NPA pushes for full independence and for conducting prosecutions differently, even on a shoestring budget

An affidavit for a fully independent National Prosecution Authority (NPA) in law, finance and operations has been submitted to the State Capture commission, prosecutions boss advocate Shamila Batohi told Parliament’s justice committee on Friday.

It’s an important step given how the NPA had been hollowed out over the State Capture years, predominantly with politically pliant appointments.

While in the current dispensation the NPA’s independence has not been doubted, it remains part of the Justice Department as Programme 4, and receives its financial allocations through the department.

In many ways Batohi’s affidavit is a move for “independence in jure and de facto”, as she put it to MPs, echoing a similar push by the Office of the Chief Justice. 

That took years, but ultimately the Office of the Chief Justice moved from being a Justice Department programme to being its own budget vote – Budget Vote 27 to be exact.

Similarly, the police watchdog, the Independent Police Investigative Directorate (Ipid) and the constitutionally required oversight entity, the Civilian Secretariat for Police Service, also have their own budget votes.

Were the NPA to move from the Justice Department, it would be a significant development in South Africa’s constitutional democracy.

Already, Batohi said, discussions with Justice Minister Ronald Lamola look to establish a working group “so we can be on the same page on the independence of the NPA”.

It was a quick, almost off-hand remark at the start of the NPA’s briefing to Parliament’s justice committee on its 2020/21 annual plan.

On Friday MPs were told of the need to do things differently, and new plans. 

This includes digitising court and prosecution records to allow prosecutors and police to share dockets electronically, and a strategy to track and monitor corruption cases.

This also includes capacitating, and putting in place a permanent structure for the Independent Directorate that is currently probing 32 high-level corruption cases involving 137 dockets, alongside ongoing preparatory investigations into alleged State Security Agency corruption. 

Many of the investigators hired on contract found such employment insecurity untenable and left, but this would be redressed by an approved permanent structure expected to be in place by the start of the new financial year on 1 April 2022. 

“Crime is off the charts. We have to do things differently … We have to start prioritising for impact even in the lower courts,” said Batohi.

This would mean, for example, prioritising house breaking and house robbery as research has shown these types of crimes make people feel insecure and unsafe. And it would not be about just targeting “the odd house breaker”, but gangs of house breakings.

A day after the Medium-Term Budget Policy Statement (MTBPS) effectively didn’t announce new allocations, the NPA told MPs it had put in a request for R363-million, much of it for out-of-date IT systems.

Friday’s message that further budget cuts would endanger the NPA’s capacity echoed Batohi’s 2020 plea.  

Friday was the parliamentary justice committee’s time to grill both the NPA and justice officials on their respective 2020/21 annual reports for the period 1 April 2020 to 31 March 2021.

“No irregular expenditure was incurred. Only R5,000 of fruitless and wasteful expenditure relating to the abuse of state vehicles was identified; which is under investigation,” according to the NPA 2020/21 annual report.

And it seemed doing things differently extended to how the annual report sets out details on cases before courts and convictions for what crime in what court in favour of selected snapshots. 

It may be part of an overall drive to ensure data coherence across the criminal justice cluster that includes police and correctional services. In the past the statistics from the SAPS annual report jarred with those of the prosecution services’ (Read here and here).

And so the NPA 2020/21 annual report shows that of the 168,422 convictions at district courts between 1 April 2020 to 31 March 2021, 605 were for assault with intent to do grievous bodily harm and theft. 

Another graphic shows high courts wrapped 579 cases in the 2020/21 financial year, regional courts 17,643 cases and magistrate’s (district) courts finalised 202,047 cases. No details are given whether that finalisation was an acquittal or conviction.

Also highlighted was the sharp increase in convictions for sexual offences to 8,678 in the 2020/21 financial year, up from 4,991 the year before. Convictions for what police call trio crimes – carjacking alongside home and business robberies – is down to 1,011 from the previous 2019/20 financial year’s 1,042 convictions.

But murder convictions increased to 2,109 in the 2020/21 financial year from 1,940 a year earlier. 

Organised crime convictions illustrated monthly shows October 2020 and March 2021 are tops – 26 cases finalised involving 47 accused and 24 cases with 43 accused, respectively.

Not so positive was the NPA missing many of its performance targets, including corruption convictions. 

The NPA annual report showed convictions for 147 private sector people, and 86 government officials; it’s only by cross-referencing the Justice Department’s 2020/21 annual report that it becomes clear these convictions are below target. 

The target had been 150 convictions against private persons after a real achievement of 233 such convictions in the previous 2019/20 financial year. Ditto, corruption convictions against government officials. The 86 convictions of 2020/21 fall short of the 220 target, and the 183 convictions actually achieved in the 2019/20 financial year.

However, Batohi was candid about this, acknowledging it had been “patchy” and “too slow”.

“[The 147 private sector convictions] is a significant number, but we have not reached our target. We are putting in plans and we are certainly on track to meet our target this year.”

MPs from across the political party divide were not impressed by the missed targets, but more positive about the NPA plans that were described as implementable.

“Good news is we are making progress. The reality is there’s so much more to be done,” Batohi told MPs. “I am confident there’s light at the end of the tunnel… Failure is not an option for our country.” DM