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Published in Monograph No 53, March 2001
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Concerns about prosecution-led investigations
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Investigating directorate: serious economic offences
The investigating directorate: serious economic offences (IDSEO) came about with the promulgation of the National Prosecuting Authority Act in October 1998, replacing its predecessor, the office for serious economic offences (OSEO), which had been in existence since 1991.168
OSEO was created to address an almost complete collapse of the successful prosecution of economic crime in South Africa. For example, in the former Transvaal, only three successful major prosecutions were finalised in the seven years prior to OSEO’s establishment. This was partly because traditional police investigation methods were inadequate to deal with increasingly sophisticated white-collar criminals, and because of a lack of appropriate skills among the country’s prosecutors. This was addressed through the establishment of OSEO that provided for the speedy and proper investigation and prosecution of certain serious economic offences, using multidisciplinary investigation teams.169 OSEO’s approach to investigating and prosecuting economic offences was taken over by IDSEO.
IDSEO is headed by a director of public prosecutions and consists of deputy directors, prosecutors, police officials and detectives, accountants employed on a contractual basis and an administrative component. IDSEO has offices in Pretoria and Cape Town. The aims of IDSEO are to combat serious economic offences, to deter offenders, and to contribute towards a more effective criminal justice system through the speedy and proper investigation of serious economic offences, and the expeditious and successful disposal of some of the criminal prosecutions arising from such investigations.170 In achieving its objective of curbing serious economic crime and deterring offenders, IDSEO attempts to co-ordinate its activities with other persons and institutions involved in the investigation of such offences. In practice, this means co-ordinating the investigative activities of senior police investigators, forensic accountants, reserve bank investigators, customs and revenue inspectors, and others. IDSEO also seeks to prevent suspects from fleeing the country with their assets and destroying potential evidence.
Investigating directorate: corruption
The directorate was established in February 2000 to investigate and prosecute serious cases of corruption.171 Because of a lack of manpower and resources, the directorate uses IDOC offices and staff to assist it in its investigations.172 At the time of writing, the activities of the directorate were limited and the directorate was going to merge into the directorate of special operations.
Directorate of special operations
In his address at the opening of parliament in June 1999, president Thabo Mbeki announced that a "special and adequately staffed and equipped investigating unit will be established urgently to deal with all national priority crimes, including police corruption."173 According to the minister of justice and constitutional development, Penuell Maduna, such a unit is necessary to address the challenges faced by the criminal justice system. These challenges include corruption among some police officers, the murder of police officers on duty, unsatisfactory standards of investigation resulting in low conviction rates, and the general lack of an efficiently co-ordinated attack on organised and syndicated crime by the investigation, intelligence and prosecution authorities.174
The directorate of special operations (DSO) — nicknamed the Scorpions — was launched in September 1999 in Guguletu near Cape Town. The directorate’s purpose is to combat organised crime, corruption within the criminal justice system, serious economic crimes, and crimes against the state such as terrorism.175
Legislative framework
In early 2001 the National Prosecuting Authority Amendment Act was promulgated thereby formally establishing the directorate of special operations as an investigating directorate of the national prosecuting authority.176 Speaking at the national assembly vote on the bill, minister Maduna proclaimed that "the DSO needs to become the plague of organised criminals and terrorists, and inject its venom into the criminal law to paralyse organised crime and terrorism". The DSO will be "loved by the people, feared by the criminals, and respected by its peers," the minister said.177
The preamble to the bill reiterates the constitutional mandate of the national prosecuting authority to institute criminal proceedings on behalf of the state and to carry out the necessary functions incidental to the process. To do so, the bill proposes that the directorate is established with a limited investigative capacity to prioritise and investigate particularly serious criminal conduct committed in an organised fashion, or other specified offences, with the object of prosecuting such crimes in the most efficient and effective manner. Moreover, the DSO should have the necessary infrastructure and resources to perform these functions.
The aim of the DSO is to:178
- investigate and carry out any functions incidental to investigations;
- gather, keep and analyse crime information; and
- institute criminal proceedings and carry out any necessary functions incidental to criminal proceedings relating to offences or any criminal or unlawful activities committed in an organised fashion, or such other offences or categories of offences as determined by the president.179
The president determines such offences or categories of offences on the recommendation of the minister of justice and constitutional development and the national director of public prosecutions. For example, the DSO investigates and intends prosecuting persons suspected of having committed gross human rights violations who did not qualify for amnesty by the truth and reconciliation commission, or failed to apply for amnesty. The prosecution strategy will be finalised with the completion of the amnesty process in 2001.180
A specially created ministerial co-ordinating committee, consisting of cabinet members responsible for the criminal justice system, intelligence services and defence determines:181
- policy guidelines in respect of the functioning of the DSO;
- procedures to co-ordinate the activities of the DSO and other relevant government institutions including, for example, procedures for the transfer of investigations to or from the DSO and such institutions; and
- where necessary, the responsibility of the DSO in respect of specific matters, and further procedures to be followed for the referral or assigning of any investigations to the DSO.
The directorate of special operations is an attempt to institutionalise a proactive, multidisciplinary appraoch to fighting crime.182 The rationale behind the directorate is the integration of three traditionally separate functions: intelligence, investigations and prosecutions. This will see special investigators, intelligence operatives and specialist prosecutors working together in project teams. Investigators consequently work in a prosecution-driven and intelligence-led environment. Experienced prosecutors will direct investigations to ensure that the DSO’s investigations are court directed. Prosecutors working for the DSO will prepare and adduce evidence in the prosecution of offences and crimes investigated by the DSO. According to minister Maduna, steps will be taken to ensure an "appropriate distance" between prosecutors and investigators so that prosecutors can make objective prosecuting decisions and properly discharge their responsibilities as officers of the court. These measures may include, for example, guidelines that a prosecutor who has directed an investigations will not make the decision to prosecute or not to prosecute the case in court.183
It is likely — but was uncertain at the time of writing — that the DSO will have an investigations component composed of three sub-components. The first is investigations per se. The second sub-component is technical and operational support, including surveillance, interception and monitoring, high-risk arrest teams, witness protection, and possibly forensic work. The third sub-component is information management, crime trend analysis and target profiling, including the establishment of a central database where the collected information and evidence on all DSO investigations will be stored and collated.184
The head of the DSO is a deputy national director of public prosecutions who exercises his powers, duties and functions subject to the control and direction of the national director. The head of the DSO is assisted by investigating directors and deputy directors, as well as prosecutors, special investigators, persons in the service of any public or other body who are seconded to the DSO, and any other person whose services are obtained by the DSO.185 Investigating directors, and any prosecutors designated by a director, have the same extensive investigative powers as an investigating director of an investigating directorate, including the right to hold inquiries, question people under oath, and search and seizure rights (see ‘investigating directorates’ above).
Head of the directorate of special operations
The first head of the DSO is deputy national director of public prosecutions Percy Sonn. Sonn practised as an attorney for 12 years, focusing primarily on defending accused against the state. He was admitted as an advocate in 1989 and practised at the Cape Bar for six years. Thereafter he joined the office of the attorney-general of the Western Cape rising to the position of deputy attorney-general. In November 1998, he was appointed to head the investigating directorate: organised crime and public safety (IDOC).186
A special investigator of the DSO has the same powers as a member of the SAPS, and the powers bestowed upon a peace officer relating to the investigation of offences, the entry and search of premises, the seizure and disposal of articles, the execution of warrants, and the attendance of an accused person at court. The minister of justice and constitutional development, in consultation with the minister for safety and security, may bestow any power on special investigators that relates to the prevention, investigation or combating of any offence or other criminal or unlawful activity.187
A person may be appointed as a special investigator only after information on the person has been gathered in a screening investigation by the national intelligence agency, and the national director — after evaluating this information — is satisfied that the screened person is not a security risk or may act in any way prejudicial to the objectives of the DSO. From time to time, any special investigator may by subjected to further security screening. A special investigator may be discharged from the DSO should the national director find him to be a security risk or acting in any manner prejudicial to the objectives of the DSO.188 Special investigators are forbidden to strike, and the DSO’s services are designated as ‘essential services’ in terms of the Labour Relations Act.189
The remuneration, allowances and other service benefits of special investigators are determined by the minister of justice and constitutional development, in consultation with the national director and with the concurrence of the minister of finance.190 In respect of special investigators, the DSO will consequently not be bound by public service salary structures and agreements, and will be able to offer better salaries and benefits compared to, for example, the SAPS or the national prosecuting authority.
Minister Maduna has made it clear that the salaries of DSO members will have to be generous:
"To ensure that the DSO succeeds, we have to ensure that the DSO recruits the best and most talented corps of personnel available. Initial entrants will therefore be graduates or highly qualified personnel in a number of technical areas and at senior level. Preference will be given to the recruitment of people with experience and high levels of technical skill. Since the special investigators of the DSO will include chemists, forensic auditors and computer specialists, it would be short-sighted to compare the salaries they will earn to those of ordinary constables in the police service."191
It has been mooted that the structure of the DSO will include an office for internal integrity. This office will be responsible for vetting members of the DSO to ensure that they are able to perform their duties competently, free of corruption and without fear of favour. Such an office would also monitor the overall activities of the DSO to ensure that they are conducted ethically and in compliance with the constitution and other legislation pertaining to their activities.192
The national director accounts on the activities of the national prosecuting authority — including those of the DSO — to parliament. The minister of justice and constitutional development exercises final responsibility over the prosecuting authority and, by extension, the DSO. To enable the minister to exercise responsibility over the prosecuting authority, the national director, for example, must furnish the minister with information regarding any case the prosecution authority or the DSO is dealing with.193
With regard to the finances of the DSO, the minister of justice and constitutional development must appoint a chief executive officer as the accounting officer of the DSO. The CEO, on the recommendation of the national director and with the concurrence of the minister of finance, may order that the expenses incurred by any person in connection with an investigation are paid from state funds to such a person.194 Expenditure in connection with the administration and functioning of the DSO is to be defrayed from money allocated by parliament to the department of justice and constitutional development. Expenditure on the DSO in terms of the government’s medium term expenditure framework is R150 million for 2000/01, R210 million for 2001/02, R272 million for 2002/03 and R316 million for 2003/04.195
With the promulgation of the National Prosecuting Authority Amendment Act of 2000, which formally establishes the DSO, all existing investigating directorates are dissolved (ie IDOC, IDSEO and the investigating directorate: corruption) and become part of the DSO. The staff of the former investigating directorates automatically become members of the DSO.196
Concerns about the Scorpions
Concerns have been raised that the DSO could further debilitate the effectiveness of the SAPS and the morale of its members. As an ‘élite unit’ which handles ‘high-profile’ cases, the DSO’s existence could be interpreted by members of the specialised police units to mean that they will play second fiddle to the Scorpions in future. This, and the fact that DSO members will receive better salaries and have access to better training and resources are likely to entice more experienced and competent SAPS detectives to seek work with the Scorpions. For example, SAPS inspectors — often with many years’ experience — earn a gross salary of approximately R70 000 a year. They can expect, in some cases, to double their salaries with a move to the Scorpions. Salaries start at about R72 000 for a ‘junior investigator’ with the Scorpions. A senior superintendent in the SAPS can expect to increase his annual salary by about R40 000 to R179 000 by joining the Scorpions as a senior investigator.197
Safety and security minister, Steve Tshwete, admits that salary discrepancies between Scorpion members and those of the SAPS have caused tensions "in certain circles," and that salary packages in the police needed to be improved.198 Minister Maduna has defended the relatively high salaries of Scorpion personnel, but has cautioned that disparities between members of the DSO and the SAPS should not be too large as it could demoralise police officers. According to Maduna, remuneration levels in the SAPS should be reviewed.199
The Scorpion leadership also defends the need for high salaries for Scorpion personnel to attract the best people for the job. A stringent vetting procedure ensures that only candidates with good qualifications and the right physical and mental attributes are considered for employment by the DSO. For example, out of an initial 6 000 applicants who responded to a nationwide advertising campaign for Scorpion positions, 400 made it onto the shortlist, and 50 were selected.200 New recruits must have at least one university degree in a specified field of study (eg the natural sciences, law, psychology or computer science); pass a physical and psychological evaluation and examination; undergo psychometric testing, drug testing and polygraph testing; have no previous convictions; show demonstrable support for democratic values and ideals; be under the age of 34 years; and must be South African citizens.201
While the Scorpions will not be a large unit — it is envisaged that it will have a full staff complement of 2 000 members by mid-2003 — it could draw sufficient experienced personnel from the police’s specialised units and specialist prosecutors from around the country that it could negatively affect the investigation and prosecution of ‘normal’ crimes which do not fall within the Scorpions’ field of operation. However, it is these ‘normal’ crimes that fuel the fear of crime among ordinary South Africans. Most people are more worried about the mugger or rapist lurking around the next street corner than a sophisticated crime syndicate flaunting South Africa’s foreign exchange regulations.
The national director of public prosecutions, Bulelani Ngcuka, disputes these fears as unfounded arguing that the Scorpions will indirectly address even the ordinary crimes plaguing the country:
"The very existence of the Scorpions is going to free the police to concentrate on sorting out the problems of ordinary citizens. Because, if the SAPS have the time and are not swamped as they are now, all it takes is one cop to go around to Mrs So-and-so’s home, take a statement, go next door and find that the stuff that’s been taken from her washing line is right there."202
The fact that the Scorpions could be responsible for investigating cases of police corruption is unlikely to endear them to many ordinary police officers. Allegations of police corruption will bring better paid and resourced Scorpion members snooping around police stations. While honest police officers should not object to such investigations in principle, most police members will not look kindly on outsiders meddling in their or their colleagues’ affairs, irrespective of the motive.
After the Scorpions’ launch in September 1999, and until its formal establishment with the promulgation of the National Prosecuting Authority Amendment Act in early 2001, the DSO operated with staff borrowed from other departments and services. Most of these staff came from the police, especially the specialised units in the SAPS. Thus, while the DSO did not have a formal legal existence, and was staffed largely by members of the police service, it claimed credit for the investigation and solving of a number of high-profile crimes.203 This has already caused tension between members of the police and the fledgling Scorpions.204 If not managed properly this tension between the country’s only two national law enforcement agencies could increase, especially if the creation of the Scorpions is seen as a vote of no confidence in the police by the country’s political leadership.205
A further area of potential conflict between the police and the Scorpions is the procedure by which investigations are allocated to the Scorpions and the manner in which this is done. In terms of the National Prosecuting Authority Amendment Act, offences committed in an organised fashion, or offences determined by the president on the recommendation of the minister of justice and constitutional development and the national director, will be dealt with by the DSO. If not handled carefully tensions could arise between the police and the Scorpions if a perception is created among police officers that the Scorpions are allocated the most interesting and high-profile cases so that the latter receives all the glory and praise from the media and the politicians who influence the budgets that the two organisations receive.206
The Scorpions have sought to allay the police’s concerns by arguing that the DSO will be responsible for investigating and prosecuting serious crimes related to organised crime, crimes against the state, economic crime, corruption in the criminal justice system, and individual high-profile cases only. The Scorpions will deal with about 10% of these serious crimes, while the SAPS will be responsible for the remaining 90%. The criteria to be used in deciding whether a crime will be dealt with by the Scorpions will be the crime’s high level of seriousness and impact, the level of violence used in the commission of the crime, the degree of organisation of the perpetrators of the crime that would require an integrated multidisciplinary approach by the state, and the high profile of the crime.207 According to the National Prosecuting Authority Amendment Act, no investigations by the DSO may derogate from "any power or duty that relates to the prevention, combating or investigation of any offences and which is bestowed upon the SAPS in terms of any law."208 Addressing the parliament’s justice portfolio committee on the desirability of legislation to formalise the existence of the DSO, the national director argued that the aim of the Scorpions should be to complement the SAPS and not to compete with it.209
Specialised units in the national director’s office
Asset forfeiture unit
Attacking criminals through their assets
To appreciate the functions and responsibilities of the asset forfeiture unit, it is necessary to understand why asset forfeiture came about, and what the different forms are of asset forfeiture. Historically, law enforcement agencies have combated criminal activity by starting with a police investigation. Such an investigation commenced after a crime had occurred and had as its purpose the collection of incriminating evidence. Such evidence was then used by the state to persuade a court that the accused persons were guilty ‘beyond reasonable doubt’ of the offences with which they were charged. If the state succeeded in doing so, the court would convict the accused and punish them.
Organised crime in South Africa
Organised crime tends to grow rapidly in periods of political transition and violence, when state resources are concentrated in certain areas only and gaps emerge where organised criminal groups may operate.210 Inadequate border controls, a good transport infrastructure, markets for and sources of contraband such as endangered species products and cannabis (dagga), a good banking system, and a supply of trained recruits have contributed to the growth of organised crime in South Africa.211
In 1997, the SAPS identified 192 organised crime syndicates comprising 1 903 primary suspects operating in South Africa.212 The majority of these syndicates specialised in drug-trafficking (96 syndicates), vehicle-related crimes (83 syndicates) and commercial crime (60 syndicates). At least 32 of the 192 known organised crime syndicates in South Africa were operating internationally, while the criminal activities of 150 of these syndicates were restricted to countries in sub-Saharan Africa.213
The number of crime syndicates, however, is not in itself necessarily a good measure of the threat they pose to a country. One or two well-developed criminal operations can pose a greater danger than many small operations working in opposition to one another. “The relative fragmentation of organised crime in South Africa suggests that there is a ‘window period’ in which appropriate interventions can make a substantial difference.”214
With the growth and increased sophistication of organised criminal groups, law enforcement agencies argue that the traditional approach in fighting crime is inadequate when combating organised crime effectively. Organised crime revolves around money and power. The criminals who are involved in organised crime are motivated primarily by financial considerations (and not revenge, hate or lust as is often the case with ‘ordinary’ criminals). Consequently, if the state is to combat organised crime successfully, it must pursue the assets belonging to organised criminal groups and the proceeds such groups generate from engaging in illegal activity. This is done through ‘asset forfeiture’ where the state or its law enforcement agencies investigate the assets surrounding the crimes committed by organised criminal groups and confiscates them. Asset forfeiture therefore targets assets rather than individual criminals (as is the case with the traditional law enforcement approach). There are two forms of asset forfeiture: criminal asset forfeiture and civil asset forfeiture.
Criminal asset forfeiture
Criminal asset forfeiture is not new to South African law. The Criminal Procedure Act of 1977 allows the courts, after convicting an accused of an offence, to forfeit property to the state that was used to commit an offence or to facilitate its commission.215 The Drugs and Drug Trafficking Act of 1992 obliges the courts to forfeit to the state certain property used by persons convicted of drug-related crimes in the commission of those crimes.216 The Proceeds of Crime Act of 1996 provided for the recovery of the proceeds of crime. A court could enquire, after the conviction of an accused person, into any benefit that the accused may have derived from the offence of which he had been convicted. If such a benefit was found to exist, the court could make an order confiscating the proceeds of the offence from the accused.
The Prevention of Organised Crime Act of 1998 allows the proceeds of crime to be forfeited to the state through a civil action after the accused has been convicted.217 It works like a normal civil action where the state obtains a financial judgement against a convicted accused for the amount of the benefit of the crime (for example, the money defrauded or the value of the cars stolen). The judgement can be executed against any assets of the accused. There is no need for the state to show that the forfeited assets are the proceeds of crime or otherwise tainted through the commission of an offence. Forfeitable property is property held by the accused plus the value of any ‘affected gifts’ made by the accused. An affected gift is one made in the seven years preceding the prosecution, or which was originally received by the accused in connection with unlawful activities. According to the national director of public prosecutions, criminal asset forfeiture represents a ‘scorched earth’ approach to fighting crime, whereby the state deprives criminals of their freedom and their property — leaving them with nothing.218
Civil asset forfeiture
The second and more drastic form of asset forfeiture is civil asset forfeiture. Civil forfeiture allows the state to confiscate the property of suspected criminals through a civil action against the property without the suspected criminal being convicted in a criminal trial, or there even being a criminal case.219 On application by the national director, the high court must make an order forfeiting property to the state that the court, on a balance of probabilities, finds to be ‘an instrumentality’ of a crime, or is the ‘proceeds of unlawful activities’. The validity of such an order is not affected by the outcome of criminal proceedings. That is, a suspected criminal can be acquitted in a criminal court, where the state has to prove its case beyond a reasonable doubt (a higher burden of proof than a ‘balance of probabilities’), and still have his property forfeited to the state through a civil forfeiture action.
Proponents of civil asset forfeiture argue that it is a drastic but necessary weapon to hurt organised crime bosses against whom there is usually insufficient evidence to lead to their conviction in a criminal court. According to the director of the asset forfeiture unit:
"the heads of syndicates are seldom directly involved in crime, and it is notoriously difficult to convict them of any offence. Usually their foot soldiers are convicted, but they seldom own any of the assets. With civil forfeiture the state can take the assets and at least hurt the syndicate heads financially, even if they cannot be convicted of an offence. It helps to deter crime by making it less profitable."220
Before making an application for the forfeiture of property, the national director will usually apply to the high court for a ‘preservation of property order’ prohibiting any person, subject to such conditions and exceptions as may be specified in the order, from dealing in any manner with the property targeted for forfeiture. To obtain a preservation of property order, the state must persuade the court that there are reasonable grounds to believe that the property is the proceeds of crime or an instrument of crime.
The state can approach civil asset forfeiture from two angles. First, the state can seek to prove that certain assets are the ‘proceeds of crime’. This enables the state to get past the front companies set up by organised crime syndicates to hide the true owners of the assets. For example, where a suspected criminal registers his mansion in his second cousin’s name the state can argue that the house is the proceeds of crime irrespective of who the owner is. Second, the state can seek to show that the assets in question are the ‘instrumentality of crime’. This is a very broad concept and can include assets peripherally involved in a crime. For example, a motor vehicle used by bank robbers to escape from the scene of a crime, or a hotel used (with the owner’s knowledge) as a meeting place for drug dealers to sell their wares to drug users.
Concerns about civil asset forfeiture
In the United States, the Racketeer Influenced Corrupt Organizations Act of 1970 (or RICO act) is generally associated with asset forfeiture. Civil forfeiture has a bad reputation in the US.221 Until recently, officials could seize property without notice, upon an ex parte application (without hearing the defendant’s case) of probable cause that the property was ‘involved’ in a crime. ‘Probable cause’ could be based on nothing more than hearsay, innuendo, or the oral evidence of a party with interests adverse to the property owner.222 Moreover, the US law did not provide for an innocent owner defence. That is, even innocent people (who were unaware of how their property was being misused) could lose their property if it was, for example, an instrumentality of an offence. For example, the US Supreme Court upheld the forfeiture of a car used by a man to solicit a prostitute even though he owned the vehicle jointly with his wife who was clearly innocent. In another case, the house of an elderly couple was forfeited to the state because their grandson had secretly used the telephone in the house to phone a local drug dealer to place an order for some illegal drugs.
Because of abuses of civil forfeiture laws in the US, reforms were undertaken to place a greater burden on the state to show that the property seized was derived from crime, and to provide for an innocent owner defence.223 South Africa’s civil forfeiture legislation already incorporates these reforms. For example, in South Africa’s case, the state has to show, on a balance of probabilities, that the property to be forfeited is an instrumentality of an offence or the proceeds of unlawful activities.224 In the US, before the reforms, the burden was on the owner of the property to prove a negative, that is, that the property is not the proceeds of crime or the instrumentality of an offence. Moreover, the South African legislation incorporates an innocent owner defence. To utilise the defence, the owner of the property to be forfeited has to show on a balance of probabilities that he acquired the property legally and neither knew nor had reasonable grounds to suspect that the property was the proceeds of crime or the instrumentality of an offence.
A further criticism of asset forfeiture in the US is that proceeds from forfeitures go to the US justice department’s forfeiture fund, and local law enforcement agencies involved in the confiscation of assets. This has tended to induce police officers and prosecutors to concentrate on crimes such as drug-dealing, which often occurs on valuable property, at the expense of other pressing crime problems such as murder and rape. In South Africa, the proceeds of successful forfeiture actions are paid into a criminal asset recovery fund to be used to render financial assistance to law enforcement agencies and victims of crime.
Notwithstanding the safeguards contained in the South African civil asset forfeiture legislation, a number of South African organisations representing the legal profession and civil society organisations have voiced their concerns about the civil asset forfeiture provisions contained in the Prevention of Organised Crime Act.225
The asset forfeiture unit
One of the reasons why asset forfeiture was slow in getting off the ground in the United States was that ordinary prosecutors and investigators had difficulty in applying new and complicated forfeiture legislation. Forfeiture involves complex new civil law about which most police officers and prosecutors know very little. International experience has shown that asset forfeiture legislation is implemented poorly because the police and prosecutors tend to focus their activities on achieving convictions. In the US, it was only when Congress voted a special budget to employ forfeiture specialists in each of the US Attorneys’ offices that civil asset forfeiture legislation was used effectively.
Based on international experience, the national director set up a specialist unit — the asset forfeiture unit (AFU) - in May 1999 to ensure that South Africa’s new forfeiture legislation is used effectively. The AFU has been created to serve as a dedicated unit to build up the necessary expertise to deal with the complexities of forfeiture and of which performance is measured solely in terms of forfeiture. The AFU has adopted a multidisciplinary approach and is staffed by criminal and civil lawyers, financial investigators and accountants.
The AFU intends placing forfeiture specialists in all the provincial offices of the directors of public prosecutions. These specialists will work side-by-side with prosecutors to assist the latter with forfeiture-related work. In this way, expertise on forfeiture will be fostered throughout the prosecution service. This will serve to ensure that forfeiture becomes an integral part of normal law enforcement work in South Africa. According to its director, the AFU will:
"encourage people to become involved in asset forfeiture to ensure that there are some specialists in each of the major cities who can work with the police and prosecutors there. This is the way to broaden the use of forfeiture and make it more and more part of what prosecutors should be doing in their normal course of work."226
The fledgling AFU was warned by international law enforcement experts to expect much litigation from rich and powerful criminals desperate to hang on to their ill-gotten gains, and who can afford to employ the best legal counsel to exploit any possible weakness or gap in the forfeiture law. Initially, the AFU experienced difficulties in the courts on the issue of whether the forfeiture law should apply retrospectively (ie whether the law covered assets accrued before the Prevention of Organised Crime Act was promulgated). This led to the AFU losing three of its first six cases.227 However, the unit has performed well overall. By February 2001, the unit had been successful in 49 of its 56 cases, and seized assets with a value in excess of R200 million.228 However, only one case involving R145 000 had made it through the complete legal process with the money being paid into the criminal assets recovery fund. By law, money generated through the forfeiture of assets go to a criminal assets recovery fund to be used to render financial assistance to law enforcement agencies to combat organised crime, money-laundering, criminal gang activity and crime in general, and to assist victims of crime.229 As the head of the AFU puts it: "One of the nice things about forfeiture law is being able to take the criminals’ money and use it to fight them again afterwards."230
The AFU set a number of priorities for 2000/2001, its second year of operation:231
- It aims to take the initial ‘seizure’ actions — where the assets of suspected criminals were merely frozen — to the next stage in the legal process where they are forfeited to the state. This will permit the proceeds to be paid into the criminal assets recovery fund.
- It plans to initiate some 100 forfeiture cases and target some of the major crime figures and syndicates who are on the ‘most wanted’ list of the national director.
- It will fight test cases in the courts to obtain greater clarity on the courts’ position on civil asset forfeiture. This will permit the AFU to engage some of the best legal brains to assist and develop the country’s prosecutors on the issue of forfeiture.
- It will broaden the focus and use of forfeiture. With this in mind the AFU has opened sub-offices in Cape Town and Durban. Further offices are planned for the larger centres in South Africa.
International experience has shown that it takes time for a criminal justice system to adopt and employ new laws successfully. This is especially the case with organised crime where investigators work in teams, and investigations are lengthy and intricate. The AFU expects to battle its way through the courts for the first two to five years of its operation. Based on the US experience, where asset forfeiture cases have gone to the supreme court eleven times during the past 10 years, it takes time before the courts accept civil asset forfeiture as a legitimate law enforcement tool. Today, asset forfeiture is frequently used as a weapon in the fight against organised crime in the US. For example, during 1999, assets to the value of over US $500 million were seized in the US.
Sexual offences and community affairs unit
Aims of the unit
The sexual offences and community affairs unit (SOCA unit) was established in September 1999. The unit aims to reduce levels of violence against women and children, and minimise the secondary victimisation many victims of sexual offences experience in their dealings with the criminal justice system. The unit is part of the ongoing efforts of the national prosecuting authority to improve the service provided by prosecutors for victims of sexual offences and domestic violence.
The objectives of the SOCA unit are to:232
- reduce the incidence of sexual offences and secondary victimisation of victims of sexual crimes;
- adopt a victim-centred approach to prosecution;
- develop specialist prosecutors to deal with sexual offences;
- establish specialist sexual offences courts, and develop the expertise of sexual offences prosecutors who do not fall under the jurisdiction of a sexual offences court;
- co-ordinate the management of offences against women and children; and
- determine policy and set minimum standards for the service provided by the criminal justice system to women and children as victims of sexual offences.
The unit seeks to influence the development of legislation, government policy and procedures to cater for the protection of women and children. The unit also assists the government to comply with relevant international conventions of which South Africa is a signatory. These include the Convention on the Rights of the Child, and the Convention for the Eradication of all forms of Discrimination against Women.233
Abused women neglected by state?
A nationwide survey on various forms of abuse committed against women was conducted in mid-2000. The aim of the survey was to understand women’s experiences of violence, and to determine their perception of services rendered by the state to female victims of violence. The survey focused on women’s experiences of physical, emotional and sexual abuse over a five-year period preceding the survey.234
Women who participated in the survey reported similar experiences of abuse irrespective of where they lived. Service provisions for abused women, however, differ for those who live in rural, urban or metropolitan areas. With regard to their experiences with the police, women in the metropolitan areas generally reported lower levels of satisfaction than abused women who sought help from the police in rural areas or those living in townships and suburbs.
Overall, virtually all (92%) women felt that the abuse they were subjected to constituted a crime. Yet, most abused women sought help from their family (60% after their most serious incident of abuse), followed by the police (47%), counsellors (46%), medical persons (42%), district surgeons (24%) and legal persons (11%). Only 3%, or 17 out of 565 abused women who sought help during the five-year period, ended up in court to testify against their abuser.
Multidisciplinary and victim-centred
According to the policy manual of the national prosecuting authority, it is:
"of paramount importance that prosecutors recognise the interests of victims of sexual assault (including rape and indecent assault) from the start of the investigation through to the finalisation of the case. The physical, emotional and psychological wellbeing of the victim must be given precedence. A victim-centred approach will create an environment in which sexual assault victims report incidents of sexual assault more frequently, and contribute to the reduction of secondary victimisation."235
As part of its victim-centred approach, the SOCA unit played a leading role in setting up the country’s first ‘one-stop’ centre for rape victims in June 2000. The Thuthuzela rape care centre at the C F Jooste hospital in Cape Town is a multidisciplinary centre where all roleplayers necessary for a successful rape investigation and prosecution are situated who can provide a rape victim with an ‘integrated service strategy’.236 When a complainant reports a rape, the police or medical services immediately take her to the centre where she is met by a trained co-ordinator. A prosecutor, investigating officer and doctor are then called out to the centre. In this way, the doctor can perform a medical examination of the complainant and collect any relevant forensic evidence. Immediately thereafter, the investigating officer can take a detailed statement from the complainant and follow any leads she provides to further the criminal investigation. The prosecutor at the centre works with the investigating officer to guide the investigation, and decides when there is sufficient evidence to proceed with a prosecution. The prosecutor meets with the complainant at least two weeks prior to the trial to consult with her. Throughout this process, and until after the completion of the trial, the complainant receives guidance and support from a trained counsellor.
The Thuthuzela rape care centre has brought together a number of important roleplayers to assist victims of sexual offences. The director of the SOCA unit intends to incorporate the services of other specialists in future one-stop centres to provide an even better and more comprehensive service to victims:
"My vision of a multi-disciplinary [one-stop] centre is one that has all the roleplayers and no less. We must have forensic nurses, doctors, psychiatrists, psychologists, social workers, intermediaries [for child victims], victim support services, lay counsellors, and community prosecutors available on a full-time 24 hour basis, and a magistrate and interpreter on an on-call basis 24 hours a day. Indeed if we adopt a victim-centred and court directed approach we cannot have less."237
A centre such as the Thuthuzela rape care centre can assist rape victims in a number of ways. First, by placing all the necessary roleplayers under one roof, victims are spared the inconvenience and discomfort of having to travel from the police station to the district surgeon shortly after having suffered the trauma of their rape. Second, victims are assisted by people who are trained experts able to assist rape victims, and investigate rape and other sexual offences. Third, victims can make a statement to an investigating officer — under the guidance of a prosecutor — within hours of being brought to the centre, thus ensuring that victims’ initial statements are taken while the facts are still fresh in their memories. Fourth, the investigating officer and prosecutor whom victims meet at the centre are generally allocated to their case until the investigation is finalised and the perpetrator is prosecuted. This assists all three parties in building up levels of trust and permits the prosecutor to become acquainted with the details of the case and the complainant before the trial. Finally, victims have almost immediate access to counselling services to assist them until the finalisation of their trials.
The Thuthuzela rape care centre is a pilot project to demonstrate that the use of a centrally-based, multidisciplinary team approach to the investigation and prosecution of rape can improve the treatment of victims, streamline and speed up investigations and prosecutions, and provide reliable information about rape and the criminal justice system’s response to the community. The purpose of the project is not to eliminate or even reduce rape cases dramatically, but rather to inspire confidence in the criminal justice system among victims, the community and the personnel working at the centre. The project also seeks to complement and promote the efforts of community structures, including rape advocacy and counselling groups, to play a more active role in the criminal justice process.238
A ‘one-stop’ centre can achieve its objectives only if all the roleplayers work together and co-operate. For most areas of the country where rape victims do not have access to such centres, this kind of co-operation needs to be enhanced. This is crucial in the case of rape as it is technically one of the more difficult crimes to prosecute successfully. The police use forensic evidence and district surgeons’ reports to build up their case. The prosecution usually relies on the evidence of a single witness who is also the complainant. The forensic evidence available to the prosecution to support its case has to be acquired in a procedurally correct manner, has to be uncontaminated, and has to be presented to the court according to arduous laws of evidence. A successful rape prosecution therefore requires the co-operation of at least three government departments: health (the district surgeon), safety and security, and justice. It is consequently encouraging that the policy manual of the national prosecuting authority emphasises that the investigation and prosecution of sexual assault cases can be enhanced by a co-ordinated, multidisciplinary approach. Moreover, it indicates that specialist prosecutors are required in sexual assault cases who should be selected on the basis of their experience, temperament and ability to relate to victims of sexual assault.239
Training
As the successful prosecution of sexual offences requires considerable expertise and skills, the SOCA unit has sought to improve the training of prosecutors dealing with such crimes. As the successful prosecution of sexual offences requires the co-operation of a number of different roleplayers and departments, the unit has endeavoured to provide joint training courses for those dealing with victims of sexual crimes. Training courses are designed to emphasise the importance of interagency co-operation in the investigation and prosecution of sexual offences, and to encourage co-operation between different roleplayers. The training also seeks to encourage prosecutors to become more involved in the investigation of sexual offences.240
The SOCA unit developed a basic two-week training course on investigation and prosecution techniques, the presentation of evidence, and trial advocacy skills in sexual offences. The course is presented to a mixture of roleplayers including prosecutors and police investigators. The training emphasises the importance of forensic evidence in prosecuting sexual offences. The belief, common in the past, that a case succeeds or fails on the credibility of the victim who is often the only witness, is being refuted as improved technology allows forensic evidence to play an increasingly important role in the prosecution of sexual offences. The unit identified the poor standard of reports prepared by district surgeons on victims of sexual offences as a weakness in the ability of the state to prosecute sexual offenders successfully.241 The unit’s training course devotes a training session exclusively to district surgeons, emphasising the importance of forensic evidence in corroborating the evidence of a single witness. District surgeons are also instructed on what evidence to look out for when examining victims of sexual offences and how to give evidence in court.242
The SOCA unit found a dire shortage of basic skills among prosecutors. As rape and other sexual offences are difficult crimes to prosecute this lack of skills can result in trials being lost unnecessarily. In conjunction with the justice college of the department of justice, the unit saw to it that prosecutors are trained in the basics of prosecuting sexual offences such as how to interview traumatised victims (especially child victims), cross-examination techniques, and the presentation of forensic evidence, for example, DNA evidence.
Specialist courts
Specialist sexual offences courts that prosecute sexual offences only, allow prosecutors who work in these courts to become experts on the law as it applies to sexual offences, and in the prosecution of sex offenders. In-depth training is planned for such prosecutors by technical experts on sexual offences. Sexual offences courts usually have special facilities such as private waiting rooms and closed-circuit television (so that child witnesses can testify via an intermediary and do not have to face the accused in the formal setting of a courtroom) to assist victims and make the prosecution process more comfortable for them.
Sexual offences courts are not new. The first such court was set up in 1993 in Cape Town. A further six similar specialised courts have since been established, with some only dealing with sexual offences against children.243 The SOCA unit, in conjunction with the department of justice, is planning to increase the number of sexual offences courts around the country to 20. Decisions about the location of the new courts are based on the number of rapes reported to the police. In places where children’s courts already exist, courts will be extended to deal with adult victims of sexual offences as well. In establishing new sexual offences courts, the SOCA unit intends to draw on the best practices from the existing courts.
An evaluation of the country’s first sexual offences court in Wynberg (Cape Town) in 1997 found that the specialised court was a step in the right direction.244 However, some problems with the court were identified, including:
- The sexual offences court is an administrative response to sexual offences that does not necessarily address the procedural problems in the criminal justice system faced by victims.
- Victims are not always provided with pretrial consultations and assistance, making their courtroom experience unnecessarily traumatic.
- There are no procedural guidelines for the officials working at the sexual offences court so that victims do not always receive consistent and reliable service.
- In cases where victims are asked to wait in a private waiting room, they often feel isolated because they wait alone for lengthy periods of time, sometimes without an explanation of what is happening in the courtroom. This can cause further trauma to the victim.
Information-driven approach
The SOCA unit has adopted an information driven approach to assist it in setting priorities and developing new initiatives. Through a national forum of public prosecutors on sexual offences, experienced sexual offences prosecutors from the various (provincial) directors’ offices come together on an irregular basis to discuss issues of common concern and to co-ordinate activities around sexual offences. The forum is an opportunity for sexual offences prosecutors from different regions to inform the SOCA unit of the unique circumstances and problems in their areas.245 Moreover, the unit collects statistical information on the incidence of sexual offences and domestic violence in the jurisdictions of the various directors of public prosecutions.246 This assists the unit in identifying areas where the prevalence of these crimes is particularly high and where the conviction rate is unusually low. On the basis of this information, the unit can ascertain which areas require more sexual offences prosecutors or even specialised sexual offences courts, and where prosecutors require additional training in the prosecution of sexual offences.
The SOCA unit has an interest in promoting preventive strategies in respect of sexual offences. The unit plans to establish an extensive database on sexual offences. This would provide the unit with accurate statistical information on, among others, where and at what time of the day sexual offences are the most prevalent. Properly analysed, the information contained in such a database would also permit the unit to establish whether there is, for example, any correlation between poverty, unemployment or the availability of recreational facilities for young men, and the prevalence of sexual offences in a community. Such information would assist the unit in identifying potential risk areas for sexual offences and to respond through preventive strategies in conjunction with the police.247 The SOCA unit is also striving to establish a databank containing information on convicted sex offenders. Such information would include personal details such as convicted offenders’ ages and addresses, the crimes they have been convicted of, their photographs, and possibly also particulars of their DNA. This would assist law enforcement agencies in locating and identifying suspects, and prosecuting repeat offenders.248
New sexual offences legislation
In 1999 the South African law commission published a discussion paper on sexual offences, including a draft Sexual Offences Bill to consolidate and amend the laws relating to sexual offences.249 In terms of South Africa’s common law, rape is committed only when a man has intentional unlawful sexual intercourse with a woman without her consent. Non-consensual anal or oral penetration does not constitute rape in common law, although it can constitute indecent assault. The commission proposes the repeal of the common law offence of rape and its replacement with a new gender-neutral statutory offence. The commission proposes that sexual penetration should be unlawful per se when it occurs under coercive circumstances. Moreover, sexual penetration should be defined broadly to include the penetration ‘to any extent whatsoever’ by any object or part of the body of one person into the vagina, anus, or mouth of another person.
To obtain a conviction in terms of the current common law definition of rape, the prosecution must prove beyond a reasonable doubt the fact that the complainant or raped woman did not consent to sexual intercourse. Controversially, the commission recommends that the absence of consent to sexual intercourse should not be an element of the offence of rape. While the accused would be able to raise consent to sexual intercourse as justification for his unlawful conduct, the onus of proof would be on the accused to show that such consent did in fact exist.
Court management unit
Before the establishment of the national prosecuting authority, no performance management framework existed to govern and monitor the work of prosecutors. There was no objective way of rewarding a job well done or dealing with those who failed to perform. The court management unit was established to develop a performance management framework for the prosecution service and to assist the national director in improving the efficiency and effectiveness of the prosecution service.
The unit can manage the courts only if there are sufficient, competent and motivated prosecutors at each office in the country. To achieve this, the unit undertook a number of projects that fall within the human resources area during its first 18 months of operation. With time, such activities will be taken over by the national prosecuting authority’s human resources division to allow the court management unit to focus on its line function: the improvement of service delivery by prosecutors working in the country’s courts. Since its inception the court management unit has developed a number of structures and initiatives to assist it in achieving its objectives.
Court management statistics and database
Since April 1999 for the magistrate’s courts, and from September 1999 for the high court, the court management unit has collected detailed statistics on the performance of the prosecution service in every court in the country. National statistics and information on individual courts are collected on performance indicators such as the number of hours courts are in session; the number of cases that are outstanding on the courts’ rolls; and the number of cases that have been finalised and how they have been finalised (ie withdrawn, removed from court roll, or cases ending in the conviction or acquittal of the accused).
Such detailed statistics are a useful management tool and allow the national prosecuting authority to identify areas where there are too few courts or prosecutors in relation to the number of cases that are presented to the prosecution service. The statistics have also permitted the national director to enter into a performance agreement with prosecutors linking salary increases to agreed upon performance targets. In May 2000, individualised performance targets were set for each court in the country. Since then the focus has been on the performance of individual courts. Courts that are performing poorly are closely monitored and chief prosecutors who are in charge of such courts must report back to the court management unit on a monthly basis on progress made in respect of such courts.250 In the past no reliable national database existed of prosecutors’ particulars such as their experience levels, academic qualifications and levels of training. The court management unit has developed a national database that will contain particulars which are collected through personal interviews with prosecutors.
The court management unit has compiled a workload evaluation report in respect of each prosecutors’ office in the country. Read together with the court management statistics, this permits the unit to identify courts where new prosecutors’ posts need to be created, where the outstanding court rolls are unusually high but the available prosecutors are performing well under the circumstances, or where posts can be abolished due to a lack of work.
Training
In the past newly graduated law students were appointed to the prosecution service and expected to prosecute without any practical training. This lack of training was mitigated by an informal system of training conducted by magistrates who would subtly guide new and inexperienced prosecutors in the right direction whenever mistakes were made. Notwithstanding this informal training system, most prosecutors learned by trial and error and made many mistakes. Since the late 1990s, a strict separation between prosecutors and judicial officers has been imposed and the informal training process has largely fallen away. Prosecutors could previously attend training courses at the justice college in Pretoria. However, such training was usually only available to prosecutors who had been working in the courts for six to 12 months by which time many mistakes had been made because of a lack of practical training and experience. Moreover, most of the prosecutors who were stationed in the erstwhile TBVC states (Transkei, Bophuthatswana, Venda and Ciskei) received no training at the justice college.251 The position of untrained prosecutors in these areas is often exacerbated by the fact that most of the courts in the old TBVC areas are too small to have a senior public prosecutor who could mentor his inexperienced junior staff.252
To address the gaps that exist in the training of prosecutors, the court management unit, in conjunction with the justice college, devised new training courses. The courses emphasise the teaching of basic court skills instead of theoretical legal principles. The justice college presents four different courses to accommodate prosecutors with varying levels of skill and experience:253
- Basic training course for candidate prosecutors who are appointed on a six-month contract basis: These are six-month courses divided into one month theoretical classroom training at the justice college, and five months of on-the-job training inside a functioning courtroom. For the on-the-job training, groups of 10 prosecutors are sent to different court centres in the country where each group is tutored by an experienced prosecutor. ‘Job shadowing’ forms an important part of the training. A group of three or four prosecutors are placed in a court, under the tutorship of an experienced prosecutor in the particular court. The trainees assist the prosecutor in the day-to-day running of the court, do the postponements and draw up the charge sheets. In this way the trainee prosecutors become familiar with the functions and responsibilities of a prosecutor in a court. At the same time the trainees receive lessons on the presentation of a case, the evidentiary requirements relating to various offences, the rules relating to court proceedings, and court etiquette. Prosecutors who fail either the theoretical or practical part of their training are not employed on a permanent basis by the national prosecuting authority.254
- Professional development training: This consist of one-week refresher courses for prosecutors who have some prosecuting experience. Two such courses are held for up to 40 prosecutors in every province per year. Chief prosecutors in the various provinces select the prosecutors who attend the training courses and suggest what material should be covered in each course. Professional development training courses typically cover aspects of criminal procedure, the law of evidence, general principles of criminal law, specific offences, and human rights training.
- Specialist training: These are courses that are held irregularly for experienced specialist prosecutors. Such courses are generally conducted by senior staff from the specialist units and investigating directorates in the national director’s office. Specialist training typically covers civil asset forfeiture legislation, money-laundering offences and sexual offences.
- Advanced prosecutor training: These are one-week courses for prosecutors with more than two years’ experience. These courses are an advanced version of the professional development training course and also focus on specific aspects of the law and criminal procedure.
The court management unit, in conjunction with the justice college, is planning to provide training to permanently employed prosecutors who never received any training — mainly those stationed in the erstwhile TBVC states.255 The idea is to employ some 12 experienced prosecutors as tutors who will be based in the larger rural centres of the country. From these centres, the tutors will travel to outlying courts and identify prosecutors who are in need of training.256 Such prosecutors then receive on-the-job training, after which they would be eligible to receive professional development training.
Disciplinary matters
In the past, disciplinary enquiries in respect of prosecutors were generally handled by the department of justice and senior magistrates. There was often a long delay in the holding of such enquiries and, by the beginning of 2000, there were 72 prosecutors in the country who were under suspension or investigation. At the time the court management unit became involved in the holding of disciplinary enquiries and managed to finalise 15 long outstanding matters by June 2000.257 The unit also began to train senior prosecutors to deal with disciplinary enquiries, and prepared a labour law manual to inform prosecutors of their rights and obligations.
