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Shamila Batohi's briefing on the NPA, Investigating Directorate

NDPP cautions that complex cases take a while to investigate properly, 24 May 2019

NDPP MEDIA BRIEFING 24 MAY 2019

Good morning. It’s been almost 4 months since I briefed the media on 1 February, the day I took office, and I thank you for your patience. I had intended to brief the media sooner, but I didn’t appreciate the depth and extent of the challenges, both internal and external, that I’d be facing in revitalising the NPA.

I am the seventh NDPP (including Acting NDPPs) over the last decade. Over this period the NPA has experienced, as has been publically revealed, politically-motivated changes in leadership, allegations of impropriety against some of its leadership, an exodus of skilled staff, a hiring freeze, a virtual end to its professional development and training programmes, and a fiscally-induced vacancy rate that’s brought the NPA’s operations close to collapse in some centres.

I have in the past 4 months been listening, understanding, engaging at various levels, and attending to various priorities that were identified. These include:

1. Addressing the NPA leadership crisis. This is critical to restoring the credibility of the NPA, which needs a fresh new, dynamic leadership. I made important changes that were widely reported on, but more needs to be done. However, for various reasons, this has not been as quick or easy but important progress will be made shortly.

2. Conduct of reviews of high-profile cases relating to decisions to prosecute or not to prosecute. This will also assist in restoring credibility. In this regard, we have identified a number of cases (including those investigated by IPID), which we are reviewing.

3. A Review of the structure of the NPA – To improve effectiveness I have decided on a de-centralised model, with small, specialised, highly skilled capacities at the National Office to actively support prosecutors in the regions. This will build more capacity in the regions, maintaining specialisation for example with regard to the Specialised Commercial Crimes, terrorism, and other crime types that may be identified e.g. cyber-crime.

4. Obtaining more budget for the NPA. This is a very serious problem for the NPA. There has been no recruitment since 2016. The impact on the delivery of justice and moral of prosecutors working in extremely challenging conditions, is huge. We will not be able to deliver the service that the people deserve, or effectively deal with holding persons accountable for crimes (outside of the Investigating Directorate) if this situation persists. This is one of the key issues to be discussed with the new Minister of Justice.

5. Managing cases relating to State Capture, including the creation of the Investigating Directorate has been a priority – which I will deal with later.

The challenges we face have provided opportunities to begin the complex process of revitalising and repairing the NPA.

Together with the leadership of the NPA, I have also been working on a number of other important issues:

Partnership engagement: To achieve our vision, the NPA must collaborate with its governmental partners, including the police and the courts. I have made it one of my priorities to reach out to our partners and candidly discuss challenges, which have impeded effective cooperation. I have met with the Police Commissioner, Lt Gen Sithole and I have had several meetings with the Head of the Hawks, General Lebeya. We recognise that there are huge challenges in law enforcement – lack of skills, lack of discipline, corruption, etc. However, we have been working together very closely to address various priority cases. We have also been working with the Financial Intelligence Centre FIC), the Special Investigating Unit (SIU) and the South African Revenue Service (SARS), amongst others.

Stakeholder engagement: I have sought to reach out to the business sector and civil society groups, which represent important constituencies in South Africa. My outreach efforts include South Africa’s development partners, including the foreign diplomatic community, who are watching carefully whether we can reverse the effects of years of state capture in order to place SA back on a positive development and economic trajectory, to restore the rule of law, and build confidence in our institutions.

Strengthening morale and empowering NPA staff: On my first day in office, I requested that a staff survey be undertaken. New in my position as NDPP, I wanted to hear from everyone in the NPA. The NPA succeeds or fails on the ability, skills and knowledge of its people. Our people are the NPA’s greatest asset. To succeed, the NPA must nurture and empower all its people. To this end, I’m undertaking numerous visits to our regional and local offices across the country, to meet with, and listen to, prosecutors and staff working at the coalface of the criminal justice system. I’ve asked for a review of the NPA’s professional development and training capacity to ensure we have the human resources and skills to be a cutting-edge prosecution service that all can be proud of, ready to meet the challenges it faces.

Create a Strategic support & innovation capacity in the Office of the NDPP: My office will draw in skills and resources – including the private sector and international experts – to provide capacity to the NDPP’s Office to focus on longer-term strategic issues, trends and challenges facing the NPA, and criminal justice. Also to serve as an innovation hub for new and creative solutions to intractable operational and institutional challenges facing the NPA.

Ambitious developmental vision

- My vision for the NPA is ambitious, but it is something that the majority of the prosecutors support, according to the staff survey. It is to rebuild and lead a trusted and effective prosecution service that pursues justice for all South Africans through independent, professional and victim-centred service delivery. This vision depends on 4 key pillars: credibility, independence, professionalism and accountability.

- An important role the NPA has to fulfil, is to undertake effective prosecutions. The country is crying out for this – but the NPA is about much more than only prosecuting cases in court long after a crime has been committed. The work of the NPA must – and will – make an effective contribution to the country’s socio-economic development.

Hunger for progress

In addition to all the other crime types that the NPA has to focus on, including sexual and gender-based crimes, corruption has become endemic in our society. There is, understandably, tremendous hunger and impatience for justice, and that expectations for immediate arrests are high. The proclamation of an Investigating Directorate is an important step to restoring the rule of law in South Africa. The

SAPS and the NPA are working closely to ensure that we are able to address the scourge of corruption in our country at the different levels. The National Commissioner has committed the full support of the SAPS to the work of the Investigating Directorate, and as you can see both he and Gen Lebeya are here to take your questions.

I am pleased to introduce Adv Hermione Cronje to you today. While many of you will have seen from other media reports that her academic and professional qualifications and past work experience more than qualify her for the position of Investigating Director, I want to assure you that, having worked with her in the past when we were both in the NPA in the early 2000s, and again over the last two months, I have absolute confidence that she has the temperament, the resolve and the commitment to make a success of this challenging assignment. She is passionate, astute and will fiercely defend the rule of law. If anyone can do this job she can.

As you know she has been working closely with Andrea Johnson over the past few months in getting to grips with what progress is being made within the NPA to hold accountable those implicated in corruption. They will continue to work through which of these cases will be referred to the ID and which cases will remain with the prosecutors in the Specialised Commercial Crime Unit.

It is therefore also vital that, outside of the Investigating Directorate, other cases of serious corruption which them NPA will need to deal with – which are destroying our communities and have eroded public trust in state officials – also receive the necessary attention and resources.

The establishment of the Directorate will immensely strengthen the capacity to address corruption. However, I want to caution that complex cases take a while to investigate properly, and as we know, many cases have been neglected for many years. But I am confident that those responsible will be held accountable. We will relentlessly pursue the course of justice and respect for the rule of law will prevail.

It gives me pleasure to hand you over to Adv Cronje who will give you more detail about the Investigating Directorate.

MEDIA BRIEFING STATEMENT – ADV HERMIONE CRONJE INVESTIGATING DIRECTOR IN THE OFFICE OF THE NDPP

FRIDAY, 24 MAY 2019

I am grateful to the NDPP for the confidence she has expressed in my ability to do this job. I am also humbled and I must admit, a little baffled by the response to the announcement of my appointment as Investigating Director to deal with corruption.

I can assure you it is not a decision I took lightly. I am aware of the challenges.

I am acutely aware of the importance of holding accountable those responsible for the state of our institutions, particularly institutions in the security sector (such as the NPA,SAPS and the SSA) that ought to have brought to book those responsible for the looting we have heard about in the Commission of Enquiry into State Capture led by DCJ Raymond Zondo and in the media.

I am also aware of the scale of the problem in our State Owned Enterprises such as ESKOM, TRANSNET, PRASA and others. I am conscious of the need to send a strong message that those who pocket, for their own personal gain, funds earmarked for the development of our country and for meeting the needs of our people, will face the consequences of their actions.

Of course I am also aware of the need to restore confidence in institutions of government, including the Executive at the highest level, by giving the assurance that those who divert public funds for their personal benefit, no matter how high the office they hold, will have to answer for any crimes they commit.

Our capacity to deal with these challenges has been severely compromised. We have been tested and found wanting. We will need to rebuild the skill, capacity and resilience of investigators and prosecutors to tackle these challenges head on.

I am fully aware that ordinary South Africans have very high expectations of us (almost impossible expectations). They are holding out hope that we can bring an end to impunity and finally bring to book those who have so brazenly flouted our laws.

I have no doubt that those who are responsible for the state of affairs in our country will not be sitting idly by while we seek to hold them accountable for what they have done and that any benefits they derived unlawfully are recovered from them. I have every expectation that they will continue to seek to avoid accountability for their crimes. They will plot to exploit any weaknesses and vulnerabilities in the system and its people. There will be much to endure, as investigators and prosecutors who were merely trying to do their jobs, have had to endure in the recent past.

I am aware of all these challenges and more, and I am by no means naive to the enormity of the task.

But what I also know is:

We are resilient as a people. Those within the police and the prosecution are no exceptions. There are many who did not buckle under the tremendous pressure they faced, they did not give in but focused day in and day out on doing the right thing in their area of influence. People who retained their integrity despite intense pressure to act contrary to what they knew was right, who did not turn a blind eye to wrongdoing in their midst. These are the people we hope to re-invigorate, to support and to encourage to carry on the fight.

We have allies in this fight, in the NGO sector, in the media, in business, churches, trade unions and in ordinary South Africans who want to win back control of their country. We have been inundated with pledges of support from a variety of institutions and a range of individuals. We fully intend to harness this support.

We also have the support from our counterparts around the globe, from Investigators and prosecutors from around the globe who face similar challenges – who have indicated their willingness to provide us with the support we need, be it assisting with gathering evidence, providing training and transferring skill, capacity and know how, they will support us. We intend to make full use of this support.

I am secure in the knowledge that while I have been appointed to lead this initiative, I will not be alone. I derive a great deal of strength and purpose from this knowledge. As I said to someone who asked me if I genuinely believed it is even possible to turn back the tide of corruption and impunity we have experienced as a country over the last few years, I said unambiguously, I would not have accepted the job if I did not think we were in with more than just a fighting chance!

So that’s me.

As for the Directorate: I would like to share with you the following about how we envisage the Directorate will function:

Mandate/ scope of work

 The Directorate, as stated in the proclamation, is required to focus on serious, complex and high-profile corruption, including allegations of corruption arising from the three Commissions of Enquiry led by Judge Zondo (State Capture), Judge Mpati (PIC Enquiry) and Judge Nugent (SARS Enquiry). What is already clear is that the Directorate will have no shortage of work. In fact, a very real challenge will be to resist the temptation to take on more than it can adequately address.

- We will be focused on restoring the integrity of government and the credibility of the criminal justice system. We envisage at the outset to focus operations in the following three broad areas

- Corruption in the Security sector (specifically in the criminal justice system)- it is important we get our own house in order and build confidence in the system);

- Corruption in the SOEs, (Eskom, Transnet and PRASA), etc and

- Other high level public and private sector corruption – including a focus on those who have systematically and actively sought to corrupt government procurement systems and processes for private gain or private sector corruption that undermines the security of the country or impacts disproportionately on the lives of ordinary people.

Operations

- It is envisaged that the Directorate will only take on a limited number of cases that will have a very high impact. Our case selection criteria will ensure that we address those who planned, orchestrated or instigated the corruption of the system and those who ultimately derived the benefit of the looting of state coffers, not only those foot-soldiers who merely implemented their corrupt schemes. We need to address those who actively and systematically weakened the capacity of the criminal justice system to ensure that the corrupt escaped accountability for their crimes.

- There is a general frustration with the failure on the part of the criminal justice system as a whole to deal with serious corruption. There will be tremendous pressure to take on all corruption cases out there. We want to emphasise that the ID is not a replacement for existing structures or departmental mandates. Its role is to ensure that the system is resolving high-level corruption, addressing a particular crisis we face as a country at this point in time. The approach we adopt has to be an integrated and co-ordinated one. We will not be going it alone.

- Our case selection criteria will therefore be mindful of - and aligned to - the other role-players in the criminal justice system who will remain responsible for investigating and prosecuting corruption cases. We have been consulting with DPP’s in the prosecution and the DPCI on the boundaries of our respective mandates to ensure that we avoid duplication, or worse cases falling through the cracks. There is no need for competition, there is unfortunately more than enough work for all of us. The system as a whole will needs to up its game.

- Mindful of the need to take swift action in the short term, a lot of work hasalready been done by my colleague Andrea Johnson, to determine the state of affairs with cases already being dealt with in the NPA. She has identified the challenges that need to be addressed to make swift progress on these cases. In relation to the cases that fall within the mandate of the Investigating Directorate and meet its case intake criteria, the immediate focus will be on co-ordinating, overseeing and strengthening our collective capability/capacity to ensure successful investigation, prosecution and recovery of assets. Personnel working on these cases will remain part of these teams, provided they agree to subject themselves to enhanced integrity screening and have the skill and capacity to perform at the required level and want to work in the Directorate.

In addition, we are in the process of establishing a core operational team. I am pleased to announce that we have procured the services of Advocate Geoff Budlender SC, to provide strategic legal advice on a range of topics. We have also have secured the return to the NPA of Adv Thanda Mgwengwe, former operational head of the Scorpions who was seconded to Swaziland to head up the Anti-Corruption Agency in that country. In addition, we have been working closely with the SAPS and the DPCI, who have already dedicated senior staff to assist the NPA with the establishment of the Directorate. Similarly, colleagues in the Financial Intelligence Centre (FIC), the Special Investigating Unit (SIU), the South African Revenue Services (SARS) and the State Security Agency have all pledged their support in ensuring the Directorate is successful.

- We have also had several engagements with the private sector, and particularly with bodies like Business Against Crime, SABRIC, the accounting and the legal professions to look at innovative and cost effective ways to access skills and capacity in the private sector. The responses we have had have been overwhelmingly positive.

- We intend to engage civil society, not only to provide input on specific investigations based on the work conducted in the past, but also look for ways in which civil society can continue to hold the Directorate accountable to fulfilling its mandate.

Recruitment more generally

- The NPA Act does not envisage that we appoint staff on a permanent basis, but rather envisages that we select a matter for investigation, identify the skill and capacity that will be needed to address the matter and then source those skills from the public or the private sector for the time-frame needed to do the work. Once brought into the Directorate personnel will dedicate themselves to fulltime to the Directorate for the duration of the assignment.

- Re-assignment, and in some cases, secondment will be the basis on which staff will be recruited from the public sector, but we also aim to recruit extensively from the private sector on contract – both forensic investigation and legal skills.

- Whoever is recruited or assigned to work in the Directorate will be subjected to security vetting and to initial and ongoing enhanced integrity testing. Personnel will therefore need to agree to subject themselves to these enhanced measures, such as random testing for the abuse of alcohol or drugs, or the use of the polygraph or similar instrument to ascertain, confirm or examine in a scientific manner the truthfulness of a statement made by the person.

As I indicated at the beginning, I am alive to the challenges we face. I am confident that we have in this country what it takes to make it work. I am enthusiastic, keen and committed, and I am thrilled to be back, fighting the good fight. I am equally clear that there is no magic wand, and that we are no super heroes. It’s up to all of us to do our bit. I trust we will have all your support.

ENDS