National Prosecuting Authority: Activity Reports 2007/8

Meeting report

National Prosecuting Authority (NPA) Annual Report presentations
Adv Mokotedi Mpshe, Acting National Director of Public Prosecutions, NPA, said that the morale of the NP staff was low, given the current situation with media attention on the NPA and the intended amalgamation of the Directorate of Special Operations (DSO / Scorpions) into South African Police Service (SAPS) structures. He noted that it was common knowledge that the relationship between the DSO and SAPS was strained and that the DSO staff feared they might not have jobs, as the National Commissioner of Police would choose those he wanted from the DSO to serve in the new Unit. Fears had also been raised on the question of salaries, even though the Minister of Safety and Security said that salaries would not be affected.

He noted that that the NPA had been under constant attacks and scrutiny over the past few years. He denied allegations raised in certain quarters that the DSO was a counter-revolutionary force and said that the NPA had a duty in terms of the Constitution to fulfill its mandate. He added that it was a fallacy that the DSO had a meeting to discuss the outcome of the ANC’s national conference in Polokwane and noted that the NPA was loyal to the Constitution, and not to individuals as was being claimed.

Adv Mpshe stated that that it was unfortunate that leakages occurred around sensitive high profile cases and he announced that there had been a concerted effort by all the Units in the NPA, especially in the DSO, to ensure that this did not happen again.

He added that the NPA was faced with a major organisational problem as twelve senior level positions were filled by Acting appointees. However, he said that the NPA would not allow the current events to impact on its duty to ensure that the law was upheld and administration of justice protected.

National Prosecuting Service (NPS) report
Adv Sibongile Mzinyathi, Acting Head, National Prosecuting Service, outlined the mission statement, case overviews, service delivery, projects and initiatives of the NPS.

Graphs were tabled dealing with the prosecution of criminal cases in the various courts, as well as the withdrawals, and reasons were given. He touched on various issues pertaining to the backlog problem in the judiciary and said that mechanisms were being investigated to address this organisational constraint. On the issue of service delivery he said that there had been a significant decline in the number of court hours and that this was in part due to the problems that the Legal Aid Board (LAB) was experiencing.

With regard to projects and initiatives Adv Mzinyathi indicated that a magistrate in the Vosloorus area had made giant strides in reducing the back-logs in his court and that the NPS would engage with him to enlist his help in other problematic areas. Details of the projects were contained in the full presentation (see attached document)

Adv Mzinyathi announced that the NPS had decided to institute Alternative Dispute Resolution (ADR), which he explained as a way to process cases outside of the mainstream judicial process. The mechanisms used in ADR would be based on diversion and mediation. ADR was envisaged for certain type of offences such as petty theft and assault where no grievously bodily harm was committed.  ADR would ensure that relevant cases could be dealt with swiftly and be taken off the waiting roll to make way for other more serious offences that were more appropriately dealt with in the mainstream process.

Diversion was closely linked to the idea of restorative justice. Restorative justice involved offenders accepting responsibility for the crime committed, making amends for what they had done and initiating a healing process for themselves, their families, the victims and the community. The goal of restorative justice was that offenders re-join the law-abiding community and prevent re-offending.

He stressed that the NPS first had a target of resolving 75% of cases within the first 6 months, but that this was reviewed and changed to 9 months, in order to avoid putting added pressure on the courts.

Discussion
Mr N Mack (ANC, Western Cape) said that the National Prosecuting Service (NPS) had not included their savings and efficiency strategy.

Adv Mzinyathi said that Corporate Services dealt with the budget last week, and that he was not sure what the question related to. He noted that that the NPS budget was subject to the overall budget of the National Prosecuting Authority (NPA) and that the funds received from the NPA’s finance department mostly covered salaries, subsistence and travelling.

Mr A Moseki (ANC, North West) said that the NPA was required by law to adhere to the transformation policies, but yet the top structures were still dominated by males.

Adv Mzinyathi said that the NPS had drawn up an employment equity plan, particularly geared towards senior structures, to address the imbalance in the top structures of the NPS. He knew the NPS had not reached its target but said that the newly appointed Human Resource Manager would assume responsibility for addressing the issue of transformation. He said that on many occasions people had been invited to interviews on the basis of their CVs but were found not to be suitable for appointment. In consequence the NPS had to appoint from its existing staff component, which happened to be male-orientated.

Dr F van Heerden (FF+, Free State) asked for further clarity on the ADR process.

Adv Mzinyathi expanded upon what he had said earlier, repeating his definition.  He added that diversion was also closely linked to the idea of restorative justice. Restorative justice involved offenders accepting responsibility for the crime committed, making amends for what they had done and initiating a healing process. The goal was that offenders should become reintegrated into their communities.

Ms F Nyanda (ANC, Mpumalanga) noted that 135 post need to be created urgently in the NPS. She asked whether this had an impact on the non-availability of presiding officers.

Mr Mack noted that the NPS mentioned that load shedding had an adverse affect on their work as it relied heavily on computers and stenographs during court proceedings. He asked whether the NPS had an alternative plan to replace these appliances.

Adv Mzinyathi replied that the NPS did not intend to replace these appliances, as the problem lay not with the operational functions of these appliances, but the constant load shedding. He said that these appliances were important during court proceedings. The back up generators at the court did not produce sufficient energy to power these imperative appliances.

Mr Moseki asked what the NPS was doing in terms of the transformation of the mindset of its staff towards certain individuals.

Adv Mzinyathi said that prosecutors were on standby to issue after-hours bail as well as bail over weekends as required by law. He noted that if these prosecutors failed in that duty or showed any bias, then those affected should report them to their seniors for not following proper procedures.
He added that in 2005 a new strategy was discussed that would address or look at the role of the NPA within the criminal justice chain. This gave effect to the 2020 Plan of the NPA.

He explained that the NPA was harmonised within the government’s programme of action in the Security Cluster in the executive, and consisted of different Units, each with its own strategic and annual plan, in accordance with the NPA Act. It had a broad transformation framework that it was aligned to the operational function of the NPA.

Mr Mack asked how the constant hike in fuel prices affected the work and budget of the NPA.

Adv Mzinyathi replied that rising fuel prices were affecting all South Africans and that this also affected the budget of the NPA.

Dr van Heerden said that postponements led to more cost incurred by clients, and asked whether the NPS had a policy framework that would deal with lawyers who made money from their clients due to postponements.

Adv Mzinyathi replied that the NPS was aware that some lawyers did make money from postponements. He said the issue of postponements had been problematic, as prosecutors did not determine whether a case should be postponed, but this decision rested with the presiding officer. This led to other complexities as the diaries of magistrates and judges would be planned in advance.

Ms Nyanda asked why dockets were going missing.

Adv Mzinyathi replied that the police, and not the court, processed the dockets, and that this was a case flow management chain issue. He said that with the implementation of the case flow management chain it was hoped that this problem would be addressed.

The Chairperson said that plea-bargaining had caused a lot of consternation, especially with the Thatcher case. He asked what criteria were used and who determined the validity of these plea-bargaining processes.

Adv Mzinyathi replied that plea-bargaining had become a problem where high-profile cases were concerned, and that the NPA had to shoulder some of the blame for the criticism levelled against it. The problem was that the NPA failed to convey to the public the reasons why it entered into plea-bargaining with certain individuals. Plea-bargaining was an everyday occurrence in the lower courts. He was not permitted to comment on the Aggliotti case. The Thatcher plea bargain was dealt with by the Priority Crimes Litigation Unit (PCLU) and DSO, and that the decision in this case was backed up with legal opinions. Although public opinion might play some role, the overriding factor was a legal opinion, and both that opinion and sufficient evidence would be taken into account when a decision on plea-bargaining was made. In the event of high profile cases, such as the Thatcher case, the interest of the State should be taken into account and the person responsible for reviewing and approving these plea-bargaining cases was the National Director of Public Prosecutions.

He added that in some cases plea-bargaining was an important mechanism to obtain information on organised crime syndicates and that it was used as a firewall to ensure that the NPA did its best to ensure that administration of justice was not compromised. The role of the person within a specific criminal gang was also important, as it was easier to negotiate with lower-ranked people within a criminal organisation, than with those higher up in the criminal hierarchy.

Dr van Heerden asked what the NPA meant by Restorative Justice and whether legal provisions were made during ADR.

Adv Rodney de Kok, Western Cape Director of Public Prosecutions, NPA, explained that Restorative Justice was a theory of justice that relied on reconciliation rather than punishment. It was founded on the idea that a well-functioning society operated with a balance of rights and responsibilities. When an incident occurred that upsets that balance, methods must be found to restore the balance, so that members of the community, the victim, and the offender could come to terms with the incident and carry on with their lives. For this to happen, the offender must accept responsibility for the fact that his or her behaviour had caused harm to the victim, and the victim must be prepared to negotiate and accept restitution or compensation for the offender's wrongdoing. In essence, restorative justice aimed as far as possible to 'put right the wrong'. It was based on the idea that everyone was connected, that crime was a violation of relationships, and that such violations create obligations.

Adv de Kok said that if the process of Restorative Justice was not a success then the case would go through the normal judicial process. However the NPA had engaged with non-governmental organization and other stakeholders to make ADR sustainable.

He added that Restorative Justice mainly impacted on cases where youth had come into conflict with the law. The NPS had decided to review each case where a child was involved so as to ensure that children were not kept in custody, unless it was in the interests of the State. He noted that the nature of the crime committed also played an important part in the process.

Ms P Whittle, Committee Researcher, asked why there was a delay in the issuing of warrants.

Adv de Kok said that if an accused failed to appear in court then the SAPS would have to track down that person and issue a new warrant for arrest and a new trial date. The rights of the accused to freedom were weighted against the rights of society in making a decision whether bail should be granted, and decisions on bail were made by the presiding officer. The problem was, in granting bail, that many accused would fail to return to court on the appointed day. This led to major case backlogs as new charge sheets had to be drawn up.

Ms Whittle asked whether senior prosecutors automatically became magistrates and whether there was a contingency plan in place to train and equip other prosecutors when there were elevations to the Bench.

Adv Mzinyathi replied that senior prosecutors were not automatically appointed as magistrates, as the magistry required a certain level of competency and compliance. There was a drive within the NPS to retain experienced prosecutors as they were well placed to argue against seasoned advocates in the High Courts.

The Chairperson said that he was still not satisfied with the reasons given by the NPS on how and why plea-bargains were entered into.

Special Commercial Crimes Unit (SCCU) Briefing
Adv Chris Jordaan, Acting Head: SCCU, outlined the Unit’s background, organisational structure, its function, achievements from 2002 till 2008, trends and challenges as well as its monitoring and the SCCU’s improvement plans for the year ahead.

The SCCU was established on 1 August 1999 as a pilot project to combat the deteriorating situation pertaining to commercial crime. Due to the Unit’s effectiveness in dealing with commercial crimes, it was rolled out nationwide. The Unit consisted of specialist prosecutors who were dedicated to the prosecution of commercial crimes in the Regional Courts. There were currently 169 permanent and 7 contract employees.

The mandate of the SCCU was to prosecute complex commercial crime cases investigated by the Commercial Crime Branch of the South African Police Service. It was located in Pretoria, Johannesburg, Cape Town, Port Elizabeth, Bloemfontein, and Durban and had offices in Port Elizabeth and East London.

Graphs were tabled illustrating where and how the SCCU fitted into the organisational structure of the NPA (see attached document for further information). An overview of how the SCCU conducted joint planning sessions with SAPS and other stakeholders on cases was given. Adv Jordaan noted that the SCCU activities were monitored by supervisors on an electronic case register as well as regular meetings with the banking industry and other stakeholders.

The Unit had achieved the setting up of 9 courts since its inception. There had been an increase in the conviction rate of 95%. In 2006/2007 it secured 134 direct imprisonment sentences. It also selected 7 priority governance areas, implemented improvement plans and increased the combined index score by 28.75%. He noted that although that had been a consistently high conviction rate there had also been a high withdrawal rate due to a clean-out session pertaining to the Road Accident Fund (RAF) project held during 2007/2008. The Unit planned to implement a strategy of prosecutor-guided investigations to better the Unit’s efficiency. There had been a general trend of decreasing court hours, because DOJ had reneged on a promise to appoint more permanent magistrates, and because of a tendency for fewer pleas.

The challenges faced by the SCCU were to increase access to its services, and to create a pool of prosecutors who were specialists in the prosecution of commercial crimes. Many specialist prosecutors were poached by the private sector or appointed to the Bench. The Unit also had problems with its employment equity status and had implemented a strategy to address transformation.
 
Discussion
Mr J Le Roux (DA, Eastern Cape) asked whether the SCCU also dealt with credit card fraud and whether they had operational support from the DSO in this regard.

Adv Jordaan replied that credit card fraud was not dealt with by the SCCU. The SCCU would only get involved if there was a syndicate that operated credit card fraud and scams.

Dr van Heerden asked what the difference between commercial and organised crime was.

Adv Jordaan replied that commercial crime referred to an instance where one suspect was involved, whereas organised crime referred to a well organised syndicate, comprising of various individuals or suspects.

Ms Whittle asked what strategy the NPA had in place to reduce the high volumes of vacancies.

Adv Jordaan said that the vacancy rate stood at 22%, and that the main determining factor was that the private sector offered better salaries. He said that the NPA only advertised quarterly, due to the high costs of taking out advertisements. The NPA had started a pilot project in Pretoria where senior and seasoned prosecutors were training junior prosecutors. This was done to create a pool of well educated and equipped prosecutors.

The Chairperson asked what the SCCU was doing about the rampant corruption and fraud relating to the Road Accident Fund.

Adv Jordaan replied that there was a perception that the Road Accident Fund (RAF) was the source of all payments, and there were many problems within this organisation. The SCCU did initiate the RAF project to establish a comprehensive and integrated strategy in addressing this problem. He added that the SCCU had appointed contract employers to assist in rooting out this problem. It involved organised crime and the NPA had approved that prosecutor-guided investigations would be the best way to deal with this.

Mr Le Roux asked whether the SCCU had its own auditors.

Adv Jordaan replied that the SCCU would make use of external auditors during the trial itself, as pre-investigation was done by the SAPS.

The Chairperson asked whether the SCCU was able to detect volatile issues such as the current xenophobic violence in South Africa, as there were suggestions that there were elements of organised crime involved.

Adv de Kok said that there was a close relationship between SAPS and the SCCU in detecting instances of organised crime. He said that progress had been made to equip regional offices to deal with this and special prosecutors had been appointed to assist. There had been an emphasis on the prevention of organised crime, such as cash-in-transit heists, and the NPA also had a strong working relationship with the National Intelligence Agency (NIA) and other relevant government agencies in this regard. 
 
Priority Crimes Litigation Unit (PCLU) Report
Adv Silas Ramaite, Deputy National Director of National Prosecutions, NPA,  gave an overview of the mandate, the deliverable strategic objectives, and the performance and key aspects of the strategic plan of the PCLU. The PCLU was created by Presidential Proclamation on 23 March 2003 within the NPS. It dealt with the proliferation of nuclear and other weapons, proliferation of conventional military arms, terrorism, mercenary and foreign military activities, intelligence-related activities and prosecutions emanating from the Truth and Reconciliation Commission. It was also tasked with the Missing Person's Project, which in turn was aimed at locating missing anti-apartheid struggle activities, as stated in the final report by the Truth and Reconciliation Commission.

The deliverable objective of the PCLU was to effectively and efficiently manage and direct all investigations and prosecutions within its mandate, and to contribute to a reduction in crime, as well as establishing and maintaining a working relationship with all its stakeholders.

The PCLU did not set targets as the Unit dealt with unique criminal activities, but it had secured success in prosecuting company directors who had supplied nuclear weapons technology to Libya and Pakistan. It had done so as part of the International Nuclear Weapons Procurement Network, and South Africa was the only country to obtain convictions for these crimes out of the 40 countries in which that network operated.

The PCLU had also been instrumental in the recovery and conviction of individuals who smuggled machinery into the country that had the potential of manufacturing nuclear weapons, and played an active role in investigating and prosecuting individuals involved in terrorism.

The PCLU was also mandated to investigate cases of persons who disappeared as reported by the Truth and Reconciliation Commission (TRC) with the aim of locating, exhuming and returning their remains to their families.

The key challenges of the PCLU included obtaining cooperation from all stakeholders in order to ensure successful prosecutions, the cost incurred to get evidence from abroad, forensic auditing of evidence and the legal and constitutional challenges to PCLU processes.

The Unit had operated within its allocated budget, spending R4.9 million on compensation of employees and R2.8 million on goods and services, out of an allocated budget of R7.7 million.  Despite the difficulties, the PCLU continued to function and give proper attention to cases falling within its mandate.

Discussion
Dr van Heerden asked what the NPA would have done if the Chinese ship that carried arms destined for Zimbabwe had nuclear weapons on board.

Adv Ramaite said that the PCLU was not an investigative entity, but a prosecuting entity, and that SAPS would have taken responsibility.

Mr Le Roux asked where the nuclear weapons were found and what were done with them.

Adv Ramaite replied that nuclear weapons were not found, but heavy machinery capable of producing nuclear weapons. He added that 250 tons of nuclear machinery were found and that he did not know where government destroyed this machinery. One accused who had aided and abetted the main accused was not held in custody.

Mr Moseki said that a lot of people had given information on the missing persons documented in the final report from the TRC and that he felt that those who had plea-bargained should tell what they knew of the whereabouts of these people.

Ms F Nyanda (ANC, Mpumalanga) asked how far the NPA was in its investigations and search for the missing persons identified in the final report by the Truth and Reconciliation Commission

Adv Ramaite agreed that it was unacceptable that 15 years down the line many of these undocumented missing persons had not yet been found, and that this was a huge concern to the NPA. Many perpetrators had received indemnity from prosecution and the PCLU could only do so much. He said that there was a need for a separate entity to look at the TRC report and to search for these missing people, as PCLU did not have the relevant resources or funds to address this effectively. There was a missing persons task team within PCLU but progress was slow on tracking down missing persons as there were budgetary challenges and insufficient organisational framework to adequately address this programme.

Directorate of Special Operations (DSO) Report
Adv Adrian Mopp, Regional Director of Special Operations, Western Cape,  highlighted key points relating to the processes and functions of the NPA. He outlined that the Directorate of Special Operations had an important and specific role to play in fighting organised crime in South Africa.

He outlined the mandate and strategy of the NPA, stressing that the DSO targeted criminals who organised and profited from crime. It used a multi-disciplinary and success-driven approach to deal with cases more effectively. He compared the performance over the last few years, giving figures of new investigations initiated, numbers of prosecutions and noted a conviction rate of above 80%. It had handled 41 cases in which R64 million was directed to the Criminal Assets Recovery Account (CARA) and had directed R50 million to the victims of organised crime. He highlighted the major cases and operations. The key lessons learned by the DSO over the year were outlined. He then set out the key aspects of the strategic plan for 2007/08.

Adv Mopp explained that the main purpose of the DSO was to focus on priority crime such as major drug syndicates, gang violence and organised institutional and financial crimes. The Unit had confiscated contraband to the value of R1 billion. He said that the rise in the complexity of cases, as well as the international dimension to some cases, made it difficult to fulfill its mandate. Other challenges included increasing operational effectiveness in investigating and prosecuting organised crime, developing measurement indicators, setting the functioning and streamlining the coordination, strengthening professional resilience, ethics and confidence, enhancing the workspace and finding new work. He called upon parliament to continue to assist the NPA in its endeavours

Discussion
Mr Moseki said that the DSO should be proud of their successes and that it ought not to fear the planned amalgamation with SAPS.

Mr Mack asked whether the DSO was of the opinion that they would be less efficient if they were incorporated into SAPS, given the fact that it had had excellent results on its own so far. He did not think it was healthy for the perception that the country would “go down the drain” without its presence.

Mr Moseki added that there was a perception that the DSO “acted like Hollywood”.

Mr Thanda Mngwengwe, Investigating Director: DSO, said that the formation of the DSO took place at a particular time in South Africa’s history, in which there were many new laws, especially in relation to bail, being passed. There had been a perception that the South African Police Service (SAPS) was not coping with crime, and the subsequent media coverage surrounding the formation of the elite Scorpions Unit added to the “glamorous” image DSO attained. This had then led to severe criticism by the judiciary that the DSO was acting recklessly, and was in pursuit of media coverage. He said that the DSO accepted this criticism, but that it was based on fallacy.

The Chairperson asked how the DSO was going to deal with its members that did not undergo security clearances.

Mr Nhlanhla Ngidi, Head: Crime Analysis Division, DSO,  replied that the NPA had submitted names to the National Intelligence Agency (NIA) for vetting purposes and that the DSO was not the only department responsible for vetting, although a management decision was taken to have all members vetted. This also had impacted on those members who, in terms of the law, did not actually need to be vetted, and the process would take time as expired security clearances of long-serving staff had to be renewed. Before vacancies were filled the DSO conducted an internal vetting process due to the nature of the work that the DSO conducted. NIA had a large amount of work, and there were capacity issues, although the majority of DSO (NPA) staff had been vetted.

Mr Moseki said that there had been allegations that the NPA made use of private investigating firms to assist them.

Mr Mgwengwe replied that private companies were only contracted to conduct work for the NPA where forensic evidence pertaining to technical and forensic auditing was necessary, and that a stringent selection process was followed.

Mr Le Roux said that the Khampepe Commission had concluded that the DSO was a powerful anti-crime unit that should not be disbanded. He said that there was a general perception that the ANC saw the need to disband the elite unit due to its investigations into senior ANC leaders, such as Jacob Zuma.

Office for Witness Protection (OWP): Report
Adv J Welsch, Head: OWP, NPA, outlined the achievements, programmes and projects, stakeholder engagement, and the forecast for the 2007-2008 period of the OWP. This Unit was  recognised as being one of the top five witness protection agencies in the world. No witness or related persons on the programme had been threatened, harmed or assassinated for the past six years. The conviction rate of cases with witnesses on the programme had increased from 80% in 2005/2006 to 90% in 2006/2007.

A graph was tabled that illustrated the key performance indicators for the OWP in dealing with effective and efficient support services for vulnerable and intimidated witnesses in judicial proceedings. To date it had 229 witnesses and 268 related persons on the programme.

The OWP faced key challenges such as witnesses leaving the programme of their own accord and being harmed, as well as load shedding that could lead to an assassination attempt on a witness if security services were not operating.

Challenges in the coming year included the uncertainty of where the OWP would be located, as the current deep transformation process of the NPA was not clear on that, budgetary constraints, the difficulty to predetermine how many witnesses would be required to receive protection, increased international commitments regarding crimes against humanity, and the increase in numbers of witnesses and related persons that required protection as SAPS continued to  intensify  its efforts to effect more arrests.

Discussion
The Chairperson asked how many witnesses found themselves in a precarious position due to negligence on the part of their handlers

Adv Welch said that handlers were trained not to divulge information about the witnesses they protected to families and friends, and that they underwent a stringent selection process.
 
Sexual Offences and Community Affairs (SOCA) Report
Adv Silas Ramaite, Deputy Director of National Prosecutions, NPA outlined the history, purpose, the performance, notable achievements and general information on the Sexual Offences and Community Affairs Unit. The SOCA Unit was established in 1999 through a Presidential Proclamation, in terms of section 13(1)(c) of the NPA Act. Its purpose was to focus on issues involving the victimisation of women and children, with emphasis on policy formulation and education on domestic abuse, rape and other forms of violence committed against these vulnerable groups.

A graph was tabled which indicated the tracking performance of the Unit over a period of five years, that was related to the dedicated courts and linked to Thuthuleza Care Centres (TCCs). These multidisciplinary care centres were voted as “world best practice model” in the field of gender violence management and response by the United Nations. The other notable achievement of the Unit was the implementation of a Programme Steering Committee for the Trafficking in Persons Inter-Sectoral Task Team, which had to monitor, evaluate and provide strategy guidance for task team activities.

He added that the average conviction rate for TCC cases in 2007/2008 was 75% and that SOCA was focussing on programmes aimed at boy children, to teach them that all people were born with human rights and that those human rights should be respected.

Discussion
Ms Whittle asked what difference was between dedicated courts and the Thuthuzela Care Centres.

Adv Ramaite replied that dedicated courts such as the Labour Court and Equality Court could be found everywhere, but that even these courts lacked facilities to attend to the special needs of women and children victims. The TCCs could offer a wide range of services, such as counselling and medical assistance, ARV treatment in the case of rape, and support.

The meeting was adjourned.