Selebi, and that it was a pleasure to work with him. He stated that at the end of the day all the work that the police do ends up on the desks of prosecutors and that therefore the NPA cannot afford, and does not have, tension with the SAPS.

Regarding the Chair's comments concerning representivity at entry level, Mr Ngcuka said that the NPA maintains quotas but women tend to stay whereas men leave. Regarding productivity, he said that the six-month programme involving targets, which was devised last year with the assistance of Business Against Crime, could not be repeated this year. Instead, chief prosecutors have been directed to set down targets.

He addressed the Chair's question concerning commercial courts. They were established in November 1999. In December the court hours were very low, but in January and February this year the hours have increased significantly. He said that more cases would have been finalised had the NPA entered into plea-bargaining. He added that the cases are complicated and take time.

He said that the slide show that he would present would answer the questions pertaining to the High Courts.

The graph indicating the court hours per division as compared against the national average demonstrates that a number of courts are well below the national average. He noted that all these figures relate to criminal matters. He said that one of the main reasons for the low number of court hours was that much time was spent on roll-finalisation. Sometimes cases finish early and the courts are left with nothing to do. He stated that a continuous roll is required so that if a case collapses, the courts can still run and deal with the next case. He noted that the hours lost because of roll-finalisation could be broken down into divisions and times of year. He commented that another problem is that judges are not available. The figures could also be broken down in terms of the number of days lost because of courts' not sitting.

Looking at the breakdown in terms of the number of cases on the roll, Mr Ncguka observed that the Boputhatswana Division has the most cases but the fewest courts.

Mr Ngcuka read out the figures indicating the average number of days from first appearance to finalisation of a case in each division. The figures range from 365 days in the Boputhatswana Division to 758 days in the Transvaal Provincial Division and 759 in the Transkei Division. He said that the length of time for a case to be finalised has chronic implications - the memories of those who testify fade.

He stated that the question was what could be done to turn the situation around. He remarked that the situation was unacceptable at present. He said that there had been meetings with the regional Directors at the beginning of the year. They had been asked what they want. He said that the NPA had proposed that it would provide the necessary resources if the Directors could provide a guarantee that they would deliver. The agreement was that if they did not meet their guarantees, there would be new management.

The Chair indicated that time was up and that the remaining questions could unfortunately not be answered. He noted that, in general, there had been a turnaround in the Department, especially in respect of the prosecuting authorities. He commended the NPA for being open with its problems. He said that the abiding feeling he had was that all concerned have the same objective: getting people prosecuted. He said that the role of management in these structures should not be minimised - management provides leadership.

He indicated that the Committee supported most of what the NPA wants, including the proposed legislative changes. He said that the Committee would be willing to enter into debates concerning the proposal to compel accused persons to disclose their documents. He said that this was really a matter of degree. He congratulated the NPA. He commented that the Committee should attempt to visit the courts and other places where the prosecutors are doing their work.

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