National Prosecuting Authority and Special Investigating Unit: Annual Report

Meeting report

COMMITTEE ON JUSTICE AND CONSTITUTIONAL DEVELOPMENT
28 May 2001
BUDGET VOTE 22: NATIONAL PROSECUTING AUTHORITY AND SPECIAL INVESTIGATING UNIT

Chairperson: Adv J De Lange

Relevant Documents:
National Prosecuting Authority of South Africa - Strategic plans for 2001 [brochure]
National Prosecuting Authority of South Africa - Annual Report 2001 [brochure]
Report on the workload of the Special Investigative Unit

SUMMARY
The Director of the National Prosecuting Authority (NPA) briefed the Committee on NPA’s budget and restructuring within the NPA. He focused on the courts and plans for prosecutors within the Department. He spoke of the prosecutors’ salary structure and the different proposals to reduce the backlog at courts. He addressed the committee on maintenance, organised crime, crimes against women and children, the Departments employment equity profile and the new training programmes for prosecutors.

The Director outlined the plans for the Department for the years 2001/2002. The predominant goal of the NPA is to reduce the backlog at courts.

Thereafter the NPA was asked questions by the Committee on Justice. Queries included matters such as the NPAs’ budget allocation, the backlog of cases at court, prosecutors access to research material, awaiting trial prisoners, maintenance matters, the special courts that were designated to handle crimes against women and children and the high case withdrawal rate. The Committee also asked about the salary differences between state advocates and state prosecutors and the disadvantage of "easy" plea bargaining in cases involving commercial matters. The Saturday courts were applauded. Another Committee member wanted some insight into the Departments employment equity profile and asked whether it reflected the demographics of the country.

A member of the committee queried the amount allocated and spent on the witness protection unit. The Chairperson noted that the conviction rate at the Regional Court is not in accordance with the expertise and time available to that court.

Thereafter, the Committee was briefed on the Special Investigative Unit and the Asset Forfeiture Unit.

The Minister appointed a team to conduct an audit of the Unit and to make recommendations. The ''Henning report'' was produced in this regard.

The report sets out that the Special Investigating Unit is currently so overloaded with work that it will take three to four years to complete the backlog. There are many outstanding investigations in the Unit. There is uncertainty as to what will happen to the Unit after the backlogs have been completed. The team urges the Authorities to decide on the future of the Special Investigating Unit as soon as possible.

One of the suggestions the team made is that the Unit could be attached to the Auditor-General's office (the Unit would retain its independence). The idea is that the State should retain the investigative capacity in the Unit as opposed to losing it to the private sector.

MINUTES
National Director of Public Prosecutions
Adv Bulelani Ngcuka (National Director of Public Prosecutions) addressed the Justice Committee on the status of the National Prosecuting Authority.

He explained that the NPA had spent time on planning. They had met with consultants who asked them about their goals, mission and strategic outcomes. They met with consultants who advised them on how to develop the NPA into a business.

He presented the committee with the following statistics regarding the courts:

Work performance
There is a drive to improve work performance. Adv Ngcuka stated that Chief prosecutors will inspect courts and administer all prosecutors. Sixteen persons were dismissed in the year 2000 because of corruption. The period taken to detect problem persons has decreased from 3 years to 6 months. He also stated that as of January 2000, 72 prosecutors were under suspension or investigation.

Salary structures
The Department realises that criminals are represented by experienced attorneys whilst the state had inexperienced prosecutors. Adv Ngcuka said that it is necessary to increase the salary incentive to encourage legal persons to join the prosecuting authority.

Reduction of backlogs
The NPA has devised national projects. "Rescue missions" will be performed where persons from the NPA national office will undertake intensive work at the courts in order to reduce backlogs. They have also created the idea of contract prosecutors. These people will work with prosecutors until the backlog is decreased. The NPA has undertaken an intensive tutor program were prosecutors are trained. Other steps taken to reduce the backlog include the increase of prosecutor to court ratio (the ratio at present is 1.07 prosecutors per court); and a decision that senior public prosecutors and control prosecutors will no longer spend time in court. This will provide control prosecutors with more time to manage the court and senior public prosecutors more time to consult with witnesses.

Fighting organized crime
The Directorate of Special Operations (DSO) is very active in fighting organized crime. They have a national office, which has three sub-offices that are responsible for:
- Operations and analysis of crime
- Management of the Directorate of Special Operations crime information
- Assistance in tactical and strategic analytical capacity.

The operational support division is responsible for:
-Technical support
-The witness protection unit
- Surveillance of unit-high risk arrests and crime management units
- Special project units.

Furthermore DSO deals with urban terror, taxi violence and syndicates amongst other things.
He said that the focus areas within the asset forfeiture unit are:
- The cash drug trade
- The property drug trade
- Competition
- White collar crime
- Serious criminals
- Violent crime

At the end of 1999, a special commercial court was set up in Johannesburg. They worked with Business Against Crime in this matter.

Crimes against women and children
There are sexual offences and community affairs units currently in existence. The Department of Public Prosecution is attempting to ensure the efficient prosecution of sexual offenders. They are also implementing proper strategies to protect women and children. An example of such progress is that multi -disciplinary care centres have been set up. They have established 24-hour emergency support .Each centre includes a doctor, prosecutor and members of the police all of whom work towards successfully convicting the accused.

Employment equity
The Department has drafted an employment equity profile and they are doing an assessment thereof.

Focus on training
They have engaged in an aspirant prosecutor course. Also the skills of the existing prosecutors are being improved.

Maintenance
The Director stated that there is a shortage of approximately 300 posts in the lower courts with regards to maintenance. He said that the Department of Public Prosecutions wants to limit the role of prosecutors in maintenance matters. He said that clerks must do the administrative work.

The NPA’s Strategy for 2001/2002
The Department is committed to reducing backlogs. They have agreed that they need to bring more money into the Department. They have planned for courts to sit on Saturdays and want to extend this project. The Department is discussing implementing a system where each court has a senior police officer in place who would be able to liase with the senior public prosecutor. This would ensure that the investigation will include all elements necessary for a successful conviction.

Discussion
The Chairperson suggested that the Committee ask Adv Ngucka questions pertaining to the National Prosecuting Authority. Thereafter the National Prosecuting Authority briefed the committee on the Special Investigative Unit and the Asset Forfeiture Unit. This briefing was followed by further discussion.

Ms Camerer (DA) asked if there was balance in the funding allocated to each Department within the Department of Justice. She said that the Department of Justice had a budget of
R 422 million. She stated that the budget allocated for the courts is three times under the budget allocated to the National Prosecuting Authority. She noted that prosecutors were funded under the human resources budget and not the prosecuting authority. She recognised the need for a centre of excellence, but suggested that other Departments were merely limping along.

The Director acknowledged the problem of funding within the Department of Justice. The level of crime had increased but the number of prosecutors remained the same. Furthermore the Department of Justice needed more courts if they were to meet the deadline and clear out the backlog at all courts by the end of September. He added that with regard to extra funding, the National Prosecuting Authority has perfected the art of scrounging and is thus able to attract more funds.

Ms Camerer stated that her question was not adequately answered. The Chairperson would only allow further clarity later on in the meeting.

Mr Swart (ACDP) said that despite the Departments attempt to dispose of the backlog, the disposal rate is slower than the influx rate. He asked for clarity on other measures the Department proposed in order to address the backlog. He suggested that the Department look to extending the court dates, engage private practitioners to act as prosecutors particularly with the handling of commercial matters. Mr Swart stated that plea - bargaining was also a mode of reducing the backlog.

The Director agreed that the idea of plea -bargaining would assist in reducing the backlog. He stated that the use of private practitioners had been discussed and about R18 million has been allocated for this purpose. The Director said that the Department was considering starting court at 9h00 instead of at 10h00 which would allow for more court time. In effect this would also reduce the backlog.

Mr John Jeffery (ANC) stated that prosecutors did not have access to information in order to assist them in case preparation. He asked whether this matter was being addressed.

The Director answered that prosecutors are being trained. He was aware that prosecutors did not have access to law reports and other various materials. He said that the National Office was in the process of compiling a handbook to assist prosecutors. This handbook will be published shortly. In addition the Department is in the process of compiling a manual on child law.

Mr Jeffery commented that there are a number of awaiting trial prisoners who should not be in prison and some who even if proven guilty will not be convicted. He asked whether prosecutors could not assess cases before hand and in effect minimise the problem of overcrowded prisons.

The Director replied that the Department was proposing that a senior police official be stationed at every court. The police official will liase between the police service and the chief prosecutor and assist in extracting cases with no possibility of a successful conviction.

The Chairperson asked how the Prosecuting Authority planned to remedy the situation where secretaries were acting as maintenance officers. He added that the Maintenance Act obliges prosecutors to act as maintenance officers.

The Director replied that the maintenance enquiry entails administration. Prosecutors could not handle these matters because they were in court. Prosecutors have been instructed to focus on functions within the court. Clerks must perform all administrative functions until the matter reaches court. He said that prosecutors could not work in court and perform clerical functions.

The Chairperson stated in the Eastern Cape the situation exists where a typist is acting as a maintenance officer. The difficulty, he continued is that currently the law has withdrawn prosecutors from acting as maintenance officers, but nobody has replaced the prosecutors in this position.

The Director stated that the Chairperson was misinterpreting the law. He said that it was not a prosecutor’s job to fill in forms – it was only necessary for the prosecutors involvement once the case reached court level. The prosecutor only intervenes in difficult maintenance inquiries. Further , he contended that if prosecutors had to handle all maintenance enquiries, the criminal courts would close.

Imam Soloman said that from his experience in the Eastern Cape, there seemed to be an increase in crime against women and children. He was aware of the 19 special courts that were appointed to deal with the problem. He asked where these courts were located and what procedures were being utilised by the Department to ensure that the courts were effective.

A representative from the Directors office stated that these courts do exist in most urban centres. In order for these courts to function, there must be intensive training and approximately 250 prosecutors are needed. Welfare workers, doctors, nurses and other role players had to be trained in order to ensure a holistic approach. The rural areas had been targeted as well.

Mr Ngidi wanted to know why so many cases were withdrawn and what reasons existed for the withdrawals.

The Director sited the polices’ poor investigative skills as being a contributing factor. He added that it was not in the interests of justice to prosecute long outstanding cases and those with no possibility of a conviction.

Mr Ngidi asked whether there was a common form of misconduct amongst the 72 charged prosecutors.

The Director responded that most of these cases would be dealt with by the end of the year and that an example of misconduct was persons being drunk at work.

Dr Delport (DP) referred to the idea that prosecutors be involved from the early stage of arrest. He asked whether this was practical and whether the prosecutors had the support of police officers.

The Director replied that prosecutor involvement is already being implemented in some areas. Police officers take dockets to prosecutors and ask their opinion where people have been in jail for months on end. He stated that the Department was committed to the strategy but was uncertain as to whether or not the Police Department would be able to manage the process. He saw no reason why people should be kept in prison without a strong possibility of a positive conviction.

The Chairperson recommended that the chief prosecutor have a senior police officer attached to them. In his view this would assist in "clearing house".

Mr Magwanishe (ANC) asked how many disabled people were employed in the Department.

The Director answered that he did not know, but said that the Department will do an audit.

Mr Magwanishe wanted to know whether senior state prosecutors received the same salary as senior state advocates.

Adv Ngcuka replied that they did not receive the same salary, but confirmed that the Department was engaging in restructuring salaries according to work performance.

Ms Chohan-Kota (ANC) pointed out that often plea bargaining occurred in commercial matters because prosecutors felt ill-equipped to handle these matters due to lack of training.

The Directors response was that a special court has been established in Randburg.

Ms Kota also suggested that Saturday courts are likely to be more successful since witnesses are more likely to appear. She wondered whether it was not more feasible to run courts from a Tuesday to Saturday.

Mr Thabe broached the issue of the employment equity profile of the National Prosecuting Authority. He stated that the profile does not seem representative the demographics of the country. He asked what was being done to train persons from rural backgrounds.

The Director agreed that there were not enough black people within the NPA. He attributed this to the fact that people were reluctant to join the Prosecuting Authority. He asserted that the Department has deliberately attempted to increase the number of black staff and many black people have been promoted.

Mr Mzizi (IFP) asked whether it was feasible to start court at 09h00 – especially given the fact that in rural areas people rely on public transport.

The Director stated that they were not using a euro-centric approach when they suggested the 09h00 starting time. The idea that people are disabled by public transport should not be an excuse. Furthermore, insisting upon the 09h00 starting time would create a sense of discipline in the courts.

Ms Camerer asked for the value of the NPA’s budget. Further, she enquired whether prosecutors came under this budget. Finally she asked how the witness protection programme operated and what percentage of the budget was allocated to the witness protection programme.

The Director answered that the budget allocated to the NPA amounted to R150 million. As of the 1^st April 2001, all prosecutors would fall directly under the NPA. He stated that 90% of their allocated budget went towards personnel expenditure. Thus the amount left over for investment towards research, libraries, and other investment was limited. He wanted to change the allocation to a 60 % / 40% ratio. He stated that the impression that the NPA received greater funds than the other Departments was incorrect. Further he said that the Department was in need of more prosecution posts.

The Department of Justice administers the witness protection unit. The South African Police Service looked after the witnesses but the Department of Justice administered the programme. The Department was considering revamping the programme. He said that the NPA spent R26.5 million on the witness protection programme. R18.5 million went towards witness expenditure and the other R8 million was spent on travel expenses and official expenses. None of the money was used for personnel.

The Chairperson said he was concerned about the Regional Courts. The District Courts work four hours more than the Regional Courts. In addition the District Courts engaged in quasi-judicial duties. In the Regional Courts the Magistrates did not perform any quasi-judicial duties, but the court sessions were only for four hours per day. The most senior Magistrates sit on these benches and the most experienced investigating officers are allocated to cases that come before the Regional Courts. Given these factors, he wanted to know why the conviction rate in the Regional Court was so low. Further, he said that relatively few matters were handled by the High Court and more matters should be forwarded to the High Court. In addition, he stated that it should be the Departments priority to increase the conviction rate statistics within these courts.

Asset Forfeiture Unit
Adv Percy Sonn (NPA) briefed the committee on the Asset Forfeiture Unit. The budget for the unit amounts to R256 million. There will 2000 staff members by 2002.

The Chairperson asked Adv Sonn whether there was a good working relationship that existed between the different police units within the country, for example, the Scorpions and the police services.

Adv Sonn replied that the various units were still establishing ways of working together effectively. He said that the government had control over certain facilities and there had to be co-operation between the various units for the government to work efficiently.

Imam Soloman (ANC) said that gangsters like Staggie are causing havoc in the community on the Cape Flats. He asked what the Scorpions were doing about this.

Adv Sonn replied that a project called the Faure Arms Heist Project names Mr Staggie as an accused.

Adv Ngcuka said that Colin Stansfield was successfully convicted on tax and Staggie on firearms. This, he argued, demonstrates the importance of this project.

Adv de Lange asked for a comment about the relationship amongst units.

Adv Ngcuka replied that competition is good. It contributes to solving crime problems in the country. Many PAGAD members were found guilty and are awaiting sentencing. They have been able to achieve this because of co-operation.

Adv de Lange asked for a comment on the roadshow.

Adv Ngcuka replied that e-TV was not authorised by anyone to broadcast the roadshow. He stressed that the Department did not want a similar event to occur in the future but added that the Department was not prosecuting anyone for the instance.

Adv de Lange commented that the fact that someone can be on television while they are up for terror charges creates a terrible impression. He hoped it would not reoccur.

Mr Delport (NNP) referred to the many random killings, murders, and hijackings which have taken place. He asked if there was any way that the Scorpions could become more involved.

Adv Sonn replied that they try to reduce product markets and eliminate syndicates. He stressed that these crimes are serious economic offences.

Adv Ngcuka added that it was important to identify those people behind the crime in addition to arresting those directly involved in the hijacking. There is a project run by the police but it is supervised from the Departments office.

Discussion
Asset Forfeiture Unit - Portion of the Annual Report
Imam Solomons (ANC) asked how the NPA discovered and eliminated small drug dealers in communities.

Adv Ngcuka explained citing an example of the Departments methods. He said that the Department seizes property and instead of selling the property, develops the property into a benefit for the community such as an elderly care center. In this way, the community sees the benefit of the work the NPA is performing.

Mr Hofmeyr said that their mission is primarily to deprive criminals of the proceeds of crime. Raising money for law enforcement is incidental to that. In test cases the NPA tries smaller criminals because they were important in a particular society. The Department is empowering the prosecution services to do more asset forfeiture without the forfeiture unit itself having to do this. The procedure is currently quite complex in the Magistrates Court but the NPA aims to simplify this procedure.

Ms Chohan-Kota (ANC) asked what measures have been implemented to secure certain persons.

Mr Hofmeyr replied that some measures have been taken but he preferred not to specify these in public.

Adv Percy Sonn added that Operations Support has a component which deals with safety (for prosecutors too). The Department is currently working on this.

Mr Mzizi (ANC) asked how and when asset forfeiture applies. He asked why for example, it not apply to Alan Boesak.

Adv Ngcuka replied that the question is really whether people ''high up'' are treated equally. He said that their approach is to consider each case on its own merits. It was a considered decision not to attach assets in the Boesak case.

Mr Hofmeyr added that they did consider such action. In terms of Chapter 5 of the Act they can take property but it must be before the sentence. In Boesak's case the sentence came after they had looked at the Act. Chapter 6 presents an option now but the onus would be on them.

Adv de Lange asked if they had something similar to a ''war room'' in the prosecuting authority. He suggested that perhaps something similar be created to deal with daily problems.

A panel member replied that people must contact the chief prosecutors if they have problems. This is the point of contact. Call centers are also in operation to deal with queries.

In response to a question by a member on SCOPA, Adv Ngcuka replied that the Department is investigating everything presented to them. This is very time consuming considering they must check facts and in some instances there is no basis for the allegation. The investigation is divided into a number of components. A common concern is that witnesses will be exposed. Adv Ngcuka said that this type of thinking insults the Departments intelligence. For the NPA to parade witnesses before the public they would have to be fools.

At this point Adv Ngcuka had to leave to catch a flight. Adv de Lange commented that the legislation setting up the NPA has been one of the successes of the Committee. With regard to the NPA budget, they need to establish where interventions are needed. Further discussion was needed regarding its budget.

Presentation
Budget Vote 21 - Report regarding the workload of the Special Investigating Unit
The Minister requested an audit of the Special Investigating Unit (SIU). Advocate Henning (SIU) led representatives in the presentation.

In summary, the workload in the SIU is currently so much that it will take three to four years to complete the backlog. There are nine investigation teams in the Unit. Each team has auditors and investigators. After receiving information regarding alleged irregularities, the SIU sets out matters to be investigated. The SIU plays an active role in the subsequent proclamations.

The teams view is that one cannot blame the units for the major backlog. The teams took on more work than the SIU could handle. The inflow of work should have been better managed. The Unit must have the ability to act swiftly but the efficiency of investigating teams is hampered by asking for proclamations on less serious matters. There are currently 50 requests for proclamations where the SIU has not taken a decision. They do not want to refer new matters to the overloaded units. The units have more work than they can manage in the foreseeable future.

The units must now complete outstanding work. Some work could perhaps be referred to other agencies. The team believes that the Unit should focus on completing outstanding work.

They emphasised that the SIU could not afford to lose the expertise of the investigating teams. A current problem is that outside firms are recruiting top people in the unit. The staff at SIU have become the targets of the private sector. The SIU has lost numerous staff. The staff complement has dropped from 105 to 84. It is difficult to recruit new staff.

The National Director of Public Prosecutions had asked for a report on SIU for various authorities. Adv Henning compiled a report which was completed by the end of March. It is now the end of May. They have received no information from the authorities as to the future of the SIU. They urged authorities to make a decision as soon as possible. They pointed out that it is difficult to motivate staff if there is a perception that SIU will be disbanded.

Judge Heath is still the head of the Unit. He has vacated his office but he must still sign documents as accounting officer.

In South Africa there is a limited pool of investigators. Their skills are acquired through experience. The State must retain the experienced people for its own benefit.

If it is decided that there is a need for the SIU then it must be decided where SIU will fit into the system. It was recommended that SIU continue to operate as a separate entity. There are some matters that SIU deals with which cannot be dealt with by the police.

Various possibilities for the future of SIU were suggested by SIU. These included that members be divided into different directorates of the National Directorate of Public Prosecutions (NDPP) or that the Unit be linked to the office of the Auditor-General (this will require legislative changes). However, since SIU wishes to remain independent it is preferable that SIU not become part of the Auditor-General's office.The source of the work should be from the Auditor Generals office. The report sets out a number of advantages for linking the Unit to the Auditor Generals office.

Discussion
Adv de Lange argued that this was not the purpose of the Unit. Further he contended that the unit must retain its unique nature or be disbanded. He recognised the need to retain the capacity of the unit and said he was sympathetic to this fact. However, he added, the unique nature of the unit is important.

Presentation
Supplementary Report on Financial Issues
Mr Coetzee (formerly from the financial management sector within the Unit) made this part of the presentation. He is now working for a private firm but he came to Parliament to account.

Mr Coetzee highlighted key issues with regards to funding. He explained that the baseline of the Unit was increased from R17.7 million to R20 million. This, he argued, illustrated that the Treasury recognised the importance of the Unit.

The Unit has to apply for proclamations. The Unit has engaged itself into debt collecting. This actually does not fall within the ambit of the Unit (this was raised in SCOPA).

It is imperitive that SIU exist. The issue is where SIU fits in. Mr Coetzee argued that nobody could allege that the Unit was not effective. The SIU performed well - R 174 million was recovered. It is only the efficiency of SIU that is at issue.

Adv Henning said that the Unit has become a dumping ground for all irregularities. Prescription is also presents a very real problem and hence the unit must be able to act fast.

Discussion
Mr Swart (ACDP) emphasised that the Unit is a unique body with specific power. He said that SIU must retain this specific power for as long as there is a need for the SIU to exist.

The Chairperson commented that he was very appreciative of the efforts of SIU and recognised their accomplishments. He said he was eager for SIU to succeed but added that this would take some time. He pointed out that media attention on SIU had been difficult to manage but hoped that SIU would persevere, at least for the short to middle term. He promised continuoud communication between the portfolio committee and the Unit. He also noted that Administration was very close to appointing a Unit head. Finally he requested a more structured budget that was in line with the standards set out in the Department’s Annual Report.

Following these remarks, the Chairperson adjourned the meeting.