September 24, 2018

Shaun the Sheep bleating in defence of the NPA

From reports of the Annual Performance Plan of the National Prosecuting Authority (NPA) one could easily come away with the impression that the only real problem currently facing the Director of Public Prosecutions (NDPP), Shaun Abrahams, was a funding shortage.

That, and perhaps a staff shortage especially among prosecutors, which would not be unrelated to the funding shortage.

This Committee meeting was an opportunity for Abrahams to deliver the NPA’s Annual Performance Plan (APP) and budget for 2018/19. Months of High Court rulings setting aside his appointment, and allegations of corruption, fraud, extortion or any other crime that the beleaguered NDPP may currently be facing were not supposed to be on the agenda.

There was some reference to annual targets being “reformulated” in line with a decision to make strategic objectives more outcomes-based. This wasn’t spelled out in much detail, other than to suggest that there needs to be more emphasis on successful prosecutions, especially of those that impact on society, such as murder and money laundering.

NPA blames it on budget cuts.

This was an opportunity for Abrahams to show off his stuff. He reported that the Asset Forfeiture Unit had been particularly successful and had obtained freezing orders on over R4 billion of assets in 2017/18. The unit was working on 17 cases, he reported, and expected to collect billions of rand in South Africa and across the world in this financial year as well as the two outer years of the budget cycle. What he did not mention was if this was money from state capture.

Other success stories included in the APP was a 98.5% conviction rate in cybercrimes. The NPA had focused on curbing cybercrime where information and communication was used to perpetuate crime. Abrahams also reported a focus on crimes committed by religious leaders and the murders of political leaders.

Abrahams went on to list gender-based violence and sexual offences convictions which he said had reached an all-time high, and a national forum on the Sexual Offences Act which was held by the NPA, the Department and Ministry of Justice and civil society. He said 74.5% of cases reported at Thuthuzela Care Centres (TCC) had been successfully prosecuted. The Witness Protection Programme remained highly successful, according to the report, and the NPA reported increased success in prosecuting gangsterism in the Eastern and Western Cape.

The Priority Crimes Litigation Unit was investigating cases of terrorism, said the NDPP, although he gave no details, and he added that cases from the Truth and Reconciliation Commission had been re-opened. This was likely a reference to the well-publicised Ahmed Timol case in which the apartheid verdict of suicide was overturned. The court had recommended that three people be prosecuted in relation to Timol’s death. Further such cases were being investigated, according to the report.

It was a smooth delivery, and the Chairperson of the Justice and Correctional Services Committee praised Abrahams for his presentation of the Prosecuting Authority’s APP and budget. Abrahams spoke of the work that his team at the NPA had done and the successes that it had achieved. But his real concern was budget cuts.

And it is a concern. His budget for 2018/19 has been cut by 0.96% from 2017/18 and during the remainder of the Medium-Term Expenditure Framework would escalate by only 4.41%, despite the anticipated Consumer Price Index increasing by 5.7% in 2018/19.

Given that compensation of employees swallowed up nearly 90% (88.8%) of the NPA budget in 2017/18 and in 2018/19 there would be a budget shortfall of R168.75 million for compensation of employees, prosecuting criminals in South Africa may be about to get even more difficult.

With a moratorium on filling of posts, the NPA had lost 157 officials in 2016/17 and 205 more during 2017/18. The biggest drop was in the number of prosecutors. Abrahams noted that 850 prosecutors had applied for 208 posts in the magistrates’ courts in March 2018 and currently 70% of all magistrates’ posts were occupied by former public prosecutors from the NPA.

The reason for this, he said, was that the life of a magistrate was decidedly less stressful and less demanding than that of a public prosecutor. He emphasised that he was extremely concerned about the working conditions of public prosecutors who had no time for personal or family life and worked under enormous and unyielding pressure. He also said it would be catastrophic for the NPA if any more prosecutors left.

But improvements in NPA staffing levels looked less likely after he told the Committee that in previous years the shortfall for compensation of employees had been funded through virements from the NPA operational budget and the Department of Justice and Constitutional Development. The stringent cuts of the 2018/19 budget could leave critical posts unfilled.

Add to that a shortfall of R146.89 million for goods and services, and the NPA, like the rest of us, is going to be tightening its belt.

However, as difficult as it must have been for the NDPP to break this to the Committee, it was probably somewhat easier than having to face the Members’ question about matters more directly linked to Abrahams’ performance, such as awkward issues about delayed prosecutions related to Julius Malema or Duduzane Zuma, or allegations of NDPP misuse of a security vehicle.

Since December last year Abrahams has had a torrid time, with the High Court ruling that his appointment was invalid and that he should vacate his position as NDPP. But Abrahams gave no indication of a man facing joblessness as he presented the report.

He fielded the many allegations against him fairly deftly, expressing muted displeasure at Afriforum’s decision to privately pursue corruption and fraud charges against Julius Malema for allegedly benefitting from corrupt tenders by a company in which his family trust had an interest, On-Point Engineering, back in 2009.

Abrahams appeared to have been taken by surprise when Afriforum – which he didn’t identify by name at the hearing – had called a media briefing saying it would prosecute Malema. He said this was a case that had been struck from the court roll in Limpopo when one of the accused had fallen ill and that he, Abrahams, had initially approved prosecution and had reviewed the case when it was withdrawn for what he called a flimsy reason. The NPA had not issued a nolle prosequi certificate declaring that it was declining to prosecute. This matter may go back many years, but apparently that did not mean the NPA had given up.

Abrahams was at pains to make it clear to the Committee that the NPA was currently working with a new investigation team on the case and it was at an advanced stage. He accused Afriforum of “unbecoming” behaviour and “grandstanding”.

Afriforum has also approached the police to charge Abrahams with corruption, fraud, theft, extortion and forgery over what it referred to as misuse of a specialised covert vehicle meant for the Office for Witness Protection for his personal benefit, a benefit to which he was not entitled.

He vehemently and categorically denied all allegations that he had misused any vehicle or that there was any corruption involved in the use of the vehicle, saying this was an attempt by Afriforum to “besmirch” the NPA.

Afriforum had also announced it would proceed with private charges of culpable homicide against Duduzane Zuma for a car accident in which a woman was killed after a collision between a minibus and the Porsche which Zuma had been driving. This happened three years ago and the NPA declined at the time to prosecute, a decision which has recently been reversed.

About the Duduzane Zuma case, Abrahams reported that the Democratic Alliance had asked for a nolle prosequi certificate in order to institute a private prosecution, but he had written to Zuma to request further documentation in November or December 2017. Only when the matter came back to him, could he announce his decision. That was a normal process, said Abrahams.

Despite his performance, Committee Members still had some pressing questions. What was the NPA was doing about overcrowding in the correctional centres? Was alternative sentencing not an option? Members asked about the recent improper appointment of a deputy in the Office of the Deputy National Public Prosecutor who was alleged to be a friend of Abrahams.

There were questions about the relationship between the Hawks and the NPA. There was also general concern about instability within the NPA while awaiting the Constitutional Court decision on the High Court declaration that his appointment was unlawful.

And of course Members wanted to know if the NPA did not have the capacity to further investigate the Estina Farm at Vrede and why only officials were charged but no members of the Executive and the MEC.

But the Chairperson, Motshega Mathole, brought it all back to the reason Abrahams was before the Committee this time. He thanked the NDPP for always being willing to appear before the Committee and welcomed his APP presentation, saying it showed he understood his mandate. He was concerned about those politicising the work of the NPA and said that not all difficulties in justice agencies should be attributed to the NPA. Parliament had to ensure that the integrated justice system was fully functional.

Matshole expressed his major concern that no prosecutions of political role players had taken place but said he trusted that in due course those people would be prosecuted without fear or favour. Meanwhile, the Committee would not allow the NPA to be used in political faction fighting.

The Chairperson also commiserated with the problem of underfunding, saying it was not good for the country.

Moira Levy

Further information sourced from the Parliamentary Monitoring Group.

Additional Info

  • Author: Moira Levy

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