NPA restructuring: Dotted reporting line cutting off AFU and SCCU

The Minister of Justice is sadly misinformed if he thinks, as indicated by his reply received yesterday (see below) that the National Director of Public Prosecutions (NDPP),Adv Menzi Simelane, has honoured the instructions of both the Minister and the President of the Republic and has stopped the restructuring of the National Prosecuting Authority (NPA).

The Minister either  thinks  or is advised or feels forced to say  that Adv Simelane has halted the restructuring of the Asset Forfeiture Unit (AFU) and the Specialised Commercial Crimes Unit (SCCU); whereas it is clear from the NDPP's replies to my questions in the Justice Portfolio Committee on 11th August  (which we have transcribed and follows below the reply) that he is stubbornly proceeding with the strategic plan presented to the same committee on 13th April and which I reported to both the Minister and the President.  Both Minister and President, suitably shocked,   then said they had stopped such shenanigans. So why haven't they?

It has to be said that the only persons in South Africa who will feel confident that Ministerial Performance Regime Outcome 3: "all people in South Africa are and feel safe" will be "delivered" - as the Minister so preciously puts it in his reply - are persons who feel that that they are safe  and delivered from prosecution, a process with which our President is intimately acquainted.

Why is the NDPP being allowed to get away with this? Why does the Minister of Justice say  without  blushing that "operationally the Directors of Public Prosecutions are prosecuting commercial cases within their areas of jurisdiction and continuing to report to the Deputy Directors of Public Prosecutions in the office of the NDPP "? It is not the DPPs (the provincial  Attorney Generals of old) or their offices who are supposed to report to the DDPPs, Messrs Willie Hofmeyr and Chris Jordaan, for these purposes, it is their own staff, appointed in terms of their own Act and in terms of Presidential Proclamation.

Adv Simelane has introduced a new concept: the dotted reporting line. The units described as recently as the Justice Budget Vote in May this year by the Minister as "key pillars in the fight against crime" and which are supposed to report to their own heads now have to report along "a solid line" to the provincial Directors of Public Prosecutions and along "a dotted line" to their legislated Heads. "Various heads in the DPP offices" now " do reports" and "submit these  to the office of the NDPP for Chris to have a look at", and also to "Willy". I have said since April 13th  that the units are being decapitated.  All that has changed is that they are being cut (off) along the dotted line...in defiance of the Minister and the President, who promised me in the National Assembly that restructuring had been stopped.

Reply:
NATIONAL ASSEMBLY 
QUESTION FOR ORAL REPLY
QUESTION NO.: 157
DATE OF QUESTION: 24 AUGUST 2010

157. Ms M Smuts (DA) to ask the Minister of Justice and Constitutional Development:
Whether the National Director of Public Prosecutions has ceased the restructuring of the (a) Asset Forfeiture Unit and (b) Specialised Commercial Crimes Unit; if not, what is the position in this regard; if so, what are the relevant details?
NO2828E
REPLY:-

I would like to inform the Honourable Member that the National Director of Public Prosecutions (NDPP) has halted the restructuring of the Asset Forfeiture Unit (AFU) and Specialised Commercial Crimes Unit (SCCU).  As communicated previously, I had advised that the restructuring be halted as consideration of the capacity and alignment of the organization should take into account the new Outcomes Performance Regime, recently adopted by Cabinet.  I have signed a Performance Agreement with the President which will be supported by the realigned capacity to deliver in terms of the Agreement.  Government will thus deliver Outcome 3 "all people in South Africa are and feel safe" using capacity from the SIU; AFU; SCCU; Anti-Corruption Task Team etc, to fight the scourge of crime and corruption in the country. 

At this stage therefore, the NPA has been operating within this instruction.  Operationally, the Directors of Public Prosecutions are prosecuting commercial cases within their areas of jurisdiction and continuing to report to the Deputy Directors of Public Prosecutions in the office of the NDPP.

Democratic Alliance Transcript:

Dene Smuts, MP:   

One question to the NDPP. On the 13th May, the President of the Republic said in the National Assembly that all restructuring at the NPA had been stopped. I had, the previous day, in the house drawn his attention to the fact that the SCCU had been disbanded in the sense that its staff no longer reported to Adv Jordaan, but to the DPPs. The president said at that point that all restructuring now pended, pending the conclusion by the JCPS cluster ministers  of their negotiations on  implementation plans for their performance agreements, the deadline for that used to be the end of July, I see in the media that this is now going to be September. To my knowledge, the standing situation is that the President announced that all restructuring had stopped.

And I ask the following questions flowing there from: Is the AFU unit still functioning?   Is Mr Willie Hofmeyer in charge? Does he still have all of his staff? And may I ask Adv Ramaite who asked us last time round to take the word of the NPA that the Fana Hlongwane case was still alive, after reports to the contrary?  May we have a report back? So firstly, is Mr Hofmeyer still in charge, and does he have his staff? Secondly, are the SCCU staff reporting to Adv Jordaan - or where are they reporting? Are they reporting to the DPPs or to Adv Jordaan?

 And, the Corporate Services, which the NDPP told us last time that would be moved to Justice, where are they? Because the money, the R2.4 billion that was voted -against our will, but the money was voted by Parliament of that amount R481 million was for the corporate services under your umbrella and R81 million was for the AFU. So that is the question, whether restructuring remains stopped?

And in response:

Adv. Simelane:

 ..With respect to restructuring,  I just wish to clarify again for the honourable member, so it becomes understood actually what is happening . The issue around the restructuring one, was not about whether or not there was a disbandment, it was about reporting lines and who people reports to and we put there that because prosecutions take place in a jurisdiction that in terms of the Constitution and the NPA Act a DPP is responsible, so that DPP must fully account for all the cases that are in that particular jurisdiction. That is why in the Strategy we reflected that reporting line... so the scenario as it stands now again on discussion and discussion in the NPA, is that Chris Jordaan, who is a special director in the office of the NDPP, he's still the head of the SCCU, so that is not the issue. Various heads in the DPP offices do reports and submit reports to the office of the NDPP for Chris to have a look at, but I further instructed them to submit reports to the DPP offices, so they have one solid line and one dotted line, until such time that a final decision gets made on this point.  But our continued advice to the Minister is that everybody in the DPP jurisdiction should report to the DPP so that you don't have a situation here where you have a DPP who has to account for cases in his/ her jurisdiction and cannot explain complex commercial crimes matters because people reports (inaudible) in that jurisdiction so that is really what the issues is about. So in short, we are still waiting for the Minister to make the final decision on (inaudible) complete performance agreements with, but on the ground how it works, as it has always worked is that everybody works together anyway ...I hope its answers specifically the questions that Hon Smuts was raising

Similarly to the AFU, the AFU is not in all of the DPP offices only in selected offices so what they have done is they have also expanded them to have them created in each and every DPP jurisdiction, so that are the major processes there. Those people report to Willy who is in the office of the NDPP, the head of the AFU, but those people are also required to submit their reports to the DPP so that when the DPPs submit their reports to the NDPP when they comply with the statutory requirements in the NPA Act, they are able to account for each and every single case that is in there. So we draw a separation between structure and function in terms of the Act. In terms of the functions in terms of the NPA Act it states these are the people who must carry out certain types of activities. So that as the DPP requires to do or the Deputy Director of Public Prosecution requires to do, they have been so authorized by the NDPP (inaudible). When it comes to reporting lines, their reports as per the status quo pending the final decision, but working together on cases is something that has always been there so that work continues. So if the honourable member is trying to test whether or not this complies with the instruction of the President or the Minister, the question is, there is. Because I am quite certain that that was the intention behind the question. So I just want you to know that that is correctly carried out. But as far as what the responsibilities, the prosecutorial responsibilities of the NDPP are concerned, those I am carrying them out as required by the Constitution without interference, so instructions have been given  accordingly to various people to carry out those particular functions. So I am hoping that the answer shows the distinction between what is an issue and what is actually happening on the ground.

Similarly Corporate Services, Corporate Services is an issue that remains to the Accountant Officers  (inaudible) at the DPP... sorry... the Representative of theDG, necessary delegations  accounts for that particular work in the NPA and therefore Corporate Services because it is part of the Department of Corporate Services it works on that particular basis it doesn't involve the NDPP or any of the Prosecutors to account for. But we do call there now and again to explain how we are using the funds and we get criticised, if the Department feels that we are not being effective as the case may be and we criticise them back if we believe that we are not getting the type of assistance that we should get. The separation of duties clearly works as per the PFMA and the Public Service Act and NPA Act, so on prosecutorial responsibilities only the NDPP and the prosecutors, so identified in the NPA Act, are responsible for those and nobody else, similarly on Public Service Act issues and accounting  issues in terms of the PFMA, those people that are specifically indentified for that are responsible for that. So we have drawn that very fine line because that is the only way that there can be proper corporate governance and a proper rule of law. So our personal responsibility directly where it lies, so structure and carrying out to those functions has been dealt with to follow that particular exercise.

Statement issued by Dene Smuts, MP, Democratic Alliance shadow minister of justice and constitutional development, September 7 2010

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