‘NPA boss fuzzy on the law’

2010-04-25 11:40

THE country’s prosecutions chief, advocate Menzi Simelane, needs to

take a refresher course on the laws governing his organisation.

This is in effect what was suggested to the National Director of

Public Prosecutions (NDPP) this week by one of his deputies, advocate Willie

Hofmeyr.

According to a series of emails in City Press’ possession the two

don’t see eye to eye on the legal reasoning behind the controversial decision to

disband the crime-busting Assets Forfeiture Unit (AFU).

In terms of a new “realignment plan” unveiled to Parliament last

week all AFU staff will no longer report to Hofmeyr but to the respective

regional Directors of Public Prosecutions (DPPs).

The draft proposals are contained in the National Prosecuting

Authority’s (NPA’s) strategic plan for 2010 to 2015.

City Press was inadvertently sent a series of private email

exchanges between the two lawyers this week indicating that they differed

sharply over the legal sources from which the AFU derives its powers.

In an emailed response to City Press last week Simelane explained

the legal reasoning behind the new reporting structures, noting that the move

was merely handing power back to the DPPs: which they had hitherto not exercised

regarding asset forfeitures.

He added: “We have decided that all forfeiture processes be done by

the DPPs in their areas of jurisdiction.”

Hofmeyr, who was out of the country, replied to Simelane’s

­response to City Press when he returned to his office this week.

In a reply also sent to the NPA’s communications office and to a

deputy NDPP Dr Silas Ramaite he ­contradicts his boss’s interpretation of the

law.

Firstly, Simelane incorrectly asserts that asset forfeiture

applications are brought in terms of the NPA Act.

Hofmeyr said that this was wrong; the process is actually ­governed

by provisions of the Prevention of Organised Crime Act of 1998.

Secondly, Simelane erroneously told City Press that only his office

had the legal authority to commence criminal proceedings and ancillary

proceedings – in which he ­incorrectly includes asset forfeiture.

Section 20 of the NPA Act as well as section 179 (2) of the

Constitution empowers “the prosecuting authority” to institute criminal

proceedings on behalf of the state.

Though the NDPP has ultimate “sign-off”, the law (as pointed out by

Hofmeyr in his email) does ­provide for persons to be delegated to authorise

applications for assets forfeiture on his behalf.

Until the recent realignment plan unveiled this week – Hofmeyr had

been similarly delegated.

In terms of the new restructuring plan the provincial DPPs will now

be more involved with asset forfeiture cases though it has yet to be finalised

what this greater involvement means.

“A management decision to exclude them from this area has been

reversed,” said Simelane

But Hofmeyr wrote back: “It is not correct to state that DPPs have

been excluded from asset forfeiture work – we have tried to involve them in the

past where they were interested.”

In an exclusive interview with City Press this week, Hofmeyr was

more conciliatory and in the main supported Simelane’s draft proposals.

But he emphasised that the AFU had never operated or taken on

­cases without the knowledge of the respective regional DPPs.

He said the AFU regional offices always had DPPs present at their

strategy meetings and fully briefed them on cases.

Said Hofmeyr: “The NDPP wants to give the DPPs more of a say, which

isn’t necessarily a bad thing.”


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