Special Investigating Unit &the National Prosecuting Authority briefing

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Justice and Correctional Services

19 February 2008
Chairperson: Mr Y Carrim (ANC)
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Meeting Summary

Due to time constraints the Special Investigating Unit (SIU) and the National Prosecuting Authority (NPA) delivered their reports briefly, while only two operational units of the NPA, namely the Asset Forfeiture Unit (AFU) and the Sexual Offences and Community Affairs (SOCA) Unit, were asked to give a brief overview of their work. The remainder of the units would present to the Committee the following week.

The Special Investigating Unit appealed to the Committee to assist with prioritising legislative amendments, which would have an impact on their work. The Committee indicated that this would be difficult since the Parliamentary programme was already full. The National Prosecuting Authority explained to the Committee that they were working under morale-draining circumstances, as they were under constant attack by the media. The Committee pledged their support to the organization, but added that they were partly responsible for their own problems, as they had been unable to prevent the leaks coming from within the organisation itself. The Asset Forfeiture Unit indicated that it too may wish to suggest legislative amendments to give greater clarity. A short motivation would be written to the Committee, which could be included in the Committee’s report.

Members raised queries around the structure and functioning of the Special Investigation Unit (SIU), why the legislation was taking so long to reach the committee, the recovery of funds from fraudulent employees of departments, the driving test centre corruption, and sustainability of success rates. They also queried the current investigations of the Witness Protection Programme Head, and whether the Scorpions could usefully be incorporated into this Unit. Members praised the good work of the National Prosecuting Authority, queried the drain on prosecuting staff, service delivery at the maintenance courts, the roll out of the Thuthuzela Centres and the communication programmes. The Committee indicated that it would be investigating court performance. The low morale was discussed, and the issue of leaks by the NPA itself investigated. The Asset Forfeiture Unit was asked to expand upon the implications of its work with the SIU and the Scorpions, and the payment of amounts to the Criminal Asset Recovery Fund.

Meeting report

Special Investigating Unit (SIU) Briefing
Mr Willie Hofmeyr, Head of the Special Investigating Unit, read through the presentation. He summarised that the SIU was an independent statutory body established by the President, tasked with conducting investigations at his request. It reported directly to the President and parliament and essentially was concerned with investigating fraud, corruption or maladministration within government departments. It was not a part of the SA Police Service (SAPS), the National Prosecuting Authority (NPA), Directorate of Special Operations (DSO) or the Asset Forfeiture Unit (AFU).

The seven strategic objectives were set out. All these supported the organisational values of integrity, cooperation, effectiveness, drive and professionalism.

Mr Hofmeyr summarised the role of the SIU, (see attached document) and noted that it acted similarly to a commission of enquiry. He indicated what made the SIU different but stressed also that it worked with other agencies when encountering criminal conduct.

Mr Hofmeyr summarised financial information around the SIU. He noted that over the past four years client departments had funded most of the growth. There had also been a substantial increase in the Treasury allocation, indicative of its emerging role as preferred forensic investigator for the State.

Mr Hofmeyr then set out the project profile, and set out the major project successes for the period April to December 2007. He noted that procurement investigations had been undertaken and that the range of investigations covered
fraud (cover-quoting, BEE fronting, other fraudulent misrepresentations), breach of contract and corruption. Challenges included the fact that procurement investigations were complex and time consuming, and that sufficient capacity was required to deal with the volume of investigations referred.

The SIU had offices in seven provinces and twelve regionally based investigations. The key achievements in four provinces over the past year were set out. Performance against targets for 2006/07 and 2007/08 were set out. The key success drivers included innovative methods, delivering integrated service, excellent relations with other law enforcement agencies, and effective national presence and a project management approach. There was development of staff through innovative programmes, and a tough internal integrity programme and emphasis on good governance, evidenced by unqualified audit reports.

The key challenges were building sufficient capacity without over burdening support structures, attracting experts from the private sector, setting a benchmark for a new type of forensic investigator, who could
tackle complex investigations in multi-disciplinary organisation, implementation of Organisational Development, establishing centres of expertise in legal, accounting and computer forensics, and training and development.

Mr Hofmeyr concluded that SIU had an excellent year, and had managed to deliver
outstanding results on existing projects, had achieved savings of R 374 million and made systemic improvements in key departments. The processes catered for future growth, and successful partnerships and collaborations were formed. There was, however, a need for legislative amendment and he appealed for the Committee’s support with these amendments that were in the pipeline.

Discussion
Adv L Joubert (DA) asked where the SIU fitted into the organic structure of the entire justice system.

Mr Hofmeyr answered that the SIU were like a Standing Commission of Enquiry. It was a separate and independent agency, which received its budget from Department of Justice (DOJ), but did not form part of the NPA or the police. They reported directly to Parliament and were a very unique organisation.

Mr S Swart (ACDP) asked for clarity on the milieu in which the SIU operated. He asked if it was operating in a criminal environment using civil methods. He asked for more clarity on the tribunal in this regard. Since corruption was a crime, he could therefore not understand why it was located in Justice and not in a specific unit whose duty it was to fight crime.

Mr Hofmeyr said that the SIU was different from a normal commission in that it also could litigate. It could find a problem and then implement the solution. There were enough law enforcement bodies, so it would conduct the investigation, and, if it found evidence of criminal activities, would then work with the police and the Scorpions, who would carry out the arrest. The focus of the SIU was on the recovery of money and it could act even where no crime had been committed. For example, where there was corruption in a tender process, SIU could try to have the tender set aside. Where it was dealing with criminal activity it worked with the police. It worked with the Scorpions on more complex matters.

Mr Swart asked if the legislation being referred to was the same legislation that had been referred to the previous year. He asked why it had taken so long to reach the Committee.

Mr Faiek Davids, Deputy Head of SIU, said that the first process was the amendment of the SIU Act. Amending this Act would grant the SIU the power to litigate, which would enable it to act on behalf of other Departments. There had been discussions with the Department and the SIU was hoping to have this process completed by the end of June. The establishment of the Tribunal would assist in procurement matters, especially in the Department of Housing, as service providers who failed to perform could be taken to this Tribunal. The second process involved the amendment of Section 255 of the Public Finance Management Act (PFMA), which allowed members of National Treasury to conduct investigations of transgressions made in terms of the PFMA. National Treasury (NT) would be able to appoint members of the SIU to conduct these investigations and, in doing so, assume powers in terms of the PFMA. This would allow the SIU to move into the forensic services niche.

Mr Swart referred to SIU’s attempts to recover social development funds from employees. He asked why this was so difficult since, if the employees were still receiving a salary, the money could be deducted by stop order.

Mr Davids said that there had been discussions around retrieving the money by direct deductions, but there had been administrative and logistical delays to this process. SIU was expecting some movement on this within the following month.

The Chairperson was not convinced by Mr Davids’ response as to why the funds could not be recovered.

Mr Hofmeyr responded that recovering money was often difficult because investigators would often have to travel deep into the rural areas where people did not have addresses.

The Chairperson said that he had been under the impression that they were dealing with recoveries from civil servants.

Mr Hofmeyr said that this was so, but that many of those people owing money were no longer with the Department. Many had been temporary workers. The issue to be decided was whether the SIU had legal power to do these recoveries. It had asked for power of attorney to do so. The Annual Report of SIU included reports on numbers of Judgments obtained, and Acknowledgments of Debts signed. Last year R6 million in cash had been recovered. This year R12 million had been recovered. The SIU were growing capacity to collect. Payment took place by stop order at the moment. Even if SIU were to take further legal action, the people concerned often did not have the money to make these payments.

Mr J Sibonyane (ANC) asked if the SIU was managing the area of corruption in Drivers’ Testing Centres. Very often learner drivers could not obtain a license without first offering the official a bribe.

Mr Davids replied that that the SIU facilitated this investigation but were not involved in it directly. There had been audits of 220 testing centers nationwide and 55 were identified as priorities. Prevention of this bribe practice was difficult because of the long waiting lists and delays in issuing licenses. SIU had proposed a pilot project where the entire process of issuing licenses would be examined. By changing certain processes it was possible to accelerate the issuing of licenses. A forensic audit would not be the solution in this case. It was proposed to use members of the SIU with experience in managing this area to assist with the management structure. SIU therefore was assisting even though this was outside their core mandate.

Adv C Johnson (ANC) said that SIU had exceeded their target of R100 million for savings and recoveries. She asked if SIU had the capacity to sustain this success.

Mr Davids responded that this would not only be dealt with by growing the body count, but by increasing capabilities of staff. SIU had introduced training forensic investigative programmes and development programmes. It wanted to build specialist capabilities in legal and forensic accounting investigations. The aim was not to build high level capability, since this was not sustainable. It rather wanted to build capability that was sustainable and that would allow SIU to get into more complex forensic investigations.

Adv Johnson asked for more detail on the proclamation on the issue of witness protection.

Mr Hofmeyr replied that there had been delays in getting the investigation proclaimed, but it had been done on 31 August 2007. The investigation had involved the Head of the Witness Protection Programme and the Head of Operations, whose hearing would be held at the end of the month. Investigations had taken about five months to complete, due to their complex nature. The NPA had taken steps to ensure that the programme would continue to run in the absence of these individuals, especially since lives of people were at stake.

Dr T Delport (DA) asked if incorporating the Scorpions into the SIU would strengthen the SIU.

Mr Davids said that this seemed like an attractive option, but one should look at enriching existing capabilities. One could also not build one agency at the cost of another. Fighting organised crime was very important but there was a need to guard against causing a brain drain from any particular agency. SIU was trying to build a forensic service agency, and not an agency that fought organised crime.

The Chairperson said that there had been meetings with the Minister and Deputy Minister and it was clear that the legislative amendments referred to were not on the agenda. Parliament would not be sitting for long and there were five major Bills coming to the Committee to be passed before the end of August. There were also B-list Bills to be dealt with. He suggested that the SIU should write a paragraph on what these amendments would mean, and the Committee would put pressure on the Department. The Committee would also put this in its exit report for the new incoming Committee who would deal with it.

The Chairperson noted that there was little time for further discussion because of the Budget Speech. 

National Prosecuting Authority (NPA) Briefing
Mr Mokotedi Mpshe, Acting National Director, NPA, said that the NPA was not just responsible for prosecuting crime, but was also a driver for a safer and more secure country. He briefly read through the presentation documents, highlighting the key areas. He noted that NPA had been operating with annual strategy plans since its establishment in 1998. In 2005 the Strategy 2020 was put in place to drive the organisation to achieve service excellence. The filling of vacancies and the recruitment of appropriately skilled personnel was an issue currently being addressed. The filling of prosecutors’ vacancies was a challenge because even though appointments of prosecutors was taking place, the vacancy rate was not dropping as those appointed were promoted from within the system. There were 652 vacancies for prosecutors needing to be filled. The problem was that experienced prosecutors were being poached for appointment to the magistrates’ bench. This was being addressed in talks between the NPA and the Magistrates’ Commission. NPA also hoped to be able to negotiate better salaries in order to attract better skilled prosecutors.

Mr Mpshe outlined the highlights of the various operational units of the NPA. These were the National Prosecutiing Service (NPS), the Asset Forfeiture Unit (AFU), the Directorate of Special Operations (DSO), the Priority Crimes Litigation Unit (PCLU), the Specialised Commercial Crimes Unit (SCCU), the Sexual Offences and Community Affairs (SOCA) Unit and the Office for Witness Protection. Due the time constraints not all these units were able to present today.

Mr Mpshe said that among the challenges that the NPA had to deal with was the morale-draining criticism to which it had recently been subjected. The attacks had centered around the handling of certain matters. Whilst dealing with these issues the NPA still had to continue to deal with other core functions. The NPA was trying to do the best it could, but the attacks were not doing the organisation nor the country any good.

The matters causing difficulty included the prosecution of Jacob Zuma and Jackie Selebi, the political smear campaigns, the suspension of the National Director of Public Prosecutions, the suspension of the Free State Director of Public Prosecutions, and the suspension of the Head of Witness Protection Programme

Despite what was said in the media the NPA had managed to continue to work with integrity and would continue to do so despite the difficulties. As long as it had Government’s support they would continue to forge forward.

Discussion
Mr Swart commended the good work done by the NPA. It was a matter of serious concern that there were constant attacks on the prosecutors, who were at the forefront of the fight against crime. He said that Parliament had a duty to protect the NPA.

Imam G Solomon (ANC) referred to the movement of good prosecutors to the magistracy. He asked where else it was expected that magistrates would be sourced, especially given the good quality of prosecutors’ training.

Adv Joubert said that, apart from the number of convictions in the Magistrates Courts and the AFU, the NPA had not met the targets as set out in their strategic plan. He asked how it was planning to address this.

Mr Sibongile Mzinyate, Acting Head, National Prosecuting Service, said that when making its presentation to the Committee the NPS would make it clear that in fact its targets had been met. The targets with regard to conviction rates had been exceeded.

Ms M Meruti (ANC) asked how it was planned to improve the service delivery in the Maintenance Courts.

Ms Bronwyn Pithey, Deputy Director: SOCA Unit, NPA, said that there had been appointments of senior maintenance prosecutors responsible for managing maintenance matters for the province. These maintenance prosecutors would work with maintenance investigators. The Unit had declared maintenance delivery projects, which would focus on delivery issues. The Unit would improve the process match for civil and criminal aspects of maintenance. It dealt with representations from the public and had already dealt with 25 000 maintenance queries.

Ms Meruti asked how far the roll-out of the Thuthuzela Centres had gone.

Dr Silas Ramaite, Deputy National Director: SOCA, said that the pilot project had started in three courts. It had increased greatly in 2005 to 2006 but then there were no further roll-outs the following year. This did not mean that none were planned, but it was necessary to develop monitoring and evaluation strategies. SOCA was following the approach of cautiously rolling out further, as issues such as secondary victimisation had to be considered.

Ms N Mahlawe suggested that the NPA utilise the radio and the media to talk about the work it was doing. She suggested that it should even go out to communities to have these discussions.

Adv Mpshe said that the NPA did in fact go out to communities and addressed communities in certain courts. This took place on ‘community days’. It offered information and explanations to the people on an ongoing basis.

Adv Johnson asked what progress NPA had made with regard to speeding up the cases of awaiting trial detainees.

Mr Mzinyate replied that this issue too would be answered during the NPS presentation. There had however been a decrease in the number of awaiting trial detainees.

Adv Johnson asked what the impact of the new sexual offences legislation was. She asked if the prosecutors were receiving training on this.

Ms Ramaite responded that the guidelines had been finalized by the NPA and the magistrates had received training. They were ensuring that the prosecutors were trained on this legislation.

Mr Swart referred to the number of cases withdrawn. He said that of the one million cases that came to the NPA, 70% of these did not go to court. He asked why this was the case.

The Chairperson added that the issue of court performances was of major concern to the Committee. He cautioned that this would become a focus area, especially since 68% of cases appeared to be thrown out of court.

The Chairperson referred to the issue of low morale and asked if the NPA had itself contributed to the problems in any way. He referred to the situation where an article would appear in the press about a person under investigation, but often that person would claim not to know that he or she was being investigated. This could happen years before the person even appeared in court. The consequences were very harmful. Something needed to be done by both the NPA and the Portfolio Committee. The NPA were not completely innocent, and it needed to be communicated that leaks were not acceptable, and the Committee must ensure that it did in any way contribute to the problems within the NPA. To overcome this challenge would be a test of strength.

Mr D Bloem (ANC)(Chairperson: Portfolio Committee on Correctional Services) said that the leaking of sensitive information was very serious. He also asked what was being done to deal with this issue, which was a threat to national security.

Mr Hofmeyr admitted that a few years ago the organisation had not been as strict as it should have been. However for the past three years if had gone to extraordinary lengths to prevent leaks. An investigation, by its very nature, entailed talking to a variety of people such as bank officials, and potential witnesses. Sensitive information would inevitably come to the attention of other people. It would be difficult to have a secret investigation, as one would be unable to obtain evidence this way. With regard to specific cases of leaks, there had been investigations conducted, through monitoring of phone records, cell phone calls and other private calls. They had conducted lie detector tests and had employees sign an oath of secrecy. This was important because previously people would discuss cases with their spouses and families. Also, sometimes quotes attributed to NPA sources did not in fact come from the NPA at all. NPS had effectively gone as far as spying on its employees. The problem was that one could not stop people interviewed – such as witnesses – from talking.  In addition, sometimes NPA was not the only institution conducting investigations on a matter. For example there was a journalist investigating the Kebble matter for years before it had come to the attention of the NPA. There was in fact very little information in recent cases that lay solely in the knowledge of the NPA. He said that the units would welcome a more active role from the Committee with regard to dealing with the perception of NPA leaks. Even though they would not be willing to talk about specific cases they would be willing to answer questions if asked. They needed some political support. It was not the role of the NPA to get involved in political debates.

The Chairperson said that they could also approach the Committee to offer explanations and information.

The Chairperson referred to the fact that the NPA had the fifth best witness protection programme in the world and commended it on this.

Sexual Offences and Community Affairs
Dr
Silas Ramaite noted that all critical issues had already been raised during discussions and he had no need to detail what was contained in the presentation. The main issues were those around sexual offences, maintenance, domestic violence and child justice.

Asset Forfeiture Unit Presentation
Mr Willie Hofmeyr, Head of the AFU, said that the Unit had exceeded almost all its targets. In terms of the value of assets frozen, it was having their best year ever, having R1 billion frozen. AFU had made the largest deposits into the Criminal Assets Recovery Account (CARA) ever. CARA funds were used to fight crime and assist the victims of crime. AFU had suggested giving some funds from CARA also to non-governmental organisations, but it would be too great a logistical exercise. It would require a proper selection process, which would be difficult.

The major judgments were outlined. It was noted that AFU had won 73.4% of its cases,

He referred to the judgment in the Mohunram case, in which it was stated that seizing the whole building was not proportional to the seriousness of the crime, but pointed out that this was a split decision with a 6/5 majority. He noted that taking action against fixed property was becoming increasingly important, as it often involved removing the crime generators. Because of this judgment it may become increasingly difficult to prove matters, as the Constitutional Court stated that it was necessary for the State to prove that the fact that there was organised crime. The AFU might at some point approach the Committee to clarify the law.

The remainder of the presentation set out relations with partners and challenges.

Discussion
Mr Swart asked what the implications were of the fact that the SIU and AFU worked with the DSO.

Mr Hofmeyr referred to the restructuring of the DSO and said that the bulk of the cases involving huge amounts of money came from the DSO. However it was not the job of the AFU to discuss policy matters. Irrespective of the model chosen, it was important to preserve the elements that made the model successful. These elements were:
-attracting and retaining skilled investigators and prosecutors
-ensuring that investigators, prosecutors and analysts worked together in an integrated way
-ensuring that investigators, prosecutors and analysts sat under one roof
-dealing with corruption in law enforcement by ensuring an environment which was as ‘clean’ as possible. People would be screened very effectively before they entered the organisation.
-establishing a coherent national structure to deal with national and international syndicates.
These elements were vital to any model chosen.

Imam Solomon said that it was clear that the AFU relied heavily on certain pieces of legislation. It needed let the Committee know if there was a need to amend legislation in order to capacitate the Unit, and what amendments it would propose.

The Chairperson said that the AFU should write a short report to submit to the Committee, for inclusion in the report of the Committee.

Mr Hofmeyr said that it would be useful if the Committee could take a proactive approach with regard to amendments in the pipeline. It was there that other pieces of legislation were given priority and it became very frustrating.

The Chairperson said that Parliament was in the process of negotiations. It must be remembered that the Executive was not solely responsible for these decisions and that Parliament too had a say. This issue could also be included in their Committee report.

Adv Joubert asked how the amount paid to CARA was determined.

Mr Hofmeyr said that the first step was to freeze the assets to ensure that they remained safe. The amount left over, once the case was completed, was often much less than the amount that had originally been frozen. This was because the process of litigation could continue for years. Once the court made an order to confiscate, the amount then potentially became available for payment to CARA. Where there were victims of the crime, they would first have to be paid before anything could be paid to CARA. While the assets were frozen, there would be costs incurred as curators were paid to look after the estate. After all these deductions were made, the balance would go to CARA. R150 million had already been paid to CARA this year. In the following year AFU was expecting another R60 million to be paid in.

The meeting was adjourned.

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