1
ANNUAL REPORT
2019/20
NATIONAL PROSECUTING AUTHORITY
Rebuilding an Independent, Professional, Accountable and Credible NPA
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS’
REPORT ON THE OPERATIONS OF THE NATIONAL
PROSECUTING AUTHORITY IN TERMS OF SECTION
22(4)(g), READ WITH SECTION 35(2)(a), OF THE
NATIONAL PROSECUTING AUTHORITY ACT 32 OF 1998
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List of Figures
List of Tables
List of Abbreviations/Acronyms
National Director’s Foreword
National Prosecuting Authority Mandate and Structure
Legislative and Policy Mandates
Executive Summary
Investigating Directorate
National Prosecutions Service
Cases and Appeals Finalised in the High Courts
Cases Finalised in the Regional Courts
Cases Finalised in the District Courts
Vulnerable Victims of Crime
Sexual Oences
Environmental Crime
Money Laundering
Cybercrime
Violent Protests and Industrial Action
Corruption
Asset Forfeiture Unit
Oce for Witness Protection
Activities in the Oce of the National Director
The Innovation and Policy Support Oce
Technology and Digitisation of the NPA
Procurement of a Business Intelligence Tool
Information and Communication Technology (ICT) Infrastructure
National Prosecuting Authority Sta survey
International and Regional Cooperation in Criminal Matters
Ensuring Eciency in International Relations, Treaty Negotiations and Related Matters
Memoranda of Understanding with Partners
Representations and Complaints
High-prole Cases Reviewed by the National Director of Public Prosecutions
Cato Manor Matter
South African Revenue Services ‘Rogue Unit’ Matter
Investigating Directorate
Authorisations by the Investigating Director
Security Sector
High-Level Public and Private Corruption
State-Owned Enterprises
Administration and Human Resources
Prosecutors
Criminal Investigators
Financial Investigators/Forensic Accountants
e-Discovery and Data Analysts
Public and Private Sector Secondments
Challenges with Human Resource Capacity
Budget and Procurement
Challenges
Information Technology
Security Managed Services/Integrity Testing
Noteworthy Case
Activities of the Deputy National Directors
National Prosecutions Service
Introduction
Highlights Achieved
Case Study: Corruption
Contents
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Case Study: Racketeering, Money Laundering, Fraud and Corruption
Decision Dockets
Performance Against Strategic Objectives and Programme Indicators
Conviction Rate in High Courts
Case Study: Murder
Case Study: Rape
Case Study: Rape of a Minor
Case Study: Intimate Femicide
Case Study: Murder and Rape
Conviction Rate in Regional Courts
Case Study: Murder
Case Study: Murder
Conviction Rate in the District Courts
Number of Criminal Matters Finalised
Number of Criminal Court Cases Finalised with a Verdict
Court Days
Court Hours
Plea and Sentence Agreements
Outstanding Cases
Backlogs
Number of Criminal Cases Withdrawn After Enrolment
Number of Criminal Cases Finalised Through ADRM
Number of Cases Finalised, Including ADRM
Number of Criminal and Court Related Matters Finalised
Appeals Finalised
NPS Programme Performance Indicators
Conviction Rate in Murder Prosecutions
Murder: Intimate-Partner Femicide
Conviction Rate in Trio Crimes
Case Study: Attempted Murder
Case Study: Appeals
Conviction Rate in Sexual Oences
Conviction Rate in Violent Protests and Industrial Action
Conviction Rate in Complex Commercial Crime
Number of Persons Convicted of Corruption of More Than R5 million
Number of Government Ocials Convicted for Corruption or Oences Related to Corruption
Number of Persons Convicted of Private Sector Corruption
Case Study: Money Laundering
Case Study: Tax Prosecutions
Conviction Rate in Money Laundering Cases
Specialised Tax Component
Reducing Organised Crime
Conviction Rate in Organised Crime
Illicit Mining
Case Study: Illicit Mining
Conviction Rate in Environmental Crime
Conviction Rate in Cybercrime Prosecutions
Conviction Rate in Copper Theft
Ad Hoc
National Responsibility: Drug and Related Matters
Case Study: Drugs
Case Study: Deportation
Ad Hoc
National Responsibility: Deaths Due to Initiations
Ad Hoc
National Responsibility: Taxi Violence
Gangsterism
Tracking in Persons
Victim-Centric Services Enhanced
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Number of Victims Assisted at TCC Sites
Conviction Rate of TCC Reported Cases
Victims of Crime
Clearance Ratio on Decision Dockets
National State of Disaster: COVID-19
Challenges
Priority Crimes Litigation Unit
Noteworthy Cases
Decisions
Legal Opinions
Technical Assistance
Training
Reporting Obligations to National and International Bodies
Missing Persons Task Team
General
Asset Forfeiture Unit
Prevention of Organised Crime Act
Service Delivery Environment
Organisational Environment
Performance Against Predetermined Objectives
Number of Completed Forfeiture Cases
Value of Completed Forfeiture Cases
Number of Freezing Orders Obtained
Value of Freezing Orders
Value of Freezing Orders Obtained Relating to Corruption, Where the Amount Involved is More than R5 Million
Value of Recoveries in Terms of the POCA
Success Rate
Value of Recoveries Relating to Corruption, Where the Amount Involved is More than R5 Million
Value of Recoveries in Respect of Government Ocials Convicted of Corruption and Other Related Oences
Strategies to Overcome Areas of Underperformance
Noteworthy Cases
International Recognition
Legal Aairs Division
Overview of the Unit
Noteworthy Cases
Oce for Witness Protection
Witness Protection Act, 1998
Overview of the Performance Delivery Environment
Operational Highlights
Challenges
OWP Strategic Objective
Percentage of Witnesses and Related Persons who Walked o the Witness Protection Programme
Percentage of Witnesses and Related Persons Successfully Discharged and Resettled
The Average Costs for the Protection of Witnesses
The Human Resources of the NPA
Employment Equity Prole per Oce or Division
Financial Implications Regarding the Administration and Operations of the NPA
Training Programmes for Prosecutors
Glossary of Terms
Technical indicators and descriptions
End Notes
Notes
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List of Figures
Figure 1: Conviction rate by high courts over a ve-year period
Figure 2: Cases nalised by high courts in relation to the sta compliment
Figure 3: High court: serious violent crime
Figure 4: Cases nalised by regional courts
Figure 5: Conviction rate in regional courts
Figure 6: Cases nalised by district courts
Figure 7: Conviction rate in district courts
Figure 8: Number of enrolled cases withdrawn
Figure 9: Trend analysis of criminal cases nalised including ADRM
Figure 10: Inow of new cases
Figure 11: Progress of murder conviction rates
Figure 12: Progress in trio crime conviction rate
Figure 13: Overview of sexual oences conviction rate
Figure 14: SCCU conviction rate
Figure 15: Progress on prioritised corruption cases
Figure 16: Government ocials convicted of corruption
Figure 17: The comparison of organised crime sentences imposed
Figure 18: Conviction rate in cybercrime
Figure 19: Copper theft and damage to essential infrastructure verdicts
Figure 20: Number of victims assisted at TCC sites
Figure 21: Conviction rate of TCC reported cases
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Contents
List of Tables
Table 1: Additional court/prosecution related functions performed
Table 2: Additional court and prosecution related functions
Table 3: Progress on criminal matters nalised
Table 4: Comparison of criminal court cases nalised with a verdict
Table 5: Comparison of court days utilised
Table 6: Comparison of average court hours utilised
Table 7: Number of plea and sentence agreements
Table 8: Number of outstanding cases
Table 9: Number of backlog cases
Table 10: Comparison of criminal court cases nalised through ADRM
Table 11: Comparison of ADRM cases per Indicator
Table 12: Comparison of criminal court cases nalised including ADRM
Table 13: Comparison of new cases received
Table 14: Progress on criminal and court matters nalised
Table 15: Criminal appeals dealt with
Table 16: Trio counts overview
Table 17: Progress in dealing in drugs and related matters
Table 18: CPO performance
Table 19: Progress on decision dockets
Table 20: Case and accused status: COVID-19 rst appearances
Table 21: Annual comparison of the number of completed forfeiture cases
Table 22: Annual comparison of the value of completed forfeiture cases
Table 23: Annual comparison of the number of freezing orders obtained
Table 24: Annual comparison of the value of freezing orders
Table 25: Value of recoveries in terms of POCA
Table 26: Breakdown of total employment in the NPA per oce
Table 27: Breakdown of employment status per core responsibilities
Table 28: Status of employment equity per oce
Table 29: Expenditure report
Table 30: Final budget allocation per economic classication
Table 31: Breakdown of training programmes by number of beneciaries
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4IR
ACFPSA
ACTT
ADRM
AENE
AFU
AG
APP
AU
BRICS
CARA
CCM
CCPCJ
CFE
CFO
CI
CITES
CJA
CJS
ConCourt
COP
CPO
COSP8
CPS
CTED
CTFC
DDPP
DEFF
DG
DHA
DIRCO
DNDPP
DoJ&CD
DPCI
DPE
DPP
DPSA
ECMS
ENE
ERAP
EWP
List of Abbreviations/Acronyms
Fourth Industrial Revolution
Advanced Certicate: Forensic Practitioner South Africa
Anti-Corruption Task Team
Alternative Dispute Resolution Mechanisms
Adjusted Estimates of National Expenditure
Asset Forfeiture Unit
Auditor-General
Annual Performance Plan
African Union
Brazil, Russia, India, China and South Africa
Criminal Assets Recovery Account
Coordinating Committee Meetings
Commission on Crime Prevention and Criminal Justice
Certied Fraud Examiner
Chief Financial Ocer
Crime Intelligence
Convention on International Trade in Endangered Species
Child Justice Act
Criminal Justice System
Constitutional Court
Community of Practice
Court Preparation Ocer
Conference of State Parties to the United Nations Against Corruption
Crown Prosecution Service
Counter-Terrorism Executive Directorate
Counter-Terrorism Functional Committee
Deputy Director of Public Prosecutions
Department of Environment Forestry and Fisheries
Director-General
Department of Home Aairs
Department of International Relations and Cooperation
Deputy National Director of Public Prosecutions
Department of Justice and Constitutional Development
Directorate for Priority Crime Investigation
Department of Public Enterprises
Director of Public Prosecutions
Department of Public Service and Administration
Electronic Case Management System
Estimates of National Expenditure
Emergency Response Plan
Employee Wellness Programme
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Abbreviations/Acronyms
FATF
FBI
FIC
FLASH
GBV
GBVF
HRM&D
HSBC PLC
ICRC
ICT
ID
IJS
IMF
IMU
INTERPOL
IO
IOT
IPID
IPSO
ISIL
ISM
JCPS
KZN
LAD
LPC
MLA
MoU
MPTT
MTEF
MTSF
NACS
NATJOINTS
NBIF
NCSMT
NDP
NDPP
NGO
NISCWT
NPA
NPA Act
NPC
Financial Action Task Force
Federal Bureau of Investigation
Financial Intelligence Centre
Firearms, Liquor and Second-Hand Goods Control
Gender-Based Violence
Gender-Based Violence and Femicide
Human Resource Management and Development
Hongkong and Shanghai Banking Corporation Limited
International Committee of the Red Cross
Information and Communication Technology
Investigating Directorate
Integrated Justice System
International Monetary Fund
Integrity Management Unit
International Criminal Police Organisation
Investigating Ocer
Internet of Things
Independent Police Investigative Directorate
Innovation and Policy Support Oce
Islamic State of Iraq and the Levant
Information System Management
Justice, Crime Prevention and Security Cluster
KwaZulu-Natal
Legal Aairs Division
Legal Practice Council
Mutual Legal Assistance
Memorandum of Understanding
Missing Persons Task Team
Medium-Term Expenditure Framework
Medium Term Strategic Framework
National Anti-Corruption Strategy
National Joint Operational and Intelligence Structure
National Biodiversity Investigators Forum
National Coordinating Strategic Management Team
National Development Plan
National Director of Public Prosecutions
Non-Governmental Organisation
National Integrated Strategy to Combat Wildlife Tracking
National Prosecuting Authority
National Prosecuting Authority Act
National Project Committee
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NPS
NSP
NT
OECD
ONDPP
OWP
PAYE
PFMA
PRASA
POCA
PCLU
PP
SAN
SANDF
SAPS
SARB
SARS
SASSETA
SITA
SCA
SCCU
SDL
SDPP
SIU
SLA
SOCA
SOE
SOP
SORMA
SSA
STC
STU
TCC
TIP
TRC
T&S
UAE
UCT
UIF
UK
UN
National Prosecutions Service
National Strategy Plan
National Treasury
Organisation for Economic Cooperation and Development
Oce of the National Director of Public Prosecutions
Oce for Witness Protection
Pay as you earn
Public Finance Management Act
Passenger Rail Agency of South Africa
Prevention of Organised Crime Act
Priority Crimes Litigation Unit
Public Protector
Storage Area Network
South African National Defence Force
South African Police Service
South African Reserve Bank
South African Revenue Services
Safety and Security Sector Education and Training Authority
State Information Technology Agency
Supreme Court of Appeal
Specialised Commercial Crime Unit
Skills Development Levy
Special Director of Public Prosecutions
Special Investigating Unit
Service Level Agreement
Sexual Oences and Community Aairs
State-Owned Enterprises
Standard Operating Procedure
Sexual Oences and Related Matters Act
State Security Agency
Specialised Tax Component
Specialised Tax Unit
Thuthuzela Care Centre
Tracking in Persons
Truth and Reconciliation Commission
Travel and Subsistence
United Arab Emirates
University of Cape Town
Unemployment Insurance Fund
United Kingdom
United Nations
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Abbreviations/Acronyms
UNCAC
UNODC
UNSCR
UNTOC
USA
UWC
VAT
VIS
WPP
United Nations Convention Against Corruption
United Nations Oce on Drugs and Crime
United Nations Security Council Resolutions
United Nations Convention against Transnational Organised Crime
United States of America
University of Western Cape
Value-Added Tax
Victim Impact Statement
Witness Protection Programme
Annual Report 2019/20
NATIONAL DIRECTOR’S
FOREWORD
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Annual Report 2019/20
Foreword
During my rst brieng before the Parliament’s
Portfolio Committee on Justice and Correctional
Services, after taking up the position as National
Director of Public Prosecutions in February
2019, the Committee members asked me for a
turnaround plan for the NPA.
Prior to accepting this immense responsibility,
I had a sense of the gravity of the challenges
and the nature of threats that the organisation
was facing. The National prosecuting Authority
(NPA) was in crisis. The words I used during my
interview for the position were ‘
the NPA is akin
to a house on re
’.
As I became immersed in the inner workings
of the NPA and began to understand
the challenges the NPA faced, it became
clearer that the crisis was deeper than I
had anticipated. The NPA’s reputation was
in tatters and it was accused of political
meddling in prosecutorial decision making.
The focus for the year under review was to
understand, explore, plan and implement
a viable turnaround strategy. Important
aspects of the extensive organisational
groundwork that we have engaged
in, are reected in this annual report.
This includes implementing immediate
turnaround measures that were within
our organisational control. Through the
establishment of an Innovation and Policy
Support Oce (IPSO), I created an incubation
space where innovative and creative ideas
can be developed to allow the NPA to rebuild
its structures and reputation.
During my rst internal address after my
appointment, I expressed my commitment
to visit all the Director of Public Prosecutions’
(DPP) divisions and lower court clusters
across the country, to listen to, understand
and engage with sta at dierent levels. From
these engagements, and from a sta survey,
NATIONAL DIRECTOR’S
FOREWORD
Adv S Batohi
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various priorities were identied and have been
or are in the process of being addressed. An
inadequate budget was one of the most notable
challenges. Moreover, it became evident that
sta morale was at an all-time low, due to lack
of capacity and resources.
With the support of National Treasury (NT) and
the Department of Justice and Constitutional
Development (DoJ&CD), we engaged in a
rigorous budget advocacy process. During the
Adjusted Estimates of National Expenditure
(AENE) process, these eorts led to additional
budget allocations to the NPA. Thanks to this
critical budget injection, we were able to commit
to implementing game-changing resourcing
interventions. After recruitment had not taken
place for over four years, the NPA embarked
on a massive recruitment drive. To date, more
than 900 posts have been advertised and are
in various stages of the appointment process.
We procured more than 4 000 laptops for
prosecutors and support sta to ensure that
they have the necessary tools for their jobs.
After a four-year moratorium, we also revived
the Aspirant Prosecutor Programme with the
assistance and support of the DoJ&CD. After an
initial internal intake of 98 candidates, a much
larger intake was advertised a few months later.
Despite the challenges relating to insucient
budget allocations, the NPA has continued to
deliver services to the people of South Africa.
This was made possible by the resilience and
commitment of NPA sta. Having anticipated
the eect this might have on employees’
well-being, the Employee Wellness Programme
became a focal point despite resource
constraints. Going forward, the EWP will need to
be up-scaled to further support the emotional,
mental and physical wellbeing of sta.
We convened two national conferences for
senior and middle management respectively.
Here, sta were given an opportunity to engage
in a new vision and approach for the NPA. My
vision for the NPA is ambitious – to rebuild
and lead an eective prosecution service that
ensures justice for all South Africans through
independent, professional and victim-centric
service delivery. As a collective in the NPA,
we resolved that we would work together to
build an organisation that is independent,
professional, accountable and credible.
At a time when our country is engulfed in
one of the most pressing challenges facing
the economy – corruption – we were found
wanting. We did not have adequate capacity
and skills to deal with the highest levels of
corruption. When corruption ourishes,
there can be no meaningful economic
growth, sustainable development, signicant
investment and eective service delivery. As
a result, all South Africans suer, especially
the poor, who rely on state services for their
wellbeing and survival. For too long, corrupt
politicians, government employees and
business leaders have acted with impunity
to plunder the country’s scarce resources.
They have done so in plain sight in the most
brazen ways imaginable. In some instances,
allegations of complicity, aiding and abetting
the corruption and State Capture within the
law enforcement agencies, and indeed within
the NPA, were exposed.
The Investigating Directorate (ID) was
proclaimed by Presidential Proclamation on
4 April 2019; the Investigating Director was
appointed a month later. Established in the
Oce of the National Director, in terms of
Section 7 of the National Prosecuting Authority
Act, 1998 (Act No. 32 of 1998) (NPA Act), the ID
was given a specic mandate to focus on State
Capture-related corruption that emerged from
the various commissions of enquiry, including
the State Capture Commission led by the
Deputy Chief Justice, Judge Raymond Zondo.
As a temporary intervention, the ID has had its
share of systematic challenges and obstacles in
its establishment, and operations, an expected
impact of an intervention of this nature. The
ID was not established as a silver bullet to deal
with corruption, but as an urgent and focused
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Foreword
intervention in addition to other long-term corruption-ghting measures.
It is therefore important for us to strengthen the capacity and skills in the
Specialised Commercial Crime Unit (SCCU) and the Asset Forfeiture Unit (AFU),
which deal with corruption. We started with this process in earnest in the
period under review.
Furthermore, we have been in intensive engagements with our partners in
the Justice, Crime Prevention and Security (JCPS) Cluster. During an Anti-
Corruption workshop held last year, comprehensive plans were drafted to
strengthen collaboration and cooperation that will direct our corruption-
ghting capacity on a more emboldened path going forward. We have made
a concerted eort to ensure that the NPA continues to participate actively in
the JCPS structures, and to work collectively to x our broken Criminal Justice
System (CJS) so that it is in a better position to serve the victims of crime.
When I assumed the position of NDPP, I indicated that part of fostering the
desired change to restore credibility for the NPA would be to make changes
right at the top and introduce fresh new, dynamic leadership. For various
reasons, this was not quick or easy to eect, but important progress is
being made in this regard with the appointment of the Director of Public
Prosecutions in KwaZulu-Natal, the Deputy National Directors of Public
Prosecution for NPS and AFU, and the Special Advisor in my oce.
The seeds of the many interventions that were planted over the past year
will start to bear fruit in the following nancial year, as well as over the
medium and long term. This is reected in the comprehensive strategies
and plans that have been laid out in the NPA’s Strategic Plan 2020-2025 and
the Annual Performance Plan (APP) 2020/21.
The introduction of the global COVID-19 pandemic to South Africa’s already
ailing economy will have a negative bearing on the government’s budget as
a whole. As the NPA is a purely service-driven organisation, over 80% of the
budget is allocated to employee compensation. As such, the budgetary strain
will remain. However, a new normal is being created with new ways of working
and use of technology is being explored to ensure quality service delivery.
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Acknowledgements
The past year was one of trying to revive the passion of sta, rebuilding
a reputable organisation staed by highly skilled individuals and working
towards fullling the NPA’s vision of an independent, professional, accountable
and credible organisation. Like all roads worth travelling, it was challenging,
exciting and rewarding. The leadership team, management at all levels and
sta in the NPA have shown resilience under pressure and a commitment to
work towards an organisation that we can all be proud of once again.
I am grateful for the leadership and support from the Minister of Justice and
Correctional Services, Mr Ronald Lamola, as the executive authority over
the NPA. The NPA’s mandate and operational space is outside of politics. It
is therefore reassuring that Minister Lamola always shows commitment to
provide the necessary support while observing his constitutional obligations
on the NPA’s independence. This appreciation is also extended to the Deputy
Minister, Mr John Jeery, and the Acting Director-General (DG) of Justice,
Mr JB Skosana.
Shamila Batohi
National Director of Public Prosecutions
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Annual Report 2019/20
The National Prosecuting Authority (NPA) derives its mandate from Section
179 of the Constitution of the Republic of South Africa, 1996 (Act No. 108
of 1996). Section 179(2) expressly empowers the NPA to institute criminal
proceedings on behalf of the state and to carry out any necessary functions
incidental thereto. Furthermore, Section 179(4) of the Constitution requires
the NPA to exercise its functions without fear, favour or prejudice.
As head of the NPA, the National Director of Public Prosecutions (NDPP)
is responsible for ensuring that the NPA delivers on its constitutional
obligations. To full this mandate, the NDPP is supported by four
Deputy National Directors of Public Prosecutions (DNDPPs), 11 Directors
of Public Prosecutions (DPPs) as the NPA heads at various seats of the
high courts, the Investigating Director, and ve Special Directors of Public
Prosecutions (SDPPs).
In the year under review, the NPA operated with one permanently appointed
DNDPP; the remainder of the DNDPPs served in an acting capacity. Five out of
11 DPPs and all the SDPPs served in an acting capacity.
To deliver on this mandate, the NPA has structured itself as seen on the
following page.
Mandate and Structure
NATIONAL PROSECUTING
AUTHORITY
MANDATE AND STRUCTURE
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National Director of Public Prosecutions
Adv S Batohi
Deputy National Director of
Public Prosecutions:
National Prosecutions Service
Adv RJ De Kock
Deputy National Director of
Public Prosecutions:
Asset Forfeiture Unit
Adv O Rabaji-Rasethaba
Deputy National Director of
Public Prosecutions:
Legal Affairs Division
Adv N Mokhatla
Special Advisor
Adv MC Mhaga
Acting Special Director
of Public Prosecutions:
Asset Forfeiture Unit
Adv P Biseswar
Director of Public
Prosecutions:
Investigating
Directorate
Adv HT Cronje
Acting Head of
Administration &
Special Director
of Public Prosecutions
Adv KH van Rensburg
ADPP
Mpumalanga
Adv M Luphondo
DPP
Gauteng Johannesburg
Adv A Chauke
DPP
Gauteng Pretoria
Adv S Mzinyathi
DPP
North West
Adv M Noko
ADPP
Free State
Adv N Somaru
Acting Special Director
of Public Prosecutions:
Priority Crimes
Litigation Unit
Adv C Macadam
Acting Special Director
of Public Prosecutions:
Sexual Offences and
Community Affairs
Adv P Smith
Special Director
of Public Prosecutions:
Specialised Commercial
Crime Unit
Vacant
ADPP
Northern Cape
Adv AJ Botha
DPP
Eastern Cape
(Mthatha)
Adv B Madolo
ADPP
Eastern Cape
(Grahamstown)
Adv L Sakata
DPP
KwaZulu-Natal
Adv E Zungu
ADPP
Western Cape
Adv N Bell
DPP
Limpopo
Adv I Thenga
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Mandate and Structure
Legislative and Policy Mandates
The NPA is the sole entity responsible for the
institution of prosecutions on behalf of the
state, and is legally bound by various pieces of
legislation. The following key legislation relates
to the NPA’s activities:
• National Prosecuting Authority Act, 1998
(Act No. 32 of 1998) (NPA Act);
• Criminal Procedure Act, 1977 (Act No. 51
of 1977);
• Criminal Law (Sexual Oences and Related
Matters) Act, 2007 (Act No. 32 of 2007)
(SORMA) (Sexual Oences Act);
• Child Justice Act, 2008 (Act No. 75 of 2008);
• Implementation of the Rome Statute of the
International Criminal Court Act, 2002 (Act
No. 27 of 2002);
• Prevention and Combating of Corrupt
Activities Act, 2004 (Act No. 12 of 2004);
• Prevention of Organised Crime Act, 1998
(Act No. 121 of 1998) (POCA);
• Prevention and Combating of Tracking in
Persons Act, 2013 (Act No. 7 of 2013);
• Protection of Constitutional Democracy
against Terrorist and Related Activities Act,
2004; (Act No. 33 of 2004); and
• Witness Protection Act, 1998 (Act No. 112
of 1998).
The National Development Plan (NDP): 2030
sets the long-term strategic vision for South
Africa. The Medium-Term Strategic Framework
(MTSF): 2014-2019 outlines sub-outcomes
towards achieving the goals outlined in the
NDP: 2030. For the JCPS Cluster, the 2014-2019
sub-outcomes support the primary outcome
of ‘all people in South Africa are and feel safe’.
The sub-outcomes relevant to the NPA include
reduced levels of contact crime, an ecient
and CJS, secure cyberspace, ensuring domestic
stability and reduced corruption in the public
and private sectors. These are discussed
in the NPA Annual Performance Plan (APP)
for 2019/20.
The NPA APP has the following three
strategic objectives:
Objective 1
Ensure successful
prosecution
Objective 2
Ensure that prot is
removed from crime
Objective 3
Ensure vulnerable and
intimidated witnesses are
successfully protected
Annual Report 2019/20
EXECUTIVE
SUMMARY
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Annual Report 2019/20
Investigating Directorate
The Investigating Directorate (ID) was proclaimed by the president on
4 April 2019. The Investigating Director, Adv Hermione Cronje, was appointed
by the president with eect from 20 May 2019, for a period of ve years.
The ID is a temporary operational intervention established to deal with the
immediate crisis caused by the corruption and compromise (also referred to
as the ‘capture’) of state institutions, such as the security cluster (including
the criminal justice sector and the intelligence agencies), State-Owned
Enterprises (SOEs) (such as Eskom and Transnet) and other key government
departments and agencies.
Authorisations signed by the Investigating Director were informed by referrals
in terms of Section 27 of the NPA Act and testimonies before commissions of
inquiry, such as the State Capture Commission. These investigations merge
various reported cases (currently more than 70 case dockets) to ensure the
eective focus and prioritisation of investigations.
The ID has categorised its key focus areas – the security sector, SOEs
and high-level public and private corruption. This report reects on key
investigations and court appearances under each focus area in the year
under review.
EXECUTIVE
SUMMARY
Executive Summary
23
National Prosecutions Service
The function of the National Prosecutions Service (NPS) constitutes the very
core of the business of the National Prosecuting Authority (NPA) and bears the
responsibility for general prosecutions and the appeals that may follow. This
role is fullled in all of the dierent levels of courts throughout the country,
ranging from the Magistrates courts to the Constitutional Court. The NPS
is also responsible for resolving criminal matters outside of the formal trial
process through alternative dispute resolution mechanisms (ADRM), setting
admission of guilt nes for oences and considering dockets provided by the
police where persons have not been charged. Whilst the current reporting
period commenced with challenges relating to budgetary constraints and a
high vacancy rate, an additional budget was allocated in the course of the
year allowing for the lling of a number of vacant posts. Since the additional
allocation in the Adjusted Estimates of National Expenditure (AENE) was
received late in the nancial year, it was not possible to ll all vacant posts in
time to make an impact on the performance of the NPS.
A general trend evident from the NPS performance data is the reduction
in numbers of cases referred to the unit. The NPS does not function in
isolation, and is highly dependent on service providers external to the NPA
to full its mandate. A reduction in cases referred from the South African
Police Service (SAPS) therefore has a direct impact on the number of cases
available for nalisation. In order to mitigate this, the NPS will improve
on stakeholder engagements to foster stronger relationships with all
stakeholders. This will culminate in initiatives such as joint prioritisation of
corruption matters between the NPS and the Directorate of Priority Crime
Investigation (DPCI), amongst others.
Cases and Appeals Finalised in the High Courts
Over the year under review, the high courts received 830 new cases and
nalised 860 cases, compared to the 1 064 cases during the previous
nancial year. The decline in cases nalised in the high courts is as a result of
a decrease in sta dealing with these cases. However, the number of appeals
nalised in the high courts, which includes appeals to the Supreme Court of
Appeal (SCA) and the Constitutional Court, increased by 20% (from 1 722 to
2 071) compared to the previous nancial year.
Cases Finalised in the Regional Courts
The regional court prosecutors enrolled 50 967 new cases during the
reporting period, which is a decline of 1.1% (584 cases) from the previous
nancial year. Despite this decline, the regional court prosecutors still made
a positive impact on serious crime by obtaining an 82.5% conviction rate. The
prosecutors nalised 27 971 cases and obtained 21 246 convictions from
25 744 verdict cases. A total of 2 227 cases were resolved through ADRM.
24
Executive Summary
Cases Finalised in the District Courts
The district court prosecutors deal with the majority of cases (93% of the
caseload) and have direct contact with the community, and are thus seen
as the face of the NPA. During the reporting period, the district court
prosecutors enrolled 662 807 new cases, 77 691 (10.5%) fewer cases
compared to the 740 498 new cases enrolled during the previous nancial
year. Despite this decline, the regional court prosecutors still made a positive
impact by nalising 339 488 cases, comprising of 205 121 verdict cases (60%
of the total number of cases) and 134 367 cases through ADRM (40% of the
total number of cases).
Vulnerable Victims of Crime
The rights and needs of vulnerable victims of crime were advanced through
initiatives such as the Thuthuzela Care Centres (TCCs) and the Court
Preparation Programme. The success of the TCCs is grounded in the services
delivered to victims of crime. Notably, the TCCs assisted 35 469 victims during
the current reporting period. This represents 911 more victims than the
34 558 victims assisted in the previous nancial year, an increase of 2.6%.
A 74.9% conviction rate was achieved in TCC reported cases, which is a 1.4%
improvement compared to the previous nancial year.
The NPA participates in the Emergency Response Action Plan (ERAP), and
the National Strategy Plan (NSP), which emanated from this initiative, as part
of the presidential focus to address the scourge of violence against women
and children. During the third quarter, several pertinent initiatives regarding
the investigation and prosecution of cases were implemented with relevant
stakeholders. As a result, an improved conviction rate was achieved.
Further to this, more severe sentences were imposed by the courts in the
TCC reported cases prosecuted, not like that in the APP.
Sexual Oences
A focus on the victims of sexual crimes helps combat and prevent further
violence against women and children. As a result of this increased focus, and
the establishment of dedicated courts, the conviction rate in sexual oence
cases increased, despite the stang constraints experienced in the rst part
of the nancial year. During the current reporting period, 5 451 sexual oence
cases were nalised with a verdict, and 4 098 convictions were obtained.
The 75.2% conviction rate represents the highest number of successfully
prosecuted cases achieved in the past ve years.
Environmental Crime
Environmental crime is an emerging crime with links to transnational
organised crime, which necessitated that it remains a key focus area for the
NPS. During the nancial year a 97.1% conviction rate in environmental crime
cases was obtained, by nalising 883 cases with a verdict and obtaining 857
convictions. The dedicated focus on rhino poaching and related matters
resulted in a 100% conviction rate, by nalising 41 verdict cases with
59 accused.
25
Money Laundering
Prosecutors achieved a 98.6% conviction rate, with 72 convictions in the 73
cases in which a verdict was rendered.
Cybercrime
A special focus was placed on the prosecution of cybercrime cases in order
to curb this growing international phenomenon. Prosecutors continued to
maintain a high conviction rate by 320 convictions in 325 cases nalised with a
verdict. This represents a conviction rate of 98.5%.
Violent Protests and Industrial Action
In this focus area, the NPS managed to secure 93 convictions in 100 cases
nalised, with a 77.5% conviction rate. This represents an improvement
in both the conviction rate and nalisation rate compared to the previous
nancial year.
Corruption
The ght against corruption was intensied systematically during the year
under review, with several short- and long-term initiatives being implemented.
This resulted in an increase of 17.8% in the number of persons convicted of
either public and/or private sector corruption. During the current reporting
period, a 94% conviction rate was obtained through the nalisation of 422
cases with a verdict, and the conviction of 416 persons.
Asset Forfeiture Unit
The Asset Forfeiture Unit (AFU) depends on the NPA and other role-players
to proceed with asset forfeiture applications. This also holds true for Chapter
6 applications in terms of the Prevention of Organised Crime Act (POCA),
so-called civil forfeiture, as the AFU is still required to show criminality in
its applications when it is targeting the proceeds or instrumentalities of
the crimes.
The 2019/20 nancial year was a challenging year for the AFU, with a high
vacancy rate for advocates at 30%, and for nancial investigators and
analysts in excess of 50%. The primary function of these investigators is to
identify and trace assets, a central function enabling the AFU to conscate
or forfeit assets. This situation has had a major impact on the AFU’s ability
to meet its targets.
During the year under review, the AFU completed 417 forfeiture cases against
an ambitious target of 510. The AFU obtained forfeiture and conscation
orders to the value of R455 million against a target of R2.5 billion. The value of
completed forfeiture cases in the 2018/19 nancial year was R3.13 billion due
26
to two nalised high-value cases. Notably, the amount of conscated/forfeited
goods was, save for the exceptional cases in the previous nancial year, the
highest the AFU has obtained since the 2013/14 nancial year.
The unit obtained 326 freezing orders to the value of R1.95 billion. The
positive result can be attributed to a focus on Chapter 6 preservations. This
resulted in exceeding targets by 329% compared to the value of R455 million
frozen in 2018/19. However, in this period, with the vacancy rate of 30% and
the continuous re-allocation of work to existing sta, the AFU reached a stage
where it was not sustainable. As stated above, the other factor contributing
to the situation is the time required to nalise serious corruption and State
Capture matters.
Oce for Witness Protection
The Oce for Witness Protection (OWP) is established in the Department of
Justice and Constitutional Development (DoJ&CD), with the Director-General
(DG) as the accounting ocer, but is administered by the NPA. The OWP is
an independent covert oce and all its functions are classied as secret to
ensure the integrity of the programme and the safety of witnesses.
The OWP maintained its 18-year record of no witness or related person
threatened, harmed or killed while on the programme, with a 100%
successful discharge and resettlement rate. The OWP continues to make a
critical contribution to serious cases emanating from the Anti-Corruption
Task Team (ACTT), NPS, South African Police Service (SAPS), Special
Investigating Unit (SIU) and Priority Crimes Litigation Unit (PCLU).
Executive Summary
Annual Report 2019/20
ACTIVITIES IN THE OFFICE OF
THE NATIONAL DIRECTOR
28
Annual Report 2019/20
In recent years, the NPA has suered serious
reputational damage, as well as a loss of
trust and credibility. Like many other state
organs, the organisation became a weakened
state institution. A submission to the Zondo
Commission of Inquiry posits that criminal
justice agencies, including the NPA, were
improperly manipulated and inuenced to
entrench State Capture.
1
This view of the
manipulation of criminal justice agencies
was echoed by the Mokgoro Enquiry, which
found that: ‘over the years, the NPA has been
beleaguered by allegations of malfeasance
and political interference.’
2
The Mokgoro
Enquiry appealed to the NPA to free itself
from all external pressures that threaten
prosecutorial independence and the rule
of law, the very foundation of the country’s
constitutional democracy.
The NPA’s reputation was tarnished when
outside inuence and interference came into
play, by seemingly compromising prosecutorial
independence. A series of court decisions
3
noted the improper conduct of certain NPA
ocials, especially at the highest echelons of
leadership. It is crucial to restore the NPA’s
credibility, and the integrity of prosecutors is
central to upholding constitutional values.
4
The Innovation and Policy
Support Oce
The Innovation and Policy Support Oce
(IPSO) works in collaboration with existing
NPA structures, and partners with academic
institutions, civil society and private sector
organisations, to identify national and
international good practices to address key
challenges facing the NPA.
With a small, multidisciplinary team of
internal and external specialists, IPSO fosters
ACTIVITIES IN THE OFFICE OF
THE NATIONAL DIRECTOR
Activities NDPP
29
innovation and operational excellence through
experimentation, assessment, research and
learning from within and outside of the NPA.
Innovation focuses on building eective
solutions that add value for the people aected
– the NPA’s sta, victims of crime, court users,
the NPA’s partners and the public at large. The
NPA has a memorandum of understanding
(MoU) with the Institute for Security Studies
and the Open Society Justice Initiative to
provide technical assistance in terms of the
establishment of the IPSO, as well as to initiate
activities to drive the work streams and special
projects indicated below.
IPSO serves as a key vehicle to drive the
following outcomes within the NPA:
• Policy, strategy and operations in the
NPA that are supported by evidence from
research, data analysis, international good
practices, and expanding new, creative
eorts developed by the NPA’s sta.
• A culture of innovation that permeates
the organisation and that actively
inuences greater organisational eciency,
eectiveness
and integrity.
• The NPA becomes an institution whose
leadership and actions are forward-looking
in mapping out strategy and operations to
embrace new challenges and opportunities
in a proactive manner.
• The NPA is an evidence-driven organisation
that is able to meet its established output
and outcome targets, together with its
CJS partners.
IPSO works primarily through the NPA’s
business units, which that lead the
implementation of change eorts. It also
provides a strategic support function to the
NDPP and senior leadership of the NPA.
Activities include the following work streams:
• Oce of Complaints and Ethics: Supporting
the establishment of this new structure.
• NPA autonomy: Considering options
through research and discussions with
other independent government entities.
• Professional development and training
for prosecutors: Establishing a new,
future-focused strategy that builds skills,
independence and ethical conduct, as well
as increasing the use of digital technology
and experiential learning methodologies.
• Communications: Establishing a new
communications strategy and approach
so that all levels of the NPA communicate
eectively with their key stakeholders –
including crime victims, the public, the
media, and civil society organisations.
• Performance measurement and
management: Supporting the NPA in
designing systems to gather, analyse
and utilise data to improve organisational
performance.
• A donor coordination and oversight
mechanism: Establishing a mechanism
to coordinate the NPA’s needs with
funding oers and in-kind support from
external sources. Also, establishing an
independent oversight system to eliminate
the potential for external interference
in the independence of the NPA and its
prosecutors.
• Victim-centred prosecution services:
Supporting the NPA in understanding
international best practices and
strengthening the TCCs, the NPA’s own
agship project that serves the victims of
sexual and gender-based violence.
• Budget advocacy: Supporting the NPA in
retaining and expanding its government
funding under challenging scal conditions,
as well assisting the NPA in demonstrating
the value of government investments in
its services.
• Fund-raising and donor liaison: Linking
donor interests with units in the NPA that
can benet from external support.
• COVID-19: Helping the NPA to understand
how the epidemic aects its environment
and services, developing action plans to
ameliorate related eects of these, as
well as contributing to the government’s
Economic Recovery Plan.
30
i. Senior Management Strategic Planning
Conference, May 2019
The NPA senior leadership gathered
in Pretoria from 27 to 29 May 2019 to
engage on the NPA’s ve-year strategic
plan to full its constitutional mandate
and societal responsibilities. In addition
the event provided an opportunity for the
senior leadership to reect on the past and
rally behind the new vision for the NPA to
revitalise and rebuild the organisation.
The Strategic Planning Conference hosted
NPA sta, representatives from a range
of other criminal justice government
departments and agencies, as well external
subject specialists. The Conference aimed
to motivate and empower senior NPA
ocials, as well as to identify how the
NPA will respond to its challenges and
opportunities. The event looked at current
and anticipated changes in the NPA’s
operating environment. It also presented
an opportunity to engage with key partners,
understand their concerns and their
own plans, and seek opportunities for
collaboration.
The conference followed a troubled decade
during which the NPA had six dierent
NDPPs three of whom were acting in the
post. This discontinuity in leadership, public
controversy and uncertainty, and critical
funding and sta shortfalls, undermined the
NPA’s long-term strategic planning amidst
widespread allegations of corruption in the
CJS, however, the NPA is now rmly on a
path to renewal.
Numerous well-documented
5
operational
factors aect the performance of the CJS,
including that of the NPA. Poor collaboration
and cooperation between the CJS role-
players is one of the key factors that
undermining the CJS’s performance. This is
evidenced by the following non-exhaustive
list of observations made by some of the
NPA stakeholders at the Strategic Planning
Conference
6
:
• Ineective case-ow management
meetings;
• Delays in nalising investigations,
and the unavailability of dockets and
witnesses in courts;
• A slow turnaround time on cases
submitted to AFU and NPS prosecutors
for decisions; and
• A lack of skills transfer and/or knowledge
sharing from AFU advocates to
investigators regarding complicated and
high-prole cases, which has a negative
impact on the investigations of these
types of cases.
The NPA’s analysis of performance trends
7
found that, while the organisation has
consistently maintained good conviction
rates (over time), it is performing less
satisfactorily in terms of the actual number
of convictions attained.
A key factor that has had an adverse eect
on the NPA’s performance has been the
high vacancy rate due to a scally induced
freeze on recruitment since 2015. Moreover,
the Aspirant Prosecutor Programme
8
was suspended. As at 31 March 2019, the
NPA vacancy rate was at 21% (1 142 out
of 5 550)
9
, almost a quarter of the total
establishment.
ii. Regional Strategic Planning Roll-outs
At the end of the rst Strategic Conference,
it was decided that the similar sessions will
be rolled out to all eleven NPA divisions.
The aim of the rollouts was to engage a
far broader range of NPA sta through
regional conferences, to motivate sta and
get the entire organisation to rally around
the same goals. The regional conferences
focused on encouraging sta to share
their innovations and good practices in the
context of the severe resource limitations
faced by the NPA. Furthermore, the aim was
to improve communications by establishing
permanent systems through which sta
Activities NDPP
31
can communicate their innovations and
good practices, as well as their challenges
and concerns to the provincial and national
oces. The NPA divisions and their DPPs
were given ownership of the regional
conferences, and allowed to run each in
terms of their own needs, in line with the
direction set by the NPA Head Oce. The
provincial rollouts conducted between
September to December 2019, were a huge
success.
iii. Innovation Teams
Through the 11 conferences noted above,
the NPA’s divisions established Innovation
Teams. These multi-disciplinary teams
will document local innovations in their
divisions, which will be shared across
the NPA. The key aim is to address local
problems through innovative thinking
and operations. Innovations training will
be provided to these teams in the next
nancial year.
iv. Anti-corruption Workshop
The NPA leadership held an Anti-corruption
Workshop from 9 to 10 September 2019.
The workshop’s main aim was to improve
coordination among a range of units and
divisions, including the new capacities
provided by the Investigating Directorate
(ID) and the planned Oce of Complaints
and Ethics. This discussion mapped out the
NPA’s approach to addressing corruption
and the inter-linkages between the dierent
structures that are responsible for these
prosecutions. Structural and capacity
diculties were also documented.
v. NPA Strategic Planning Workshop
The nal event of 2019 was the Strategic
Planning Workshop held from 28 October
to 1 November. This planning meeting
focused on developing the NPA’s draft ve-
year strategic plan developing a consensus
around the strategic pillars that underpin
the NPA’s vision, namely Independence,
Professionalism, Accountability and
Credibility, and accommodating these key
elements in the strategic plan. During this
event the leadership pursued an approach
that focused on measuring impact and
quality to get to “
10X thinking and 10X
impact
” in order to serve the victims of
crime in the way they deserve.
vi. Lower Courts Management Conference
This conference, held in March 2020, was
organised by the NPS. IPSO provided
support by commissioning research and
presentations by Jean Redpath of the
University of the Western Cape (UWC)
on the performance of the CJS at the
lower court level, and Miguel La Rota, an
international expert who established a
similar unit to IPSO in his home country,
Colombia. La Rota’s presentation focused
on Colombia’s approach to the development
and implementation of a prosecutorial
prioritisation policy.
vii. Study Trip to the United Kingdom (UK)
In December 2019, IPSO led a team of
eight senior sta members from the NPA
on a ve-day study trip to the UK. The trip
was organised in collaboration with the
UK’s Foreign and Commonwealth Oce in
South Africa. As the rst of a set of planned
study trips, it was selected particularly
for similarities in mandates and legal
systems between the NPA and the Crown
Prosecution Service (CPS). The CPS hosted
NPA sta for three days, during which
several aspects of its work were proled,
including specialised prosecutions, training,
communications, and oversight. The week
also included visits to the UK’s National
Crime Agency, as well as presentations from
the UK’s police oversight structure and the
CPS Inspectorate. NPA sta compiled a joint
report highlighting what they had learned
and made recommendations for the NPA
based on the experience.
32
Activities NDPP
viii. Ethical Leadership and Public
Administration Training
This training was provided by the Nelson
Mandela School of Public Governance at
the university of Cape Town (UCT). Financial
support in the form of a donation from
the UK was secured to implement and
test this four-day course for the NPA
senior managers.
ix. Fund-raising and Donor Coordination
IPSO as part of the Oce of the National
Director of Public Prosecutions, matched
donor funding with internal NPA needs,
to draft funding proposals and donor
reporting, and to report in-kind donations
to the DoJ&CD for declaration in the Annual
Financial Statements.
Technology and Digitisation of the NPA
The uptake of technology to support business
processes and strategic decision-making
remains a challenge in the NPA and the broader
CJS. This is reected in prosecutors’ limited
utilisation of the Electronic Case Management
System (ECMS).
10
There are various reasons for
this, including the following:
• Non-registration as ECMS users;
• A lack of time due to a high workload;
• A lack of training;
• Inadequate, unreliable/unstable network
connections; and
• Hardware and software issues.
This must change and the NPA is determined
to resolve the barriers to ensure the optimal
use of technology in the organisation. There are
concrete plans in place in the NPS as well as it
regards the IJS with the intent to modernise
the CJS.
Procurement of a Business
Intelligence Tool
The Business Intelligence Tool is a platform that
aims to streamline and improve methods of
providing dashboards and data extraction for
analysis. Procurement of the tool is in progress.
This tool will support the evidenced-based
decision-making in the organisation and will
serve to improve management information
overall in the NPA.
Information and Communication
Technology (ICT) Infrastructure
The uptake of mobile device usage and
remote-working collaboration within the
NPA has further added to the demand for
cybersecurity preventative measures. These
include, but are not limited to, protecting the
organisation from cyber threats, unauthorised
access and unsolicited intrusions (hacking).
In this context, the Information System
Management (ISM) service centre has focused
its core initiatives on prevention and protection,
mobility, and ease of usage of ICT services.
Digitisation and automation of manual
processes also remain a key priority for the
NPA in its eort towards the Fourth Industrial
Revolution (4IR).
• ICT security: The prevention and
protection measures implemented and
upgraded over the 2019/20 nancial
year ranged from unauthorised intrusion
detection and blocking of unsolicited data,
to information loss prevention measures
(encryption). Recovery of data is pivotal, and
the ISM has upgraded its enterprise-wide
backup management and data recovery
management systems which compliment
overall risk management processes.
• Upgrade of ICT infrastructure: The
networks were fully upgraded to meet
optimal business requirements, except
33
for the TCC sites. In this regard, a State
Information Technology Agency (SITA)
proposal is awaited. Furthermore,
infrastructure platforms were
upgraded, and legacy equipment was
decommissioned.
• User authentication software upgrade:
Microsoft Active Directory is a platform
used for creating, authenticating and
authorising users and workstations on
the network, and enforcing security
policies. The platform was successfully
upgraded.
• Procurement of Storage Area Network
(SAN): Procurement was concluded and
equipment delivered. The SAN is used
for data repository, and has reached
the end of its life-cycle. Therefore, an
upgrading project is underway.
• End-user equipment refresh project:
New user workstations and printers
were procured to replace the current
ageing ones. The deployment of laptops
to prosecutors received specic focus.
• Collaborative tools: The adoption
of collaborative tools, namely video
conferencing and Microsoft Teams
systems, increased sharply and assisted
in reducing travel costs.
• Internet of Things (IoT): Mobility and
portability are on the rise in business.
Smart devices/phones are used widely
for daily operations, such as retrieving
e-mails and meeting collaborations.
The constant emergence of new
technologies and the adoption of IoT
has added to the demand for procient
ICT infrastructures. Cloud-based
technologies for collaboration and
storage was deployed in the 2019/20
nancial year. In the foreseeable future,
the common transactional ‘physical’
infrastructure will be supplemented
with virtual platforms for electronic
case management.
• Implementation of e-books: The following
copies of e-books were implemented:
Hiemstra’s Criminal Law, Litigation Skills
for SA Lawyers by Marnewick, Criminal
Law (6th ed) by CR Snyman, and SA Law
of Evidence by Zeert.
National Prosecuting Authority
Sta survey
In February 2019, the NPA commissioned a
sta survey to give all sta the opportunity
to express their views on a range of issues,
including job satisfaction, operational
experiences, and expectations of the new
ND PP, etc .
11
. The survey made the following
key ndings:
i. The shortage of sta and/or high vacancy
rates were identied as the number one
factor undermining the eectiveness of the
NPA, followed by inadequate budgets and
poor collaboration, respectively;
ii. There is a low sta morale within the NPA,
mainly due to the lack of credibility and the
consequences of the budget constraints;
iii. The appointment and promotion of sta
were identied as the rst priority for the
NDPP to improve sta morale, followed
by the recognition of hard work and the
improvement of salaries;
iv. 91% of the sta who participated in the
survey indicated that the NDPP needs to
act rmly to revitalise the NPA, even if this
means not having a ‘business-as-usual’
approach to managing the NPA; and
v. 95% of the sta who participated in the
survey indicated that the NDPP should
adopt a zero-tolerance approach in respect
of unethical and corrupt behaviour by any
member of the NPA.
These ndings, in congruence with external
commentary and management views, suggests
that the NPA needs to:
i. Restore its damaged reputation, thereby
rebuilding public trust and condence;
ii. Place high importance on ethical conduct
and integrity, and deal decisively with
allegations of corruption;
34
Activities NDPP
Work with other CJS role-players to address
the ineciencies within the organisation as
well as in the CJS in general;
iii. Enhance collaboration with civil society; and
iv. Change from a ‘business-as-usual’ mind-set.
The NDPP has therefore identied a number of
interventions aimed at addressing the state of
the NPA, and in response to the ndings of the
sta survey. These interventions commenced in
the nancial year under review, but will continue
for the remainder of the current MTSF period.
These include:
a. Restoring the NPA’s credibility:
Addressing the NPA’s leadership gaps is
central to restoring the NPA’s reputation.
Senior appointments were made in the new
nancial year, which will bring much needed
stability and lead the process of revitalising
the organisation. In the year under review,
there was an enhanced focus on the
quality of service delivery, transparency
and accountability, which is critical to
operationalise the NPA’s values in the daily
practices and routines of all its employees.
During the period under review, planning
began towards the establishment of a new
public complaints and ethics structure for
the NPA, as required in section 22(5) of the
NPA Act.
b. Enhancing organisational capacity:
Building organisational capacity requires
a dedicated focus on internal business
processes and systems for ecient and
eective service delivery. Systems and
processes will be reviewed to ensure
operational eectiveness. The NPA
successfully advocated for funding to
ll critical vacancies. Unfortunately, the
additional allocation in the AENE process
was received late in the nancial year,
and the NPA was unable to spend the full
allocation. However, signicant progress
was made in recruiting capacity for
specically the ID, AFU and the Specialised
Commercial Crime Unit (SCCU). Together
with the DoJ&CD and National Treasury (NT),
the NPA will ensure that the management
of donor funding in the NPA is transparent,
and in line with NT prescripts. A structure
will be set up and procedures put in place
to ensure that there is proper oversight of
donor funding, as well as to address the
issue of perceptions of attempts to unduly
inuence the NPA.
c. Strengthening organisational
performance through skills development:
The NPA’s capacity to deliver depends
largely on its ability to develop and retain
its talent pool of employees. The NPA
has various programmes in place to help
develop its talent and build on the current
complement of sta skills. With resource
constraints and austerity measures
impeding these initiatives, innovation is
required to develop skills – especially in
the areas of mentoring and career pathing.
There will be a new strategic approach
emphasising the use of technology and
experiential learning which will help steer
the NPA into a new era of professional
development.
d. Promoting sound workplace relations
and employee well-being:
The well-being of employees, the NPA’s
most valued resource, remains a priority
– especially given the harsh realities to
which many prosecutors are subjected to
in the courts while executing their duties.
The implementation of the Employee
Wellness Programme (EWP), which includes
emotional, mental and physical well-being,
continued to gain momentum with the
onset of COVID-19. The strengthening of
this capacity will be a priority for the NPA.
e. Strengthening the NPA’s communications
strategy:
The NPA is in the process of developing
a new, holistic and proactive internal and
external communications strategy. The
revised NPA communications approach
35
will address proactive and responsive
communication with key audiences.
Interventions include, engagement with sta
on a regular basis, conducting sta surveys
on a regular basis, as well as reviewing and
updating communications infrastructure,
such as the NPA website and intranet. To
build public trust and credibility, emphasis
will be placed on NPA sta members’ face-
to-face engagements with victims of crime
and members of the public.
f. NPA complaints and ethics mechanism:
The NPA’s founding legislation provides for
an internal NPA complaints mechanism.
Drawing on international good practices
vis-à-vis
prosecutorial complaints
mechanisms and the imperative that sta
in the NPA adhere to the highest standards
of ethical behaviour, the NPA will establish
such a mechanism.
g. NPA autonomy:
The NPA will engage with the Minister
of Justice and Correctional Services to
strengthen its constitutional mandate and
take steps to become an independent
entity within the South African Government,
detaching from the DoJ&CD’s administrative
and budget processes. This involves a
thorough analysis of the legal framework
and proposals for the necessary
amendments to give eect to this. A key
aspect of this work will be assessing the
nancial and practical implications, and the
management thereof.
h. Community prosecutions:
The level of crime in South Africa continues
to be high, notwithstanding the CJS’s eorts
to combat it. It is increasingly apparent that
the traditional prosecution approach, on
its own, is not sucient to deter criminals
from committing crime and to improve
public condence in the CJS. As a result, the
NPA has resolved to broaden its mandate
beyond its traditional prosecution-centred
strategy, to also focus on developing a
more long-term community-oriented
problem-solving approach to crime
problems. Hereby, prosecutors work
with respective communities and other
stakeholders to identify the predisposing
factors of specic crimes, and to devise
community-oriented solutions to resolve
such crimes
12
. Commonly known as
‘community prosecutions’, the concept
helps to mitigate pressures on the courts.
This is done by reducing and preventing
crime through various activities, such as
public education and outreach, partnership
activities with government departments
to improve service delivery, and facilitating
collaboration between those concerned
with crime at community level, among
others. Towards the end of the nancial
year, the NPA resolved to formalise the
concept of community prosecution and
implementation will start from the 2020/21
nancial year.
i. Implementation of the ECMS:
The Integrated Justice System project has
largely failed to address the needs of the
CJS. Proper governance structures need
to be put in place to ensure its successful
development and implementation across
the CJS.
The ECMS system was rolled out in the
lower courts to deal with rst-appearance
cases. Further modules dealing with
decision dockets, child justice matters,
non-police matters, electronic investigating
diaries and case plans for complex cases
are in the process of being developed. The
ISM has embarked on training prosecutors
on the use of the system. To date, 300
lower prosecutors have been trained. The
following modules were developed during
the year, and are undergoing integration
testing at Integrated Justice System (IJS):
Decision Dockets, Investigating Ocers’
(I/O) Diary, Non-SAPS cases, SCCU and
PCLU modules.
36
Activities NDPP
Police Organisation (INTERPOL) ocers to
ensure that an extradition enquiry to determine
the extradition ability of the subject is held
before a magistrate. The concurrent request
for the extradition of Mr Manuel Chang, the
former Minister of Finance of the Republic of
Mozambique, is one example of this type of
provisional arrest request. This request for
extradition by Mozambique and the USA has
been nalised. However, Mr Chang’s surrender
to the requesting State has been delayed due to
the post-extradition hearing litigation.
The outgoing requests for MLA and extradition
in cases where South Africa is the requesting
state are initiated by the relevant Oce of
the DPP, and are submitted to the ONDPP for
consideration and approval by the NDPP. The
transmittal of requests for MLA is necessitated
by the fact that material evidence is often
located beyond the borders of the Republic
and it is sought for successful prosecution.
Moreover, when perpetrators of crime and
convicted persons are not found within the
Republic’s borders transmittal of outgoing
requests for extradition are needed.
The international and regional component
dealing with such matters started the reporting
period with 117 pending les on MLA and
extradition requests. The NPA received 92 new
requests for mutual legal assistance. Of these
requests, 86 were received from foreign states,
and six were initiated by South Africa and
transmitted to foreign states. The Oce also
received 26 new requests for extradition; 14 of
these were received from foreign states and 12
were initiated by South Africa. A total of
42 requests for mutual legal assistance and
six requests for extradition were nalised in
this period.
Challenge: The outgoing requests for MLA and
extraditions are highly challenging in nature
due to the complexities and delays involved in
the execution and/or processing of such MLA
and extradition requests. The NPA is eecting
several interventions to aid and fast-track these
requests.
A case management system for the TCCs
was developed and implemented. The
system allows for the capturing of victim
and incident details in sexual oences
matters. The objective is to ensure that
case managers can keep victims up to date
on the progress of the case until a court
outcome. The system is integrated with
ECMS criminal cases.
Challenge: The TCC sites have a limited
bandwidth size, which has resulted in a slow
response rate. A proposal request has been
sent to SITA to upgrade all TCC links and we are
awaiting feedback in this regard.
International and Regional
Cooperation in Criminal Matters
The NPA coordinates and renders the necessary
assistance in executing incoming formal
requests for mutual legal assistance (MLA)
where the Minister of Justice has, in terms of
section 7 of the International Cooperation in
Criminal Matters Act, 1996 (Act No. 75 of 1996),
approved the request. Upon receipt from the
Central Authority (DG: Justice), these matters
are coordinated by the ONDPP.
Execution of requests is rendered by the Oces
of the DPPs in whose respective jurisdictions
the evidence sought is located. The ONDPP also
receives informal MLAs in the form of enquiries
from the Central Authority and the NPA assists
by providing the necessary information. The
NPA dealt with seven enquiries during the
period under review.
In cases of incoming requests for extradition,
the NPA renders the necessary assistance once
the Minister has issued a notication in terms
of Section 5(1) of the Extradition Act, 1962 (Act
No. 67 of 1962) and the Central Authority has
referred the matter to the NDPP, unless the
formal request for extradition is preceded by a
request for provisional arrest. The Oce of the
DPP to whose area of jurisdiction the fugitive
is traced, works with the International Criminal
37
Ensuring Eciency in International
Relations, Treaty Negotiations and
Related Matters
Work on the conclusion of a MoU with the
Federal Prosecuting Authority of Brazil has
commenced and is still ongoing. This is as a
way of strengthening relations and enhancing
cooperation in the ght against transnational
crimes. The NPA assisted the DoJ&CD with
concluding MLA and Extradition Treaties
between South Africa and the Peoples Republic
of Bangladesh. Furthermore, the NPA has been
working closely with the Chief Directorate:
International Legal Relations of the DoJ&CD,
as well as the Department of International
Relations and Cooperation (DIRCO), to
conclude MLA and Extradition Treaties with the
Governments of the Republic of Mozambique
and the Federal Republic of Brazil. The process
of nalising the Extradition Treaties is at an
advanced stage.
The international and regional cooperation
component participates in the NPA Anti-
Tracking in Persons Task Team. This
process ensures that the relevant legislation
is implemented and that prosecutors are
trained on the all relevant aspects, including
the transnational nature of tracking-related
oences and international cooperation. The
component has reviewed the
Training Manual
for Prosecutors Relating to International
Cooperation.
The NPA has participated in the
inter-departmental meetings coordinated by
DIRCO on international engagements. To this
end, the NPA has inter alia participated in the 8
th
Session of the Conference of State Parties to the
United Nations Convention Against Corruption
(CoSP8 of the UNCAC) held in December 2019 in
Abu Dhabi. The NPA held a number of bilateral
meetings with other countries and entities on
the margins of the CoSP8 to deal with issues
relating to undue delays and/or non-execution
of requests for international cooperation. South
Africa has transmitted 14 requests for MLA
on State Capture matters to eight countries.
To date, evidence has been received from
the Netherlands.
Memoranda of Understanding
with Partners
The following MoUs were concluded during the
2019/20 nancial year:
• Financial Intelligence Centre (FIC) and
the NPA: The purpose of this MoU is to
regulate, strengthen and formalise matters
of mutual cooperation, collaboration,
assistance and exchange of information
between the parties, in the fullment of
their respective legal responsibilities
and obligations as prescribed by the
governing legislation.
In addition, the MoU made provision for
the establishment of a Tactical Operations
Group and a Monitoring Review Committee,
as well as a Consultative Committee. All of
these were established and are operational.
• South Africa Revenue Service (SARS)
and NPA: On 12
September 2019, the NDPP
and Mr EC Kieswetter, the Commissioner
of the SARS signed a revised MoU between
the two parties. This MoU embodies
an understanding between the parties
to establish a working methodology in
connection with the investigation and
prosecution of tax-related criminal cases
reported to the SAPS to ensure that
the matters are dealt with as eectively
as possible.
To ensure the eective and ecient
implementation of the principles enshrined
in the MoU, it was agreed that an NPA/SARS
National Coordinating Committee and the
Specialised Tax Unit (STU) /SARS Working
Committee be established. The Working
Committee has already met several times
and it is envisaged that the Coordinating
Committee will meet soon.
Various task teams are currently working
on MoUs to be signed between with
the following entities: The South African
Reserve Bank (SARB), the SIU, Directorate
for Priority Crime Investigation (DPCI) and
the Auditor-General (AG).
38
Activities NDPP
Cato Manor Matter
The NDPP decided to withdraw the racketeering
charges against General Johan Booysen and
others in the so-called Cato Manor matter.
General Booysen and the other accused had
launched a High Court application to have
the decisions of former acting NDPPs, Adv
Nomgcobo Jiba and Adv Shaun Abrahams, to
issue authorisations on racketeering oences
in terms of Section 2(4) of POCA, on 17 August
2012 and 16 February 2016 respectively,
set aside.
In considering the position of the NPA in
the matter, she needed to ensure that the
previous decisions were valid. The NDPP
appointed a panel to review the decisions
and to provide her with an opinion and
recommendations. The panel consisted
of two DPPs, a Deputy Director of Public
Prosecutions (DDPP) and two Senior State
Advocates. Notably, the State Advocates
were part of the organised crime component
of the NPA, with particular expertise in
racketeering prosecutions.
With regard to the authorisations, the panel’s
unanimous conclusion was that a proper case
was not made out on the papers presented
and thus recommended that the authorisations
of both previous NDPPs, in terms of Section
2(4) of the POCA, were invalid. After careful
consideration of the report and other relevant
material, as well as a discussion with the
panel, the NDPP concluded that the said
authorisations were invalid.
With respect to the rest of the oences, which
include charges of murder, housebreaking,
theft and defeating the ends of justice, the
NDPP referred the dockets back to the DPP
in KwaZulu-Natal (KZN) to re-assess the
evidence in each case to decide whether or
not to proceed with the prosecution against
the individuals who may be implicated in
those matters. The DPP KZN was also asked to
contact the family of the deceased to explain
the implications of this decision. It is important
Representations and Complaints
The NDPP has delegated the powers, duties or
functions as envisaged in Section 22 (2)(c) of
the NPA Act, to the DNDPP: Head of NPS. Only
sensitive or contentious matters, are reviewed
by the NDPP.
A total of 1 208 representations les were
opened during the reporting period; 606 les
were nalised, while 602 les were pending as
at 31 March 2020. A total of 91 matters falling
in the general stream of prosecutions were
formally reviewed. The NDPP reviewed seven
of these matters, while the remaining 84 were
reviewed by the delegated DNDPP. In ve
instances, the DDP’s decision was overturned or
not conrmed.
The NDPP issued 33 directions in terms of
Section 22(3) of the Act, for oences committed
as a whole or partially within the area of
jurisdiction of one DPP to be investigated and
tried within the area of jurisdiction of another
DPP, where this was in the interest of the
administration of justice.
High-prole Cases Reviewed
by the National Director of
Public Prosecutions
When the NDPP joined the NPA, there
were ‘controversial’ cases that required
her immediate attention. Based on the
representations submitted by the accused, it
was pivotal to determine whether or not there
was a case against them after her predecessors
had taken the decision to charge them. Their
representations were to the eect that the
cases against the accused were instituted
for political expediency, a charge that held a
sceptre over the independence and credibility
of the NPA with respect to the prosecutorial
decisions taken. These following matters refer:
39
for the families in question to know that where there is evidence that there
has been unlawful action by the SAPS that resulted in the death of their loved
ones, and that those responsible will be held accountable, so that the victims
of those crimes receive justice. These matters are still under consideration by
the DPP KZN.
South African Revenue Services ‘Rogue Unit’ Matter
The NDPP decided in February 2020 to withdraw charges against Ivan Pillay,
Andries Janse van Rensburg and Johan van Loggerenberg, who were accused
in the so-called ‘Rogue Unit’ case.
Pillay and Van Rensburg were charged with the alleged contravention of
Section 49(1) of the Regulation of Interception of Communication and
Provision of Communication Related Information Act, 2002 (Act No. 70 of
2002) (Count 1). Furthermore, Pillay and Van Loggerenberg were charged with
the alleged contravention of Section 10 of the Prevention and Combatting
of Corrupt Activities Act, 2004 (Act No. 12 of 2004) (Count 2). They were
alternatively charged with contravening Section 3 of the said Act. The
defence submitted representations to the NDPP in support of a request to
have the decision to prosecute reviewed, whereafter the NDPP appointed a
review panel to consider the matter, and to provide her with an opinion and
recommendations. The panel comprised two DPPs and a DDPP.
After careful assessment of the evidence and other relevant material, the
unanimous conclusion of the panel in respect of all counts was that there
were no reasonable prospects of a successful prosecution. Thus, it was
recommended that all charges against the accused be withdrawn.
The NDPP agreed with the panel that there were no reasonable prospects of a
successful prosecution in this matter. It was thus decided to withdraw charges
against all the accused.
The NDPP subsequently received correspondence from a political party,
asking for reasons for the withdrawal and indicating their intention to
challenge the decision in court. The NDPP welcomes such action and keenly
awaits the court outcome in this regard.
40
Investigating Directorate
The ID was proclaimed by the President of South Africa on 4 April 2019. The
Investigating Director, Adv Hermione Cronje, was thereafter appointed by the
president with eect from 20 May 2019, for a period of ve years.
The ID is a temporary operational intervention established to deal with the
immediate crisis caused by the corruption and compromise (also referred to
as the ‘capture’) of state institutions. Focus areas include the security cluster
(including the criminal justice sector and intelligence agencies), state-owned
enterprises (SOEs) (such as Eskom and Transnet) and other key government
departments and agencies. The ID is not intended to be a long-term solution,
as noted by the President in his February 2019 State of the Nation Address.
The criminal justice entities with the legal mandate to address corruption
retain the responsibility to investigate, prosecute and recover the proceeds
of corruption.
The following section provides a high-level account of the progress made in
operationalising the ID to deliver on its mandate.
Authorisations by the Investigating Director
The authorisations were informed by referrals in terms of Section 27 of the
NPA Act and testimonies before the commissions of inquiry, such as the
State Capture Commission. These investigations merge various reported
cases (currently more than 70 case dockets) to enable the eective focus and
prioritisation of investigations.
The ID has categorised its key focus areas, namely the security sector;
high-level public and private corruption and SOEs.
Security Sector
This area includes investigations into serious, high-prole or complex
corruption matters involving high-ranking SAPS ocials, with a special focus
Activities NDPP
Adv HT Cronje
41
on individuals who are still employed in the service and have on-going
contracts. With the support of the National Commissioner, the ID focused on
the following matters:
• On 20 November 2019, Major General Solomon Lazarus, the Chief
Financial Ocer (CFO) of Crime Intelligence (CI), was convicted of
corruption and receiving undue gratication. Outstanding issues of
declassication were resolved with the National Commissioner of Police
and the ID is in a position to enrol a prosecution of further high-ranking
ocials responsible for looting from the CI Secret Fund.
• On 17 December 2019, the ID arrested a lieutenant general in charge of
the SAPS Technology Management Services. The matter was postponed
to 29 June 2020. The nal indictment in this matter will then serve
before court.
• A former acting national commissioner, a former provincial commissioner,
four more generals and a brigadier are scheduled to appear before court
on 15 June 2020. This is based on their alleged involvement in awarding a
corrupt tender in which SAPS paid R65 million for assets worth no more
than R12 million (partly due to COVID-19-related problems).
• The ID nalised a racketeering charge sheet that arose out of fraud and
corruption committed during the 2010 World Cup procurement in KZN.
• The head of the ID authorised investigations into serious, high-prole or
complex corruption within the NPA, in terms of Section 28(1) of the
NPA Act.
High-Level Public and Private Corruption
• Estina: Investigations into serious, high-prole or complex fraud and
money laundering pertaining to awarding tenders and/or contracts as
part of public private partnerships between the Free State Provincial
Government and the Estina Company (Pty) (Ltd) from 2008-2018. A nal
forensic report was received in November 2019, which comprehensively
addressed the ow of funds between the department and accounts within
South Africa. A charge sheet that addresses the criminal activities that
arose from this report was prepared. After intervention by the executive
authority, the ID received cooperation from its counterparts in the
United Arab Emirates (UAE). This gave the ID renewed hope that it
would receive the requested evidence to broaden the net of accused
persons. This cooperation has unfortunately been hampered by the
worldwide lockdown.
• Bosasa Group: Investigations into serous, high-prole or complex
corruption involving the Bosasa Group and its aliated entities. The
docket was disclosed to the accused and the matter will be before court
on 29 July 2020. The corporation has been liquidated and hearings
are currently underway by liquidators that will likely impact on further
prosecutions of the corporation. The ID is in the process of enrolling
prosecutions that ow from the testimony led at the State Capture
Commission. Warning statements have already been taken from two of
the major suspects. The ID is working closely with counterparts in law
42
Activities NDPP
enforcement, the SIU, the FIC and SARS to
recover the proceeds of crime.
State-Owned Enterprises
• Eskom: Investigations into serious, high
prole or complex corruption within Eskom.
The ID is working closely with the SIU,
the FIC, SARS and the SARB on a number
of key corruption-related matters under
investigation at Eskom.
• Prosecutions arising from the Eskom
build project: S v Hlakudi and others
was enrolled in December 2019 and
postponed to 24 May 2020. The
extradition of one of the accused from
the UK was impacted by COVID-19
restrictions. Charges in relation to tax
oences have since been preferred
against the key accused. Three more
prosecutions arising from this project
will be dealt with during the 2020/21
nancial year.
• The prosecution of a service provider and
a high-ranking ocial: By February 2018,
ten contracts totalling R370 million were
concluded with Eskom. The corrupt
procurement processes took place over
a four-year period. The investigation has,
however, been delayed due to the need
to obtain authenticated private e-mail
evidence from abroad.
• Prosecution of ocials involved in
the awarding of a contract to a multi-
national company: The contract
was awarded in an allegedly corrupt
manner on condition that certain
sub-contractors linked to or proposed
by Eskom ocials (sub-contractors
acted as conduits of funds to Eskom
employees) be appointed. The ID is also
awaiting information from our foreign
counterparts. The ID is working jointly
with the SIU to recover in excess of
R1 billion without further disrupting
electricity supply.
• Investigation into a number of coal
supply contracts: The ID is awaiting the
nalisation of a forensic report.
• Transnet: Investigations are ongoing
relating to serious, high prole or complex
corruption within Transnet. The ID obtained
a freezing order of R1.6 billion for Regiments
and related entities on the basis that the
Gupta brothers used the entity as primary
vehicle to extract value from Transnet. The
ID executed a search warrant obtained in
November 2019. Once the analysis of the
seized material has been concluded, the
accused will be arrested.
• Department of Public Enterprises (DPE):
Investigations are ongoing into serious,
high-prole or complex corruption within
the DPE.
Administration and Human Resources
After the ID director’s appointment on 20 May
2019, a secretary and director: administration
were appointed in support of the director.
The unit started with a small permanent
establishment consisting of eight people.
However, by the end of March 2020, a major
recruitment drive had yielded many more
resources, as discussed further below.
A decision was taken that the ID would rely
on the NPA’s administration component
(human resource management, budgeting and
procurement) to meet its corporate support
needs. This arrangement has had its challenges,
as the support required to resource the
ID diers substantially from the NPA head
oce component.
Prosecutors
The ID advertised internally within the NPA for
prosecutors to join the ID on a reassignment
basis, i.e. a lateral transfer with no additional
remuneration. All applicants for reassignment
were screened. After enhanced integrity
measures, a few prosecutors were selected to
work at the ID in Pretoria.
After the director authorised a number of
investigations on 31 July 2019, a further 11
prosecutors were requested to join the ID
43
on a reassignment basis because of their
background knowledge of the cases authorised
for investigation. To date, 18 prosecutors
have been re-assigned from other NPA oces
throughout the country to work with the ID in
Pretoria.
After assessing the prosecution requirements of
each authorised investigation, it became clear
that additional personnel were needed. The
ID requested approval from the Department
of Public Service and Administration (DPSA) to
appoint additional personnel on a three-year
contract. The approval was granted in
October 2019.
Criminal Investigators
The ID sourced 22 criminal investigators from
the Independent Police Investigative Directorate
(IPID) (6), DPCI (14) and SAPS (2) between August
and October 2019. Most of these investigators
were placed on duty arrangements to the ID,
rather than formal secondments. As a result,
many of the investigators still report to their
commanders in the police on dockets they still
carry that are unrelated to the work of the ID.
This arrangement is not ideal.
The human resource gap analysis completed
in March 2020 indicated the need for more
criminal investigators to service the current
caseload within the ID. Due to skills and
personnel shortages in the DPCI and SAPS,
as well as the IPID’s case load, it was decided
to appoint investigators to the ID on contract.
Appointing investigators to an organisation
that has not appointed investigators for
over 12 years calls for the implementation
of job descriptions, standard operating
procedures and tools of the trade (re-arms
and docket administration support, policies
and procedures, for conducting search and
seizure operations and conducting section 28
interviews). The ID is in discussions with the
national commissioner and the head of the
DPCI to resolve some of these challenges.
Financial Investigators/Forensic Accountants
An advertisement was published for four chief
nancial investigators, eight senior nancial
investigators and 16 nancial investigators.
These posts require a qualication in forensic
investigation and forensic auditing, such as
a certied fraud examiner (CFE), Advanced
Certicate: Forensic Practitioner South Africa
(ACFPSA) accreditations or criminal nancial
investigation experience. A signicant number
of applications with the specied qualications
and experience requirements for the posts
were received and appointments were nalised
by the end of March 2020.
The ID has relied on forensic accounting rms
appointed by NT prior to the establishment
of the ID to nalise forensic investigations
on matters it has prioritised. Many of these
contracts are now at an end, although the work
has not been completed. The ID is negotiating
with NT on the extension or adoption of the
contracts by the ID. The procurement deviation
referred to below will greatly assist this process.
One forensic accountant was seconded by SARS
to the ID, with eect from 9 December 2019.
The ID is in discussions with the SIU, SARS and
the Reserve Bank for additional secondments.
The human resource gap analysis completed
in March 2020, indicates that eight forensic
accountants are required for the current
caseload within the ID.
e-Discovery and Data Analysts
The NPA does not employ e-discovery, data
analysts or risk evaluators/case in-take
analysts. However, given the volume of data
generated in high-level international corruption
investigations, these are critical skills required
by the ID. The human resource gap analysis
completed in March 2020 determined that a
number of e-discovery, data analysts and case
in-take analysts were required.
Given the progress with secondments from
within the public sector, the ID decided to
procure its own capacity. Job descriptions
were compiled, and contract positions were
advertised to capacitate the unit.
44
Activities NDPP
Public and Private Sector Secondments
In terms of Section 7(4) of the NPA Act, the primary mechanism for
capacitating the ID is secondments from within government and from the
private sector. As secondments are proving to be challenging, the NPA and
DPSA are preparing a plan to resolve some of the more pressing concerns.
In terms of external legal personnel, four senior and one junior counsel were
initially appointed to provide legal support to the ID on an urgent basis. They
were appointed through an NT deviation. Their skills have been called upon
as and when the need arises. Going forward, the ID will need to procure
the services of additional legal counsel. This will be done on an
ad hoc
basis
through the oce for state attorneys to attend to specic matters that are
being litigated in the various forums.
Challenges with Human Resource Capacity
The ID is working closely with the various partners and stakeholders in the
criminal justice system value chain, in particular the DPCI, SARS, the FIC,
the SIU, the SARB, and the private sector, to address its skill and capacity
requirements. It has been dicult to conclude secondment contracts from
other government departments, primarily because of resource and capacity
constraints within these organisations.
In addition, it has been challenging to attract personnel on secondment, given
their concerns about matters such as promotions and the payment of travel
and subsistence (T&S), tax and other matters. However, these challenges are
being assessed and are in the process of being resolved.
The ID operates in an environment where public and private secondments
require a carefully designed governance framework to ensure that risks
relating to information security and inltration by those with ulterior motives
are addressed. While the ID has received numerous oers to second sta
from Non-Governmental Organisations (NGOs) to enhance the rule of law, the
ID will not take on board such personnel to work on cases until a satisfactory
risk mitigation model is in place. The governance framework will be nalised
by the end of April 2020. Private sector secondments of personnel skilled
in specialist areas, such as digital forensic specialists, can then be taken on
board in investigations.
Budget and Procurement
The NPA received R38 million during the AENE process. An additional MTEF
allocation of R372 million (R155 million – 2020/21, R126 million – 2021/22 and
R130 million – 2022/23) was appropriated to the ID.
Challenges
There is a need for the speedy appointment of service providers for services
such as digital forensic analysis capability in case-related matters. The ID has
requested that NT approve a deviation from standard procurement processes
in terms of Section 79 of the Public Finance Management Act, 1999 (Act No.
45
1 of 1999) (PFMA). This request was submitted during November 2019. NT
has requested a meeting to ensure that the procurement process remains
compliant with basic minimum standards. The procurement of scarce skills
that are not readily available in the ID is also required. The same Section
79 deviation will assist the ID. In the interim,
ad hoc
deviation requests are
processed where the current processes cannot accommodate the needs of
the ID.
Information Technology
The current NPA Information Technology (IT) infrastructure systems and
software available to support investigations, does not meet the needs of the
ID. The ID requires the type of systems and software that are being used
by the State Capture Commission. That is, an agile system to deal with large
data volumes with data analytics capabilities. As outsourcing is currently
taking place at great expense to the ID, it will be more cost-eective if the
NPA is given access to the State Capture Commission’s capability. This should
be done within a carefully designed governance framework. The ID has
requested the assistance of the acting Director-General of the DoJ to convene
a discussion with the State Capture Commission, NT personnel and the ID to
assess the feasibility of this proposal.
Due to the sensitive nature of the ID’s work, it is pivotal to create a secure
IT, communication and data infrastructure system. The ID is exploring the
best measures to procure a report on the security of the IT infrastructure,
communication and data hosting provided by the NPA to the ID.
The report of the independent information systems auditor will address
the security of IT infrastructure, ID data hosting, e-mail communication and
telephonic communication. The report will inform further steps to secure the
ID’s operations.
Security Managed Services/Integrity Testing
All sta appointed, seconded and re-assigned to the ID are currently being
vetted by the NPA security management services. Screening and vetting for ID
sta consists of:
• Personnel suitability checks: Deeds, credit checks, directorships,
associated companies, Department of Home Aairs, qualication
verication and criminal record checks.
• Integrity Management Unit (IMU): Analysis of the annual nancial
disclosure forms, conict of interest registers and labour relations reports
(misconduct and grievances).
• Layered Voice Analysis: SIU voice stress analysis.
• Full vetting: Secret and/or top secret vetting by the State Security
Agency (SSA), depending on the portfolio, which may include a polygraph
examination.
46
Noteworthy
State Capture Case
NDPP vs Regiments Capital (ID): Management in Transnet
colluded with Regiments Capital to re-invest the Transnet
Employees’ Pension Fund. The pension fund was looted
and the money used to buy stock and other assets. The
Investigative Directorate secured a restraint on Capitec shares
held by the perpetrators. The value of the shares at the time of
the restraint amounted to R1.1 billion.
Annual Report 2019/20
ACTIVITIES OF
THE DEPUTY NATIONAL
DIRECTORS
48
Annual Report 2019/20
National Prosecutions Service
Introduction
The NPS performs the core function of the NPA.
As such the NPS is the primary contributor
to the achievement of the constitutional
mandate of the NPA. The NPS institutes
criminal prosecutions on behalf of the State
and performs all required functions incidental
thereto. The unit further deals with appeals
and reviews that may emanate from the
institution of criminal prosecutions. The NPS
has representation at all levels of courts in
South Africa, ranging from the institution of
prosecutions in the district, regional and high
courts, to dealing with appeals and referrals in
the high courts, highest Court of Appeal and
the Constitutional Court. The NPS is further
responsible for resolving criminal matters
outside the formal trial process through ADRMs,
setting admission of guilt for oences
and considering police dockets where persons
have not been charged. The NPS also focuses
on advancing the rights of victims through
initiatives such as the TCCs and the services
oered by the court preparation ocers.
The NPS is headed by a Deputy National
Director of Public Prosecutions (DNDPP). The
general prosecutions stream (as opposed to
specialised units dealt with below) consists of
11 DPPs, who head up their respective divisions
in the provinces. The DPPs are supported by
public prosecutors and state advocates in the
district, regional and high courts.
In addition to the general prosecutions, there
are a number of specialised units within the
NPS structure. These specialised units are the
PCLU, SCCU and SOCA.
ACTIVITIES OF
THE DEPUTY NATIONAL
DIRECTORS
Activities DNDPP
49
The prosecutors in the lower courts form the core of the NPS. They
prosecute more than 90% of cases in the district courts and in so doing,
touch the lives of many individuals daily.
Prosecutors do not perform their mandate in isolation. There are a large
number of role-players, both external to the NPS and external to the
NPA, required to perform the function of prosecutions. As
dominus litis
,
prosecutors have to engage with many stakeholders to ensure that the NPA
fulls its mandate. This fact introduces a number of unique challenges that
prosecutors are required to deal with on a daily basis in order to perform
their function.
Besides the institution of prosecutions there are a myriad of functions,
mostly administrative and managerial, that also have to be performed. The
NPS is also key in complying with international obligations and participates
in international initiatives aimed at crime types such as,
inter alia,
money
laundering, human tracking, illicit mining, transnational organised and
other crimes, as well as illicit nancial ows.
There are a large number of stated government priorities that have to
receive adequate focussed attention with the current stretched resources,
such as gender-based violence (GBV), environmental crime, drug-related
crimes, human tracking, money laundering, corruption, organised
crime, damage to critical infrastructure, illicit nancial ows, health sector
corruption, outcomes from State Capture and various other commissions,
precious metals and stones, as well as a number of
ad hoc
priorities.
In the course of the year, the NPA had to embark on a number of initiatives
and interventions to ensure that the NPA can function at the agreed to and
expected levels of performance.
One of the key challenges faced during previous nancial years, as well as in
the rst half of the current reporting period, was a shortage of resources,
Adv RJ De Kock
50
Activities DNDPP
with unlled vacant posts being one of the most critical constraints
experienced by the NPS. As a result of the unwavering commitment by the
NDPP to secure additional funding, the NPS received an additional budget
allocation. This allowed the NPS to implement a few initiatives.
A recruitment drive was embarked on with immediate eect. The vacancies
were advertised in October 2019. A project management plan was
developed and followed. By the end of December 2019, 106 posts (out of
the 586 advertised) were lled. The lling of vacancies at the 23 ‘one-man’
stations were expedited which prevented further negative impact on the
operations and service delivery at these oces.
The SCCU also advertised 56 posts, of which 14 (25%) were lled. An
additional 20 prosecutors were appointed on contract to assist this
specialised unit. The recruitment process was unfortunately hampered by
late receipt of the additional funding. The recruitment process will therefore
continue into the new nancial year.
Another important initiative, closely linked to the recruitment drive is the
reinstitution of the Aspirant Prosecutor Programme. The programme was
initially suspended due to budgetary constraints but the additional funding
allowed the unit to revive the initiative. This is a critical initiative within the
NPA, since it is key to replenishing the normal attrition of prosecutors with
sta who are able to contribute to the achievement of the objectives of the
NPS from their date of appointment.
To maximise the limited funding during the reporting period, the
recruitment of potential candidates for the programme was focused on LLB
graduates who were already employed in both the DoJ&CD and the NPA.
By the end of the nancial year the recruitment process was already at an
advanced stage. The special intervention saw the intake of just
under 100 aspirant prosecutors recruited from employees who had
Adv C Macadam (PCLU) Adv P Smith (SOCA)
51
Adv M Luphondo (Mpumalanga) Adv S Mzinyathi (Gauteng Pretoria) Adv A Chauke (Gauteng Johannesburg)
Adv M Noko (North West) Adv N Somaru (Free State)
Adv E Zungu (KwaZulu-Natal) Adv N Bell (Western Cape)
Adv AJ Botha (Northern Cape) Adv L Sakata (Eastern Cape –
Grahamstown)
Adv B Madolo (Eastern Cape –
Mthatha)
Adv I Thenga (Limpopo)
52
Activities DNDPP
Specialised Crime: Corruption
During the current reporting period, the ght
against corruption was systematically intensied
through several short- and long-term initiatives.
The most important achievements to
highlight include:
• The number of persons convicted for
corruption in the public and private sector
has increased by 17.8%, with the NPS
securing the convictions of 416 persons in
the current nancial year as opposed to 353
persons in the previous nancial year. These
convictions were obtained from 442 cases
nalised with a verdict with a conviction rate
of 94%.
• The enrolment of important, high-prole
and long outstanding corruption cases,
including some cases against various high-
ranking ocials from municipalities and the
health sector.
• The NPS has identied priority cases to be
closely monitored and to be collectively
pursued, in collaboration with the DPCI,
in order to restore the credibility of these
institutions. At the end of March 2020, only
ve months after the identication of 86
priority corruption cases, 16 were already
enrolled of which 14 involve corruption
committed at municipalities.
• The NPS has strengthened its cooperation
with other bodies involved in the
investigating and prosecuting of corruption.
These include:
• The DPCI as earlier alluded to in terms
of the process of joint prioritisation of
corruption cases;
• The Public Protector (PP), whose oce
accepts complaints of corruption and
maladministration involving government
departments, agencies or ocials who
violate their ethical codes or codes of
conduct;
• The Auditor General (AG), who is the
external auditor to all government
departments and state institutions
to oversee whether accounting and
performance standards are being
adhered to and to monitor if budgets
obtained their LLB degrees, but were not
being utilised in positions requiring these
qualications. The aspirant prosecutors will
conclude their training in August 2020, and
after successful completion of the programme
will be fully qualied as prosecutors. Further
cost-saving measures implemented were to
decentralise training and the retention of these
ocials on their current establishments. This
means that the aspirant prosecutors are still
remunerated by their respective departments
whilst undergoing training. Additional funding
was also allocated by NT for the aspirant
programme for the 2020/21 and 2021/22
nancial years, thus ensuring continuity.
In recognition of the fact that prosecutors do
not perform their work in isolation, another key
initiative was the joint prioritisation of cases,
most notably corruption cases, with the SAPS/
DPCI and the AFU. A list of jointly prioritised
cases was developed through this initiative,
which is closely monitored by both institutions.
A task team was also appointed to investigate
and follow up on the impact of the Legal
Practice Act, 2014 (Act No. 28 of 2014). Although
Parts 1 and 2 of Chapter 10 came into operation
on 1 February 2015, Chapter 2 only came into
operation on 31 October 2018 and various
other sections on 1 November 2018. The Legal
Practice Council (LPC) expects that all practicing
attorneys and legally qualied persons including
prosecutors pay annual fees. Moreover, there
is a LPC code of conduct applicable to all legally
qualied persons that includes provisions
incompatible with the prescripts applicable
to prosecutors. These are but two of the
contentious aspects the NPA task team has
to address. Meetings and deliberations will,
however, proceed into the new nancial year.
Highlights Achieved
Below are some of the main highlights that the
NPS achieved in the period under review. These
areas of achievement will be discussed in more
detail later in the report.
53
are being eectively used.
• The Independent Police Investigating
Directorate (IPID), which investigates
complaints of misconduct and
criminality, including corruption against
members of the SAPS and Metro Police
services.
• The Special Investigative Unit (SIU) in
terms of the investigation of corruption
and maladministration in government.
• The ACTT, that fast-tracks high-
priority corruption investigations
and prosecutions and coordinates all
government anti-corruption agencies
and initiatives.
Specialised Crime: Violent and
Organised Crime
The commitment to curb violent crimes and
address the impact of these crimes on the
community have also shown some inspiring and
signicant results. During the 2019/20 nancial
year, the prosecutors committed themselves to
pursue high conviction rates in specic priority
crime categories:
• Conviction rate for sexual oences: The
target (70%) on the conviction rate for
sexual oences cases was exceeded by
5.2% (75.2%) and even improved, compared
to the previous year by 0.8%. A total of
4 098 convictions were obtained from 5 451
cases nalised with a verdict.
• Murder prosecutions: A high conviction
rate of 80.1% was maintained, exceeding
the target of 75% by 5.1%. A total of 3 193
convictions were obtained from 3 987 cases
nalised with a verdict.
• Organised crime: A conviction rate of 95.3%
was obtained, exceeding the target by 5.3%.
This also represents a 0.5% increase over
the previous nancial year. A total of 242
convictions were obtained from 254 cases
nalised with a verdict.
Organised crime is also prevalent in the
following other crime categories that require a
special focus:
• Complex commercial crime: The SCCU
obtained 599 convictions from the
649 cases nalised with a verdict. This
represents a conviction rate of 92.3%. This
achievement should be viewed against the
very high workload of the SCCU prosecutors
and the high incidence of well-funded
accused with legal representation.
• Environmental crime: The prosecutors
obtained 857 convictions from 883 cases
nalised with a verdict. This represents
a remarkable 97.1% conviction rate. The
dedicated focus on rhino poaching and
related matters resulted in the achievement
of a 100% conviction rate following the
nalisation of 41 cases with a verdict.
• Copper theft and essential infrastructure
prosecutions: Whilst a conviction rate of
86.2% does not appear to be signicant,
when viewed in isolation, it is nonetheless
important to note that the NPS obtained
544 convictions from 631 cases nalised
with a verdict.
• Money laundering: The prosecutors
achieved a 98.6% conviction rate, with 72
convictions from 73 cases nalised with
a verdict.
• Cybercrime prosecutions: A high conviction
rate of 98,5% was obtained through the
nalisation of 325 cases with a verdict and
obtaining 320 convictions.
Eective Prosecutions
At the end of the 2019/20 nancial year, the
NPS committed to focus on activities aimed at
ensuring the successful prosecution of accused
persons and in maintaining high conviction
rates. Prosecutors across all criminal courts
obtained 217 467 convictions, with a conviction
rate of 93.8%. The prosecutors in the high
courts maintained a 90.9% conviction rate, with
782 convictions. The prosecutors in the regional
courts maintained a conviction rate of 82.5%,
with 21 246 convictions. The prosecutors in the
district courts obtained a 95.3%conviction rate
with 195 439 convictions at a conviction rate
of 95.3%, the highest achievement in the last
ve years.
54
Case Study
State versus Sigasa and two others:
Corruption
CORRUPTION
On Friday, 27 September 2019, the Nelspruit
Regional Court sentenced Musawenkosi Sigasa,
Thabang Nathaniel Gaakarekoe and Jabulile
Gladys Gaakarekoe to various sentences of
imprisonment after they were found guilty of
defrauding the Mpumalanga Department of
Education in 2009.
The accused were co-directors of the Gauwe
Waste Management and Projects Clonis,
Homes and Maintenance. They hacked into the
department’s nancial system and defrauded
it under the guise of being a service provider.
Various payments were paid to Nedbank and
Absa accounts totalling an amount of R5.5
million. The department later discovered that
there were certain suspicious transactions that
were eected from its nancial and supply chain
management systems.
The trio was linked to the oences by their
close corporations registration, bank account
statements, withdrawal slips and cell phone
records, including the evidence of a technical
expert. During the trial, the trio pleaded
not guilty to the allegations levelled against
them. The state, led by Senior State Advocate
Patrick Nkuna of the Specialised Commercial
Crime Unit, relied on documentary and
expert witnesses to establish the guilt of the
accused. The presiding ocer, Magistrate Andre
Geldenhuys, found that: ‘the money that was
stolen from the Department of Education was
not recovered and there were other unknown
people involved in this crime. This type of
crime is prevalent and therefore, it is the duty
of the court to impose a suitable sentence to
deter other future oenders’. He sentenced
Musawenkosi Sigasa to 12 years’ direct
imprisonment, Thabang Gaarekoe to ten years’
direct imprisonment and Jabulile Gladys, who
is 80 years of age, to ten years’ imprisonment
wholly suspended for ve years.
Senior State Advocate Patrick Nkuna
Case Study
55
State versus Luis Filipe Duarte D’Alemeida
Fernandes and Nazmien Warner: Racketeering,
money laundering, fraud and corruption
RACKETEERING, MONEY LAUNDERING,
FRAUD AND CORRUPTION
The Western Cape High Court sentenced two Cape Town executives to 17
and 16 years’ direct imprisonment after convicting them on 487 charges of
racketeering, money laundering, fraud and corruption.
Luis Filipe Duarte D’Alemeida Fernandes and Nazmien Warner ran a VAT
fraud scheme for seven years that resulted in a loss to SARS of more than a
hundred million rand.
They entered into a plea and sentencing agreement. As part of the agreement,
Warner agreed to the conscation of nine properties and a further R900 000
in cash. Both accused agreed to testify in the trial of their co-accused, Charles
Kamies, whose case was postponed for a pre-trial proceeding. State Advocate
Freek Geyser, who prosecuted the matter, hopes that the sentence sends a
clear message that the NPA, SARS and the SAPS are committed to addressing
complex tax oences.
State Advocate Freek Geyser
56
Activities DNDPP
To address the harm caused to victims by
crime, prosecutors have obtained 842
compensation orders to the value of
R103 930 591.20.
Vulnerable Persons
The rights and needs of the victims of crime,
and particularly vulnerable persons, were
advanced through initiatives such as the TCCs
and court preparation services. The success of
the TCCs is founded in the services delivered to
victims of sexual oences and related crimes.
It is signicant to note that 35 469 victims
were assisted at the TCCs during the 2019/20
nancial year, of which 31 807 (89.7%) were
victims of sexual oences.
With reference to the presidential focus on
addressing the scourge of violence against
women and children, the NPA participated in
the ERAP and the subsequent NSP. Several
initiatives stemmed from this intervention in
conjunction with relevant stakeholders involved
in the investigation and prosecution of these
cases. The initiatives implemented from Q3
of the period under review have resulted in
the NPS collectively achieving an improved
conviction rate in these cases. Further to this,
severe sentences were imposed by the courts in
TCC reported and -prosecuted cases.
The Court Preparation Ocers (CPOs), within
the NPS, play a pivotal role in the NPA adopting
a more victim-centric approach. During the year
under review, 97 671 witnesses were assisted
by the CPOs. The CPOs not only attend to the
needs of victims of crime, but also ensure that
victims are given a larger role in the process of
achieving justice in the following ways:
• Victims are given the right to participate
through the compilation of a victim impact
statements (VIS). The CPOs assisted in the
preparation of 8 351 VISs, and 2 926 VISs
were used during court proceedings during
the year under review.
• When victims are negatively aected by
the decision to prosecute, an opportunity
is provided to resolve the matter
through ADRM.
• Victims are assisted by CPOs when required
to give evidence before the court, ensuring
that they have a greater role in the process
of achieving justice.
At the end of the year under review, 842
compensation orders to the value of
R103 930 591.20 were obtained for the victims
of crime.
Decision Dockets
In addition to their court work, prosecutors also
have to deal with dockets submitted to them
for possible prosecution. All criminal matters
are thus referred to prosecutors to provide
guidance in the investigation of matter, and
to decide on the merits and prospects of a
successful prosecution, i.e. decision dockets.
During the year under review, the prosecutors
received 883 611 decision dockets, and dealt
with 883 470, which represents a clearance
rate of 92.8%. The rapid turnaround time
on decision dockets is an indication that
prosecutors are committed to a high level of
service delivery to all victims of crime.
Performance Against Strategic
Objectives and Programme Indicators
Conviction Rate in High Courts
There are currently nine provincial divisions
of the high court, with a number of local seats
and circuit court sessions. The sta in the DPP
oces conduct criminal trials in the high courts,
and attend to criminal appeals, reviews from the
lower courts and civil or motion applications.
Cases that are generally considered suitable for
trial in the high court are the cases where:
• the circumstances may justify a
sentence outside the jurisdiction of
the regional court;
• the complexity of a case requires the
attention of the high court; or
• the interests of the community or the
administration of justice require that the
trial be heard in the high court.
57
This will be inclusive of all serious cases of murder, rape and robbery, as well
as serious or complicated cases involving commercial or organised crime.
The advocates in the DPP oces also deal with the guiding of investigations
and prosecutions of oences committed within the area of jurisdiction of
a specic DPP, as well as the review of the ndings of inquests. One of the
key functions of advocates in the DPP oces is to deal with appeals that
predominantly emanate from the lower courts.
Specialised prosecutor streams in each DPP oce include organised
crime, specialised commercial crime, complex tax, sexual oences, gender-
based violence and femicide (GBVF) and priority crime sections. Sections
dealing with governance and administration, operations, management,
representations, extraditions and MLAs, as well as training and development,
form part of the work conducted in the DPP oces.
The high courts received 830 new criminal cases and nalised 860 cases
during the year under review. The conviction rate slightly increased from 90%
to 90.9%, whilst the number of cases nalised decreased by 10% compared to
the previous year.
The following graph indicates the uctuation in the conviction rates since the
2015/16 nancial year.
Figure 1: Conviction rate by high courts over a ve-year period
89.9%
91.0%
91.7%
90.0%
90.9%
2015/16
2016/17
2017/18
2018/19
2019/20
State versus Jabulane Vusi Mhaule: Murder
MURDER
58
Case Study
Advocate Derrick Mashego
The Mpumalanga Division of the High Court sentenced a 29-year-old
KaBokweni man in the District of Nsikazi to 20 years’ direct imprisonment
after he pleaded guilty to murdering the mother of his four-year-old child in
June 2018.
The accused, Jabulane Vusi Mhaule, told the court that he and the deceased
were in a love relationship and had lived together with their child for seven
years. After experiencing problems in their relationship, the deceased took
a decision to end the relationship, and moved out of the home they were
sharing with the accused.
The prosecutor, Advocate Derrick Mashego, asked for the prescribed
minimum sentence to be imposed. The court sentenced Mhaule to 20 years’
direct imprisonment for the murder of his girlfriend and mother of his child,
and further declared him unt to possess a rearm.
State versus Bongani Nzuza and Sbusiso
Siso Nzuza: Rape
RAPE
Case Study
State Advocate Jenisha Sewbaran
59
The Ntuzuma Regional Court sentenced Bongani Nzuza and his cousin
Sbusiso Siso Nzuza to life imprisonment for rape, and ten years for the
attempted murder of a 34-year-old woman.
State Advocate Jenisha Sewbaran led the testimonies of the complainant
and her sister, as well as the doctor who examined the complainant after the
incident. In aggravation of sentence, Advocate Sewbaran submitted a Victim
Impact Statement compiled by the complainant and facilitated by Court
Preparation Ocer Xolile Mzobe. In her statement, the complainant said that
she suered severe emotional, psychological and physical trauma after the
incident, and lived in constant fear. The community also humiliated her by
labelling her as a raped person.
State versus Nicholas Ninow: Rape of a minor
RAPE OF A MINOR
60
Case Study
The accused, Nicholas Andrew Ninow, was
convicted and sentenced to life imprisonment
for the rape of a minor, ve years’ imprisonment
for the unlawful possession of drugs, and
ve years’ imprisonment for defeating the
ends of justice. An application for leave to
appeal against both conviction and sentence
was dismissed.
The accused raped a 7-year-old girl in a toilet
cubicle at the Dros Restaurant in Silverton,
Pretoria. When the accused was caught red
handed, he immediately ushed the girl’s
panties down the toilet and tried to assault the
people who apprehended him with his belt.
The accused pleaded guilty to two counts of
rape, citing that he acted impulsively, as well as
to unlawful possession of drugs and defeating
the ends of justice. The South African criminal
justice system generally accepts a plea of guilty
as a sign of remorse, as this not only saves the
court’s time, but also saves the victim from
testifying (especially in sexual oence cases).
A guilty plea thus becomes a mitigating factor
during the sentencing stage.
Prosecutor Sasabona Dorah Ngobeni did
not accept the guilty plea on the rape counts
because Ninow’s plea did not correspond with
the available evidence, and was contrary to what
the victim told her during consultation. This
rejection of the guilty plea triggered a hostile
response, with members of the community
raising concerns that this would cause
unnecessary trauma to the child victim, who
would have to relive the experience when she
was called to testify. However, this perception
was misinformed, as the intention was to call
the victim to testify only to the chronological
sequence of events during the incident. Her
testimony was aimed at proving that the plea
tendered was not one of genuine remorse, but
of regret. The decision not to accept the guilty
plea was discussed and supported by Adv. H
van Jaarsveld, the Deputy Director of Public
Prosecutions.
When the child victim and her mother were
called to testify, the Investigating Ocer
ensured their privacy and safe arrival outside of
the glare of the media and the public. Although
the victim was nervous at rst, she testied very
well and thanked the prosecutor for helping her.
The accused did not take the stand to dispute
her evidence.
Had the prosecution accepted the accused’s
guilty plea, it would have been dicult to
convince the court to impose a life sentence for
the rape counts, and a dismissal of the leave
to appeal application would have been very
dicult to achieve.
Prosecutor Sasabona Dorah Ngobeni
State versus Thabani Mzolo: Intimate femicide
INTIMATE FEMICIDE
Case Study
Thabani Mzolo was sentenced to life
imprisonment in the KwaZulu-Natal High
Court in Durban, having been found guilty of
murdering his girlfriend, Zolile Khumalo. Mzolo
was sentenced to an additional 28 years for the
possession of an illegal rearm and three live
rounds of ammunition.
Mzolo and Khumalo, both students at the
Mangosuthu University of Technology, were in
a relationship that ended in April 2018. Mzolo
was angered by this and, on 1 May 2018, he
entered Khumalo’s student residence armed
with a semi-automatic rearm. He confronted
Khumalo in her room, reprimanded her for
making a fool out of him, and shot her in the
head and chest.
Mzolo’s defence in court was that the rearm
went o during a struggle with Khumalo.
However, Senior State Advocate Nadira Moosa
led the testimony of two witnesses who were
in the room when the shooting occurred,
and voice recordings on Mzolo’s cellphone
from shortly after the shooting contained a
confession that he had killed Khumalo.
In mitigation of sentence, Mzolo’s lawyer,
Advocate Bonokwakhe Dlamini, said he was
remorseful and had apologised to Khumalo’s
family. Moosa refuted this, saying the apology
only came 18 months after the crime was
committed, and that Mzolo had believed he had
a right to take Khumalo’s life because she had
the audacity to end their relationship. Moosa
argued that the evidence revealed the accused
to be a ruthless and cold-hearted killer, who
had calmly and unemotionally reported the
crime to his friends on Facebook while her
body lay metres away from him. Moosa argued
further that in a crime of this nature, which was
planned and calculated, the focus ought to be
on retribution and punitive punishment.
In handing down sentence, Judge Nompumelelo
Radebe said:
“Violence by men towards women in South
Africa is escalating at alarming proportions.
This calls for harsh sentences to be imposed.”
Senior State Advocate Nadira Moosa
61
State versus Tsalau: Murder and rape
MURDER AND RAPE
62
Case Study
A 30-year-old man from Itumeleng Location in
Jagersfontein was sentenced by the Free State
High Court to four life terms and an additional
nine years after he pleaded guilty to charges of
murder, rape, attempted rape, housebreaking
with the intent to rape, and theft. These
oences were committed while the accused
was out on parole, having served time for
housebreaking and rape.
Tsalau committed the rst crime on 2 December
2017 when he broke into the house of an
81-year-old woman. He raped and murdered
her. The victim was staying alone, and the
neighbours became worried when they did not
see her. They went to her house and realised
that a window was broken. The police were
called, who forced entry into the house and
discovered her half-naked body in her bedroom.
On 3 August 2018, the accused broke into the
house of a 79-year-old woman with the intent
of raping her. The woman fought back, stabbing
the accused with a knife. The accused took
blankets, pots and food. He also took the elderly
woman’s clothes, as he did not want to leave his
blood on the scene.
Two weeks later, the accused broke into the
house of a 70-year-old woman who was also
staying alone. He raped and murdered the
elderly woman. Her body was discovered on
23 August 2018 when her neighbour raised an
alarm after not seeing her for ve days. She was
found half-naked. Her face was bruised and her
body covered with blood.
The accused was arrested on 2 November
2018 after some of the bloodstained items
he took from one of the victims were found in
his house. In aggravation of sentence, State
Prosecutor Advocate Moipone Moroka argued
that the accused was not a rst time oender,
and his previous convictions and the fact that
he was out on parole would not deter him from
committing further crimes.
Advocate Moipone Moroka
63
The decline in cases nalised in the high courts can be ascribed to the
decrease in sta dealing with these cases; with the number of advocates in
the DPP oces decreasing by 12.5% since 2017. However, there are also other
factors inuencing on the decline in case nalisation, such as the decline in
the numbers of cases referred for prosecution. It is, however, imperative to
note that whilst the number of cases nalised with a verdict declined, the
number of court appearances did not.
A good indication of the commitment of the advocates is the number
of appeals nalised in the high courts, including appeals to the SCA and
Constitutional Court, which increased from 1 722 in the previous nancial year
to 2 071 in the current reporting year. This represents an increase of 20%,
achieved despite the decline in the number of employees.
64
Figure 2: Cases nalised by high courts in relation to the sta compliment
As alluded to earlier in the discussion, the high courts deal with various
specialised crime cases. Most serious violent crime cases heard in the high
courts involve murder, sexual oences or robbery cases, as depicted in the
graph below. Whilst most of the cases enrolled involve murder cases, the
cases with the most counts of charges are in terms of trio crimes. The second
most counts are in relation to sexual oences convictions.
Activities DNDPP
500
1 000
1 500
2 000
2 500
DPP Staff
Cases Finalised (Verdict)
Appeals Finalised
2017
2018
2019
2020
65
Figure 3: High court: Serious violent crime
Conviction Rate in Regional Courts
In the lower courts, the regional courts deal with more serious cases than
those enrolled in the district courts, because of the penal jurisdiction of the
regional courts. In terms of the Criminal Law (Sentencing) Amendment Act,
2007 (Act No. 38 of 2007), a regional court can sentence an oender, who is
found guilty of oences that include murder or rape, to imprisonment for life.
The court can also sentence oenders who have been found guilty of oences
such as armed robbery or motor vehicle theft, to imprisonment for a period
up to 20 years, while a maximum ne of R300 000 may be imposed.
During the year under review, a total of 50 967 new cases were enrolled in
the regional courts, 584 (1.1%) fewer cases compared to the previous nancial
year. Despite the decline in new cases, the prosecutors in the regional courts
still managed to make an impact on serious crime by nalising 27 971 cases
and obtaining 21 246 convictions from 25 744 cases nalised with a verdict.
This represents a conviction rate 82.5% and a nalisation rate of 0.6 cases per
court per day. Further to this, 2 227 cases were resolved through ADRM.
0
200
400
600
800
1 000
1 200
1 400
Murder Convicted Cases
SO Convicted Cases
Trio Robbery Convicted
Counts Cases
State versus Steyn and others: Murder
MURDER
66
Case Study
Advocate Gerrit Roberts SC and
Advocate Paul Schutte
Zak Valentine (34), Cecilia Steyn (38) and Marcel Steyn (22) faced 32 counts
relating to 11 charges of murder, ve charges of fraud, racketeering, and ve
counts of robbery with aggravating circumstances relating to the killing of
11 people in the Krugersdorp area by members of the Electus per Deus Cult
between 2012 and 2016.
Zac Valentine was sentenced to eight life sentences and 93 years’
imprisonment, Cecilia Steyn received 13 life sentences and 155 years’
imprisonment, and Marcel Steyn, was sentenced to seven life sentences and
144 years’ imprisonment. The trio had pleaded not guilty to all the charges,
and are all rst time oenders. Three other people are also serving lengthy jail
terms in connection with the killing spree, including Marcel’s mother, Marinda
Steyn, who also received 11 life sentences.
State prosecutor Advocate Gerrit Roberts SC, assisted by Adv Paul Schutte
during the proceedings, recommended life sentences for all the accused
despite their personal circumstances.
State versus Moeletsi Tsoho: Murder
MURDER
Case Study
The Mthatha High Court, sitting in Ntabankulu,
sentenced former taxi owner Moeletsi Tsoho
(59) to life imprisonment after convicting him
of the murder of a taxi driver, whose taxi he
subsequently sold in Lesotho. The court also
sentenced him to eleven years on a count of
robbery with aggravating circumstances. The
sentences were ordered to run concurrently.
The court heard that in May 2016 that Tsoho,
of Tsolobeng village in the district of Mount
Fletcher, went to the neighbouring country to
sell a Toyota Quantum minibus. The minibus
belonged to another taxi operator who was
unable to pay the instalments, and the bank
was about to repossess it. Following the sale,
Tsoho got “orders” from his cousin, who is a
Lesotho national, for more vehicles.
A month later, on 13 June, Tsoho lured the
deceased, a minibus driver, to his house where
he plied him with alcohol and oered him
a bedroom to sleep in. When the deceased
was deep in his alcohol-induced sleep, Tsoho
bludgeoned him to death with a knobkerrie.
He later got an accomplice to assist him with
disposing the body of the deceased in a culvert
at the Coldstream farm in Maclear, more than
50 kilometres away, where it was discovered
days later, and sold the minibus in Lesotho.
Senior State Advocate Luvuyo Pomolo
67
Advocate Nozizwe Molepo
68
Figure 4: Cases nalised by regional courts
Figure 5: Conviction rate in regional courts
A comparative analysis with previous years indicates a year-on-year
improvement in the conviction rates achieved by regional court prosecutors,
which conrms their eorts to improve the level of service to the victims
of serious crime. Eective stakeholder engagement, combined with the
dedication of the prosecutors, contributed to the improved performance.
Activities DNDPP
Informal Mediation
Diversion
Verdict ADRM
92%
(25 744)
8%
(2 227)
7%
(1 948)
1%
(279)
78.4%
79.8%
81.0%
81.7%
82.5%
2015/16
2016/17
2017/18
2018/19
2019/20
69
In addition to all the cases nalised, the prosecutors in the regional courts
also dealt with 5 835 court and criminal related matters which is inclusive of
various additional functions that occupy valuable court time (as depicted in
the table below). Formal bail applications and applications for leave to appeal
constitute 91.2% of the additional functions performed.
Table 1: Additional court/prosecution related functions performed
The victims of serious crime are further served through quality decision-
making taking place outside the court arena. A total of 125 331 new decision
dockets were received by regional court prosecutors during the current
reporting year, 16% fewer decision dockets compared to the previous nancial
year. Notwithstanding this decline in the inow of dockets, the prosecutors
still nalised 51 731 dockets whilst maintaining a positive clearance rate by
dealing with 125 541 dockets. The latter includes dockets returned for further
investigation before a decision can be taken.
Notably, more cases were withdrawn during the year under review, with
11 417 cases withdrawn as opposed to the 10 762 withdrawals during the
previous nancial year. This represents a 6.1% increase in matters withdrawn.
There are a number of contributing factors to the increase in the number
of withdrawals, such as poorer quality of criminal investigations or the high
vacancy rate that negatively impacted on the screening processes.
Types of functions
Suspended sentences
Conversion of maintenance trial to enquiry
Application for leave to appeal
Committal to mental institution
Conversion of sentences
Formal inquests
CJA: Preliminary inquiries
Formal bail applications
Total functions finalised
Total
220
2
1 266
201
73
1
19
4 053
5 835
% of Total
3.8%
0.03%
21.7%
3.4%
1.3%
0.01%
0.3%
69.5%
100.0%
70
Conviction Rate in the District Courts
The district courts deal with less serious cases than the regional courts. The
sentence jurisdiction in the district courts are imprisonment to a maximum of
three years and\or the imposition of a ne not exceeding R100 000.
The trend of fewer cases being referred to the court system was also noted in
the district courts. The district court prosecutors enrolled 662 807 new cases,
77 691 fewer cases than the 740 498 new cases enrolled during the previous
nancial year. This represents a decline of 10.5%. One of the most apparent
factors contributing to the decline in new cases was that fewer arrests were
made subsequent to the Constitutional Court judgment decriminalising the
personal use of cannabis. The declaration of the COVID-19 lockdown during
March 2020 would also have had an, albeit a minor, impact on the number of
new cases referred to the district court prosecutors.
Since 93% of all criminal cases are heard in the district courts, the district
court prosecutors deal the most with the members of communities, and this
is also the area in which the biggest direct impact can be experienced by
the community. During the year under review, the district court prosecutors
nalised 339 488 cases, comprising of 205 121 cases nalised with a verdict
and 134 367 cases nalised by making use of ADRM. This represents a
nalisation rate of 3.1 cases per court per day.
Figure 6: Cases nalised by district courts
Activities DNDPP
Informal Mediation
Diversion
Verdict ADRM
60%
(205 121)
40%
(134 367)
29%
(97 855)
11%
(36 512)
71
The district court prosecutors maintained a high conviction rate of 95.3%
through eective stakeholder engagement and a focus on ensuring successful
prosecutions, obtaining 195 439 convictions. The conviction rate target of 88%
was thus exceeded by a signicant margin. The high conviction rate achieved
by the prosecutors reects the dedication and commitment of prosecutors in
ensuring justice to the victims of crime.
It is, however, important to note that a comparative analysis of the
achievements during the previous two nancial years illustrates a slight
downward trend of the conviction rate in the district courts.
Figure 7: Conviction rate in district courts
In addition to all cases nalised the district court prosecutors also dealt
with 65 519 other court and criminal related matters, which includes various
additional functions that take up valuable court time. The next table highlights
that formal bail applications (81.4%) and preliminary inquiries in terms of the
Child Justice Act, 2008 (Act No. 75 of 2008) (12%) comprised the most court
time of the additional matters.
94.7%
95.6%
96.1%
95.7%
95.3%
2015/16
2016/17
2017/18
2018/19
2019/20
72
Table 2: Additional court and prosecution related functions
Victims of crime are further served through quality decision-making outside
the court. A total of 754 407 new dockets were received for decision by the
district court prosecutors, 5% fewer compared to the previous year. Despite
this decline in the inow of dockets, the prosecutors managed to nalise 424
826 decision dockets whilst maintaining a positive clearance rate by dealing
with 753 847 dockets, including dockets returned for further investigation.
A total of 98 747 cases were withdrawn in the district courts, 5 817 (6.3%)
more compared to the 92 930 withdrawals during the previous nancial year.
The high conviction rate indicates that the primary reason for the increase in
the withdrawal of matters was better screening practices.
Number of Criminal Matters Finalised
This indicator measures the prosecutors’ eorts regarding tasks allocated
inside the formal court process. It provides a holistic picture of the
prosecutors’ workload, and output, and compares performance against the
previous nancial year, providing an indication of progress made. Service
delivered to the community is closely linked to this indicator as it shows the
eorts of prosecutors to serve the community. This discussion is a detailed
report and analysis of the gures regarding the nalisation of cases presented
in the preceding three sections.
Activities DNDPP
Types of matters
Suspended sentences
Conversion of maintenance trial to enquiry
Application for leave to appeal
Committal to mental institution
Conversion of sentences
Formal inquests
CJA: Preliminary inquiries
Formal bail applications
Total matters finalised
Total
2 681
481
273
488
167
177
7 946
53 306
65 519
% of Total
4.1%
0.7%
0.4%
0.7%
0.3%
0.3%
12.1%
81.4%
100.0%
73
A total of 972 698 criminal matters were nalised during the 2019/20 nancial
year. The decline compared to the previous year can be ascribed to external
factors that impacted negatively on the performance of the courts. These
factors are discussed in detail under the respective indicators. The table
below illustrates the progress of this indicator and its sub-categories.
Table 3: Progress on criminal matters nalised
Number of Criminal Court Cases Finalised with a Verdict
The prosecutors nalised 231 725 cases where a verdict was rendered.
Despite the prosecutors’ dedication and commitment to increase successful
prosecutions, 44 584 (16.1%) fewer cases were nalised compared to the
276 309 successful prosecutions during the previous nancial year. This
decline should be viewed against internal factors such as resource constraints
that were experienced during the rst half of the nancial year within the
prosecutorial component, as well as against external factors, such as a decline
in court utilisation and a decline in the inow of new cases.
Table 4: Comparison of criminal court cases nalised with a verdict
Types of criminal matters finalised
Cases finalised with a verdict
Cases finalised through ADRM
Dockets finalised
Admission of guilt payments
Criminal/court matters finalised
Appeals finalised
Total criminal matters finalised
2018/19
276 309
149 469
510 856
3 039
72 533
1 722
1 013 928
2019/20
231 725
136 594
472 199
2 532
71 593
2 071
916 714
Progress
-16.1%
-8.6%
-7.6%
-16.7%
-1.3%
20.3%
-9.6%
% of National
0.4%
11.1%
88.5%
100.0%
Forum
High Court
Regional Court
District Court
All Courts
Progress
-11.0%
-8.1%
-17.1%
-16.1%
2018/19
966
28 001
247 342
276 309
% of National
0.3%
10.1%
89.5%
100.0%
2019/20
860
25 744
205 121
231 725
74
The district courts (who are responsible for 92% of the total cases) nalised
17.1% fewer cases with a verdict compared to the previous year. Further to
this, an 8.1% and 11% decline is noted in the number of serious criminal cases
nalised in the regional and high courts respectively. External factors, such
as a decline in court utilisation, a decline in the inow of new cases and the
declaration of the National State of Disaster during March 2020 (to a very
limited extent) impacted on the performance of the courts.
Court utilisation entails both the number of court days and the court time
utilised to nalise and resolve enrolled cases. It is well known that when a
criminal court makes ecient use of available court days, that it has a positive
impact on the output of the court. This includes the ecient use of available
court days as well as the number of court hours available per court day.
Court Days
A marginal decline in the number of court days utilised is again noted in both
district and high court forums, while more court days were utilised in regional
courts. This progress is indicated in the table below.
Table 5: Comparison of court days utilised
Court Hours
A decline in the actual court hours utilised to deal with criminal cases is also
noted. The criminal courts were in session for an average of 2 hours and
57 minutes per day. This is a 3.7% decline from the average of 3 hours and
4 minutes maintained during the previous nancial year.
Activities DNDPP
% of National
3.5%
28.5%
68.0%
100.0%
Forum
High Court
Regional Court
District Court
All Courts
Progress
-4.6%
2.0%
-0.7%
-0.1%
2018/19
9 232
70 438
172 396
252 066
% of National
3.7%
27.9%
68.4%
100.0%
2019/20
8 806
71 823
171 147
251 776
75
The optimum use of court hours through eective case ow management
is a critical success factor in the speedy nalisation of cases. The expected
norm for court hours per day, as determined by the Chief Justice in norms and
standards for all courts, 4 hours and 30 minutes. All forums achieved hours
below the norm. A signicant decline is noted in both the district and regional
courts. The number of average court hours per day per forum is indicated in
the table below.
Table 6: Comparison of average court hours utilised
Plea and Sentence Agreements
The number of plea and sentence agreements concluded in terms of Section
105A of the Criminal Procedure Act, 1977 (Act No. 51 of 1977) decreased from
2 898 to 2 166 agreements. The 2 166 agreements include 7 091 counts.
One of the cases settled through plea and sentence agreements was a fraud
case involving 2 346 counts. The plea agreements saved valuable court time,
as lengthy trials were prevented, more specically in the regional courts,
dedicated commercial crime courts and the high courts.
Table 7: Number of plea and sentence agreements
Forum
High Court
Regional Court
District Court
All Courts
Progress
-2.1%
-5.5%
-3.0%
-3.7%
2018/19
02:50
03:16
02:59
03:04
2019/20
02:46
03:05
02:54
02:57
Forum
High Court
Regional Court
District Court
RC SCCU
All
No of offence(s)
pleaded on
164
2 795
1 253
2 879
7 091
% Sentences
10 + years
imprisonment
60%
16%
0.1%
12%
10%
10 + years
15
194
1
3
213
No of
Agreements
25
1 179
937
25
2 166
76
In one matter the plea and sentence agreement reached resulted in the
imposition of life imprisonment. In the high courts 60% of sentences with
plea and sentence agreements resulted in direct imprisonment for a term of
ten years or longer, while in the regional courts and commercial crime courts,
a similar result was achieved for 16% and 12% of sentences, respectively. In
the commercial crime courts, 25 plea and sentence agreements concluded
involved 2 879 counts. A signicant number of witnesses were therefore not
required to testify, also saving valuable court time.
Outstanding Cases
Whilst there was a lower inow of cases, it is important to note that there
was an increase in the number of cases enrolled, involving multiple accused
and charges. This increase caused bottlenecks in many courts, negatively
impacting on the nalisation of cases, which in turn negatively aected
the outstanding court roll and backlogs. The impact of the reduced
nalisation rate is reected in the increased outstanding roll, as indicated
in the table below.
Table 8: Number of outstanding cases
The number of outstanding cases increased from 181 912 at the end of
the previous nancial year, to 194 225 at the end of the year under review.
The number of outstanding cases increased by 12 313, an increase of 6.8%
from the 2018/19 nancial year. The decline in the utilisation of court hours,
together with the decrease in the nalisation of cases in the lower courts,
resulted in a growing outstanding caseload. The regional courts had an
increase of 4 380 outstanding cases at the end of the reporting period, whilst
the district had an increase of 7 943 outstanding cases. The high courts,
however, managed to reduce the outstanding case load by ten cases.
Backlogs
The reduced nalisation of cases translated into a growing backlog. Overall,
the backlog gure increased by 5 106 cases. This represents a 15% increase.
The backlog in the regional courts increased by 1 497 (8.8%) cases, whilst the
backlogs in the district courts increased by 3 571 (23.1%) cases.
Activities DNDPP
% of National
0.5%
24.2%
75.3%
100.0%
Forum
High Court
Regional Court
District Court
All Courts
Progress
-1.0%
10.3%
5.7%
6.8%
2018/19
971
42 683
138 258
181 912
% of National
0.5%
23.5%
76.0%
100.0%
2019/20
961
47 063
146 201
194 225
77
Table 9: Number of backlog cases
Number of Criminal Cases Withdrawn After Enrolment
Whilst it is acceptable that a small percentage of cases will be withdrawn
after enrolment, prosecutors have implemented improved quality-screening
processes over the past number of years. This was done to ensure
the successful prosecution of cases. As previously alluded to, the NPS
experienced severe resource constraints during the beginning of the nancial
year. Vacancies at a managerial level complicated management functions in
certain regions, and resulted in weaknesses in internal control mechanisms
and insucient monitoring by senior prosecutors. The screening teams and/
or control prosecutors, who are responsible for screening dockets and cases
before enrolment, were assisting in the courts to prevent operations from
being interrupted. This caused a situation where proper screening processes
were not adequately enforced. The decline in the adequacy of screening
processes resulted in an increase in the number of cases withdrawn after
enrolment. As a result, there was an increase in the number of withdrawals of
enrolled matters during the previous nancial year.
Figure 8: Number of enrolled cases withdrawn
% of National
0.7%
47.5%
51.8%
100.0%
Forum
High Court
Regional Court
District Court
All Courts
Progress
16.0%
8.8%
21.3%
15.0%
2018/19
237
17 097
16 746
34 080
% of National
0.7%
50.2%
49.1%
100.0%
2019/20
275
18 594
20 317
39 186
107 401
100 886
95 158
103 760
110 249
2015/16
2016/17
2017/18
2018/19
2019/20
78
The ve-year comparison, as depicted in Figure 8 above, reects an upward
trend during the past two years. This upward trend correlates with the
aforementioned resource constraints.
During the year under review, 6 489 (6.3%) more enrolled cases were
withdrawn compared to the previous year. Despite the decline, prosecutors
in the regional courts still withdrew 811 fewer cases than in the 2015/16
nancial year.
Number of Criminal Cases Finalised Through ADRM
Using restorative justice processes, the NPA also resolves matters through
ADRM. ADRM encompasses several methods, other than prosecution in court,
for the resolution of disputes between the parties. This process
still happens within the ambit of the CJS ,and includes diversion and
informal mediation.
The majority of ADRM matters (98.4%) are dealt with by the district court
prosecutors, mainly because of the nature of crimes that are heard in the
district courts. The remaining 1.6% are dealt with by prosecutors in the
regional courts. During the year under review the lower court prosecutors
nalised 136 594 cases through ADRM. The table below illustrates the
comparison of criminal court cases nalised through ADRM in the lower
courts, over the last two years.
Table 10: Comparison of criminal court cases nalised through ADRM
As with cases nalised with a verdict, a downward trend was displayed, mainly
due to the reduction in the inow of cases. The prosecutors nalised
136 594 cases through ADRM in the period under review, an 8.6% decline
compared to the 49 469 cases nalised through ADRM in the previous
nancial year.
Activities DNDPP
% of National
1.6%
98.4%
100.0%
Forum
Regional Court
District Court
All
Progress
-10.1%
-8.6%
-8.6%
2018/19
2 476
146 993
149 469
% of National
1.7%
98.3%
100.0%
2019/20
2 227
134 367
136 594
79
During the year under review, 33 574 cases were diverted after enrolment,
3 217 cases were diverted before enrolment in terms of the Child Justice Act,
2008 (Act No. 75 of 2008) (CJA) and 99 803 cases were mediated successfully.
In total 12 875 fewer cases were diverted/mediated compared to the previous
nancial year. This represents a decline of 8.6%. Diversions in terms of the
CJA were reduced by 1 217 (27.4%), diversions after enrolment decreased by
5 466 (14%), whilst 6 192 (5.8%) fewer matters were found suitable for
informal mediation.
Table 11: Comparison of ADRM cases per indicator
Number of Cases Finalised, Including ADRM
The NPS set high targets for its prosecutors in the 2019/20 nancial year.
Despite the eorts by prosecutors to increase successful prosecutions, and
the achievement in maintaining high conviction rates, the overall number
of cases nalised, declined from the previous nancial year. Initial resource
constraints and external factors, such as fewer cases being referred for
prosecution, impacted on the performance of the prosecutors. This explains
the decline in the number of all cases, including ADRM cases which were
nalised, as illustrated in Figure 9.
% of
National
24.6%
2.3%
73.1%
100.0%
Indicator
Diversions after enrolment
Diversions in terms of CJA
Informal mediation
Total
Progress
-14.0%
-27.4%
-5.8%
-8.6%
2018/19
39 040
4 434
105 995
149 469
% of
National
26.1%
3.0%
70.9%
100.0%
2019/20
33 574
3 217
99 803
136 594
80
Activities DNDPP
Figure 9: Trend analysis of criminal cases nalised including ADRM
The prosecutors nalised 368 319 cases, including ADRM cases, which
constitutes 57 459 (13.5%) fewer cases, compared to the total of 425 778
cases nalised during the previous year. All three fora showed a reduction in
output. The high courts nalised 106 (11%) fewer cases, the regional courts
nalised 2 506 (8.2%) fewer cases, whilst a substantial reduction of 54 847
(13.9%) is noted in the district courts.
Table 12: Comparison of criminal court cases nalised including ADRM
477 802
505 376
494 815
425 778
368 319
2015/16
2016/17
2017/18
2018/19
2019/20
% of National
0.2%
7.6%
92.2%
100.0%
Forum
High Court
Regional Court
District Court
All Courts
Progress
-11.0%
-8.2%
-13.9%
-13.5%
2018/19
966
30 477
394 335
425 778
% of National
0.2%
7.2%
92.6%
100.0%
2019/20
860
27 971
339 488
368 319
81
It is important to note that the NPA does not work in a silo, but is highly
dependent on the cooperation and performance of other stakeholders.
The level and quality of performance, or a decline in the productivity of
stakeholders, will accordingly have a negative impact on the performance
of the NPS, translating into a subsequent impact on the achievement of the
targets set. As alluded to earlier in the report, the initial severe resource
constraints, a decline in the utilisation of courts, the reduced inow of cases,
and poor quality of investigations received from the SAPS were the main
factors that hampered the performance of the NPS during the year under
review.
A trend analysis of new cases received indicates a downward trend in the
inow of new cases over the past two nancial years. As a direct relationship
exists between the number of new cases received and the number of nalised
cases, the declined inow contributed to the decline in the number of cases
nalised during the 2019/20 nancial year.
Figure 10: Inow of new cases
Compared to the previous nancial year, 78 291 (9.9%) fewer new cases were
enrolled in the courts. In the district courts 77 691 (10.5%) fewer cases were
enrolled, whilst a marginal decline of 584 (1.1%) and 16 (1.9%) fewer new
criminal cases were enrolled in the regional and high courts, respectively.
The total decline of 600 cases in the high and regional courts combined is a
concern. Should the volumes of new cases continue to decline, it will become
increasingly dicult for the prosecutors to achieve the targets set for the
successful nalisation of prosecutions of serious crimes.
864 276
884 088
888 053
792 895
714 604
2015/16
2016/17
2017/18
2018/19
2019/20
82
Table 13: Comparison of new cases received
Number of Criminal and Court Related Matters Finalised
In addition to court cases nalised, prosecutors also deal with other criminal
and court related matters as part of their core function and service to the
community. A total of 71 593 matters were nalised, with a 17.1% increase in
the number of formal inquests dealt with, a 68.9% increase in conversions of
maintenance trials to enquiries, and a 2.7% increase in terms of formal bail
applications. The progress per indicator is indicated in the table below.
Table 14: Progress on criminal and court matters nalised
The overall decline of 1.3% in criminal and court related matters in the period
under review compared to the previous nancial year can also be ascribed to
a decline in the productivity of the courts.
Activities DNDPP
% of National
0.1%
7.1%
92.8%
100.0%
Forum
High Court
Regional Court
District Court
All Courts
Progress
-1.9%
-1.1%
-10.5%
-9.9%
2018/19
846
51 551
740 498
792 895
% of National
0.1%
6.5%
93.4%
100.0%
2019/20
830
50 967
662 807
714 604
% of
Total
0.2%
1.0%
0.7%
2.5%
0.3%
4.1%
11.1%
80.1%
100.0%
Type of court/criminal
matters
Formal inquests
Committal to a mental
institution
Conversion of maintenance
trial to enquiry
Application for leave to appeal
Conversion of sentence
Suspended sentences
CJA: Prelim inquiries
Formal bail applications
Total matters finalised
Progress
17.1%
-9.3%
68.9%
-13.3%
-57.1%
-16.5%
-15.3%
2.7%
-1.3%
2018/19
152
763
286
2 042
566
3 476
9 406
55 842
72 533
% of
National
0.2%
1.1%
0.3%
2.8%
0.8%
4.8%
13.0%
77.0%
100.0%
2019/20
178
692
483
1 770
243
2 901
7 965
57 361
71 593
83
Financial
Year
2011/2012
2012/2013
2013/2014
2014/2015
2015/2016
2016/2017
2017/2018
2018/2019
2019/2020
% Unsuccessful
33.6%
32.7%
36.3%
37.1%
37.5%
38.6%
35.1%
39.4%
28.6%
Appeals
Unsuccessful
645
791
878
899
944
941
781
679
593
Finalised
1 922
2 418
2 422
2 423
2 520
2 439
2 225
1 722
2 071
Newly Received
Appeals
1 328
2 249
2 762
2 651
3 065
2 520
2 495
2 507
2 480
Appeals Finalised
State Advocates in the oces of the DPPs also deal with appeals and motion
applications, emanating from criminal cases in the lower courts. These
matters are dealt with in the higher courts. SCA decisions are binding on
all lower-order courts, while the decisions of high courts are binding on
magistrate courts within the divisions’ respective areas of jurisdiction. The
successful pursuit of appeals thus has a great impact on other courts, and is
important in the jurisprudence of the country.
During the period under review, 2 071 appeals were nalised, which is a
substantial increase of 20% compared the 1 722 appeals nalised in the
previous nancial year. At the end of the 2019/20 nancial year, there were
2 384 criminal appeals outstanding as opposed to the 1 434 in the previous
year. This means that despite the marked increase in the number of appeals
nalised there are still 66.2% more cases outstanding than at the end of the
previous nancial year. Judgement was reserved in 126 appeals.
Table 15: Criminal appeals dealt with
84
NPS Programme Performance Indicators
Conviction Rate in Murder Prosecutions
The conviction rate in murder prosecutions mainly aims to show the impact
of prosecutions in curbing the increasing violence in South Africa. Murder is
dened as the intentional, unlawful killing of another human being. In order
to enable accurate reporting, all competent verdicts on a charge of murder in
terms of Section 258 of the CPA are also included.
The prosecutors are passionate about curbing the increasing rate of violence,
which is evident in the 3 987 cases nalised with a verdict, and 3 193
convictions obtained. This represents a conviction rate of 80.1%, which is well
above the norm of 74%. It is interesting to note that the 3 987 murder cases
nalised with a verdict relate to 4 225 counts of murder, thus more than one
count of murder per murder case on average.
Compared to the previous nancial year, a slight decline (471) is noted in the
number of murder cases nalised with a verdict. Despite this decline, the
dedication and commitment of the prosecutors are clearly reected in the
improvement in the conviction rate on all murder-related prosecutions.
Figure 11: Progress of murder conviction rates
Activities DNDPP
78.3%
80.1%
2018/19
2019/20
85
Murder: Intimate-Partner Femicide
Violence against women (often referred to as GBV) is a common crime type.
It is, however, serious and takes on many forms. The murder of an
intimate-partner is the most extreme consequence of GBV. Due to the
prevalence of intimate-partner violence against women, the NPA renewed
its commitment to prioritise its resources in order to address the surge in
gender-based violence, and to monitor the results of this intervention.
A total of 87 cases were nalised during the current reporting year, with only
two acquittals. This represents a conviction rate of 97.7%.
Conviction Rate in Trio Crimes
Trio crimes encompass three categories of crime which impact directly on
the perception of safety within the community, i.e. house robberies, business
robberies and vehicle robberies/hi-jacking. In line with the Medium-Term
Expenditure Framework (MTEF) priorities, a special focus was placed on the
successful prosecution of all trio crimes. The aim was to ensure that the NPA
fulls its mandate to promote safety and security in South African society.
The prosecutors nalised 1 649 trio cases with a verdict, while 1 355
convictions were obtained. This represents a conviction rate of 82.2%, 3%
below the target of 85%. The 1 649 cases nalised with a verdict show a
decline of 255 cases (13.4%) when compared to the total of 1 904 trio cases
nalised with a verdict during the previous nancial year.
Various measures were implemented in the regions to increase performance
in all trio crimes. This includes continuous stakeholder engagement with the
SAPS management at provincial levels, which was aimed at requesting SAPS to
adequately resource trio crime investigations, and to ensure that the quality of
the investigations are of a high standard. There was also a focus on the early
identication of trio cases to ensure proper prosecutor-guided investigations
from the rst appearance. The intention was to fast-track these cases through
the court system, and to ensure accurate reporting of these cases. The
downward trend in the conviction rate is depicted in the gure below.
State versus Cui Rongli and six others
(Chinese Nationals): Attempted murder
ATTEMPTED MURDER
86
Case Study
The Durban Magistrate’s Court sentenced seven
Chinese nationals, Cui Rongli, Lin Xinyong, Zou
Yongxian, Tan Yian, Xie Wenbin, Xu Kun and
Mu Yong, to hefty nes after they pleaded
guilty to the attempted murder of two
Tanzanian nationals.
The master of the ship, Cui Rongli, also pleaded
guilty to contravention of the provisions of
section 174(1)(a) and section 317 (4) of the
Merchant Shipping Act, 1951 (Act No. 57 of
1951). These relate to misconduct (endangering
life or causing injury) and failure to report
stowaways.
These men were part of the crew of a shipping
vessel, Top Grace, that left the port of Durban
on 26 March 2020. The following day they
discovered two Tanzanian men on board.
Accused two to seven then constructed a raft
with plastic drums and plywood. They provided
the men with lifejackets and water, and forced
them to leave the ship on the raft. The two
men later washed ashore at Zinkwazi Beach
near KwaDukuza.
The crew of the vessel was asked to proceed to
the Port of Richards Bay.
Cui Rongli received a ne of R100 000 or
four years’ imprisonment for the charges of
attempted murder relating to putting the men
adrift at sea. For failing to report the stowaways,
he was sentenced to a ne of R10 000 or three
months imprisonment, suspended for ve years
on condition that he is not convicted of the
same oence during the period of suspension.
He was sentenced to a ne of R50 000 or
12 months imprisonment for misconduct. This
sentence was suspended for ve years on
condition that he is not convicted of the same
oence during the period of suspension. Each
of the other accused were sentenced to a ne
of R50 000 or two years’ imprisonment for their
role. They were handed over to Immigration
ocials after paying their nes. This matter was
successfully nalised by Acting Regional Court
Prosecutor Vishalan Moodley.
Acting Regional Court Prosecutor Vishalan Moodley
State versus Daveyton members: Appeals
APPEALS
Case Study
A unanimous decision by a full bench (three
Judges) of the Pretoria High Court upheld the
ruling that found eight Daveyton members
of the South African Police Service guilty of
murdering Mido Macia (the deceased) on
26 February 2013.
Mishack Malele, Thamsanqa Ngema, Percy
Jonathan Mnisi, Bongani Mdluli, Sipho Sidwell
Ngobeni, Lungisa Gwabada, Bongani Kolisi and
Linda Sololo were convicted by the Pretoria High
Court on 25 August 2015 and sentenced to 15
years’ imprisonment each for their collaboration
in dragging the deceased from a moving police
vehicle in full view of the public, resulting in his
death. Subsequent to their sentencing, all police
ocers brought an application for leave to
appeal with the Pretoria High Court, which was
dismissed. They later petitioned the Supreme
Court of Appeal which granted them leave to
appeal on conviction, and directed that the
matter be heard by a full bench.
In dismissing the appellant’s application on
Monday 17 February 2020, the full bench
ruled that there was no justication for
interference on its part, since the trial court
was not misdirected in nding that all ocers
were present at the scene of crime, they
intended to make common cause when they
jointly conducted themselves in a manner that
amounted to a criminal oence in that, they
handcued the deceased to a bench at the back
of a moving police vehicle on a tarred road with
his body hanging outside the vehicle, foresaw
that the deceased might sustain injuries
that could result in his death, yet reconciled
themselves with the danger that might ensue
and failed to prevent it. Furthermore, that upon
arrival at the police station, though being alive
to the fact that the deceased had sustained
visible injuries, they failed to summon medical
help, but instead continued to detain him in that
state, and subjected him to further assaults
at the holding cells. A post mortem report
submitted to the trial court indicated that the
deceased died as a result of extensive soft
tissue injuries and hypoxia. These injuries were
found by the trial court to have been inicted by
the accused persons.
The full bench therefore concurred with the
trial court that the state discharged the onus of
proving beyond any reasonable doubt that all
accused are guilty of murder under the principle
of
dolus evantualis
.
Advocate Grace Mosetlha
87
88
Activities DNDPP
Figure 12: Progress in trio crime conviction rate
However, a positive impact on trio crimes was made if the three categories
of crime are analysed separately. A total of 1 781 convictions was obtained,
related to 2 216 counts of trio crimes. If measured against the total number of
trio counts nalised with a verdict, this represents a conviction rate of 80.4%.
The 1 781 convicted counts included 875 counts of conviction for house
robbery, 539 counts for business robbery, and 367 counts for vehicle robbery/
hijacking. Further analysis indicates that a conviction rate of 85.9% was
achieved in house robberies. The target was not achieved in the categories
of business robberies, where a conviction rate of 81.5% was achieved, and in
vehicle robbery/hi-jacking, where a conviction rate of 68.5% was achieved.
Table 16: Trio counts overview
82.2%
83.5%
82.9%
82.4%
82.2%
2015/16
2016/17
2017/18
2018/19
2019/20
2019/20
House robberies
Business robberies
Vehicle robberies/hi-jacking
Total
Conviction rate
85.9%
81.5%
68.5%
80.4%
Convictions
875
539
367
1 781
Acquittals
144
122
169
435
89
Conviction Rate in Sexual Oences
A focus on the victims of sexual crimes helps combat and prevent further
violence against women and children. Accordingly, the prosecutors managed
to increase the conviction rate in sexual oence cases, despite their initial
challenge experienced with a lack of resources. A total of 5 451 sexual oence
cases were nalised with a verdict and 4 098 convictions were obtained. This
represents a conviction rate of 75.2%; the highest conviction rate achieved
in the past ve years. This upward trend in the conviction rate is illustrated in
Figure 13 below.
Figure 13: Overview of sexual oences conviction rate
Conviction Rate in Violent Protests and Industrial Action
A special focus was placed on violent protest and industrial action
prosecutions, since this crime type poses a serious threat to domestic stability
if not actively combatted and prevented. It is therefore imperative to prevent
and combat the violent crime that accompanies what is otherwise legitimate
industrial and protest action. The conviction rate target of 74% was exceeded
by 4%, since 77.5% of the cases nalised with a verdict resulted in convictions.
The conviction rate also marginally increased by 0.1% when compared to the
previous nancial year. The number of convictions however decreased
year-on-year by 2.1%, from 95 to 93 convictions.
Prosecutors in these cases were also assisted by advocates from the DPP
oces and other experienced prosecutors, who monitored progress and
provided guidance. Factors that inuenced the conviction rates included
the reluctance of witnesses to testify, the challenges experienced in the
identication of perpetrators, and discrepancies between the evidence of
state witnesses. This is not entirely surprising, as such events are extremely
uid and chaotic, with many perpetrators involved.
70.1%
71.7%
72.7%
74.4%
75.2%
2015/16
2016/17
2017/18
2018/19
2019/20
90
Conviction Rate in Complex Commercial Crime
The SCCU maintained a high conviction rate during the nancial year under
review. The impact on serious economic crime is evident, as the advocates
nalised 649 cases with a verdict and obtained 599 convictions. This
represents a conviction rate of 92.3%, 3% below the 95% conviction rate
obtained during the previous nancial year. This achievement should
be viewed against initial serious resource constraints experienced in
many oces.
Figure 14: SCCU conviction rate
Number of Persons Convicted of Corruption of More Than R5 million
The SCCU participates in the ACTT, which was set up to focus on fast-tracking
the investigation and prosecution of serious corruption cases, and to help
ght and prevent corruption in South Africa. Members of the SCCU were
instrumental in crafting the draft strategic plan for the ACTT, and are actively
involved in the ACTT secretariat.
The SCCU represented the NPA in the FATF Country Evaluation and the
Organisation for Economic Cooperation and Development (OECD) review. The
SCCU signicantly contributed to the nalisation of money laundering cases
and the co-ordination of enforcement action in the form of the prosecutions
instituted and nalised.
Towards the middle of the year, the NPS identied that the serious corruption
target would not be reached. Consequently, an anti-corruption workshop was
arranged where all issues relating to serious corruption were identied, and
pro-active steps were formulated to enhance the ght against corruption.
Several steps and resolutions were taken to address serious corruption,
including obtaining additional funding from NT to appoint more sta at
the various oces of the SCCU. The unit was thus lling the current critical
vacancies, as well as establishing additional SCCU capacity to support
the establishment of commercial crime courts in Limpopo, North-West,
Activities DNDPP
94.1%
92.1%
94.1%
95.0%
92.3%
2015/16
2016/17
2017/18
2018/19
2019/20
91
Mpumalanga and the Northern Cape where no such special courts
were established.
Although the NPA has not met the target of convicting 30 persons of
corruption where the amount exceeded R5 million, the denition limited
the counting of cases, as it required that a case be registered with the ACTT.
In addition to the seven convictions registered by the ACTT, another three
convictions were obtained where the amounts involved were more than
R5 million.
Each DPP division identied priority corruption cases for fast-tracking and
monitoring, which amounted to 33 cases. After consultation between the
heads of the DPCI and the NPS, the 33 priority cases identied by the NPA
were merged with the DPCI’s priority cases. At the end of the nancial year,
the full list included 86 cases identied for close monitoring between the
two departments. Figure 15 below indicates that, of the 86 identied priority
corruption cases, 16 cases were already enrolled. This is signicant progress
for a six-month period. It is important to note that the priority list was not
limited to new cases as some of these cases, were reported as far back
as 2001.
Figure 15: Progress on prioritised corruption cases
NR of Cases Enrolled
2001
2003
2008
2009
2011
2012
2013
2014
2015
2016
2017
2018
2019
1 1
2
1
4 4
5 5
7
14
15
17
10
92
The 86 identied priority corruption cases include 14 cases involving
municipalities. The 14 municipality cases account for just over R202 million
in value. It is interesting to note that during 2011 and 2016, corruption cases
were reported involving signicant amounts of money.
A close working relationship between the NPA and the DPCI included
frequent discussions and monitoring of the priority corruption cases, monthly
reporting to the heads of both institutions from their respective regions, as
well establishing a central database for collaborative monitoring and joint
identication of mechanisms to resolve problem areas.
Delays caused by forensic reports were identied as one of the critical areas
to be addressed. The NPA and DPCI are working together to address these
bottlenecks.
The operational eectiveness of existing structures within the various
provinces also form part of the discussions to improve inter-departmental
cooperation.
Number of Government Ocials Convicted for Corruption or Oences
Related to Corruption
In line with the MTSF and the NDP, a special focus was placed on the
prosecution of corruption-related cases to improve investors’ perceptions and
trust in South Africa in order to encourage investment. The NPA participated
in the development of the National Anti-Corruption Strategy (NACS), where a
national implementation plan for the monitoring, evaluation and a reporting
framework for corruption, is being developed.
During the year under review 183 government ocials were convicted of
corruption, 9.4% below the target of 202 ocials. The number of convictions
is also a 12.9% decline compared to the previous nancial year, during which
210 ocials were convicted. It is however encouraging to note that serious
sentences are imposed by all divisions when convictions are obtained. The
gure on the next page indicates the number of accused convicted from the
various government sectors.
Activities DNDPP
93
Figure 16: Government ocials convicted of corruption
Number of Persons Convicted of Private Sector Corruption
A specic focus was placed on individuals involved in corruption in the private
sector. The number of individuals convicted of corruption thus increased by
62.9%, from 143 to 233 accused.
The media often reports on corruption within the public sector. However,
corruption in the private sector also has an important impact on society and
the economy of the country. Private sector corruption may occur between
an individual and the public sector, between two or more private individuals,
or between a private individual and one or more companies. In terms of the
denition of corruption used by the NPA, and in line with the Prevention and
Combating of Corrupt Activities Act, 2004, a person commits corruption if
they directly or indirectly accepts gratication oers from another person, or
gives or agrees to give gratication to any other person for their or another
person’s benet where, such giving or receiving is done to induce the other
party to act in an improper manner whilst performing their duties.
Some of the sections in the Prevention and Combatting of Corrupt Activities
Act, 2004, relating to corruption-related oences of private individuals or
companies, include corrupt activities surrounding contracts, procuring and
withdrawing tenders, auctions, sporting events, gambling games or games of
chance, and unacceptable conduct relating to witnesses. Various international
agreements and conventions to which South Africa is a signatory and
development guidelines for multinational enterprises, oblige South Africa to
address corruption and bribery in both the public and private sector.
National Departments
Provincial Departments
Local Authority
Government Agencies
97
37
32
17
State versus Wilmot: Money laundering
MONEY LAUNDERING
94
Case Study
The Port Elizabeth Specialised Commercial
Crime Court sentenced David Wilmot (47) to
fteen years’ imprisonment after convicting him
on a string of charges relating to the swindling
of unsuspecting investors of more than
R23 million.
Wilmot, of Jerey’s Bay, pleaded guilty to 153
counts of fraud, one count of contravening
the Exchange Control Act, one count of
contravening the Financial Advisory and
Intermediary Services Act, 2002 (Act No. 37of
2002), and one count of money laundering.
The accused, after pretending to be very
successful in making large prots for and on
behalf of investors who invested through him,
fraudulently led the complainants to believe
that he would invest their money on the
FOREX markets.
In aggravation of sentence the prosecutor,
Advocate Tjaart van Zyl, called three witnesses.
Chris Arnold, a local attorney, testied that
Wilmot lied in the insolvency hearing about
the fact that there were millions of dollars
in overseas accounts which belonged to the
investors. The liquidators were not able to trace
any funds. The Regional Magistrate, JJ Claassen,
convicted Wilmot to an eective term of 15
years’ imprisonment. He found that there were
no substantial and compelling circumstances
present for him to deviate from the prescribed
minimum sentence.
Advocate Tjaart van Zyl
State versus Norman Frederick Delport and
two others: Tax prosecutions
TAX PROSECUTIONS
Case Study
A family consisting of a 68-year-old father, a
59-year-old mother and son aged 37 were
prosecuted for defrauding SARS of R60.3 million
between 2009 and 2015.
The father and mother were trustees of two
trusts and directors/members of two legal
entities used to defraud SARS, and the son
was a beneciary of the trusts and public
representative of the entities, responsible for
all the entities’ tax aairs. Between 2009 and
2015 the accused claimed VAT refunds from
SARS by inating their expenditure and deating
their income on VAT 201 returns. VAT refunds
of up to R60.3 Million were paid into the various
accounts of the entities.
The accused, Norman Frederick Delport,
Johanna Catherina Delport and Marius Delport,
were arraigned on 136 counts of Fraud,
alternatively contravention of the provisions of
section 235(1)(e) of the Tax Administration Act,
2011 (Act No. 28 of 2011). Accused 1 pleaded
guilty on the alternative charges, Accused 3
pleaded guilty on all fraud charges, and all
charges were withdrawn against Accused 2
(the mother).
Accused 1 was sentenced to ve years’
imprisonment for each of the 136 counts
(5x136 = 680 years), wholly suspended for
ve years on certain conditions, as he was a
trustee and a director of the company, but
was not actively involved in the commission
of the oences. Accused 3 was sentenced
to 15 years’ imprisonment for each count of
fraud (15x136 = 2040 years), the sentences
running concurrently. Only R1.2 million could be
recovered from the assets of the accused.
Advocate Dickson Sampisi
95
96
Conviction Rate in Money Laundering Cases
South Africa is a member of FATF in which money laundering is one of three
key indicators. In general, there is a strong focus on money laundering and
the prosecution of money laundering cases. A conviction rate target of 75%
was set for money laundering cases, which was exceeded by 23.6%. A total
of 72 convictions were obtained. The high conviction rate can be ascribed to
an increased focus on money laundering which was a consequence of the
previous (2009) FATF report.
In 2019, FATF indicated that the investigation and prosecution of money
laundering activities are partly consistent with South Africa’s risk prole.
Most money-laundering cases relating to fraud were investigated and
prosecuted. There were fewer money-laundering prosecutions relating to
other high-risk areas, such as corruption, narcotics and tax oending. To date,
money-laundering cases relating to State Capture have not been pursued
suciently, and cases referred to the NPA by the SIU have not been dealt with
expeditiously. Thus, it is not our general prosecution of money-laundering
cases which is problematic but rather a lack of focus in the following areas
which occasioned the nding of the FATF: Stand-alone money laundering,
SIU cases referred to the NPA, State Capture cases and cases where foreign
predicate oences are involved. Another issue was that no prosecutions were
instituted or nalised for third-party money laundering. The stand-alone
money laundering and foreign money laundering aspects were included as
areas of focus in the new nancial year.
The units involved in organised crime collectively provided information to the
FATF on approximately 60 successful prosecutions in which money-laundering
convictions were obtained and signicant periods of imprisonment of up
to 20 years were imposed. Organised crime generates massive amounts of
proceeds. However, the money-laundering charges mostly relate to assets
and money directly linked to the predicate oences.
The NPA obtained six convictions for money laundering where illicit mining
is involved in terms of Section 6 of POCA, under ‘Possession of proceeds of
unlawful activities’. One accused was sentenced to direct imprisonment.
• Tanki Ngatane: An employee was arrested at Phakisa Mine with R15 000
and sentenced to a ne of R 20 000 or four months’ imprisonment.
• Sithembile Mboyane: The accused was arrested at Phakisa Mine with
R5 000 and sentenced to a ne of R2 000 or six months’ imprisonment
suspended for ve years.
• Godfrey Mesa: The accused was arrested at Tsepong Mine with R10 100
and sentenced to six months’ imprisonment suspended for three years.
• Johannes Mantso: The accused was arrested at Phakisa Mine with
R1 600 and sentenced to a ne of R2 000 or six months’ imprisonment of
which half was suspended for three years.
Activities DNDPP
97
• Theddeus Chibuike Ikwe: The accused was arrested at Phakisa
Mine with R6 000 and sentenced to a ne of R2 000 or four
months’ imprisonment.
• Tsibiso Lekhera: The accused was found underground in Tshepong Mine
in possession of R3 000 and sentenced to six months’ imprisonment.
Specialised Tax Component
The NPA entered into a MoU with SARS in terms of which it committed to
the establishment of a specialist tax prosecution capacity within the NPA,
in the form of a specialist tax component (STC). The role and exclusive
mandate of the STC is to prosecute serious and complex tax oences. The
STC is responsible for the prosecution of tax crime, specically where such
incidences are linked to the commission of organised crime.
The MoU was updated during the year under review. The following are
examples of the type of crimes committed and the investigations involved in
the cases (almost all cases investigated are racketeering matters):
• Value-added tax (VAT) fraud;
• IT fraud;
• Customs fraud;
• Ghost exports;
• Money laundering;
• Exchange control regulations; and
• Cross-border crimes.
Regular coordinating committee meetings (CCM) with SARS are important,
as SARS has its own investigating component. Extensive time and eort
went into supporting the SARS National Outstanding return project. SARS
is currently under-collecting on its revenue targets. A major contributor to
the under-collection relates to legal entities and individual taxpayers who
are not submitting their tax returns for income tax, pay as you earn (PAYE),
unemployment insurance fund (UIF), the skills development levy (SDL) or
value-added tax (VAT). SARS is unable to raise assessments or collect the
outstanding taxes until the returns are submitted by the taxpayer and
the outstanding taxes can been determined. Failure to submit tax returns
therefore, has a serious impact on the SARS revenue-collection eorts. The
setting of admission of guilt nes and civil penalties have clearly not brought
about the required levels of compliance expected from taxpayers.
The STU therefore decided not to set admission of guilt nes for so-called
‘problem taxpayers’ who clearly have a history of non-compliance, and these
taxpayers were required to appear in court. Further to this, it was expected
that evidence in aggravation of sentence must be led in court, and that the
court must receive individual information relating to ‘problem taxpayers’.
These strengthened measures are in place, and the process is ongoing.
98
Reducing Organised Crime
The NPS focused on activities aimed at ensuring the successful prosecution of
accused persons, and in maintaining a high conviction rate.
Conviction Rate in Organised Crime
Members of the organised crime division participated in several fundamental
stakeholder engagements, where they contributed to meaningful discussions.
They also dealt with and processed a number of applications that were
authorised by the NDPP, such as racketeering, plea and sentence agreements
and the interception of communications. The members have various
specialised portfolios, such as drug-related oences, essential infrastructure,
illegal mining, wildlife crime, tracking in persons, robberies/cash-in-transit
heists and money laundering.
Members of the organised crime division represent the NPA on the National
Project Committee (NPC) which was established by the DPCI to nationally
evaluate projects. During these sessions, the investigation teams present
project-driven investigations and the NPS provides input and guidance to
ensure that the investigations and prosecutions are successful. The goal
of these project-driven investigations is to dismantle the syndicates and
associated structures involved in criminal activities through arrest and
successful prosecution. The AFU plays a role in the recovery, restraint,
preservation and forfeiture of the criminal assets of syndicate members.
The NPA also uses the NPC to identify potential racketeering and money-
laundering cases and to advise on how these investigations can be improved.
If investigation teams raise challenges experienced in their investigations due
to the decisions or conduct of prosecutors, those concerns are channelled
to the relevant DPP oces to resolve. This ensures better coordination and
cooperation between the NPA and the DPCI.
The majority of investigations are, however, focused on drug syndicates
involved in the manufacturing, distribution and dealing of dangerous
dependence-producing or undesirable dependence-producing substances.
Another national priority crime is the smuggling of abalone which has a large
impact on the South African economy and tourism industry. This crime type
is most prevalent in the Western Cape and Eastern Cape, with national as
well as international links. Aside from abalone poaching, it is evident from the
investigations that these syndicates are also involved in other crimes.
Other national priority crimes that form part of the project-driven
investigations are corruption, cash-in-transit heists, housebreaking, tracking
in persons and illicit mining. Illicit mining, which usually involves an element
of violence, is driven by organised criminal syndicates that have control over
illegal miners, colloquially known as Zama Zamas.
Activities DNDPP
99
During the year under review a conviction rate of 95.3% was achieved in
organised crime matters, exceeding the target of 90% by 5.3%. The number of
convictions, however, decreased by 17.7%, from 294 to 242 convictions.
Organised crime cases mostly consist of complicated cases involving evidence
of an intricate nature. As such these cases take longer to nalise than the
average regional or high court case. Various cases are also part-heard cases,
which remain long on the court roll. In KZN, for example, four of the part-
heard cases involve racketeering charges. These cases have been on the
court roll since 2010 and 2011. Another part-heard matter involving charges of
money laundering has been on the court roll since 2011. During the past year,
the organised crime unit nalised cases involving 12 counts of racketeering
and 25 counts of money laundering. Most of the sentences imposed on the
organised crime cases were for lengthy imprisonment periods, as reected in
the gure below.
Figure 17: Comparison of organised crime sentences imposed
The POCA provides measures to combat organised crime by investigating and
prosecuting racketeering, money laundering and criminal gang activities. A
racketeering prosecution allows for all members of a syndicate to be placed
before a single court, instead of instituting several separate trials.
Fine
Suspended Sentence
0 - 10 years impr
10 years impr +
37%
22%
3%
39%
100
The organised crime unit provided information to the FATF on approximately
60 successful prosecutions in which money laundering convictions were
obtained and signicant periods of imprisonment of between ve and 20
years were imposed from 2014 to 2019. Organised crime generates immense
amounts of proceeds. The money-laundering charges mostly relate to assets
and money directly linked to the predicate oences. There are, however,
limited investigations and prosecutions in relation to the nancial activities of
money laundering enablers.
Illicit Mining
The NPA contributed to regional and international cooperation to address
transnational organised crime in relation to precious metals. A resolution
under the heading ‘Combatting transnational organised crime and its links to
illicit tracking of precious metals and illegal mining, including by enhancing
the security of the supply chains of precious metals’ was adopted by the
Commission on Crime Prevention and Criminal Justice (CCPCJ) in May 2019.
The lack of legislation and border control in non-producing countries hamper
the transnational organised crime investigations of false or under-declaration
during export of precious metals and stones in South Africa.
A progress report relating to the implementation of the resolution had to
be provided at the 14
th
United Nations CCPCJ. The NPA assisted to provide
content for the South African report in relation to illicit mining, and assisted
in drafting the national statement to promote the resolution, which will be
delivered by a minister. Further to this, the resolution is still to be presented
at the CCPCJ conference in May 2020, and the United Nations Convention
against Transnational Organised Crime (UNTOC) Community of Practice (COP)
in October 2020.
Activities DNDPP
State versus Thomas Tivane and
eight others: Illicit mining
ILLICIT MINING
Case Study
Nine men were each sentenced to life
imprisonment by the Johannesburg High Court
for a spate of oences they committed. Thomas
Tivane, Makamu Mapeddje, Alex Mabuya,
Boavida Chilengue, Gito Maguele, Jordan Bila,
Antonio Timbe, George Mabunda and Jeremias
Sithole were convicted of 53 oences ranging
from the contravention of POCA, gang rape,
kidnapping, one count of murder, and inciting or
abetting another to commit the crime of rape.
The accused terrorised residents of Tshepisong
(Mogale City Municipality) by wielding pangas,
knives, knobkerries and what resembled
rearms, to kidnap, rob and rape unsuspecting
women. These heinous crimes resulted in the
loss of Mathapelo Baloyi’s life, who succumbed
to injuries after being raped and stoned by
three of the assailants.
The accused were arrested following
information provided by an informer. They
were later pointed out by complainants at an
identication parade, and were further linked
to the oences through DNA samples. Senior
State Advocate Lwazi Ngodwana led evidence
of the deceased’s husband, Joseph Baloyi, who
testied in aggravation of sentence, detailing
the impact of the crime and the death of his
wife on their entire family. Adv Ngodwana
argued that there were no substantial and
compelling circumstances to deviate from
the minimum prescribed sentence of life
imprisonment.
Senior State Advocate Lwazi Ngodwana
101
102
Activities DNDPP
In February 2020, the NPA participated in a meeting with the United Nations
Oce on Drugs and Crime (UNODC). The resolution will be dealt with under
the existing convention of the UNTOC. The purpose of the meeting was to
brief the UNODC on challenges relating to illicit mining in South Africa, and
to assist them in advancing the implementation of the resolution. A South
African working group will be established for this purpose, of which the NPA
will be a member.
Illicit mining was one of the areas of concern during the recent FATF country
assessment in relation to how eectively South Africa deals with money
laundering. FATF made no adverse ndings or recommendations relating
to illicit mining. This can be attributed to the existence of the national
coordinating strategic management team (NCSMT) and the successes
achieved as a result of the NCSTM. The NPA presented three organised
crime cases and a few lower court cases in which convictions were achieved,
amongst others on charges of money laundering. The FATF utilised these
case studies in its report. Focussed attention on money laundering relating to
illicit mining is crucial during the next nancial year. Illicit mining will continue
to be a prominent focus area of both the government, through the NCSMT,
as well as internationally, through the CCPCJ and the UNODC as an emerging
transnational organised crime phenomenon.
103
Conviction Rate in Environmental Crime
South Africa is known to be an extremely biodiverse country, and is endowed
with various plant and animal species not found anywhere else in the world. It
is therefore imperative to ensure that these unique species are protected for
future generations, as well as to ensure a continued healthy environment. As
part of the prioritised focus areas that impact on the environment, the NPA
has dedicated prosecutors to more specically focus on illegal hunting, the
dealing and possession of rhino and rhino horns, ivory, abalone and cycads,
as well as waste and pollution cases.
As part of the focused attention to successfully address environmental crime,
the NPA is collaborating and cooperating with various stakeholders and is part
of several committees. The management inspectorate of the Department of
Environment, Forestry and Fisheries (DEFF) has close working relations with
the SAPS, DoJ&CD, NPA, SARS and the FIC. Various forums and committees
enable this coordination. This includes the national-level priority committee
on wildlife tracking, which falls under the National Joint Operational and
Intelligence Structure (NATJOINTS), the provincial joints structures within the
nine provinces, as well as the National Biodiversity Investigators Forum (NBIF),
where wildlife and police investigators meet to discuss specic investigations
and targets.
A high conviction rate of 97.1% was achieved during the year under
review, which can be ascribed to the organised crime component actively
participating in the National Integrated Strategy to Combat Wildlife Tracking
(NISCWT). It is, however, important to note that the NPA must enhance its
prosecution capacity in order to play a coordinating and prosecution-guided
investigation role in inter-provincial and transnational cases.
As an emerging crime, environmental crime has links to transnational
organised crime. The NPA therefore provides reports to various international
organisations where South Africa is either a member, or has ratied
international agreements, such as the Convention on International Trade
in Endangered Species (CITES), UNTOC and the Commission on Crime
Prevention and Criminal Justice (CCPCJ). Training on environmental law is being
conducted through the Justice College as well as
ad hoc
advanced training by
the NPA in collaboration with the DEFF.
The rst successful private prosecution was reported with regard to waste
and pollution prosecutions. Since then, the NPA received two notications of
intention to institute private prosecutions. It is easier for private persons to
initiate private prosecutions due to the absence of requirement for a
nolle
prosequi
certicate before instituting an action and therefore it is anticipated
that such cases may increase.
104
The environmental legislation provides for the prosecution of state organs
transgressing the law in relation to the management of waste processing
facilities and water-related crimes. Prosecutors nd it dicult to deal with
these matters, as there is no precedent and the only prosecution resulted in
an acquittal. The NPA is, however, in the process of determining the correct
legal position in this regard.
Rhino poaching continues to be a national priority. The NPA performs a pivotal
role in combatting rhino poaching by not only rendering prosecution services,
but also by participating in Operation Rhino 8, as well as the national priority
committee on wildlife tracking, a coordinating multi-stakeholder committee
that addresses challenges relating to anti-poaching operations, investigations
and prosecutions. The illegal wildlife trade has become a lucrative
transnational crime worth billions, and threatens international security,
national sovereignty, impoverished rural communities and countless animals.
During the year under review, a special focus was placed on the prosecution
of rhino and related matters to curb this growing transnational phenomenon.
The enhanced focus resulted in a signicant increase in the number of cases
nalised with a verdict and convictions. A total of 41 cases with a verdict, in
which 59 accused were charged, was nalised with a 100% conviction rate.
Conviction Rate in Cybercrime Prosecutions
A special focus was also placed on the prosecution of cybercrime cases to
curb this growing international phenomenon. New technologies create new
criminal opportunities rather than new crime types. In fact, cybercrime is
an extension of an ordinary crime committed within cyberspace, where
information and communication technologies are used as an instrumentality,
target or a means for perpetuating further crimes. These cases are complex
and encompass a high level of technical evidence.
The prosecutors and advocates of the SCCU nalised 325 cases with a verdict,
and obtained 320 convictions, representing a conviction rate of 98.5%. The
high conviction rates maintained show a clear commitment and dedication to
curb this growing international phenomenon.
Activities DNDPP
105
Figure 18: Conviction rate in cybercrime
Conviction Rate in Copper Theft
Damage to essential infrastructure, as described in the Criminal Matters
Amendment Act, 2015 (Act No. 18 of 2015) increased dramatically by 64% from
the last nancial year. This has caused severe interruptions, such as trac
congestion, stranded commuters, delayed housing projects, electrocutions,
nancial losses and problems with telecommunications.
During the year under review 213 cases of damage to essential infrastructure
were nalised with a verdict, 137 fewer cases compared to the previous
nancial year, during which 350 cases were completed. There was also a
slight decline (0.5%) in the conviction rate, from 83.1% to 82.6% in the new
reporting year.
A 14% decrease was also noted in cases related to copper theft that were
nalised with a verdict, from 327 cases nalised in the previous nancial year
to 281 in the current reporting year. The conviction rate, however, increased
by 3.5% to 90.7%, compared to the 87.2% conviction rate obtained in the
previous nancial year. It is important to note that several copper theft cases
also involve the damage of essential infrastructure.
95.7%
97.0%
98.5%
99.1%
98.5%
2015/16
2016/17
2017/18
2018/19
2019/20
106
Figure 19: Copper theft and damage to essential infrastructure verdicts
A new trend observed during the current reporting year, is the theft and
damaging of cell phone tower batteries. These batteries are stolen and
smuggled over the borders to neighbouring countries for personal use in
households. The NPA is working daily with telecommunications investigators
to monitor related investigations and to assist with bail procedures. There
were successes in the nalisation of cases where long-term imprisonment
was imposed.
Another new and very concerning trend is the theft of fuel from pipelines.
An increase was observed during the period under review. Millions of rands
worth of fuel was stolen by opening and damaging pipelines. These cases are
also being prosecuted under the Criminal Matters Amendment Act, related to
critical infrastructure. Illegal immigrants and South African citizens collaborate
to tap the fuel from the Passenger Rail Agency of South Africa (PRASA)
pipelines which is then removed and sold to registered fuel suppliers. Since
syndicates are involved, this emerging crime was brought under the attention
of the DPCI at a high level, and who is monitoring all reported cases.
The NPA continued to participate in the training of prosecutors and
investigators in small groups, and provided individual training to prosecutors
and other stakeholders where necessary. The drafting of a standard operating
procedure (SOP) was also initiated. This SOP will provide guidance to all
Activities DNDPP
213
2018/19
2019/20
350
327
2018/19
2019/20
281
Essential Infrastructure:
Verdicts
Copper Theft:
Verdicts
107
investigating ocers and rst responders on how to handle cases registered
under the Criminal Matters Amendment Act.
The NPA, in collaboration with the SAPS Firearms, Liquor and Second-Hand
Goods Control (FLASH) component, has commenced with a verication
process on the CAS system. All cases registered under the Criminal Matters
Amendment Act, from 1 June 2016 to September 2019, were veried and are
regularly being updated. A database of all sentences imposed for convictions
relating to these crimes was developed in order to track trends in the type of
sentences handed down for purposes of reporting.
Ad Hoc National Responsibility: Drug and Related Matters
During the year under review, 12 101 cases relating to the dealing and
possession of drugs were nalised with a verdict. The prosecutors managed
to achieve a high conviction rate of 99.3% by obtaining 12 014 convictions. The
progress is indicated in the table below.
Table 17: Progress in dealing in drugs and related matters
In addition to the number of cases nalised by a verdict, 219 cases were
nalised through ADRM. However, 15 182 cases were withdrawn. The number
of cannabis-related arrests by the SAPS declined after the constitutional
decriminalisation of possession of cannabis by an adult for private use.
This had an impact on the number of cases nalised by the courts. Factors
that also hampered the speedy nalisation of these matters include delays
in obtaining the forensic reports from the SAPS laboratories and the
unavailability of foreign language practitioners. The regions continue to play
an active role in curbing the increase in drug and related crime.
Dealing in drugs
Possession or use
of drugs
Total
2018/19
Convictions
2 162
39 242
41 404
2018/19
Verdict
2 494
44 382
46 876
Conviction
Rate
86.7%
88.4%
88.3%
2019/20
Convictions
952
12 618
13 570
2019/20
Verdict
979
12 679
13 658
Conviction
Rate
97.2%
99.5%
99.4%
Progress on
Conviction
Rate
10.6%
11.1%
11.0%
Progress
on Verdict
-55%
-68%
-67%
State versus Nkosi and three others: Drugs
DRUGS
108
Case Study
OR Tambo International Airport
© Wikimedia Commons
The former police woman who aided a syndicate to smuggle drugs through
OR Tambo International Airport was sentenced to 15 years’ imprisonment by
the Johannesburg High Court.
The accused, Buyisile Nkosi (42), and her three co-accused were found
guilty on multiple charges relating to racketeering and dealing in drugs
between 2007 and 2009, when she was a sergeant stationed at the airport.
The enterprise manufactured drugs from a rented house in Sandton.
The drugs ranged from cocaine, heroin, dagga, tik, methcathinone (cat) to
methamphetamine (ice), worth millions of rands. They sold them to members
of the public within and outside of the country. The accused had access to
the stored exhibits impounded by the police at the airport, which she would
tamper with by substituting the cocaine with our. On many occasions, she
would assist drug-lords to import drugs from other countries without being
detected by the police. She also sold drugs to other agents throughout
South Africa.
State versus Byungsu Kim and Young IL
Sunwoo (Korean Nationals): Deportation
DEPORTATION
Case Study
Two South Korean men, who stole rare and
critically rare plants in the Western Cape, were
sentenced to six years’ direct imprisonment,
wholly suspended for ve years, and declared
undesirable persons in South Africa. One has
been deported to his country, while his
co-accused is in the process of being extradited
to the United States of America for similar
crimes. Millions of rands were also conscated
from them.
The accused arrived in South Africa last year
with a plan to search for and collect ora. They
were in the process of arranging for the ora
to be exported from a nursery in the Western
Cape when they were arrested. It emerged that
the pair did not have permits to pick or possess,
or permission from the landowners, to pick the
ora. They were found with plants listed as rare
and critically rare in the SANBI Red List of South
African plants.
The Cape Town Regional Court convicted
Byungsu Kim, 44, and Young IL Sunwoo, 71, on
three counts, which included possession of ora
without documentation, picking of protected
ora without a permit, and picking of ora
without written permission of the landowner
and possession.
The court attached R2.476 million in cash
from Kim, and R2.405 million from Sunwoo.
The money was divided between the Criminal
Assets Recovery Account (CARA), the Western
Cape Nature Conservation Board and the South
African National Biodiversity Institute. Kim was
re-arrested on an Interpol warrant, and his case
was postponed for an extradition to California,
where he faces charges similar to the crimes he
committed in South Africa. Sunwoo has been
deported back to South Korea.
Valley of Fan Aloes - Western Cape
© Wikimedia Commons
109
110
Activities DNDPP
Ad Hoc National Responsibility: Deaths Due to Initiations
Due to the increasing number of initiation-related deaths, some initiation
schools in the Eastern Cape suspended operations during December 2020.
In other provinces initiation schools resolved to suspend the 2020 initiation
schools until further notice. This was mainly due to the COVID-19 outbreak
and lockdown. Initiation schools were subsequently prohibited under the
COVID-19 regulations.
No cases were nalised during this reporting period, although some pending
matters were reported by the regions. In the Eastern Cape, there are 14
pending matters on the court rolls. There are also a number of inquest
dockets pertaining to deaths due to initiations, of which the outcomes are
still pending.
Ad Hoc National Responsibility: Taxi Violence
The South African taxi industry has grown tremendously over the past
30 years. Currently, 15 million South Africans rely on taxis for their daily
commute. Taxi violence is therefore a fundamental challenge in South Africa.
The most worrying aspect of taxi violence is the prevalence of innocent
passengers, including children, who become victims.
All regions reported that dedicated sta are allocated to taxi violence matters.
Close cooperation with stakeholders is also maintained. The regional clusters
and organised crime component maintain databases of all taxi violence
cases, and consult with the investigating ocers. They also guide and monitor
investigations. During the period under review, ve cases were nalised, with a
100% conviction rate. Life imprisonment was imposed in all cases.
Gangsterism
Although gangsterism is seen as a global phenomenon, South Africa
has seen a surge in gang-related incidents during the year under review.
Gangsterism is, however, regarded as a symptom of a more extensive youth
and socio-economic problem. Gangsterism in South African townships is a
common phenomenon due to poverty, inequality and unemployment. This
phenomenon is well established in the Eastern Cape, KZN and Western Cape
and poses a serious threat to society. The NDP is a blueprint on how our
country can eliminate poverty and reduce inequality, amongst others, by the
year 2030. The interventions within the NDP require the removal of barriers
so that citizens can journey towards achieving their dreams with condence
and dignity.
To address this phenomenon, the regions have continuous engagements with
all relevant stakeholders, and dedicated teams are also assigned to these
priority cases. During the period under review, seven cases were nalised with
a verdict, whilst six convictions were obtained, representing a conviction rate
of 86%.
111
Combatting gang-related violence, especially that emanating from the
northern areas of Port Elizabeth, was identied as a regional priority for the
Eastern Cape. Three dedicated advocates at the oce of the DDPP: Port
Elizabeth, and one dedicated regional court prosecutor at the magistrate’s
court were tasked to attend to gang-related cases. At present, this team
is dealing with 150 cases, of which 90 matters are already enrolled and in
various stages of nalisation.
Prosecutors in the Western Cape strictly adhere to prosecution-guided
investigations, as this adherence leads to more ecient investigations and
quicker enrolment for plea agreements or trials. As a result, witnesses do
not lose interest, and are prepared to testify. Informal training on Section 9
of the POCA was provided to prosecutors, members of the anti-gang unit,
and police ocers at station level (including SAPS visual policing members)
on investigations, bail opposition statements and data collection for expert
gang statements. This training is supplemented by training on asset forfeiture.
Most gang related matters are withdrawn or struck o the roll due to lack of
cooperation from witnesses (who are usually from rival gangs), or incomplete
investigations, and training initiatives are aimed at increasing the success in
such cases.
Tracking in Persons
To full South Africa’s obligation to the United Nations Protocol to Prevent,
Suppress and Punish Tracking in Persons, Especially Women and Children,
the Prevention and Combating of Tracking in Persons Act, 2013 (Act No.
7 of 2013) was introduced. The Act deals comprehensively with tracking
in persons (TIP) in all its various forms, and in particular provides for the
protection of and assistance to tracking victims. Persons convicted of
tracking are liable to severe sentences, including a ne or imprisonment,
imprisonment without the option of a ne, and even imprisonment for life.
TIP is a serious crime, and a severe violation of human rights. Every year
thousands of men, women and children fall into the hands of trackers,
in their own countries and abroad. To curb this growing phenomenon, the
regions assigned dedicated prosecutors to deal with human tracking, and to
ensure the sharing of best practices in successful prosecutions.
A representative from the Western Cape Division showcased the
methodologies applied by the Western Cape task team during the KZN
action plan review workshop, held in January 2020. Through this sharing
of experiences and lessons learnt, synergies were created to eectively
prosecute TIP cases whilst assisting tracking victims.
112
Victim-Centric Services Enhanced
The NPA undertook to advance the rights of victims through initiatives
such as the TCCs and court preparation services. The upward trends in the
achievements of the TCCs (as managed by the SOCA unit) reect the victim
focussed approach prioritised by the NPS. In the period under review, there
were 55 operational TCC sites. However, with the Criminal Assets Recovery
Account (CARA) funding allocated to the NPA, the SOCA unit is in the process
of establishing an additional six sites over a three-year period.
Number of Victims Assisted at TCC Sites
The success of the TCCs is founded in the services delivered to the victims of
crime. Therefore, the core function of the TCC model is victim-centred and
court-directed (to minimise secondary victimisation), with prosecutor-guided
investigations and stakeholder cooperation (to continually strive to improve
conviction rates). The trend analysis below indicates an upward trend in the
number of victims assisted from 2015/16 until the 2019/20 nancial year. A
total of 35 469 victims were assisted at TCCs, of which 31 807 (89.7%) were
victims of reported sexual oences.
The SOCA unit excelled during the year under review, and exceeded the TCC
target of assisting 29 860 victims by 18.8%, with 5 609 more victims assisted
than expected.
Figure 20: Number of victims assisted at TCC sites
Activities DNDPP
32 786
32 239
33 973
34 558
35 469
2015/16
2016/17
2017/18
2018/19
2019/20
113
Conviction Rate of TCC Reported Cases
Compared to the previous year, a conviction rate of 74.9% was achieved in
TCC reported cases, an improvement of 1.4%. The graph below reects the
upward trend over the past ve years.
Figure 21: Conviction rate of TCC Reported cases
With reference to the presidential focus to address the scourge of violence
against women and children, the NPA participated in the ERAP and the
subsequent NSP. Due to several pertinent and related initiatives with
relevant stakeholders on the investigation and prosecution of these cases,
implemented from the Q3-period, the conviction rate target was achieved,
and even improved on. More severe sentences were also imposed by the
courts, specically regarding TCC reported and prosecuted cases. The
imposition of life imprisonment and long-term sentences ranging from 20–25
years increased from an average of 22.9% in Q1 and Q2 to 36.2% in Q3 and
Q4, representing an increase of 13.3% during the year under review.
From July 2019 to March 2020, the Sexual Oences and Community Aairs
(SOCA) unit collated information regarding convictions and sentences on
GBVF cases reported by the divisions. The collated information reects
the following:
• In nalised cases, 98 of the accused received 166 life imprisonment
sentences, while 20 accused also received lengthy imprisonment
sentences.
• The charges were predominantly rape (163), and murder (30), including
children, elderly and femicide matters (12 charges of which eight were for
intimate partner femicide).
• Two cases of patricide and licide were reported, respectively.
71.8%
71.1%
74.5%
73.5%
74.9%
2015/16
2016/17
2017/18
2018/19
2019/20
114
Activities DNDPP
The SOCA unit reviewed and amended existing training manuals for all ve
sections, as well as the integrated training manual on TCC stakeholders, to
ensure they align with the latest developments in law and related legislation.
The unit also delivered 24 decentralised training sessions during this
nancial year. These sessions covered intensive training for prosecutors on
sexual oences, domestic violence, child justice, maintenance and tracking
in persons.
Victims of Crime
In its eorts to serve the community, the organisation has embarked on
victim-centric initiatives. Apart from testimony, victims are provided the
opportunity to contribute at sentencing through VIS, and, where appropriate
to resolve a matter through ADRM. Central to this approach are the court
preparation ocers who not only attend to the needs of crime victims,
but also ensure that they are given a larger role in the process of
achieving justice.
The NPA has the mandate for Court Preparation Services and VIS, which
is housed within the NPS. The purpose of the NPA’s Ke Bona Lesedi Court
Preparation component is to prepare victims (witnesses and their family) for
testimony. They work with the most vulnerable individuals:
inter alia
,
women, children, the elderly and those with special needs such as a
disability or medical condition, empowering them to testify. This process
is prosecutor-guided.
During this reporting period, the component contributed to the draft
regulation in terms of the Sexual Oences Act to include the role of court
preparation ocials in assisting victims. These regulations were gazetted
on 7 February 2020. Court Preparation Services are now embedded in
the mandate of government. In addition, court support workers from the
community must apply to the NPA to be accredited in order to provide court
preparation services for victims. An accreditation desk was established to
process any queries and requests: Cour[email protected]ov.za. In order
to ensure continuous skills development, the court preparation component,
in collaboration with Human Resource Management and Development
(HRM&D) and the Safety and Security Sector Education and Training Authority
(SASSETA), participated in the development of an occupationally directed
qualication for CPOs.
During the year under review, a total of 97 671 witnesses were assisted by the
CPOs, while 8 351 VISs were facilitated. Compared to the previous year,
12 860 (11.6%) fewer witnesses were assisted, and 2 224 (21%) fewer VISs were
completed. This is mainly due to initial severe sta constraints coupled with
the unavailability of witnesses. The latter also impacted on the number of VISs
used, as 1 193 (32.5%) fewer VISs were used during this reporting period.
115
Table 18: CPO performance
In addition to the VISs facilitated by CPOs, the prosecutors recorded a total
of 2 926 VISs used during court proceedings. Further to this, to address the
harm caused by crime, the prosecutors obtained 842 compensation orders
valued at R103 930 591.20, to be paid to victims of crime.
Clearance Ratio on Decision Dockets
A total of 883 470 dockets were received during this nancial year. A positive
clearance ratio was once again maintained by all lower and high court
prosecutors as they managed to deal with 883 611 dockets, achieving a
clearance rate of 92.8%. This high clearance rate conrms the commitment
from prosecutors to deliver a high level of service to the community they
serve. The progress compared to the previous year is indicated in the
table below.
Table 19: Progress on decision dockets
Fewer dockets were received for decision and there was a decline of 83 004
(8.6%) when compared to the 966 474 dockets received during the previous
nancial year. This impacted on the number of dockets nalised and a decline
of 38 657 (7.6%) was noted.
Financial year
NO. of VIS completed
Total witnesses
No. of VIS used by prosecutor
% VIS used
2018/19
10 575
110 531
3 674
35%
2019/20
8 351
97 671
2 481
30%
Progress
-21.0%
-11.6%
-32.5%
-50%
Decision dockets
New dockets received
Dockets dealt with
Dockets finalised
2018/19
966 474
964 897
510 856
2019/20
883 470
883 611
472 199
Progress
-8.6%
-8.4%
-7.6%
116
National State of Disaster: COVID-19
On Sunday 15 March 2020, the president of South Africa declared a
national state of disaster following the outbreak of COVID-19. The president
announced the lockdown of all non-essential services and restrictions on
movement of all individuals on 23 March 2020. The lockdown commenced
from 27 March to 16 April 2020, but was extended for a period of six weeks,
from 17 April 2020 to 30 May 2020. The main aim of the lockdown was to
contain and prevent the spread of COVID-19.
Subsequent to the announcement of the lockdown, the Minister of Justice
and Correctional Services issued directions regulating how courts and
the administration should operate during the period of the lockdown. The
directions indicated that courts and other justice service points should deal
only with urgent and essential criminal cases.
In addition to essential and urgent matters, the courts handled 2 088 rst-
appearance cases related to COVID-19, with 2 574 arrested accused during
the rst ve days (27 to 31 March 2020) of the Level 5 hard lockdown period.
The status of the accused per province is illustrated in the table below. Of all
the accused, 49.6% were released on warning, 16.5% were released on bail,
and 16.6% remained in custody. The cases of the 17.3% remaining accused
were disposed. Over this period, the contravention of Regulation 11B(1)(a)(i) –
failure to conne to residence – took precedence over other contraventions of
the regulations.
Table 20: Case and accused status: COVID-19 rst appearances
Activities DNDPP
Date
27/03/2020
30/03/2020
31/03/2020
National
Total
No. of
CAS
27
1 646
415
2 088
No.
persons
arrested
39
1 987
548
2 574
Accused
released:
Case
disposed
8
349
90
447
%
Disposed
20.5%
17.6%
16.4%
17.4%
Accused
status:
Bail
5
304
115
424
% OW
38.5%
52.4%
40.3%
49.6%
Accused
status:
On
warning
15
1 041
221
1 277
% O/B
12.8%
15.3%
21.0%
16.5%
Accused
status:
In
custody
11
293
122
426
% I/C
28.2%
14.7%
22.3%
16.6%
117
Challenges
The following factors negatively impacted the performance of the prosecutors
and courts during the year under review:
• The unavailability of key stakeholders was a major concern that was raised
at various stakeholder forums.
• Poor criminal investigations, delays in the nalisation of investigations and
unavailability of dockets and witnesses in courts.
• A shortage of proper accommodation and resources/facilities/equipment
impacted the optimum performance of some regions.
• Vacancies at the managerial level complicated management functions
in some regions, which resulted in inadequate monitoring by
senior prosecutors.
• Critical sta shortages in some regions and specialised units, such as the
SCCU and STU, impacted the productivity and quick turnaround of cases.
• Some newly demarcated areas were not allocated the necessary
resources (personnel, infrastructure).
• A shortage of foreign language interpreters and outstanding probation
and pre-sentence reports negatively impacted on the prompt nalisation
of cases.
• Contract magistrates did not adequately deal with cases (postponements
and partly heard matters, etc.).
• Increased cycle times of cases due to poor court roll management by
presiding ocers impacted the prompt nalisation of cases.
• Inadequate funding for transcription of records.
• A noted decline in the numbers of cases referred to the NPS for
prosecution.
• A decline in the eective use of court days and court hours.
• An increase in the number of cases enrolled, involving multiple accused
and charges caused bottlenecks in many courts.
• Shortages of CPOs to assist victims of crime.
• The declaration of the state of disaster in March 2020 also had a minor
impact on the productivity of the courts during a month that is known for
high productivity.
Priority Crimes Litigation Unit
The PCLU is mandated to manage and direct the investigation and
prosecution of terrorism, terror nancing and related oences as stated in
the Protection of Constitutional Democracy against Terrorist and Related
Activities Act, 2004 (Act No. 33 of 2004). This act also makes provision for
extraterritorial jurisdiction with respect to specic oences as outlined in
the act.
The PCLU is a special directorate in the ONDPP mandated to manage
and direct investigations and prosecutions specied in its Presidential
Proclamation and the NPA’s Policy Directives dated 1 June 2015.
Key crimes dealt with by the PCLU include international crimes, terrorism,
non-proliferation and cases arising from the Truth and Reconciliation
Commission (TRC) process. As a sub-component, the Missing Persons
118
Task Team (MPTT) is responsible for tracing the remains of persons who
disappeared during the period covered by the TRC and completing other
assignments given by the Minister of Justice and Correctional Services.
The PCLU underwent fundamental restructuring at the beginning of the
period under review, and Adv Chris Macadam was appointed acting head
of the unit. After an audit of the PCLU’s workload, the organisation decided
to adopt a decentralised model whereby prosecutions are conducted by
prosecutors in the areas where the crimes were committed, with the PCLU
performing a managerial or support role. The NPA has rearmed the original
mandate of the PCLU, and all matters falling outside of the mandate were
returned to the DPP oces with jurisdiction.
The adoption of a decentralised model required that the DPPs appoint
nodal points to manage the PCLU matters in their divisions. The nodal
points were trained to enable them to properly manage PCLU cases, and a
monthly reporting system was installed. The PCLU remained concerned with
representing the NPA in high-level national interdepartmental work groups,
attending to matters that cannot be referred to the regions and supporting
prosecutors with regional cases. The MPTT continued to operate with the
same sta component and operating model as the previous year. Two
members of the MPTT who had previously worked as researchers for the TRC
were required to assist the PCLU with research into TRC cases.
Activities DNDPP
119
S v Knoesen and Three Others: The PCLU
was approached, with short notice, by the
intelligence agencies with information that a
right-wing group was planning a terrorist attack
on Black Friday (i.e. 29 November 2019). The
PCLU drafted numerous adavits and search
warrants for addresses located in dierent
provinces, as well as a warrant for arrest for
the ringleader. The PCLU played a key role in
coordinating the operations, leading to the
arrest of the ringleader and three accomplices.
The accused were arraigned in the Middelburg
Regional Court on a charge of terrorism. Bail
was successfully opposed, and the matter
remains under investigation.
Prior to the year under review, prosecutions
had been instituted in two TRC cases, namely
S v Rodrigues (alleged murder of detainee
Ahmed Timol) and S v Coetzee and Others
(alleged murder of Nokuthula Simelane). In
the Rodrigues case, the accused brought an
application for a stay of prosecution, which was
dismissed. He then applied for leave to appeal,
and the decision of the Supreme Court of
Appeal (SCA) is outstanding. In Coetzee’s case,
the accused brought various legal challenges,
which were dismissed, but a new trial date could
only be secured in October 2020. The reopened
Aggett inquest proceeded in court, but has
since been postponed indenitely after the
judge was admitted to hospital. No new date
has been set.
Noteworthy Cases
Henry Okah: The accused, a Nigerian terrorist
leader, was convicted on a number of terrorism
charges related to his role in orchestrating
bombings in Nigeria. After the Constitutional
Court (ConCourt) upheld his convictions,
he instituted an application in the Pretoria
High Court seeking to have the terrorism law
declared unconstitutional and a declaratory
order to the eect that his conduct was
protected under the Geneva Conventions. The
application was dismissed on the principle of
res judicata
. The Court made an order of costs
in favour of the NPA due to the complex work
which had been rendered. The acting head of
the unit personally dealt with this matter.
BL Morris: The accused, a member of an
intelligence agency, entered into a plea-and-
sentence agreement with the State on a charge
under the Protection of Information Act, 1982
(Act No. 84 of 1982) related to his failure to
secure classied documents in his possession.
Because he was retired at the time of his trial,
he received a ne and a suspended sentence.
120
Decisions
As a result of the decentralised model,
the backlog in decisions was addressed.
The majority of these decisions related to
complaints made by the arms control and
non-proliferation bodies dealing with regulatory
non-compliance. A series of meetings were
held with the arms control body resulting in
closer cooperation.
Legal Opinions
The PCLU provided DIRCO with a number of
opinions related to terrorism and violations of
United Nations Security Council Resolutions
(UNSCRs). These opinions often had to be
provided on short notice and were well received
by DIRCO. An opinion was provided to DIRCO on
a BRICS counter-terrorism strategy proposed by
the Russian Federation.
Technical Assistance
The PCLU gives technical advice to agencies
dealing with complex issues on an
ad hoc
basis.
Examples include:
• Advice on the regulations to address
COVID-19 provided to DoJ&CD and SAPS;
• Advice to DIRCO in responding to issues
raised by the panels of experts monitoring
the implementation of UNSCRs;
• Advice given to the arms control body on
regulatory issues;
• Advice to SSA’s Counter-Terrorism
Functional Committee (CTFC) on complex
terrorism matters;
• Advice to DIRCO and Department of Home
Aairs (DHA) related to the deportation
of a South African convicted of terrorism
abroad;
• Advice to the SAPS Secretariat on the
amendment of the terrorism law;
• Advice to the ID regarding corruption in
cases which could fall within its mandate;
and
• Advice to the Federal Bureau of
Investigation (FBI) regarding South Africa’s
incitement and conspiracy laws to enable
the FBI to assess whether certain social
media posts amounted to criminal activity.
Training
Training was provided on the following:
• Bioterrorism, to investigators, prosecutors,
intelligence agents and others in
collaboration with the United States
Government;
• Terror nancing, to African prosecutors at
a workshop hosted by the United Nations
Oce on Drugs and Crime (UNODC) and
the African Union (AU);
• War crimes, to the South African National
Defence Force (SANDF);
• Terrorism investigations, to Crime
Intelligence;
• An SSA pilot counterterrorism training
course; and
• The terrorism law and laws applicable to
armed conicts, to SSA’s Counter-Terrorism
Functional Committee (CTFC).
Reporting Obligations to National and
International Bodies
During the previous nancial year, South
Africa was assessed by the Counter-Terrorism
Executive Directorate (CTED), which assists
the United Nations (UN) Counter-Terrorism
Committee in monitoring States’ compliance
with the Security Council Counter-Terrorism
measures. During the current reporting period,
the PCLU assisted DIRCO, in responding to
follow-up questions directed by CTED. At
the request of DIRCO the PCLU completed a
questionnaire issued by the CTED, relating to
the disruption of terror nancing.
The PCLU played a key role in making
presentations to the UN’s Islamic State of Iraq
and the Levant (ISIL) {Da’esh} and Al-Qaida
Sanctions Committee (1267 Committee),
which visited South Africa in November 2019
to assess the country’s compliance with its
directives. The committee took the unusual
step of commending South Africa for the
comprehensive presentations made.
South Africa was assessed by the Financial
Action Task Force (FATF) and International
Monetary Fund (IMF) in October and
Activities DNDPP
121
November 2019. The PCLU was actively
involved, and contributed signicantly to this
process, including providing comprehensive
presentations to the FATF assessors on virtual
assets, mutual legal assistance, and terrorism
and proliferation nancing.
Missing Persons Task Team
The MPTT continued in its mandate to establish
the fate and whereabouts of those who
disappeared in political circumstances between
1960 and 1994 (the period covered by the
TRC), and to recover their remains if possible.
The task team also focused on other cases
referred by Government. Members of the MPTT
participated in numerous foreign and local
workshops relating to its mandate.
The MPTT continued to make progress with the
2016 initiated Gallows Exhumation Project.
Political prisoners who were executed during
the apartheid era were secretly buried, and
their remains never returned to their families.
During the current reporting period, nine
bodies of persons executed as a result of their
involvement in the Cato Manor Uprising
were exhumed and returned to their families.
Currently, 13 more sets of remains have yet to
be recovered.
In dealing with the TRC matters, the MPTT
continued to search for the remains of the
missing activists kidnapped and murdered
by the Northern Transvaal Security Police
(the Mamelodi 10 case) who are believed to
be buried at the Winterveld cemetery. Using
innovative drone technology, the gravesite of
one of the deceased was located, and his body
exhumed. The search for the other four missing
activists continues.
An exhumation was conducted at the Ntuzuma
cemetery, resulting in the remains of one
person being exhumed. Although identity still
has to be conrmed, it is believed that he was
one of two members of the ANC’s armed wing,
killed in a 1982 incident. The search continues
for the second person killed in the same
incident.
The MPTT also recovered the remains of Patrick
Sandile Mvundla from Gaborone, Botswana.
He was killed in a 1988 South African Defence
Force (SADF) raid. His identity was determined
through a complex investigation. In conjunction
with the Eastern Cape Provincial Government,
the remains of Dr AB Xuma were exhumed so
that he could be buried in his home area.
In his 2020 State of the Nation Address, the
president announced that the burial site of
Basil February, who was killed in Zimbabwe in
the 1960s, had been located. This was due to
the MPTT working with military historians and
death certicates. It is anticipated that his body
will be exhumed.
The MPTT participated in a two-day seminar on
‘Unnished Business of the TRC’ hosted by the
Foundation for Human Rights in Johannesburg.
A presentation was given concerning the work
of the MPTT. The MPTT also participated in a
series of workshops and seminars organised
by the International Committee of the Red
Cross (ICRC) in Jordan (‘The Search for Missing
Persons, Including Victims of Enforced
Disappearance’), Cyprus (‘Mechanisms for
Missing Persons – Clarifying the Fate and
Supporting Families’) and Portugal (‘Forensic
Best Practices and Principles for Preventing and
Resolving the Missing’).
Two members of the MPTT attended an ICRC
conference in Tbilisi, Georgia on ‘Forensic
Programs for the Clarication of the Fate and
Whereabouts of the Missing and Persistent
Problem of Unidentied Human Remains’. The
MPTT gave a presentation on its methodology
and cases. The head of the MPTT participated in
a reference panel convened by the Department
of Arts and Culture, and MPTT members
participated in workshops on the policy
regarding repatriation of remains. Two lectures
were given at the UCT Summer School on the
122
Activities DNDPP
work of the MPTT. The head of the MPTT gave a presentation on the use of
TRC records in the work of the MPTT at the public launch of the TRC electronic
database hosted by the South African History Archives at Constitution Hill in
Johannesburg.
General
In the S v Rodrigues TRC matter, the court found that the NPA had acted in
breach of its duty in not resisting political interference by other departments
and the executive. The NDPP was directed to investigate these
matters further, and this investigation is still ongoing.
It must be emphasised that the primary issue lies with the investigation of
these matters, which is a responsibility of the DPCI. Due to the nature of the
cases, it is dicult to access all the relevant information needed to make
informed decisions. The PCLU has undertaken a number of initiatives to
prioritise cases. This includes commencing with a review of all the death in
detention cases from 1963-1990, reviewing certain decisions not to prosecute
and grouping cases to establish the existence of a
modus operandi
.
There was an increase in terrorism activity involving both domestic groups
and South Africans involved with international terrorist organisations. The
investigation of these matters is becoming increasingly complex due to the
use of social media platforms to which law enforcement lack access.
A matter of concern is that three separate Security Council Sanctions
Committees have provided information alleging that South African entities
are contravening arms embargoes, and in one instance, foreign-designated
entities have concealed their assets in South Africa. The investigations into
these matters are proving to be challenging due to the fact that the countries
in question are in states of armed conict.
Eorts are being made to establish a research capacity to retrieve all historical
information required for the proper investigation of TRC cases. Initiatives to
increase eciency of the nodal points were interrupted by the COVID-19 crisis,
which is preventing the holding of workshops, training seminars and other
meetings.
123
Asset Forfeiture Unit
The AFU is headed by a DNDPP, supported by a SDPP, regional heads and
other ocials in the oce of the AFU. The AFU’s operations are governed by
the POCA.
Prevention of Organised Crime Act
The POCA provides measures for law enforcement agencies and the NPA
to combat organised crime and money laundering. A primary feature of the
POCA is to provide for the recovery of the proceeds of unlawful activity.
Chapter 5 provides for the freezing and conscation of the value of benets
derived from crime in cases where the accused is convicted of an oence.
Chapter 6 focuses on property that was used either to commit an oence,
or that constitutes the proceeds of crime, and provides for the freezing and
forfeiture of proceeds and instrumentalities of crime through a process that
is not dependent on a prosecution. Further to this, Section 71 of the POCA
empowers the NDPP to request information from government departments
and statutory bodies with respect to investigations relevant to the POCA,
without having to issue subpoenas.
Service Delivery Environment
Similar to other business units in the NPA the AFU nds itself in a service
delivery environment where it is dependent on external role-players in order
to proceed with asset forfeiture applications. This holds true even
for Chapter 6 applications in terms of the POCA, or so-called civil forfeiture, as
the AFU is still required to show criminality in its applications when targeting
the proceeds or instrumentalities of the crimes concerned.
Adv O Rabaji-Rasethaba
124
Activities DNDPP
A criminal investigation must be at an advanced stage to enable the AFU to
meet the standards of proof (balance of probabilities) for preservation and
forfeiture applications. In Chapter 5 or conviction-based forfeiture, the AFU
is not only dependent on a criminal investigation being completed but also
on a charge sheet being drafted before a restraint order can be obtained. A
conscation enquiry can only be launched on conviction of the accused. This
means that any delays in the criminal investigation, drafting of charge sheets,
or during the criminal trial directly impact on the time it takes to complete
AFU matters.
The primary challenge impacting the AFU is the fact that there are a number
of serious corruption matters, State Capture, and other complex cases
involving high values under investigation. Due to the complexity of these
complex cases, and the sheer volumes of potential evidence to be studied
and considered, they can take an extremely long time to nalise. Delays in the
nalisation of criminal investigations and the drafting of charge sheets have
had a signicant impact on the AFU’s ability to meet its performance targets.
Organisational Environment
The 2019/20 nancial year was a challenging year for the AFU. The vacancy
rate in the AFU was 30%, and for nancial investigators and analysts the
vacancy rate was in excess of 50%. The primary function of the investigators
is to identify and trace assets, which is a fundamental function that enables
the AFU to conscate or forfeit assets. This high vacancy rate has had a major
impact on the AFU’s ability to meet its targets.
The target setting for the unit was informed by the possibility of obtaining
orders in high value State Capture and other corruption cases, which are in
the process of being investigated. The complexity of the cases resulted in the
investigations taking much longer than was initially anticipated. Consequently,
the targets set, whilst being lower than for the previous nancial year, proved
to be unattainable and, in retrospect, unrealistic.
125
Most of the AFU employees that worked on the highly complex and high
value State Capture cases were transferred to the ID during the course of
the year, which impacted negatively on the regional oces. Cases that the
AFU had already commenced working on were subsequently drawn into the
ID. Since the high value State Capture cases and serious corruption matters
require a huge amount of time to nalise as they are highly complex and
voluminous, it contributed to delays in the investigation of these matters,
which also translated into delays in attaining asset forfeiture orders. Based on
historic information it is apparent that the aforementioned cases are severely
contested, which means that an above-average eort is required to ensure
that the applications and orders are complete and beyond reproach. The risk
of setting a negative precedent is also greater, hence the additional caution in
completing the applications. All of these factors further negatively impacted
on the nalisation of complex State Capture and other serious corruption
matters.
One of the initiatives the AFU has adopted to mitigate some of the challenges
was to focus on Chapter 6 proceedings, where there is no need to wait for
a conviction or for the institution of a criminal prosecution to proceed. This
means that as long as there are instrumentalities or proceeds of crime, the
investigation is suciently advanced, and criminality can be shown, then the
AFU can more quickly secure the proceeds of crime.
126
Indicator
Number of completed
forfeiture cases
Target
2013/14
390
320
2014/15
466
340
2015/16
418
420
2016/17
569
430
2017/18
563
366
2018/19
495
500
2019/20
417
510
Performance Against Predetermined Objectives
Number of Completed Forfeiture Cases
During the year under review, the AFU completed 417 forfeiture cases against
a target of 510. This is a decrease compared to the 495 forfeiture cases
completed in the previous nancial year, and the 563 in the 2018/19 nancial
year. This is somewhat of a concern as it emphasises the inability of the unit to
maintain previous performance levels given the prevailing situation of vacant
posts over the past few years.
Table 21: Annual comparison of the number of completed forfeiture cases
Value of Completed Forfeiture Cases
The AFU obtained forfeiture and conscation orders to the value of R455
million against a target of R2.5 billion. The value of completed forfeiture cases
in the 2018/19 nancial year wasR3.13 billion. However, it should be noted that
the exceptionally high value achieved in the previous nancial year was due to
two high value cases being nalised.
Table 22: Annual comparison of the value of completed forfeiture cases
Activities DNDPP
Indicator
Value of completed
forfeiture cases
Target
2013/14
R296.4m
R170m
2014/15
R1.94bn
R180m
2015/16
R349.6m
R210m
2016/17
R423.6m
R230m
2017/18
R350.95m
R600m
2018/19
R3.13bn
R6bn
2019/20
R455m
R2.5bn
127
Number of Freezing Orders Obtained
The AFU obtained 326 freezing orders against a target of 300, exceeding
the target by 9%. The positive result can be attributed to an increased focus
on Chapter 6 preservations. The orders obtained exceeded the 273 orders
obtained in the 2018/19 nancial year by 19%.
Table 23: Annual comparison of the number of freezing orders obtained
Value of Freezing Orders
The unit obtained freezing orders to the value of R1.95 billion, 71% below the
target of R6.8 billion. The value obtained did, however, signicantly exceed
the R455 million obtained in the 2018/19 nancial year by 329%. The reasons
for the negative deviation are two-fold. The AFU was functioning with a 30%
vacancy rate, and the continuous reallocation of work to existing sta was
not sustainable. In addition to this, the time required to nalise high value
corruption and State Capture matters was longer than anticipated.
Table 24: Annual comparison of the value of freezing orders
Value of Freezing Orders Obtained Relating to Corruption, Where the
Amount Involved is More than R5 Million
During the year under review, freezing orders valued at R1.6 billion were
obtained against a target of R4.7 billion. This achievement was possible due
to freezing orders being obtained in ve large cases, of which one contributed
R1.01 billion of the R1.6 billion. This aforementioned matter is the Regiments
Capital case, in which the Transnet pension fund was plundered. The
investigation was completed, and a charge sheet was drafted, enabling the
bringing of a restraint order in terms of Chapter 5 of the POCA.
Indicator
Number of freezing
orders
Target
2013/14
363
281
2014/15
342
281
2015/16
326
321
2016/17
377
324
2017/18
324
261
2018/19
273
264
2019/20
326
300
Indicator
Value of freezing
orders
Target
2013/14
R701.5m
R710m
2014/15
R275.6m
R755m
2015/16
R778.9m
R1.1bn
2016/17
R1.194bn
R1.1bn
2017/18
R4.4bn
R1.2bn
2018/19
R455m
R10bn
2019/20
R1.95bn
R6.8bn
128
Value of Recoveries in Terms of the POCA
Recoveries in terms of POCA valued at R190 million were obtained against a
target of R2.2 billion. The table below reects the performance of the AFU
from 2013/14 to 2019/20. In the previous nancial year, the AFU managed to
achieve recoveries worth R3.05 billion. The high amount was due to recoveries
in two high-value cases that were nalised.
Table 25: Value of recoveries in terms of POCA
Success rate
A success rate of 98% was achieved, exceeding the target of 93% by 5%. The
result can be attributed to the AFU’s cautious approach in case selection in
large complex cases being handled in terms of Chapter 5, as well as a more
aggressive approach in pursuing cases using Chapter 6. The unit also achieved
a success rate of 98% in the previous nancial year.
Value of Recoveries Relating to Corruption, Where the Amount Involved is
More than R5 Million
Recoveries to the value of R3 million were obtained, 99% below the target of
R1.6 billion. The under-achievement of the target was as a result of only three
recoveries being nalised in the course of the year. The complex and high
value cases the AFU is currently involved in are taking longer to nalise than
anticipated.
Value of Recoveries in Respect of Government Ocials Convicted of
Corruption and Other Related Oences
During the 2019/20 nancial year, recoveries to the value of R200 000 were
obtained against a target of R600 million as a result of very few convictions
being obtained in matters where there was a potential of forfeiting assets.
Despite the underachievement of the current nancial year, it still exceeded
the performance of the 2018/19 nancial year of R172 000 by 16%.
Activities DNDPP
Indicator
Payments to
Victims
Payments into
CARA
Value of Recoveries to
POCA (Victims + CARA)
2013/14
R84.4m
R98.5m
R182.9m
2015/16
R390.2m
R54.2m
R444.2m
2016/17
R149.4m
R69.1m
R219m
2017/18
R195.8m
R107m
R308.8m
2018/19
R2.88bn
R166m
R3.05bn
2019/20
R190m
R30m
R160m
2014/15
R1 658m
R58.2m
R1 716.2m
129
Strategies to Overcome Areas of Underperformance
The AFU prioritised the creation of new posts and the lling of existing vacant
posts following the allocation of additional budget during the AENE. This was
set in motion through a recruitment process that started in late 2019. This
recruitment process will be prioritised in the next nancial year.
Ocials at various levels participated in training initiatives aimed at improving
performance, including:
• Ethical leadership and public accountability;
• Conferences for certied fraud examiners to retain accreditation;
• Organised crime (racketeering, money laundering and asset forfeiture);
• Civil proceedings in asset forfeiture, a joint initiative between the AFU
and University of KZN which resulted in a comprehensive chapter on this
subject in the AFU manual that will form the basis of practical training in
civil advocacy;
• Cryptocurrency, organised crime and cybercrime investigations;
• Subpoena of Facebook information (through the USA Secret Service);
• Combatting money laundering and corruption in wildlife trade (UNODC);
• Extradition training; and
• Section 18 training rollout to lower court prosecutors. The Section 18
training initiative will contribute to increasing the number of completed
AFU matters, particularly conscations, in the lower courts. In the Western
Cape this initiative has shown a signicant increase in the numbers of
conscation orders obtained.
130
Noteworthy
Noteworthy Cases
As part of its endeavour to continue making
an impact on several crime types, the AFU
achieved success in the following cases:
Drug-related Activities
NDPP v Smit and Others: The SAPS followed
up on information they received, and uncovered
a hydroponic lab used to cultivate cannabis, as
well as cannabis worth an estimated R10 million
on the farm. The AFU obtained a restraint in
the amount of R22.8 million in the matter. The
prosecution is ongoing.
Tierhoek Boerdery: The SAPS searched a
farm and found narcotics, foreign currency and
Kruger rands. The AFU obtained a conscation
in the amount of R3.5 million on 6 September
2019. To date, R1.25 million has been recovered
and paid to victims.
Corruption
Robert Abbu and Others: This matter relates
to allegations against the ex-mayor of the
eThekwini municipality, Zandile Gumede; the
Chairman of the Human Settlements and
Infrastructure Committee, Councillor Mondli
Mthembu; the Chairman of eThekwini’s Bid
Adjudication Committee (BAC), Sandile Ngcobo;
and the Deputy Head of Strategic and New
Developments at DSW, Robert Abbu, who
acted in concert with four corporate entities
to circumvent the outcome of the supply chain
management (SCM) protocols of eThekwini. As a
result of being awarded the unlawful contracts
the aforementioned four corporate entities
were paid R230.5 million.
On 4 October 2019, the AFU obtained a
restraint order in the amount of R51.2 million.
These assets include
inter alia
, immovable
property located in Zimbali and Umhlanga
Rocks, luxury vehicles, assets hidden in trusts
and companies, and cash in bank accounts.
The court appointed
curator bonis
has been
ordered to locate property valued at R230.5
million. The criminal matter is ongoing.
Mlonzi Matter: Employees of the Amathole
district municipality colluded with a paint
supplier to commit tender fraud. The AFU
obtained a restraint in the amount of R23.6
million, and the criminal trial is ongoing.
NDPP v Siyenza 2: The matter entails the
collusion between municipal employees and a
service provider to build toilets in rural areas for
the amount of R406 million. The AFU obtained
a further restraint to the value of R81 million
in the ongoing case against the accused, after
having already forfeited a house in this matter
in the previous nancial year.
Environmental Crimes
NDPP v Mudau: A vehicle was conscated
as an instrument in the smuggling of a pangolin.
The vehicle was forfeited to the State on
18 June 2019.
Byugshu Kim: The accused was found in
possession of endangered ora and protected
plants. The AFU obtained a conscation order
in the amount of R2.5 million against the
defendant on 28 January 2020. To date,
R976 746 has been recovered and was paid
into the CARA on 24 February 2020. Further
recovery is ongoing.
Project Rambo: The SAPS Western Cape
launched a project called Rambo targeting
a syndicate involved in the poaching and
smuggling of abalone. The AFU obtained six
separate preservation orders against proceeds
held by the perpetrators. The total value
declared forfeit was R1.7 million.
Liao Wen Chen: The AFU obtained a
preservation order against Liao Wen Chen and
Daxiong Wen Chen for the illegal possession
and smuggling of abalone. A preservation order
was obtained on 7 June 2019 for R2.13 million.
The matter is ongoing.
131
of R7.46 million on 10 June 2019 and the full
amount was paid into CARA by 8 July 2019.
Addressing Fraud and Economic Crimes
NDPP v Umnotho: The AFU obtained a
preservation for proceeds of tender fraud
committed in the Eastern Cape valued at
R18 million.
Bobro Matter: The matter entailed a father
and son, both of whom were practising
attorneys, and the overcharging of clients they
represented in Road Accident Fund claims. The
perpetrators tried to conceal the origins of the
monies, and transferred a substantial amount
to Israel. The AFU Pretoria Oce obtained a
forfeiture for the monies held in Israel on
21 August 2019 in the amount of R103.6 million.
The order is currently under appeal.
Pamela Pillay Matter: The AFU obtained two
forfeiture orders to the value of R27.6 million
and R12.6 million with respect to an inheritance
that was stolen using a fraudulent will. The
recovery of the proceeds is ongoing.
Thatha Zonke (Mbemba) Matter: The
accused were involved in the illicit smuggling of
cigarettes across the border. The AFU obtained
a conscation order in the amount of
R11 million on 15 August 2019.
Fernandes and Others: The accused
committed VAT fraud in the amount of R110
million in VAT claims. The perpetrators were
assisted by a SARS employee. The AFU
conscated an amount of R8.3 million on
21 February 2020. The recovery is in process.
Bengis Matter: In May 2001, South African
authorities seized a container containing
unlawfully harvested West Coast Rock Lobster
from Arnold Bengis and his company Hout Bay
Industries (Pty Limited). The said harvest was
designated for the USA for distribution through
Hout Bay’s US associates.
Addressing Money Laundering and Illicit
Money Flow
NDPP v WU: The matter entails the
contravention of exchange control regulations.
The South African Reserve Bank investigated
the dealings of Ultra Gain Trading CC and
its sole member Li Yu and found clear
contraventions of the regulations. The AFU
obtained a preservation order on 30 April 2019
in the amount of R30.1 million. A forfeiture
order was obtained on 6 February 2020 in
the amount of R31.7 million. The recovery is
in process.
F Mohamed Matter: The respondent
attempted to smuggle cash in the amount
of R18 million to Dubai whilst travelling from
OR Tambo International. He was found in
possession of $1.26 million and £4 520. The
Johannesburg oce of the AFU obtained a
forfeiture order in the amount of R18.58 million
on 11 September 2019. Furthermore,
R25.8 million was recovered and paid into CARA
on 17 December 2019. The increase in value is
due to the weakening of the rand.
PEC Matter: The PEC matter involves money
obtained by means of an illegal pyramid
scheme. The AFU obtained a forfeiture order in
the amount of R137.5 million in this matter on
20 February 2020. The money is in the process
of being recovered and will be paid to the
victims.
Aikpehae Matter: Police acted on information
and searched the premises of the suspect.
They found a large amount of undeclared
foreign currency. The suspect was arrested
for possession of suspected stolen goods,
foreign currency and attempted bribery after he
oered all the money found there as a bribe not
to be arrested. The AFU obtained a conscation
in the amount of R9.53 million on 16 July 2019.
Makda Matter: The accused was involved in
the bulk smuggling of cash from the ORTIA. The
AFU obtained a forfeiture order in the amount
132
Noteworthy
Arnold Bengis, Jerey Noll and David Bengis were prosecuted and convicted in
the USA for federal charges of violating the Lacey Act (importation of sh and
wildlife in violation of a foreign law), and contravening US Customs laws. On
19 July 2017, the United States District Court for the Southern District of New
York made a forfeiture order against Arnold Maurice Bengis in the amount of
$37.2 million (‘the forfeiture order’).
South Africa, being a victim of the underlying crimes and having registered
its claim in respect of the proceeds of the oences, was a party to the
proceedings. With the cooperation of the US government and the New Jersey
government, the monies were repatriated to South Africa. A total of R99
million was paid into CARA on
22 July 2019.
NDPP v Nasser and Others: The accused was caught in a trap whilst buying
unpolished diamonds from an undercover SAPS agent. Two recoveries were
made following a conscation order obtained in the previous nancial year. On
23 May 2019, R2.3 million was paid into CARA, and an additional R1.9 million
was paid into CARA on 15 August 2019.
Adv Aradhana Heeramun
International Recognition for
Environmental Crimes Prosecutor
Adv Heeramun was awarded the United
States’ Fish and Wildlife Service Award in
July 2020 for her successful prosecution and
conviction of an international poacher, and
facilitating his extradition to the United States.
Byungsu Kim, a South Korean national, had
been wanted in the US for international plant
tracking from protected areas.
Advocate Heeramun prosecuted Kim and
Young Sunwoo for violations of South
Africa’s environmental laws, including for the
possession of ora without documentation
and picking protected ora without a permit.
They were found with plants listed as rare and
critically rare in the South African National
Biodiversity Institute (SANBI) Red List of South
African plants. She obtained convictions against
both perpetrators, who received suspended jail
sentences of six years. Importantly, based on
these convictions, the court attached almost R5
million from the two convicted persons.
She told the court that the accused were part
of at least twelve groups apprehended with
illegally collected succulents in the Western
Cape and Northern Cape in the past ve
months. She noted that the illegal trade in wild
ora and ora is one of the ve largest illegal
activities in the world, along with illegal drug
trade, illegal weapons smuggling and human
tracking. She argued, “Most importantly,
the collection of these plants is an ecological
tragedy. A rough estimation conservatively
estimates the cumulative age of the 2 018
collected plants to be at least 44 000 years.
When one puts it in these terms, the severity,
tragedy and brutality of this crime against
nature are clear. South Africa has both national
as well as an international obligation to address
wildlife tracking…”
Her work has enabled the recovered funds
are to be divided between the government’s
Criminal Assets Recovery Accounts (CARA), the
Western Cape Nature Conservation Board, and
the SANBI.
The case was heralded as example of successful
collaboration between the US and South African
ocials. US Ambassador to South Africa, Lana
Marks, said:
“Advocate Heeramun embraced a
cooperative working relationship with
her colleagues in the United States and
this led to justice truly being served. Most
importantly, it sends a very strong message
to all transnational criminals that the United
States and South Africa are allies in the ght
against crime and that together we make a
united and formidable adversary for those
who would destroy our environment for
prot or otherwise disobey the rule of law.”
In April 2020, Adv Heeramun also successfully
prosecuted US citizen, Kalman Kaminar, for
illegal possession of protected and endangered
succulent plants. Kaminar was sentenced to two
years’ imprisonment suspended for ve years.
Following a conscation order overseen by the
Asset Forfeiture Unit, the court ordered the
accused to pay R500 000 to CARA, and R250
000 to the Western Cape Nature Conservation
Board. Adv Heeramun successfully argued for
the court to declare Kaminar an undesirable
person and ban him from entering SA.
Adv Heeramun joined the NPA in 1999, as part
of the Aspirant Prosecutor Programme, and
worked on sexual oences matters after the
completion of her training. She was appointed
to the Organised Crime Component in the
DPPs oce in the Western Cape, in her current
position as a Junior State Advocate.
International Recognition
133
134
Legal Aairs Division
Overview of the Unit
The Legal Aairs Division (LAD) contributes
to the following NPA strategic objective:
‘Deliver a speedy, quality prosecution within
the prescripts of the law’. The NDPP, as head
of the NPA is generally liable for the acts and
omissions of prosecutors acting in the course
and scope of their employment with the NDPP
or NPA. The LAD is responsible for dealing
with civil actions and applications against the
NPA arising from prosecutorial decisions and
matters incidental thereto, as well as those
applications not dealt with by the NDPP. It
also provides legal advice and legal opinions,
including on international cooperation in
criminal matters (MLA’s and extraditions) and
labour-related matters and damages claims.
Therefore, it is critical that the unit’s work is
ecient and of a consistently high standard.
Other services provided by the LAD include
vetting of draft service level agreements (SLAs)
for the NPA.
The signicant increase in the number of
civil claims for damages led against the NPA
is cause for concern, mainly because of the
resulting burden on resources required to
defend the claims. In the year under review, the
LAD saved the organisation an amount of R78.7
million out of a total of R82.9 million claimed.
The head of the LAD has the nancial
delegation to authorise instructions to the state
attorney, the brieng of counsel with respect to
delictual claims emanating from prosecutions
and is responsible for the overall management
of such civil claims in the NPA. If the cause of
action relates to prosecutorial conduct, the NPA
deals with the matter even if only the Minister
has been cited as a defendant. The NPA may be
joined later as a defendant. It also appears that
amendments to the State Liability Act, 1957 (Act
No. 20 of 1957), have resulted in the Minister
now being vicariously liable for the delicts of
prosecutors.
The main causes of action for civil claims against
the NPA are malicious prosecution, unlawful
detention, failure to adhere to the duty of care
and defamation. The NPA Prosecution Policy
requires that prosecutors assess whether
there is sucient and admissible evidence to
provide a reasonable prospect of a successful
prosecution against an accused. In the absence
of a reasonable prospect of a conviction,
the prosecution should not be commenced
or continued.
In order for a plainti to succeed with a claim for
malicious prosecution, they must, among other
things, allege and prove that the prosecution
instituted the proceedings and acted without
reasonable and probable cause, with ‘malice’,
and that the prosecution failed. Malice or
animo
injuriandi
, is present if the defendant intended
to injure (either
dolus directus
or
indirectus
will
suce), but negligence is insucient.
A prosecutor as an employee of the State has
a public law duty to protect the constitutional
rights of citizens. A breach of this duty can lead
to an award for damages.
In South African common law, every
interference with physical liberty is
prima facie
unlawful. Once the claimant establishes that
interference has occurred, the burden falls
upon the person causing that interference to
establish a ground of justication. There can be
no doubt that this reasoning applies with equal,
if not greater, force under the Constitution.
Prosecutors can be held liable for unlawful
detention if they contribute to the decision
to detain in breach of their public law duty to
protect the constitutional rights of citizens.
Section 12(1)(a) of the Constitution guarantees
the right not to be deprived of freedom
arbitrarily, or without just cause. This right
requires that the encroachment on physical
freedom be substantively justied by acceptable
reasons. In light of section 12(1)(a) of the
Activities DNDPP
135
Constitution, once it is established that the detention is not justied by
acceptable reasons, and is without just cause, the detention is rendered
unlawful for purposes of a delictual claim for damages.
The Constitution imposes a public law duty on the State not to perform any
act that infringes one’s entrenched rights, such as the right to freedom.
Prosecutors have a public law duty not to violate the right to freedom by
way of placing all relevant information before the magistrate. A breach of
the public law duty can give rise to a private law breach of a plainti’s right
not to be unlawfully detained without acceptable reasons.
A claim may only be settled with the approval of the head of the LAD,
the accounting ocer or someone authorised by them. Where a claim is
settled, or where an order for damages is made against the Minister, NPA
or a member of the NPA, as a result of a member’s conduct in their ocial
capacity, a determination of liability is conducted by the Department or
Accounting Ocer in terms of the relevant Treasury Regulations
(i.e. Regulation 12.2 of Public Finance Management Act, 1999
(Act No. 1 of 1999).
One explicit focus of the LAD was to promote training and education to
prevent a repetition of any mistake which led to damages claims being
awarded against the State. Managers are required to take a keen interest
in claims emanating from their areas of jurisdiction for review purposes,
and for identifying individual and general training needs and deciencies in
the case ow processes. The knowledge gained by studying these matters
assists in preventing a recurrence of the circumstances which led to a claim
for damages. In some instances, chief prosecutors take disciplinary steps
against prosecutors where relevant.
Adv N Mokhatla
136
Noteworthy
Mcebo Freedom Dlamimi 10/3/4/2-441/16
The application for a stay of the prosecution by
the #FeesMustFall detainee, Mcebo Freedom
Dlamimi, became moot, as he pleaded guilty
to a count of public violence and a count of
contravening Section 49(1)(a) of the Immigration
Act, Act 13 of 2002.
Minister of Police v Ruvern Muller
9/2/16-732/14
The SCA judgment circulated relates to the
case of Minister of Police v Ruvern Muller (29
November 2019), where the SCA somewhat
tempers the De Klerk Judgment 2019 ZACC 32
CC by deeming the exercise of proper judicial
discretion a sucient intervening act to
break the chain of causation, resulting in the
police not being liable for detention after
such discretion.
Noteworthy Cases
Cato Manor
The nodal point in KZN recommended a single
LAD resource to handle all the anticipated
claims emanating from the Cato Manor
racketeering prosecution. The head of LAD
initially allocated the anticipated Cato Manor
claims, including that of General Johan Booysen
10/3/4/1-217/15, to a team of senior advocates
in LAD. There were 30 accused who were
prosecuted over seven years. The dockets were
reviewed, and the nding was that no prospect
exists of a successful prosecution on a charge
of racketeering. The dockets had to be returned
to IPID, as there will have to be inquests.
Nokulunga Sonti and Another CCT178/18
Section 1(2) of the Intimidation Act, Act 72 of
1982 is declared invalid. The section relates to
the onus of proof for prosecution under section
1. The order for invalidity is retrospective. It
operates in trials or pending appeals where
the onus was based on the said section. The
Minister of Police was ordered to pay the cost.
137
Oce for Witness Protection
Witness Protection Act, 1998
The Oce for Witness Protection (OWP)
is established in terms of the Witness
Protection Act, 1998 (Act No. 112 of 1998),
and provides a support service to the CJS
and judicial proceedings. The act provides for
temporary protection, pending placement
under protection, as well as support and
related services, to vulnerable and intimidated
witnesses and their relatives, thereby enabling
such witnesses to testify without intimidation,
fear or danger. The OWP is established in the
DoJ&CD, with the DG as the accounting ocer
but is administered by the NPA. The OWP is an
independent covert oce and all its functions
are classied as secret to ensure the integrity of
the programme and the safety of witnesses.
Overview of the Performance
Delivery Environment
Operational Highlights
• For the past 18 years, no witnesses or
related persons were threatened, harmed
or killed while on the programme.
• For the past 17 years, the OWP obtained a
clean audit from the AG.
• The OWP continues to play a critical role
in providing eective and ecient services
to partners and stakeholders in CJS and in
judicial proceedings.
• The response time of the OWP is immediate,
and witnesses are removed from the
danger area within one hour.
• The unit continues to make a critical
contribution to serious cases emanating
from the ACTT, NPS, SAPS, SIU and PCLU.
• The OWP continues to achieve excellent
turnaround times due to its internationally
acclaimed 24/7 operating model.
Challenges
The OWP is struggling with a shortage of
sta and budget, as is the general position
throughout the NPA. Several of the regions
are functioning without a regional head. With
the establishment of the ID and the State
Capture Commission, it is envisaged that
many more whistleblowers and witnesses will
come forward, and the OWP will be severely
overextended.
OWP Strategic Objective
The OWP contributes to the NPA Strategic
Objective 3: Ensure vulnerable and intimidated
witnesses and related persons are successfully
protected. In this regard, no incidents
were recorded of witnesses being harmed,
threatened or killed while on the Witness
Protection Programme (WPP).
Percentage of Witnesses and Related
Persons who Walked o the Witness
Protection Programme
During the 2019/2020 period, seven witnesses
and two related persons, i.e. 1.2% of the 713
witnesses and related persons managed,
walked o the programme. Witnesses are not
kept under 24-hour guard; they are put in safe
places so that they may reintegrate into society.
Witnesses and related persons must voluntarily
agree to be admitted. Walk-o witnesses do
not inform the OWP that they are leaving or
have left. In 99.9% of the cases, witnesses who
walked o do testify. The OWP immediately
informs the investigating ocer and prosecutor.
There are a number of interrelated reasons for
‘walk-os’, namely:
• Strict conditions of the Protection
Agreement and the rules of WPP;
• Removal from danger area or historical
homes;
• Removal from family support, community
support and comfort zone;
• Trauma;
• Proling of witness (e.g. Section 204); and
• Family pressure – related persons on
programme, spouse, partner, and children.
In high-prole cases where there is a walk-o,
the OWP re-admits the witness should it be in
the best interest of the witness to do so.
138
Percentage of Witnesses and Related Persons Successfully Discharged
and Resettled
During the year under review, 201 witnesses and 160 related persons joined
the programme. A total of 713 witnesses and related persons were managed
in the WPP during the period under review. This includes witnesses and
related persons carried over from the 2018/19 nancial year. Guided by
the intention of the Witness Protection Act, and the values and ethos of
the Constitution, 76 witnesses and 61 related persons were successfully
discharged and resettled. However, 20 witnesses returned to the area
of danger.
At the end of the nancial year 96 witnesses and 58 related persons
signed-o the WPP before testimony, while 33 witnesses and 15 related
persons signed-o after they had testied. No formal grievances were laid.
35 criminal prosecutions were nalised, with 55 life sentences and a total of
1 033 years of direct imprisonment imposed in cases in which witnesses on
the WPP testied.
The Average Costs for the Protection of Witnesses
The average cost per month to protect a witness and related persons is
R143 190 per person. This amount excludes the salaries, overtime (24/7
operating model) and subsistence and travel expenditure of protectors
and support personnel, the use of ocial vehicles and operational
accommodation and special hired vehicles.
Activities DNDPP
Annual Report 2019/20
THE HUMAN RESOURCES
OF THE NPA
140
Annual Report 2019/20
The tables below outline the employment status in the NPA as at
31 March 2020.
Table 26: Breakdown of total employment in the NPA per oce
THE HUMAN RESOURCES
OF THE NPA
Human Resources
Vacancy
Rate
22%
20%
23%
25%
30%
Office / Division
DPP: Eastern Cape
DPP: Free State
DPP: KwaZulu-Natal
DPP: Limpopo
DPP: Mpumalanga
Filled
322
235
564
253
186
Vacant
90
57
170
86
81
Total
412
292
734
339
267
141
As indicated in the preceding table, the AFU has the highest vacancy rate at
46%. This is mainly due to the Investigator posts that were not lled, even
prior to the budget cuts, since these posts had to be redened in line with
the needs of the unit. Administrative support recorded the second highest
vacancy rate (41%). Administration funds were utilised for the lling of
prosecution vacancies.
Vacancy
Rate
33%
24%
20%
21%
22%
23%
41%
35%
46%
38%
33%
14%
27%
Office / Division
DPP: Mthatha
DPP: North Gauteng
DPP: North West
DPP: Northern Cape
DPP: South Gauteng
DPP: Western Cape
Administrative Support H/O
National Office
NDPP (NPS, LAD, PCLU)
AFU
SOCA
SCCU
OWP
Grand Total
Filled
139
335
162
382
427
494
283
66
114
156
154
141
4 214
Vacant
67
103
41
43
118
148
198
36
96
97
77
23
1 531
Total
206
438
203
485
545
642
481
102
210
253
231
164
5 755
142
Table 27: Breakdown of employment status per core responsibilities
Employment Equity Prole per Oce or Division
During the nancial year under review, the NPA employed 2 215 females and
2 009 males.
Table 28: Status of employment equity per oce
Human Resources
Vacancy
Rate
23%
25%
37%
14%
27%
Functional
Responsibilities
Prosecutions
Legal Administration Support
(AFU Investigators, CPO &
VAO, etc)
Administrative Support
Office of Witness Protection
(incl. administration)
Total
Total
3 861
209
1 521
164
5 755
Filled
2 975
156
952
141
4 224
(3 Contracts)
Vacant &
Unfunded
886
53
569
23
1 531
Office / Division
Office of the NDPP
DPP: North Gauteng
DPP: South Gauteng
A
12
1
6
36
12
73
34
13
78
C
1
0
2
4
0
4
3
0
7
I
2
0
1
0
0
5
0
0
25
W
3
2
10
4
0
65
0
0
57
Total
Female
18
3
19
44
12
147
37
13
167
A
8
0
6
14
0
121
17
0
154
C
1
0
1
0
1
2
0
1
1
I
0
0
0
0
0
1
0
0
3
W
2
0
8
2
0
38
0
0
34
Total
Male
11
0
15
16
1
162
17
1
192
Grand
Total
29
3
34
60
13
309
54
14
359
143
Office / Division
DPP: Eastern Cape Division
DPP: Mthatha
DPP: Mmabatho
DPP: Free State
A
32
6
56
21
4
32
15
7
41
11
9
47
C
5
0
25
1
0
1
1
0
1
7
0
3
I
2
0
4
1
0
1
0
0
0
0
0
2
W
4
1
41
0
0
2
2
0
5
1
0
44
Total
Female
43
7
126
23
4
36
18
7
47
19
9
96
A
14
1
88
7
2
68
10
1
68
7
2
67
C
3
0
15
0
0
0
0
0
0
3
0
3
I
0
0
5
0
0
0
0
0
0
0
0
0
W
2
0
28
0
0
0
1
0
10
2
0
27
Total
Male
19
1
136
7
2
67
11
1
78
12
2
97
Grand
Total
62
8
262
30
6
103
29
8
125
31
11
193
DPP: Mpumalanga
DPP: Limpopo
DPP: KwaZulu-Natal
10
4
43
21
11
70
30
17
135
1
0
3
0
0
2
9
0
4
0
0
2
0
0
0
11
0
68
2
0
28
0
0
5
7
2
24
13
4
76
21
11
77
57
19
231
10
1
65
16
1
118
18
2
168
0
0
1
0
0
0
0
0
7
0
0
1
0
0
0
3
0
35
0
0
15
0
0
9
0
0
24
10
1
82
16
1
127
21
2
234
23
5
158
37
12
204
78
21
465
144
Human Resources
Office / Division
DPP: Northern Cape
DPP: Western Cape
Asset Forfeiture Unit
Specialised Commercial
Crimes Unit
Sexual Offences and
Community Affairs
Office of Witness
Protection
Administrative Support
A
12
2
16
14
11
30
9
4
6
18
0
22
63
0
17
46
0
0
133
0
0
C
6
2
6
25
7
119
5
2
1
2
0
4
3
3
3
2
0
0
10
0
0
I
0
0
0
1
0
14
0
2
6
0
0
9
1
0
3
5
0
0
3
0
0
W
2
0
11
2
0
68
5
5
5
1
0
17
1
0
14
13
0
0
20
0
0
Total
Female
20
4
33
42
18
231
19
13
18
21
0
52
68
3
37
66
0
0
166
0
0
A
8
1
45
6
2
52
7
8
18
6
0
45
24
0
19
35
0
0
91
0
0
C
0
0
15
5
0
79
2
3
3
2
0
6
0
0
2
8
0
0
12
0
0
I
0
0
0
1
0
4
1
1
5
0
0
2
0
0
0
3
0
0
4
0
0
W
0
0
10
1
0
53
0
6
10
0
0
20
0
0
3
29
0
0
10
0
0
Total
Male
8
1
70
13
2
188
10
18
36
8
0
73
24
0
24
75
0
0
117
0
0
Total:
Grand
Total
28
5
103
55
20
419
29
31
54
29
0
125
92
3
61
141
0
0
283
0
0
4 224
Annual Report 2019/20
FINANCIAL IMPLICATIONS
REGARDING THE
ADMINISTRATION AND
OPERATIONS OF THE NPA
146
Annual Report 2019/20
The NPA received additional funding of R102.4
million through the AENE process to establish
the ID, capacitate the AFU and the SCCU, and to
increase safety, security and witness protection
services with respect to the prosecution of
corruption matters for the NPA.
The AENE process ensured an additional budget
allocation of R1.248 billion over the Medium-
Term Expenditure Framework (MTEF) period
for the continuation of the aforementioned
initiatives, as well as for the lling of 158 critical
prosecutorial posts, and the re-establishment
of the Aspirant Prosecutor Programme.
The additional funding will also assist with
specialised protection to prosecutors dealing
with high-risk cases, and the provision
of witness protection to vulnerable and
intimidated witnesses and their related persons
in judicial proceedings.
The ID received R377.3 million over the MTEF
period (R115.2 million for the 2020/21 nancial
year; R126.6 million for the 2021/22 nancial
year, and R135.5 million for the 2022/23
nancial year) which forms part of the total
budget allocation of the NPS Sub-Programme.
The NPA was unable to ll any vacancies, and
therefore did not spend the additional funding
in respect of the Compensation of Employees
section of the budget, which resulted in an
underspending of R62.6 million at the end of
the year under review. As a result of the NPA
experiencing budget challenges in terms of the
Goods and Services section of the budget, the
DoJ&CD viremented R21.5 million to the NPA to
defray the overspending.
The DoJ&CD allocated an additional R90 million
to the NPA for the replacement of outdated
Financial
FINANCIAL IMPLICATIONS
REGARDING THE
ADMINISTRATION AND
OPERATIONS OF THE NPA
147
laptops for prosecutors during the year under review. The outbreak of
COVID-19 prohibited the delivery of these laptops before the end of the
nancial year, and resulted in an underspending of R62.8 million with respect
to the payment of capital assets. The NPA is not a revenue-generating
department and does not charge taris for services rendered, nor does the
NPA provide free services that would yield revenue if a tari was charged.
Budget allocation, as it relates to the core business of prosecution and
support services, is divided into the following four sub-programmes:
Table 29: Expenditure report
Table 30: Final Budget allocation per economic classication
Sub-programme name
National Prosecutions Service
Asset Forfeiture Unit
Office for Witness Protection
Support Services
Total
Final
appropriation
R’000
3 221 113
153 146
192 770
567 621
4 134 650
Actual
expenditure
R’000
3 215 781
126 861
192 770
473 785
4 009 197
(Over)/under
expenditure
R’000
5 332
26 285
-
93 836
125 453
Final
appropriation
R’000
3 058 753
127 794
193 539
419 590
3 799 676
Actual
expenditure
R’000
3 058 753
127 794
193 539
419 309
3 799 395
(Over)/under
expenditure
R’000
-
-
-
281
281
2019/20 2018/19
Sub-programme name
Compensation of Employees
Goods & Services
Payment of Capital Assets
Other
Total
National
Prosecutions
Service
3 043 072
156 763
6 035
15 243
3 221 113
Asset
Forfeiture
Unit
143 596
9 003
31
516
153 146
Office for
Witness
Protection
104 302
86 620
330
1 518
192 770
Support
Services
213 622
235 893
104 187
13 919
567 621
148
Expenditure on Compensation of Employees was at 98% (R3.442 billion)
with an underspending of R62.6 million. The underspending was due to the
recruitment process not being nalised within the year under review. The
expenditure on Goods and Services before the nal virement was at 104.6%
(R488 million), which resulted in an overspending of R21.5 million due to the
payment of contractual obligations.
The primary focus of the NPA is public prosecutions, and therefore 80.2%
of the total allocation was spent on the NPS. Support services provides
centralised services, such as security, eet & facilities, IT services and
accounts, on which 11.8% of the total budget allocation was spent. The NPA’s
expenditure increased by 5.5% from R3.799 billion in the 2018/19 nancial
year to R4.009 billion in year under review.
Financial
Annual Report 2019/20
TRAINING PROGRAMMES
FOR PROSECUTORS
150
Annual Report 2019/20
The skills development programme was scaled down due to budget
constraints, with only a limited number of training interventions conducted.
The table below lists the training programmes with the number of
beneciaries that attended each training.
Table 31: Breakdown of training programmes by number of beneciaries
TRAINING PROGRAMMES
FOR PROSECUTORS
Training Programmes
Type of Training
Housing Consumers Protection
Measured Act 95 of 1998
Identity Parade
Joint Intervention between NPA
Integrity Management Unit and
Security Services Unit
Road Accident Fund South African
Police Service Cases
Type of Training
Advocacy and Ethics Management
Annual Shooting Exercises
Aspirant Prosecutors Programme
Capacity Building Program for Training
Committee Members
Beneficiaries
30
70
18
(NPA members)
61
Beneficiaries
22
16
22
13
151
Type of Training
Minimum Sentence Act
(Correctional Supervision)
Motions Proceedings in Court
Organisation Development
Pointing Outs and Confessions
Possession of Dagga (Directives and
Media Queries)
Proactive Practical Retirement
Prosecution of Counterfeit Goods
Prosecution of Drug Related Cases
Prosecution of Initiation Related
Cases
Section 18 (Confiscation Order)
Court Rolls Statistics
Stress Management and
Resilience
Maintenance
Moderator Skills Programme
Occupation Directed: Education,
Training and Development Practitioners
Qualification
Occupation Health and Safety Capacity
Immigration and Refugee
Type of Training
Child Justice
Compulsory Induction Programme
(e-learning)
Child Pornography and Online
Sexual Exploitation
Code of Conduct for Prosecutors
Confessions, Admissions and
Pointing Out
Corruption and Fraud
Crypto Asset Training
Cybercrime
Cybercrime and Digital Forensic
Seminar
Domestic Violence
Electronic Case Management
System
Ethical Leadership and Public
Accountability
Executive Leadership and Major
Case Management
Expert Witnesses: DNA Evidence
Financial Investigations Pertaining
to Violent Extremism
First Aid Level 1-2
High Court Bridging Course
Beneficiaries
26
405
27
9
19
27
8
14
4
50
134
26
1
20
1
52
15
Beneficiaries
11
17
8
3
22
12
25
10
12
108
7
13
43
1
20
16
20
152
Training Programmes
Type of Training
Psychiatry and the Law
Public Administration Qualification
(Learnership) NQF Level 6
Sexual Offences
Social Media Evidence
Stock Theft
Strategic Planning, Integrated with
Budgeting and Financial Management
Systems Approach to Decision-making
Child as a Witness
Trafficking in Persons
Trio Crimes and Related Matters
Violent Protest and Industrial Actions
Type of Training
Human Trafficking
Integrity Management Awareness
Sessions
Assets Forfeiture Fraud
Appeals: Serious and Complex Crime
Cellular Phone Records
Concepts of Counterfeit/Illicit Goods
Commercial Crime Training
Digital Cybercrime
Digest Discussions
DNA in Prosecution Matters
Fingerprint Evidence
Total Number of Programmes
Total Number of Beneficiaries
Beneficiaries
23
61
41
22
23
19
109
21
32
7
7
64
2 100
Beneficiaries
16
38
29
52
22
47
16
11
18
26
22
Annual Report 2019/20
GLOSSARY AND
TECHNICAL INDICATORS
154
Glossary
Glossary of Terms
Admission of Guilt Payments (AOG)
Payments in terms of a summons (J175) issued where the accused paid the
admission of guilt in terms of section 57 of the CPA, Act 51 of 1977 without
appearing in court on a criminal court case. These gures are totalled on the
last court date of each calendar month with due regard to section 57(7) of the
CPA, Act 51 of 1977.
Alternative Dispute Resolution Methods (ADRM)
Alternative dispute resolution encompasses several methods for the
resolution of disputes between the parties. Within the NPA this includes
diversion and informal mediation:
Diversion
Diversion is one of the alternative ways of delivering justice. It is the process of
electing, in suitable and deserving criminal court cases, a manner of disposing
of a criminal court case other than through normal court proceedings. It
usually includes the withdrawal of the charges against the accused person,
after the accused person has participated in a particular certied programme.
After the oender has completed the diversion programme, the social
worker submits a report to the prosecutor. If it is clear that the oender has
cooperated and beneted from the programme, the matter is withdrawn
and recorded as a diverted case on the daily statistics. These gures are
totalled on the last court date of each calendar month. Separate statistics are
recorded for children (persons younger than 18 years) and adult diversions.
Diversions in terms of the Child Justice Act, 75 of 2008 are also included, and
are totalled on the last court date of each calendar month.
Informal mediation
Informal mediation is the process by which a prosecutor duly authorised
thereto and within the ambit of the restorative justice guidelines, while acting
as a mediator between the victim and oender, resolves the conict which
resulted in the criminal court case or addresses the harm caused in a manner
that does not require formal justice, but seeks to deliver justice. The matter is
subsequently withdrawn.
Appeals nalised
A case nalised through a judgement by the Court of Appeal inclusive of Rule
53 matters, motion applications, ex parte applications, petitions, bail appeals
or withdrawal of Appeal by the appellant or any other reason that entitles the
le to be closed.
Applications for leave to appeal
The number of cases in which the court considered an application for leave to
appeal against a judgment, or order made by the trial court and heard during
the reporting period regardless of the outcome of the application.
155
CARA
A special fund used to ght crime or assist victims of crime.
Case
In the NPA, a case includes criminal court cases and civil court cases. These
concepts are dened as:
• Criminal court case is a matter that has been enrolled in a criminal court
regardless of the forum, including trac cases and non-docket cases
where accused appear in a court. Any civil applications, enquiries and
ex
parte
applications are excluded. A criminal court case may have multiple
counts and/or accused, and can involve multiple police dockets. A single
docket may result in multiple court cases.
• Civil court case is a civil matter that has been enrolled in a court of South
Africa regardless of the forum. This includes
ex parte
applications or
applications on notice. It includes motion and trial proceedings. Examples
are restraint, preservation, forfeiture and conscation applications. It also
includes interlocutory applications relating to living and legal expenses
and curators in civil matters.
Commercial crime
Commercial crimes may involve fraud [cheque fraud, credit card fraud,
mortgage fraud, medical fraud, corporate fraud, securities fraud (including
insider trading), bank fraud, payment (point of sale) fraud, health care fraud],
theft, scams or condence tricks, tax evasion, bribery, embezzlement, identity
theft, money laundering, and forgery and counterfeiting, including the
production of counterfeit money and consumer goods.
Contact crime
Contact crimes are dened as crimes against a person such as murder,
attempted murder, rape (including attempted rape), indecent assault, assault
with the intent to inict grievous bodily harm, common assault, robbery with
aggravating circumstances and common robbery.
Complex commercial crime cases
Complex commercial crime cases are those commercial crime cases which
require specialised prosecution due to their intricate nature, or high impact
on the community.
Complex tax prosecutions
Those cases involving tax charges which require specialised prosecution due
to their intricate nature, or have a high impact on the community, particularly
but not exclusively, those matters linked to the commission of organised
crime.
156
Glossary
Conversion of sentence
Cases in which a court considers an application for an imposed sentence
to be converted into a dierent sentence, and irrespective of whether the
sentence is converted or not, the case is remitted to a trial court by order of
an appeal or review court.
Conviction
A conviction is a nding of guilty, and includes payment made in terms of
section 57A of the CPA, 51 of 1977.
Copper theft prosecutions
Criminal court cases that arise from any crime related to any theft of copper in
whatever form (cabling, electrical wiring, plates, etc.), and includes possession
or receiving of stolen copper as well as any other competent verdicts on theft
and essential infrastructure related prosecutions in terms of the Criminal
Matters Amendment Act, 18 of 2015.
Corruption
Corruption should be understood as the misuse of public and private oce or
position or resources with a corrupt intent, and may include acts of bribery,
nepotism, extortion, fraud and theft, and any oence committed in terms of
the Prevention and Combating of Corrupt Activities Act, 12 of 2004, either as
the main charge or as the alternative charge.
Court preparation ocer
Any ocer appointed by the NPA to familiarise a witness with the court
environment, legal processes, and legal terms at the appropriate level
to address their fears and concerns regarding testimony in court, thus
contributing towards successful prosecutions and customer satisfaction.
Criminal matters nalised
Criminal matters nalised include decision dockets which resulted in a
decision not to prosecute (
Nolle Prosequi)
, cases nalised through verdict,
cases nalised through ADRM (informal mediation, diversions etc.), matters
where admission of guilt was determined by the prosecutor and it was paid
prior to enrolment, appeals nalised in the High courts, representations
nalised as well as criminal/court matters nalised.
Criminal/court matters nalised
Criminal/court matters nalised include the putting of suspended sentences
into operation, the conversions of maintenance trials to an enquiry,
applications for leave to appeal, committal to a mental institution, conversion
of sentences, formal inquests, preliminary inquiries in terms of the Child
Justice Act, 75 of 2008 and formal bail applications.
Cyber crime
Any crime that is facilitated by the use of information technology.
157
Decision dockets
Decision dockets include all criminal matters presented to the NPA to consider
the institution of a prosecution. These exclude dockets in cases enrolled.
District court
A court created by the Minister of Justice for a district in terms of Section 2 of
the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944).
Diversions in terms of the Child Justice Act
• Diversion by prosecutor before preliminary inquiry in terms of
Section 41 of the Child Justice Act, 75 of 2008
Matters diverted by a prosecutor in which a child was alleged to have
committed an oence referred to in Schedule 1 and may, for this purpose,
select any Level 1 diversion option set out in section 53(3), or any
combination thereof.
• Preliminary inquiry diversions
Matters diverted in terms of section 52(1) or 52(2) of the Child Justice Act,
75 of 2008.
• Schedule 3 diversions
Matters diverted in terms of section 52(3) of the Child Justice Act, 75
of 2008, where the Director of Public Prosecutions having jurisdiction
indicated, in the case of an oence referred to in Schedule 3, in writing,
that the matter be diverted.
Essential infrastructure
Any installation, structure, facility or system, whether publicly or privately
owned, the loss or damage of, or the tampering with, which may interfere
with the provision or distribution of a basic service to the public, as dened in
Section 1 of the Criminal Matters Amendment Act, 18 of 2015.
Environmental crime cases
Any criminal court cases relating to the importing, exporting, hunting,
catching, capturing, killing, gathering, collecting, translocation, selling or
trading of any wild animals, birds, plant, sh and marine life and insects, and
the pollution of water, air, soil, emission of poisonous gasses and dumping of
waste, inclusive of oences relating to environmental permits and illicit mining.
Femicide
Femicide is the killing of a female person (or perceived female person on the
basis of gender identity) due to the specic gender of the person, whether
committed within the domestic relationship, interpersonal relationship or by
any other person.
Femicide: murder intimate partner femicide
Murder intimate partner femicide is femicide committed by a current or
former husband (divorced or separated), boyfriend (dating or cohabitating),
ex-boyfriend, or rejected would-be lover.
158
Glossary
Formal bail applications
The number of cases in which the court considered evidence, whether viva
voce or written statements, to consider the release of accused on bail during
the reporting period, whether bail is granted or not, and includes inquiries in
terms of section 49G of the Correctional Services Act, 111 of 1998.
Formal inquests
Inquiries into the causes of and/or circumstances surrounding the death of
a person in which the court considered viva voce evidence of witnesses and
made a nding.
Government ocial
Includes all persons employed by a state institution, as well as persons
who were employed by a state institution at the time of commission of the
oence. A state institution includes all three tiers of government departments
(national, provincial and local), public entities listed in Schedules 2 and 3 of the
Public Management Finance Act, 1 of 1999 (PFMA), constitutional institutions
listed in Schedule 1 of the PFMA, parliament and the provincial legislatures
subject to section 3(2) of the PFMA.
High court
High court means the High Court of South Africa and its respective divisions
referred to in section 6(1) of the Superior Courts Act, 2013 (Act No. 10
of 2013).
Illicit mining
The prospecting, mining, removal, possession, rening, dealing, importing and
exporting of unwrought precious metals and gold, uncut diamonds without a
licence or permit, surface and underground trespassing on ownerless, active
and derelict mines.
Money laundering
Money laundering refers to any crimes committed in terms of Section 4 of the
Prevention of Organised Crime Act, 121 of 1998 (POCA).
Murder prosecutions
Cases where the accused person/persons are prosecuted on a charge of
murder. Murder is dened as the intentional, unlawful killing of another
human being. Competent verdicts in terms of Section 258 of the CPA, 51 of
1977 are included as guilty verdicts.
Operational Thuthuzela Care Centre (TCC)
A TCC is regarded as operational when all of the following criteria are met:
• A victim friendly designated space, with waiting area, counselling room,
examination room, ablution facilities and statement-taking room exists. A
TCC is located on the premises of the Department of Health (DOH), either
in the hospital building or in a park home facility.
• One of the three posts (site coordinator, victim assistance ocer and
159
a case manager) for which the NPA is responsible are lled either on
contract or permanent appointment.
• All services are rendered including police, health, psychological and
prosecutorial, whether in house or on call. This includes a referral system
for 24/7 care and management.
• Protocols between the NPA, SAPS and DOH are in place.
• Training for relevant stakeholders, including induction for SOCA-sta at
the TCC-site, has been conducted.
• Essential equipment and furniture as per SOCA TCC list have been
provided.
Organised crime
Crime or crimes committed by a person, group of persons or syndicate acting
in an organised fashion which could result in substantial nancial gain for the
person, group or persons or syndicate involved. Specialised prosecutors deal
with these cases.
Preliminary inquiry
The number of preliminary inquiries in terms of Section 43 of the Child Justice
Act, 75 of 2008, where an informal pre-trial inquiry is held.
Priority corruption case
A priority corruption case is a case identied by each DPP for fast-tracking, as
well as cases identied by the Anti-Corruption Task Team (ACTT) to be dealt
with in accordance with the Terms of Reference of the ACTT.
Prosecuting authority
The Prosecuting Authority is the National Prosecuting Authority, which
consists of the National Director; Deputy National Directors of Public
Prosecutions; Directors of Public Prosecutions, Deputy Directors of Public
Prosecutions, prosecutors and support sta.
Review concluded
In the TRC matters, a review is concluded by a decision to either institute
criminal prosecution, decline to prosecute or request the opening or re-
opening of an inquest.
Rhino prosecutions
Rhino cases relate to the killing or attempted killing or injuring of a rhino
in order to dehorn it or the possession, transportation, dealing in (trading)
and importing or exporting of rhino horn without a legitimate permit. It also
includes all incidents where accused are found to be trespassing where
rhinos are being kept whilst being in possession of any instrument capable of
removing a horn, under circumstances where the only reasonable inference to
be drawn is the death or injury of the rhino in order to obtain its horn and it
forms part of environmental crime.
160
Glossary
Sexual oences
Any oences committed in terms of the Criminal Law (Sexual Oences and
Related Matters) Amendment Act, 32 of 2007, and may include common law
rape or indecent assault.
Specialised prosecutor
A prosecutor with a particular skill set and experience who has been assigned
to deal primarily with the prosecution of certain crime types.
Suspended sentence
The number of cases where an application was made to put a previously
suspended sentence into operation, irrespective of whether the suspended
sentence was put into operation or not.
TCC
Thuthuzela (“comfort” in Xhosa) care centres (TCC) are 24 hour one-stop
service centres where victims have access to services including police,
counselling, doctors, court preparation and a prosecutor for victims.
These centres are aimed at turning victims into survivors, and providing
comprehensive therapy. These multi-disciplinary centres have been
established to streamline the process of reporting, care-giving, investigation
of cases and the subsequent prosecution of the case. The main objectives for
these centres are to eliminate secondary victimisation, reduce case cycle time,
and to increase convictions.
Terrorist
The term terrorist refers to any natural person who: (i) commits, or attempts
to commit, terrorist acts by any means, directly or indirectly, unlawfully and
wilfully; (ii) participates as an accomplice in terrorist acts; (iii) organises or
directs others to commit terrorist acts; or (iv) contributes to the commission
of terrorist acts by a group of persons acting with a common purpose, where
the contribution is made intentionally and with the aim of furthering the
terrorist act, or with the knowledge of the intention of the group to commit a
terrorist act.
Terrorist act
A terrorist act includes:
a. an act which constitutes an oence within the scope of, and as dened
in one of the following treaties: (i) Convention for the Suppression of
Unlawful Seizure of Aircraft (1970); (ii) Convention for the Suppression of
Unlawful Acts against the Safety of Civil Aviation (1971); (iii) Convention
on the Prevention and Punishment of Crimes against Internationally
Protected Persons, including Diplomatic Agents (1973); (iv) International
Convention against the Taking of Hostages (1979); (v) Convention on
the Physical Protection of Nuclear Material (1980); (vi) Protocol for the
Suppression of Unlawful Acts of Violence at Airports Serving International
Civil Aviation, supplementary to the Convention for the Suppression of
Unlawful Acts against the Safety of Civil Aviation (1988); (vii) Convention
161
for the Suppression of Unlawful Acts against the Safety of Maritime
Navigation (2005); (viii) Protocol for the Suppression of Unlawful Acts
against the Safety of Fixed Platforms located on the Continental Shelf
(2005); (ix) International Convention for the Suppression of Terrorist
Bombings (1997); and (x) International Convention for the Suppression of
the Financing of Terrorism (1999).
b. any other act intended to cause death or serious bodily injury to a civilian,
or to any other person not taking an active part in the hostilities in a
situation of armed conict, when the purpose of such act, by its nature or
context, is to intimidate a population, or to compel a Government or an
international organisation to do or to abstain from doing any act.
Terrorist nancing
Terrorist nancing is the nancing of terrorist acts, and of terrorists and
terrorist organisations.
TRC cases
Cases to be considered for the prosecution of apartheid crimes, where
alleged perpetrators were denied amnesty by the Truth and Reconciliation
Commission; including deaths in detention of detained persons due to
political motives, and interference in the NPA being able to do its work with
regard to prosecuting certain individuals in these cases.
Trio crimes
Trio crimes refer to robbery at residential premises, robbery at business
premises and carjacking.
Verdict
The judgment given by a court after the conclusion of the court proceedings.
In criminal cases, it can only follow after an accused person has pleaded to
the charges, and is a verdict either of guilty or not guilty.
Victim impact statement
A Victim Impact Statement (VIS) is a written voluntary statement by a victim
and/or their family (caregiver) member, or someone authorised by the victim
with regard to the emotional, physical and nancial eect the crime has had
on the victim’s life. The VIS is admitted by prosecution as evidence and utilised
at sentencing.
Violent protests and industrial actions
Any crime stemming from or related to violent public protests or industrial
actions, irrespective of the legitimacy of such protests or actions.
162
Glossary
Victim impact statements used in court
The utilisation of a VIS in any court proceedings including handing in of the VIS
via the victim, tendering oral evidence during sentencing on the impact of the
crime, and the prosecutor addressing the court for sentencing purposes from
the VIS as base document, as well as providing the VIS to court.
Witness
Any person who is or may be required to give evidence, or who has given
evidence in any judicial proceedings.
Witnesses assisted by CPOs
Witnesses prepared for court through the use of an age appropriate court
preparation programme (Ke Bona Lesedi) by a Court Preparation Ocer
(CPO), the Victims Charter, Victim Impact Statements, and education and
awareness programmes within the reporting period.
163
Technical indicators and descriptions
Indicator Title
Short denition
Method of calculation
Indicator Title
Short denition
Method of calculation
Indicator Title
Short denition
Method of calculation
Indicator Title
Short denition
Method of calculation
Clearance ratio on decision dockets received
Percentage of decision case dockets received
dealt with in the reporting period
Number of decision case dockets dealt during
the reporting period
Conviction rate
The percentage of cases nalised with a
verdict in which a guilty verdict was obtained
The total number of cases nalised with a
guilty verdict (including Sec 57A) divided by
the total number of cases nalised with a
verdict reected as a percentage. Convictions
are recorded at the date of sentencing after
a guilty verdict, or a verdict of not guilty. One
case may result in conviction of more than
one focus area
Number of persons convicted of private
sector corruption
Conviction of private sector persons who
committed oences relating to corruption
Simple count of persons/companies convicted
of private sector corruption
Number of completed forfeiture cases
Total number of forfeiture orders completed
Simple count of forfeiture cases completed
164
Technical Indicators
Indicator Title
Short denition
Method of calculation
Indicator Title
Short denition
Method of calculation
Number of criminal matters nalised
Number of criminal matters nalised in the
reporting period. This includes decision
dockets which resulted in a decision not to
prosecute (Nolle Prosequi), matters where
admission of guilt was determined by the
prosecutor and it was paid (did not result in
a court case); cases nalised through ADR
(informal mediation, diversions, etc.), cases
nalised through verdict, and appeals nalised
in the High courts
A decision of Nolle Prosequi is counted within
the period that the decision was made (as
recorded in the register). An admission of
guilt paid is included after conrmation of
the conviction has been conrmed by a
magistrate. A criminal court case is measured
as nalised on the date on which the verdict
of not guilty is given (including stopping of
prosecution in terms of section 6(b) of Act
51 of 1977) or sentence is imposed in the
case of a guilty verdict, and includes cases
dealt with in terms of section 57A of the CPA.
Should there be multiple accused, the case
is only counted upon conclusion of the case
against all accused. An appeal is counted after
judgement in the appeal has been handed
down
Value of completed forfeiture cases
Estimated value of the assets of which the
persons subject to the order is likely to
be deprived as a result of conscation or
forfeiture orders obtained
The total estimated net market value of all
property of which persons are to be deprived
as a result of conscation or forfeiture orders
obtained in the reporting period. The value
is estimated and counted on the date when
the order is obtained. It includes the value
of property returned by a person by an
agreement reached as a result of litigation in
terms of POCA
165
Indicator Title
Short denition
Method of calculation
Indicator Title
Short denition
Method of calculation
Indicator Title
Short denition
Method of calculation
Number of witnesses and related persons
harmed, threatened or killed whilst on the
witness protection programme
Witnesses and related persons harmed,
threatened or killed whilst on the witness
protection programme
The total number of witnesses and related
persons who were harmed, threatened or
killed during the reporting period by a person
or persons from whom they were protected
either directly or through an agent, while on
the NPA witness protection programme
Number of persons convicted of corruption
or oences related to corruption where the
amount involved per case is more than
R5 million
Conviction of persons for the oence of
corruption and/or oences relating to
corruption where the amount involved
exceeds R5 million per case. The total amount
involved in the case is measured
Simple counts of persons convicted of
corruption in the reporting period, where the
amount involved exceeds R5 million per case
Number of government ocials convicted for
corruption or oences related to corruption
Conviction of government ocials who
committed oences relating to corruption
The total number of government ocials
convicted of corruption in the reporting
period
166
Technical Indicators
Indicator Title
Short denition
Method of calculation
Indicator Title
Short denition
Method of calculation
Indicator Title
Short denition
Method of calculation
Indicator Title
Short denition
Method of calculation
Number of victims assisted at TCC sites
The number of victims who received
integrated services at the current 55 TCC sites
Manual calculations of the number of victims
who accessed TCC services at the 55 sites on
a monthly basis
Number of freezing orders obtained
Total number of freezing orders obtained in
the reporting period
Simple count of freezing orders obtained
Value of freezing orders
Value of assets frozen in freezing orders
obtained in the reporting period
The total estimated net market value of assets
frozen by orders obtained in the reporting
period. The value is estimated and counted at
the time when the initial order is obtained
Value of freezing orders obtained relating
to corruption where the amount involved is
more than R5 million
Value of the freezing orders relating to the
oence of corruption and/or oences related
to corruption where the amount involved
exceeds R5 million per case
The total estimated net market value of
assets frozen in the reporting period, relating
to cases involving the oence of corruption
and/or oences relating to corruption where
the amount involved exceeds R5 million. The
value is estimated and counted at the time
when the initial order is obtained
167
Indicator Title
Short denition
Method of calculation
Indicator Title
Short denition
Method of calculation
Indicator title
Short denition
Method of calculation
Value of recoveries in terms of POCA
The amount of recoveries including payments
paid to CARA or victims of crime in terms of
court orders in terms of the Prevention of
Organised Crime Act (POCA)
The total amount paid or the net market value
of property transferred to the victims of crime
or CARA during the reporting period resulting
from orders or agreements obtained. This
refers to orders obtained because of litigation
in terms of POCA. It is measured only when
the proof of payment is received
Success rate of litigated cases
The percentage of cases litigated by the AFU
in which it was ultimately successful
The total number of cases nally won divided
by all cases, which were nally won or lost.
Cases are nally won or lost when a nal order
is obtained in favour of or against the NPA, i.e.
after all appeal or other legal processes have
been nalised. It is counted at the date when
the case became nally won or lost. Cases
nally lost include all cases abandoned after
an order was obtained. If a lost case is redone
it is not nally lost and the new order will not
be counted again
Value of recoveries relating to corruption
where the amount involved is more than
R5 million (proceeds of crime and
government losses)
The amount of recoveries in cases relating
to corruption where the amount involved
exceeds R5 million per case
The total amount paid or the net market
value of property transferred to the victims
of crime or CARA during the reporting period
168
Technical Indicators
Indicator title
Short denition
Method of calculation
Indicator Title
Short denition
Method of calculation
resulting from orders or agreements obtained
in respect of corruption or related oences
where the amount benetted is more than
R5m per case. This refers to orders obtained
because of litigation in terms of POCA. It is
measured only when the proof of payment
is received
Value of recoveries for government ocials
convicted of corruption and other related
oences (proceeds of crime and
government losses)
The amount of AFU recoveries in cases
from all government ocials in oence
of corruption and/or oences related
to corruption
The total amount paid or the net market
value of property transferred to the victims
of crime or CARA during the reporting period
resulting from orders or agreements obtained
in respect of corruption or related oences
by government ocials. This refers to orders
obtained because of litigation in terms of
POCA. It is measured only when the proof of
payment is received
Percentage of witnesses and related persons
who walked o the witness protection
programme
Witnesses and related persons who walked
o the programme without prior notication
The number of witnesses and related
persons who walk o the programme in the
reporting period divided by the total number
of witnesses and related persons on the
programme
169
Indicator Title
Short denition
Method of calculation
Percentage of witnesses and related persons
successfully discharged and resettled
(Aftercare)
Comprehensive support or aftercare provided
to witnesses and related persons leaving the
witness protection programme
The total number of witnesses and related
persons discharged and resettled divided by
the total number of witnesses and related
persons on witness protection programme,
calculated as percentage
170
1. Institute for Security Studies & Corruption Watch.
(2019). State Capture and the political manipulation
of criminal justice agencies: A joint submission to
the Judicial Commission of Inquiry into Allegations
of State Capture. Accessed from: https://issafrica.
s3.amazonaws.com/site/uploads/2019-06-20-other-
zondo-commission-submission.pdf. Dated
15 September 2019.
2. The Mokgoro Enquiry, in terms of section Section 12(6)
of the National Prosecuting Authority Act 32 of 1998,
into the tness of NPA sta to hold oce - p.137.
3. Enquiry in terms of Section 12(6) of the National
Prosecuting Authority Act 32 of 1998. Accessed
from: https://www.saii.org/images/section12(6)
enquiryreport.pdf. Dated 1 April 2020.
4. Institute for Security Studies & Corruption Watch.
(2019). State Capture and the political manipulation
of criminal justice agencies: A joint submission to
the Judicial Commission of Inquiry into Allegations
of State Capture. Accessed from: https://issafrica.
s3.amazonaws.com/site/uploads/2019-06-20-
other-zondo-commission-submission.pdf. Dated 15
September 2019.
5. National Prosecuting Authority. (2019). Trend
Analysis for Business Improvement. Strategic
Planning Conference, 27 – 29 May 2019; PowerPoint
Presentation by Lieutenant General (Dr/Adv) SG
Lebeya, National Head of Directorate for Priority
Crime Investigation, presented at the NPA Strategic
Planning Conference, 27 – 29 May 2019. PowerPoint
Presentation by Lieutenant General TC Mosikili,
Divisional Commissioner: Detective Service, presented
at the NPA Strategic Planning Conference,
27 – 29 May 2019.
6. Ibid.
7. NPA performance trend analysis was conducted by
a joint team of the NPA Strategy Management Oce
and the National Prosecutions Services Operations
Management Oce.
8. Refers to a programme where law graduates are
recruited and trained for the purpose of creating a
pool from which the NPA could appoint permanent
entry-level prosecutors – a lifeblood supply of fresh
talent from universities into the entry levels of the
organisation. National Prosecuting Authority. (2019).
National Director of Public Prosecutions Annual
Report (2018/19) in terms of the National Prosecuting
Authority Act, 1998 (Act No. 32 of 1998).
9. National Prosecuting Authority. (2019). National
Director of Public Prosecutions Annual Report
(2018/19) in terms of the National Prosecuting
Authority Act, 1998 (Act No. 32 of 1998).
10. See page 21, on the Strategies and Initiatives: Focus
Areas, paragraph 3.2.
11. Lancaster, L., Roberts, M. & Mbanyele, S. (2019). NPA
Sta survey Report.
12. Griggs, R.A. (2007). An evaluation of nine pilot sites
to propose a South African model of community
prosecution. Unpublished document.
End Notes
Annual Report 2019/20
NOTES
172
Notes
173
174
Notes
Victoria & Griths Mxenge Building,
123 Westlake Avenue, Weavind Park
Silverton, Pretoria, 0001
Private Bag X752, Pretoria, 0001
Head Oce: 012 845 6000
Email: communication@npa.gov.za
www.npa.gov.za
RP231/2020
ISBN: 978-0-621-48517-2
