National Prosecuting Authority 2019/20 Annual Performance Plan

Meeting report

Overview by National Director of Public Prosecutions (NDPP)
Adv Shamila Batohi stated that the NPA is committed to incorporating the priority areas identified by President Cyril Ramaphosa in his recent State of the Nation Address. She listed the NPA’s five programmes: National Prosecution Services (NPS), Asset Forfeiture Unit (AFU), Office for Witness Protection, Administration and the newly established Investigative Directorate. The NPS is primarily responsible for general and specialised prosecutions. The AFU seizes assets that are the proceeds of crimes. The Office for Witness Protection provides for protection and related services to vulnerable and intimidated witness, whilst Administration provides corporate support services to the NPA in terms of finance, human resources, ICT, strategy support, integrity, security and risk management.

There is massive, almost endemic corruption facing the country. One third of the country’s GDP has been stolen by corruption which has necessitated the establishment of the Investigative Directorate. This has been introduced as a new programme within the NPA to deal primarily with offences, criminal or unlawful activities relating to serious, high profile or complex corruption. The Investigative Directorate will focus on corruption within the security sector, state owned enterprises as well as high level corruption in the private and public sector. However, it is only a “short-term crisis operational intervention, not a panacea for corruption nor a sustainable long-term approach”.

Adv Batohi reiterated the importance of the AFU in retrieving money lost due to corruption. Money retrieved by the AFU is deposited into the Criminal Assets Recovery Account (CARA) and these funds are then used to fight crime and assist victims of crime.

She moved on to consider the internal and external challenges facing the NPA. The NPA faces a massive credibility challenge and is seriously divided. There is a lack of confidence in the NPA and considerable effort will be made to ensure confidence within the NPA is restored.

The NPA has severe budgetary restrictions. It will have to reduce its staff complement by 500 over the Medium-Term Expenditure Framework (MTEF) period, to remain within the budget due to budget cuts affecting all government departments. The NPA has a shortfall of roughly R1.7 billion over the next three years.

Unfortunately, the NPA is also plagued with a deep-seated skills shortage. On average, the vacancy rate is 20%. The percentage is higher at specialised units such as the Specialised Commercial Crime Unit and the AFU, at between 25 to 28%. The NPA has lost 600 prosecutors since 2015 and has not been able to recruit any new prosecutors. In a real-life example, this meant that when the prosecutor at the Kuruman Court in the Northern Cape was ill for two days, another prosecutor had to drive 200km to that court to postpone cases. Given the decline in the number of prosecutors, and the increase in South African Police Service (SAPS) members, the NPA is unable to deal sufficiently with all cases submitted by the SAPS.

Key service delivery initiatives of the NPA include restoring NPA credibility and public confidence, the successful establishment of the Investigative Directorate, ongoing staff development and training, recruitment of specialised skills, and the resuscitation of the Aspirant Prosecutor Programme which will deploy 90 new prosecutors to district courts. The NPA will be moving internal employees to the Aspirant Prosecutor Programme. As these employees will be earning their current salary, the programme will not affect the NPA’s budget however it will examine budgeting options to allow for the recruitment of external applicants going forward.

The NPA has been engaging in ongoing efforts to improve its partner and stakeholder relations. It recently signed a memorandum of understanding (MOU) with the Financial Intelligence Centre (FIC), Special Investigating Unit (SIU) and the South African Revenue Service (SARS). The NDPP has engaged with the Directorate for Priority Crime Investigation (DPCI, aka Hawks), the FIC and SARS about the secondment of investigators to support the work of the Investigative Directorate.

The NPA plans to have its own accounting officer to strengthen its independence. Currently, the Director General of the Department of Justice serves as the NPA accounting officer.

Another key initiative is ensuring that Truth and Reconciliation Commission (TRC) cases are dealt with adequately. Perpetrators of apartheid crimes who did not apply for amnesty or were denied amnesty were referred to the NPA for prosecution. The NDPP confirmed that the judgment in the João Rodrigues matter strengthened her hand, as the judge ordered the NDPP to determine if action should be considered against officials in and outside the NPA, at the time, for possible interference with work of the authority. The judge found that there had been interference in the NPA being able to prosecute certain individuals. The judge’s decree places an onus on her to put in place a mechanism to determine what caused the NPA’s inability to conduct its mandate.

Adv Batohi said they were looking at having one coordinated process to look at all 69 deaths in detention. The NPA was about to reopen the inquest into Neil Aggett and Hoosen Hafferjee’s deaths. It was discovered that there were two other prisoners, detained at the same time under similar circumstances and at the same prison. The NPA will look at these cases collectively. There are 37 active investigations into these cases however resources are a challenge because only four people are assigned to work on these cases. Apart from resource limitations, other difficulties include locating witnesses who are either old or deceased and obtaining documents since inquest documents were destroyed after 10 years.

The NDPP proceeded to deal with other key matter such as cost recovery, gender-based violence, Occupation Specific Dispensation (OSD), crime levels and the effect of the decriminalisation of marijuana on the court roll. A high rate of malicious and vexatious litigation is brought against the NPA, only 5% of which are successful. In such instances, where the NPA is awarded costs, the onus is on the Office of the State Attorney to follow up on these costs.

Addressing gender-based violence is a key priority of the NPA. It has established Thuthuzela Care Centres (TCCs) which are one-stop facilities that form a critical part of South Africa’s anti-rape strategy, aiming to reduce secondary victimisation and to build a case ready for successful prosecution. The Thuthuzela programme is led by the Sexual Offences and Community Affairs (SOCA) unit of the NPA. Since 2006, 55 centres have been established and the NPA is exploring opportunities to establish another five TCCs.

 

The NDPP did not want to delve into much detail about the Occupation Specific Dispensation (OSD) because it was the subject of litigation but expressed her dissatisfaction with the OSD stating that it has resulted in “those in production earning more than management”.

She informed the Committee of the sudden spike in crime which could be blamed on socio-economic factors such as gangsterism, drugs and unemployment. The NPA aspires to decrease crime by 50% which requires, amongst others, that more effort be made to determine the drivers behind the surge in crime.

Since the decriminalisation of marijuana, the NPA’s workload has increased tremendously, making it difficult to stay abreast of the situation especially considering the decreasing number of prosecutors. Efforts should be directed at locating marijuana dealers.

National Prosecuting Authority 2019/2020 APP
Ms Salome Baloyi, Acting NPA Head of Strategy, stated that the NPA sub-programmes align with its strategic objectives.

The main objective of the NPS is to ensure successful prosecution. The targets to achieve this include a conviction rate in courts of 87% and in complex crimes 93% whilst the conviction rate in sexual offences should be 70%. “Conviction rate is an important measure, but we need to consider other indicators to give a better overview of the organisations performance”, she added.

The key objective of the AFU is to guarantee the removal of profit from crimes. The targets to achieve this include a litigation success rate of 93% and at least R6.8 billion in freezing orders, whilst recovering a minimum of R2.2 billion in terms of the Prevention of Organised Crime Act (POCA).

The Office for Witness Protection aims to ensure that the number of witnesses threatened, harmed or killed while on the programme remains at zero and that the percentage of witnesses “walking off” the programme does not exceed 1.5%.

NPA Budget
Acting Chief Financial Officer, Ms Hanika van Zyl, gave a historical snapshot of 2018/19 indicating a shortfall in employee compensation that was funded through reallocations from the Department of Justice and the NPA’s operational budget. She quickly added that the NPA baseline would not be able to accommodate any reallocations from the operational budget during the MTEF period. The NPA budget for 2019/20 (excluding the Investigative Directorate budget) is R3 929 137 000 whilst its projected expenditure amounts to R4 050 638 000, indicating a shortfall of R121.5 million. As 89% of the budget is for personnel, it is inevitable that the NPA will face potential unauthorised expenditure to meet the shortfall, failing which it would have to dismiss 550 prosecutors. The total shortfall for the MTEF period for the next three years is R1.7 billion. Essentially, the NPA cannot consider any budget reductions without seriously hampering service delivery.

Discussion
Adv H Mohamed (ANC) appreciated the detailed presentation. He commented on the issues he identified as being in the public interest. On the Thuthuzela Care Centres (TCC), the number of victims assisted in these centres had been put as a new performance indicator, but there were media reports about some TCCs across the country going without counselling services. He also noted the target to open an additional five centres especially in the rural areas, and asked about what had been done to address the lack of counselling services in existing sites in particular? He pointed out there is an urgent need for that. Secondly, he appreciated the inter-agency cooperation mentioned and said the Committee believes that, on the whole, the anti-corruption task team’s efforts will yield something as recounted previously by the Minister. He wanted to know if the NPA also had engagements with the Auditor General (AG), because it is well-understood that in terms of existing legislation, the AG is able to refer cases of material findings to the NPA. There is also the issue of funding, especially personnel funding as had been mentioned. The Committee had previously engaged Treasury and the feedback was: due to the constrained fiscal outlook, the scope to provide additional funding was very limited- and this would seemingly be the case for some time. He noted the over-expenditure in personnel and expressed concern in terms of the Public Finance Management Act (PFMA). He applauded the NPA for the work done in such a short period of time. However, whenever issues were raised in the media, there needs to be a prompt response to them. For example, the issue of funding being sought from foreign donors. Maybe there was an official response to this, but it had to be circulated widely so that South Africans are very clear about the realities as things can get confusing at times.

Adv Lizelle Africa, Acting Regional Head of the Sexual Offences and Community Affairs (SOCA) Unit explained that Thuthuzela Centres are a multi-disciplinary initiative and the NPA is not solely responsible for it. The Departments of Health and Social Development as well as NGOs partners provide counselling at these centres. Sometimes the Departments of Health and Social Development will place counsellors at the centre, or they will fund NGOs to provide counselling services. Externally funded NGOs also assist with counselling. There have been difficulties with NGO related funding which caused certain centres to be without counselling services. However, there has been ongoing stakeholder engagement to obtain funding.

On the creation of five new centres, Adv Africa confirmed that the NPA has been engaging with stakeholders to assist. It will not establish a centre in an area where there are no partner stakeholders to provide psychosocial services. On the multi-disciplinary approach at TCCs, the Departments of Health, Social Development (DSD) and the South African Police Service (SAPS) were important stakeholders. DSD as a stakeholder was responsible for assisting with counselling. Some organisations that provide services at the TCCs receive external donor funding and where the organisations that have been funded externally experience funding challenges, DSD has been able to assist with funding because of the importance of the TCC services. DSD has also experienced severe budget cuts and they may not be able to cover such shortfalls in the future. She reiterated that there is ongoing stakeholder engagement with the organisations and DSD and that the funding challenge has been sorted out with the external funders being able to fund the TCCs for at least the next year. In terms of sustainability, on how to maintain this type of funding towards the provision of psychosocial care, part of the strategy is to engage with multidisciplinary stakeholders from the onset. TCCs not established in a site where a funding partner that could provide psychosocial services had not been found. So as far as the NPA was concerned, TCCs do provide the full services.

Adv Mohamed commended the NPA on its commitment to inter-agency collaboration and asked if the NPA has engaged with the Auditor General. From 1 April 2019, the Auditor General is entitled to refer material irregularities to the SIU. It would therefore be of interest to ensure co-ordination with the NPA.

The NDPP confirmed having met the Auditor General and said that she is committed to ensuring coordination between the NPA, SIU and Auditor General.

Adv Mohamed said potentially utilising CARA funds to aid the NPA is a good idea albeit unsustainable and suggested that the NPA consider saving on administration by utilising shared services.

In response, the Director General of the Department of Justice and Constitutional Development (DoJ&CD), Mr Vusi Madonsela, revealed that a team established to determine the feasibility of shared services had confirmed that it would not feasible. The unfeasibility, in part, is due to having a plethora of accounting officers having to be serviced by one shared service.

Adv Mohamed also suggested that the NPA utilise various platforms to remedy the negative view of the NPA. When there are key cases in the media, the NPA should provide citizens with prompt updates via various platforms so that citizens take comfort in knowing that the NPA is robust in carrying out its mandate.

The NDPP said she takes on this point about communicating with citizens.

The Chairperson told the NPA that it comes across as prioritising corruption and should aim to provide citizens with a more holistic view. Whilst combating corruption is imperative, it should dedicate efforts to all sectors (not just those in the media) to instil public confidence in the NPA.

Mr X Nqola (ANC) requested clarity on the cause of the budget shortfall.

Acting CFO, Ms van Zyl, explained that the costing was done on warm bodies and that if the NPA loses people then the shortfall will decrease.

The NDPP quickly added that the NPA is looking to retain people especially given the limited staff complement and cannot afford to lose staff.

Ms van Zyl continued that with a R94 million shortfall on the operational budget, the NPA will not be able to pay its service providers.

Mr Nqola enquired about the NPA procedure to deal with marijuana related cases given that it has caused a surge in cases before the courts. He specifically asked if the NPA has procedures in place to determine whether to prosecute in such cases.

In response, NPS Acting Head, Adv Sibongile Mzinyathi, confirmed that the NPA issued guidelines to all prosecutors. These guidelines deals with three instances: one, the accused has not yet pleaded; two, the case had come before the court and evidence has already been heard; and three, where the contravention occurs after the Constitutional Court’s order confirming the legality of using marijuana for personal and private use.

In cases where the accused has not yet pleaded, the prosecutor must confer with the Senior Public Prosecutor (SPP) to determine if the usage of marijuana was for private use only. To determine this, they will consider factors such as the quantity of marijuana and the apparatus used to grow it. If the accused has a plethora of plants and specialised equipment to cultivate marijuana, then it is likely that the accused is dealing in marijuana.

Where the accused has already appeared before the court and evidence has been led, the SPPs are given the discretion to exercise fairness. Although, the Constitutional Court’s order is not retrospective, if it appears that the marijuana was for private use then they may be acquitted.

In new cases where the accused was found in possession of marijuana, the prosecutor must determine if it was for private or commercial use by considering the quantity and apparatus use to cultivate the plant.

Ms W Newhoudt-Druchen (ANC) asked what was meant by a witness who “walked off” witness protection programme. She noted that there was no information on what percentage of the NPA staff are male, female, disabled etc. She asked if the NPA meets the 2% disability target.

The NDPP confirmed that they would provide written confirmation of these statistics.

Ms Newhoudt-Druchen raised concern about the lack of sign language interpreters in courts. Deaf children who are sexually molested cannot express themselves in the same manner as ordinary persons. In cases where there are no interpreters in court, prosecutors are reluctant to use external interpreters. Sometimes prosecutors dismiss a case because it is difficult to communicate with the victim.

The Director General responded that to date considerable effort has been put into ensuring that persons get access to the law in the official languages, but this has not been adequately extended to deaf persons. Sign language has not been considered as a language in the courts. It should be recognised as a language and given the necessary acknowledgement. He committed to provide a short-term solution whilst a long-term solution is being researched.

Adv Africa added that the Department of Justice is responsible for obtaining interpreters for deaf persons. However, it has been discovered that numerous children are not schooled in sign language. They may sign in a manner understandable by those in their household but not by the court. Even if the court has sign language interpreters, they are not always able to communicate with the child. Nevertheless, it is only a last resort to dismiss such a case as the NPA is governed by the law of evidence.

Adv G Breytenbach (DA) asked how the NDPP plans to manage the rogue elements within the top structure of the NPA.

The NDPP replied that “it is difficult to work in an organisation where you don’t know who to trust but in the interest of fairness, I think it’s best to say nothing, but I am acutely aware of it”. She expects to face more attacks as the NPA becomes more effective.

Adv Breytenbach reiterated her belief that the R37 million allocated for the Investigative Directorate, which the Minister was chuffed about, was inadequate and asked if the NPA has considered public-private partnership to obtain more money.

In response Adv Hermione Cronje, Head of the Investigative Directorate, explained that the Investigative Directorate is only a short-term intervention to address the specific problem of state capture. An entirely new organisation is not being opened. The Investigative Directorate will work within the system. Funding is not the main problem nor is money the only solution for all problems. Prosecution authorities around the globe face financial constraints. There is always too much work and too little funds. The Investigative Directorate will not be able to prosecute everyone involved state capture. The issue is more related to a management and leadership problem.

The DoJ&CD Director General interjected and claimed that he needed to “defend my Minister” because he felt that Adv Breytenbach’s comment about the Minister being chuffed with the R37 million allocation was akin to taking a swipe at the Minister.

Adv Breytenbach replied that it was not a swipe at the Minister.

Adv Breytenbach also asked how the NPA attempts to deal with its high vacancy rate and skills shortage. She commented that the 90 prosecutors that come from the Aspirant Prosecutor Programme “is nothing to write home about” because “completing the APA and prosecuting for a short period does not make one a prosecutor”. She requested more information on how the NPA Prosecutor Academy is progressing.

The DoJ&CD Director General confirmed that there was no reference to any NPA Academy. The Deputy Minister said that the former NDPP had intended to remove the APA from the Justice College however this was not approved.

Adv Breytenbach commented that the Anti-Corruption Task Team “has been a spectacular failure” and asked if it would be revamped.

She also asked if and how the NPA plans on bringing corrupt persons such as the Guptas to South Africa to account for their corruption and how it intends to deal with the problems experienced by SAPS. The NPA relies on the evidence provided by SAPS to prosecute matters but the latter is facing numerous challenges which impacts on NPA performance.

Mr W Horn (DA) appreciated the presentation and commented on the criminal cases backlog. The target was to have it at about 28 000 cases, but this year the target is now just to keep it at more or less 35000 cases. He fully appreciated that the vacancy rate might partly explain this, but experience also contributes to the backlog. That coupled with the ever decreasing court hours must be a big worry if one, for a moment, forgets about corruption and state capture in terms of bringing justice to ordinary people. He pointed out that the NPA says it has an immediate plan to bolster and strengthen the authority in respect to corruption and commercial crimes. But what was the short-term solution apart from money, to address the effectiveness of the Prosecutions Authority other than those dealt with extensively in the presentation.

Mr Horn, on convictions, said he was glad that the National Director agrees conviction rate could not be the only measure of success. For example, in the annual report there was an analysis done by the Rape Survivors Justice Campaign where they made the very salient point that the NPA and the Department could not say they were satisfied with the conviction rate of sexual offences if just more than 10% of those criminal complaints that go to the SAPS are ultimately put on the roll. There is ever a lingering question on whether prosecutors do not only enrol those cases where they see a very good chance of success. What was being done to try and get justice to all victims?

The NDPP conceded that in a statistics-driven environment; prosecutors may be susceptible to taking on only cases they believe will improve their statistics.

Adv Africa added that the reported number of sexual offences is not identical to the number of sexual offence cases before the court. There are numerous reported matters where suspects cannot be identified. This makes it nearly impossible to prosecute. Prosecutors will only take on matters where a prima facie case can be established. Matters against children can be particularly hard to prosecute especially in cases where they cannot identify the perpetrator or make out an offence. She contextualised that there are a number of reasons why reported matters at SAPS cannot equal the number of matters that are placed on the court roll and finalised. There are a number of matters where suspects cannot be identified or traced and that these matters will never be placed on the court roll unless they are traced or identified. She explained that those matters that do come to court, the prosecution has to decide whether there is a prima facie case to enrol the matters - this means that there must be an identified perpetrator and that there must be an offence. In cases with very young children, in some instances, they would have to be seen by a forensic social worker from the FCS units to assist with a report to guide the prosecution as to whether that child can identify a perpetrator and whether there is an offence and whether that child will be able to explain that in court.

Adv Africa also mentioned that even when cases are enrolled at court, that after consultation the prosecutor may have to withdraw that case for various reasons. The complainant may also at a later stage approach the prosecution to withdraw the matter. She reiterated that there are a number of reasons why matters do not go to court. She also mentioned that the NDPP mentioned in her address that about the 5% of malicious prosecutions that were successful against the NPA and that the NPA has to be sure that there is a prima facie case before that case is enrolled in court.  

Mr Horn pointed out that it is noteworthy that none of the previous NDPPs completed their term which affects the NPA’s credibility. He hopes that the NDPP will complete her term by demonstrating that the NPA prosecutes fairly and without fear. In light of this, he asked about her strategy to insulate herself from political interference, complaints and accusations and if she has received political pressure since taking office.

The NDPP replied that it is not about her as person dealing with complaints but rather the Office of the NDPP. She confirmed that she had not come under any political pressure to date but that she would inform the Committee if she does receive any in the future.

Ms N Maseko-Jele asked about the maintenance of the Thuthuzela Centres given that “there is a lot that is not going well”. She referred to a recent communication by the Chief Justice about the allegation that junior prosecutors are being left of their own accord without mentorship.

The NDPP responded by confirming that mentorship programmes are in place and that the NPA would investigate further.

Ms Maseko-Jele asked if the 2019/20 target indicator of 3 477 for murder was in line with the SONA commitment that violent crimes should be halved within ten years.

Adv Batohi replied that she will reconsider the figures and revert with an answer.

Ms Maseko-Jele requested a report confirming the amount of public money that must be recovered due to corruption and how the NPA is dealing with foreign corruption and bribery cases.

The NDPP confirmed that the NPA would provide the Committee with reports in writing.

Mr Q Dyanti (ANC) expressed his dissatisfaction with the 70% target for the prosecution of sexual offences. The NPA briefing indicates that “the justice system is stuck. The Committee must support the NPA but there is nothing in the presentation that makes a business case to assist the Committee. It would be better if the NPA presented on what they can and are doing given the limited resources.

Mr S Swart (ACDP) commenced by sympathising with the NPA on its financial challenges before conveying his frustration with the AFU budget being decreased by 25%. If the AFU has an optimal budget, it can carry out its mandate better and seize proceeds from illegal activities. Those proceeds could be used to improve service delivery. It is illogical that application must be made to Cabinet for CARA funds given that it is the AFU who collects the CARA funds. Such proceeds should revert to the NPA (especially the AFU).

The Director General replied that he would not support amendments to legislation on CARA funding because that legislation was carefully crafted. The proceeds of crime are not meant to augment departments but rather to support crime combatting agencies. If the AFU keeps the money it recovers, then the SIU would want to do the same. These recoveries would then become self-serving efforts instead of efforts to help the state combat the scourge of crime. However, he agreed the legislation should be amended to allow for a percentage of the recoveries to go to the AFU.

Adv Batohi agreed with the Director General’s recommendation that a percentage of the proceeds go to entities like the AFU and general law enforcement because “complainants need to get something back”.

Mr Swart confirmed having been involved with the Eskom Inquiry and knowing that the money had leaked to India and the United Arab Emirates (UAE). He was previously informed that there is interaction with Indian and UAE prosecutors, but no update has been provided. As South Africa is part of BRICS, it should not be difficult to secure co-operation with India and obtain updates.

Prof C Msimang (IFP) commented that the NPA presentation was honest yet concerning. He asked why 600 prosecutors recently resigned from the NPA.

In response, the NDPP clarified that 600 prosecutors did not resign in one stint. Instead the 600 refers to the number of prosecutors lost since 2015.

Prof Msimang noted that the NDPP sounded despondent and asked if her five months in office has brought any stability and hope for the future.

Adv Batohi denied sounding despondent and said that she came into an organisation knowing there were massive challenges but how these challenges are addressed is what fashions a nation. This is an opportunity to make a difference. “It is challenging. It is terrifying and also hugely exciting”, she said.

The Chairperson expressed his concern about obtaining finances and funding from private persons because this could entail taking money from the very persons being investigated.

The Director General, as the accounting officer of the NPA, responded that accepting funds from private citizens is a matter that must be investigated by the Executive before it is brought to Parliament. The Executive is currently researching mechanisms to insulate the NPA from instances where the very people making donations are the ones to be investigated.

The Chairperson highlighted the Committee’s anticipation of the amendment to sections 12(4) and (6) of the NPA Act about the extension of the NDPP’s term.

The Director General confirmed that an amendment has already been worked on and will be brought to Parliament shortly. He added that he would engage with Treasury to determine if prosecutor salaries, like magistrate salaries, could be ring fenced to ensure that prosecutor salaries are not impacted during budget cuts.

The Chairperson noted that it is unsustainable for 89% of the NPA budget to be for personnel before reiterating the importance of a functioning justice system. If the justice system is failing, then investors will be reluctant to invest. Hence a well-functioning justice system also has a role to play in developing the economy.

The Chairperson concluded by noting that he is aware that the NPA is dealing with complex issues and that the Committee “will criticise the NPA at times, but it is only to improve the situation”. He thanked everyone for their attendance and adjourned the meeting.