A summary of this committee meeting is not yet available.
JUSTICE AND CONSTITUTIONAL DEVELOPMENT CONSTITUTIONAL COMMITTEE
3 May 2007
SPECIAL INVESTIGATIONS UNIT, ASSET FORFEITURE UNIT, PRIORITY CRIMES LITIGATION UNIT WITNESS PROTECTION UNIT, DIRECTORATE OF SPECIAL OPERATIONS: ANNUAL REPORTS & BUDGETS
Chairperson: Ms F Chohan-Khota (ANC)
Documents handed out:
Special Investigations Unit presentation
Seizing Criminal Assets to fight Crime: Asset Forfeiture Unit presentation
Priority Crimes Litigation Unit Report
Witness Protection Unit Report
Directorate of Special Operations Report (handed out 2 May)
Directorate of Special Operations presentation
Specialised Commercial Crime Unit presentation
Specialised Commercial Crime Unit
Audio Recording of the Meeting
Various units of the National Prosecuting Authority briefed the Committee on their work in 2006 /2007. .
The Special Investigations Unit worked with departments to assist them in implementing better systems to deal effectively with the threats of corruption. The staff and project profiles were tabled and explained. Projects involving the Departments of Social Development, Transport, Housing, Correctional Services and the Special Pensions Fund were detailed. Achievements included savings of R231 million, prevention of future losses of R1.8 billion, and cash recovery of R14 million. A completely clean audit report was achieved. It had excellent relationships with other departments and investigators. Challenges included the need for legislative amendments to deal with litigation, streamlining the proclamation process and coping with rapid growth.
The Asset Forfeiture Unit had largely exceeded its targets. It had placed R760 million under restraint. The Criminal Assets Recovery Account had received payments of about R120 million. Most of the funding was used to fight crime, but other payouts assisted victims of crime. The Unit had obtained 31 judgements and several important principles had been affirmed. Some of the urgent matters were tabled and explained. Because the Unit did not do its own investigations or prosecutions it was vital to establish good relationships.
Questions by members related to the profile of the units, the vacancy rates, how money seized would be used, the reactive nature of the Units' work, the need to establish shelters for domestic violence in Northern Cape, the current situation in regard to Special Pensions, disciplinary hearings against public servants committing fraud, and the need to keep the focus of departments funding the Special Investigations Unit.
The Priority Crimes Litigation Unit described its scope and function. The work of the Missing Persons Task Team was outlined. Prosecutions involving nuclear non proliferation, chemical and biological non proliferation and mercenary activities were tabled and explained. Challenges included the need for adequate and skilled staff, better office space and the need to address delays in Truth and Reconciliation Hearing prosecutions. Security issues were also critical.
The Witness Protection Unit had a supplementary mandate to transform, redesign and modernise and set standards in relation to protection of witnesses and enhancement of criminal justice. It hoped to enhance confidence in the criminal justice system and the programme and to achieve effective administration and financial management, and an integrated law enforcement approach. Protection should be effective as a tool in combating crime. The achievements and performance for the current cycle were tabled. No witnesses were threatened, harmed or assassinated in the past six years and there had been only 3% voluntary walk-offs. The cycle time had dropped. There was a 90% conviction rate for the accused. It currently handled 229 witnesses and 268 related persons.
Questions were asked on the delays in prosecuting the Truth and Reconciliation (TRC) matters, the cost of protecting witnesses, whether the Unit's own staff were protected, the reasons why there would not be prosecutions in the Kalil Rashid matter, destruction of documents relating to disappearances, the reasons for voluntary walk-offs from the protection programme and the role played by South Africa internationally.
The Directorate of Special Operations (Scorpions) targeted criminals who organised and profited from crime. It used a multi disciplinary and success driven approach. Its key activities and impacts were tabled. The conviction rate was above 80%. The value of assets placed under restraint was R550 million. R50 million had been directed to the victims of organised crime. Drugs valued at over R1 billion had been seized over the last year. Explanations and updates were given on some of the major cases being handled. Cybercrime and drug trafficking posed the largest threats. A dedicated administration was set up in October 2006. Challenges included the need to increase effectiveness in investigating and prosecuting organised crime, the need to work on creating jurisprudence on the Prevention of Organised Crime Act, and also to create law around the Monitoring Act. There was a need to match job demand with expertise and to fill 825 posts in the financial year. The Directorate was currently standardising best practice and would be writing a practice manual, investigating appointing internal Counsel, setting research-based measurement indicators and establishing a training academy.
The Committee expressed its concerns with the insinuations that the Directorate was unable to prosecute senior politicians, which undermined the integrity of the Directorate, and enquired as to any undue pressure. Further concerns were expressed at the focus on high profile cases, stressing the need also to prioritise low profile cases. Clarification was sought on single-line jurisdiction, treatment of victims of crime, developments in the LeisureNet and Kebble matters, and in the Criminal Laws (Sexual Offences) Amendment Bill and Child Justice Bill.
Special Investigations Unit (SIU) Briefing
Mr Willie Hofmeyr, Head, Special Investigations Unit, outlined the mandate and functions of the SIU, which was set up to investigate corruption and maladministration, not necessarily involving criminal offences. The primary purpose was to enable the State to recover money lost because of unlawful action. It was important both to address any direct financial loss, and to amend the systems to prevent future losses. SIU was increasingly involved in working with departments to assist them in implementing better systems. Dealing effectively with corruption was vital for departments, which faced combined threats of fraud, corruption and maladministration extending across several different areas. This varied from opportunistic corruption or more organised exploitation of systemic gaps. Often the problems were detected only when there was an escalating loss. This was further compounded by the large number of different role players.
Effective steps to dealing with corruption therefore required integrated solutions, including forensic investigations, litigation, systemic improvements and removing corrupt officials. The SIU mandate allowed for integrated forensic solutions but it would also use other institutions.
One of the key challenges was to build sufficient capacity to deal with fraud, corruption and maladministration. There was still outsourcing to the private sector, but there was increased recognition that SIU could ensure effective action, and delivered value for money. This was reflected in a significant increase in the budget from National Treasury (NT). The budget for the current year stood at R139.7 million. An important driver had been the money received from departments who paid the SIU to conduct the investigations, and this was currently budgeted for R84.2 million. During the following three years the trend would be reversed as SIU should not become too dependent on this funding. The budget would rise to R270 million by 2009/10.
The focus of the SIU had been to increase the number of people available to deal with investigations, and staff currently stood at 550. SIU had also expanded to have an effective national presence, other than in Northern Cape and North West Province.
Mr Faiek Davids, Deputy Head, SIU, presented the project profile of the SIU, noting that it had expanded significantly. Many investigations commenced on request of a particular department and across a broad range of fraudulent activity. The investigations ranged from isolated and focused fraud to widespread systemic fraud. Provincial departments would also ask SIU to deal with corruption matters. At present there were 88 investigations ongoing, ranging from one that could take only a few months to a major investigation involving 200 investigators that could take three years or more. There were 14 proclaimed investigations, which would require accessing of special powers. Forty were regionally based. They involved 19 departments.
Service level agreements had recently been completed with the North West Province, in terms of which a steering committee would be established to screen all forensic investigations. This was a model finding favour also in other provinces.
Mr Davids then tabled a number of the projects. The investigation into the Department of Social Development was still the largest investigation, having commenced in 2005. SIU had recommended that over 21 000 public servants, who were receiving grants illegally, should be removed from the grant system. Around 60 000 irregular beneficiaries had been identified and a further 500 000 might require audit. Cash recoveries amounted to R26 million, actual savings to R213 million, and preventative savings to R1.8 billion. 4 677 disciplinary hearings were prepared, and 2 215 of the 2 675 prosecutions had resulted in convictions.
The investigations had raised awareness of the problem, and this in turn led to strong deterrence. It was important that SIU had been able to identify systemic gaps and the Department had been quick to correct them.
SIU was also investigating the Department of Transport. Over 30 000 non-compliant licences had been identified. 55 Driving Licence Testing Centres (DLTCs) had been audited. A number of forged foreign conversions had also been identified. Challenges included systems and process gaps at the driving licence centres, accessing information on foreign licenses and the cumbersome process of cancellations.
The Special Pensions Fund investigation focused on unlawful payment of special pensions to disentitled beneficiaries and the conduct of some board members that may have contributed to the problem. SIU was currently auditing all beneficiaries. Challenges here included lack of compliance with the provisions of the Special Pensions Act, political sensitivity and concerns over integrity of officials.
The ongoing investigation into the Department of Correctional Services had focused in the past on medical aid. The current focus was on procurement matters, pharmacy procurement and asset management. Seventeen matters with a cumulative value of around R1.1 billion were being investigated. SIU had achieved recovery of R6.9 million in one matter, five criminal referrals for collusion, and thirteen systemic recommendations had been made. SIU still required a new and wider proclamation over the investigation. Procurement was time consuming and complex and access to information was difficult.
SIU was also focusing on subsidy fraud in the Department of Housing. The Minister had asked for expansion into a national investigation. The focus areas would include abuse of the housing subsidy system, the non-delivery on contracts, conveyancing fraud and conduct by officials. The Department of Housing was funding 50 staff to investigate and SIU was funding 21 staff.
Mr Davids tabled and highlighted some of the high level achievements. The savings had been R231 million, and prevention of future loss amounted to R1.8 billion. Cash recoveries were at R14 million. The target for 2007/08 was R2.2 billion.
Mr Davids was pleased to announce that SIU had achieved a completely clean Auditor General's report, and a strong management chain assured the objectives. The Organisational Development process had started late in 2006. The project profile had expanded significantly, so it was important to build a unit more responsive to the different forensic challenges. Implementation of the targets would commence in June.
Mr Hofmeyr detailed the overall challenges. SIU had achieved rapid growth and had taken responsibility to ensure that all matters, although perhaps not strictly in the mandate, were taken forward. It had been successful in achieving good relationships with the National Prosecuting Authority (NPA) and the South African Police Service (SAPS). The SIU might require some assistance from this Committee with the Special Pensions Investigation as there were political sensitivities, and Mr Hofmeyr asked that any problems and complaints to be referred back to the SIU. Because of the huge scale of the Social Grants Investigation around R1 million social grants might be removed. There had been the need to make some tough decisions and there were difficulties in recovering the cash from those who had received grants illegally. The process of recovery took substantial time and resources, and so SIU had had to make their priority rather to get people off the payment system, and only then to try to recover the cash.
SIU would be needing legislative amendments to deal with litigation issues. The proclamation process was still cumbersome and time consuming, and it could take six months to acquire a signed proclamation. The requirements for the Premier to sign a letter of consent for provincial investigations gave rise to many delays. SIU was investigating other possibilities.
Mr Hofmeyr concluded that SIU had had a good year and had achieved good successes while coping with the challenges of rapid growth. It had managed to lay the foundation for a more effective and larger SIU in future.
Asset Forfeiture Unit (AFU) Briefing
Mr Willie Hofmeyr, Head, AFU, stated that the Asset Forfeiture Unit had two overall objectives; to increase the volume of cases, and to do test cases and create legal precedents that allowed for the effective use of the law. It was important to get binding appeal court judgments to determine what the law meant.
The AFU had exceeded its targets over the last couple of years. In the last year it had taken on 253 new cases, and had completed 243 cases. Monetary seizures in this year resulted in R760 million being placed under restraint. The value of completed cases was slightly below target. Targets had not been met to pay funds into the Criminal Assets Recovery Account (CARA), largely due to the application for leave to appeal in the Schaik matter.
One of the most important ongoing matters was the David King case, where the scale of litigation was huge, involving England, Wales, Guernsey and South Africa. Mr King had publicly declared his intention to drag out the case for the next ten years, and perhaps a mechanism needed to be found to try to get litigation ancillary to the criminal trial to be heard in the same forum. There did not seem to be an easy answer to the delays under the current system. Further important matters were the Delport matter, involving Revenue Services and customs fraud of about R350 million, where R80 million had been placed under restraint, the largest figure so far in the AFU's history. The Schaik case was ongoing.
The Criminal Assets Recovery Account (CARA) had received payments of about R120 million, and around R47 million could be paid out in the year. Most of the funds were used to fight crime, but other payouts assisted victims of crime.
In terms of developing the law, AFU had obtained 31 judgments in the High Court, which probably reflected the fact that the law was becoming more settled. There were two Constitutional Court judgments and four in the Supreme Court of Appeal 81% of the cases had been successful. Mr Hofmeyr clarified that the litigation often went to ancillary issues. Overall the success rate in Supreme Court of Appeal was 67%. About 203 judgments had been given to date. There had been a significant change of attitude in the courts in the last four years and AFU had won far more cases, as the law became more settled and more effective. Both the Constitutional Court and the Supreme Court of Appeal had affirmed several important principles.
The important judgments in the last year were tabled and the main principles established in each case were explained. There was still no definition of organised crime, and the Mohunram case might still cause difficulties. Other principles had been more clearly established.
Mr Hofmeyr noted that the SIU did not do its own investigations or prosecutions and it was therefore key to establish good relationships with other bodies. Around 90% of cases, representing about 30% of cases, emanated from SAPS and about 8%, representing 67% of value, from the Department of Special Operations (DSO/Scorpions). Other investigations had emanated from SARS, direct referrals from prosecutors in the National Prosecution Service (NPS), the Reserve Bank, Marine and Coastal Management and the Financial Intelligence Centre.
Challenges included the need to expand capacity sufficiently to deal with all the cases currently in court.
The budget would need to be expanded almost eight-fold.
Mr L Joubert (DA) commented that the report was encouraging. He asked about the profile of the SIU.
Mr Hofmeyr said that vacancies were a problem, but not so much as in other units of the National Prosecuting Authority because departments would pay for funding of investigations. Finding the right skills was a challenge. About 90% of staff were investigators and others included lawyers, accountants and analysts. SIU tried not to recruit too much from other law enforcement agencies. There was an ambitious training programme that would be training 120 trainees. SIU had managed to find a mechanism to speed up the process of recruitment, although this was still time consuming.
The Chairperson pointed out that one of SIU's focus areas was to train people in other departments and she asked for further details on this.
Mr Hofmeyr confirmed that SIU would, during the course of investigation, be able to isolate lack of systems and skills. Part of Operation Consolidate was to work with dysfunctional municipalities to train their staff and ensure that they could do the jobs properly.
Mr Joubert asked for an explanation on how the money would be used in asset seizure, as in the last year R345 million had been seized but only about R20 million had gone to CARA.
Mr Hofmeyr explained that assets were first frozen, and then later forfeited. Many of the large cases were heavily litigated for years. About 1 100 cases had been initiated and about 800 finalised, but R700 million were assets frozen this year, which may only be forfeited years down the line. Around 550 million had been acquired. The court could order direct payments to victims, and the balance would then go to CARA. Around R120 million had been paid over to CARA this year. Other money was in the pipeline but there were processes still to be followed before that would end up in CARA.
Imam G Solomon (ANC) congratulated the Unit on its successes. He noted that the future savings were also past losses to the Government. He noted that many matters had only reached SIU when the corruption and fraud was deeply entrenched, so that there had already been significant losses. He asked whether SIU was allowed to monitor or have spot checks over certain programmes where there was potential for large-scale corruption.
Mr Hofmeyr agreed that there were often huge losses in the past and SIU tried to help with them. Its role at the moment was mainly reactive. Where there were cooperation agreements with Departments, a more proactive role could be played and it was possible to see where high risk areas lay. It had also spoken pro-actively to certain departments where SIU had a sense that there was a problem but it could not force departments to agree. The monitoring role was more for the Auditor General (AG) to undertake. SIU was interested in firming up the relationship between AG, the Standing Committee on Public Accounts (SCOPA) and other law enforcement bodies.
Imam Solomon commented that there were no shelters for domestic violence in the Northern Cape.
Mr Hofmeyr noted that Thutuzela centres were budgeted for in the next few years in these areas.
Mr J Sibanyone (ANC) asked whether the loopholes in the Department of Transport had yet been closed.
Mr Davids replied that in four key areas there were constraints to service delivery, involving insufficient skills, resources and infrastructure problems, and methods and procedures creating a blockage in the system. SIU had recommended that minimum requirements should be established at 55 centres, and those centres not complying should be reviewed and their licence to operate reassessed. Some of the DLTCs would be investigated in the next few months. The MEC for Transport in Western Cape was keen to pilot a process to look at blockages and change the processes. This would be a useful pilot to assess over the next few months.
Mr Hofmeyr added that the National Department of Transport could make guidelines but did not have operational control as provinces or municipalities ran the centres. The National Department could only close centres down as an ultimate sanction, but had no capacity to enforce best practice.
Mr Sibanyone asked for an indication of the current situation in relation to special pensions. He asked whether the delays that had given rise to complaints were linked to the comments on the frauds.
Mr Hofmeyr said that the Board was currently being very cautious. 8 000 applications were submitted in December, just before the cut off date, and although these might have been legitimate claims that had somehow not been lodged in the last ten years, there were suspicions that many could be fraudulent. It was known that criminal syndicates were in possession of party stamps to endorse the applications. This was not directly the issue of SIU, but Special Pensions had asked for help with the initial screening.
Mr Davids added that because of the strict criteria many of the applications had not initially complied but SIU was not necessarily aware of widespread delays. He mentioned that there was provision under Section 7 that an application previously turned down could be re-submitted if new evidence came to light. However, in resubmissions it frequently happened that the new evidence differed radically from that supporting the original request. Since the Special Pensions could involve one off cash payments of up to R1 million rand, the Special Pensions administration was cautious that all information must be thoroughly verified.
Mr L Landers (ANC) referred to the people who had fraudulently received benefits being removed from the system, as asked whether they were also removed from office as public servants. He asked if the SIU was satisfied with the outcome of the disciplinary hearings. He felt it was undesirable to have public servants who had been convicted of fraud to be permitted still to stay in office and earn salaries, or to be re-employed as public servants in other departments.
Mr Hofmeyr said that departments were assisted with the disciplinary enquiry and investigators from the SIU could give evidence, and had also provided help in training presiding officers. However the Bargaining Council agreement required the departments to do the prosecution themselves, and not to import prosecutors or presiding officers. Removing incorrect grants and payments from the systems was of concern to many departments. Social grants were a major issue and the numbers were huge. Around 20 000 civil servants could face civil proceedings. Mr Hofmeyr stressed that not all cases involved fraud. Many people had initially been entitled to a grant but subsequently became employed, and may not have been aware that they should have been removed from the system. There were a number of grey areas. The scale of the problems and the need to establish uniform principles had slowed the investigation.
The Chairperson noted that government was committed to fighting corruption and the presence of the SIU in itself was an important element of its success. The real success would be when correct systems were in pace when SIU completed its work in departments. She suggested that during the next report it would be useful for SIU to highlight exiting policies, to note what had been monitored over the last few years, and to state whether it had found recurrences of the same issues, or development of other matters.
The Chairperson expressed her concern that pre investigations should maintain the same elements of cooperation. It was important not to undermine the good relationships and profile of the SIU.
The Chairperson also noted that SIU had stated that it relied on project funding from departments, and would like to reduce that reliance. She commented that the fact of departments putting money or resources into investigations was an indication that they were committed to taking matters seriously, and commented that if they were not to pay there was a danger that they might lose focus and commitment. She hoped that discussions with Treasury would bear this in mind. Finally she congratulated the SIU on its completely clean Auditor General's report
Priority Crimes Litigation Unit (PCLU) Briefing
Dr Silas Ramaite, Deputy National Director of Public Prosecutions, NPA reported that the PCLU was established in 2003 by Presidential Proclamation. It was not an investigative unit but relied for its investigations on SAPS and DSO. It gave guidance to investigators in the drafting of legal processes. Its cases were very complex and would not succeed without a multi disciplinary approach. It was actively involved with numerous stakeholders and mutual legal assistance and extradition. It engaged in proposing legislative amendments, conducted legal research and furnished legal opinions and provided assistance to directors of public prosecutions. The Missing Persons Task Team was established to investigate disappearances between the 1960s and 1996. It was aligned with the Ministry of Justice's Truth and Reconciliation Commission (TRC) unit. Its strategic focus areas were investigative capacity, prosecution efficiency, engagement with stakeholders and research and training. It was intended to be a short-term process.
The prosecutions relating to nuclear non-proliferation, and chemical and biological non-proliferation were tabled and explained. Further cases involved mercenary activities. The Unit had also attended a conference on counter terrorism in Namibia. Assistance had been provided to the Czech Republic relating to international arms smuggling, and another involving export of military vehicles to conflict regions in Africa. Matters investigated under the Statute of Rome were tabled and explained. Other matters involved civil litigation, and assistance to a foreign law enforcement agency on human trafficking. Research had been done and opinions had been given to the Director of Public Prosecutions, and there had been follow up on the TRC prosecutions. A number of exhumations had been carried out.
Major challenges included the need for adequate staff to attend to all cases, inadequate office space, and delays with TRC prosecutions. The PCLU was a small unit consisting of around six advocates. Staff challenges included the poaching away of highly experienced prosecutors. Security issues were critical. Challenges still existed in respect to missing persons outside South Africa, and some cases had not been referred to the TRC. The Unit was operating effectively, however, within the budgetary constraints, and was able to given attention to its work and to prioritise where necessary.
Witness Protection Unit (WPU) Briefing
Dr Silas Ramaite, Deputy National Director, Public Prosecutions reported that the Witness Protection Unit was mandated to act under the Witness Protection Act. Its supplementary mandate was to transform, redesign and modernise and set standards in relation to protection of witnesses and enhancement of criminal justice.
The detailed role of the WPU was tabled but not discussed. Dr Ramaite reported that the strategic direction was to transform, redesign and modernise witness protection. Weaknesses in the past that led to endangering of witnesses had been corrected. The Unit planned to enhance confidence. In the criminal justice system and the programme and to achieve effective administration and financial management, and an integrated law enforcement approach. The protection should be effective as a tool in combating crime. It also sought to reduce witness grievances, to reduce the numbers of witnesses leaving the programme, and to reduce the cycle times. The achievements and performance for the current cycle were tabled. There had been increased confidence in witness protection, and it was clear that witness protection had ensured the successful arrest, prosecution and conviction of a number of accused persons. WPU was setting the best world standards in the redesigning process and was acclaimed for its operating model as well as its forms.
Dr Ramaite noted that no witnesses were threatened, harmed or assassinated in the past six years. There had been significant reduction of grievances and there had been only 3% voluntary walk-offs. The cycle time had dropped to two years due to phasing in of the After-care and resettlement strategy. There was a 90% conviction rate for those accused.
WPU had achieved clean audit reports over the past five years from the AG. Its protection was acknowledged as an effective tool and assistance had been given to a number of other African countries. There was a close relationship with the International Criminal Court. WPU had a high level of training in cooperation with Justice College, and played a major role in developing international best practice guidelines. Advanced training on Witness Protection was offered by Free State University.
The total number of persons on the programme was 229 witnesses and 268 related persons. The challenges were included in the presentation slides, but were not discussed.
Mr Joubert asked what was causing the delay in prosecutions of the TRC and when these might be finalised.
Adv Anton Ackermann, Special Director: NPA, replied that in October 1998 the TRC had recommended prosecutions. A Human Rights division was established in the NPA to evaluate the cases and to prosecute. When the DSO was created in January 2001 the Human Rights Division was disbanded, and its work was transferred to the DSO. Adv Ackermann, when joining the NPA, was given a mandate in March 2003 to declare priority crimes. All 400 TRC prosecutions had been immediately declared as priority crimes. In April 2003 the President had stated that there would be no further amnesty processes, and ruled that prosecutions would be instituted and that a number of agencies must assist in the prosecutions. Adv Ackermann personally declined to prosecute 92 cases. Sixteen were identified for investigation and potential prosecution. On 9 November 2004 Adv Ackermann was stopped when trying to arrest three security policemen and charge them with poisoning of identified people. Dr Ramaite had instructed him not to proceed with the arrest, but rather to formulate guidelines how prosecutions should be conducted. This formulation took two years. In early 2006 the guidelines were approved. They did not make provision for a committee, but stated that in the execution of the prosecution duties other agencies must assist. A Task Team was established, and a number of meetings were held. Adv Ackermann commented that it was unfortunate that to date no meaningful results had been achieved from these meetings. The Annual Report of 2006 also noted on page 4 that not much had been achieved, despite all the attempts to take this matter forward. He maintained that the PCLU was not the cause of the delays and he suggested that perhaps the National Director of Public Prosecutions should comment further.
Adv Vusi Pikoli, National Director of Public Prosecutions, added that this was a politically sensitive issue. The legal processes must solve the problem. Whenever there was an attempt to charge members of the former Police Services there was political intervention, and effectively the NPA was being held to ransom by the former generals. On the other side the families of the victims were pressing for prosecution. The guidelines were not universally accepted and some NGOs, including Legal Resources Centre, wished to challenge the constitutionality of the guidelines. There were ongoing discussions as to how best to proceed. The President, in addressing parliament, indicated clearly that the matters would be dealt with, and so this was an ongoing matter.
The Chairperson stated that she was aware of some efforts from the Department of Justice. She asked that Adv Pikoli provide the Committee with a full report on the events to date in writing, so that the Committee could try to assist as this clearly went beyond just the one case cited by Adv. Ackermann. It was undesirable that these problems should still be delaying matters.
Mr Joubert asked about the cost of protecting witnesses.
Mr Dawood Adam, Head, Witness Protection Unit, commented that witness protection was expensive. Each programme must be measured on its own merits and circumstances and different factors would impact. The cost of one witness being protected over a year had amounted to R145 000. The cost of protecting the Boeremag witnesses, without taking accommodation into account, had been in excess of R5 million. Factors taken into consideration could include salary replacement. Another case had required protection for 23 witnesses, involving accommodation in three safe houses.
Imam Solomon noted that the security seemed to focus only on the witnesses being protected and asked if protection was also given to officials of the NPA who were responsible for this Unit.
Mr Adam replied that unfortunately South Africa was not yet geared to protection of officials. International best practice and guidelines had suggested that corporate identity documents should be provided. Security was a challenge but certain matters were under discussion to ensure that the covert status of the unit was maintained.
Mr Landers asked why the DPP had declined to prosecute in the Kalil Rashid matter.
Adv Ackermann responded that this was because the full High Court bench had ruled that the deportation was legal. He had studied the documents carefully and the matter had been discussed with the International Criminal Court, including the implications of the Rome Statute. This was not necessarily done in every deportation matter, but now that the Court had ruled on the matter it was closed.
Mr Landers asked which departments had been problematic in assisting with the prosecution of TRC cases. He also commented that destruction of documents by SAPS, Municipalities, magistrates' courts and municipalities in regard to missing persons should be sanctioned.
Adv Ackermann responded that all inquest dockets were to be destroyed after a certain time, and the destruction was following this principle. However, there had been a circular issued in 1994 to try to halt the destruction of evidence.
The Chairperson asked for specific information on problematic cases to be forwarded to the Committee, so that it could try to assist.
Adv C Johnson (ANC) asked why the voluntary walk-offs were happening and what was being done to prevent them.
Imam Solomon noted that the witnesses would be from diverse cultural and social backgrounds, and this made it important for the Unit to take cognisance of their special circumstances. He asked if the walk-offs had arisen as a result of the difficulties in culture.
Mr Adam responded that around 80% of witnesses related to protection under section 204. Some had come into the programme but had changed their mind after giving statements, and disappeared. Some of the walk offs resulted from individuals being traumatised by and not able to cope with removal from all support services. He agreed that there were diversity and cultural issues but every attempt was made to try to keep the witnesses in the programme. Where the witnesses failed to keep to the terms of the programme, the appropriate steps were taken.
Adv Johnson asked if support was being given to TRC victims and families in going though the prosecutions.
Mr Adam replied that various NGOs were assisting with support to families.
Adv Johnson asked for what was happening in Rwanda.
Adv Ackermann replied that he had written an opinion on the matter and had expressed the view that it was not possible to prosecute in South Africa.
Imam Solomon noted that the achievements listed included cooperation to Netherlands, Germany and United Kingdom. He asked for specifics of what assistance was given.
Dr Ramaite said that South Africa had been instrumental in drafting guidelines, and stated that Europol relied on South Africa to assist in Africa in terms of legislation, operational models and training standards. South Africa was developing the PCLU to keep pace with the metamorphosis of organised crime, and would continuously monitor this. It had given support to Kenya, Mozambique, Angola and Namibia, and would be addressing them on how to correctly establish a unit.
The Chairperson asked that all investigations pending must be concluded expeditiously, which would be in the best interests of all concerned.
Directorate of Special Operations (DSO / Scorpions): Briefing
Advocate Leonard McCarthy, Head, Scorpions, stated that this had been a year of averages, balance and learning. The DSO was intended to target criminals who organised and profited from crime. It used a multi disciplinary and success driven approach to deal with cases more effectively. The strategy was to mark down the impact of, and to drive up the disruptive effect on organised crime.
The key activities and impacts were tabled. Adv McCarthy noted that the conviction rate was above 80%. The value of assets placed under restraint was R550 million, and there were 41 cases, from which R64 million was destined for CARA. DSO had directed R50 million to the victims of organised crime. Drugs valued at over R1 billion had been seized over the last year. A comparative performance analysis was given over the last three years. Although the number of investigations had dropped, the conviction rate had been firm and assets under restraint had risen. 20% of cases finalised involved plea-bargaining, about 20% were medium-rated and the rest were massive cases. That must be borne in mind when measuring the statistics. The Fidentia case should not have been allowed to happen; it showed a lack of checks and balances in the system. The Schaik and Yengeni appeals were major successes as they endorsed the strategy of the investigations.
In relation to the travel fraud, 37 of the 40 Members of Parliament had pleaded guilty. One charge had been withdrawn for humanitarian reasons and the other two were facing charges in the Regional Court. Adv McCarthy stated that there had been rumours of involvement of 250 people, but the lists referred to only outlined the transactions used as part of the bigger investigations and did not pinpoint the transactions. There had been complaints by some that the Executive had been given a clean bill of health. Thorough investigations had been done and insufficient evidence was available to warrant prosecutions. He asked that the prosecutors now be given a proper chance to do their work.
Adv McCarthy detailed some of the matters currently being handled by DSO. Mr Rautenbach was a fugitive of justice. The DSO was ready to prosecute on numerous charges and had applied for his extradition. The NDLC investigation had shown how an intricate web of corruption involving seven countries could be created. This matter was still to be decided. In the Shaik cases none of the benefits or loans were reflected in local or foreign tax or disclosure records, and this was important as around the world prosecuting authorities were focusing more on disclosure records. In the Yield case, the prosecutors had been asked to write a report on how they had worked with mutual legal assistance, and to detail the excellent cooperation. The drug cases illustrated that the major drug dealers were outside South Africa, and that drug trafficking was the biggest organised crime threat in South Africa and around the world. Cyber crime was another huge threat, as evidenced by the recent scam targeting bank customers, which resulted in around 25% of all bank clients being persuaded to give their details to an international syndicate. The challenge for law enforcement was to use technology to trace the physical location of criminals. The DSO had managed to give measurable results. Details were also given in brief of the Kebble matter.
Adv McCarthy noted that several national and international partnerships and agreements were also in place. It was impossible for DSO to make impact unless it had sound relations with international agencies. The internal business was tabled. There were currently 475 staff, of which 121 were unfunded until last year. 142 positions were created on 20 November, and the challenge would now lie in filling those positions. 825 positions should be filled by the end of the financial year. Details were given of the gender and racial breakdown.
A dedicated administration for DSO was set up on 26 October 2006. Treasury had approved a separate bank account and estimate of national expenditure for DSO funds. The main spending drivers were compensation, goods and services and capital assets. 30% of the goods and services budget was spent on professional services, which basically involved forensic companies and lawyers. This was rather high but necessary in light of the capacity constraints. 40 staff had been lost during the course of the last year, and 36 new staff appointed, and the turnover of 8% was well within the norms.
Challenges included the need to increase effectiveness in investigating and prosecuting organised crime, the need to work on creating jurisprudence on the Prevention of Organised Crime Act, and also to create law around the Monitoring Act. Not enough had yet been done to maximise international assistance. A major challenge would lie in matching job demand with expertise. Some of the solutions proposed included standardisation of best practice and writing a practice manual. DSO would like to set up its own internal Counsel capacity. Agent evidence, drug smuggling, racketeering and trials had been successfully worked on in the last year. DSO hoped to be able to set research based impact measurement indicators. Adv McCarthy noted that the decision by Cabinet was in the process of implementation, and he hoped that there would be a single line of command and the jurisdictional sanctity of Chapter 5 should be retained. The new posts would be filled, and DSO would be establishing a training academy.
Mr Joubert asked out why DSO had chosen the name Red Cross for the drug-finding operation.
Adv McCarthy replied that there was no special significance to the name Red Cross and investigators would often deliberately choose a name that was totally unrelated to the subject matter to preserve confidentiality. This particular name came about as DSO wanted the people involved in drug trafficking to feel the effects of their actions.
Adv Johnson referred to the newly created 146 posts and asked if these posts added to the civil litigation establishment.
Mr Adrian Mopp, Regional Head, DSO, replied that the civil litigation would be accommodated under the 142 posts, and also under the 158 posts especially earmarked for this purpose.
Mr Joubert was curious as to how Mr Kebble had operated and achieved what he had done before the investigations.
Mr Mopp replied that the trial results were still awaited. He noted that so far three main points could thus far be isolated; the use of false brokerage notes, how boardroom corruption could be constructed and lastly the lack of due diligence in certain areas of the corporate world in South Africa. He added that a workshop audit had revealed tremendous vigour and positive attitude in the DSO, which was clearly maturing well.
Imam Solomon asked the DSO to further explain the meaning of the single line of jurisdiction.
Mr Mopp replied that he did not want to pre-empt the position but presently the operational decisions were taken under one line of command. This was a model that the world was adopting so the view in the DSO was supporting of this model.
Imam Solomon noted that the mandate of the DSO appeared to target the high profile cases. He did not agree with this approach since this implied that the problems of people in the communities were being marginalised. He said that there were significant problems with gangs in townships.
The Chairperson agreed that gangs in townships were not receiving sufficient profile or attention. She was of the opinion that these should be prioritised as this would enable politicians to discuss the issues in an effort to better life for all people. Most importantly this would show that the institutions created by government were not only for high profile issues but also for those in the street.
Adv McCarthy replied that DSO realised that in the Western Cape it had not yet come to grips with the management of organized crime but it had established and was trying to work in clusters that complemented the work being done. DSO did acknowledge that it had neglected a certain segment of the market and would address the gap. He further said that the point Mr Solomon had raised was taken to heart. This was work in progress and the next time DSO appeared before the Committee it should have some progress regarding the lower level offences.
Imam Solomon asked if DSO policy towards victims of crimes matched the SIU policy of funding organisations that gave victim support.
Mr Mopp replied that DSO did not fund organisations, but would instead get an order for compensation under section 300 of the Criminal Procedure Act, and the money went to the victims.
The Chairperson remarked that she was aware that there was an appeal pending in the LeisureNet issue, and asked for details.
Adv McCarthy replied that this matter was not finalised. He could confirm that application had been made for leave to appeal, which had been granted, and the appeal would proceed on both conviction and sentence. However, the judge in the court a quo was still charged with an enquiry from the original matter. The DSO would consider its position and was currently preparing on questions of law, which it would request the Supreme Court to resolve, including money laundering charges, as well as the sentencing issues.
Mr Mopp added that the legal and operational grounds indicated that DSO would be perfectly entitled to call for an increase in the sentence.
The Chairperson remarked that she was well aware of the comments about the ‘Travelgate’ incident but expressed her disquiet at the insinuations that those high up in the ANC echelons were immune to prosecution and would not be pursued. She asked DSO whether the Directorate or any of the prosecutors were facing any pressure. She remarked that this was an ideal forum to air any grievances or note anything untoward as the Committee would not protect any party. If DSO was unable to prosecute, it would greatly undermine the integrity of the DSO, which it had painstakingly worked to achieve.
Adv McCarthy replied it would be useful to have an independent observer to write up how DSO functioned. He said that the idea that he could influence all 500 people in the department was entirely ludicrous. There had been no pressure applied. He had allocated some of the best people on the ‘Travelgate’ case and he himself had applied extra effort to it because of its great sensitivity, as it involved members of the executive. He added that he had applied his twenty years of legal experience and had himself interviewed some of executive members in terms of the Section 28 of the NPA Act. Parliament at first was squeamish, but in the end was co-operative, to the extent that he had been informed that in most countries in Europe this type of matter would never have been allowed to proceed to this advanced stage. The tenacious personalities of the team, the time, and money invested meant that NPA would not stop short of prosecuting a high-level person simply because pressure had been exerted on the NPA. Anyone making insinuations that there was further evidence, or that certain people were being protected must bring this evidence forward. The matter would proceed in court, and he hoped that no delaying tactics would be used in the trial process.
Adv Pikoli added that soon after his own appointment he realised the importance of the integrity of the DSO, and how even small media stories could attack this integrity. One story implied that Adv Pikoli was discussing the Jacob Zuma matter with the President and had been seen in whispered consultation with him. On that very day Adv Pikoli was in fact en route to Chile. The NPA would not be influenced by anyone and any members, irrespective of their status in the ruling party or any party, would be dealt with according to the law.
The Chairperson remarked that the Committee’s function was to hold the NPA accountable, and where information was not satisfactory the Committee would levy criticism with a view to building and guiding NPA. All Members had a keen interest in the issues being discussed. The Committee wished it could interact with the units more.
Adv Pikoli asked about the progress of the Criminal Laws (Sexual Offences) Amendment Bill, which was of particular importance since the current definition of rape was problematic.
The Chairperson replied that the Committee had prioritised this Bill, but there had been a problem in relation to tagging, which was currently under review. The South African Law Reform Commission was working on legalising prostitution and there was evidence that there was a direct link between trafficking and prostitution. She was not impressed by the substantial funding to organisations who should propose how to legalise sex workers, without making a link already to the trafficking issue. The models applied by other countries in legalizing sex workers could prove extremely useful tools and this would allow the funding to be used for other related issues.
Adv Pikoli asked on the progress of the Child Justice Bill.
The Chairperson replied that the problem with this Bill lay in implementation. There was lack of capacity in terms of the social workers needed. The Department of Justice did not have a problem but the Departments of Correctional Services and Social Development were facing resource problems. She emphasised that it was not desirable to have a piece of legislation passed if it could not be implemented practically.
The meeting was adjourned.