A summary of this committee meeting is not yet available.
JUSTICE PORTFOLIO COMMITTEE
8 March 2006
NPA 2006/07 BUDGET; PROBLEMS AT PROVINCIAL DIVISION LEVEL: BRIEFINGS
Documents handed out:
AFU Report to Portfolio Committee – 9 March 2006 (C10)
NPS Report to portfolio Committee – March 2006 (C11)
DSO Report to Portfolio Committee – 8 March 2006 (C12)
Transformation, Integrity Management & Corporate Services Report (C13)
NSSD: Report to Portfolio Committee (C14)
The National Prosecuting Authority presented an overview of its activities during Day One of its interaction with the Committee. Members raised questions about backlogs in court cases, the working hours of courts, the number of prosecutors allocated to courts, conviction rates, interaction with the Legal Aid Board and the situation in courts around the country.
National Prosecuting Authority (NPA) presentation
Adv V Pikoli (National Director) advised that although the past financial year had not been easy, he was proud of the achievements obtained by the organisation. The core priority of the NPA was prosecutions. However, there were certain shortfalls which had a direct impact on the work performed by the NPA. To combat this, strategic initiatives were developed to ensure progression in a constructive and co-ordinated manner, ensuring greater accountability and success in the long term. The NPA had experienced a lack of adequate funding, but was happy with the budget received for the new financial year. In terms of the budget for the next 3 years, he confirmed that a 3% increase per year would be received. This, in his opinion, was an indication that the National Treasury had taken the needs of the NPA seriously; however he was of the opinion that more funding would be needed. At least 500 additional prosecutor posts were required if the demand was to be met. Accordingly in the course of the new financial year, funds would be required to implement this upgrade.
Adv Pikoli said that during the 2005/2006 financial year, the NPA set aside an amount of R23 million in order to implement the first phase of the upgrading of salaries. The NPA further obtained R80 million from the National Treasury for the 2006/07 financial year for the implementation of job evaluation results and will commence with the upgrading of salaries of Prosecutors and Advocates with effect from 1 April 2006. Approximately 1450 prosecutor and advocate posts and 230 special investigator posts will be upgraded.
Turning to the NPA’s successes, Adv Pikoli advised that despite the negative effect of financial difficulties which affected both employee morale and service delivery, employees still performed well. Approximately R2.5 billion of contraband and drugs were confiscated during this period, which in turn ‘punched a hole in organised crime". With the establishment of the Directorate of Special Operations (DSO) five years earlier, the NPA were competently dealing with complex financial crimes, which they were unable to do back then.
Adv Pikoli advised that the DSO’s success in identity hijacking prosecutions, the focus on East-Asian Oriental criminal syndicates, precious metal investigations and the use of racketeering legislation added a different dimension to the NPA. Adv Pikoli informed the Committee that human trafficking had become a major focus for the DSO, and consequently the DSO signed a Memorandum of Understanding with the International Organisation on Migration and has been collaborating with the Chief Prosecutor of the International Criminal Court and the United Nations office on drugs and crime. The DSO had also attained "superbrand" status. As a result of its continued interaction with international law enforcement agencies, international relations have been improved.
On the intentions of the NPA, Adv Pikoli advised the Committee that the NPA intended to increase the co-operation between the NPA and other law enforcement agencies and promote the prevention of illegal activity.
Adv Pikoli said that sexual offences courts would open up performance and service delivery. Turning to the witness protection programme, he advised that for the past 5 years this programme had been successful with the result that many countries had sought the NPA’s assistance in establishing similar structures and processes.
Adv Pikoli informed the Committee that the Priority Crimes Litigation Unit (PCLU) had assisted the United States in gathering the evidence necessary for the conviction of Asher Karni who pleaded guilty to charges relating to exporting nuclear weapons technology to Pakistan. As a result of experience accumulated, the NPA was requested by other countries to assist on a number of matters.
Adv Pikoli advised further that the Special Commercial Crimes Unit (SCCU) had done an excellent job, finalising 1773 cases with a 94.78% conviction rate. This, in his opinion, indicated the close co-operation with the South African Police Services (SAPS), as they were able to guide the SAPS’s investigation. The Asset Forfeiture Unit (AFU) had achieved a milestone in 2005 by freezing more than R1 billion in assets since date of establishment 7 years ago. The AFU further obtained two important judgments in the Supreme Court of Appeal (SCA), to the effect that it will be significantly easier to deal with fixed properties used in criminal activity. Adv Pikoli stressed that with the huge volume of crime, the NPA needed to take a firm stand, and to do this the NPA needed to increase the unit’s capacity.
On the Corporate Services Unit, Adv Pikoli pointed out that in assessing their customer management, it was realised that the NPA’s work extended beyond the courtroom and required interaction with all stakeholders. To this end, prosecutors had assisted in getting witnesses to court, meeting with members of the community to keep them informed of developments and the basis for decisions made in court, thereby improving public confidence in the NPA. Adv Pikoli reiterated however that the NPA needed to build a structured witness management programme, so as to deter the intimidation of witnesses and prosecutors and to send a strong message that such behaviour will not be tolerated.
Adv Pikoli mentioned that the NPA was involved in a number of other programmes with community courts or community justice centres.
Turning to the challenges faced by the NPA, Adv Pikoli confirmed that appeal matters were problematic. To deal with this, the NPA set aside R4.5 million specifically for appeal matters. In order to address the backlog experienced in the courts an arrangement was made with the Department of Justice and Constitutional Development that the State Attorney brief private counsel and pay a flat rate of R1000.00 per appeal. An amount of approximately R4 million had thus far been spent with 3800 appeals finalised.
Adv Pikoli stated that another challenge was that of the installation of discipline in Magistrate’s Courts. It was stated that it was necessary to ensure that in this regard all role players instilled discipline in the courts. Courts were to start on time, and in this regard both prosecutors and private attorneys were to act accordingly. Team work in this regard would improve the court hours and service delivery.
Adv Pikoli pointed out that public confidence in the NPA had been undermined, and that he was trying to improve the image of the NPA. It was pivotal to create an environment where decisions were based on fact and law. He wanted prosecutors to be proud of their work and to be able to carry out their duties. He confirmed that should any problems be experienced, such problems should be reported in order that he can investigate the situation.
Dealing with the budget, Adv Pikoli advised the Committee that more funds were required. He was of the opinion that Magistrates should be paid better. A number of senior prosecutors had applied for other jobs, resulting in problems with the retention of personnel. He advised that one has to develop career pathing, but also that it was necessary to ensure that employees were paid according to their level of ability. He reiterated that although the National Treasury had increased the budget, this would not stop the loss of employees if they were not paid appropriately, and hence more funding was required.
The Chairperson pointed out that the Committee had deliberated on the effect of increases on the rest of the criminal justice system. She advised that the Committee had received assurance from the Justice Department and the National Treasury that they would embark on an exercise as to salary levels across the department, with the aim of narrowing the huge divide between the various departments. She advised that perhaps a deadline in this regard should be set. She further commented that the NPA should be involved in such a process and should push for finality on the matter. This was also stated to the Legal Aid Board (LAB) at the meeting held on 7 March 2006.
The Chairperson further advised that an increase in salaries as suggested by the NPA would have a ripple down effect, as it would affect everyone down the line with the risk of losing very skilled employees in the process. She said that whatever the NPA does, this should be done in a larger framework with the Departments of Justice and Public Service and Administration involved. She stated that the Committee did not want another problem arising from the ripple down effect from NPA. An entire framework was required with various principles in place; an understandable salary matrix scheme was required.
Adv Pikoli advised that as per the table provided, the finalisation of cases had decreased. This he attributed to the lack of court discipline, and reiterated that the court hours were an area of concern. New cases showed a slight decline, which was attributable to the co-operation between various parties involved in the criminal justice system.
Adv Pikoli said that the NPA had three objectives for the new financial year as against the targets of 2004/5; namely, developing dynamic National Prosecuting Service (NPS) leadership, transforming NPS strategy into a focused and performance driven unit and improving the co-operation and working relationships with other role-players.
On the transformation of NPS strategy into a focused and performance driven unit, Adv Pikoli advised that the bulk of work done in respect of High Court matters (75%) was not older than 12 months. Accordingly they had achieved 95% of their target in this regard. Regional Court targets had however not been achieved, with 39% of outstanding cases being over 6 months old as compared to the target of 75% cases being less than 6 months old.
The Chairperson asked whether these outstanding cases were older than a year. Adv Pikoli advised that in some instances they were.
On the issue of awaiting trial prisoners, Adv Pikoli advised that only a 5% reduction as compared to the 10% target had been achieved. This was attributable to various reasons such as re-offenders and witnesses. In relation to children specifically, Adv Pikoli advised that children were placed in custody only where absolutely necessary. This had resulted in a reduction of 30% from 1775 during January 2005 to 1243 children during January 2006.
The Chairperson requested a report of the NPA’s observations in this regard in order to correlate such information with the report by the LAB. She wanted to know the whereabouts of such children, and more specifically to be informed as to whether they were in areas they should not be as a result of awaiting places at reform schools.
Dealing with the issue of court hours, Adv Pikoli said that improvement on this aspect was on average 11% below target.
The Chairperson, considering the number of new cases and the finalisation of matters stated that this was a matter of concern.
Adv Pikoli stated that this had a knock on effect as the NPA did not have two prosecutors at court and therefore the time spent on matters was limited.
The Chairperson queried the number of prosecutors assigned per court at the High Court.
Adv Pikoli advised that there was one prosecutor per court. The lower court hours were as a result of only one prosecutor per court. However it was further brought to the Committee’s attention that the nature of court hours, appeals, motion court proceedings, bail and other matters had not been factored in to the equation. It was further expressed that there was a definite link between cases and finalisation. In this regard, diverted cases were to be construed as finalised as they amounted to admissions of guilt.
Mr J Smit (Directorate of Public Prosecutions (DPP)) said that even were one to have 5 prosecutors, this would not solve the problem of capacity, as the capacity of the LAB would have to be increased accordingly.
On the finalisation rates put forward by the NPA, Adv Pikoli advised that this was an increased figure with a 5% improvement from the preceding year.
The Chairperson said that in regards to the average conviction rates, numbers were required in order to compare such with the number of new cases. She requested that these accordingly be supplemented in order to determine what the implications were. She further commented that one of LAB’s concerns was the provision of statistics in relation to the courts and the percentage of matters handled by the LAB at respective courts. She advised that this was pivotal in order to implement specific interventions such as Legal Aid Courts.
The Chairperson reiterated LAB’s concerns and problems with role-players, namely Magistrates and the courts coming to a standstill, but advised that the allocation of resources to specific courts required knowledge of what resources were required. She advised further that the LAB felt it necessary to mirror the NPA, although she felt this to be untrue for every situation. The LAB would affect the NPA’s performance and it was thus necessary that the two communicate and the NPA provide the LAB with assistance and information in this regard. She commented that the LAB did however need to prioritise its funding better.
On the issue of those cases exceeding target case times, Adv Pikoli advised that this was attributable to the high number of warrants issued per month (due to the absence of the accused).
The Chairperson commented that in light hereof, perhaps the issue of bail should be considered more seriously. It was queried whether an audit on warrants should not in fact be conducted, quantifying the cost involved. The Chairperson advised that this would be a good idea.
Mr W Hofmeyer stated that with the extra funding received, 550 additional prosecutors could be appointed to Regional and District Courts. In terms of the High Court, a core of specialist prosecutors was being trained to deal with complex crimes, through working with the SAPS on organised crime matters so as to acquire specialist knowledge and experience with these new crimes.
As regards the transformation initiative, Mr Hofmeyer advised that this was pro-active in the community courts, expanding their roles to help prevent crime. They were experimenting as prosecutors with various initiatives in order to determine what would work in South Africa.
Adv Pikoli concluded his overview to the Committee, whereafter the Chairperson requested comments from the attending Directors of Public Prosecutions from the various provinces in order to determine provincial problems as they experienced it in their respective divisions.
Pretoria and Johannesburg
In terms of the High Court, problems experienced were the lack of judges at Transvaal Provincial Division level. The Judge President had requested a letter be written to the Minister of Justice on this issue, to which the response was that there were no judges available. At present there are 18 acting judges. Other problems experienced at High Court level were Section 52 matters which were not fairly and evenly attended to by judges.
In Pretoria, there are 18 Regional Courts but on any given day only 7 are sitting. This problem is attributable to lack of personnel. Finalisation of matters has also decreased which has been attributed to the failure to apply case flow management. In this regard, all Magistrates are not taking up case flow management. Another problem is the low court hours.
The Chairperson requested a list of those Magistrates not applying the case flow management system and a list of those courts with low court hours.
In relation to the High Court, no inherent problems were experienced. There was no appeal backlog.
In respect of the lower courts, LAB appearances were inadequate causing delays and a reduction in the finalisation of cases. Bad publicity had also affected the courts. In terms of case flow management workshops were being carried out to address the problems. Guidelines had been implemented and Magistrates were being requested to take action and instill discipline. Another problem experienced related to the fact that there was only one organised crime court, which was only at district level. Regional Courts had been requested to assist but to no avail.
In respect of the High Court, the only problems experienced were in relation to appeal backlogs.
As a result of the guilty plea project, matters were being fast tracked resulting in savings of 150 court days.
Minimum sentence matters were causing delays as well. Courts were also ill-equipped to deal with rape matters.
As regards Regional Courts, these were operating below optimal levels.
The Chairperson requested a report on this issue in view of the fact that 40 new appointments were made.
Of the 16 Regional Courts, only 8 were sitting. This was attributable to the lack of Magistrates. Although Commercial Crime Courts had been set up, there was no Magistrate to adjudicate these matters. A Magistrate from Durban Regional Court had to be used in such instances, causing further delays. Magistrate placements were determined by the Regional Court President, who it was felt, had made ad hoc placements. Legal Aid also posed problems due to lack of capacity. Legal Aid Courts had been established but were not working well due to the LAB’s lack of capacity and insufficient personnel. As regards case flow management, resistance was being experienced from Magistrates and a request for accountability in such instance was sought. It was felt that if case flow management was implemented effectively, at least two cases per day would be finalised and the programme would be effective.
Juvenile detention facilities were also problematic, there being insufficient facilities or reform schools available. However, various programmes had been initiated and were proving successful.
Adv Smit advised that all the provinces’ problems were common. He said the main problem was the reluctance of the Presiding Officers to take responsibility for discipline. This had a ripple effect on everything. If the requisite people are not in court, matters could not proceed. This ultimately affects total performance. It was therefore necessary to try and convince Presiding Officers to take responsibility for discipline. Matters should proceed on time, or parties should be taken to task.
Adv Smit further advised that the community had last confidence in the criminal justice system. He said that there was a duty to restore this by providing explanations to people about what was happening in matters, the reasons for the court’s decisions and what steps the NPA was going to take to address the outcome. He said it was pivotal to advise the community of what was going on.
The Chairperson stated that she had received various queries from alleged rape victims as to why the NPA had failed to prosecute in these matters. She commented that it was important in such instances to communicate in a meaningful way the basis for such decisions. She advised that the manner in which we communicated would impact on the way in which the criminal justice system is viewed.
In terms of High court matters, problems were experienced in minimum sentence cases, although since 2004 there had been a steady improvement in the manner in which such matters was handled. On average 18 per month were dealt with, with a result that 180 cases were finalised. This was attributable to the improvement in relations with the Bench.
A case flow management committee was established. Furthermore the Judge President is very strong on getting matters finalized; to this end, witnesses are only called if it is in the interests of justice to do so.
As regards backlogs, similar problems were being experienced.
Transcription of records was also problematic especially where matters had transferred from Regional Court to the High Court.
As regards the integrated case flow management system, certain Magistrates were not taking responsibility to enforce case flow. LAB also problematic: urban centres have at least one practitioner whereas rural areas experience an imbalance in this regard with insufficient practitioners.
Other problems are delays due to transport problems experienced by the Department of Correctional Services. Social Services reports are delayed thereby delaying matters. The SAPS failed to secure the attendances of witnesses or the investigating officers failed to appear in court on the trial day. Forensic reports are delayed; the forensic laboratories appear incapable of meeting the demand timeously resulting in more delays.
Mr Jeffrey (ANC) requested more information on the provided statistics. More specifically he said that provincial statistics on all three levels of the courts were required. On the issue of vacancies particularly in the Magistrate’s Court, more detail was requested. What was the average period of employment of a prosecutor? He also asked for more information on the NPS’s outreach programmes.
Adv Pikoli advised that the average employment period for a prosecutor was between 3 and 4 years before they moved on or considered other options. As regards the outreach programmes, the purpose of these was to create communication with the community, and acquire feedback on service delivery.
Ms Johnson (ANC) asked whether the court hours problem, being inter-sectoral in nature, was being dealt with in a inter-sectoral manner. She further enquired whether specialist training for specialist prosecutors was being implemented.
Adv Pikoli advised that as regards the first issue, co-operation was required between the different sectors. In terms of training, this was indeed intended but had not yet been implemented.
Ms Camerer (DA) asked whether problems in the witness protection programme had been rectified.
Adv Pikoli confirmed that the problems had been rectified and that the programme had been a success over the past 5 years.
Ms Camerer (DA) further enquired about the number of vacancies and whether the NPA would realistically be able to fill such posts.
Mr Hofmeyer said that due to financial constraints a number of vacancies had developed, 219 in fact. Due to these financial constraints they were de facto refrained from filling such posts. However in terms of the new financial year the go ahead to fill this posts had been given and it was estimated that these posts would be successfully filled. It was further stated that over the next 3 years, new posts would be created, approximately 500, as more prosecutors were needed.
Mr Joubert asked whether the Presiding Officer needed to be empowered in the prosecution of matters. He further enquired how many Magistrates came from prosecutorial backgrounds. His last question to the NPA was what the NPA would change first if money were no object.
Adv Pikoli advised that this was a natural progression of the profession.
The Chairperson stated that clearly a large number of prosecutors applied to be Magistrates. She reiterated her advice to the LAB as regards the Magistrate’s Commission discussion document on guidelines for new appointments to the NPA, advising that the mirroring of the appointment of Magistrates by the NPA may provide some control over the NPA’s retention of employees, thereby stemming the mass exodus of employees.
NPA Budget presentation
Mr Mackenzie advised that budget management had moved into a new phase. A new Director of Budget had been recently appointed. There was a huge disparity if one looked at the big picture as regards the Medium Term Expenditure Framework (MTEF) cycle. There had been a dramatic increase in respect of the Department of Justice’s (DOJ) budget. The NPA however did not show the same growth. The NPA required about R100 million more in funding. This could easily be provided by the DOJ. Discussions between the two departments were necessary. He further stated that the disparity of salaries between Magistrates and prosecutors also needed to be addressed.
The Chairperson referred back to her previous comment on the ripple effect of the purported increase of salaries and the effects that may arise from them.
Mr Mackenzie advised the Committee that a report on the salary structures had been compiled 4 years prior and that this simply needed to be updated in respect of this issue.
Mr Mackenzie stated the money reserved for contingent liability and projected overspends had been approved.
As regards the R100 million additional funding, Mr Mackenzie advised that this would be apportioned in the following manner, namely R9.5 million for Employer Pension Contribution; R18 million for State Attorney Legal fees. R15 million for Government Gazette accounts, R2, 5 million for the implementation of job evaluations, R12 million for specialised vehicles for DSO and the Witness Protection Unit (WPU), R10 million for other vehicles and R10 million for computers.
In respect of the audit opinion, Mr Mackenzie advised that the problem areas identified were being addressed.
The meeting was adjourned.