National Prosecuting Authority & Public Protector South Africa 2022/23 Annual Performance Plan

Meeting report

The Chairperson indicated that both the NPA and the PPSA would brief the Committee on their budgets and their APPs for the 2022/2023 financial year.

Briefing by the NPA on its budget and APP

Adv Shamila Batohi, NDPP, NPA, indicated that the NPA would brief the Committee on its budget and APP, following last week’s briefing by the Minister. The authority had noted some of the remarks made by the Minister and would address them in its presentation.

Adv Batohi and Deputy NDPP (DNDPP): Strategy, Operations and Compliance Adv Anton Du Plessis briefed the Committee on the NPA’s budget and APP.

In her introductory remarks, Adv Batohi indicated that the NPA believes that its APP for 2022/23 will ensure that it is better suited to deal with emerging realities in the country. In an effort to tackle the high levels of corruption in the country, the NPA has prioritised the following initiatives:

• The enrollment of nine seminal matters in the next six months, with the assistance of the Directorate for Priority Crime Investigation (DPCI)
• Capacitation, expanded powers and permanence of the ID
• Collaboration with international firms to trace and recover stolen monies and the development of a system for non-prosecution decisions
• Conducting a skills assessment on high level corruption matters

Performance for 2021/22

Adv du Plessis indicated that the NPA had two sub-outcomes for the 2021/22 financial year, which were: increased feelings of security and safety; and improved investor confidence through high-impact prosecution.

Sub-outcome 1

He mentioned that the output for this outcome was the effective prosecutions conducted. For 2021/22, the NPA achieved a 93.8% conviction rate in the High Court (HC), an 82.6% conviction rate in the Regional Court (RC), and a 95.9% conviction rate in the District Court (DC). However, for the medium-term (the next three financial years), the NPA has targeted lower conviction rates for each court (87% in the HC, 74% in the HC and 88% in the DC). He added that the authority was pleased that no witnesses on the witness protection programme (WPP) were threatened, harmed or killed.

Sub-outcome 2

He indicated that the output for this outcome was the number of fraud and corruption cases dealt with; freezing of money and assets that are the proceeds of crime; recovery of money and assets that are the proceeds of crime; and enhanced victim-centric services. The NPA only managed to finalise 44 cases out of 100 – with a verdict – involving money laundering. However, it plans to finalise 100 cases for 2022/23, 2023/24 and 120 for 2024/25. Furthermore, it managed to achieve a 90.2% conviction rate in complex commercial crime and it has set this as its target for the next three financial years.

He mentioned that for 2021/22, the NPA managed to obtain R611 million worth of freezing orders for corruption, against a target of R2.4 billion. It has set the same target for the next three financial years. The authority, he added, was disappointed that it was only able to recover R3 million of money related to corruption, against a target of R311 million. To make up for this, it has set a target of R1.4 billion for the next three financial years.

Under the victim-centric services enhanced, he said that the NPA increased the number of Thuthuzela Care Centres (TCCs) to 55, against a target of 58. It has targeted increasing the number to 62 in 2022/23, 64 in 2023/24 and 66 in 2024/25. In addition, it overachieved in its conviction rate in sexual offences, achieving a 75.8% success rate.

Budget vs expenditure

He highlighted that for the 2020/21 financial year, the NPA received a R4.6 billion final appropriated budget, of which R3.9 billion, or 85%, went to the compensation of employees. For the medium-term expenditure framework (MTEF), the NPA will receive an additional allocation of R422 million for 2022/23, R327.3 million for 2023/24 and R342 million for 2024/25. This additional funding will be used, amongst other things, to increase the capacity within the authority, with 700 aspirant prosecutors to be placed in the National Prosecutions Service (NPS); 17 senior advocates in the Asset Forfeiture Unit (AFU); 91 investigators and prosecutors in the ID.

The budget for 2022/23 has increased to R4.9 billion and will increase by 3% over the MTEF period, with the compensation of employees remaining as the highest expenditure item. In addition, the overall budget allocation for the authority’s sub-programmes is expected to increase over the MTEF, with the ID budget expected to from R243.5 million in 2022/23, to R246.6 million in 2023/23 – representing a 42.56% increase.

The Authority, he said, was pleased with the increased budget allocation for the 2022/23 financial year, which it believes will assist it in the fight against corruption.

(See Presentation)

The Chairperson opened the floor for discussion.

Discussion

Adv G Breytenbach (DA) was encouraged by some of the successes achieved by the NPA over the past two months. However, she highlighted that it has not had success in prosecuting the high-profile cases that the public is looking for.

She then posed several questions. One, she asked if the NPA measures increased successful prosecutions and if so, what has been the progress thus far. Additionally, she asked if the entity measures how much profit obtained from criminal activities has been retrieved and if so, what has been the progress thus far.

Two, she asked how the NPA measures how well it has done in measuring its protection of vulnerable and intimidated witnesses. Further, she asked how the witness protection programme is set up and what its plan is. If it was unable to provide an answer, she recommended that it provide one in writing.

Three, she asked what is being done to improve the NPA’s capability to prosecute cybersecurity cases. She added that in her experience the NPA has always been ten steps behind cybercriminals. As such, she asked what is being done to address that problem.

Four, she asked what results the skills assessment has delivered thus far.

Five, she asked what the ID’s plans are to deal with the other cases that are not currently being prioritised – as it mentioned that it has prioritised nine seminal cases in the next six months.

She was pleased that the NPA is finally looking to leverage private sector assistance, as this recommendation was initially not well received when the Committee made it. Following this, she asked what the Authority’s plan is in this regard. In addition, she asked how the NPA would utilise the infrastructure, money, and skills offered by the private sector, which she believes has a great deal of goodwill. 

Six, she asked if the NPA is in conversation with the South African Police Services (SAPS) on how to improve its skills, as it is no good to train and upskill prosecutors if the police are unable to provide quality dockets. She described SAPS 'decision to close down its detective academy and its commercial crime academy. 

Seven, she asked if there has been progress on the NPA’s initiative to establish an office for complaints and ethics, to comply with section 22(5) of the NPA Act.

Regarding the NPA’s complaints about the criticism it has received, she said that if the perception of the general public is that the Authority is not performing, it should look to improve its results. She added that one high profile prosecution would silence the critics.

Eight, she asked what the NPA and the rest of the Law Enforcement Agencies (LEAs) are doing to fight against terrorism, as the Financial Action Task Force (FATF) found that while South Africa (SA) has a solid legal framework to combat money laundering and terrorist financing, it has not done well in its implementation. She also underlined that terrorism financing has become a serious problem in the country. 

She took issue with the NDPP’s stating that she did not want to discuss public money that the NPA has spent. Particularly as it is public money and the public is entitled to know how it has been used.

Nine, she asked for an explanation regarding the (alleged) financial arrangement the NPA made with fraud-accused, ex-AFU head Knorx Molelle – who was in the midst of a disciplinary hearing and has now since left the Authority – particularly as it is the subject of a confidentiality clause.

Mr W Horn (DA) referring to slide 4, asked what the progress has been on the stated priority areas since the appointment of the NDPP. He asked whether the skills assessment had been completed and if it had been, what was revealed. Further, what has been done to address the skills shortages. 

He indicated that the AFU has high vacancy rates, particularly among advocates, financial professionals and crime experts. This, he believes, has led to its poor performance. Citing a paper from the African Criminal Reform Justice Project (ACRJP), which found that drastic steps should be taken to prevent further resignations at the NPA, he asked what has been done since the appointment of the NDPP to improve the low staff morale. 

He asked what the NPA has done to assist in the project of preventing the sabotage of strategic public infrastructure and prosecuting those found responsible.

The NDPP, he highlighted, has been vocal regarding the unfairness surrounding the perceptions and reporting of the referrals from the Special Investigating Unit (SIU). An MOU has been entered into, and bi-weekly meetings have been put in place. Despite all of this, the previous report mentioned that the department should look to amend the legislative framework. As such, he asked what progress, if any, the NPA has achieved working with the legislative drafting unit, to address the issue.

He then asked how the NPA has used local and foreign donations it has received.

In his briefing to the Committee, the Minister acknowledged the need to amend and update the architecture of the anti-corruption legislative framework. He asked if the NPA had been a part of the process to identify this need and if so, what weaknesses were identified in the legislation. Additionally, he asked for an update on the protection of whistleblowers involved in exposing alleged corruption.

Regarding cybercrimes, he asked what the Authority’s plan to deal with such crimes is.

On the backlog-clearing project, he asked if the NPA could unpack what the progress has been thus far. In addition, he asked if the financial implications have been factored into the current budget, as the project will require prosecutors and other staff to work longer court hours.

He asked for the NPA to account for not providing targets that give a sense of the number of cases it plans to enroll for the current financial year. Due to several issues, the number of cases currently enrolled is not enough to address crime in the country.

Adv S Swart (ACDP) commended the NPA for its work, noting that it has been operating under difficult circumstances. He was pleased that the budget has been improved and trusts that this will assist in increasing the number of successful prosecutions. With the preservation of Optimum Coal and Regiments assets’, he felt that the NPA is heading in the right direction.

Noting its historical underperformance, he asked if there has been an increase in the AFU’s budget, as it plays an important role in the fight against crime.

A recent business day article underlined that gangsterism has become the primary means to access resources in the country and is a threat to its democracy. As such, he asked how the NPA would target the various criminal syndicates in the country, whilst also dealing with corruption.

He called for all individuals implicated in the Zondo Commission (ZC) to be prosecuted and jailed. He made two recommendations in this regard. One, that the NPA looks to utilise tax laws to prosecute those implicated in criminal activities. Two, that it considers cooperating with foreign courts and other LEAs to follow the illicit financial flows of money internationally.

Going forward, he asked for an update on the progress regarding the extradition and mutual assistance agreements, particularly the one signed with the United Arab Emirates (UAE) concerning the Gupta family.

Whilst noting the increased budget for the witness protection, he indicated the Committee would support the NPA if it felt that Parliament should review the Protected Disclosures Act (PDA), as whistleblowers cannot be murdered.

Touching on the Fusion Centre, he asked if it will be tasked with dealing with the potential misappropriation of the emergency funds given to the KwaZulu-Natal (KZN) provincial government, to provide relief to families affected by the floods. Additionally, he asked for the progress on the prosecutions of those implicated in the July 2021 rioting and looting.

He congratulated Adv Andrea Johnson on her appointment and asked for her comment regarding the constraints the ID is facing. He welcomed the consideration for making the directorate permanent, given that it is halfway into its lifespan.

With the vacancy rate of critical posts standing at 20%, he asked if the authority is satisfied with the speed at which vacant posts, especially critical ones, are being filled.

Ms W Newhoudt-Druchen (ANC) welcomed the appointment of Adv Johnson as the new head of the ID.

She asked if the NPA has decided where the new TCCs will be established. She was concerned that the sexual offences conviction rate has dropped from 75% to 70%, and asked if is possible to keep it at a higher rate. 

She asked for an update on the housebreaking projects, the current backlog of court cases, and the NPA’s role in dealing with it.

Noting the high vacancy rate, she asked whether the 700 aspirant prosecutors have been recruited by the Authority. If not, whether they would be recruited during the current financial year. In addition, she asked how far the Authority was in its recruitment drive, to assist with the filling of vacancies.

She then asked what impact the Covid-19 regulations have had on the NPA’s work thus far.

Ms A Ramolobeng (ANC) mentioned that during the Committee’s oversight visit in January to the NPA offices, officials indicated that the 15-year office lease had ended and the Authority had entered into a month-to-month arrangement. During the visit, the NPA also indicated that it was looking to rent-to-buy the offices. Yet in the presentation, it indicated that it has extended its lease. She asked what had happened to the idea of rent-to-buy and whether it had discussed this option with the Department of Public Works and Infrastructure (DPWI).

She asked if the NPA had resolved to recommend the amendment of the PDA. In addition, she asked if it has decided on how it will strengthen the witness protection unit (WPU) and where it will be located.

Regarding Optimum Coal Mine, she stated that the mining community in the area cited interference by the NPA on the business decisions taken at the mine. She asked whether these allegations were true, and if not, what the involvement of the NPA was.

She asked how far the Authority was on implementing the President’s stated plan to establish special courts to prosecute corruption cases. Further, she asked how far the consultations with the judiciary were and whether it is ready to start with prosecutions once the courts are established.

She asked why the NPA had dropped its targeted number of convictions for offences related to corruption from 370 in 2021/22, to 334 in 2022/23.

Given the urgency to implement the ZC’s recommendations, she asked for an update on the progress of the recruitment drive.

Referring to the oversight visit in March, she said she was left traumatised by the state of the offices used by the NPA prosecutors stationed at the lower courts. In certain cases, six officials are clustered in one office. She asked if there are plans to secure proper offices for these officials.

Mr J Engelbrecht (DA) asked what the Authority’s position on the occupation specific dispensation (OSD) was. Also, what is being done to address the significant salary gap between the various ranks and the low morale it has caused.

Ms Y Yako (EFF) said that with the public pressure for the NPA to prosecute white-collar crimes in the country, it was concerning that crimes committed by influential individuals have been dragged on for this long. As such, she asked how often the NPA evaluates its high-priority cases and their progress. She urged for these individuals to be prosecuted and jailed, to illustrate that crime does not pay.

She also asked for the NPA’s strategy to turn around the backlog of cases.

The Chairperson mentioned that the AFU had previously promised to submit its turnaround strategy to the Committee, however, it is yet to do so. He asked whether the strategy had been completed, if not, when it would be and when it would be submitted. 

Referring to the NDPP’s earlier statement that in the next six months nine seminal cases will be enrolled, he asked what the starting date of this period was, so that the Committee is able to monitor the progress.

He highlighted that FATF stated that the AFU places emphasis on its civil forfeiture powers under the Prevention of Organised Crime Act (POCA) but less on the criminal confiscation of property of equivalent value. He asked if this statement is correct. In addition, he asked what the authority is doing to ensure the confiscation of property owned by criminals.

He asked if the NPA noted issues with POCA, as the Zondo report highlighted that only one prosecution has been achieved under this Act. If it has noted issues, he asked if there are planned amendments it would like the Committee to look into. If there are no problems with the legislation, he asked why after so many years since its passing, has there only been one prosecution.

He asked the NPA to explain the drop in the conviction rate of complex commercial crime from 90% in 2021/2022 to 90% this financial year.

He was concerned that the Authority has some static targets, the first being the value of completed forfeiture cases, which will remain at R550 million this financial year. This, he believes, is inconsistent with the NPA’s goal of ensuring that all proceeds of State Capture are recovered. Two, the value of freezing orders obtained from corruption, will remain at R2.4 billion, yet the estimated amount looted during the State Capture years stands at R1.5 trillion. Three, the conviction rate for sexual offences, will remain at 70% up until 2024.

The Committee, he said, would like the APP to respond to the challenges facing the country. He requested that when it reports in October, it should provide the actual number of cases beneath the percentages.

He asked why the AFU, despite the fact that it is tasked with complex issues, has received an 80% budget increase, which is smaller than the other units of the NPA. 

He recommended that the Committee adjourn for ten minutes, to allow for the officials to organise their responses to the questions posed.

The meeting was adjourned for ten minutes.

Adv Du Plessis described the findings of the ACRJP study as factually inaccurate, as the attrition rate at the Authority is 2% per annum – which is significantly lower than the rate at other government departments, which stands at 10%. He added that the NPA does not struggle to obtain applications and retain its staff. Of those that do leave, they only do so to join the magistrate courts. He admitted that State Capture had a devastating impact on the capacity of the institution, hence the NDPP focused her first three years on rebuilding the NPA. It is now pivoting to being fit for purpose. Presently the Authority has several initiatives to improve the staff morale, which it believes is pivotal in improving performance.

He clarified that the actual percentage rate for prosecutors is 16%, which is partly due to the creation of over 600 new posts in the last two years. Prior to 2019, the NPA did not have money to recruit additional staff, however, since obtaining the funding, it has managed to recruit 1700 new staff members, of which 700 were aspirant applicants. Soon, he mentioned, the NPA will look to reallocate some of the posts (which will also drop the 16% vacancy rate), as part of its effort to prioritise corruption. He assured Members that the NPA does not have a crisis of filling posts and resignations.

However, he admitted that the NPA does have a challenge with specialised capacity, particularly due to the overwhelming complexity of cases – in terms of the substance and scale of cases. As part of its efforts to upskill prosecutors, the NPA has a number of training initiatives and partnerships with local and international universities. This process, he believes, will take some time.

On the impact of Covid, he stated that it was devastating to the functioning of the NPA, as it deals with frontline work. 68 prosecutors were lost due to Covid-19 and more than 1000 contracted the virus but, the Authority has a Covid-19 policy that has allowed for it to have a level of continuity.

Referring to cybercrime, he admitted that the institution is still lagging behind and it is looking to work with the private sector to capacitate prosecutors with cyber forensic skills. Earlier in the day, the NPA released a press statement on its collaboration with the ZC, including the increase in the authority’s cyber capacity. The Authority, he added, will be ramping this up in the coming weeks.

He confirmed that the Authority has completed the first round of its skills assessment. Presently it is looking at international benchmarking on what skills are needed regionally and internationally, to prosecute high-level and complex corruption cases. This process, he said, is almost complete and once it is, it will inform the capacitation and training initiative, as well as the prioritisation of how to utilise internal skills. He added that the Authority would be willing to share the results of the first round with the Committee.

Regarding the Office for Ethics and Accountability, he mentioned that it is an important initiative, which will ensure that the Authority delivers on the Integrity and Anti-Corruption Advisory Committee values, particularly concerning its credibility. The Authority has partnered with the DOJCD to set up the terms of reference. He added that the committee has met twice and has established how it will engage with donations from foreign governments and the private sector – so that it does not affect the functioning of the NPA and its independence.

Before reaching the NPA, the donations go through the National Treasury’s (NT) Reconstruction and Development Programme Fund (RDP-fund). He added that any income contributions will be managed through NT prescripts, closely with the NT and the Donor Oversight Committee.

Still referring to the office, he said that the internal mechanisms and regulations are currently with the Minister. Presently the NPA is looking at costing the office, however, it has gone through all the internal processes and is at an advanced stage in establishing the office. The office, he added, will be operational once the regulations are signed by the Minister.

On the WPU, he stated that there are ongoing discussions with the Director-General of the DOJCD, on whether it will reside with the NPA. In the interim, the authority is working to ensure that the unit is capacitated and effectively run. He was pleased that no witnesses under protection have been intimidated or killed.

Touching on the OSD, he said that the issue of salary differences between DNDPP’s and Chief Prosecutors is long-standing and has involved litigation. An internal team has been set up and is engaging with the affected officials, whilst the Authority awaits approval from the Minister to finalise the matter.

Regarding the matter concerning Adv Molelle, he said that there had been no deal between him and the Authority. It was an internal disciplinary process that was handled by external counsel. As it was an internal matter affecting an employee, he asked that the authority provide a detailed written response.

The Chairperson requested that the NPA provide a full report on the disciplinary hearing before 15 June 2022.

Adv. Batohi agreed to do so.

Adv Ouma Rabaji-Rasethaba, DNDPP: AFU, addressed the question of how the AFU measures taking profit out of crime. She explained that it looks at the value of the assets forfeited. If the AFU seizes the full value of the proceeds, in terms of the APP targets, it has been successful in recovering the proceeds. For instance, with the Asbestos case, the AFU has a confirmed restraining order of R205 million, which is the total amount paid for work not done.

On how it measures good progress, she indicated that it does so by noting whether the outcomes speak to one of its core objectives, such as increasing investor confidence in the country. Good progress, she believes, would be retrieving much of the R1.5 trillion estimated to have been stolen.

Touching on the vacancies in the AFU, she mentioned that the unit had last filled vacancies for financial investigators in 2009 when the Scorpions was disbanded. Since the appointment of the NDPP in 2019, the unit had to create 63 positions for enforcement, over and above employing 95 new officials, which has moved the staff number from 122 to 217 (which includes 15 contractors). She was pleased that there has been growth in this regard.

Regarding the AFU’s low budget, she stated that the unit is currently finalising an NPA asset-recovery strategy, which will be submitted to the Minister. It believes that this strategy will assist in recovering the billions that have left the country’s shores. For instance, R57 billion was taken from Transnet and placed in 200 offshore accounts. She added that the unit needs to work with foreign LEAs, law firms, and forensic investigative companies, to speedily retrieve the stolen money.

Referring to FATF’s findings, she indicated that the AFU looks to ensure that there is no dissipation of company assets by following Chapter 6 of the Companies Act. When the FATF assessments were done, the assessors looked into the R1.6 billion irregularly paid by Eskom to Mckinsey and the rehabilitation of Optimum Coal Mine. To date, the AFU has seized R5.9 billion worth of assets related to State Capture. Of this amount, R2.3 billion refers to the Albertine matter; R1.4 billion to the Eskom vs Tlhakudi matter, which is currently in court; and the Nulani R500 million uncapped restraining order of Gupta assets; as well as the Asbestos funds. She believes that the unit has performed well.

Regarding the allegations of NPA interference at Optimum, she stated that the mining community from the Steve Tshwete Local Municipality went to the NPA offices and delivered a memorandum outlining their concerns with the job losses at the mine. Subsequently, the National Union of Mineworkers (NUM) filed at the court to enter the matter. When the matter was heard in court on 10 March 2022, both the NPA and NUM lawyers filed a joint practice note. This, she explained, meant that both parties agree that there should be no job losses at the mine. She proposed that the Authority provide a written response on the matter and also submit the joint practice note document.

She added that the Authority is fighting to ensure that the business practitioners do not implement a business rescue plan which will give away the mine to Gupta associates. Once the matter is finalised, the AFU will sell the mine to the highest bidder.

On the turnaround strategy, she said that the AFU is working towards achieving the targets contained in the MTEF and Estimates of National Expenditure (ENE). Thus far, it has exceeded the freezing and restraint order targets – and it has made significant strides in achieving the rest of the targets. She indicated that the NPA will provide the Committee with the AFU’s turnaround strategy, alongside the other submissions.

The Chairperson asked if she meant that it will submit the strategy on 15 June with the other requested documents.

Adv Rabaji-Rasethaba confirmed that is what she had meant.

Adv Rodney de Kock, DNDPP: National Prosecutions Service, NPA, mentioned that the treaty between SA and UAE has been signed and ratified. The ratification instruments have been exchanged between the two governments in July 2021, thus, the treaties are operational. He added that the only remaining question when using the mechanism is evaluating whether particular individuals are residents of the countries in question.

Regarding FATF, the NPA has established a money-laundering desk, that comprises all the business units of the NPA, such as the organised crime units, priority crimes litigation units (PCLU), the supporting units and the AFU. The Authority is also working closely with LEAs in the country. Both the Financial Intelligence Centre (FIC) and the NPA take the lead in coordinating the work that is being done on behalf of the country, in relation to the implementation plan of mutual evaluation report for SA.

The NPA’s, through the PCLU, works with Counter-Terrorism Functional Committee – which has been established to look into questions of how to deal with amendments to the Division of Revenue Act (DORA) – at a national level and this work is being led by the NPA’s intelligence services. The legislation, he added, will be submitted to the Committee once it has been approved by the Justice, Crime Prevention and Security (JCPS) Cluster leadership.

He informed Members that the NPA works closely with other LEAs to obtain intelligence to support prosecution. There is also an inter-departmental counter-terrorism working group – that is run by the Department of International Relations and Cooperation – in which the NPA participates in. These meetings occur on a regular basis. In addition, he said that the NPA has prosecutors located at its head office who are seized with coordination and it has trained prosecutors in the Provincial Director of Public Prosecutions, to deal with such cases.

Touching on FATF’s work, he indicated that the money-laundering desk is working closely with the Directorate for Priority Crime Investigation (DPCI) and has also incorporated the work relevant to the SIU into this, from a money-laundering perspective. Furthermore, the NPA also works with the FIC on investigations and intelligence related to money laundering. In this financial year, the NPA has included the prosecutor’s work plans, which going forward will also include the obligations relating to the identification and the prosecution of money-laundering cases. This, he explained, means that prosecutors will have to report work relevant to international obligations.

Still speaking to the efforts on money-laundering, he stated that the NPA provides guidance from both a prosecution and investigative view on third-party money-laundering, professional enables stand-alone money laundering, and money-laundering networks. Presently the Authority is looking to capacitate the Specialised Commercial Crime Unit (SCCU), the AFU, the PCIU, and the AFU. He added that it is also looking at the creation of new posts, especially those that focus on financial investigations.

Regarding the joint training with SAPS, he indicated that much work has been done and is still ongoing. In the last round of training, 929 prosecutors and investigators have been trained in a joint initiative with SAPS. This initiative has been conducted in two parts and the second part was finalised within the last financial year at the end of March 2022. Prosecutors are working daily with the police and assisting investigations. Recently, the NPA had a meeting with SAPS senior officials, where they looked at initiatives to support the police in the work they do, particularly on the DNA initiative (which looks to fast tracking DNA reports).

He confirmed that the police training academy is still fully functional and clarified that SAPS is responsible for its own training initiatives. The Justice College Programme is currently doing well and has a detailed programme for prosecutors. In the past year, 1169 prosecutors went through the programme. Prosecutors are trained on trial preparation, chain evidence, DNA evidence, cyber fraud, cybercrimes, child pornography, gender-based violence, corruption, confessions and admissions. 

On FATF obligations, he indicated that the NPA is working with the relevant departments and plans to complete the work by October. NT has taken a keen lead on this, and regular meetings are convened through NT, FIC. This is also being discussed at the Anti-Corruption Task Team (ACTT) and is a standing item. He added that the authority is doing what it can to address the concerns identified in the evaluation report.

Touching on the number of matters enrolled, he indicated that in 2020/21, the NPA had 138 000 cases with a verdict, which increased to 153 000 the following year, representing an 11% improvement. The authority, he added, is pleased that it is moving in the right direction, however, it has noted that the backlogs have increased. To address this matter, the provincial Director of Public Prosecutions (DPPs) are called for monthly, two-day meetings. Discussions in the previous meeting focused on the backlogs in the courts and the interventions required to reduce them. He acknowledged that the backlog of cases has increased from 527 000 in 2020/2021, to 556 000 in 2021/2022, representing a 5.5% increase.

Regarding the July unrest cases, there are 156 matters currently being investigated in KZN, which include organised crime components. Furthermore, the ACTT has decided to place measures to investigate instances where there is corruption, fraud or irregularities, in connection with the KZN recovery money.

Referring to the sexual offences conviction rate, he indicated that this target has not been reduced and still remains at 70%. He added that the conviction rate used to be 60%, but has improved to a rate between 74-75%.

Elaborating on sentences handed down for convicted sexual offenders, he said that in the 2021/2022 financial year, 201 life imprisonment sentences were handed down by the courts, which he believes is a commendable achievement. In addition, 106 convictions between 20-25 years and 378 convictions of accused persons, were handed down.

On the static targets, he said that when setting a target, the NPA has to consider that pitching a high target may incentivise prosecutors to bring cases that they believe will be easier to prosecute, instead of the complex and high-level matters.

The NPA, he said, will take note of the need to improve the conviction rate incrementally.

Adv Du Plessis, referring to the lease matter, said that the NPA has extended the lease for its office but it is also exploring a lease-to-buy agreement. Currently, it is finalising a feasibility study on this option and it hopes to do so as soon as possible so that by the end of this contract it will be able to move into a building it owns.

On the conditions of offices at the lower courts, he mentioned that this responsibility falls under both the DOJCD and the DPWI, not the NPA. Nevertheless, the Authority is working with both departments to improve the conditions of offices occupied by prosecutors in lower courts.

Regarding how it measures the effect of its support to victims and witnesses, he stated that this is done by evaluating the various witness support and court preparation officer programmes it has. All the details, he indicated, will be included in the annual report presentation in October.

Adv Andrea Johnson, Head, ID, indicated that she took office on 1 March 2022 and appreciated the well wishes from Members.

She highlighted that the ID recognises the value of private-public partnerships and collaborations. It also places value on enhanced stakeholder engagement as a mechanism to deal with the various corruption-related matters. She added that the ID has undertaken to enroll nine seminal cases in the next six months, which it believes will go a long way in restoring faith and credibility in the NPA.

She informed the Committee that the ID has a new appreciation – and energy – in delivering its mandate and asked for the public to hold her to her words. 

Adv Batohi believes that the NPA does have a good legal framework but it needs to be strengthened. She indicated that the JCPS has taken a decision to strengthen the legal framework to fight corruption. She asked if the authority could provide, in writing, the gaps in the legal framework it has noted.

Regarding the TCCs, she said that the NPA hopes to add five more centres in this financial year.

She explained that it is possible that the number of cases prosecuted in corruption matters could decrease once the Authority focuses on complex and high-profile matters. She cautioned against chasing numbers like in the past, where all of the simpler matters were placed on the roll to meet these targets, whereas the important cases were not prioritised.

Referring to prosecuting through tax laws, she mentioned that the Authority is aware of this strategy and has engaged with the South African Revenue Services (SARS) Commissioner on this operation. Furthermore, specialised tax prosecutors in the NPS are working with SARS and the ID, to deal with tax-related contraventions, whilst the NPA proceeds with the other serious corruption cases.

On cases being dragged on for years, she indicated that NPA head officials are meeting almost weekly to deal with high-profile cases. A task force has been established, which includes the DPCI, the NPS, the ID and the AFU: this task force is looking at how to tackle the key cases identified. She cautioned against targeting individuals based on skin colour and advocated for the instituting of cases to be driven by evidence.

Regarding SAPS’ resources, she mentioned that the success of a prosecution depends on the quality of SAPS investigations. She called for the government to invest in capacitating SAPS so that it is able to focus on improving intelligence-driven projects to deal with organised crime. This matter, she believes, needs to be analysed systematically.

Referring to the ID, she stated that the new leadership will be important in ensuring it achieves its goals. The NPA, she added, is working on sourcing resources for the ID.

Touching on nine seminal cases, she said that the ID decided to, in the short-term, focus on dealing with certain seminal cases immediately. Whilst doing so, it is working on a long-term strategy on how to deal with other corruption cases.

She agreed that to deal with the negative public perceptions, the Authority has to produce results. While there have been prosecutions, the Authority, she believes, must continue to ensure that it produces ongoing results. Though officials are not where they want to be, they are pleased with the current progress and believe that the authority now has a good leadership team that is committed to delivering on the APP. 

The Chairperson asked if the NPA could, in writing, confirm if it has identified issues with POCA and why only one individual has been prosecuted since its inception. Additionally, he asked that it also respond to the question regarding the murder of Babita Deokaran, as well as the static figures in the APP.

Adv Rabaji-Rasethaba explained that the MTEF targets for the value of freezing orders in corruption cases and the value of recoveries in corruption cases were set up for five years from 2019 to 2024. During the drafting of the plans, it was expected that the R2.5 billion and the R1.2 billion would be yearly accumulative targets for five years.

She indicated that the NPA has started with investigations into State Capture; it is in the process of developing systems and processes; and is currently collaborating with other LEAs to investigate cases. During the initial period, significant progress was made, with the success of the Mining rehabilitation and McKinsey cases. She added that going forward the AFU will focus on corruption matters to achieve the two targets.

She explained that the NPA recognises that significant collaboration and cooperation are required to fast track prosecutions of high-value corruption matters. When the Authority next sets its MTEF, it will consider increasing the target numbers.

The Chairperson mentioned that the public is expecting LEAs to retrieve the estimated R1.5 trillion looted from the state coffers but if the NPA’s target is to recover R2 billion this financial year, it will never meet the public’s expectations.

Adv Batohi agreed that the current targets would not lead to the authority recovering all the money lost to State Capture. All the targets are part of the five-year strategy, which is from 2019 to 2024. When she took office, the AFU was not capacitated, and the State Capture team set up had not been delivering on its objectives. As a result, the targets might have been conservative. Presently, the NPA is looking to revise its targets for this financial year, but it might be too late. The prosecution of big-value cases, she added, is dependent on mutual legal assistance with international LEAs, government and non-government agencies.

The Chairperson, referring to the nine seminal cases that will be enrolled, asked what the starting date of this period was and when it would end.

Adv Batohi indicated that it began on 31 March 2022 and ends on 30 September 2022.

The Chairperson thanked the NPA officials for the engagement and expects to hear more positive news during the presentation of its Budget Review and Recommendations Report in October. 

He then invited the PPSA to brief the Committee on its budget and APP.

PPSA briefing on its APP and budget 2022/2023 financial year

Adv Busisiwe Mkhwebane, Public Protector of South Africa,  introduced all the officials present in the meeting.

Adv Mkhwebane, the Chief Executive Officer (CEO) of PPSA, Ms Thandi Sibanyoni and the Chief Financial Officer (CFO), Ms Yalekile Lusibane, briefed the Committee on PPSA’s APP and budget for the 2022/23 financial year.

Adv Mkhwebane, in her introductory remarks, indicated that PPSA had increased the number of complaint drop-boxes in nearly 50 municipal areas, as part of its goal to provide grassroots communities greater access to its services. The complaint forms and information material have been published in all 11 languages and are placed alongside each drop-box. Each week, outreach officials in the provinces collect the complaints for further examination.

She was pleased to mention that PPSA has entered into Memoranda of Understandings (MOU) with the SIU, the South African Human Rights Commission (SAHRC), Provincial Legislatures, the Tax Ombud and the Health Ombudsman. Through these agreements, PPSA has been able to collaborate, cross-refer matters and manage mandate overlaps effectively.

She then listed more of PPSA’s achievements, some of which were: compelling other organs of State to establish effective in-house complaints resolution units to serve as complaints structures of first instance; and the launch of its Mobile Referral Application (MRA).

She also highlighted some of PPSA’s targets for this financial year, which include, finalising 80% of investigations within the set timeframes (six to 36 months); and concluding eight investigations into issues affecting the higher education sector, the criminal justice system in relation to Gender-based violence (GBV).

Administration targets

Ms Sibanyoni went on to elaborate on PPSA’s targets for the financial year, some of which were:

• Maintaining a clean audit for 2021/22, 2022/23 and 2023/24 financial years
• The 100% implementation of a Case Management Application (CMA) by 31 March 2023
• The 100% implementation of a self-service portal by 31 March 2024
• The finalisation of three systemic investigations by 31 March 2023; four by 31 March 2024 and five by 31 March 2025
• The finalisation of 80 investigative reports by 31 March 2023, 2024 and 2025
• Submit four quarterly reports to Parliament on the implementation of remedial action by 31 March 2023, 2024 and 2025

2021/22 expenditure

Ms Lusibane indicated that PPSA’s approved budget (which is largely made up of transfers from the DOJCD) amounted to R331.8 million, however, after an additional budget of R30.8 million was obtained in November 2021, the revised budget for the year amounted to R362.7 million. From this amount, expenditure amounted to R335.2 million. The majority of the institution’s budget is dedicated to employee costs, which amount to R249.4 million (75%), while goods and services amounted to R81 million (24%). She added that PPSA projects that the spending against budget will be at 97% by year end.

2022/23 budget

She highlighted that the projected allocation from the DOCJD decreased by 1% from the adjusted budget of R359.8 million in 2021/22 to R357.9 million in 2022/23. Furthermore, the total projected budget for PPSA this financial year, amounts to R360.9 million, with an increase of R20 million on the baseline, which is a decline from the previous year. This is expected to increase in the following two years, by R15 million and R16 million respectively.

Spending on personnel costs will amount to R269.8 million, which represents 75% of the allocation. While goods and services amounted to R86.6 million (24%).

She informed Members that PPSA requires additional money for the funding of 22 critical positions, amounting to R15.1 million in 2022-2024 and R15.8 million in 2024/25. With the additional amount it received the previous year, PPSA was able to make provisions for ICT infrastructure, the e-Library and an Electronic Document Management System (EDMS).

(See pesentation)

The Chairperson opened the floor for discussion.

Discussion

Adv Breytenbach asked if the PPSA’s initiative to install drop-boxes in all areas of the country – to improve access to its services – has been successful and if so, if it could provide a measure of the success.

She asked how much money has been spent on the PP’s litigation in defence of her reports and recently, her impeachment.

She then asked what the PPSA’s position is regarding the security of its offices and what progress it has made in achieving sufficient security.

Referring to the Msibi vs PP matter, she indicated that the court highlighted that the PP had failed to comply with her constitutional obligations. She was concerned that public finances have been used to litigate such matters, and asked why this has occurred. 

Ms Newhoudt-Druchen asked if the staff in the provincial offices have the in-house solution units. Additionally, she asked who handles the units and who handles the complaints.

On the drop-boxes, she asked if the PP is considering increasing its numbers in the provinces. 

She asked if both the national and provincial staff have access to the e-Library or if it is only national.

Regarding the 22 new posts created, she asked which units the posts are in and the name of the positions.

In addition, she asked for a progress update on the CMA.

She then asked how many graduates from Safety and Security Sector Education and Training Authority (SASSETA) learnerships had been employed in the PPSA; and in which units they have been placed. 

Mr Horn indicated that during the January oversight visit to PPSA’s offices, the Committee noted the need for the institution to digitise its archive system. During the visit, PPSA also mentioned that it had begun the scanning of in-house documents, yet the Committee found that the capacity of its systems was not yet enabled. As the presentation was not clear on the status of this project, he asked if there had been further developments to date.

Regarding the SARS report released at the end of April, he asked who the complainant cited in the report was. Two, he asked if PPSA has considered the impact of spending resources on such historical matters when they could be used to deal with maladministration and corruption. Three, he asked whether it has learned lessons from the investigations in Bankorp and the recent SARS matter, on the complexities of looking into historical issues. Four, he asked whether PPSA believed that the investigation and findings served SA, rather than political interest.

Adv Swart, speaking to the performance indicators, welcomed the increase in the number of investigation reports that will be finalised and the inclusion of a new indicator – the number of quarterly reports on the implementation of remedial action, which is to be submitted to Parliament. This, he believes, is important as there are several instances where the PP makes remedial action and findings which are not implemented by government departments. This indicator will allow the Committee to better assist the PP.

He then asked a series of questions. One, he asked why the PP had removed the percentage of cases finalised after two years, as an indicator.

Two, he asked for an update on the MOU the PP entered into with the Auditor-General of SA (AGSA), where it was agreed that certain issues flagged by either, would be flagged to the other.

Three, he asked if there are plans to improve the compliance unit at the PP, as it seemed that it is under-resourced.

Four, he asked for an update on the acting positions at senior management level, such as the Chief Operations Officer (COO) and Executive Manager: Corporate Services.

Five, he asked for the litigation costs.

He commended the decision by the PP and other Chapter 9 institutions to set up a nerve centre, which will monitor; conduct due diligence; and exercise oversight over the relief funds provided to EC and KZN, following the floods. He asked for an update on the progress of the nerve centre, as there are serious concerns about the KZN relief funds being misappropriated.

Regarding the Section 194 inquiry, he said that the comments made against the President and Parliament were concerning and he urged for greater caution to be taken.

Ms Ramolobeng welcomed the establishment of the nerve centre.

She then asked a series of questions. One, she asked why the PP had removed the percentage of cases finalised after two years, as an indicator. Two, she asked if the PP has a backlog in cases. Three, she asked if there are plans to fill the acting positions of COO and Executive Manager: Corporate Services. In addition, she asked how long they have been acting in the positions.

Four, she asked how many graduates enrolled in the SASSETA learnerships have been employed in the PP’s office. Also, how many had been retained from the 2020/21 financial year.

She indicated that during the oversight visit the Committee noted high security risks at the PP’s offices, yet security has not been included under the request for additional funding. She asked if this was an indication that the institution had found a solution to the problem without additional funding. If so, she asked for further details. If not, she asked why it had not been included in its request.

She asked if walk-ins into its offices are still not allowed, as is shown on the website. If so, she asked why this was the case, as the offices must be accessible to members of the public.

The Chairperson asked how the video security system (VSS) - which has been used as an alternative to hiring security – worked.

He asked for a progress update on the implementation of the MRA, which was supposed to be implemented on 31 March 2021, but was extended to 31 March 2022.

Citing a report that showed that 29% of women lodged complaints with the office, as opposed to 63% of men, he asked how the PP plans to ensure that it is more accessible to women. Further, he asked if it has collaborated with the Commission on Gender Equality (CGE) to educate women on the relevance of the office to them.

He then asked why there was an increase in the number of reports released and whether it was due to an increase in the number of investigators.

On the finalisation of cases within turnaround specified times, he noted that in 2020/21 the PP achieved a 95% turnaround time. Yet it has set an 80% target for this financial year. He asked why the PP had dropped its target.

He asked if any matter has been referred by the AG or vice versa, since it had entered into the MOU.

He then asked why there had been a 57% decrease in new matters being lodged. 

Regarding the target of submitting reports to the Committee every three months, he suggested that rather they be sent to the Speaker’s office, as it has a unit that deals with Chapter 9 institutions. Depending on the department fingered in the report, the Speaker may decide to refer it to the relevant Portfolio Committee.

Adv Mkhwebane requested that the PP provide the litigation reports and details on the impeachment, in writing.

Adv Kholeka Gcaleka, Deputy PP (DPP), stated that the e-Library will be accessible to all staff members. She explained that it has been launched because the physical library is not accessible to provincial and regional offices. In addition, the authority believed that it is financially beneficial to have an e-library because it does not have to duplicate its books and journals. She added that the e-books will be procured soon, which will include the information management of the institution, so that all staff has access to the footprint of the institution.

She confirmed that the PP does have an MOU with the AG and has referred matters to the institution. Previously, the AG briefed the PP on its investigations into a matter referred to by the latter. Currently, both institutions are in engagement regarding the monitoring of the relief funds provided to KZN and EC, to ensure that any irregularities picked up by the AG are instantly referred to the PP. She believes that the MOU has been beneficial for PPSA. 

On the Msibi matter, she indicated that the PP has completed an assessment into what the main issues identified by the Courts in their judgements against the office were and most of them have since been rectified.

Ms Sibanyoni said that VSS includes utilising cameras to record activity around the office, which is looked at on a weekly basis by the administrative officers. If suspicious activity is found to have occurred, the officers will call SAPS officials to the office. The PP, she added, decided on this system due to the costs of contracting security services.

On the drop boxes, she stated that the PP has placed 45 of them at various strategic points. These boxes are retrieved on a weekly basis, and after the complaints are analysed, feedback is provided. With the assistance of stakeholders, the PP has started a process to procure and place other drop-boxes in other areas. It is also partnering with traditional leaders and will place the boxes at the traditional councils, to ensure greater accessibility. She added that the PP wants to train traditional authorities to assist the communities in lodging complaints with it.

On the additional posts, she indicated that the majority of them relate to investigations, which is the institution’s core function. Most of the posts were added in the provinces.

She admitted that the compliance unit has been flagged as one of the units that are severely under-capacitated. To address this, the PP plans to appoint qualified individuals who will assist in capacitating the unit. This, she said, will ensure that the unit is able to follow up on the implementation of its remedial action by government departments and hold them accountable.

Regarding the MRA, she stated that it has been developed and will be launched in June once the data has been migrated onto the system.

On the SASSETA learnerships, she explained that the PP has partnered with the entity to provide a learnership programme. Out of the 15 interns it had in the previous financial year, the PP was able to absorb 11 of them. She underlined that the office wants to train more interns and absorb as much as possible.

Touching on the digitisation of its archives and records, she mentioned that the PP has contracted a service provider, who is currently developing the EDMS, and plans to launch it at the end of this month.

Referring to the change in the target of the backlogs, she indicated that the PP deliberately dropped this target, as setting a high target would mean that it is planning to allow for a build-up of more cases. Following this decision, it decided to start a project to do away with the entire backlog of investigations, and it is on target to finalise at least 90% of backlog matters by the end of June. She added that the backlog project has two phases: the first one has finalised 48% of the old matters while the second phase, which began in October last year, finalised 63% of them.

Adding to her point, she explained that the office is also identifying, what it refers to as pre-backlog matters, where it prioritises a matter that is lagging behind and might result in a backlog. In addition, the PP has adopted a new method to conduct its project management, with matters now being divided into phases to focus on backlog and pre-backlog matters. Going forward, she believes that the office will not have a backlog. 

Referring to the two vacancies, she mentioned that the institution is currently undergoing an organisational development study, coupled with a skills audit, to confirm whether it is correctly structured to deliver on its mandate, before it fills these strategic positions. Once it has received the final report from the service provider by the end of June, management will implement the recommendations and take a decision on whether the institution needs a COO and Executive Manager: Corporate Services, or if it should rather be restructured.

She indicated that the PP has since revised the Covid-19 policy against allowing walk-ins into its offices, with the public now able to do so. However, the officials had not updated the website to indicate this change.

Ms Lethabo Mamabolo, Acting COO, PPSA, said that the PPSA has adopted a strategy where it issues reports on a monthly basis. This is also a part of the backlog project, which aims to finalise all outstanding matters. Through the combined assurance model, the office has introduced numerous quality assurance mechanisms. Weekly meetings are held with the quality assurance committee, which tables and interacts with reports. The reports are then tabled to the executive authority committee. 37 reports were issued in 2020/21, which included formal reports (where allegations were substantiated), closing reports (where allegations were not substantiated), intervention letters (where it has intervened to resolve a matter) and one advisory report (where it advises the institution on what needs to change in its processes, where there are control deficiencies and where it does not warrant issuing a Section 79 notice).

She added that the PP commenced with its programme of issuing reports on a weekly basis. This, it believes, will ensure it is visible and keep the public aware of the matters it is investigating.

The PPSA, she indicated, believes that the MRA will assist with increasing accessibility to communities, as part of Vision 2023. Those living in rural areas will be able to lodge complaints with the PP, without leaving their home. Currently, the institution is working awaiting the migration of data from the app to the master file, which will ensure that they are able to account for cases; and that it responds better to the responses through either a preliminary investigation or a full one, a rapid response matter or a systematic investigation.

Adv Gcaleka mentioned that the PP is collaborating with women-led non-governmental organisations and non-profit organisations that deal with issues affecting women, on creating awareness of its offices. The office is also embarking on a systemic investigation (which began last year) into GBV in the justice system and it hopes to conclude it before the end of the financial year. Also, it has looked into the security and safety of women on campus as part of its broader investigation into the state of the higher education system. The PP, she added, has engaged SAPS on the plan developed for the security and safety of women on campuses. This plan has also been handed over to universities.

Regarding the implementation of remedial action, she mentioned that the PP has decentralised the implementation of the remedial action, in order to relieve the pressure on head office and ensure optimal impact. As the provincial offices have not conducted physical outreach, management decided to include monitoring the implementation of remedial action in their work plans. Henceforth, the head office will only oversee the work of the provinces. She was pleased to note that there has been an increase in the implementation of remedial actions, particularly in the provinces.

On the CMA, she said that the PP’s investigators consistently look into the various complaints laid, and refer them to the branches for investigations. This is done to optimise investigations into more complex and broader matters. Government reports on how it has assisted complainants, on a month-to-month basis.

Touching on how the PP ensures accessibility for the disabled, she indicated that it includes a sign language interpreter for deaf individuals on its live streams, while its pamphlets are printed in brail. It is also currently interacting with its Chapter 9 counterparts that deal with accessibility. She added that it is looking to add more initiatives but cannot do so due to limited finances.

Ms Sibanyoni, referring to the SARS investigation, clarified that it is not an old matter, as the contract is still ongoing. Furthermore, there was an intervention by the PPSA, where it requested that SARS restart the process and reissue the tender, which was done. However, due to issues with the new service provider, SARS decided to return to the old contract.

Ms Lusibane said that the PPSA will provide a breakdown, per matter, of its litigation costs in a written response.

Adv Mkhwebane added that the submission will also include the pro bono work done by Senior Counsels and her impeachment matter as well.

The Chairperson asked that the breakdown of costs be submitted by 31 July 2022.

Ms Lusibane said that it will do so. 

Dr Newhoudt-Druchen asked that the PP also provide a written response on the new investigative model.

The Chairperson asked that this also be submitted by 31 July 2022.

Adv Mkhwebane confirmed that the PPSA will be able to meet the deadline. In addition, it will also submit a report on the preliminary work done in KZN and EC.

Adv Breytenbach requested that the PPSA submit the written response on the litigation of costs in the next seven days and not on 31 July 2022.

The Chairperson asked the officials if they would be able to meet the deadline. 

Ms Lusibane said the PPSA will try to do so in the next seven working days.

Adv Mkhwebane agreed with the Chairperson’s recommendation to refer the quarterly reports to the Speaker, instead of the Committee.

The Chairperson thanked the PPSA for the briefing, which showed the progress it has made. He was pleased by the PP’s use of the VSS and called for all other managers and stakeholders to also implement innovative interventions, considering that the budget restrictions will be in force for some time. He assured the office that the Committee will fight to ensure that budgets are not cut, particularly for Chapter 9 institutions.

He called for state institutions not to view themselves as autonomous from the State. Rather, they should look to pool all of the country’s resources together, to achieve one goal. To this, he commended the PPSA for entering into relationships with other institutions

The meeting was adjourned.