National Prosecutions Research Articles

Strengthening Law Enforcement to Address White-Collar Financial Crime in South Africa's Private Sector

With the government's focus on combatting public sector corruption and violent crime, the plight of white-collar financial crime in the private sector is of subordinate priority. This contribution seeks to explore means to enhance the capacity of law enforcement agencies to combat white-collar financial crime in the private sector. We clarify the salient terminology and give an overview of the role of financial sector regulators in financial crime prevention in South Africa, focussing on the Financial Sector Regulation Act 9 of 2017. Financial sector regulators have an important role to play against financial crime, though they are dependent on the criminal justice system to protect the financial sector against criminals. This section is followed by an overview of the role and functions of the South African Police Service, the National Prosecuting Authority, and the court system. We identify difficulties which may hinder the prosecution of white-collar financial crime. First, there is a tendency that companies do not investigate conduct that may amount to white-collar financial crime, and otherwise do not report such incidents. Second, there is a need for a specialised and independent law enforcement agency to attend to serious white-collar financial crime. There is also a skills shortage in the National Prosecuting Authority relative to the intricacies of white-collar financial crime. As remedial measures, companies ought to apply the corporate governance principles of King IV more robustly. Artificial intelligence can also be utilised to prevent white-collar financial crimes committed in cyberspace. Private sector agencies should be vested with a more comprehensive duty to report white-collar financial crime to the authorities, and the protection and scope of whistle-blowers should be increased. We propose the introduction of Deferred Prosecution Agreements, as well as cooperation between the State and the private sector, to weaken capacity constraints in the prosecution process.

Under the influence: the Kusile tender and state capture permeating the national prosecuting authority

Purpose The purpose of this paper is to give light to the present order of state capture and corruption within South Africa at present. South Africans often consider the National Prosecuting Authority to be an independent body which is free of the corruption of the rest of the Government; however, the situation that surrounds the Kusile Tender will suggest otherwise. Design/methodology/approach This paper’s approach is purely qualitative using journal articles, textbooks, reports, periodicals, speeches and legislation as its basis. It is through a consolidation of this literature that this paper was formed. Findings This paper determines that even the National Prosecuting Authority of South Africa is not free from the scourge that is corruption through the depiction of the Kusile Tender. Within this tender, the National Prosecuting Authority entered into a non-prosecution agreement with a defendant, Asea Brown Boveri, which cannot be accounted for in the Criminal Procedure Act 51 of 1977. Originality/value The concept of state capture and corruption are not new to any jurisdiction, let alone South Africa. This paper, however, intends to give insight into how even the departments which the public believe to be (and are constitutionally mandated to be) independent can fall prey to corrupt dealings.

The German Code of Crimes Against International Law at Twenty

Abstract More than 20 years ago — on 30 June 2002 and thus one day prior to the Rome Statute of the International Criminal Court — the German Code of Crimes Against International Law (CCAIL) entered into force and since then allows for the national prosecution of the international core crimes. The most far-reaching innovation of the CCAIL is its broad jurisdictional reach. It is based on the principle of universal jurisdiction and empowers the German judicial authorities to prosecute genocide, crimes against humanity and war crimes even when they are committed abroad and have no specific link to Germany. After some initial hesitation, Germany today plays an active role in the international fight against impunity for core crimes. Prominent examples are the Koblenz torture trial against former members of the Assad Regime, the conviction of Taha Al-J. for genocide against members of the Yazidi community by the Higher Regional Court of Frankfurt and the decision of the Federal Court of Justice on the irrelevance of functional immunities. Sometimes, however, the Higher Regional Courts do not seem to be sufficiently aware of the international dimension and meaning of the cases. This negatively affects the trial management and the communication of the Courts with the (international) public.

Justice starts at home: A call for stepped-up nationally-led investigations into torture

In my role as the UN's lead expert on tackling torture I see the scale and extent of torture crimes being perpetrated by – and being ignored by – States every day, and everywhere. It is my opinion that only through national prosecutions can the cycle of impunity – the antithesis of accountable government – be broken. For too long, the burden of achieving justice has been pushed onto overloaded and inherently limited international courts and tribunals, even as they play an important role (and sometimes are the only acceptable actor). In this column I make the case why national prosecutions are so important and how they can be achieved.

Empowerment of Patani Students through the Islamic Student Association of South Patani Thailand

Empowerment is an important aspect of the Thai South Patani student association in Indonesia (PMIPTI). This has a very important influence on Thai South Patani students who come to study in Indonesia because Thai South Patani students need to adapt to their surroundings, especially where Thai South Patani students study. Thus, this organization (PMIPTI) exists as a means to facilitate Thai South Patani students in carrying out their study activities, where this organization (PMIPTI) provides empowerment to students in various fields, including empowerment in the fields of education, ethics, and culture and language. This type of research is a qualitative descriptive analysis in the form of field research using data collection techniques, namely observation, interviews and documentation. Sources of data were obtained from interviews with Thai South Patani students who were educated and joined in the Association of South Patani Thai Islamic Students in Indonesia (PMIPTI) Padang City and there were also taking references from national prosecution (TUNAS), related Islamic history and culture journals with the Development of Thailand's South Patani students. The results of this study concluded that the Empowerment of Patani Students Through the South Thai Patani Islamic Student Association in Indonesia (PMIPTI) Padang City "can be divided into three fields. the first is the field of education which is useful for Thai Patani students to change their character, mind and body by doing positive things such as learning Indonesian well. Second, the field of Malay ethics and culture of Thai South Patani students in Padang City can be seen through aspects of behavior and traditions and objective aspects of dress culture. Third, the student language field has two communication barriers, namely academic barriers and non-academic barriers. The academic obstacle most felt by Thai South Patani students comes from their limited mastery of the Indonesian language.

Exploring the Impact of Arrests and Prosecution on the Perpetrators of Service Delivery Protests Crimes in South Africa

This article explores the impact of arrest and prosecution on the perpetrators of service delivery protests crimes in South Africa. To date, most service delivery protests turned out to be violent and destructive to properties as well as posing a threat to the livelihood of ordinary citizens. This is because most of these service delivery protests are spontaneous and put the security and economy of the country at risk. Citizens are not conscientious by government, civil society, community organisations and leaders regarding the role of the police during the protests which makes it difficult for the police to manage these protests. The researchers followed a descriptive research approach to gather data. Data was gathered from media reports, parliamentary reports, articles, journals and statistics reported by the South African Police Service and National Prosecuting Authority (NPA). Data was purposively identified from primary sources to achieve the study purpose. The study found that criminal activities derived from service delivery protests and the challenges faced by both the SAPS and NPA in relation to arresting, charging and prosecuting the perpetrators of service delivery protest crimes in South Africa. The study found that the arrest and prosecution of service delivery protest criminals have no impact on reducing violent service delivery protests in South Africa. There is also inconsistency with regard to the number of completed (enrolled and prosecuted) cases by the NPA and the number of arrests effected by SAPS, despite that the NPA reported a successful conviction rate. The NPA is perceived to be enrolling and prosecuting easy-winnable cases related to protest crimes. Furthermore, most of the arrested protesters are either released with a warning or left off the hook without being charged by the police due to the failure to secure proper evidence. The study recommends that both the data presented by the SAPS relating to the number of arrests made and cases prosecuted by NPA must be thoroughly interrogated by responsible oversight bodies including civil society organisations due to its discrepancy.

FOURTH ANNUAL CONFERENCE OF THE DEPARTMENT OF CRIMINAL JUSTICE AND PROCEDURE AND THE JOURNAL OF ANTI-CORRUPTION LAW

Thank you for inviting me to open this conference. I am privileged to be here. The conference programme contains some timely and important discussions that we should have. I therefore hope to participate in some of the discussions which will take place in the parallel sessions of this conference.Before I proceed with my address, I would like to mention the late Professor Lovell Fernandez, one of the founders of the Journal of Anti-Corruption Law and a member of the Department: Criminal Justice and Procedure. I met him in 1999 when he supported South Africa’s first National Director of Public Prosecutions, Mr Bulelani Ngcuka, whom I worked for at the time. I was an office assistant then to the National Director of Public Prosecutions. This was more than 30 years ago. I recall that Professor Fernandez provided important strategic support to the National Prosecuting Authority. He led the drafting process of the National Prosecuting Authority’s first prosecution policy. To my dismay, the policy has not undergone significant amendment since then.

Evaluating the effectiveness of a social grant regulating framework in South Africa

Orientation: Fraud and corruption have become a major concern for the South African government. However, the government has made attempts (often futile) to fight the scourge of corruption. The South African Social Security Agency (SASSA) developed a framework aimed at minimising corruption; nevertheless, loopholes in its anticorruption efforts continue to be an encumbrance.Research purpose: This research sought to evaluate the effectiveness of the Fraud Management and Compliance Department (FMCD) in terms of its role in the prevention, detection, investigation, reporting and resolution of fraud, theft, corruption and maladministration within the SASSA.Motivation for the study: The study was based on public knowledge of the plethora of activities both by civilians and by the SASSA officials that are negatively affecting the SASSA’s achievement of its goals and objectives.Research design, approach and method: The study adopted a qualitative research approach, including 10 participants with whom one-on-one interviews were conducted. Thematic analysis was used.Main findings: The study mainly uncovered that the Special Investigation Unit, National Prosecuting Authority, South African Police Service and Public Service Commission each play a critical role in investigating corruption, fraud and maladministration within the SASSA, thus contributing to how future fraud situations are handled.Practical/managerial implications: The article recommends the training and development of relevant authorities to enhance the effectiveness of the FMCD within the SASSA.Contribution/value-add: This article contributes to the literature on proposed solutions in effectively diminishing corruption in a South African government entity.

Clarifying the constitutional status of the National Prosecuting Authority

Chapter 8 of the Constitution aligns the status of the National Prosecuting Authority (‘NPA’) to the separation of powers typical for constitutional states where two principal organs developed in the third branch of state power during the midnineteenth century to refine Montesquieu’s model of separation of powers. The organs for the ‘administration of justice’ consist of the judiciary (adjudication) and prosecutors (prosecuting crime). Therefore, the status of the NPA entails both structural and functional independence from the executive. The reasons for the NPA’s failures are manifold and complex. The main reason is that the political elite continued to treat the NPA as a part of the executive branch, partly perpetuating the practice under the former Westminster constitutions and partly due to the ANC’s policy of ‘democratic centralism’. This has resulted in a chaotic state organisation of criminal justice where the powers allocated to prosecutors by s 179(2) are not clearly demarcated from policing powers under s 205(3) of the Constitution. For the proper functioning of the NPA to uphold the rule of law, it is important to delineate clearly the powers of the NPA from those of the judiciary, the executive — especially the Minister of Justice — the President, the police, and the watchdog functions of Chapter 9 institutions.

Empowering justice: The evolving landscape of cellphone analysis in modern criminal investigations and evidentiary collection

In the wake of rapid technological advancements, there has been a remarkable increase in the adoption of mobile devices, also profoundly altering the manner in which individuals use their cellphones. This technological shift, accompanied by increased functionality and popularity of cellphones, provides law enforcement agencies with new avenues for investigative approaches, notably in the realm of mobile forensics. This article explores mobile forensics as a crucial tool for gathering evidence in criminal investigations. Drawing from in-depth analysis, qualitative interviews with the South African Police Service (SAPS) investigators and detective branch commanders, digital forensic investigators/analysts, prosecutors from the National Prosecuting Authority (NPA), a cellphone record analyst, and an examination of local and international literature, the study underscores the significant role mobile forensics plays in effective crime investigation. It advocates for enhanced training of investigators to align with evolving technology, emphasising the need for law enforcement agencies, particularly the South African Police Service (SAPS), to adapt and advance their investigative techniques in the face of ongoing technological transformation. Ultimately, the article aims to demystify mobile forensic analysis, offering insights to aid South African investigators in refining their investigative practices.

The National Prosecuting Authority as Part of South Africa’s Integrity and Accountability Branch and the Related Case for an Anti-Corruption Redress System

The National Prosecuting Authority as Part of South Africa’s Integrity and Accountability Branch and the Related Case for an Anti-Corruption Redress System

Once, Twice, Three Times Delayed: Considering A Permanent Stay of Prosecution in Rodrigues v The National Director of Public Prosecutions

The National Prosecuting Authority is vested with the power, as dominus litus, to institute and discontinue charges whereas high courts are empowered to order a permanent stay of the prosecution prohibiting the continuation of the trial. However, such an order is considered to be a "drastic remedy" and is not empowered in terms of statutes such as the Criminal Procedure Act 51 of 1977 but rather vested in the right of an accused to have their trial begin and conclude without unreasonable delay. A permanent stay of the prosecution is an order made on a case-by-case basis, balancing various factors such as the prejudice faced by the accused, systemic factors as well as the reason for the delay. The ultimate question however remains whether the lapse of time in a particular case is unreasonable. The Supreme Court of Appeal in Rodrigues v The National Director of Public Prosecutions had to evaluate whether the 47-year-delay and eventual prosecution between the death of anti-apartheid activist, Ahmed Timol, was unreasonable. Both the majority and minority of the Supreme Court of Appeal, although for different reasons, concluded that the delay was not unreasonable. For most of the 47 years, prosecuting the accused was not possible due to the surrounding historical and political reasons (including the moratorium of cases arising from the Truth and Reconciliation Commission). The National Prosecuting Authority, as soon as it was possible, initiated the prosecution of the accused. Although applications for a permanent stay are mostly viewed as prejudicial to the accused, the majority and minority both acknowledge the families of the victims in this case. Such a perspective is welcomed as the role of the victim in the criminal justice process is often neglected.

Vonnisbespreking: Privaat vervolgings as meganisme vir die ontwikkeling van ’n grondwetlike regstaat National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development 2017 1 SACR 284 (KH); 2017 4 BCLR 517 (KH)

In recent case law it became evident that private prosecutions might be the remedy to unprosecuted criminals in South Africa. South Africa recently obtained its very own private prosecuting unit when the human rights organisation AfriForum hired Advocate Gerrie Nel to join forces and to prosecute alleged criminals. In this discussion the fundamentals of private prosecutions in South Africa will be explored. The historical development and commencement of private prosecutions in a South African context will be explained with specific reference to case law from both the pre- and post-apartheid perspectives. The focus will then be on the decision of the Constitutional Court under discussion (“NSPCA case”) which will be elaborated on, explained and evaluated. In this case the question whether the Criminal Procedure Act 51 of 1977 discriminates against juristic persons arose. This aspect of the judgment will also be explored further. Lastly, some crime statistics in South Africa will be examined as well as whether private prosecutors can somehow assist the National Prosecuting Authority in their quest to prosecute all crimes and keep South Africans safe. The conclusion is that the NSPCA case is correct. The court found that the NSPCA has the legal capacity to prosecute. However, the court did not express itself on the question whether section 7(1)(a) of the Criminal Procedure Act is in accordance with the Constitution as it clearly discriminates against juristic persons by omitting them from the wording of the section. It is submitted that provision should be made to allow juristic persons to prosecute so that the capacity to prosecute privately in South Africa can be extended. Of course, juristic persons will also have to comply with the requirements of section 7(1)(a) and they will be able to prosecute only after a nolle prosequi-certificate has been issued to them by the National Prosecuting Authority.

The Gendered Impact of COVID-19 Directives on Access to Criminal Justice in South Africa

Gender-based violence (GBV) knows no boundaries, and no region has been immune to this scourge. In the South African context, GBV had reached pandemic levels long before the COVID-19 virus. With the outbreak of the COVID-19 pandemic and the resultant lockdown measures adopted in response to it, cases of GBV rose steeply. The pandemic also saw major criminal justice players in South Africa, including the South African Police Service, the National Prosecuting Authority, the judiciary, and Correctional Services, adopt directives to regulate criminal justice during the lockdown periods. The directives took the form of general directives, arguably having no implications for women’s right to access to criminal justice. In this article, I examine selected directives by criminal justice players with a focus on those issued by the judiciary. I assess whether these directives could have been gendered, thus negatively impacting women’s access to criminal justice during the COVID-19 pandemic. I conduct this analysis using the concept of intersectionality, which underscores that the social categorisation of an individual, such as gender, race, nationality, and class can sometimes overlap or compound, thus causing disadvantage or discrimination. Based on this analysis, I conclude that some of these directives were gendered and could have exacerbated the challenge of access to justice by survivors of GBV. This conclusion seeks to confirm the view that seemingly gender-neutral directives and regulations may in fact contain gendered elements.

FOURTH ANNUAL CONFERENCE OF THE DEPARTMENT OF CRIMINAL JUSTICE AND PROCEDURE AND THE JOURNAL OF ANTI-CORRUPTION LAW

Thank you for inviting me to open this conference. I am privileged to be here. The conference programme contains some timely and important discussions that we should have. I therefore hope to participate in some of the discussions which will take place in the parallel sessions of this conference. Before I proceed with my address, I would like to mention the late Professor Lovell Fernandez, one of the founders of the Journal of Anti-Corruption Law and a member of the Department: Criminal Justice and Procedure. I met him in 1999 when he supported South Africa’s first National Director of Public Prosecutions, Mr Bulelani Ngcuka, whom I worked for at the time. I was an office assistant then to the National Director of Public Prosecutions. This was more than 30 years ago. I recall that Professor Fernandez provided important strategic support to the National Prosecuting Authority. He led the drafting process of the National Prosecuting Authority’s first prosecution policy. To my dismay, the policy has not undergone significant amendment since then

Sharpening the Axe: Identifying and Closing Gaps Within the Training Space of the South African Private Security Industry

The ever-present threat of crime in South Africa continues to drive the rise and demand for Private Security Industry (PSI) services amongst various governmental institutions, businesses and citizens to ensure their safety. This rise for the Private Security Services (PSS) persistently presents new challenges to the Private Security Industry Regulatory Authority (PSiRA) such as poor security training standards and deployment of untrained security officers attached to the Private Security Companies (PSCs), which negatively impacts the professionalism of the security industry. This study was guided by this objective: Identifying and closing the gaps within South African training space of PSI. This qualitative study was guided by the exploratory research design. The judgemental sampling technique was adopted to sample 40 participants confined to Gauteng (GP), Kwa-Zulu Natal (KZN) and Western Cape (WC) Provinces. The selected relevant stakeholders were attached to the South African Police Service (SAPS), Department of Labour (DoLl), Department of Home Affairs (DoH), National Prosecuting Authority (NPA) and the legal fraternity) and the PSI Directors and security officers to form part of the Focus Group Discussions (FGDs) and hybrid semi-structured interviews. The findings highlighted that the majority of the participants agreed that the private security industry training space is affected by security service providers letting PSiRA down by not training at, but rather engaging in, criminal activity through selling and people buying PSiRA security certificates. Some of the challenges mentioned include; poor training standards, non-compliance to legislated training standards, unqualified security training facilitators and outdated security Grades, misuse of security equipment leading to serious injuries and death, corruption in the industry, some of it being perpetrated by PSiRA inspectors, the very people who are supposed to keep the industry in check. This study recommends that, in order to overcome the challenges in the security training space, PSiRA needs to do away with the outdated security Grades by developing a new policy framework which will enable the creation of a new security-training curriculum and revise the training methods to suit the ever-changing security industry.

DILEMMAS OF SCIENCE AND THE CRIMINAL LAW: A SOUTH AFRICAN PERSPECTIVE

In light of the 85.9% conviction rate reported by the National Prosecuting Authority for the year 2007/2008, one would expect crime in South Africa to be comparatively under control. However, with only 11% of all reported cases of murder resulting in convictions in this country, it becomes clear that crime is still a very real threat to the Constitutional freedom of its citizens. This article explores the problems encountered in the harvesting, processing and presentation of expert scientific evidence in our criminal courts. The court ruling in S v Van der Vyver 2008 JOL 21332 C is analysed and presents an interesting example of the erroneous use of science in the criminal justice system. A comparative study is undertaken to illustrate further the extent of the problems inherent in the use of science within the criminal justice system and probe possible solutions. The use of scientific evidence in the jurisdictions of England/Wales and the United States of America are used as a focus for the comparative studies.

THE PAYMENT FOR AN ORGAN AND THE ADMISSION OF GUILT BY A SOUTH AFRICAN HOSPITAL The State v Netcare Kwa-Zulu Natal (Pty) Ltd – Agreement in terms of section 105A(1) of the Criminal Procedure Act 51 of 1977, Netcare Kwa-Zulu (Pty) Ltd and the State, Commer

As the first of its kind in plea bargaining, a South African private hospital group pleaded guilty on charges of trafficking in human organs. The Commercial Crimes Court of the Kwa-Zulu Regional Court (a Specialised Unit of the National Prosecuting Authority of South Africa) made an order in November 2010 in terms of which Netcare Kwa-Zulu (Pty) Ltd (Netcare) entered into a plea and sentence agreement with the state whereby Netcare pleaded guilty to 109 counts related to charges of illegal kidney transplantoperations. Charged with the St Augustine’s Private Hospital in Durban were the parent company Netcare (Pty) Ltd, its Chief Executive Officer, Richard Friedland, and eight others: four transplant doctors, a nephrologist, two transplant administrative co-ordinators, and a translator. The admission of guilt by the group relates to illegal kidney transplants which took place between June 2001 and November 2003 whereby Israeli patients in need of kidney transplants were brought to South Africa for such transplants to be performed at St Augustine’s Private Hospital. The kidneys were bought from Romanian and Brazilian citizens who were willing to sell their organs.

Prosecute Little Fish at the ICC

Abstract A central aim of international criminal tribunals since Nuremberg has been to prosecute those most responsible, the ‘big fish’, leaving smaller cases to national jurisdictions. The authors, who have both academic backgrounds as well as experience prosecuting international crimes in both international and domestic courts, argue that the International Criminal Court (ICC) should change course and expand its focus to include more ‘little fish cases’, bringing more cases overall and initiating them more quickly. Particular features of the ICC, namely its global reach and its ambition to promote national prosecutions, compel this change in strategy. For normative, strategic, and practical reasons, the ICC should bring smaller fish cases to enhance its credibility, functioning, and legitimacy, and to spur prosecutions by national authorities.

The NPA’s Limited Independence and How to Mitigate Political Interference in High-Profile Cases

In South Africa, the efficacy of the criminal justice system rests on the ability of the National Prosecuting Authority (NPA) to conduct prosecutions fairly and effectively. This is because it enjoys a monopoly over the prosecution of crime, as it decides which cases will proceed to court. While there is some room for private prosecutions, these are few and far between and do not make a dent in the power of the state to prosecute crime. Political pressure can interfere with effective prosecution. Particularly where an alleged perpetrator is a political figure, there is an incentive to try to influence the head of the prosecuting authority. My suggestion is to establish a special prosecuting office, separate from the normal prosecuting authority, to deal with cases involving members of the executive and the legislature. The purpose is to create a greater measure of independence, although comparative examples demonstrate that such an office too can suffer political interference. Removing political cases from the NPA would also enable the head of the NPA to concentrate on increasing the effectiveness of the prosecuting authority and public confidence in its abilities, without derailing its focus by having to fight for institutional independence.