OBJECTIVE; ESTABLISHING A GOOD JURISPRUDENCE
Overall success rate
14. The overall success rate measures the number of cases that are successfully completed
and are not lost or withdrawn for any reason. Our target is to complete 85% of cases successfully, and we are slightly above target.
Success rate in judgements
15. The AFU also measures its success rate in matters that are litigated and results in a judgment.
16. To date the AFU has obtained 2 judgments in the Constitutional Court and 11 judgments in the Supreme Court of Appeal (6 of them this year).
17. The AFU has also obtained 108 judgments in the High Court. These have helped to clarify many parts of the operation of the law, albeit not finally.
18. A major change over the past two years has been a very significant increase in the success rate in cases where judgments were obtained. Up to April 2003, the judgement success rate was only about 44% (21 of 48 judgments).
19. This changed dramatically in 2003/04 when we had an excellent year obtaining 30 judgements with a success rate of 77% against a target of 60%.
20. So far this year is less good than the previous year, but our success rate of 64.3% is close to our target of 66.7%.
21. We obtained 42 judgments in the 2004/05 year, well above the target of 30.
22. The AFU targets for 2005/06 are 50 judgments with a 70% success rate.
Supreme Court of Appeal cases
23. We have put measures in place to deal with the instrumentality issue after the Seevnarayan judgement in the SCA early in the year. This judgment makes it almost impossible for the AFU to act against dirty hotels, and we will approach Parliament with an appropriate amendment to POCA.
24. However, a recent WLD decision Cole and Davis has assisted the AFU. The SCA has taken an instrumentality appeal in Prophet (a judgement to which they had referred with approval), and together with the Cole and Davis appeal we hope that this will herald a more balanced approach.
25. The AFU recently won 2 of the largest cases it has taken on. The Rautenbach judgement was a very significant one on conviction-based forfeiture. Although there was a minority judgment, it also found in favour of the AFU on more limited grounds.
26. In Phillips, the court unanimously overturned a High Court decision that rescinded the restraint order on the basis of its inherent jurisdiction. It held that only the grounds in POCA could be used to set aside an order.
27. Last week the AFU won another appeal in the SCA against a High Court decision that awarded Phillips personal damages against an AFU investigator for statements made in court papers.
Constitutional challenges
28. Both Rautenbach and Phillips have applied for leave to appeal to the Constitutional Court. The Rautenbach application was refused, and the Phalips application for leave will be argued in May.
29. A number of constitutional challenges are still being dealt with in the High Courts. None of these raised serious new issues.
Legal amendments
30. A number of areas have been identified where the law should be clarified or strengthened. Amendments have been prepared and submitted to DOJ. It is important that they be processed in Parliament in the second half of the year.
31. The Minister is about to publish regulations to specify the maximum legal expenses that may be paid from assets preserved ito chapter 6.
OBJECTIVE; ESTABLISHING A NATIONAL PRESENCE
32. It was planned to establish a physical presence in Mmabatho, Polokwane and Nelspruit in the current year to enable the AFU to have at least a small office in each province. The staff for these positions have been appointed and the offices are being set up.
OBJECTIVE: ENSURING PARTNER SATISFACTION AND CO-OPERATION
National Guidelines with DSO
33. National guidelines were agreed and signed with the DSO last year. This has helped to improve cooperation significantly.
34. There has been significant progress in the joint development of forfeiture targets to be incorporated in the DSO regional targets.
National Guidelines with SAPS
35. National guidelines have been agreed with SAPS and is ready to be signed.
36. We are grateful that SAPS have agreed to set up task teams focusing solely on forfeiture work in all provinces. In Cape Town, Johannesburg, Durban, Pretoria, Port Elizabeth and East London they are located in AFU offices and this has made cooperation with SAPS really successful.
37. Although a proposed SAPS structure for the task teams has now been formalised, there are still several problems regarding the accountability and career paths of task teams members that still need to be resolved. SAPS have recently indicated that they will bolster the size of the task teams in several provinces, which will alleviate some of the difficulty.
38. It should be mentioned that for the first time in some provinces we have to turn away work referred to us by the SAPS due to our lack of internal capacity. Clearly this is not desirable.
Guidelines with SARS
39. An MOU has been agreed with SARS as part of a broader NPA MOU and is due for signature soon. In the meantime a member of SARS has been devoted full-time to servicing the requirements of the AFU.
Developing forfeiture capacity in the National Prosecution Service
40. One of the major challenges that remain for the AFU is to find a successful model for involving prosecutors in the magistrates' courts in the work of the AFU. This is especially due to the heavy work-load faced by lower court prosecutors.
41. It is hoped that a new program to appoint asset forfeiture specialists in the main courts on a trial basis will be the major vehicle for doing more asset forfeiture cases in these in future.
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42. We are developing jointly with the NPS guidelines for our cooperation and joint targets for the number of referrals to be done.
Employment of State Attorneys
43. Due to huge problems being experienced with the level of service from most state attorneys, the AFU agreed with the state attorneys to employ staff on its own budget who can assist the state attorneys in Johannesburg, Pretoria, Durban and Cape Town on a full-time basis to serve the rapidly growing needs of the AFU.
44. Most of these positions have recently been filled.
Financial Intelligence Centre
45. The AFU has been working closely with the FIC, and has received many useful reports from it. The AFU would like to second one of its investigators to work full-time in the FIC as soon as the capacity is available.
OBJECTIVE: TARGETTING PRIORITY CRIMES
46. An important development during the year has been that the AFU has become more intensively involved in targeting serious organised criminals, initially in the High Flyers project in the Western Cape, and later in the Top 200 project announced by the President.
47. The AFU role in the initiative can produce excellent results, esp the financial investigations that have proved invaluable in providing the evidence that is required to link different members of the syndicate to enable the state to use racketeering charges.
48. A major initiative this year has been our work with the Arrive Alive campaign to seize the vehicles of drunken drivers. Thus far 4 matters have been taken to court, and 5 are pending before court. The NPA believes that this is an important contribution it can make to reducing the unacceptably high death toll.
49. Thus far no serious legal challenges have been brought, but the first order is been challenged on somewhat vague constitutional grounds.
OBJECTIVE; ESTABLISHING EFFICIENT AND EFFECTIVE BUSINESS PROCESSESS
50. The emphasis on production has meant that not enough time has been spent on placing various aspects of OUT administrative infrastructure on a firm footing.
Improving the legal systems and procedures
51. The standard precedents of the AFU have all been revised and updated. We have tried to
introduce standard procedures for other areas such as case and file management, but much remains to be done to achieve efficient standardisation.
Developing a financial investigative capacity to do financial profiles and trace assets
52. Although we have made significant strides, OUT ability to do financial profiling and asset
tracing is still very limited and we do not feel that adequate work is being done on the cases being dealt with at the moment. We are battling to cope with the volume of cases coming in.
53. More training is envisaged, both for AFU staff and for the SAPS and DSO members working with the AFU.
54. We are working with the FIC to develop a financial investigative course that will be formally accredited through UNISA.
Enforcement capacity to work with curators and CARA
55. The AFU is making a concerted effort to increase our capacity to interact effectively with curators.
56. The CFO in the DOJCD appointed a task team to resolve some of the issues around CARA policies and procedures. The team has assisted tremendously in resolving a number of outstanding issues, and the new CARA Unit has began to function in the NPA.
ESTABLISHING A SKILLED. COMMITTED AND REPRESENTATIVE STAFF
57. The AFU is still concerned about the general skill levels of our staff. To some extent, the
emphasis on production has had some impact on our ability to develop our staff as much
as we should, and we have tried to start giving more attention to training.
The equity profile of the AFU is as follows:
58. In this context, the fact that we are not able to attract sufficient staff, and especially African staff, with civil litigation and financial investigation expertise is a continued source of serious concern. The NPA will have to give serious attention to new and creative ways (such as a form of pupilage) of attracting sufficiently skilled staff in an environment where we face heavy competition from the private sector.