Department of Justice & Constitutional Development & National Prosecuting Authority: Quarterly Meeting

Meeting report

Presentation: Presentation of the Department of Justice and Constitutional Development’s Quarterly Report (DOJ&CD)
Dr Khotso De Wee, Chief Operating Officer of the Department presented to the Committee that Output 1 of the Department was to improve Enterprise Risk Management systems by 2010. The target was 90% and to date 20% of this target had been achieved. The target for Output 2 was a 80% completion of approved audit plans, so far 18.3% pf them had been completed. The challenges faced for Output 2 were the strengthen capacity of the Internal Audit Unit. To overcome this situation training interventions were underway to upgrade skills in order to beef up human capacity within current budget constraints. The Aim in Output 3 was to increase the conviction rates in fraud and corruption cases, the target was 25% and to date this had not been achieved. The Department would try to establish anti-corruption courts; an anti-corruption task team and establish a cluster forum that would be led by the National Director of Public Prosecutions (NDPP). The Department had completed nine staff awareness raising sessions on fraud and corruption. The fast tracking of fraud and corruption cases was necessary. Output 4 entailed ensuring an unqualified audit on assets and supply chain management for 2010.  The progress so far was that the Qualification on assets had been resolved whilst the Qualification on supply chain management was due to be resolved. Output 5 was to improve file management and record keeping in all identified priority courts by 2010. Only 2% of lost records had been tracked and restored in identified priority courts. The progress so far was that a total of 13 million documents were scanned and taken off-site in Pretoria and Krugersdorp. The main challenge was at the Johannesburg High Court and Magistrate Court.  Special interventions were introduced there to improve the management of records.

The backlog in capturing of leave had been reduced to less than 3 months and 75% (24278 of 32208) of submitted leave forms were captured within 5 days and could be retrieved within 20 days.  Output 7 involved the improvement of human capital management. The progress so far was that 273 posts were filled to achieve vacancy rate of 10.11%, 290 appointments are expected by September 2010 and the posts of Chief Master and Chief Litigation Officer were re-advertised and had been put on hold due to the Departmental reconfiguration process. 1481 (7.5% of staff) Officials had been trained this included Magistrates, prosecutors, masters, court interpreters and court clerks. Three out of 285 disciplinary cases had been finalised whilst the figures for misconduct cases was 69 out of 285. Two out of 189 grievance cases had also been finalised within 60 day and 46 Grievance out of 189 cases were finalised. The proposed intervention was that there was a need to improve the quality of performance management by supervisors and there was also a need to align the Justice College and the Judicial Education Institute. Output 9 was to ensure unqualified audits on financial reports. The progress thus far was that expenditure had been improved, and qualifications on assets and employee benefits were resolved. A Chief Director for Third Party Funds had been appointed. Output 14 comprised the Department’s aim to educate the public on justice and constitutional matters. The challenges were that financial resources and human capacity was not available.  In Output 15 the Department had to monitor and report on the government’s implementation of the Truth and Reconciliation Commission (TRC) recommendations. So far of the 881 outstanding beneficiaries 75 had been identified and paid. The tracing mechanism had to be strengthened. 218 Beneficiaries were deceased and the Department was unable to locate the next of kin. In Output 17 the Department was to ensure the effective implementation of the 7-point plan.

 There had been no staff appointed to the Criminal and Justice System Centre for Statistics thus far. In Output 21 the Department had been unable to produce a national report on the deficiencies in the current civil justice system or a report assessing the enforcement rate of civil judgments made against the state in the past two years. The objective in Output 22 was to increase the finalization of criminal cases. Consultations with the National Prosecuting Authority and the judiciary were on-going and programs for the diversion of less serious cases were being implemented to alleviate courts of a heavy case load. Output 23 was specifically on the reduction of case backlogs in 42 priority courts and to increase diversion. In the Regional Courts 1363 cases had been finalized, 591 withdrawn and 56 transferred. In District Courts 1046 cases were finalized, 490 withdrawn and 43 transferred. The aim in Output 24 was to reduce trial delays and case postponements. A protocol was developed dealing with pre-trial screening to ensure trial readiness of cases and this was being piloted in the Western Cape. Output 27 was a Departmental responsibility to ensure efficient delivery of maintenance services. The strengthening of capacity at court level remained a challenge and an impact assessment had not yet been done. Output 30 was to eensure effective resolution of sexual offences, trafficking in persons; domestic violence and gender hate crimes. The Department had submitted the relevant Bill to Parliament in April 2010. Training was conducted in all 9 Provinces targeting Community Based Organisations and stakeholders regarding awareness on human trafficking. 146 Officials were trained to conduct further outreach programs. 

Discussion
Mr J Jeffery (ANC) pointed out that the vacancy rate was a concern. Of further concern was the issue of the appointment of the Chief Master, when would this be made? The fact that only 1% of disciplinary cases had been finalised was poor. The performance of the Presidential Hotline was a matter of concern. At what stage of the Department does search for beneficiaries regarding TRC claims be regarded as a closed matter? The issue of the maintenance of facilities needed urgent attention. The Department did not seem to be in proper communication with all stakeholders. Was it possible that the Department was not complying expeditiously enough with requests for information as per the provisions set out in the Promotion of Access to Information Act (PAIA)?

Mr De Wee replied that the Chief Master would be appointed by January 2011. Misconduct cases were a concern for the Department as this also had an effect on the courts since in some instances court administration staff was involved. A plan of action to combat this was in place. The Presidential Hotline was indeed a matter of concern but a team had been deployed that would focus on this issue specifically. There were 280 deceased persons whose next of kin had to be found. The Department had to trace the next of kin via the Department of Home Affairs. Perhaps the Department would cease this tracing exercise by the end of the year.

Ms M Smuts (DA) asked how well the pilot project of securing documents was working and would it make its way to the High court. How far was the progress on the Limpopo and Mpumalanga High Courts? What of the Bisho High Court situation?

Mr De Wee replied that so far 13 million documents had been scanned and safely stored, this included court records. There were budgetary constraints and the project would take two to three years to complete. The construction progress for the Limpopo High Court was slow due to geological constraints; it would be completed by 2013. A site had been found for the Mpumalanga High Court and construction would commence soon. 

Advocate J Skosna, Chief Director on Policy for the Department added that the old Magistrates Court in Polokwane had been revamped and would serve as an interim High Court. The Bisho High Court situation was pathetic. Legal proceedings instituted in Bisho had to be heard in far away Grahamstown, this was very costing on litigants. There had been a misperception that the court in Grahamstown would be closed down; this was certainly not the case. Cases in Grahamstown would be heard in Grahamstown and those in Bisho would be heard in Bisho. The Bisho High Court would be further expanded and a tract of land next to it had been allocated for this purpose. 

Adv Pieter Du Randt, Acting Deputy Director General for Court Services said that the issue of the maintenance of facilities had to be addressed.

Mr J Van der Merwe (IFP) asked what was the definition of a victim in the TRC cases and how would the Department consult with them. What would the Department’s interventions be regarding the culture of court postponements? Why was the testing capacity of forensic labs so poor?

Adv Du Randt replied that the culture of postponements really had to do with the state readiness for cases. Lawyers in the private practice also contributed to delays. Practical measures had been developed to ensure that there was a state of readiness at the pre-trial stage.  The issue of lab tests had been turned around. The issue of blood and alcohol samples lay with the Department of Health, which administered the three forensic labs that serviced the whole country. The Health Department also just had is budget reduced.

Mr G Ndabandaba (ANC) asked what the effect of mob justice on case backlogs was. How did the lack of resolve in disciplinary matters impact on case backlogs?

Adv Du Randt replied that the Department would try to ensure that there was trust in the Criminal Justice System to ensure that mob justice was eradicated.

Mr S Swart (ACDP) said that the Protection of Information Bill (PIB) had serious inroads into PAIA, which was administered, by the office of the Minister of Justice What was the Department’s position on this issue? The real concern however was how PAIA, PIB and the Protection of Personal Information would be harmonised.  The South African Human Rights Commission (SAHRC) had serious concerns on the PIB, what was the Department’s response to this seeing as the Chief State Law Advisor felt differently?

Mr Deon Rudman, Deputy Director General for Legislative Development replied that the role of Stat Law Advisors was for the drafting and certification of Bills. They were also responsible for the constitutionality of Bills. The Department of Justice was not automatically involved in the legislation of other Departments. 

The Chairperson thanked the Department and said that the 7 Point Plan would be presented at a later stage.

Presentation: NPA First Quarterly Performance Report 2010/11 Financial Year
Adv Menzi Simelane, National Director of Public Prosecutions presented to the Committee that the Key Measurable objectives were to increase the number of cases finalised by 4 % per annum; Reduce the number of backlog cases by 2.5% per annum increase the number of cases finalised (including diversion) by 5% and to increase the number of cases finalised by the specialised commercial crime by 2 %. Another objective was to successfully convict 100 people by 2014 that had assets of more than R5m. Some of the measurable objectives were to improve prosecutorial efficiency to deal with specific crimes; improve justice services for the victims of sexual offences and to increase the successful protection and support of vulnerable and intimidated witnesses. The strategy was to increase the number of Thutuzeli Care Centres (TCC) and to ensure that no witnesses were harmed or threatened. There were 321 new cases in the High Court. A verdict had been given in 269 cases and the conviction rate was 89%. The District Courts had the highest rate of activity for the NPA. There were 214 772 new cases and the conviction rate was 90.2%. 469 Cases had been finalised for the 2009/10 financial year. So far 117.771 cases had been finalised in the fist quarter of this year. The new cases were 236,310 and decision dockets totalled 135 207. Withdrawals were 58 726. Case backlogs were 39 000. This was higher than the whole of last year and this was because the backlog project had been extended to the district courts. The conviction rate was on track. The issue of cash flow management depended on how well the NPA worked with other stakeholders such as the judiciary. It should be noted that case flow management was also a judiciary function. 

The number of cases that were diverted involving children was 3321 in all the courts. The NPA was below target and this was because of the administrative nature of the steps set out in the Child Justice Act. The plea and sentence agreements were handled in the offices of the Directors of Public Prosecutions (DPP).  The Western Cape had the highest number of plea and sentence agreements. There wee cases that involved children under the age of ten years for purposes of the Child Justice Act. The figures for diversions in terms of the Child Justice Act were on slide 16. 279 Cases were identified where children were victims of sexual offences in the Eastern Cape. There were 103 cases identified where children were perpetrators of sexual offences. The NPA would start to provide the Committee with information for all of the cases involving children that were brought to court. There were difficulties regarding the gathering of information relating to human trafficking. The reason was that the Sexual Offences Act was being used and officials were unable to spot human trafficking cases. Domestic trafficking was also overlooked in favour of foreign trafficking.

The complexity of complex commercial law crimes would now be determined according to the economic impact of each case. Every single corruption related cases would now be dealt with by the Specialised Commercial Crime Unit (SCCU). In future the figures for complex commercial crimes would be broken down per sector e.g. transport agriculture etc. There were 42 new corruption cases received during this period that involved public officials. The cases involved a figure of about R80 million. There were 88 new cases of tax crimes and the conviction rate was 97.7% Ten Commercial Crime Courts finalised 163 cases with 91.4% conviction rate. There were 5 new racketeering authorisations granted. The challenges included the availability of evidence, the quality of the investigation and the quality of the prosecution itself.  The majority of case withdrawals involved a lot of persons including victims. The challenge of agreeing with the judiciary as to how many cases ought to be heard per day was a continuous debate. The NPA would seek to strengthen case flow management and increase the experience of prosecutors.

Discussion
Mr Swart asked what lessons the NPA had learnt from the World Cup. There was a spike in the number of witnesses in the witness protection programme, if this continued would there be enough funds?  Was there a dedicated unit from the NPA that worked with the Directorate of Priority Crimes (Hawks)?

The NDPP replied that those ho worked at the World Cup courts were paid overtime, resources had been set aside. The dedicated approach of all stakeholders was commendable including the general public. It was important to sustain this. Once individuals got to know what the witness protection programme involved, they id no want to remain in it.  The spike reflected the increase in the number of special complex cases emanating from organised crime.  In each of the DPP offices there were units that dealt with organised crime and liased with the Hawks.

Mr Jeffery pointed out that the finances were not in the report. This was a gap in the report. What was the position of staff vacancies? How far was the NPA on the Limpopo and Mpumalanga High Courts? The NPA was not winning on the issue of case backlogs, more had to be done. The number of withdrawals was not impressive; it was too high in the District courts. The figures of plea and sentence agreements were lopsided. The Western Cape had the highest number of agreements and yet it was not one of the biggest provinces. The number of Schedule Three offences that were being diverted was worrisome.

The NDPP replied that the issue of finances had been deliberately left out as it was not the responsibility of the NDPP but that of the Accounting Officer. The Accounting Officer was the Director General (DG) of the Department according to the Public Finance Management Act (PMFA). The same applied for the vacancy issue. The number of prosecutors to be dispatched would depend on the accommodation facilities that would be available In Limpopo and Mpumalanga. The DG had been approached for assistance in this regard.  There were a number of enthusiastic prosecutors who were willing to go and work at the Limpopo and Mpumalanga High Courts. There was truth in the observation made that the case backlog was a challenge. The court hours were not long enough nor were the number of cases placed on the role. Until this was fixed, the issue would remain. The number of withdrawals was equal to the number of prosecutions and verdicts. There would have to be a breakdown of High Court withdrawals and Schedule Three diversions to understand why they were the figure mentioned in the presentation. There was a difference in approach regarding the plea agreements across the provinces the provincial DPP’s would provide an explanation in writing concerning this.

Dr De Wee said that progress had been made regarding the audits. In 2007/2008 the NPA received a disclaimer. In 2008/2009 the NPA progressed to a qualification. The Department had a register in place for 2009/10. The issues that contributed to the qualification would have been resolved by the end of the month. Fruitless and wasteful expenditure, as well as irregular expenditure still had to be dealt with. The vacancy rate was 15%. 216 Letters of acceptance had been issued; if they were all accepted then the rate would be 9%. However it should be noted that the budget had been cut by R1.4 billion and this was a concern.
 
Ms Smuts requested feedback on the Fana Hlongwane matter.  On the 13 May 2010 in the National Assembly the President stated that all restructuring at the NPA had been stopped. I had drawn his attention the previous day to that fact that the SCCU had been disbanded in the sense that its staff no longer reported to Adv Chris Jordaan but to the DPP’s. Was the Asset Forfeiture Unit (AFU) still in place and was M Willie Hofmeyer still its head? Where were the Corporate Services now located? Had the restructuring stopped?

The NDPP replied that the issue around restructuring was not about whether or not there was disbandment but rather about reporting lines. Since prosecutions took place in a jurisdiction that a DPP was responsible for as set out in the Constitution and NPA Act, that particular DPP had to account for all case within that jurisdiction. The current scenario was that Adv Jordaan who was in the office of the NDPP was still the head of the SCCU. Various heads in the NDPP reported to this office for Adv Jordaan to have the opportunity of looking at their reports. They also had been further instructed by the NDPP to submit reports to the DPP offices. They had one solid line and one dotted line until such time as a decision was made. The continued advice to the Minister of Justice was that everybody had to report to the DPP offices so that one would not have a situation where a DPP who had to account for the cases in his/her jurisdiction cannot explain complex crime related matters because personnel reported elsewhere. The Minister’s final decision was still awaited. On the ground everybody worked together. The AFU had been only in select DPP offices. They had now been expanded to be in each DPP office so that personnel reported to Mr Willie Hofmeyer who was still the head of the AFU and in the office of the NDPP. The same personnel had to report to the DPP’s who reported to the NDPP in accordance with the statutory requirements; they in turn would be able to account for each and every case. A distinction was drawn in terms of the structure and function in accordance with the NPA Act. If the Honourable Member was trying to test whether there was compliance with the instruction of the President, the answer was there was compliance. This was certainly the intention behind the question. The prosecutions were still being carried out by the NDPP without interference due to constitutionally guaranteed independence. Corporate Services was an issue relating to the Accounting Officer, in this instance the best person was Dr De Wee.

Ms N Michael (DA) said that the fact that the dedicated courts had gone down was unacceptable, why had he number dropped by 7.1% How many of the cases had been abandoned? The sexual offences unit at the Pretoria Magistrates Court was very impressive. The TCC’s had to dramatically increase. The problem with sexual offences was that lives were often ruined.

The NDPP replied that the NPA cannot make a decision regarding the numbers of the dedicated courts; this was the judiciaries’ responsibility. The challenges regarding prosecutions were evidence related. In some cases the ability to collect DNA was a problem. Cass really depended on the ability of he witness to withstand cross examination after all the trauma already suffered. Sometimes prosecutor tried to hold back as much as possible until such time as the witness was ready. It was a fine, painful and delicate balancing act.

Mr Ndabandaba asked which jurisdictions actually used the term ‘human trafficking’. What did complex commercial law crimes entail?   How possible would it be for the Department to appoint persons that would collect the Departmental data statistics as opposed to prosecutors?

The NDPP replied that the term was generally accepted and even United Nations Convention used the term. Complex commercial cases would have an emphasis based on impact and not the amount. The objective nature of the facts would be the determining factor of what was complex or not. All tender corruption would be treated as complex. The department had always been looking at employing statisticians. However it might not be necessary to employ a lot of people to do this as a few requirements in the docket might just make the work of prosecutors less, sine he dockets emanate from the case flow management system.

Mr Z Ntapane (ACDP) asked what the term ‘other’ referred to in slide number 17. Why was there no dedicated court in Mthatha?
The NDPP replied that the ‘other’ just signified that the cases id not fall within the categories mentioned on that page. The SCCU was initially a pilot project but because of the demand it became a national system. A decision had been taken to expand it. Te whole structure was to try and ensure that at every DPP jurisdiction there was sufficient capacity to deal with every type of crime. The law worked on the basis of activity and not where units happened to b located. Where there was acclivity there had o be sufficient capacity. There were persons who prosecute out of a unit even though they were not part of it because the function was a prosecutorial one.

The Chairperson said that the Committee would await the written responses on outstanding information and adjourned the meting.

Meeting Adjourned.