White-collar whiplash:

The specialised commercial crime court

On August 1st 1999, in a typical government building in the heart of Pretoria, the establishment of the Specialised Commercial Crime Unit and the Specialised Commercial Crime Court marked what may be regarded as a revolution in the combating of commercial crime in South Africa.

The specialised commercial crime project represents the height of integrated case management in the South African legal system. The dedicated commercial crime court is serviced by a team of prosecutors who work with five of the commercial crime units of the SAPS in the Pretoria area. All three components of the investigation-prosecution-adjudication triumvirate are ‘co-located’ within spitting distance of each other, largely within a single building, and all have a basically identical mandate to focus on a single set of crimes.

The project — a pilot established by government with the assistance of Business Against Crime (BAC) — is modelled on a similar court in New York. It seeks to realise the notion of prosecution-led investigations in the most profound and complete manner possible. It was located in Pretoria because of the profile and volume of commercial crime in that city. According to some, the proximity of the court and unit to key policy-makers, whose influence might be used to free blockages, and who might advance the roll-out of the project elsewhere, was also a factor. This would also maximise the extent to which the criminal justice system would learn from the experience.

In practice, the SAPS commercial crime unit deals with all commercial crime cases that are serious enough to be dealt with in a regional magistrate’s court or High Court, but are not so serious as to be handled by the Investigative Directorate: Serious Economic Crimes, located in the Scorpions. The minor commercial crimes that are dealt with in the district courts are therefore filtered out of the system.

Working as an integrated team

The unit has ten prosecutors, with another ten posts currently being filled. The head of the unit is looking for people preferably with experience in prosecuting commercial crime, but, at worst, with lively minds and evident potential. There are also around 80 police investigators in the unit.

Each docket is managed by a team aiming to prepare the best possible case. The innovation of this approach can best be seen by comparing it with commercial crime investigations in other jurisdictions. In those cases, the prosecutor starts from scratch once the docket has been received from the investigator. In some cases this means the prosecutor has to master thousands of pages of evidence that is often unfamiliar, and only a small proportion of which might be relevant to prove the elements of a crime. It is little wonder that in many instances the hapless prosecutor ‘kicks for touch’, sending the case back to the detective for further investigation. In some cases it seems that this is done in the hope that s/he will have left the service by the time the case returns to court!

In contrast, cases that arrive at the specialised commercial crime unit are managed carefully by prosecutors. The prosecutors are familiar with the details and have an intimate knowledge of the key facts of the case. In any event, having the prosecutors in such close proximity to the investigators ensures that the latter know when to attend court, and face the displeasure of the former when they are not present when needed.

The fact that the case is immediately ready for prosecution seems to have the effect that the accused plead guilty in a surprisingly high proportion of cases. This despite the likelihood that accused persons in these cases will have quality counsel. As Chris Jordaan, the head of the Specialised Commercial Crime Unit points out, this has economised the use of expensive court time.

Unprecedented success rate

Indeed, the relative efficiency and effectiveness of the model used by the unit is reflected in the figures of completed cases in 2000. In that year, judgements were handed down in 129 cases, with 92 per cent of those resulting in convictions. This compares extremely favourably with the figures collected by McKinsey and Co., a management consultancy, who found that in 1997 there were only 15 convictions of commercial crimes in the whole of Johannesburg. It was this initial scoping of the policing and enforcement of commercial crime that led to the involvement of BAC in the project.

The success of this model also questions the notion that the privatisation of the investigation of individual commercial crimes with the establishment of corporate forensic investigation units will necessarily lead to improved outcomes in those cases. It is more likely that, in the absence of improved co-ordination with prosecutors, improved investigations will not have the desired impact on success rates.

Skilled personnel: a target for corporate poachers?

The involvement of BAC in the project has been largely supportive and strategic, according to Tom Bouwer, the organisation’s project director for commercial crime. At the same time, BAC has provided resources — largely in the form of dedicated personnel — to assist in the running of the unit, and, more importantly, to assist in managing and prosecuting cases. These personnel are also expected to transfer skills to the public prosecutors with whom they work.

And this perhaps is the biggest risk to the model: it may, in time, be undermined by the successes it has in developing capacity. As in other components of the public service the successful development of skills is often swiftly followed by aggressive headhunting campaigns by the private sector. Retaining highly skilled commercial crime investigators and prosecutors is liable to be one of the most challenging problems facing this and similar projects over the medium to long term. In the meantime, however, the system appears to be working well, and the National Director of Public Prosecutions is said to be considering its roll-out to Johannesburg.

Antony Altbeker
Graduate School of Public and Development Management

This article is sponsored by the European Union