Friday, March 30, 2012

Fighting White Collar Crime in South Africa

Fighting White Collar Crime in South Africa

South Africa |
Democracy |

By her second year in law school Glynnis Breytenbach knew she wanted to be a prosecutor. A sturdy daughter of rural Free State, South Africa, she entered the prosecutorial service in Johannesburg in 1987 prosecuting check scams. By 1990 she was prosecuting commercial crimes.

A witness gives testimony at the Pretoria Commercial Crimes Court December 9, 2004.

Photo Credit: Sesana Mokoana/USAID

Crime rates surged after apartheid's authoritarian controls were lifted and South Africa became a major destination for crime syndicates that prey on businesses.
By 2000 commercial crime was siphoning $6 billion a year from the economy. The South African government began fighting back with laws and crime-fighting institutions adapted from international best practices.
President Thabo Mbeki established a Specialized Commercial Crime Court and Prosecuting Unit in Pretoria. The Department of Justice (DOJ) provided permanently assigned magistrates and prosecutors, while the commercial crimes branch of the police assigned permanent investigators. The "Unit," as Breytenbach calls it, had almost no budget when it opened its doors in 1999.

USAID and Business Against Crime (BAC), an association of major South African corporations, stepped in. USAID trained South African prosecutors in financial crime trial skills that Breytenbach describes as "particularly beneficial." BAC refurbished needed office space in downtown Pretoria, converted an underground parking lot into courtrooms and a holding cell, and set up a computerized caseload management system.

Today the Specialized Commercial Crime Court and Prosecuting Unit in Pretoria is a busy place. Police investigators and prosecutors work under common guidelines and in the same office space—"co-location" as it is called. When charges of a commercial crime are reported, the police determine whether it is of sufficient complexity for the Unit. When a docket is opened in the Unit, the senior superintendent of the commercial crimes branch of the police assigns an investigator. Breytenbach, the deputy director of the Unit, assigns a prosecutor. Within 14 days the prosecutor must contact the investigator, according to the guidelines. "Most of the investigators are men," says Breytenbach. "Most of the prosecutors are women." When possible, pairings are made to transfer skills.

The use of computerized "case plan documents" improves case flow management and ensures each docket will contain everything needed for trial. "By the time a docket is ready," says Breytenbach, "even though it's likely a yard thick, the prosecutor knows everything in there." Volume is high. At any point in time each investigator is handling 30 cases and each prosecutor double that amount. During a 12 month period from 2003 to 2004, the court adjudicated 283 cases, with only 15 acquittals, a 95 percent conviction rate. A major reason for the high conviction rate is the use of plea bargaining. Prosecutors from the Unit are always well prepared and the magistrates are highly knowledgeable, and so 40 percent of the accused plea bargain.

Breytenbach's team does not shy away from the rich or powerful. One trio of stock brokers was hit hard with 5,256 counts of fraud involving $4 million. Breytenbach's team has successfully prosecuted senior members of parliament and senior police officials. Building on this success, the DOJ has opened additional courts in Johannesburg, Port Elizabeth, and Durban. All four courts maintain conviction rates of over 90 percent. Breytenbach smiles when her visitors ask her to account for the Unit's success. "Co-location, good case planning, and high retention," she says, her green eyes shining with pride. She should have added hard work, because her staff works 16 hours a day. "We are seeing a deterrence effect," she says. "Once we get a sufficient number of higher skilled prosecutors, in five to ten years, white collar crime will be under control."


NPA: Breytenbach's suspension not over Mdluli case

The National Prosecuting Authority's (NPA) corruption prosecutor Glynnis Breytenbach was issued with a letter of suspension on Monday, a spokesperson said, adding it had nothing to do with crime intelligence boss Richard Mdluli's fraud case.

"The charges relate to her conduct in handling one of the cases allocated to her," Mthunzi Mhaga said.

"We will exercise restraint in commenting on this matter in view of legal implications in labour issues."

He said all the charges would be dealt with in a disciplinary hearing.

Breytenbach heads the NPA's specialised commercial crimes unit in Pretoria.

According to reports, she was responsible for the NPA's arms deal probe and the fraud case against Mdluli.

Mhaga maintained there was no link between Breytenbach's suspension and Mdluli.

"We dismiss those insinuations as baseless."

Unanswered questions
The Democratic Alliance said on Monday that important questions relating to Breytenbach's suspension remained unanswered.

"The suspension has been widely interpreted as intimidation of a prosecutor who insists on doing her work without fear or favour and who resisted the dropping of fraud charges against crime intelligence boss Richard Mdluli," DA Member of Parliament Dene Smuts said in a statement.

Breytenbach was issued with a notice of intention to suspend her in February.

Smuts said the DA had asked acting National Director of Public Prosecutions Advocate Nomgcobo Jiba during a portfolio committee on justice meeting on April 17 if the threat of suspension was not an attempt to intimidate Breytenbach and if she had been told to drop the fraud charges against Mdluli.

Jiba told the committee that there had never been any instructions or any political pressure. She also said that she did not know where the link between the Mdluli fraud case and Breytenbach's proposed suspension came from, said Smuts.

"Establishing a clear sequence of events and the outcome of any challenge which advocate Breytenbach may bring to her suspension will hopefully bring clarity in a matter that potentially has the gravest conceivable consequences for the administration of justice," she said. -- Sapa
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