JEAN REDPATH | Institutional reform should precede investment in the criminal justice system

Peter Attard Montalto argued in his most recert column that for a successful criminal justice turnaround South Africa needs to invest 1%-2% of GDP (R82bn-R162bn) in “institutions, salaries, courts, enforcement capacity and social infrastructure” (“Missing variable in SA’s growth equation has known solution”, May 6).

However, there is a strong argument that money is not the primary answer and institutional legislative reform is actually the missing part of the equation. Without it, more money is unlikely to yield significant returns.

Montalto states that nothing remotely near the required investment is contemplated by the criminal justice cluster. Yet the budget for the South African Police Service (SAPS) alone exceeds his threshold at R127bn, which in real terms is more than double what it was 30 years ago, and about the same as it was in 2010/11 when performance of the SAPS peaked.

Admittedly, only R22bn of that is for the detective service, a further R2.5bn for the Hawks, and R4.7bn for crime intelligence. But all of the SAPS is part of the CJS chain, and the chain exceeds the threshold he suggests. Indeed, most parts of the criminal justice system have seen vast real increases in investment, which have not been accompanied by commensurate returns.

For example, the National Prosecuting Authority (NPA) budget is R5.7bn, which represents a more than five-fold increase in real terms compared to 28 years ago. The NPA budget includes the Asset Forfeiture Unit, the Investigating Directorate Against Corruption, the Specialised Commercial Crime Unit and the Witness Protection Unit.

Yet the NPA prosecutes and convicts fewer people than it did in 1998, when it was established, despite almost triple the number of posts in its establishment. In addition, the number of specialised courts for commercial crime has risen from two to 22, yet fewer total cases than ever are being convicted in them — only about 10 per court per year.

The problem is that the key institutions of the criminal justice system — the SAPS and the NPA — are institutionally not fit for purpose, and that unfitness stems from the legislation providing for their institutional framework. The constitution requires in section 179(4) that the legislation providing for the NPA ensures that it exercises its functions without fear, favour or prejudice.

Yet the NPA struggled at the very first hurdle of the Truth & Reconciliation Commission prosecutions, the second hurdle of Jacob Zuma and the arms deal, which failure in turn ushered in the era of state capture under his presidency, and now the NPA is moving at a pace so slow as to be almost imperceptible on state capture prosecutions, even as current corruption and crime accelerate across the country.

There are clear problems with the NPA Act, and it is relatively straightforward to fix these.

• First, the top 14 posts are all appointed by the president, with no transparent, merit-based process. Some of the 10 directors of public prosecutions appointed so far — responsible for prosecutions in their divisions — were appointed by previous presidents and are still serving, as they serve until age 65 without a fixed term. The legislation does not allow poor performance to be a reason for removal, so essentially we are stuck with them.
• Second, the national director does not control their own budget and cannot hire in additional expertise when needed without the say-so of two ministers.
• Third, prosecutors are not legal professionals in the same way that attorneys and advocates are, and this affects both their independence and skills.
• Fourth, external transparency and accountability mechanisms are almost entirely lacking.

In short, money is not being wisely spent in the SAPS, and the entire institution needs a reset. Throwing money at it without a reset would be a disaster

As a relatively small institution of about 6,000 people, fixing the NPA should be easier than doing the same for the SAPS, with about 200,000 employees. Reform of the NPA Act must be on the agenda.

The problems with the SAPS are more intractable. The SAPS consumes a vast budget, but the allocation of that expenditure is centrally controlled. As a result, we see head office functions consuming vast resources, mostly in the form of the salaries of senior officers responsible for pushing paper.

We also see resources at police station level allocated in a way that has the result that high murder rate areas have lower than median rates of policing — which the SAPS is under court order to fix, but hasn’t done so. These station allocations in practice determine total provincial allocations.

On top of this, temporary task teams extract personnel and vehicles from police station allocations and spend vast sums on overtime and S&Ts. Functions of officers and vehicles are so highly specific that “we don’t have a vehicle” means we don’t have a vehicle allocated to that function, while vehicles sit in the parking lot or are being used to transport employees home.

A large fraction of police officers are allocated to court duty, but courts are on average sitting for fewer than three hours a day. Forensic backlogs are huge, but it is more lucrative for officials to extract overtime than to ensure posts are filled. Disciplinary action is governed by Labour Relations Act provisions, and protracted full-pay suspensions are routine.

In short, money is not being wisely spent in the SAPS, and the entire institution needs a reset. Throwing money at it without a reset would be a disaster. Almost certainly, policing must be completely re-imagined legislatively. In the meantime, reform of the NPA Act is more achievable — and impactful.

Dr Redpath is a senior researcher at the Dullah Omar Institute, which is a founding member of the Prosecutions Project (prosecutionsproject.org.za), a coalition of civil society organisations advocating for reform of the NPA Act.