A summary of this committee meeting is not yet available.
JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
2 May 2007
NATIONAL PROSECUTING AUTHORITY: PROGRESS REPORT 2006/07
Chairperson: Ms F Chohan-Khota (ANC)
Documents handed out:
National Prosecuting Authority Executive Summary Strategy 2020
National Prosecuting Services (NPS) Report presentation
NPS Submission 13 March 2007 report
Audio Recording of the Meeting Part1 & Part2
The National Prosecuting Authority gave an overview of the work, achievements and challenges during the 2006 year. The Authority was currently operating the Strategy 2020, which aimed to address inefficiencies, and deal with issues of delivery and resources, and in particular to set up performance assessments. Challenges for National Prosecuting Services were still the rate of case finalisation, backlogs in courts and the 24% vacancy rate. There was difficulty in attracting new external appointees, as salaries were not competitive and many prosecutors took positions as magistrates, especially since there was now a substantial difference in the salary scales. The matter had been raised with the Department of Public Services and Administration but there was no finalisation as yet. Challenges in finalising cases were raised and discussed, and these delays affected both those in custody and those on bail. Juveniles in custody remained a challenge, although the numbers had fallen. There had been an increase in economic and serious crimes, which impacted upon investigation times. In May alone, 17 000 warrants of arrest for failure to appear in court were given. Other problems included case flow management in court, the need to deal more effectively with alternative dispute resolution, diversion and proactive steps to reduce crime.
A brief report was made on the functioning and challenges of the Directorate of Special Operations, the Asset Forfeiture Unit, the Specialised Commercial Crimes Unit, the Sexual Offences and Community Affairs Unit, the Priority Crimes Litigation Unit, the Witness Protection Unit and the Sexual Offences Courts. Data on internal disciplinary hearings was tabled. A matter of serious concern was the unjustified attacks and undermining of the National Prosecuting Authority. Despite the challenges, it reported that the work was being done effectively for the most part and there had been a satisfactory budget allocation.
The National Prosecuting Services presented a number of graphs and statistics covering case flow management, hours of Court sittings, the number of cases withdrawn, new cases and the finalisation and successful prosecution rates. The shortage of magistrates and prosecutors in many courts presented a major challenge. Finalisation was affected by non standard application of case flow management systems, vacancies, warrants, court days, more accused per case and an increase in economic crime. The case cycle times, conviction rates, outstanding cases and backlogs were tabled. There was a high rate of appeal backlogs. Measures to address the problem included proposals to recall retired magistrates and judges to assist, and calling upon Senior Advocates to read the records.
Questions by members addressed the vacancy rate among prosecutors, the appointment of temporary prosecutors, imbalance between magistrates' and prosecutors' salaries, whether these should be aligned, and the dropping of cases from the courts for various reasons, and whether statistics existed and were monitored in this regard. The possible link between low salaries and high instances of internal disciplinary problems was questioned. Further questions related to the development of jurisprudence by the Courts around asset forfeiture was questioned, and details of the Criminal Assets Recovery Account payments, case flow management and training of the magistrates, and withdrawal of matters from the roll. The Committee believed that the courts should receive the data on the warrants of arrest and case flow, to come up with workable solutions, and further that a solution must be found on salaries, involving all role players, to try to achieve better synergy. The question of children in custody while awaiting trial was also examined.
The CEO reported that the main challenge appeared to be in the area of employee recruitment. The vacancy rates within the NPA were extremely high, and the Committee expressed its concern. The NPA acknowledged that capacity building was a major challenge, particularly in the district courts. The committee enquired as to the methods and approaches to employee recruitment, and emphasized to need to review them. It was also concerned that the extra capacity supplied by Treasury was being used primarily to supplement existing salaries and to facilitate the promotion of current employees, as opposed to capacity building at ground level. The spending patterns, including the “March spike” were discussed.
A brief report was given on the Witness Protection Unit and the Priority Crimes Litigation Unit, although facing considerable challenges, were performing adequately and within budgetary constraints. The Sexual Offences and Community Affairs Unit suffered from lack of co-operation between the three ‘spheres’ of police, medical services and the courts. The Committee suggested introduction of a forum to facilitate better communication. It strongly recommended that the experiences and knowledge gained from the Thuthuzela initiatives be used to improve services in regions where there were no such facilities. The victim should be focused on, and improvements made where necessary. Closer cooperation was required between the NPA and the Portfolio Committee, in order to effect change and improve services.
National Prosecuting Authority (NPA): Introductory Briefing
Adv Vusi Pikoli, National Director of Public Prosecutions, indicated that the NPA had faced a number of challenges over the past few years. Its response had been to compile the Strategy 2020, which aimed to address inefficiencies, and deal with issues of delivery and resources. Strategic initiatives included the proper management of performance, through performance agreements signed by all members to ensure that they preformed in line with the Strategy, and performance assessments. Each business unit would be aligned with the strategy. Quarterly reviews were held to ensure a continuous assessment and to identify shortcomings early on. The heads of the business units would be assessed at the end of the business period.
A number of challenges had been identified in the National Prosecuting Services (NPS). It had not been able to deal with all these challenges as effectively as it wished, especially relating to rate of finalisation of matters, backlogs (over six months) and the filling of posts both in the NPS and the NPA as a whole. NPS accounted for around 75% of resources. The current vacancy rate was 24%. The reasons included the difficulty in attracting new people, salaries not being competitive, the past moratorium on vacancies, during which further people were lost, which in turn placed a burden on those remaining. Although money had been allocated, there were still issues of capacity within the NPA, which it was hoped could be corrected in this financial year. Vacancies to date had been filled mostly with internal appointments that did not improve the overall establishment. There was a definite need to have more external appointments. In 1997 the NPA started a recruitment programme, and a six month internship, and since that date had processed 1 300 interns as prosecutors.
The impact of the raised salaries of magistrates had an adverse effect on the NPA. In 2006/07, a total of 43 prosecutors were appointed as magistrates. Adv Pikoli cited the differences over the years between the salaries of prosecutors and magistrates and indicated that since 2003 magistrates' salaries had risen incrementally, and by 2006 senior prosecutors earned R408 000 whereas magistrates earned R489 000. In the current year, given the proposals of the Moseneke Commission, magistrates' salaries would rise again, creating a larger gap. There was no doubt that yet more prosecutors would then apply for magisterial posts. The NPA had engaged with National Treasury (NT) and the Department of Public Service and Administration (DPSA) but had been told that it would have to wait for revision of prosecutors' salaries until improvement of other civil service salaries. In Northern Cape the situation was particularly bad, and the severe shortage of prosecutors was impacting on the administration of justice. He appealed to the Committee for assistance to try to prevent this serious disruption of the administration of justice.
The NPA was also trying to align with the priority areas identified by the South African Police Service (SAPS) to ensure that there was proper provisioning of personnel. By 2008 it was expected that SAPS would have increased the personnel from the current 163 000 to 193 000, which could also impact on service delivery to deal with the cases on the roll
Adv Pikoli noted that a further challenge related to the length of time to finalise matters. There were 1 803 awaiting-trial detainees held in custody for more than two years. This related to 224 matters in the High Court, over 1000 in the Regional Court, 331 in District Courts and 21 matters in Circuit courts. The reasons for the long delays included the seriousness of the offences, and in many cases trial dates had been allocated, although the bail applications had been denied. A greater challenge related to those awaiting trial who were not in custody, and who were also entitled to a speedy trial. Many accused would dismiss their lawyers and this would lead to further delays. One accused, out of a number charged together, might not come to court, or might escape from custody. Further investigations or DNA analysis could result in delays. Internal problems of prosecutors or magistrates not being in Court might also contribute. The Lower Courts Committee was discussing these problems, and some of the proposed solutions included better recording of cases, and processes in setting down dates.
Juveniles in custody also remained a challenge. Although the number of detained juveniles had fallen, those still in custody presented a problem. There were currently 17 juveniles detained for High Court matters, 253 for Regional Court matters and the bulk in the District Courts, which should be able to be dealt with more speedily.
Adv Pikoli described some of the statistics on the finalisation time for cases. It was currently around 16 months, compared to 20 months in 2005. This must also be seen within the overall context of high crime levels. There had been an increase in economic crime, apart from those matters handled directly by the Specialised Commercial Crimes (SCC) Unit. The economic offences typically would involve a number of counts, which could take longer to be finalised.
In May 2006 17 000 warrants of arrest had been issued for those who failed to attend court. This of course impacted very badly upon the cases on the roll and the case management system.
Despite these difficulties, the NPA was happy to report that it had been able to achieve higher levels of conviction. There was a higher conviction rate in the Regional Court in particular. However, convictions were not the primary focus of the NPA. Prosecutors had a responsibility to the Court to place all information before the Court fairly and correctly, and this was the overriding aim.
Adv Pikoli said that other problems included the case flow management in Court, where the magistrates did not place the case on the roll, or failed to put an adequate number of matters on the roll. Prosecutors were no longer in charge of drawing up the roll. If the system was working effectively, setting down fewer matters would result in more being finalised per day, but in truth this was not the case. It was a problem to be investigated.
Adv Pikoli also said that he wished to highlight the community prosecutions and restorative justice work. Whilst the NPA would continue to bring those breaking the law before court, the victims of crime were not being addressed adequately. Law enforcement measures alone would not deal effectively with crime. Diversion needed to be dealt with more effectively, as well as alternative dispute resolution, so that it did not clog the already overburdened court rolls. The idea was that the NPA be more proactive, rather than reactive, within the communities and identify problems. A pilot project was already running in about ten areas, working with civil morality issues and trying to raise the respect for democracy.
Adv Pikoli noted the Khampepe commission that had looked into the functioning of the Directorate of Special Operations (DSO)(Scorpions) and the fact that a number of members had left during this period. Recommendations had been tabled before Cabinet and the challenge lay in implementing the recommendations. The location and mandate of the Directorate had been confirmed. It was working effectively and efficiently with other law enforcement agencies. The Minister of Safety and Security was playing a role, and prime focus was on reporting and investigations of misconduct, the intelligence capacity of the DSO, and the collection of crime information in line with the existing oversight structures. There was no way to deal effectively with organised crime syndicates without having sufficient capacity. In due course there were likely to be amendments proposed to the relevant legislation. The Directorate had continued, despite difficulties, to do its work effectively.
Adv Pikoli stated that there was a problem when outsiders sought to undermine the integrity of the institution. Most matters were not only within the domain of the DSO alone, and others also had information that could be leaked. Individual members of the DSO leaking information would be dealt with appropriately and there had already been random lie detector tests instituted. The media, for its part, had admitted that it regularly tried to obtain classified information from state institutions. Many of the crimes investigated were extremely complex and required detailed and exhaustive investigations.
The Asset Forfeiture Unit (AFU) had continued to do excellent work, and Mr Hofmeyr would be addressing the Committee on the following day. It had won a number of important cases, but there were advantages even in the cases lost, as they added significantly to the jurisprudence around the issues. There was a good relationship with SAPS.
The Specialised Commercial Crimes Unit had added two offices. This Unit dealt with serious economic offences, fraud and corruption and had a high conviction rate. It worked well with SAPS. The guided investigations gave an added impetus to the fight against crime. There were 502 matters finalised under plea bargaining, there was a reduction in time between charge and finalisation, and an increase in the number of finalised cases.
The Sexual Offences and Community Affairs Unit (SOCA) continued to do good work and improve conviction rate, and had set up a number of community areas. The conviction rate in sexual offences courts was around 90%, as compared to about 48% before the Sexual Offences Courts were established. It hoped to achieve higher conviction rates even where matters were not heard before the specialised courts. It was dealing with a new global phenomenon of trafficking in persons.
The Priority Crimes Litigation Unit (PCLU) was dealing with issues of nuclear arms and weapons proliferation. A case was currently before Court, involving a number of countries in an international ring. Two accused were being tried, and this trial attracted a good deal of attention as it was closely allied to a recent failed prosecution in Germany. This Unit also dealt with issues relating to the Regulation of Foreign Military Assistance Act. A case involving the attempted coup in Equatorial Guinea had recently been lost, but may still be taken on appeal. There were delays, largely occasioned by the political and sensitive matter of the matters being dealt with but there were guidelines being followed.
The Witness Protection Unit (WPU) involved about 289 people in the programme. The recent report relating to possible misuse of resources had emanated from the results of an internal investigation.
Adv Pikoli said that Corporate Services had implemented the Job Evaluation, which had been an issue of concern for some time, which had improved the situation in NPA generally.
The Committee had previously raised some concerns relating to the DSO operating its own account, having a separate budget from NPA, and having its own CFO. NPA regarded this as a necessary intervention, given the nature of the work of the DSO. This would be discussed with the Committee further.
Adv Pikoli mentioned that NPA had, during this year, sought to convert the six-month prosecutors' training programme into a full learnership of one year. It believed this was the only way to create skilled prosecutors and to try to deal with the loss of so many experienced prosecutors. This was under discussion with the relevant sector training authority. In addition NPA had embarked on a programme of active recruitment
NPA had also had to deal with serious issues relating to misconduct. It had to suspend some senior members and lay charges. This was an unfortunate blemish on the record. Misconduct enquiries included investigations relating to absenteeism, assault of colleagues, being found in possession of dockets without permission, extortion of money from members of the public, including money extorted in exchange for setting aside of traffic fines. These matters were regarded very seriously and dealt with appropriately.
Adv Pikoli returned to the question of unjustified attacks on the NPA. Whilst the NPA believed that democracy allowed for criticism where due, it believed that a State institution should not be undermined, and would like to have itself defended more actively. The NPA was often attacked for implementing and applying the laws passed by Parliament. The DSO had been attacked by senior members of government. The NPA had no platform to respond, unless it could answer to a matter that was being discussed by the Court. If the law had fallen short, or was seen to be unconstitutional, then that was a matter to be taken up by the Courts. There were many prosecutors who, when the attacks were made, were not able to withstand the pressure. Many were doing a fine job and must be defended if they had been acting correctly. Unwarranted attacks and comparisons with the former apartheid institutions amounted to a call for the public to disrespect the law.
In conclusion Adv Pikoli stated that he was happy with the work being done by the NPA and was confident that the increase in budget would lead to delivery of services where most needed.
National Prosecuting Services (NPS) Report
Adv Mokotedi Mpshe, Deputy National Director of Public Prosecutions, concentrated on aspects of delivery, which involved court and case flow management, because failure to get this running properly would impact on performance. Adv Pikoli had already dealt with the challenges, which included the backlog of cases and preparation and case flow management. Case flow management was currently on track. Courts had already been identified where case flow was not working properly. He wondered, however, if the finalisation rate was within the province of the NPS since the prosecutors were no longer responsible for putting the matters on the roll. If enrolment by the Bench was done properly, NPS would be able to perform better than in the past. He tabled an overview of performance of all Courts, which still showed that improvement could still be made. He also tabled the various court hours, indicating that case flow could be better enforced. High Courts were sitting on average for four hours, and the regional courts just under 4 hours, a decline on the previous years. The number of new cases was tabled, which showed a decline in number as compared to the previous years. The number of cases withdrawn had lessened. The finalisation rate had posed a challenge, but was being dealt with. He presented a table of the finalisation rates in all courts.
Plea bargaining statistics were then given. Plea bargaining did improve the finalisation rate in 2005/06, but the rate had fallen in 2006/07, despite a drive that included visiting the prisons and educating prisoners on the process. Other processes included alternative dispute resolution (ADR), diversion, and admission of guilt.
The finalisation rates in the High Courts showed the total from the first appearance in the lower courts. About 12% of the cases on the roll for one year had been finalised in 2006/07. About 34% of those on the roll for two years had been finalised. There were still challenges in the processing and enrolling of matters in the lower courts. There were many vacancies on the bench and the prosecution services. Kwazulu Natal had recently had no magistrates for five consecutive days in the regional court. Only one magistrate was available to handle both civil and criminal rolls in Upington the previous week. Other stakeholders therefore also impacted on performance of the NPS
Adv Mpshe also tabled the minimum sentence indicators, and noted that some of the cases referred to the High Court for sentencing in fact attracted sentences of less than fifteen years.
Factors affecting the finalisation rate included the non-uniform application of the case flow management, vacancies, warrants, courts days, more accused per case and an increase in economic crime. The reasons for postponements were tabled and analysed, in comparison with the previous years. Alternative measures would include the plea bargaining and diversion processes, which were dependent upon proper negotiation with all parties, and the effective utilisation of court hours.
The case cycle times in lower and High Courts, and the conviction rates were tabled. The outstanding cases and backlog were tabled. The NPS had already embarked on an initiative of reducing backlogs in "hotspot"areas. There was a high rate of appeal backlogs, and factors leading to these backlogs included the delay in transcribing records, which currently stood at 22 months, an increase on the previous years, and the wait for available courts in order to set a date. The time taken from sentence to finalisation had dropped, being currently at 29 months. Measures to address the problem included proposals to recall retired magistrates and judges to assist, and calling upon Senior Advocates to read the records.
The dedicated Sexual Offences Courts had finalised 5 240 cases with a 65% conviction rate.
Due to shortage of time, Adv Mpshe tabled, but did not discuss, further slides dealing with community justice, community prosecutions, and crime prevention, the project clean up, and customer management.
The Chairperson confirmed, for clarity, that the "Community Prosecutions" referred to did use the NPS prosecutors.
Mr L Joubert (DA) was concerned with the vacancy rate amongst prosecutors, which would impact on the court process. He wondered if Counsel or attorneys were ever used on a temporary basis.
Adv Mpshe replied that Section 38 of the NPA Act did make provision for this, and such appointments were more frequently used for complex cases, or prosecutors were appointed on contract. However, "external" appointments such as this did not automatically follow from the fact that vacancies existed, but were rather used in special cases.
Mr Joubert said that the 24% vacancy would seem to indicate that those working as prosecutors were probably overworked, and therefore enquired about their morale, noting also that it was doubtless affected also by lower salaries and the fact that many accused, particularly some in high profile matters, had not served the full sentence.
In answer to this, Adv Leonard McCarthy, Head of DSO, noted that his prosecutors' morale was generally high and they were committed and enthusiastic about their matters.
Mr Joubert asked if the development of the law through the Courts in AFU matters did not amount to a blurring of the separation of powers, and he was concerned that the courts might intrude into the line function of Parliament. He was also concerned that asset forfeiture was now extending to matters such as confiscation of drunken drivers' cars, which was perhaps not the initial intention.
The Chairperson sought to differ, stating that this was indeed the intention of the law.
Adv Pikoli said that the development of the law had always been a function of the Court. He did not think that the building of the new body of jurisprudence around asset forfeiture was following a path different to that adopted in the past, which was well within the legal system.
Mr Willie Hofmeyr, Head, Asset Forfeiture Unit, added that when the AFU matters were litigated in Court the defence team of excellent lawyers would of course urge the Court to adopt a very restrictive interpretation of the legislation, which, if followed, could make the law unusable. He clarified that the "development of the jurisprudence" was in fact clarification of the original intention of Parliament, and AFU strove to ensure that the Courts would adopt what it considered was the correct interpretation. AFU had taken a number of matters on appeal to reverse what it considered to be incorrect decisions. The laws were complex and operated in a new environment.
Mr Hofmeyr also added that the drunk driving forfeitures were used in America, and the South African law made it clear that forfeiture applied to all serious offences. There was no final acceptance that it would necessarily apply throughout, but issues of proportionality could be litigated. The intention of parliament was to apply forfeiture to any serious offences.
Ms S Camerer (DA) asked how the Department would be addressing the problem of the imbalance between prosecutors' and magistrates' salaries, as this appeared to have been a matter being discussed, but not resolved, in the Department for some time.
Adv Pikoli replied that the DPSA had asked for these discussions to be put on hold for the moment. The proposals would be submitted to the Minister and there was a proposal to link the salaries of prosecutors and magistrates. This was the present position.
Ms Camerer was concerned with the large number of cases that, although referred to court, disappeared from the roll for various reasons, including withdrawals and transfers. She asked if there was any mechanism to monitor what happened to the warrant cases, the transfer cases and those struck from the roll, and whether there were any statistics indicating the proportion that were never followed through at all.
Adv Mpshe responded that statistics were kept in many cases, and the reasons why cases were withdrawn were noted. However, once the case was withdrawn the charge sheet was filed, and might resurface a year later. There was no tracking mechanism on these matters.
Ms Camerer asked if the prosecution would not monitor the cases struck off. She understood that the withdrawals were difficult to manage, but the transfers and those struck off the roll must surely be able to be followed up.
Adv Mpshe stated that NPA did follow up on cases struck off. Section 342A provided, however, that cases removed from the roll could be reinstated only by directive of the Attorney General.
Ms Camerer asked for the details of the Criminal Assets Recovery Account (CARA). About R3 million had reportedly gone to victims of crime but it was unclear who were the beneficiaries. She asked if there were plans to give the victims a better share, and how the R3 million was spent.
Mr Hofmeyr reported that the relevant legislation gave the power not for money to be given directly to the victims of crime, but rather channelled through organisations that assisted victims. The Court could require, as part of the order, that victims be paid back. It was a difficult issue because AFU was anxious to avoid the situation where it might get into a flawed process relating to which civil society organisations could be supported. The Unit had been asked to investigate whether it should rather establish its own infrastructure to assess the victims, or find a method to identify existing organisations with existing infrastructure - perhaps those already approved by the Department of Social Development or the like - to pass on the funding. He clarified that to date victims support services had received R3.3 million, and the funding was used to establish a new shelter for victims of domestic violence in two rural provinces and to upgrade nine provincial shelters. A further R1 million had been allocated to facilitate engagement with men and boys on a gender violence project run by civil society organisations. Funding had also been awarded for the installation of one way glass for use in sexual offence trials.
Ms Camerer asked, in relation to case flow management, whether the case flow managers (who were usually magistrates) had received specialist training. Although she noted that retired magistrates and members of the Bar were being used to assist in lessening the backlogs, proper case flow management was still not happening.
Adv Mpshe replied that there had been a national team appointed who had held workshops on case flow management but there was no official training.
Imam G Solomons (ANC) also expressed his concern with the vacancies and noted that the question of salaries needed to be addressed.
Adv Pikoli noted the concern and reiterated that the salaries were under investigation.
Mr Solomons wondered if the high number of matters involving internal disciplinary investigations was linked to the low salaries.
Adv Pikoli said that there was no direct link between the fraud or corruption and the salary levels. The Constitution demanded that members of the NPA should have high integrity, but regrettably this was not always so. Although low salaries could be a factor, there was no proof that the low salaries would lead to certain conduct. He agreed that the salaries needed to be addressed, but could not accept that this was linked to the misconduct cases.
Mr Solomons asked if the magistrates would know whether cases were likely to be withdrawn, and he wondered if these cases could not be withdrawn in another forum rather than convening the full court.
Adv Mpshe said that this was not always possible, as the Magistrate might not know that the case was to be withdrawn. Reasons for withdrawals might only emerge when the matters were in Court.
The Chairperson said that the idea of case flow management was to allow for more robust interaction between the role players, as the bench were simply washing their hands of the management of cases, and would grant postponements where not warranted. It worried her that magistrates would only enrol a limited number of cases per day, but she noted that the magistrates must surely be informed by the prosecutor as to how long the case would take. There should be attention paid to development of better relationships within the broad guidelines of independence. Prosecutors should be told that they had a duty also to construct a "ghost roll", and to set a contingency plan if other cases could be brought forward. She suggested that nothing would stop the NPA from going to the Lower Courts Management Committee and presenting the figures indicated today, and these graphs, to show them how court hours were not being utilised. She felt that this would give the bench tools to try to identify the problems.
Ms S Batohi, Director Public Prosecutions, Kwazulu Natal, replied that prosecutors did play a proactive role in the process. Magistrates were not yet as experienced in setting the court rolls and this could be a factor influencing the drop in the finalisation rates, but this could be expected to improve once the system was properly running
The Chairperson was also horrified at the number of warrants of arrest issued for those not appearing in Court. Once again she felt that the data should be given to the courts. She believed those responsible for case management would welcome more information, in order to come up with workable solutions. This discussion could be taken further.
Mr L Landers (ANC) asked for a definition of "linked" salaries between magistrates and prosecutors. He reminded the Committee that magistrates were claiming that their salaries and benefits should equate to those of High Court judges. If this was granted, and if then the prosecutors were to claim the same salaries, then there would be a problem. He asked if in principle the salaries of magistrates and prosecutors should be equated, and what arguments had been presented.
Adv Pikoli responded that the equating of salaries had been considered as part of the solution to addressing the move of prosecutors to magisterial posts. The long term vision was to have the prosecutors treated as professionals in their own right. The salaries of NPA staff were linked to judges’ salaries. It was clear that there was a need to find an appropriate mechanism for dealing with salaries. The entry-level salaries of Department of Justice officials were less than those of prosecutors, which created a further danger of loss of prosecutors to that Department. Waiting for all initiatives to come together was not in fact serving anyone.
The Chairperson added that the justification advanced for prosecutors and magistrates to be paid the same related to the fact that they had the same qualifications. Legal Aid and administrative officers all also had LLB degrees. There was a historical difference in that magistrates had previously fallen under the civil service, but were now linked to the Magistrates Commission, which had tried to build in greater synergy, requiring the Commission also to take into consideration the salaries of similarly qualified people in the rest of the public service. The Commission now appeared to be paying greater heed to closing the gap between the magistrates' and judges' salary scales. This would lead to a crisis situation. Experienced prosecutors would still prefer to accept a less stimulating job, perhaps being a magistrate in a traffic offences court, rather than attending to more complex prosecutions where their skill and experience would be put to better use. The Legal Aid Board was facing a problem in keeping experienced personnel. The Chairperson suggested that National Treasury, Public Service and the Department of Justice needed to come up with a proposal to ensure that the question was properly addressed and that synergy of salaries was achieved. If the Magistrates Commission was not involved in the discussion, there would once again be a race to broaden the gap, and the salaries would not equate.
Mr Joubert asked for clarification of the slides on the High Court's finalisation rate, and whether the percentage of cases that were not reflected as finalised after two years were carried over to the third year.
Adv Mpshe confirmed that this was so.
Mr Joubert asked if the reasons for postponements included the referral for further investigation. He asked how much control the prosecutors had to prevent cases being put on the roll without the investigations having being completed.
Ms S Batohi, Director of Public Prosecutions, Kwazulu Natal, replied that directives had been issued that the police were to investigate fully before making arrests. Prosecutors would not previously enrol cases if they were of the view that there was no prima facie case to answer.
Mr Solomons raised the question of children in custody for less serious crimes. He asked who was responsible for kick-starting the process.
Mr Rodney de Kock, Director of Public Prosecutions, Western Cape, stated that substantial efforts were already being made to reduce the number of children in custody. Child justice forums in the Western Cape included the chief magistrates when issues affecting children were discussed. Social Services and probation officers were also involved. There were also case review teams, led by senior public prosecutors in every court, and other role players would include SAPS, Department of Social Development, and Nicro, and Department of Correctional Services. There was work in progress on child detainees. The audit of children in custody had been completed. The Senior Public Prosecutors would know whether the cases on the roll involved children in custody. A critical area involved those children who were in custody in the interests of justice. It was true that there were not sufficient adequate facilities, but Departments of Correctional Services (DCS) and Social Development (DSD) were in discussion on the management of secure facilities, where DCS would see to the facility and DSD to the welfare of the children.
The Chairperson asked what measures were taken on children in custody who were awaiting trial, as opposed to those in custody after sentencing, and whether there were monitoring systems in place.
Mr de Kock replied that these issues were prioritised and the Senior Public Prosecutors were to establish reasons for the detention, and whether it was justified. However, as some children were removed from custody, others would take their place, so it was a recurring issue.
The Chairperson asked if the Committee had received, in the pack of documents, details on children awaiting trial.
Adv Mpshe replied that the details were included.
Chief Executive Officer (CEO) Briefing
Ms Marion Sparg (CEO, NPA) outlined the NPA’s financial position in a very comprehensive fashion. NPA had achieved an unbroken five-year record of an unqualified report from the Auditor-General, and this pertained from 2001, when the NPA was required to produce its own financial statements. She discussed the budget and expenditure, presented the 2005/6 financial & audit report overview, as well as the 2006/7 preliminary and as yet un-audited financial overview, and concluded with an analysis of the 2007/8 budget allocation. Ms Sparg highlighted that a massive 62.2% of the 2005/6 budget was expended on employee compensation. She emphasised that the NPA was faced with a challenge in terms of vacancy rates. She discussed the vacancy rates experienced by each of the NPA’s comprising units, the most significant vacancy rates being experienced in the Witness Protection Unit (WPU), as well as in the Sexual Offences and Community Affairs (SOCA) Unit. Ms Sparg also analysed the NPA’s employment equity objectives and current situation and noted that the NPA needed to work on this. She noted the current recruitment campaigns. She highlighted that technology and development was being invested in this regard, and interview processes were well underway, and appeared to be successful thus far. She noted that the ‘revolving door syndrome’ was the biggest challenge in terms of the NPA’s recruitment campaign. Ms Sparg then touched on the NPA’s labour relations, and also discussed the job evaluation initiative. She also briefly touched on progress with regard loss control and vetting statistics.
The Chairperson asked Ms Sparg to clarify whether the job evaluation initiative was specifically funded and whether Treasury had allocated an amount in this regard.
Ms Sparg responded that the initiative had been underway for three years. Gradually the funding had been increased, but initially the project was ‘force funded’ from internal sources, and also from reprioritisation within the Department of Justice (DOJ). As the initiative had been increasingly prioritised, more funding had become available.
The Chairperson asked what exactly ‘job evaluation’ entailed. She asked whether the process was an entirely objective one, and whether she was correct in understanding it as resulting in a re-definition of the baseline salary.
Ms Sparg stated that the process looked at the person in the specific position, and then also at the importance of the post relative to other posts, taking experience, performance and other such factors into account.
The Chairperson asked whether the NPA had taken this into account in the budget going forward, as such salary levels would have to be maintained. She also asked to what extent the ‘two prosecutors per court’ initiative had been implemented.
Mr Willie Hofmeyr, Head: Special Investigations Unit (SIU), clarified that the creation of the prosecutorial posts was fully funded by Treasury, who had increased the allotment. In terms of internal promotions and salary rises, the balance of the money would be funded from within the NPA’s savings and also supplemented by the DOJ.
The Chairperson responded that the NPA needed to increase its capacity, otherwise it would not get funding from Treasury for next year. She continued that posts could not simply be created at upper levels, but capacity must be increased by making new appointments at ground level.
Mr Hofmeyr stated that, in regional courts, there were already close to two prosecutors per court. The real problem, in terms of capacity, lay in the district courts. The NPA was actively attempting to recruit a ‘pool’ of suitable employees and expertise in order to address this problem. He said that, unfortunately, the most capable and experienced candidates came from within the organisation. He added that inadequate remuneration, coupled with promising jobs in the private sector, was making this problem more difficult.
The Chairperson was anxious that it appeared that the extra capacity supplied by Treasury was being used to supplement the existing salaries and promotion of current employees. She mentioned that this was not desirable, as the whole point of the increase in funding was to augment the real employee capacity of the NPA.
Mr Hofmeyr stated that NPA was keeping the ratio of entry level recruitment to internal promotion at the same levels. He added that the capacity of the NPA was being expanded according to this existing ratio, so no serious imbalances will be forthcoming.
The Chairperson asked that the Unit supply the committee with details regarding appointment, capacity and availability of posts in both the regional and district courts.
Mr Hofmeyr said that this would be done as a matter of urgency, and added that this information was available, as it had been used when the NPA had bid for funding from Treasury.
Mr L Joubert (DA) asked for an explanation on the massive discrepancy between the 96% compensation and 24% prosecution statistics. He also asked the NPA to discuss and provide information on the ‘March spike’ phenomenon. He asked if the money was simply being used because it needed to be spent. He then asked about the ‘revolving door’ phenomenon, and asked whether the vacancies were just being filled because they existed, or if the candidates were placed on merit.
Mr Hofmeyr stated that the March spike was experienced in many government departments. This was mainly due to the fact that the NPA created more positions than Treasury allowed because it anticipated that there would be funds available. Accordingly, these became unfunded priorities. The money from the DOJ came at a later date than anticipated, so all defined expenses were delayed and ‘rolled over.’ The DOJ and NPA did have a joint budgetary committee, and such spikes could be addressed by better prioritisation.
Ms S Camerer (DA) asked about the vacancy rate in the WPU, particularly in light of the investigations around the Head of the WPU. She enquired whether this vacancy rate was the result of a lack of leadership or whether there were more serious underlying issues. She stated that the vacancies in the other units, such as Scorpions and SOCA were also worrying. She wondered if the correct approach was being used, and stated that this might need some reconsideration.
Ms Sparg stated that the WPU vacancies were largely due to the anticipated transfer of the WPU employees from SAPS to the NPA, so these posts had had to be incorporated into the budget. As yet, the transfer had not occurred, so the vacancy rate was not a true indication of actual posts available. She added that the problem of capacity was being addressed, and acknowledged that employee recruitment at lower levels was a challenge. Existing capacity must be used in order to increase capacity further.
Ms Sparg informed the Committee that the State Attorney had advised that the charges laid against senior NPA members had subsequently been withdrawn.
Ms V Meruti (ANC) asked, with regard to the labour relations discussed in the presentation, what the time frames and back logs were. She also enquired as to the procedure with regard to employees implicated in disciplinary proceedings and if they were suspended.
A NPA delegate responded that some of the employees implicated in the more serious offences were criminally charged. In regard to the vacancy rates, these issues were being actively addressed.
The Chairperson mentioned that single-practitioner firms of attorneys were finding it difficult to continue in practice and she suggested that such individuals would be good prosecutors. She emphasized that the NPA should consider this as an option in their recruitment campaigns.
Ms Sparg noted that the Imperial Car case matter was still ongoing. Many other government departments were involved as well. Treasury has instructed the NPA to repay, and this had been accordingly incorporated into the budget.
Sexual Offences and Community Affairs Unit (SOCA), Priority Crimes Litigation Unit (PCLU) and Witness Protection Unit (WPU) Briefing
Dr Silas Ramaite SC, Head National Special Services Division (NSSD), NPA, briefly outlined the role of the respective units, running the presentations on these units concurrently. He emphasized the aims of witness protection in general, and outlined the WPU’s strategic plans and deliverables. Dr Ramaite summarised the performance and achievements of all three units for the 2006/7 year, and also set out the major challenges. Budget and expenditure issues were briefly discussed, and challenge mitigation strategies were outlined. It was concluded that the units, although facing some considerable challenges, were performing adequately and within budgetary constraints.
Ms Mahlawe (ANC) asked as to the remuneration of the officials mentioned in the presentations.
Mr Joubert asked for clarification as to the ‘operational results’ discussed by Dr Ramaite.
Dr Ramaite explained that the differences between convictions and sentences were a result of the ‘roll over’ to the new cycle. He continued that cases on the roll were very different to cases received, and that the acquittals mentioned were self explanatory. He added that the withdrawal rate is very low.
The Chairperson asked, with regard to SOCA, that the delegation explain the differential conviction rate. She asked at what levels the conviction rates were currently operating. She added that the unit needed to take the lessons learnt from the Thuthuzela project and implement them in the regional courts. She emphasised that the biggest issue appeared to be the lack of co-operation between the three spheres of the medical services; courts and the police services. She added that it would be wise to create a forum where all three spheres could communicate and voice their concerns.
Dr Ramaite responded that the NPA was attempting to implement training initiatives to empower various stakeholders. He continued that the SOCA budget increase would mostly be used to enhance capacity.
The Chairperson asked the unit to supply the committee with a report on and a plan for how SOCA would improve the victims’ general experiences through the charges, investigations and courts. She added that the plan must incorporate a strategy that would use the lessons learnt thus far in order to improve facilities and operation in areas that did not have any Thuthuzela facilities.
The meeting was adjourned.