Briefing by the National Prosecuting Authority, Special Investigations Unit and the Asset Forfeiture Unit

NCOP Security and Justice

14 May 2008
Chairperson: Kgoshi L Mokeona (ANC)
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Meeting Summary

Various divisions of the National Prosecuting Authority briefed the Committee on their operations. The Acting Chief Executive Officer outlined the institutions to which the Authority (NPA) accounted, and explained the organogram. She detailed the Strategy 2020 and the policy document that determined the direction of the NPA over the next twelve years, as well as the focus for the medium term expenditure framework and the strategies over the next three years. It was noted that these included operational efficiency, crime prevention, communication, and human resource management. The Chief Financial Officer then focused on the major reasons giving rise to the qualified audit by the Auditor General for 2006/07. He gave detailed financial overviews for each of the sub programmes, the average cost of employees and detailed the expenditure against budget for that year. The allocation for 2008/09 was R2.1 billion, rising to R2.5 billion in 2010.

Members questioned the backlog at the courts and how this had been reduced. They also raised a query as to the public visibility of the NPA and the communications unit gave a very detailed response setting out exactly what was currently being done. Members also questioned the status of the NPA relative to the Executive and the Judiciary, and asked for clarification on the intention to implement “lean thinking”. Further questions addressed the numbers of prosecutors at the court, how this was assessed, their accommodation, salaries of prosecutors and other staff, the asset registry tender that had led to the audit qualifications, relationships with other staff and vetting procedures. Questions relating to the tenders, uncertainty amongst staff, the publicity given to the Directorate of Special Operations (the Scorpions), problems in the HR systems that resulted in incorrect payments, spending trends, additional courts, successes of the headhunting strategy, and other staffing issues were also asked. Some other questions would stand over to be answered at the next meeting.

The Asset Forfeiture Unit gave a presentation setting out its history and purpose, the targets and achievements of the Criminal Assets Recovery Account, the payouts made over the last year, and how they had been applied. A breakdown was given of the cases that had been taken on by the Unit as part of its goal to develop the law by testing issues, and detailed notes on the Constitutional Court and Supreme Court of Appeal judgments were given. The major challenge was identified as expanding capacity sufficiently to deal with the cases that were currently in court, where asset forfeiture could be done, but this would require a substantial budget increase.

Another presentation was given on the best ways to fight organised crime, through financial disruption, which meant that organised crime syndicates aims of achieving high investment for low risks would be thwarted. The principles behind this were explained and the Committee was told how the Prevention of Organised Crime Act provided for criminal and civil forfeiture, both of which were explained. It was noted that the most general benefit of asset forfeiture was its deterrent effect, and removal of the asset base of crime so that it could not be passed on to the next person in charge of the syndicate. It was a vital part of the fight against corruption.

Meeting report

National Prosecuting Authority (NPA): briefings
Acting Chief Executive Officer briefing

Ms Beryl Simelane, Acting Chief Executive Officer: NPA, gave the list of institutions to whom the NPA accounted. She noted that the NPA generated its own reports and financial statements that accounted for the R1.4 billion budget that was allocated. She explained the organogram for the office of the CEO. The Strategy for 2020 was detailed. The NPA also had a policy document that determined its direction for the next twelve years. A visual NPA strategy map was given for 2020. The three-year plan identified the strategies that would be delivered on the NPA strategic objectives. The NPA's operational efficiency tools were detailed. Crime priorities would be addressed. The initiatives for crime prevention were listed. Communication included awareness and education. Human resource management included retention, recruitment and an implementation employment equity plan. The goals and objectives of the Office of the CEO and Corporate Services were listed for 2008/09. The delegations of the CEO were given (see attached presentation for details)

Chief Financial Officer briefing
Mr Brian Graham, Chief Financial Officer, NPA, focused, in his presentation on the reasons for the qualified audit opinion of the Auditor General (AG) (see attached presentation for details). The qualifications had been around assets, lease commitments, intangible assets, commitments and prepayments, and he explained each of these. Matters of emphasis were also raised by the AG in respect of irregular expenditure, assets of under R5 000 and their listing, and the departmental revenue that was to be surrendered.
Mr Graham then proceeded to give a detailed financial overview for 2006/07 by sub-programme. He indicated the average unit cost of each employee, and also detailed the expenditure against the budget. The Medium Term Expenditure Framework (MTEF) allocations were set out, noting a total allocation for the 2008/09 financial year of R2,1 billion, rising to R2,5 billion in 2010/11.


Discussion
Mr Z Ntuli (ANC; Kwazulu-Natal) asked how the NPA had managed to reduce the backlog at courts.

Ms Karen Van Rensburg, Executive Manager: Strategy: NPA, replied that the NPA remained concerned with the court backlog. The definition of “backlog” was defined, in the District Courts, as a case older than six months from the date of enrolment.  In the Regional Court it was case older than nine months from the date of enrolment. The NPA was currently engaged in a negotiation process that might result in the change of that definition. If that did happen, then the number of “backlog” cases would increase. All cases were at the moment put on the district court roll, where the investigation was dealt with and completed. Once the investigation was completed then the case, if applicable, was placed on the regional court roll for trial.  The NPA was running a project jointly with the Department of Justice (DoJ), the Legal Aid Board (LAB) and the Judiciary, which included a project plan and a budget that was allocated to the DoJ to deal specifically with case backlogs. They reported to the Deputy Minister and their aim for the last financial year was to reduce the case backlog by 20%. The baseline was the total of cases at the commencement of the project. The backlog reduction was being implemented through establishing additional courts. The Minister had appointed additional magistrates and additional prosecutors were also appointed. The additional courts were strictly trial, not investigative, courts, and the intention was to bring forward the old cases. This intervention had allowed the NPA to identify twenty-seven sites, and data was used to establish which of these sites would be the most critical, and courts were then established.  The NPA had reduced the backlog from 20 452  (43% of the total number of cases outstanding), to 16 862 (34%). The backlog courts had finalised 4 243 cases with an average conviction rate of 78,5%. In the process the NPA had also managed to identify and remove 1 873 ‘deadwood’ cases that were still reflected on the roll. Money had been allocated for the NPA to continue with the project.

Mr Ntuli asked how the NPA could become more visible in communities and if they were involved in community outreach programmes.

Ms Bulewana Makeke, Executive Manager: Communications: NPA, replied that the whole communications strategy should be outlined. It was focussed on four pillars of community outreach, marketing (including public relations and advertising), media relations’ management and internal communication.  The NPA was, for this year, focusing on community outreach. Since she had been in charge she had noted a number of challenges that prevented the NPA from becoming more visible. Firstly, the Communication Unit had suffered from a staff shortage and additional constraints on their financial resources. It had only belatedly realised that community outreach was vital for communication. A different budget had now been allocated to this end.. In previous years, because of the small budget, the Unit focused on free publicity such as Rights and Recourse on SABC 3. It was, however, realised that this reached not even half of the population. The NPA was now confident that this year it would be able to do far more. It had appointed regional communication managers whose main purpose would be communication in regions and public education. It was also in the process of appointing a community outreach programme manager, whose specific focus would be community outreach programmes. NPA had started participating in exhibitions and events that brought them to the public’s notice, such as the Rand Easter Show. Recommendations received from such events had been implemented. It had finalised a customer brochure and was collating information on various issues, specifically issues related to women and children. It was working closely with the Sexual Offences and Community Affairs Unit. Because of the appointment of regional managers, the Communications Unit would be able to identify other opportunities. Furthermore the marketing and advertising plan indicated that a large amount of the expenditure this year was on community media. It had identified that there was a need for NPA specific imbizos.

Ms Van Rensburg briefly informed the Committee that there was a pilot project where a community prosecutor was appointed to work with the police in the community. The relationship between the police and the community, along with the local government, was stable enough to identify the issues and then solve them. Crime hotspots in the identified areas had been dealt with and this year NPA was attempting to find ways to roll this project out to other areas.

Mr Ntuli asked if the NPA fell under the Executive or the Judiciary.

Mr Willie Hofmeyr, Head: Asset Forfeiture Unit (AFU) and Special Investigations Unit (SIU), replied that the NPA was not in the judicial arm of government. In most democracies the prosecuting authorities were part of the Executive, but were also generally recognised as having some independence from the Executive. The NPA was accountable to Parliament directly, and in terms of the NPA Act the National Director of Public Prosecutions (NDPP) had the final say on operational decisions. That was why there were certain safeguards built into the Constitution and the NPA Act.  

Mr Ntuli asked if it was deliberate that the NPA did not have to account directly to the Select Committee.

Ms Simelane replied that NPA in no way deliberately left the Committee out, and that she should rather have referred to “Parliament” and not to the individual house in the presentation.

Mr A Manyosi (ANC, Eastern Cape) asked what was meant by the phrase “lean thinking”.

Ms Van Rensburg replied that “lean thinking” was an operations management term. It meant removing any wasteful activities that did not add value. The “lean thinking” process tried to remove non-prescriptive activities, and would affect the way in which staff were deployed, and ensure a better flow. It was not a short-term solution and required that the process flow. It had started with the process improvement initiatives. These had involved the DoJ, the Legal Aid Board and the court managers.

Mr Manyosi asked how the number of prosecutors per court was calculated, and what was exactly meant by “court”.

Ms Van Rensburg replied that a minimum of two prosecutors per court were required. Prosecutors did more than just argue their case in Court. There was a huge administrative burden on them that took up a large amount of time. Currently, those administrative issues were not being taken into account when calculating the number of prosecutors to be appointed. The organisation wanted to become more “customer-centric”. If there was one prosecutor per court, who needed to sit in court for at least four hours per day, and carry out all the administrative burdens, there would not be enough time to prepare for the next day’s court hearing. The NPA had undertaken a project to determine what was the optimal number of staff needed in every courtroom to deliver a better service to the customer.

Mr J Le Roux (DA; Eastern Cape) asked if political interference was at the core of the problems, and if so, how was it being handled.

Mr Hofmeyr replied that he did not want to answer that question, as it was the subject matter of the Ginwala Commission. However he did not think that anyone had come forward with concrete proof that there had been political interference.

Mr Le Roux asked who were the directors of the company that was awarded the tender for the asset registry.

Mr Graham replied that the NPA was currently interrogating the whole of the tender submission of the company to find if there was any misrepresentation. They did this as one of their procedures was to ensure that the company had tax clearance certificates and so forth. The NPA was likely to be in a dispute with them because they had withheld payment from the joint venture partners.

Mr S Shiceka (ANC; Gauteng) asked what impact the practice of car allowances and salary increases for magistrates had had on the organisation.

Ms Simelane replied that she was sure that the salaries would decrease this year, because of the car allowance that magistrates had. The NPA was hoping that the Occupation Specific Dispensation (OSD) would deal with the issues of salaries for legal professionals. It was also hoping that the impact would not be so great once the money had been approved. 

Mr Shiceka asked what was the relationship with the investigating officers in the South African Police Services (SAPS).

Mr Hofmeyr replied that the reality was that there was some tension between the investigating officers and prosecutors. However, that was normal. The prosecutor had an obligation to ensure that the investigation was done properly and following all correct legal procedures. Prosecutors needed to ensure that everything was above board. He conceded that everything did not always run as smoothly as it should.

Mr Shiceka mentioned the issue that the NPA had been requested to vacate court buildings, and he wanted to know where did the policy originate from and what was the timeline for that process.

Mr Graham replied there were two problems, and that both arose from overcrowding and lack of office space. Firstly the court managers had asked the prosecutors to move out from the building and work from home and other areas. The other problem was that there was general overcrowding, and the prosecutors were often forced to work in the passages and this was a generally unacceptable situation.

Ms Simelane replied that the DoJ had requested that the NPA officials vacate, and that no timelines had been set.

Mr Shiceka asked if the NPA had agreed upon a date and booked a venue for court cases to take place.

Ms Simelane replied that the different parties had agreed upon court dates.

Mr Shiceka asked if staff were vetted, and how often was vetting taking place. Linked to that, he asked how  many staff had been found in compromising situations and if there had been identification of the elements that tempted the staff.

Mr T Ramahana, Executive Manager, NPA, replied that the NPA had successfully entered into a Memorandum of Understanding with the National Intelligence Agency (NIA) who were the custodians of the vetting process, although they were not one of the prioritised departments.

Mr Shiceka asked if the NPA had participated in the process that was run by the Department of Public Service and Administration, looking at parity of salaries for people who had legal qualifications.

Ms F Nyanda (ANC; Mpumalanga) asked the NPA to clarify the situation that occurred when the tender was awarded to a specific company, which had then resulted in a qualified audit.

Mr Graham replied that the tender process was intended to modernise the NPA system of asset management. The whole aspect of asset management was covered. It was unfortunate that the tendering company side of the joint venture did not come through with their cost evaluations.

Mr Moseki asked about the Annual Report that was supposed to be generated, and asked where he could get a copy.

Ms Simelane noted that her team would not have adequate answers for all the questions, but assured the Committee that the answers would be available at the next meeting. The NPA had sent a number of copies of their Annual Report to Parliament but was not sure how it was distributed in Parliament.

The Chairperson wanted to know why there was uncertainty in the ranks of the staff.

Ms Simelane replied that it would be common because of the situation at the moment, which created uncertainty, and many felt that their work was being targeted.

The Chairperson noted that the media would report on whatever they wanted. However, the NPA seemed to be vocal when it came to certain high profile cases. He asked for other examples to illustrate that the media strategy worked.

The Chairperson noted the “Hollywood” style arrests that had taken place and asked if it was part of the NPA’s media strategy.

Ms Makeke replied that she could not defend that, since she did not know what was the motivation at the time, nor was she there. She knew that it was focussed particularly on the work of the Department of Special Operations (DSO). For a number of years that had not happened. The current media strategy was focussed on building relationships with the media, so that their access to the NPA could improve in order that they become better educated about the NPA and then, in turn, spread the message in a responsible manner. She thought that the media had been partly responsible for the sensationalism associated particularly with the DSO. There were many programmes in place to educate the media, and bring them closer to the work of the NPA. The NPA was not just the DSO, as there were several other units associated with the NPA.

Ms Simelane added that when the DSO had come into existence, the NPA took a conscious decision to publicise the DSO to ensure that everyone knew that the Scorpions existed. She accepted that people went overboard, and perhaps enjoyed the “Hollywood” style of doing things. However, there was focused and targeted publicity; so much so that other business units within the NPA complained that the Scorpions was the only visible unit within the NPA. 

Mr Hofmeyr added that government played a big role in the promotion of the DSO. He agreed that not everything that happened after the publicity associated with the DSO was correct, but it must be noted that not everything was initiated by the NPA and that government also had played a role.

The Chairperson asked for the spending trends per month and per quarter. 

Mr Graham replied that the NPA had the information but did not bring it to the meeting. He would submit it to the Committee Secretary.

The Chairperson asked for assurance that next year the NPA would not receive a qualified audit from the Auditor-General. He asked what concrete measures would be put in place to ensure that this did not happen. happened.

Mr Graham replied that in 2008/09 he could assure the Committee that there would be no qualification. However, in respect of the 2007/08 report, there might still be a qualification.

The Chairperson asked why NPA was paying medical aid for people who had died.

Mr Graham replied that the NPA had had a problem that was being vigorously addressed by Human Resources. The problems encompassed more than just the medical aid. There were other problems, such as staff resigning and their salaries continuing to be paid for a few months before the finance department received notification to stop payment. The NPA had now put severe measures in place, such as the threat of criminal prosecution. It was considered theft if a person received a salary and spent it knowing that he or she was not entitled to it.

Mr Moseki asked why there were no success stories in the presentation.

Mr Graham replied that the success stories would be found when each business unit gave their individual reports, as they will show how they spent the money.

Ms Simelane added that the other questions would be answered next week.

Mr Le Roux asked if there was an intention to set up additional courts, since there was a time when courts used to sit on a Saturday.

Ms Van Rensburg replied that she was not sure when the Member was referring to. The NPA had used the Saturday courts and it was hugely successful. They had also instituted night courts that were also successful and dealt with case backlogs. However the NPA needed to find out whether they would be doing it again for 2010.

The Chairperson asked if the NPA used headhunting.

An NPA delegate replied that in their experience interaction with the recruitment agencies brought forth more successful candidates than advertising alone could do. He said that the NPA would use a different source in additional to the normal processes.

Mr Manyosi asked what were the reasons for the high turnover.

Mr Le Roux noted the extensive media coverage that the NPA had received, and asked how had the unrest affected the performance at the NPA.

Mr Shiceka asked how many resignations of prosecutors had occurred in the past year.

Mr Moseki asked about the employment of prosecutors and wanted to know what was the difficulty in obtaining sufficient prosecutors to prosecute the cases. He wanted further clarification on why prosecutors were considered expensive.

The Chairperson asked for clarification of rumours that suggested that the NPA was loyal to certain individuals, as opposed to being loyal to the country, and why there had been this perception.

The Chairperson asked if there was justification for the claim that NPA staff were paid unnecessarily high salaries.

Mr Moseki asked when would the three-year plan for the upcoming years be completed, as it would be good for the Committee to have that information.

Mr Moseki noted that part of the NPA strategy was to contribute more to the South African economy. He wanted to know how it was intended to do that.

Ms Simelane noted the unanswered questions and assured the Committee that they would be answered at the next meeting.

Asset Forfeiture Unit (AFU) presentation: Seizing Criminal Assets to Fight Crime
Mr Willie Hofmeyr, Head of the AFU and the SIU, noted that the Asset Forfeiture Unit had been set up in 1999 to give effect to the provisions of the Prevention of Organised Crime Act (POCA). It had offices in every province. It had two main objectives: to increase the volume of cases, and to undertake test cases that would contribute to the development of the law. A breakdown on the increasing volume of cases was given, and specific notes were given on new restraint cases as well as on completed cases for the 2006/07 year. In 2007/08 it was noted that the AFU was 15% above target. The Criminal Assets Recovery Account (CARA) had been below target for 2006/07 but in 2007/08 it was 82% above target and some major cases were still pending. The payouts were noted in this year and these had been put towards the fighting of crime, as well as to matters that would assist victims, A breakdown was provided on the cases that had been undertaken with the view to development of the law. More detailed notes on the Constitutional Court and Supreme Court of Appeal judgments were provided. The partner relations were described as excellent, and the various institutions with whom the AFU worked were outlined. Their challenges included expanding capacity sufficiently to deal with the cases that were currently in court and where asset forfeiture could be done, but it was pointed out that this would require an eight-fold expansion of the budget.

Fighting organised crime
Mr Hofmeyr  added that financial disruption was an ideal way to fight organised crime, and certainly it was suggested that this was more effectively than putting the criminals behind bars.  Organised crime and economic crime were linked. Organised crime operated like a business, seeking high investment for low risks Financial disruption aimed to increase the risks and decrease the rewards.

The legal and institutional framework was provided by the Prevention of Organised Crime Act (POCA), which provided for both criminal and civil forfeiture. Criminal forfeiture was based on Chapter 5 of POCA, and was a process dependent upon a conviction. There were some advantages to criminal forfeiture, such as recovery of gifts within the last seven years, was based upon gross profit, forced disclosure of all assets and there was some protection for victims of crime. The AFU presumed that all property owned was proceeds of crime. The defendant would have to prove which of the assets were legitimate. Details of a hypothetical calculation were given. Civil forfeiture was based on Chapter 6. It was forfeiture through civil action and used a preservation order to freeze properly. No criminal conviction was necessary, but in this case evidence needed to be provided that the property was tainted by being the proceeds of crime, and the action lay against the property and not the individual.  The law allowed for the confiscation of instruments, and there were certain assumptions as to ownership. The Mohunran judgment in the Constitutional Court had raised a number of issues.  The innocent owner defence was a potentially contentious issue and although the onus was on the State to prove that the property was tainted, the onus then fell on the owner to prove innocence.

Mr Hofmeyr outlined that the general benefits of asset forfeiture included that it had a deterrent effect. Most criminals were not too concerned about being incarcerated themselves, but would think twice if their families were not allowed to benefit from the proceeds of the crime. It was important to remove the asset base of crime, so that it could not simply be passed on to the next “boss” in the syndicate.  He concluded that asset forfeiture was a vital part of the fight was against corruption and it was a vital weapon to take the profit out of corruption and prove that “crime does not pay”. 

Due to poor sound quality the discussion portion that followed could not be transcribed.

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