NPA 2005 Overview & Strategy 2020; National Prosecuting Service; Directorate of Special Operations; Asset Forfeiture Unit: brief

Meeting report

SECURITY AND CONSTITUTIONAL DEVELOPMENT SELECT COMMITTEE
05 May 2006
NPA 2005 OVERVIEW AND STRATEGY 2020; NATIONAL PROSECUTING SERVICE; DIRECTORATE OF SPECIAL OPERATIONS; ASSET FORFEITURE UNIT: BRIEFINGS

Chairperson: Kgoshi L Mokoena (ANC, Limpopo)

Documents handed out:
NPS Report to the Select Committee
NPA Strategy 2020 (M Sparg, CEO)
NPA: Asset Forfeiture Unit
Transformation Integrity Management and Corporate Services Report as presented to the Portfolio Committee (M Sparg, CEO): Part 1 & 2
DSO Report to the Steering Committee (Adv L McCarthy)
AFU Report to the Steering Committee (W Hofmeyr)
NSSD: Report to Select Committee by Dr Silas Ramaite SC (not presented or discussed)

SUMMARY:
The National Prosecuting Authority gave an overview of the activities of all its units for the past year. All had achieved significant success and it had embarked upon an ambitious transformation programme, adding value and efficiency to its services by making it more responsive to community needs, which would inform its future work.

Over fifty questions were raised on all presentations. These fell into the areas of the Truth and Reconciliation Commission, Witness Protection Programmes, allegations of poor investigation of prosecution, Legal Aid delays, and case flow management. Community justice and the work of the Community Policing Forums were clarified. Progress was detailed in respect of sexual offences and domestic violence. Other questions related to the role of the Directorate of Special Operations, the cooperation between it and other agencies, human trafficking, drug trafficking, statements to and by the media, the ways in which it received information and the major challenges to future crime prevention. Outsourcing was clarified, as was the distinction between the Directorate and the police investigations and staff. The allegations of malpractice and breach of confidentiality were raised and answered.

MINUTES
Overview of the activities of the National Prosecuting Authority (NPA)
Adv V Pikoli (National Director) gave an overview of the activities of the National Prosecuting Authority (NPA) for the past year. Significant achievements had been made and NPA had embarked upon an ambitious transformation programme which would inform its future work. NPA had worked with the resources received but ideally would require more, particularly to engage prosecutors and finalise the job evaluations that would allow prosecutors’ salaries to be in line with their work.

The core business of the NPA was prosecution, but, being conscious of other issues, it had embarked on the "Serurubele" transformation programme to add value and efficiency to its services and become more responsive to the needs of the community. The NPA always acted in the interests of the public although not necessarily in accordance with their wishes.

NPA had been able to upgrade the salaries of about 700 prosecutors, but still experienced difficulties in retaining experienced prosecutors, particularly in the higher courts. NPA had received an amount of R18 million from Treasury to implement the full job evaluations for all prosecutors. It hoped to fill the 200 vacancies that had existed in December 2005 during the year.

The Directorate of Special Operations (DSO) had undertaken excellent work and contributed a large amount to the Asset Forfeiture Unit (AFU). It had seized about R2.5 billion of drugs and had made significant progress in halting corruption in the public and private sector. It had played a visible and effective role in the joint task teams established in the Eastern Cape investigating fraud and corruption in the public service and had also contributed to investigations in financial and economic crime. South Africa was not immune from the international trend to human trafficking and DSO had worked with the national organisation on migration, and also had established collaborative partnerships with the United Nations (UN) in this area. The Sexual Offences and Community Affairs units had trained about 880 people to ensure skilled staff working in the areas of domestic violence, sexual offences and child justice, and had achieved good conviction rates and a one-stop centre which could give counselling, testing and fast-tracking in the system. Witness protection had been successful, with nobody in the programme who had followed the Unit’s requirements being harmed in the past five years. Success had also been achieved in curbing mercenary activities, and prosecutions had taken place in South Africa concerning involvement in coups, illegal transportation of arms and syndicates in nuclear crime. Co-operative agreements had been entered into with other countries. 23 deceased remains had been traced and in-house specialist capacity in forensic remains was being developed. DSO had also briefed Parliament on the position and policy in respect of the outstanding Truth and Reconciliation Commission (TRC) matters.

The Commercial Crimes Unit (CCU) had handled 1800 cases, and achieved conviction rates of 94.7%. Specialist courts had been established in five centres.

The Asset Forfeiture Unit (AFU) had continued to ensure that "crime does not pay". More than R1 billion in assets had been frozen in the past seven years. Funds received from assets forfeited had been used to increase the capacity of the law enforcement agencies to engage specialist staff and to assist the victims of crime.

Corporate Services had developed "Strategy 2020" and although capacity remained a problem it was confident that the objectives would be achieved. Whilst concentrating on the core business, NPA was creating better strategies to unblock the criminal justice system, through a number of corrective measures relating to police, docket systems, decisions on prosecutions and the running of trials. There was still a backlog in appeals, but around 4000 had to date been finalised.

On the international front, NPA had visited all Southern African Development Community (SADC) member states and had drafted Memoranda of Understanding to jointly deal with organised crime, training programmes, exchange of information and harmonisation of legislation wherever possible to achieve extradition or prosecution of offenders in their own countries. It had also hosted delegates from a number of other countries, who were impressed with the work done by the NPA. Adv Pikoli cited one instance that had caused difficulty, where a South African national had successfully appealed against Australia’s decision to extradite him on the grounds that he would be at risk of injury and HIV if imprisoned in South African prisons awaiting trial.

The NPA was the gatekeeper of criminal law and therefore needed to ensure that the system of criminal justice worked effectively. It had been the subject of politically-based criticism. All NPA officials had taken an oath of office to confirm their allegiance and integrity to the laws of the country, and, in performing the task of prosecution in an adversarial system, had to be skilled, fearless and vigorous, whilst being completely transparent in its use of public funding. Decisions were taken based on fact, and policy and directives had been approved by Parliament. NPA expected to be criticised if it was at fault in any way, but constantly strove to perform better and to ensure that the law protected all citizens of the country.

Discussion
Adv Pikoli, due to shortage of time, could not address all questions that were posed on the presentations in general, but undertook to provide written reports on the following issues raised:

TRC issues: Mr M Mzizi (IFP, Gauteng) asked how far the TRC matters had progressed, and what issues would be dealt with. He asked if the investigations would be confined to atrocities committed only within South Africa, and whether those given amnesty could still be prosecuted.

Mr Z Ntuli (ANC, KwaZulu-Natal) asked if there was any estimate of the numbers of cases involved.

Mr N Mack (ANC, Western Cape) asked for what plans had been put in place to manage the outstanding matters.

Adv Pikoli replied briefly that guidelines had been formulated in conjunction with the NIA, the Defence Force and other stakeholders and each case would be evaluated.

Witness Protection: Mr Ntuli asked whether this programme was able to extend its scope and continue to investigate cases where a main witness may have been killed.

Mr Mack referred to some reports that the South African Police Services (SAPS) wanted to withdraw support for the system, and whether any alternative plans had been made to protect those formerly under the programme.

Review of the Criminal Justice System: Mr Mack asked what input the NPA would make pursuant to the recent Cabinet decision to review the criminal justice system, to ensure that the system operated to maximum efficiency.

Human Resource issues: Ms F Nyanda (ANC, Mpumulanga) noted that there had been 219 vacancies of staff as at December 2005. She asked how long these positions would remain unfilled, and what incentives were used to retain staff.

Mr Mzizi asked how best to achieve a balance between the salaries of prosecutors and magistrates so that one did not move to the other branch of the profession.

Briefing on Corporate Strategy 2020
Ms M Sparg (Chief Executive Officer, NPA) reported that because NPA operated within a broad macro-environment it had to understand and be responsive to a number of issues. NPA felt that it was important to conduct research into and develop a strategic responsive to the needs of all stakeholders, as well as to evaluate its own management within the micro-environment, with particular emphasis on staff and partners. This was an intensive process involving fifteen workshops and a range of stakeholders.

The main findings emerging from the study were that there was a significant gap in prosecutions, with only seven to ten percent of actual crime (not reported crime), and only two percent of actual housebreakings being prosecuted. The NPA would require significant increased capacity as SAPS was expanded, and would need to become more effective, more pro-active in helping to solve crime problems, to achieve better prosecutor and investigator co-operation , to play an improved role in prevention initiatives, to focus on other forms of dispute resolution, and to enhance its governance, delivery and resourcing capacity and capability.

The new strategy was outcomes-based and customer-focused, and flowed from a transformation programme to guide the way forward. It was responsive to environmental demands and challenges, was based on an integrated approach, and covered a period of fifteen years, broken into four "horizons" supported by annual plans, initiatives and projects. The overall vision remained the achievement of justice in society, so that people could live in freedom and security. The mission was guided by the Constitution, to ensure justice by effective and impartial prosecution, and working with all stakeholders to solve and prevent crime. Freedom from crime would contribute to social development and the economy. The seven strategies set out to achieve these aims were tabled as: good governance, organisational transformation; crime prevention and community justice; better investigation; better case management; joint problem solving; and capability enhancement. These were divided between a Governance Plan, a Strategic Delivery Plan and a Strategic Resourcing Plan. The Governance plan included establishment of a governance centre and a national programme management office. The Delivery Plan included different projects under the specialist units, with a view to making better use of resources, enhancing capacity, improving community involvement and the civic campaign. The Resourcing Plan included an improved corporate services division, job evaluations, resourcing and IT and a prioritisation of the lower courts to improve the conditions of work and ensure sustainable projects.

Ms Sparg tabled the expenditure of the NPA for 2005/6. Most of the funding had been spent but an amount of R42 million had once again to be rolled over, being the subject of an ongoing dispute with a service provider. The Medium-term Expenditure Framework (MTEF) allocation for 2005/6 had been R1.35 billion, and the difference between this figure and the expenditure related to adjustments and an additional amount of R77 million from the Department of Justice savings. The MTEF allocation for 2006/7 was R1.53 billion, rising to R1.95 billion in 2008/9. An additional allocation of R145 million in 2005/6, rising to R385 million in 2008/9, had been earmarked for the rollout of the specialist courts, the appointment of additional prosecutors, the implementation of the job evaluations, special programmes relating to organised crime, cyber crime and enhanced capacity in the Witness Protection and Asset Forfeiture units. Approximately R130 million of the R145 million related to personnel funding. In addition R38 million had been transferred to the asset recovery account (CARA), which had been earmarked for work on sexual offences, community affairs and witness protection.

Gender equality was fairly good, with between 22 and 52% of prosecutors across the different ranks being women; the highest ratio occurred at junior state advocate level and the lowest at Directorate of Public Prosecution level. The target for senior management was 30%, and 50% at non-senior level. It was hoped to achieve these targets by an analysis of policies, practices and working environments discriminating against women, improving working facilities, recruitment and skills programmes and affirmative action.

Discussion
No specific questions were raised on this presentation.

Briefing on the National Prosecution Service
Advocate M Mpshe (Deputy National Director, National Prosecuting Service (NPS)) tabled a full report on the activities of the NPS but focused on only some areas in his presentation. He tabled a schedule of expenditure and statistics relating to cases, court hours and conviction rates. He reported that the major objectives for the 2005/6 year had been development of dynamic NPS leadership, the transformation of NPS into a strategy-focused and performance-driven unit, and improved co-operation and working relationships with other roleplayers.

Adv Mpshe’s presentation highlighted, in respect of District, Regional and High Courts, the targets and achievements in relation to court cycle times, conviction rates, numbers of cases finalised, implementation of case flow management, improvement in court hours and reduction in awaiting trial periods. NPS had achieved reduction in case cycles in the High Court, and was only slightly under target in the District Court but the Regional Court remained a problem. Conviction rates exceeded targets. There was a 5% increase in the number of cases brought to all courts, but the Regional and District Courts had not achieved finalisation targets. Awaiting trial prisoners in custody had been reduced by 7%, still below the targeted reduction, with 51 267 awaiting trial prisoners. Children were only remaining in custody where there was no safe alternative, but a 30% reduction in numbers had been achieved. Cases involving children were prioritised but they still needed to improve the rate of finalisation. The number of cases finalised by means of alternative measures, such as Diversions and Plea-bargains had risen and were above target.

The improved co-operation with other roleplayers was below target, but Adv Mpshe indicated that the judiciary was still busy with workshops aimed at obtaining buy-in from all stakeholders. Over five thousand guidelines on case finalisation had been published and widely distributed to judicial officers, prosecutors and administrative staff. Projects and initiatives with other stakeholders were being finalised. Court hours were below target in all divisions. Partner integration was on track, and customer needs, including community forum needs, were being identified and addressed. Measures had been put in place to increase the number of organised crime prosecutions. 15 Community Courts, including 11 pilot courts, had been established, and there were now 70 Sexual Offences Courts.

1177 minimum sentence cases had been finalised, which represented 52% of all criminal cases in the High Court. 5% had been sent back to the Regional Court, 22% had involved life sentences (the majority for rape) and 42% sentences exceeding 15 years. The seven Hi-jacking Courts had finalised 206 cases, with a 75% conviction rate; the Environmental Court finalised 98 cases with an 84% conviction rate and the Community Courts handled 14 175 cases with a 98% conviction rate.

Future priorities related mainly to an increase in prosecutor posts, including specialist prosecutors, the training, formalisation and upgrading of the Court Preparation Programme to provide support to abused children, and appointment of managers.

Discussion

Mr D Worth (DA, Free State) mentioned a case involving suspected arson, where one person had died, but which appeared to have been very badly handled since the Court found that no proper forensic testing had been undertaken. He asked how many cases coming before the NPS had been mishandled, or insufficiently investigated.

Adv Mpshe responded that he was aware of this case, and that the criticisms by the Court related to the initial investigations and not to the prosecution. He undertook to investigate and forward figures to the Committee relating to the number of matters referred back to prosecutors, or withdrawn for lack of evidence.

Mr W Hofmeyr (AFU) summarised that of approximately 2.5 million crimes reported per annum, approximately 1million, where a suspect and evidence had been identified, were brought to the NPA. About 350 000 of those resulted in a charge being laid and about 300 000 resulted in a conviction. There was frequently insufficient evidence to formulate or support a charge. Some of the cases where no charge could be laid immediately might well be referred back later. The figures in South Africa were in proportion to similar figures in other countries.

Dr F van Heerden (FF, Free State) asked for clarification on cases "recycled" from the Legal Aid Board.

Adv Mpshe stated that when legal aid had been granted, it often happened that there was no appearance for the Board on the day set for trial, or that documentation had not been prepared. NPS had already asked a judge to call the Legal Aid Board to account for its failure to perform properly in specific instances.

Dr van Heerden asked for clarity on "community justice".

Adv Mpshe clarified that there was a distinction between the Community Courts, which dealt with "non serious" offences and achieved quick finalisation, and Community Prosecution, which aimed to involve the community in the prevention and prosecution of crime, and which would involve Community Policing Forums and other NGOs.

Dr van Heerden and Mr Mzizi asked what could be done to ensure proper case-flow management – instances were cited both of unnecessary delays by prosecutors, and intervention by the judicial officers in the questioning.

Adv Mpshe confirmed that the Court had powers in terms of the Criminal Procedure Act to disallow future postponements. A case disallowed could be revitalised only by the Director of Public Prosecutions. The Case Flow Management manual made it clear that the Bench was ultimately responsible for management of cases, but the role of the prosecutors was clearly set out. The Courts, guided by prosecutors, would make estimates of time required for each case, based on the evidence to be presented.

Mr Mzizi enquired about the causes of Court delays.

Adv Mpshe replied that there were numerous reasons for delays, which could be caused by the prosecution, defence, investigating officers or even the accused. Each case was unique.

Mr Mack followed up the case management, citing problems with public interest litigation in Beaufort West, where many investigators or court staff abided by the "old system" and refused to take a more proactive stance. Some were reluctant to undertake investigations in the townships.

Adv Mpshe confirmed that sometimes people were unwilling to work in certain areas, but he undertook to investigate these particular allegations and take any corrective measures that might be necessary.

Mr Mack further referred to a situation, allegedly involving the DSO, where investigations had been dragged out.

Adv McCarthy stated that he was aware of this matter, as it had been raised in Parliament, but it did not involve the DSO and he would clarify the matter directly with Mr Mack.

Mr Mzizi asked for comment on the poor conditions under which prosecutors, particularly in the Germiston courts, were expected to work, with insufficient office space providing no privacy for interviewing witnesses.

Adv Mpshe undertook to investigate and report back on this specific instance.

Mr Mzizi asked if NPS had made any headway in cases of domestic violence, child abuse and sexual offences. He asked what cooperation existed with SAPS and what provision was made for interviewing victims in these cases away from public police station charge offices.

Adv Mpshe replied that improvements had been made in prosecution of sexual offences, although the targets had not yet been attained. Wherever young children were involved it was vital to employ trained personnel to assist in obtaining evidence and reduce trauma.

Mr Hofmeyr added that conviction rates ranged from 44% to 65% in the specialist courts, due to the difficult nature of the cases. The Thuthuzda centres (collaborative efforts providing a multiplicity of services, including private interview facilities, trauma counselling, and medical services), which were resource-intensive, had a success rate of between 75 and 85%. It was hoped to improve the level of service in all cases.

In answer to a query from Mr Ntuli, Adv Mpshe confirmed that the Director of Public Prosecutions for each division arranged the allocation of prosecutors.

In answer to Mr Ntuli, Adv Mpshe confirmed that NPS had asked judicial officers to make use of Section 62(f) for awaiting trial prisoners, to alleviate overcrowding in prisons, but had not obtained complete buy-in from the Bench.

Adv Mpshe clarified for Mr Ntuli and the Chairperson how the targets presented for case finalisation-times had been calculated, and confirmed that the percentages queried were percentage improvements to the previous year’s figures. He clarified that it could not be expected that all cases would be able to be finalised within twelve months, but an estimate had been made that 75% of matters should fall within that time period. Complex matters would obviously require more time, but it was the matters that dragged on needlessly that were the main target of investigation and improvement

Mr Ntuli reported on allegations that the SAPS were interfering with the proper operation of community policing forums, controlling their activities so that they were regarded as "informers".

Adv Mpshe responded that CPFs in Pretoria and KwaZulu-Natal did participate and play an effective role in the community prosecution process. He was unable to comment on these particular allegations.

Ms Nyanda reported that she was monitoring three community centres in Mpumulanga, and had been horrified to note that they were holding unclaimed firearms and other property, which could be misused. She asked what checks and balances existed. She also enquired what had been the outcome of a case involving the SAPS where a uniformed officer had been arrested carrying drugs in the SAPS van.

Adv Mpshe undertook to investigate the matters raised and to report back.

Presentation on the Directorate of Special Operations (Scorpions Unit)
Adv L McCarthy (Head: Directorate of Special Operations (DSO)) tabled the structure and human resource allocation of the DSO. DSO’s main office was based in Pretoria, with regional teams in five provinces. Strategic and Investigative Support concentrated on crime analysis, operational support, training and development, forensic services, data collation and administration. Although DSO had faced human resource challenges, its turnover was well matched to recruitment, and DSO both lost to and recruited from other branches of government and the commercial sector.

Strategic objectives included increasing work performance and impact, which was measurable in money terms; DSO aimed to return five-fold the funding granted by Government. Organised crime was an increasing challenge and although South Africa was not the "crime capital" the DSO still wished to obtain a more pre-emptive edge on such crime. It interacted with nine other disciplines and had been asked to share its methodology with a number of local and international agencies. It aimed to draw the best from international law enforcement, and to exploit partner co-operation and delivery to enhance its effectiveness. Adv McCarthy tabled a summary of performance measured against targets for the 2004/5, and 2005/6 years. Statistics over the four-year period showed a 90% conviction rate, and several particularly complex and important matters had been finalised, involving R18 billion. In 2005, a total of 318 investigations had been finalised, with an 82% conviction rate, and a 40% effective match between threats analysis and targets. The objectives of the Prevention of Organised Crime Act were being met, with contraband of R174 million recovered and R175 million in assets placed under restraint.

DSO had about 500 staff, of whom 438 were degreed professionals. DSO was working with the National Intelligence Agency (NIA) to complete all vetting and security by June 2006, all staff was required to take an oath of office, declare interests, comply with statutory and internal codes of conduct and comply with confidentiality. There had been five cases investigating breach of confidence and action had been taken against six staff, of whom three had been prosecuted. Key focus training areas included finance, cyber crime and business litigation. There were 82 training interventions. Considerable funding had been put into sophisticated IT systems, including electronic case management and a central crime database. Eleven priorities had been identified for 2006/7, which aimed to sustain the effectiveness of DSO, to advance it to higher standards of effectiveness, to develop the law and to disrupt organised crime in the country.

Discussion
Mr J Le Roux (DA, Eastern Cape) commented that he had found the presentation most informative and urged that the work of the DSO must be permitted to continue without interference.

Mr Mzizi asked whether the undercover unit was still operating, and, if so, how it did so and what incentives existed to ensure sufficient staffing.

Adv McCarthy responded that there were fifteen undercover agents, who were highly skilled. They acted only within the framework of the law and only when authorised to do so by the NPA Act. Incentives were in place to retain their services and they were protected by the police, by stringent policies and other measures. None had been killed in the course of duty.

Mr Mzizi asked whether the DSO and Department of Home Affairs co-operated in investigating human trafficking and false ID documents.

Adv McCarthy confirmed that as yet there was no legislation catering specifically for human trafficking, but many cases involved people being used as drug mules, or for money laundering. The DSO and Home Affairs were busy with a joint strategy to address these issues. Despite popular misconception, Home Affairs was generally efficient, although the systems presented huge scope for corruption despite the safeguards.

Adv McCarthy confirmed, in response to a comment from Mr Mzizi, that NPA as a whole had developed Strategy 2020 in response to challenging new dimensions and that DSO was a part of this. Adv McCarthy replied that DSO assessed the prevalence of crime at niche levels. It did not become involved in all crime. The previous MTEF allocations had been R9 million, and for the current year R10 million for forensic audits and R5 million for legal fees.

Mr Ntuli wondered if the high publicity often given to arrests by the Scorpions did not run counter to the presumption of innocence until proven guilty.

Mr Mack asked what media strategy was adopted by NPS.

Adv McCarthy stated that publicity often did give rise to concern and that in some cases the NPA had felt that inappropriate steps had been taken by the media on arrests. NPA was now insisting that no media statements be issued without NPA approval, until such time as the matter was in the public domain. On the other hand, where NPA felt that it was in the public interest to release information, but where this did not involve infringement of individual privacy rights, it would itself issue statements. There was a fine balance in assessing the public benefit.

Mr Ntuli asked if DSO acted only on complaints, or conducted its own investigations.

Adv McCarthy confirmed that about 70% of DSO work resulted from referrals by government departments, and institutions such as the Reserve Bank, the Johannesburg Securities Exchange (JSE), Financial Services Board (FSB) and from whistleblowers. The remaining 30% resulted from proactive steps taken to stop crime before it had happened, acting on information received as a result of own investigations.

Mr Ntuli asked if DSO and AFU used SAPS in making arrests.

Adv McCarthy confirmed that DSO usually effected arrests through SAPS, whose foremost skills lay in securing and managing crime scenes. DSO had its own operations support unit and had skilled professionals knowing the best ways to effect arrests. It outsourced about 5% of work, for three main reasons: where DSO did not have the expertise itself (although it was in the process of setting up specialised Counsel and forensic accounting divisions); where the outsourcing contributed to the building of effective partnerships; and where there was potential of conflict of interest.

Mr Mack asked whether Strategy 2020 focused on the more specialised crimes which would no doubt spill over from Europe, and which would develop also in South Africa.

Ms Nyanda asked what was being done to try to secure the borders better against drugs.

Adv M McCarthy stated that South Africa was incorrectly perceived as the African Gateway to Crime, but that all crime problems needed to be better addressed. DSO investigated only specific specialist crimes. Future focus areas for crime were likely to be property scams, telecommunications, investment scams, money laundering and ID theft. There was already a JCS cluster working on a strategy to address the threats posed by inadequate border management, which included drugs.

Ms Nyanda stated that some of her constituents in Nelspruit had made allegations that they had made payments to "Scorpions" for assistance.

Adv McCarthy responded that this did not involve a DSO office, and suggested that Ms Nyanda clarify with her constituency exactly who, and for what purpose, was being paid.

In answer to a query from the Chairperson, Adv McCarthy responded that it was not correct that the investigators at SAPS and DSO undertook identical work, yet received widely disparate salaries. The business was entirely different. DSO only recruited from Director or Superintendent level, and there were more than 7 salary structure levels at SAPS as opposed to 2 at DSO.

Mr Mzizi asked for further clarity on the media allegations of malpractice in the Scorpions.

Mr Mack asked what had been done about the leakage of information.

The Chair asked what procedure was followed in vetting staff.

Adv McCarthy confirmed that the security vetting was undertaken by the National Intelligence Agency (NIA), together with the integrity management unit, and the security and risk management unit, who would undertake surveillance without invading privacy. Human nature unfortunately meant that there were those who would slip through the confidentiality or security net. DSO tackled such instances immediately, and had charged three members, of whom one had been convicted, two acquitted, and a further three investigations were ongoing. Three further investigations had been undertaken but had revealed nothing. Confidentiality breaches did not always emanate from within DSO: matters were referred to them from a variety of sources, including whistleblowers, other departments, information obtained from open sources, and it was therefore impossible to avoid all leakage of information. In addition, the media did not always report entirely accurately or on the basis of established fact.

In answer to a query from the Chairperson, Adv McCarthy confirmed that DSO did indeed share information with the police and there were three specific investigations where the police had asked for a joint investigation, resulting in a success rate of around 70%.

Briefing by the Asset Forfeiture Unit on Objectives and Achievements in 20005
Mr W Hofmeyr (Head: Asset Forfeiture Unit (AFU)) reported that the overall objectives of the AFU were to increase the volume of cases handled, to make a real impact in the fight against crime, and to develop the law by using test cases to build up a body of legal precedent. In the 2005 year 249 cases had been handled, and 219 completed; in both cases above target. R316 million of assets had been frozen, and cases worth R106 million completed. R19 million had been paid to CARA. Assets of R1 billion had been placed under restraint. 36 judgments had been handed down in the past year; 5 in the Constitutional Court (ConCourt) and Supreme Court of Appeal (SCA), with an 80% success rate. To date AFU had been involved in 166 judgments, achieving 100% success rate in ConCourt and 59% success rate in the SCA. AFU did not litigate every case, so the actual success rates were higher. Recent SCA decisions in the Prophet case had allowed AFU to overcome the difficulties in acting aggressively against fixed property, which had been hindered by the previous Seevnarayan judgment. AFU had lost a SCA case on legal expenses but continued to engage with Parliament to try to clarify the law and this issue would be argued again next month in the Constitutional Court. Leave to appeal was refused to Phillips and the Rautenbach application was turned down without a hearing.

AFU had excellent relationships with SAPS, DSO, NPS, the South African Revenue Services (SARS), the South African Reserve Bank (SARB) and the Financial Intelligence Centre (FIC) and SAPS task teams were based in most AFU offices. Employment equity remained a challenge, as although 45% of all staff and 41% of management were women, AFU had difficulty in retaining sufficient African staff.

AFU’s major challenge lay in expanding its capacity sufficiently to deal with all cases where asset forfeiture could be done. This would require an almost ten-fold increase in budget. It had identified a number of areas where the law needed to be clarified or strengthened, and continued to press for urgent amendments during the second half of 2006. AFU would continue to exercise its powers of civil forfeiture where it was impossible to obtain convictions. AFU was held in high regard internationally, but believed it could always achieve more.

Discussion
Dr van Heerden and Mr Ntuli asked what happened to property seized, or assets forfeited.

Mr Hofmeyr and Adv McCarthy responded that the Court would frequently give directives on property. Some – such as drugs– were burned, some were used as court exhibits, and some would be transferred to AFU. Whenever AFU froze an asset an independent party was appointed to look after that asset and to insure and secure it, so that the State was not liable for any losses. Some legal businesses would be run for a while by competent persons appointed by AFU until they could be disposed of, and assets had included such diverse items as fishing boats, lions and businesses. Illegal operations would be closed down as soon as possible.

In answer to general queries on budget and resources, Mr Hofmeyr stated that NPA had been given additional resources by Treasury towards AFU, whose budget therefore increased by 35% over the next three years. It was considered important to reach the stage of having two prosecutors per court and the increased allocation would support the appointment of 500 additional prosecutors over the next three years.

In response to a general question on outsourcing, and a specific question on the difficulty in reaching the equity targets, Mr Hofmeyr confirmed that AFU used forensic accountants, but to a lesser extent than DSO. Serious corporate frauds were incredibly complex and it was vital to employ the best forensic auditors. Similarly accused in court cases would employ senior skilled lawyers, and AFU also must brief excellent Counsel to deal effectively with the prosecutions. Whilst AFU was trying to build its in-house capability the reality was that the most experienced and skilled professionals operated independently, and that the lower salaries could not compete with the earnings in the marketplace.

The meeting adjourned.