National Prosecuting Authority Annual Report briefing

Meeting report

Directorate of Special Operations (DSO): Annual Report briefing
Adv Leonard McCarthy, Director of Special Operations,  highlighted key points relating to the processes and functions of the NPA. He outlined that the Directorate of Special Operations had an important and specific role to play in fighting organised crime in South Africa.

He outlined the mandate and strategy of the NPA, stressing that the DSO targeted criminals who organised and profited from crime. It used a multi-disciplinary and success-driven approach to deal with cases more effectively. He compared the performance of the NPA over the last few years, giving figures of new investigations initiated, numbers of prosecutions and noted a conviction rate of above 80%. It had handled 41 cases in which R64 million was directed to the Criminal Assets Recovery Account (CARA) and had directed R50 million to the victims of organised crime. He highlighted the major cases and operations. He summarised the budget allocations and variances. There had been 5% over spending. There were 831 established posts, of which 322 were vacant. The key lessons learned by the DSO over the year were outlined (see attached presentation). He then set out the key aspects of the strategic plan for 2007/08.

Adv McCarthy explained that the main purpose of the NPA was to focus on priority crime such as major drug syndicates, gang violence and organised institutional and financial crimes and informed the committee that contraband to the value of R1 billion was confiscated. He said that the rise in the complexity of cases as well as the international dimension to some cases made it difficult for the NPA to fulfil its mandate. Other challenges included increasing operational effectiveness in investigating and prosecuting organised crime, developing measurement indicators, setting the functioning and streamlining the coordination, strengthening professional resilience, ethics and confidence, enhancing the workspace and finding new work. He called upon parliament to continue to assist the NPA in its endeavours

Discussion
Mr S Swart (ACDP) commended the NPA on its brilliant track record pertaining to the arrest, prosecution and conviction of criminals. He expressed this in light of the severe pressure and morale attacks that the NPA had to endure over the past few years, as mentioned by the suspended Head of the NPA, Adv Vusi Pikoli. He asked, given this background, what the morale was amongst NPA employees.

Adv McCarthy explained that in January and February there had been visits by the directorate to all provincial offices to liase with and speak to staff. He acknowledged that morale was at an all-time low, given the current circumstances regarding the future of the Directorate. He stressed that DSO employees were unsure of their position, but that they were keeping positive by focussing on the tasks that they were mandated to do.

Mr Swart also relayed a personal experience of being a victim of “fishing” – the electronic attack on banking institutions in South Africa - and requested an explanation as to how the NPA was dealing with this unlawful practice.

Adv McCarthy noted that “fishing” had become a problem and that the DOS was looking into enhancing its policies in dealing with this form of internet fraud. He stressed that there was currently a lack of insulation systems to prevent this form of fraud and that the DSO was working in conjunction with the banking industry as well as the National Treasury in drawing up guidelines, policies and procedures to combat “fishing”. He said that he was concerned that it was still happening.

Mr Swart raised his concern with the lack of communication with regards to the NPA’s image. He stressed that it was very important for the NPA to explain what they were already doing, or intended to do, to communicate their image much more effectively, and that it would probably be useful to have communication officials in each provincial office.

Dr T Delport (DA) was also of the opinion that the DSO was not doing much to bolster its own image.

Adv McCarthy agreed that enhancing the NPA’s public image was very important and that the current image of the authority in the public domain was far removed from reality. He stated that, due to security and judicial implications, it was not always practical to inform the public about the NPA’s actions, but that it was important to communicate information about – for instance - the Fidentia case to the public as it was a matter of public interest.

The Chairperson said that the NPA should shoulder part of the blame for the allegations levelled at it, but that it was not in the long-term interests of South Africa for the NPA to be constantly undermined. He believed that the Minister of Justice should exercise supervision and oversight, more effectively and that she should not intrude in the actions taken by the NPA. The Chairperson believed that as far as the reporting line was concerned, the NPA should also report to parliament in terms of targets and their budget allocation and that the specific commitments made by the preceding Justice Portfolio Committee must still be regarded as in place.

The Chairperson commented that, in the light of upcoming elections, parliamentarians would be very busy, but that he would see to it that the Committee met with the DSO privately.

The Chairperson expressed his concern with the lack of systems and mechanisms in place to deal with media leaks pertaining to cases investigated by the NPA. He said that the majority of the ANC Members of the Committee felt that the DSO was not doing enough to address the problems of leaks and that justice was not being served by victimising individuals in the media. The Director should ensure that the DSO stopped acting outside of its mandate and should inform the public of the mandate. He did however, acknowledge the successes of the DSO.

Dr Delport was vocal in expressing his opinion that he could not accept that the NPA was responsible for leaking sensitive information regarding political cases.

Adv McCarthy requested that the Chairperson set a date for a closed meeting between the DSO and the Committee. He acknowledged that the DSO was not a perfect organization and that it was doing everything in its power to prevent leaks from occurring. The DSO already had disciplined two of its members who were found to be leaking sensitive information.

The Chairperson noted that it was important for the Presidency to make the Khampepe Commission Report available to parliament, given the current situation of the NPA.

Adv L Landers (DA) commented on the availability of the special report on Intelligence and announced that the special report was released on 26 February.

Adv C Johnson (ANC) asked the Mr McCarthy to explain to the Committee and the public the recent debate on the DSO and intelligence gathering. She also wished to be briefed on the processes involved in legislation and whether intelligence gathering was an issue or not.

Adv A Mngwengwe, Director: Investigations, DSO, said that the DSO was mandated by Section 7 of the NPA Act to keep and gather intelligence.

Adv Landers questioned the constitutionality of the NPA’s claims that it was mandated to gather intelligence, and stressed that only the President could determine which structure was able to gather intelligence. The NPA did not fall under that mandate. He called on the NPA to conceptualise the last statement with regard to the NPA having a constitutional mandate to gather intelligence.

The Chairperson supported Adv Landers and hinted that the DSO might be involved with spying on political figures. If so, the NPA acted outside of its mandate when it gathered intelligence on politicians.

Adv McCarthy defended the DSO and said that the DSO was never told by any court that it had acted outside of the DSO mandate. He did acknowledge that he was told by one of the judges on the Khampepe commission that what the DSO was doing was considered as intelligence gathering, and that the possibility was raised of intelligence oversight for the NPA.

Ms N Mahlawe (ANC) emphasized the success of the DSO, but criticised the DSO for excluding many people from information flow from their office, and said that if the DSO was more willing to engage it might not have experienced the current onslaught against it.

The Chairperson said that parliament could also play a role in assisting the NPA, and reiterated the role that the Minister of Justice needed to play without intruding on the mandate of the NPA. He highlighted that leaks only seemed to occur around political cases, and raised a serious question on whether the leaks were really occurring outside of the NPA.

Adv Delport said that there seemed to be an attempt by the ANC-led Committee to build a case against the Scorpions. He would not be part of such a campaign.

The Chairperson took exception to this, and replied that it was parliament’s job to hold government departments to account, and that parliament was acting within its mandate.

Mr Swart supported Mr Delport’s views, stating that he too could not accept the views of the Chairperson that the NPA acted outside of its mandate. He stressed that the Committee would have to engage with the Khampepe report as well as the Intelligence report, and that these reports would form the basis of the Committee’s views.

The Chairperson took note of Mr Swart’s views and stressed that the Committee was not a commission of enquiry. The onus was on the NPA to address the questions pertaining to their credibility.

Mr McCarthy stated that there had been a DSO national conference in 2008 to address the issues pertaining to the NPA’s credibility. A concerted effort had been made to run security checks. To further enhance the role and credibility of the NPA, existing procedures on information gathering were reviewed, and a manual was issued on the gathering of crime information and internal disciplinary processes.

Mr Mngwengwe commented, in relation to the mandate, that the DSO’s cases were complex. The DSO was compelled by law to follow two processes when investigating cases. Section 28(13) authorisations pertained to a scenario where the DSO suspected entities of being involved in criminal activities, but there was a lack of sufficient evidence. Section 28(1) authorisation involved a scenario that called for invasive tactics.  These invasive tactics include search and checking of premises (with a court order), surveillance and close scrutiny of bank accounts. It would be decided whether the evidence obtained could be used in the courts.

Imam G Solomon (ANC) said that there was a need for a specialised unit in South Africa, whether it fell within or outside the S A Police Service (SAPS). He said that the idea of the NPA “choosing” its cases was a very contentious issue as it raised the notion that the DSO was the only agency fighting crime. He asked for an explanation of this.

Adv McCarthy said that the South African Police Service had its own mandate as it was the primary agent against crime, and that the DSO served as support to deal with organised crime. He outlined four intake criteria used by the DSO in choosing cases. These four criteria were organised crime, high level corruption, complex financial crimes and offences under the Prevention of Organised Crime Act (POCA).

Adv Johnson requested whether organised crime in South Africa was decreasing or increasing and what the NPA was doing in addressing the skills shortages within its ranks.

Adv McCarthy said that he preferred to table this information in a  closed meeting. However, he informed the committee that every year the DSO would compile a Threat Analysis, based on seven commodities: humans, drugs, corruption, money, cars, oil or minerals, and guns. The DSO utilised this Threat Analysis to look at the various role players and could then make inroads in various other fields.

The key skills concerns for the NPA were skills in the financial markets, and litigation skills to deal with highly complex cases. He said that there was a need for the country to invest in these skills. Finally there was also a constraint in obtaining enough sufficiently skilled staff with an understanding of technology and technology crimes.

The Chairperson asked how many vacancies had been filled by the NPA.

Adv McCarthy indicated that NPA staff intake had risen from 509 to 540 since the last financial year.

Mr Solomon asked how many cases were resolved by plea bargaining and which agency was responsible for high level areas of crimes.

Adv McCarthy replied that 25 % of all cases investigated by the DSO were solved by plea bargaining and that the uptake levels of plea bargaining depended on the severity of the cases.

National Prosecuting Service (NPS) Briefing
Mr Sibongile Mzinyate, Acting Head, National Prosecuting Service, outlined the mission statement, case overviews, service delivery, projects and initiatives and the way forward for the NPS in 2007/2008.

Graphs were tabled dealing with the prosecution of criminal cases in the various courts, as well as the withdrawals, with reasons given. He touched on various issues pertaining to the backlog problem in the judiciary and said that mechanisms were being investigated to address this organisational constraint. On the issue of service delivery he said that there had been a significant decline in the number of court hours and that this was in part due to the problems that the Legal Aid Board was experiencing.

With regards to projects and initiatives Mr Mzinyate indicated that a magistrate in the Vosloorus area had made giant strides in reducing the back-logs in his court and that the NPS would engage with him to help in other problematic areas. Details of the projects were contained in the full presentation (see attached document)

He stressed that the NPS first had a target of resolving 75% of cases within the first 6 months, but that this was reviewed and then changed to 9 months in order to avoid putting added pressure on the courts.

Discussion
Mr S Swart (ACDP) commended the National Prosecuting Authority on its excellent work and asked what the relationship was between the South African Police and the National Prosecution Services, and whether the diversion of 18% of cases was successful. He asked for clarity on how the NPS dealt with diversion without a statutory frame work and whether the delay in the processing of the Child Justice Act had any effect on the NPS.

Adv Charin De Beer, NPS, replied that the case stayed on the roll until the offender completed his/her programme. She said that experience had shown that diversion had proved to be successful.

Dr T Delport (DA) requested the NPS to provide details regarding vacancies and asked whether the NPS had a problem with vacancies.

Mr R Adams, Head of Human Resources, NPA, replied that between July 2007 and December 2007 the NPA made 912 new appointments, of which 737 posts were for the NPS.

The Chairperson commended the NPS for their excellent work and indicated that it was important for the NPS to ask the Committee for help on any necessary aspects. He asked why the Vosloorus magistrate was so successful, and whether the NPS was looking at incorporating these ideas into troubled areas to address the issue of declining court hours.
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Mr Mzinyate replied that the numbers of court sessions were in decline and would thus have an impact on court flow management. He said that the promotion of district court magistrates to regional courts created a problem.

Adv De Beer said that it was important for the NPA to set targets for magistrates to reach as this would serve as an indicator of success or failure and would provide the NPA with guidelines how to deal with court flow management.

Mr B Magwanishe (ANC) said that there needed to be a broader discussion on the issue of court hours. He indicated that the problem occurred between the different players involved in formulating cases.

Mr Mzinyate indicated that the NPS was developing methods to deal with this problem and that it was looking at international best practices in prosecution/police liaison. This led to a decision that the investigating officer and the chief prosecutor would be asked to work together from the start in formulating a case plan with relevant accountability processes. It was stressed that there were no guidelines in place to deal with this matter, but that the new NPA approach would be effective. He added that it would be in the interests of the criminal justice system in South Africa if the NPS and SAPS could link their statistics so that there was a unified manner of dealing with figures.

Adv L Landers (ANC) said that oversight visits were undertaken to Kroonstad and Bethlehem and that close liaisons between the prosecutor and the investigating officer played an integral part in building solid cases. He agreed that the Committee must look into this matter.

The Chairperson acknowledged that the NPS were facing challenges, but emphasized that the NPS should bring down the number of cases being withdrawn.

Corporate Services (CS) Briefing
Ms Beryl Simelane, Acting CEO, NPA, outlined the various aspects that had an impact on the effectiveness of the NPA. These challenges included high staff turnover in key positions, the lack of a CFO through inability to find the right incumbent, until the post was eventually filled by head hunting in October 2007, and the special leave given to the CEO, Deputy CEO and Head of Integrity pending a disciplinary hearing that had been withdrawn, reinstituted and finally withdrawn again a year later. A qualified audit opinion had been received. This could have been prevented, and an action plan had been drawn to address the issues. It was vital to prioritise the filling of vacancies. She also informed the committee as to why there were difficulties in appointing a new Chief Executive Officer. The position had been advertised. Building and sustaining credibility of the unit in the NPA service delivery improvement was critical.

Ms Karin Van Rensburg, Acting Head of Strategy: Corporate Services, gave a brief introduction into the core values of Strategy 2020. She explained the validity of having a long-, instead of a short-term strategy in place. There were seven strategies to direct the NPA towards 2020. These were good governance, organisational transformation, crime prevention and community justice, better investigations, better case management, joint problem-solving, and developing and enhancing capabilities. She noted that special focus was to be placed on addressing the vacancies, and that 1012 positions were filled. She explained the elements of each of the strategies.

Mr Brian Graham, Chief Financial Officer, NPA, gave a general overview of financial aspects of the NPA. He stated that the 2006/07 opinion of the Auditor General was qualified in respect of assets, lease commitments, intangible assets, commitments and prepayments. There was an emphasis of matter in respect of irregular expenditure, assets less than R5 000 and departmental revenue to be surrendered. He presented a financial overview, showing an overall under expenditure and specified the appropriations and expenditure for each sub programme. Finally he submitted the budget for the 2007/08 year with expenditure to date.

Discussion 
Mr Magwanishe asked whether the lack of suitable candidates to fill vacancies within Corporate Services (CS) was not an indication of the problems the CS was experiencing in terms of its organisational framework. He suggested that perhaps Corporate Services was not taking its organisational framework seriously as it did not have any suitable candidates within its own ranks to fill the CEO position.

Ms Simelane said that the untimely departure of the previous CEO had created problems. She noted that applications from within the NPA were received, but that the candidates were not suitable for the position. She acknowledged that there was not a suitable succession plan and that the organisation had been under tremendous pressure.

The Chairperson asked Corporate Services to indicate why it had the Strategy 2020 plan.

Ms Van Rensburg replied that extensive research was done before this plan was implemented. She said that a long-term concerted effort was necessary in order to secure the Department, and that the NPA measured its success against the horizons that arose with regard to specific objectives.

Mr Solomon expressed his pessimism about having a long term plan and said that policies might change over time. He asked whether it would not be feasible to have a short-term plan as the plan spanned three successive governments, who might have different policy directives.

Ms Simelane replied that the prosecuting authority would always be in place, regardless of who was in power. She noted that the Strategy 2020 pertained to the most effective and best manner for the NPA to deal with problems.

Adv Mokotedi Mpshe, Acting Head: NPA, expressed his thanks to the Committee for a constructive engagement, and he said that he had been taking note of the comments raised. He confirmed that the issue of leakages of information would be addressed and that outreach programmes would be taken seriously. He reiterated the NPA’s commitment to service delivery, without fear or favour.

The meeting was adjourned.