National Prosecuting Authority : briefing

Meeting report

PORTFOLIO COMMITTEE ON JUSTICE and the SELECT COMMITTEE ON SECURITY & JUSTICE: JOINT MEETING
1 March 1999
NATIONAL PROSECUTING AUTHORITY (NPA): BRIEFING

Documents distributed:
Report of the Office of the National Director of Public Prosecutions
National Prosecution Policy
Ramaite Report Draft
Proposals for a Future Blueprint for the Prosecution Service
Social Context and Strategic Planning Report
Draft Code of Conduct

Minutes
The Chair of the Portfolio Committee, Mr de Lange (ANC) opened the meeting.
The Chair of the Select Committee, Mr Moosa (ANC) welcomed Mr Ngcuka, the National Director of Public Prosecutions, and the members of his team who were present. He asked Mr Ngcuka to begin his presentation.

Mr Ngcuka said he and his team would report to the Committees on the activities they had been carrying out. The members of his NPA team who were present were the Deputy National Director; the head of the Investigating Directorate for Organised Crime (IDOC), Advocate Percy Sonn; the Deputy Director of the IDOC sub-unit covering political violence in KwaZulu/Natal, Mr McAdam; and two consultants. Mr Ngcuka said the NPA was in the process of preparing its annual report, and it would be forwarded to Parliament when complete. In the meantime, he wanted to provide Parliament with a preliminary report of the NPA’s progress.

On the management side, Mr Ngcuka said that since the NPA was established in August 1998 they have improved co-ordination between the Offices of the Attorney General, meeting every month to share information and improve efficiency. This co-ordination has been very helpful in uniting the Prosecution Service. In addition, they just completed an offsite workshop, held for senior management in January. The workshop has resulted in the creation of a Social Context and Strategic Planning Report (a copy of which was distributed). This report lays out a vision and clear objectives for the Prosecution Service.

Mr Ngcuka said they were also working on drawing up a Blueprint for Prosecution Services. A team of prosecutors put together a draft version which was then circulated to all prosecutors, many of whom added comments. The draft is now being revised based on their input. Recommendations include:
New organisational structures to improve efficiency – clustering districts under the oversight of chief prosecutors.
Establishing new performance review criteria.
Improving the recruiting and deployment process.

Mr Ngcuka continued that in August 1998 the NPA held a national conference for all prosecutors. One of the results of this conference was a draft Code of Conduct, to provide a benchmark of ethics for the prosecuting authority. The Code of Conduct requires prosecutors to pursue their jobs with full respect for the Constitution and a recognition of the primacy of the rule of law. The draft Code of Conduct has been referred to the Minister of Justice for his approval.

Mr Ngcuka said that one of the major achievements and initiatives of the NPA had been the establishment of an Investigating Directorate for Organised Crime and Public Safety (IDOC), with three areas of focus. The head IDOC office is in Cape Town, and it focuses on urban terrorism. There are two sub-directorates, one in Gauteng with a focus on car hijackings, and one in KwaZulu/Natal with a focus on political violence. The main objective of IDOC is to provide a prosecutorial focus to other efforts within the criminal justice system to address organised crime, and to co-ordinate with other investigative and preventative authorities. The Cape Town office is the most established of the three, and has tackled very involved and far-reaching cases. Mr Ngcuka said they would soon make significant arrests, and while he was unable to provide details, he did mentioned eleven separate cases that the Cape Town office was handling.

Mr Ngcuka continued with a discussion of the activities of the KwaZulu/Natal sub-directorate of the IDOC, whose primary objective was political violence. In the past, investigations into political violence have not been conducted very thoroughly and have not been deemed a priority. Since being established, the sub-directorate has conducted an audit of political cases under investigation, with a focus on the Richmond area. The sub-directorate has also begun to identify flaws in the existing system for prosecuting cases of political violence.

The Gauteng office of the IDOC has focused on the issue of car hijackings in the area. It is currently running a number of covert operations in hijacking rings. They have also consulted with the Mozambican police to establish a similar unit in Mozambique.

Another main initiative of the NPA, separate from the IDOC, is the Truth and Reconciliation Unit. This unit was set up as a separate unit to deal with issues arising from the report of the TRC. The unit aims to ensure uniformity in dealing with TRC cases.

Mr Ngcuka then discussed the issue of international co-operation. At the start of the NPA’s activity last year, Mr Ngcuka and a team of his staff visited several international jurisdictions to get advice and to share ideas. The delegation went to the UK, US, and Brazil, and they found the visits very helpful in developing ideas on the structuring of the department. Apart from these exploratory meetings, the NPA has developed other international linkages as well. These include a connection with Canada through which the NPA receives human rights litigation training, as well as a relationship with the United States Agency for International Development to receive advice and financial support.

The US-South Africa Bi-national Commission has put the NPA in touch with the US Attorney General’s office, and Mr Ngcuka just returned from a meeting with Attorney General Janet Reno last week. They discussed the development and sharing of software programmes to track assets and forfeitures, and also planned to formalise an advice structure between the NPA and the US Attorney General.

Mr Ngcuka concluded by saying that the annual report of the Department would be presented to the Committees by the end of March.

Mr de Lange thanked Mr Ngcuka for his presentation. He asked Mr Moosa to lead the follow-up discussion.

Mr Moosa said he would take several questions and then ask Mr Ngcuka to respond to them.

An MP said vacancies in the Free State are hampering activities there, and asked how long it would take to address the matter.

An MP asked whether the clustering of prosecutor teams would correspond to the clustering of magistrates.

An MP asked about entry-level positions – what qualifications are required to be an entry-level prosecutor, and what training do new prosecutors receive?

An MP asked a question about the relationship between the NPA and the NIA, given the confusing relationship that obviously exists between the police and the NIA.

On the issue of co-ordination with the NIA, Mr Ngcuka answered that when the NPA started working last year they set up a control board in which the Commissioner of Police, head of intelligence, and others meet regularly to discuss potential problems that emanate from the criminal justice system. So they have co-ordination structures set up.

On the issue of Free State vacancies, Mr Ngcuka said his figures are that there are two vacancies in the Free State in senior posts, and six vacancies in public prosecutor positions. Advertisements have been posted for those positions, and they will be filled by 1 April.

On the issue of clustering, Mr Ngcuka said the prosecutorial clusters do not coincide with those of the magistrates. The magistrates created their own clusters without consulting anyone, and the NPA could not match them because they cut across jurisdictions.

On the issue of training, Mr Ngcuka said novices receive training through two venues. They follow an introductory course of several weeks at Justice College, after which there is a heavy reliance on in-service training (i.e., intermittent training in the office). They are currently planning for regular regional training seminars, which will address some of the needs for on-going and more advanced training. Regarding prosecutor qualifications, this is an issue the NPA needs to address. They have had people with six months of experience prosecuting serious cases in court. Hopefully the policy manual they are developing will help address the problem by establish a more structured hierarchy of prosecutors.

Mr Moosa said he thinks the NPA is doing an excellent job in may aspects, and the procedures and policies laid out to the Committees look very impressive. But they need to see results – they need prosecution that results in convictions. Mr Moosa wanted to know how many drug lords have been arrested, how many car-jacking rings have been broken up. To answer these questions, and to make sure that answering them is a priority, the NPA needs to become truly results-oriented.

Mr Ngcuka answered that everything the Chair has said is correct. For every 50 car-jackings recorded in Johannesburg, maybe five go to court. Out of 260 sexual assaults reported in the Orange Grove area last year, there were five convictions. Of the 168 pipe bomb incidents in Cape Town, there have been zero convictions. In Richmond, 108 people died last year as a result of political violence, but there have been no convictions. The NPA cannot just point fingers at the police and say it is their fault – the NPA realises they need to address this issue, and that is the major motivating factor behind creating the IDOC. At the same time, and the police have agreed with this statement, the investigative performance of the police is quite substandard. So in addressing the lack of convictions one needs to bear this in mind.

Mr de Lange said he had a list of questions to ask:
Are prosecutors evaluated and rated on their performance, so the NPA can say whether each person is pulling his or her own weight?
Are there any new postings within the NPA, and what positions are they for?
What is the current status of special units within the NPA?
Where does the NPA currently see legislative problems that they would like the Committee to help address?
Much has been said about the independence of the NPA – structurally and institutionally, are there problems with the NPA’s independence?

On the issue of performance management, Mr Ngcuka said that the NPA has contacted Statistics South Africa for help in designing a process to gather meaningful statistics and analyse them in a way that is useful. They are also trying to develop performance targets. While these types of targets are fairly easy to establish on an institutional level, they are not so easy to develop on an individual level.

Regarding special units, Mr Ngcuka’s view is that those should only exist as long as special circumstances exist. Ideally the unit should be able to address the special circumstances and then be dissolved.

Mr Ngcuka said the issue of new posts is a difficult one, because in principle there exist posts but they are unable to fund them. One new post they hope to create in the short-term is that of Chief Prosecutor.

On the issue of legislative constraints, Mr Ngcuka said that legislation allowing them to monitor phone calls needs to be fast-tracked, as the inability to monitor phone calls now is a major block to pursuing organised crime. They also need help on the issue of state court dockets. They are required to hand over the prosecutor’s docket to the defence, but when they do so they find that defendants are able to build their defence around weaknesses in the state’s case. There needs to be a quid pro quo – the NPA should be able to see the defence statement if the defence is able to see the state docket. Another legislative problem is that there is lots of ambiguity within the NPA Act that still needs to be clarified. There are other legislative priorities that Mr Ngcuka would love to be able to come back to the Committees with, but for now the ones he has mentioned are the ones he considers most urgent.

Regarding the independence of the NPA, Mr Ngcuka said he has been particularly aggrieved by what he considers to be unfair attacks on his integrity in the past. He feels the media has been fair, criticising where appropriate but also being responsible in giving him a forum to respond. There have been politically-motivated criticisms from other sectors, and that is what he considers inappropriate.

An MP asked about retention incentive programmes to encourage prosecutors to stay with the NPA. This is a concern given the high turnover within the prosecutor ranks, and especially as the government invests more and more to train new prosecutors adequately.

Mr Ngcuka said he wished he had an answer to the problem of retaining prosecutors. Part of the problem is that in the past, being a state prosecutor was considered a stepping-stone to other things – it was a path to becoming a magistrate or to going into private practice. There also has not always been a clear career path and route of advancement for people who are interested in staying within the public prosecution service. As they make that career path more clear they will hopefully also be able to make it more attractive for interested people to stay.

Mr Moosa thanked the NPA team for their presence, and said they had had an informative and excellent meeting. The NPA team seems results-oriented, and the Committees should be encouraged by what they have heard.

Mr de Lange said that on the issue of turnover, nobody should expect the problem ever to be totally solved. There are all sorts of reasons why someone would want to use the NPA as a stepping-stone to other things, and by and large there is not much that can be done to address those people. But for people who do want to make this a career path, everything possible has to be done to facilitate that.

The meeting was then adjourned.