National Prosecuting Authority on its 2015/16 Annual Report

Meeting report

Mr Shaun Abrahams, National Director of Public Prosecutions (NDPP), said that before he makes his presentation he would like to indicate a point of concern with regard to his objection to the presence of Hon. Ms Breytenbach because she is currently accused in a criminal matter. The matter is quite advanced in terms of prosecution. He is not quite sure if in this Committee persons accused of criminal activities should engage with the institution that he heads. This is an issue that has not been raised and concerns him greatly when he listened to the interviews of the Committee for the selection and appointment of the new Public Protector. He was raising this as a concern and did not know how the Committee dealt with this. He felt that he is obligated to raise this issue.

The Chairperson said that he learnt something from the Chief Justice during the Judicial Services Commission sitting that when an issue is raised about a Commissioner the first thing they should do is to put the matter to the conscience of the Commissioner to decide whether or not to participate before they look at what the law says on the matter.

Ms G Breytenbach (DA) said that she is astonished that the National Director of Public Prosecutions could raise that issue and fortunately in this country there is a Constitution, and until proven guilty she is going nowhere. The matter is sub judice and she is equally entitled to participate in the meeting. Furthermore, the matter is not nearly "advanced" and advanced is not the right word to call it.

The Chairperson asked Ms Breytenbach whether her participation and putting questions to the NPA will make her contribution suspect and therefore not add value to the work of the Committee.

Ms Breytenbach said that she does not think so. She previously had a discussion with the Chairperson about his outburst the last time the NPA was there, and the Chairperson apologised and she accepted his apology.

The Chairperson said that National Assembly Rule 165 deal with information reflecting upon integrity of Members of Parliament which reads as follows: “If any information reflecting upon an assembly member comes before the Committee, the Committee may not proceed upon that information but must report it to the Speaker without delay”.

Mr B Bongo (ANC) said that he sympathises with what is raised by Mr Abrahams. In terms of the rules, where there will be a conflict of interest, one will generally excuse oneself. But in the light of this rule, Mr Abrahams should grant them indulgence to seek legal advice on this matter.

Mr S Swart (ACDP) said that Ms Breytenbach is an elected member of the Committee and is entitled to participate, but obviously discussion the case in which she is the accused might be a different situation because there might be a conflict of interest. But any allegations against the integrity of an MP in terms of the rules of Parliament must be brought to a substantive motion. That is why he objected previously and they had resolved that in their previous discussion and they know that is the rule of Parliament which decided the matter, otherwise Ms Breytenbach is the honorable Member of Parliament.

The Chairperson said that it was why there is conscience because the work they are doing is for the public and they should be seen to be honorable members and if there is a blemish over the integrity or a challenge then their proceedings become suspect. But as Mr Bongo suggested they should refer this matter to the legal experts of Parliament.

National Prosecuting Authority (NPA) on its Annual Report 2015/16
Mr Shaun Abrahams, National Director of Public Prosecutions, said that the NPA derives its mandate from section 179 of the Constitution. The National Director of Public Prosecutions (National Director) is head of the NPA. Directors of Public Prosecutions (DPPs) are NPA heads at various seats of the high courts, responsible for ensuring compliance with constitutional obligations. The National Director must determine prosecution policy (with concurrence of the Minister responsible for the administration of justice) after consultation with the DPPs. Further, the National Director must issue policy directives which must be observed in the prosecution process.

The legislative mandate comes from the National Prosecuting Authority Act; Criminal Procedure Act; Prevention of Organised Crime Act; Implementation of the Rome Statute of the International Criminal Court Act; Witness Protection Act; Prevention and Combating of Corrupt Activities Act; Criminal Law (Sexual Offences and Related Matters) Act; Child Justice Act; and the Prevention and Combating of Trafficking in Persons Act.

The NPA programmes are National Prosecutions Service (NPS) which includes Priority Crimes Litigation Unit (PCLU); Specialised Commercial Crime Unit (SCCU); Sexual Offences and Community Affairs (SOCA). The other programmes are Office for Witness Protection (OWP); Special Operations, Asset Forfeiture Unit (AFU) and Support Services.

The performance of the NPA is largely dependent on the police and the judiciary. In order for the NPA to be successful in its prosecution it depends on investigations and evidence presented by the police. The speedy finalisation of cases depends on the leadership of the courts, which vests with the judiciary. The decline in court hours and few cases put on the roll hampers performance.

The NPA has capacity constraints and needs to try capacitating prosecutors, but depends on Treasury to allocate more money. The NPA is looking at job enrichment programmes where employees will be doing more than their job description. There is also the possibility of splitting of work as there are prosecutors in the head office that are not doing much court work.

The NPA participates in structures to improve court performance, such as Case Flow Forums and National and Provincial Efficiency Enhancement Committees. Decline in court hours and fewer cases put on the roll hampers performance. The Minister of Justice and Correctional Services has tasked the NDPP to coordinate a study on the implementation of the Victims Charter since its 2007 inception. To further enhance efficiency in the Criminal Justice System a number of protocols have been entered into between the NPA and stakeholders such as the Electronic Monitoring Protocol; the Mental Observation Protocol; the State Patients Protocol, and the Audio Visual Remand (AVR) Protocol.

Mr Abrahams commented on the NPA performance in terms of its strategic objectives:

• Increased successful prosecution: The NPA did not meet its set targets in the 2015/16 term for successful prosecutions. It had targeted 478 686 successful prosecutions and only managed to do 476 790 and it attributes the decline to the inefficient use of courts, coupled with a focused approach on quality prosecutions especially on cases suitable to be resolved through ADRM. The court hours have also decreased which impedes on the NPA’s performance. The lower courts finalised 309 838 verdict cases with a conviction rate of 93% the decline correlates with a similar decline of 17% in the influx of new cases and a 13% reduction in court hours. The NPA finalised cases via verdict: 310 850 (65%) and the Alternative Dispute Resolution Method (ADRM): 166 952 (35%). ADRM had 14 764 more cases finalised though ADRM than the target of 152 188 set for 2015/16. A positive ratio between verdict and ADRM cases was maintained.

Criminal court hours utilisation declined during this period which impedes all attempts to ensure speedy justice. More court days (3.5%) were utilised; the efficient use of these increased days is not reflected in the actual court hours used for criminal cases. The average court hours were reduced by 7% from an average of 3h31 during 2014/15 to 3h16 during 2015/16. A total of 32 863:49 hours were lost compared.

In terms of cases finalised with verdict the lower courts finalised 309 838 verdict cases with a conviction rate of 93% (288 335 convictions). The decline correlates with a similar decline of 17% in the influx of new cases and a 13% reduction in court hours.

The decline of 44 088 new cases enrolled must be seen in the context of a greater focus on screening, to ensure, as far as possible, that only trial ready cases are enrolled. Due to an enhanced focus on the screening process it was ensured as far as possible to enrol only trial ready cases. 80 068 more dockets were received for decision (from 780 912 during 2014/15 to 860 980 during 2015/16). On progress on cases withdrawn in order to curb the notion that prosecutors are selective with cases dealt with, the number of withdrawals is also measured to ensure quality prosecutions and a just outcome in all cases. He provided a table which indicated a positive reduction of 17.7% in the number of cases withdrawn in all courts due to the improved screening process.

The NPA finalised 166 952 cases through ADRM, which represents 14 764 (9.7%) more cases finalised than the 152 188 target set for 2015/16. ADRM matters per forum: 37 516 cases were diverted after enrolment; 5 528 cases were diverted before enrolment in terms of the Child Justice Act (CJA); and 123 908 cases were successfully mediated on an informal basis.

Mr Abrahams  said a total of 8 121 children were diverted via the Child Justice Act comprising of: 5 528 children diverted in terms of CJA and 2 593 children diverted after they were referred for trial in a criminal court. Number of Section 41 diversions was reduced by 9.9% from 1 539 during 2014/15 to 1 386 in 2015/16. The number of preliminary enquiry diversions increased with 2% from 3 866 during the previous year to 3 945 during 2015/16. Schedule 3 diversions were increased from 142 last year to 197 in the reporting period.

On the conviction rate: High Courts registered a 4% increase from the previous year and maintained a high conviction rate of 90%. The regional courts achieved a conviction rate of 78%. District courts achieved a 95% conviction rate. On organised crime, focus was centralised around various areas such as illegal precious metal including copper, rhino related offences, drug dealing, illicit mining and tax matters. In sexual offences all courts achieved a conviction rate of 70% by finalising 7 098 sexual offences crime cases with 4 978 convictions. A multi-disciplinary approach followed by newly established provincial structures with stakeholders from the DoJ&CD, Legal Aid South Africa (LASA), SAPS, Department of Health (DOH) and NPA have contributed to the improvements for sexual offence cases.

The number of matters reported to the 55 operational Thuthuzela Care Centres (TCCs) increased by 2 384, to 32 786. The average conviction rate for TCC-reported cases improved to 71.8% from 68.4% in the previous year. 6 854 cases reported at TCCs were referred to court for prosecution. The percentage of reported cases decreased from 47% in 2014/15 to 43% in 2015/16. A substantial increase in non-arrest dockets led to non achievement of the target.

Reduction in the levels of trio crimes is one of the Medium Term Strategic Framework (MTSF) priorities. The NPA increased focus on the prosecution of these matters as part of an integrated approach between all role players. A total of 1 692 cases were finalised with a conviction rate of 82.2% (1 391 convictions) against a target of 85%. The primary challenge in not achieving the target is the ineffective SAPS investigations and collection of evidence, as well as the difference between SAPS crime categories and NPA crime categories.

On violent protests, particular focus was placed on dealing with this crime, as it poses a serious challenge to domestic stability if not actively combated. Although the target was not reached during the period, the conviction rate during the last five months of the year rose to 78% (32 convictions out of 41 trials conducted). For environmental crime, the conviction rate increased from 94.7% to 95.2%. Environmental crime cases finalised with a verdict increased from 265 the previous year to 375 cases. 191 convictions for copper theft were achieved at a very high conviction rate of 95.5% during the year. With regard to illicit mining, the NPA is represented on the National Co-ordinating Strategic Management Task Team to exclusively focus on illicit mining in a coordinated manner and report to government. The NPA use this forum to liaise with other stakeholders about challenges experienced during prosecutions. Two racketeering prosecutions were authorised by the NDPP. Both cases are on trial in the High Court in the Free State.

On case backlogs, the high courts managed a reduction of 12% but an increase is noted in both lower court forums. During 2015/16 there were 27 approved regional backlog courts and 25 district backlog courts.

• Improved prosecution of cases that require specialised prosecution: The methodology of prosecutor-guided investigations enabled the NPA to maintain a high conviction rate of 94% (951) against a target of 93% in all courts. In partnership with the Anti-Corruption Task Team (ACTT), the SCCU exceeded the target of 20 by 5 more convictions. The cumulative achievement of this performance is 47 persons convicted since the beginning of MTSF 2014–19.

The NPA placed a special focus on the prosecution of corruption to improve investor perception and trust to invest in SA. The number of convictions during the current year increased by 58.5% from 130 the previous year to 206 officials in the current year, exceeding the target of 91.

On cybercrime prosecution, the lower courts excelled by finalising 255 cases with 244 convictions whilst ensuring quality prosecutions by maintaining a remarkable conviction rate of 96%. The target was not only exceeded by 21.7% but a marginal improvement of 0.6% is noted compared to the 95.1% conviction rate achieved in the previous year.

For the Priority Crimes Litigation Unit (PCLU), a conviction rate of 60% was achieved on cases prosecuted. The Missing Persons Task Team (MPTT), a separate project within PCLU, continued with research and investigations into the identification, tracing, and exhumations of mortal remains of persons who disappearedas a result of the political conflicts of the apartheid era. The MPTT closed 30 cases in line with its annual target.

• Ensure profit is removed from crime: The AFU completed 389 forfeiture cases. Performance decreased due the high number of protracted cases that were postponed to the new financial year for finalisation. The NPA obtained forfeiture and confiscation orders to the value of R349.5 million. The continued focus on high value cases, improved prioritization of investigations and prosecutions of cases at ACTT, Directorate for Priority Crime Investigation (DPCI) and NPS, as well as an increased focus in the use of non-conviction based forfeiture (Chapter 6 of Prevention of Organised Crime Act), contributed to this excellent performance. The AFU obtained 326 freezing orders, exceeding the target of 321 by 2%. This is as a result of improved coordination and close cooperation with partners and stakeholders in the joint prioritisation of cases including the resolution of factors that inhibit performance. Freezing orders to the value of R778.9m were obtained, 22% below the target of R1bn. Compared to the previous year the performance declined by 72%. The non-achievement of the target was due to fewer cases of high value which were court ready. Freezing orders of R238.6 million were obtained, 70% below the target of R800 million. The decline in performance was also due to one case of very high value being finalised in the previous financial year.

• Ensure threatened witnesses and related persons are successfully protected: OWP achieved its key performance indicator of no witnesses or related persons harmed, threatened or killed, for 15 years in a row. There were 181 new admissions into the programme, bringing total number of witnesses managed to 355 during the year. 250 witnesses attended judicial proceedings. Protection of witnesses resulted in 61 accused found guilty, 1 854 jail terms and 44 life sentences were imposed.

The mandate of the Legal Affairs Division (LAD) is to: monitor and manage civil litigation matters, and to conduct, to a limited extent, some civil matters; to vet contracts and service level agreements entered into between NPA and various external parties. There were 1 109 civil actions received in 2015/16 compared to 847 in 2014/15 (30.9% increase). Civil actions have more than doubled from 509 in 2012/13 to 1 109 in 2015/16, increasing at an average rate of about 30% per year. On applications and legal agreements, 253 applications were received and dealt with, compared to 258 in the previous year. 51 agreements were vetted in 2015/16 compared to 80 in 2014/15, a significant decrease of 36.3%.

An overview of the NDPP’s interventions showed: 29 applications for centralisation were authorised. 521 files about representations were received, and 384 finalised (clearance ratio = 73.7%). Mutual Legal Assistance (MLA) and extraditions – 37 out of 107 requests finalised for MLAs (both incoming and outgoing); 31 of these requests were received from foreign states; 27 initiated by RSA to foreign states. There were 92 requests for extraditions and 19 were finalised. The NPA participated in negotiations on a treaty on MLA between RSA and the UK, as well as RSA and Botswana. There was training aimed at enhancing international cooperation in criminal matters – the international cooperation component is actively participating in the Trafficking in Persons Task Team. The Africa Prosecutors Association (APA) released its first ever handbook and training manual on counter-terrorism, drafted by the NDPP, Adv Shaun Abrahams. The NDPP attended the International Association of Prosecutors (IAP) conference hosted in Russia, with the theme “Combating Terrorism and Violent Extremism”.

Adv Abrahams noted on the matter of the ‘spy tapes’ that the Constitutional Court had issued an order saying it was not in the interest of justice to hear the NPA appeal at this stage, emphasis being 'at this stage'. The NPA has consulted with senior counsel and will consider its approach and make a decision.

So far there has been no chance to make a decision as leadership following the Supreme Court of Appeal’s decision that the President’s lawyers must argue why he should be granted leave to appeal against a High Court ruling that he should face corruption charges.

On #FeesMustFall, he said the NPA is working closely with the relevant stakeholders in the criminal justice cluster to bring an end to the conflict. The NPA is equipped to deal with the cases resulting from the current #FeesMustFall protests across the country. The NPA has provided the requisite resources to help deal with this matter. The protests had serious ramifications for the country and required law enforcement to work together

On the striking from the roll of Adv Jiba and Adv Mrwebi, he said he was approached by both individuals but on separate occasions and both requested to be placed on special leave. There is a misperception that he has the power as the NDPP to suspend people appointed by the President. He thinks the President is considering the matter and it is not proper for him to comment on what recommendations should be made by the President. If Adv Jiba and Adv Mrwebi wanted to return, they would have to submit an application and give notice for special leave to be withdrawn before it would be considered.

Adv Abrahams reiterated that he did not make the decision to prosecute Minister Gordhan, the decision to prosecute was made by prosecutors and it was made on recommendations. That if Minister Gordhan made representations to him to review the matter, he will do so.

Discussion
Mr B Bongo (ANC) referred to page 20 of the Annual Report which talks about the structure. The NDPP, when he was appointed, changed that structure. He asked what informed the change of structure and what is the impact? Secondly, he referred to page 75 and asked who exactly is the Ombuds for the prosecutors. The NPA had told the Committee that it would do a research study, he asked what were the findings. He expressed his concern about the aspirant prosecutors intake and asked what can be done. Most people who graduate with law are unemployed and he asked what interventions can be done to maintain the numbers. there needs to be continuous legal training for prosecutors as the law is constantly evolving and changing. The team looks good and solid, united than ever before. Lastly, he said the NPA needs to brief the Committee on the national cybersecurity framework and state of readiness.

Adv Abrahams responded that when he joined the institution it was necessary for him to transform the institution. The inability to continue with the aspirant prosecutorial programme hampers progress in transformation and the NPA deems this as critical. It was a difficult decision but he had to make a financial and sensible decision. The NPA wants to reassure law students who want to be prosecutors that the NPA will find the means to continue with the programme. Case flow management is critical to the finalisation of a case, but it falls within the domain of the judicial officer who is responsible for placing the matter on the roll. A strong Chief Justice is needed to give directions to those under him.

Ms M Mothapo (ANC) congratulated the NPA on the 93% conviction rate. Crime is a thorn in our society so this conviction rate sends a positive message that the NPA is more than prepared to fight crime. She asked what it means, in the eyes of an ordinary citizen, after the court has declared the two advocates as unfit and NPA had to place them on special leave? What did it mean to be on special leave? She also asked what is happening to the Ndabezitha Programme because on 13 October the NPA was meant to have a meeting with the Limpopo House of Traditional Leaders but that meeting is no longer taking place. This is a very good project for the NPA to educate the rural communities on domestic violence and gender violence. She asked if the NPA is still continuing with the Ndabezitha Programme? there is still a high backlog in District and Regional courts and it is commendable that the High court backlog has reduced by 12%. She then referred to the Missing Persons Task Team and asked if the NPA goes beyond SA borders in terms of the TRC recommendations.

Adv Abrahams responded about special leave saying in this particular situation if a person who wanted to be removed from special leave, the person must write a letter requesting this and that will be considered. They do not enjoy the powers they usually enjoy while on duty. They are on special leave, away from the office. They do not participate at all in the institution.

He replied that the NPA is looking at the Ndabezitha Izimbizo Project which is part of the broader Ndabezitha Programe and that so far it has done good work.

Adv Majokweni responded that the NPA is still continuing with Ndabezitha Programme.

Ms G Breytenbach (DA) directed her question to Adv Majokweni and asked if there is a particular reason for the decline in freezing orders in light of the concern expressed by the Committee about the shifting of funds. She asked if that was the actual reason. During the interviews for the Public Protector, Mr Willie Hofmeyr, described himself as a "postbox". She asked if there is a reason he is finding himself as that. Shadrack Sibiya, former head of the Gauteng Hawks, was acquitted on a fraud charge. The prosecutor informed his superior he could not prove the elements of the fraud against Mr Sibiya, but he was informed by his superior to proceed. She asked what are the consequences for that prosecutor and more importantly the superior who gave the order? She asked if there will be more prosecutions on Public Finance Management Act (PFMA) transgressions?

Adv Abrahams responded that he was deeply concerned when he saw the interview with Mr Hofmeyr after the consultations he had had with him before. He offered all the Deputy National Directors an exit out of the institution. If somebody feels they are not being adequately utilised and they do not want to be part of a team then they must look elsewhere to be utilised accordingly. When you get to that level, then you are a team player. He has always regarded Mr Hofmeyr as a leader in the institution, a team player and as somebody who would do best for the institution. He became aware of the Shadrack Sibiya matter in the media and he immediately called for a briefing on this matter and directed an investigation into the conduct of the prosecutor and his superior. Certainly there will be more prosecutions on contraventions of the PMFA Act. The Standing Committee on Public Accounts (SCOPA) expressed a concern on the lack of prosecutions. He is willing to prosecute his own people for contravention of the PFMA.

Mr S Swart (ACDP) said he fully supports the #FeesMustFall stance by the NPA. He mentioned the recent announcement to prosecute the Minister of Finance and the timing thereof. He asked whether representations were first made, whether it was wise to institute the charges prior to the Medium Term Budget Policy Statement? He asked the NPA to take the Committee into their thinking and asked to what degree did the NPA consider the public interest were taking that decision? There is a lot of concern expressed about this matter. He referred to the PFMA prosecution and asked if the NPA is able to mero motu institute an investigation or must it wait for a complaint to be laid after the Auditor-General has given an opinion that something is unlawful? He urged the NPA to look into the sale of the strategic oil reserves.

Adv Abrahams responded that the NPA would not go to the extent of creating special courts but will commit to prioritise courts to deal with these matters. The decision to prosecute was made on recommendations of prosecutors by the special director who heads Priority Crimes Litigation Unit in consultation with the Director of Public Prosecutions of North Gauteng. Minister Pravin Gordhan can make representations to him to review the matter; he emphasised that he did not make the decision to prosecute Minister Gordhan. He raised the issue of public interest with the team and he applied his mind.

On the strategic oil reserve matter, he said it came to his attention through the media and he would like to request the Hawks to investigate the matter. The NPA is being proactive here. He added that there is a misperception that the NPA has investigative powers to investigate matters when it does not. The NPA gives guidance to the police and other structures in the litigation of matters.

Mr W Horn (DA) asked the NPA to comment on the decline in convictions for organised crime. He asked whether the NPA is accepting the proposal by Treasury for further reductions to its budget? Perhaps the NPA needs to make a special plea because it is fulfilling a critical role. There has been a negative reaction to decisions of the NPA of late. The NPA must act without fear, favour and prejudice. He also questioned the timing of the first charge and said if the NPA is so sure why not then draft a charge and inform the person of the charges that he will be facing? He cannot fault South Africans for being concerned about the timing. The Priority Crimes Litigation Unit was set up to deal with the security of the state. If something is as straightforward as fraud why keep it within this unit? Is it because the accused is the Minister of Finance? If the unit has a conviction rate of 60%, the NPA must inform South Africans as to how many cases it had and what kind of charges were brought?

Adv Abrahams responded that the best the NPA can do is work closely with the police to ensure that these matters are investigated properly. He needs to remind this Committee about the challenges the NPA faces with resources. What is a priority to the NPA is providing the resources. He is enjoined to refer any matter to the Priority Crimes Litigation Unit and any matter before that unit is legally placed.

The Chairperson said the issue of timing is a political question. He said he does not think the Committee should step into the boots of the NDPP. The Committee should guard against getting through its different interpretations of the law. He concluded by saying that he trusts the NPA to do the right thing.

Ms C Pilane-Majake (ANC) said what needs to ultimately guide the NPA is its mandate and not emotions and sentiments. The Committee must encourage the NPA to do a good job. She asked where are the corruption charges? SA wants to deal with corruption as corruption is an impediment. She referred to the violent protests and said that South Africans have the right to protest, but it must be peaceful. It is unacceptable that protest in SA brings about death, destruction of state property. Perhaps that says we live in a state of anarchy. There needs to be a time when a clear message is sent to South Africans that, yes, they are allowed to protest but that protest should not infringe the rights of others. She referred to illicit mining and said we cannot have people coming into SA and being involved in illicit mining and explaining it away. The Committee appreciates the work that has been done. She lastly referred to the reduction of staff and said she thinks it is a good move. It is not compromising the mandate and, where possible to do cuts, let us make those cuts.

Adv Abrahams responded that the NPA is dealing with illicit mining. If the NPA needs to restructure it will do so, but it will be for the betterment of the NPA and administration of justice. It will make financial sense and operational sense.

The Chairperson added that as government we must not create conditions conducive to anarchy. Universities must do their work and not create unnecessary work for the NPA otherwise we might end up with a police state. As Parliament they need to call on universities to resuscitate the transformation forums so as not to make non security issues security issues.

Dr Silas Ramaite, Deputy NDDP responsible for Administration and Office for Witness Protection, responded about the budget cuts. Firstly on the aspirant prosecutors, the NPA needs to look at the intake as after completing the programme, they must take them on board and make them permanent. It is not only the budget for the intake but the NPA will need to compensate them. The NPA finds itself in a dilemma and he does not know how the Committee can assist. He has made a plea to Treasury for funding.

The meeting was adjourned.