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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
7 April 2005
JUSTICE BUDGET: SPECIAL INVESTIGATING UNIT, ASSET FORFEITURE UNIT, WITNESS PROTECTION UNIT, SPECIALISED COMMERCIAL CRIME UNIT, PRIORITY CRIME LITIGATION UNIT SEXUAL OFFENCES UNIT BRIEFINGS
Chairperson: Ms F Chohan-Kota (ANC)
Documents handed out:
Special Investigating Unit briefing
Special Investigating Unit presentation
National Prosecuting Authority Report to Parliament – 7 April 2005
Asset Forfeiture Unit Report to Parliament - 17 March 2005
Specialised Commercial Crime Unit briefing
The Special Investigating Unit (SIU) briefed the Committee on their activities, noting that the Unit had more than tripled in size over three years. It was increasingly funded by Departments, which saw the Unit as an important tool in combating corruption. Public perception of corruption was very negative, and the activities of the Unit had countered this to a significant extent. It was an independent statutory body, reporting to the President and Parliament. Its major function was to investigate corruption and maladministration and to take civil legal action to correct any wrongdoing. As an independent body, its investigations were impartial, and this enhanced its services. Major partners included the Department of Correctional Services, and it was a major human resources challenge to recruit, service and develop staff.
The Asset Forfeiture Unit briefed the Committee on its progress in 2004/05, and its vision on the way forward. Overall objectives included testing the law by taking test cases to court and creating legal precedents, and rolling out volume to build capacity to ensure that asset forfeiture was used widely. In 2004/05, 64% of judgements had been won, against a target of 66%. In addition, the Unit had recently won two of its largest cases in the Supreme Court of Appeal. A number of areas had been identified where the law needed to be clarified or strengthened and amendments had been prepared and submitted to the Department of Justice. The Committee expressed a view that asset forfeiture should be expanded to all suitable prosecutions.
The Witness Protection Unit had achieved considerable success since its inception. It was, however, seriously under funded, and had R10 million over expenditure in the current year. There was over subscription of its programmes, which were vital to successful prosecutions in numerous instances. South Africa’s witness protection legislation was highly regarded internationally, and both Sicily and the United Kingdom were investigating its use.
The Specialised Commercial Crime Unit gave a breakdown of its achievements over the past financial year, with a conviction rate of 94.78 % nationally. Turnaround times were reducing, and work on the Road Accident Fund project had been extremely successful. Challenges for the future included severe funding constraints, necessitating the scaling down of rollout to Cape Town and Bloemfontein, and causing a problem with adequately resourcing existing offices, including the Road Accident Fund office. Unacceptably high caseloads per prosecutor would also require attention.
The Priority Crime Litigation Unit briefing dismayed Members, as this was one of the most important units addressing offences of great national and security importance, and yet it was staffed by only four advocates with support staff. This under-funding and under-capacity was noted as a priority for rectification.
The Sexual Offences Unit was also under funded. There was a distressingly low rate of convictions in regional courts, but even convictions in the specialised courts were lower than the national norm. The Unit identified staff movement and lack of capacity as limiting factors. Pilot programmes where courts were attached to therapy centres had proved that these resources were well spent, with convictions in these courts at 81%.
Special Investigating Unit briefing
Mr W Hofmeyr (Head) said that the SIU had more than tripled in size in three years, growing from an increase in budget and from departmental funding. An even bigger increase was expected for 2005/06, from 200 staff members to around 500. Major investigations carried out with Departments included a R6 million investigation with the Department of Correctional Services (DCS), R16.8 million investigation with the Department of Transport, R6 million investigation with the Department of Local Government in the Eastern Cape and a R22 million investigation with the Department of Social Development. A new logo had been introduced for the Unit during March 2005, to give the SIU a more South African feel, to establish a distinctive identity and to make the public more aware of anti-corruption work being done by government. The major function of the SIU was to investigate corruption and maladministration, and to take civil legal action to correct any wrongdoing. When criminal wrongdoing was uncovered, the SIU would work with the South African Police Service (SAPS) and the Scorpions. The South African public had very bad perceptions of corruption, and an ISS victim survey had found it to be the second worst crime in the country. The SIU tried to focus on small and medium size corruption, and the vision was to build a unit that made a real difference in the fight against corruption. Many Departments were frustrated at dealing with a number of processes when wrongdoing was discovered. The SIU was aiming to provide a one-stop service for them, doing a multi-disciplinary investigation with law enforcement powers, doing civil recovery, preparing disciplinary inquiries and testifying, preparing a court ready docket for the SAPS, assisting in speeding up prosecution and providing advice on systemic improvements. Some of the advantages of the SIU included their objectivity, cost-effectiveness, and ability to build anti-corruption capacity in the state.
In 2004/05, a Balanced Scorecard was developed as a strategy implementation tool for the SIU, to monitor implementation of overall SIU strategy and specific objectives. The Scorecard would form the basis of future performance agreements with all senior managers. The Department of Public Service Administration (DPSA) anti-corruption strategy recognised the SIU as a vital part of government strategy, and the SIU was inundated by requests from Departments prepared to pay for its investigations.
Major partners included the SAPS, National Prosecuting Authority (NPA) and the Auditor-General, and it was recognised that good relationships with partners were essential to deliver a one-stop service. The SIU engaged with partners regularly at operation and strategic levels to ensure good co-operation. Doing work to the satisfaction of departments was vital to sustain future work, and the SIU operated more like a business with low costs. This was vital as the SIU was essentially competing against private sector forensic accounting firms.
Donor funds had been raised from the United States of America, the United Kingdom and Denmark, for logistical, training and communications needs. Owing to the rate of growth of the Unit, improved internal communication had become a challenge, and a Unit Secretary had been appointed to lead the development of branding and communication generally. Employment equity was progressing, but more action was required. A Potential Leaders Programme and trainees programme were essential to redress the backlog.
With the rapid growth of the SIU, it was no longer viable to recruit only experienced detectives from the SAPS, and a training division had been set up to develop a learning culture. All staff had been assessed and training was being provided. The Potential Leaders Programme sought to fast-track development of staff with potential to become managers, and four persons had been identified, all from designated groups. An intensive integrity vetting process had been developed, but this remained a big challenge with rapid growth and decentralisation. It was envisaged that the SIU might assist Departments with screening in the future.
Work with Departments had yielded excellent results, and a very successful investigation was that with the DCS, currently in its third year. A major challenge was to consolidate the gains in the coming year and to focus on the continued provision of a proper service to Departments. In addition, legislative amendments played a key role in the improved delivery of the SIU.
The Chairperson asked how many proclamations were ongoing.
Mr Hofmeyr replied that fifteen major investigations were under way, with three proclamations pending.
The Chairperson asked for clarity on the mushrooming of the human resources component. What happened to individuals once investigations were complete? Were they on contract?
Mr Hofmeyr replied that the SIU was not a permanent body, but was analogous to a commission of enquiry. All staff were employed on contract as long as the Unit existed. In a number of instances, staff were employed on one, two or three year contracts, in other words, the duration of the Departmental funding. The SIU signed a three-year Medium Term Expenditure Framework contract with the Departments. The Department of Social Development was still considering setting up its own SIU, so the contract included a provision for them to recruit members from the SIU staff.
The Chairperson said that, when the initial legislation was drafted, there had been a very narrow idea of the work of the SIU. It was now clear that its role had been redefined outside of what was contained in the legislation. Had the SIU looked into this aspect?
Mr Hofmeyr replied that, in general, the activities of the SIU were envisaged in the legislation. There had, however, definitely been a change in focus in the Unit and it was looking more at the medium and small size cases of corruption. The bigger cases were often more successfully dealt with by the SAPS, AFU and Scorpions. The SIU tried to assist the SAPS with its constraints, and it was felt that the SIU was still squarely in the mandate of what the law stated.
The Chairperson remarked that it was necessary to right size as much as possible, and that there would be a review of the powers of the Unit.
Mr J Jeffrey (ANC) referred to the identification of small to medium size corruption as a gap for the SIU. As he understood it, however, the SIU was set up to do recovery of money, and required a Presidential proclamation to investigate. This appeared to be an inherent contradiction.
Mr Hofmeyr replied that this was a problem. Allegations could be made on small evidence, and this could cause embarrassment to individuals through the publication of a proclamation. The SIU was investigating using a system where the Head of the Unit could authorise a preliminary investigation, and this would be referred to the President for Proclamation for prosecution.
Mr Jeffrey asked how the public would contact the SIU about allegations of social grant corruption and corruption in the prison service, for example.
The Chairperson pointed out that, although mention was made of small-scale corruption, it was not so much a case of individual traffic officers soliciting bribes, but that smaller kinds of bribes were happening on a larger scale.
Mr Hofmeyr confirmed that many instances were a combination of small cases.
The Chairperson remarked that the real challenge lay in the individual’s perception of that type of activity, for example the extortion of money from relatives at each prison visit.
Mr Jeffrey asked whether the SIU was working towards investigators going in-house in Departments, or whether the public could approach the SIU direct.
Mr F Davids (Deputy Head) replied that the public did in fact contact the SIU, and that the number had been well publicised. In the course of the DCS investigation, a number of complaints had been received on visits. Departments had also referred complaints to the SIU. Departments allowed the SIU to contact officials and other parties, but he agreed that more publicity was needed.
Mr Jeffrey remarked that the GCIS had stands in various buildings, and suggested a pamphlet be issued.
The Chairperson urged caution since irrelevant issues might be referred, and asked for further details of the 15 investigations.
Mr Davids replied that five were in respect of national Departments, for the DCS, Department of Justice, Department of Transport, Department of Health and the Department of Social Development. The other ten investigations were provincial local government investigations, primarily in the Eastern Cape, Free State and Western cape.
Mr G Solomon (ANC) asked whether the Unit was proactive, for example in respect of syndicates.
Mr Hofmeyr replied that the Unit was not proactive in the general law enforcement sense. In situations where there were allegations and evidence, the Unit could get involved, but their mandate was largely focused on the public sector.
The Chairperson suggested that a lot of the Unit’s success related to the willing buyer / willing seller principle, as they were invited to do their work. This had always been one of the strengths of the SIU, and she asked for comment.
Mr Hofmeyr replied that the Unit had put a lot of effort into building constructive relations with Government, and they wanted to preserve this. The SIU tried to help Departments to fix problems, and did not have criminal powers at present. Their request to be able to initiate investigations related to the issue of speed. The Proclamation for the Department of Transport had taken eleven months, for example.
The Chairperson suggested that there may be another solution, such as the concept of preliminary investigations, and that this might even enhance the urgency of Proclamations. This would also depend on how parameters were defined. What feedback had the Unit received from Departments whose investigations had been completed, and had there been positive spin-offs?
Mr Hofmeyr gave the example of the Limpopo Department of Transport license investigation, which had been a very extensive exercise. The Department had been very happy, and had motivated to the national Department that the exercise would be of national value. General feedback received was very positive, although there had been some cases where investigations had been less successful. There was no doubt that ongoing capacity was needed in the DCS investigation, and a lot of the problems uncovered in the Jali Commission had been turned around. Ongoing capacity was also needed with the issues of social pensions and Housing.
Asset Forfeiture Unit briefing
Mr Hofmeyr (Head) introduced the overall objectives of the Unit as developing the law by taking test cases to court and creating the legal precedents necessary to allow the effective use of the law, and building capacity to ensure that asset forfeiture was used widely and made a real impact in the fight against crime. It was a major challenge to expand capacity, and securing funding was an issue. The Unit had reduced the target for new cases to focus on serious organised crime, which required maximum time from key staff members. The Unit was slightly below target on value of new seizures, as two matters involving about R85 million had been plea-bargained without the need for seizure orders. The Unit was also below target for monies into CARA because much more had been recovered for victims, and in one case, 35 000 workers stood to receive over R60 million in compensation.
Targets for 2005/06 included the establishment of good jurisprudence by maintaining an overall success rate of 85%. Test cases were still important, but the Unit was able to be more aggressive where the law was clear. The Unit also measured its success rate in cases where judgements were obtained, and had won 64% of judgements in 2004/05 against a target of 66%. Measures were in place to deal with the instrumentality issue, and Parliament would be asked to amend POCA. The Seevnarayan judgement in the Supreme Court of Appeal (SCA) had made it almost impossible to act against dirty hotels, although the recent Witwatersrand Local Division decision on Cole and Davis had a more balanced approach. The Unit had recently won two of its largest SCA cases, in both Rautenbach and Phillips. Both Rautenbach and Phillips had applied for leave to appeal to the Constitutional Court, Rautenbach had been refused, but the Phillips application would be argued in May. A number of areas had been identified where the law needed clarification or strengthening, and amendments had been prepared and submitted to the Department of Justice.
The Unit’s national presence had grown fairly slowly over the previous two years, but had increased to over 100 in the past year. Offices had been established in Cape Town, Durban, Johannesburg, Port Elizabeth, East London, Bloemfontein, Kimberley and Mmabatho, and it was envisaged to open in Polokwane and Nelspruit this year. The Unit maintained excellent relations with SAPS, DSO, NPS, South African Revenue Service (SARS), South African Reserve Bank (SARB), and there were SAPS task teams in most AFU offices. The AFU was targeting priority crimes, including organised crime in all forms, drugs, serious violent crime with economic motive, precious metals and property used to commit crime. It had been established that financial investigations could add real value, particularly to investigations into organised crime. The drunk driving initiative was operated in conjunction with the Department of Transport and was aimed at assisting the Arrive Alive campaign. The Unit had established that asset forfeiture was an important part of the war against crime, as it hit the crime bosses where it hurt most, and this helped to deter criminals. Forfeiture was also a vital weapon to take the profit out of crime.
The Chairperson remarked that, at some stage, there had been an idea of integrating asset forfeiture into the work of every prosecutor.
Witness Protection Unit (WPU) briefing
Mr D Adam (Special Director) said that other countries, such as the United Kingdom and Sicily, were adopting a major part of the South African legislation. The impact of the Unit had greatly enhanced confidence in the South African justice system, and it was hoped to continue to redesign, transform and sustain the WPU. No witnesses had been assassinated over the past two years, and, with law enforcement and prosecutors, 3 227 years jail terms and 159 life terms had been achieved.
All WPUs in the international arena were grappling with the same challenge, namely inadequate budgets. A solution had been found in countries with asset forfeiture. In drug-related cases, a certain amount had been set aside for the WPU, and he would like to recommend this for South Africa.
Mr Solomon noted the R10 million overspending, and said that, because of the nature of cases involved, the Unit was critical.
Mr Adam replied that the over expenditure was directly related to the increased demand for the Unit’s services, and required very careful management. The Annual Report, that was due to be released shortly, should capture these statistics.
Mr Jeffrey asked for more detail, and said the Committee should be looking at how many people were in the WPU and how many convictions had been obtained. How many people had qualified for identity changes? He was also concerned that the grievances rate was lower than the walking off rate.
Mr Adam replied that in 2003, 375 people had been in witness protection, 442 in 2003/04 and 444 in 2004/05. One of the fundamental reasons that witnesses walked off was not a grievance, but the trauma of readjusting to a new environment.
Specialised Commercial Crime Unit briefing
Mr C Jordaan (Special Director) indicated achievements in 2004/05 as a conviction rate of 94.78%, with acquittals of only 36 cases out of 935 enrolled nationally. 4 hours 42 minutes court hours had been logged for the Unit. 90 plea and sentence agreements (under Section 105A) were concluded nationally, and a second specialised Commercial Crime Court had been established in Johannesburg with effect from 10 January 2005. Rollout to Durban and Port Elizabeth had also been successful. Turnaround times from registration to finalisation varied from 167.04 days per case in Pretoria to 67.47 in Port Elizabeth. The Road Accident Fund (RAF) project had been extremely successful as well, with 155 convictions.
Financial constraints in 2004/05 had necessitated the scaling down of the rollout to Durban and Port Elizabeth, and both units were seriously understaffed. Rollout to Cape Town, Bloemfontein and Germiston could not be implemented. In addition, RAF units were operating on skeleton staff. In 2005/06, rollout to Cape Town and Bloemfontein would be scaled down owing to funding constraints, and it would be difficult to find funds to adequately resource existing offices, including RAF. It was essential to reduce the unacceptably high caseloads per prosecutor, where Johannesburg, for example, had loads of 77 cases per prosecutor.
Mr Jeffrey asked for more details on the plea incentives, as figures were lower than might have been expected.
Mr Jordaan replied that plea bargains were relatively new, and that it was a question of promoting them. Many criminal lawyers were not familiar with S105A. Offers were received, but the Act said that the sentence had to be just, and this disqualified some offers. In respect of convictions, not all persons convicted were sentenced immediately, so the numbers would not always correspond.
Priority CrimeLitigation Unit briefing
Mr C Macadam (Special Director) said that the Unit was very small, and comprised four lawyers, and a minimal number of support staff. Cases currently being dealt with included an international nuclear weapons proliferation case, and the import and export to Pakistan of nuclear trigger devices. The unit dealt with the issue of conventional arms in the supply of technology and expertise to conflict regions, and dealt with issues of mercenaries. The Unit was also dealing with prosecutions arising from the Truth and Reconciliation Commission (TRC) hearings. Owing to financial constraints, certain cases had had to be put on hold, and it was very costly to get evidence overseas. The cases were financially important, as R250 million could be declared forfeit to the State in the nuclear case alone.
The Chairperson expressed disbelief that the Unit could operate with such limited personnel.
Advocate V Pikoli (National Director of Public Prosecutions) said that it was inadequate in all respects. The new antiterrorism legislation would impose an added burden on the Unit, and there was a need for serious reprioritisation. The WPU also envisaged over expenditure this year, and performed a crucial function.
The Chairperson said that reprioritisation was a priority exercise, and should be done as soon as possible.
Mr L Joubert (IFP) remarked that a lack of capacity seemed a common denominator and asked whether it was a question of personnel or budgets. He suggested a need to take a more holistic look at the justice system when prioritising.
Mr Jeffrey said that it was difficult to grasp how the unit could work with four advocates, and asked what criteria were using when assessing what cases to proceed on.
Mr Macadam replied that Mr Ngcuka had approved an internal policy, and that three cases had been instituted. A conviction had been achieved in the first case, and the other two had been set down for trial in the High Court, but had not yet commenced. They had been put on hold until more formal guidelines had been adopted.
Sexual Offences Unit briefing
Ms T Majokweni (Special Director) said that one of the Unit’s challenges was to look at the issue with a more scientific approach, and to design and implement programmes accordingly. Cases dealt with in Sexual Offences courts needed to be targeted, as there were currently 54 courts with a conviction rate of 62%. 23 more courts had been proposed, and it was hoped to have all rape matters heard in these courts by 2010.
It was a critical issue that the Unit had not been able to establish a national presence, and was only in two provinces, the Eastern and Western Cape. It had hoped to establish the Western Cape as a training ground, but wanted to commit to two centres per province. The prevention and identification of hotspot areas, together with identification of times of prevalence, was also important. In terms of support, the Unit had started the process of drafting standards for managing victims. Domestic violence was very difficult to manage and many cases were withdrawn. There was a need to institute alternate dispute resolution mechanisms, instead of automatically using the criminal justice system. A memorandum of understanding had been signed with the House of Traditional Leaders on the management of domestic violence, as well. The issue of child justice was of concern, and there was recognition of the need to ensure that children were better treated in the system. It was also important that women were treated with dignity.
The Chairperson said that pat of the problem was that there were specialised courts in some areas and not in others and suggested the solution was to ensure that ordinary regional courts tried to import the practices of specialised courts, so that access had meaning. This was a budgetary problem, and a challenge to share information.
Ms Majokweni replied that one of the major problems in this regard was the rate of change and mobility of personnel. Staff shifted around the courts. The Unit had trained over 350 prosecutors on advanced sexual offences matters, and there was a loss of manpower.
The Chairperson asked whether the Unit was suggesting a dedicated structure in each regional court, and asked them to draw up a report on plans to achieve this, as well as a detail on interventions by magistrates or social workers.
Mr Solomon suggested that the crux was forensic evidence. If there was a problem if the offence occurred in the Northern Cape, where a district surgeon was not available, because there was then no point in having a specialised court. He supported the idea of transferring skills to local hospitals and doctors.
Ms Majokweni confirmed that there was a serious lack of funds, with three main areas lacking capacity, namely personnel, skills and sensitivity. One of the problems encountered by the Unit was that it was a multi-group process, and not all members had the same priorities.
Mr Jeffrey expressed concern at the conviction rate of 62%, where the norm in other cases was 75%, and asked for more information.
Ms Majokweni replied that the Unit had found that sexual violence convictions were at a very low rate in ordinary courts, while the opposite was true in specialised courts. There was thus an urgent need to engage in capacity building. The current conviction rate of 81% in courts attached to centres showed that where resources were used, results were obtained.
The meeting was adjourned.