Hearing on the report of the Auditor-General on a performance audit of the handling of confiscated abalone by Department of Environmental Affairs & Tourism

Meeting report

The Chairperson welcomed delegates and Members.  Attendees were requested to introduce themselves.

Ms Nosipho Ngcaba, Director-General; Department of Environmental Affairs (DEA) explained that the Department was one of two departments reporting to the Minister of Water and Environmental Affairs. The Department of Environmental Affairs had formerly been the Department of Environmental Affairs and Tourism (DEAT).

Apologies from senior officials of the Department of Justice and Constitutional Development were tabled. The meeting could not be rescheduled because of the commitments of other stakeholders and the Committee accepted representation by the Department's regional representatives. 

The Chairperson explained that there was no formal agenda for the proceedings.  The report of the Auditor-General did not condemn anyone for non-compliance. The Committee wished to acquire a sense of direction concerning the management and administrative processes applicable to confiscated abalone. The Committee held a hearing with the Department on 15 September 2009, when a range of issues concerning the confiscation of abalone and the apprehending of suspects came to light. The rationale for the present hearing was prompted by the realisation that the Department of Water and Environmental Affairs was not the only player in the fight against abalone poaching. Other Departments were involved as well and unless all stakeholders played their role effectively, the war against poaching might not be won. It was alarming that the commercial viability of the abalone industry was jeopardised because of the inability to minimise or eliminate poaching. The fact that the Department could not vouch that all the areas inhabited by the species were effectively protected or guarded meant that there were certain areas where poachers had a free rein. The roles of all entities concerned had to be determined to allow the Committee to identify and close any gaps. The South African National Commissioner of Police had submitted a report on abalone poaching to the Committee. The Committee had requested the South African Police Services (SAPS), the Department of Justice and Constitutional Development (DOJ), the National Prosecuting Authority (NPA), and the South African Revenue Service (SARS) to brief the Committee on the contributions made towards fighting the scourge of abalone poaching, where there were gaps from a practical and legislative point of view and what challenges existed.

Briefing by the South African Police Services (SAPS)
Mr Bheki Cele, National Commissioner of Police, informed the Committee that the legal as well as the illegal trade in abalone involved substantial amounts of money and had a major impact on the economy.

SAPS policy on abalone was guided by the applicable legislation. Abalone was listed in Appendix 3 of the Convention on International Trade on Endangered Species (CITES). The offences investigated by SAPS were mostly related to the harvesting of undersized abalone, the harvesting of abalone without a permit or exceeding the quota allowed. Abalone was harvested along the shorelines of the Eastern Cape, the Western Cape and the Northern Cape. The abalone was transported by road to Gauteng, where the cargo was dried, packaged and exported.

SAPS arrested criminals caught poaching and confiscated poached abalone. Abalone poaching and the illegal export of abalone were often carried out by organised crime syndicates and were regarded as national priority offences  SAPS had an organised crime programme in place and a number of crime syndicates had been identified. Cases were investigated and the perpetrators were arrested and brought to court.  Confiscated abalone was stored at various locations before it was taken to Marine and Coastal Management (MCM) for disposal.

Prevention efforts included the strengthening of coastal patrols from Richards Bay to Alexander Bay to apprehend abalone poachers at sea.  SAPS worked in close co-operation with the MCM and the South African Navy. Additional equipment had been purchased for SAPS officers stationed at the sea port units.  SAPS had achieved considerable success in preventing abalone poaching and planned closer co-operation with the DEA.

Briefing by the Department of Justice and Constitutional Development (DOJ)
Mr Hisham Mohamed represented the Director-General of the Department of  Justice and Constitutional Development.  The role of the Department was to provide legal and auxiliary support to the DEA in any matters arising from operations to counter poaching. The role of the DOJ was not limited to the monitoring of cases of abalone poaching, but included disposing of cases as far as possible. The DOJ assisted the DEA by reporting on the status of the court cases related to confiscated abalone. The Department facilitated the sentencing and fine options through the NPA. Once members of a crime syndicate had been found guilty, other processes were followed, for example reconciling the fines paid to the case numbers to ensure that the fines paid were transferred to the Marine Living Resources Fund. The DOJ ensured that monitoring took place in the provinces at a strategic leadership level in order to determine the effectiveness of the implementation of the memorandum of understanding between the DOJ and the DEA. The Department monitored conviction rates and the number of case withdrawn. The Department was the conduit between any organ of State and the judiciary.

Briefing by the National Prosecuting Authority (NPA)
Advocate Rodney de Kock, Director of Public Prosecutions in the Western Cape, represented the Acting National Director of Public Prosecutions.  Since 2003, the NPA had developed a good relationship with Marine and Coastal Management in respect of the investigation and prosecution of abalone poaching cases. The NPA had developed a dedicated capacity and two prosecutors had been seconded to oversee the management of these cases.  The prosecutors oversaw cases heard in the Hermanus court as well as cases on the rolls of other courts.  The NPA had developed strategies for the prosecution of poaching cases. The NPA attached importance to the building of adequate capacity within the prosecution service, ensuring that prosecutors were adequately skilled in prosecuting cases arising from environmental legislation. A guideline was produced and a training programme was developed. Investigators received training as well. In 2003, the NPA was instrumental in the creation of the environmental court in Hermanus. This was a regional court where all the abalone poaching cases were prosecuted. Further capacity was created within the Office of the Director of Public Prosecutions to monitor cases of environmental crime, of which abalone poaching was one aspect. A team of dedicated prosecutors was developed to work closely with SAPS and other investigative agencies involved in the fight against organised crime. Unfortunately, the environmental court in Hermanus was closed in about 2007. Cases were now heard in the district court.  Dedicated prosecutors still gave attention to cases involving enviromental crimes. However, the court roll was overburdened. Efforts to resolve the challenges were currently in progress but entailed many meetings with the judiciary to ensure that the substantial number of cases on the court rolls could be managed. Another challenge was a review of the current strategies to deal with environmental crime. The NPA was debating the increase of capacity in all its offices throughout the country to deal with this type of crime. The key was forming partnerships with entities such as MCM.

Briefing by the South African Revenue Service (SARS)
Mr Ivan Pillay, Deputy Commissioner, SARS informed the Committee that customs offices were posted at all the ports of entry and exit in the country. In general, SARS paid more attention to goods entering South Africa because of the emphasis placed on revenue. Increasingly, SARS examined the subject of exported goods. When a warning was received from the intelligence services, SARS searched goods leaving the country. A customs border control unit was created 18 months ago. This unit was paramilitary in nature as it had to deal with organised crime. The unit was deployed at the main border posts. SARS intended to obtain sniffer dogs, trained to detect abalone. A small research desk had been created to develop a degree of specialisation. Certain investigations were carried out in collaboration with SAPS.  Tax audits were carried out on persons and organisations suspected of involvement in abalone smuggling. Such cases were handed over to the NPA's special tax unit for prosecution. Currently, SARS was involved in two cases in the Western Cape. Since March 2009, SARS had carried out a number of searches and recovered approximately 25 kilograms of abalone. The challenges included the fact that abalone poaching was carried out by organised crime syndicates.  The work done by SARS was largely of a civilian nature. More intelligence work was necessary.  Abalone poaching had to be perceived as a business that included processing and storage of the abalone. Abalone fetched high prices. If it was understood as a business, ways could be found to 'disturb the business'. In general, enforcement measures took place after the crime had taken place. Greater emphasis needed to be placed on effective controls at the start of the value chain. The problem of abalone poaching had to be addressed in a concerted manner by all the parties concerned.

Discussion
Mr A Ainslie (ANC) asked what level of priority was accorded to abalone poaching by SAPS and the other entities present at the meeting. He recalled that when Ms Ngcaba had briefed the Committee on 15 September 2009, she had said that it was her wish that abalone poaching was declared a very high priority and was awaiting responses from the SAPS and the NPA on the classification of abalone poaching. He asked SAPS to respond on the level of priority accorded to abalone poaching in the light of the link established between abalone poaching and organised crime, which was also involved with drug smuggling.  The revenue lost to the country amounted to millions of Rands in addition to the loss of the livelihood of thousands of fishermen.

Mr Cele replied that organised crime was considered to be a national priority and was a key focus area of the Hawks.

Mr Anwar Dramat, Deputy Commissioner of the Hawks confirmed that organised crime was a priority.  Abalone smuggling was a high priority and special projects had been initiated to deal with this particular type of crime.
 
Mr M Mbili (ANC) was happy to hear that SAPS regarded the crime of abalone poaching as a priority. The presentations did not indicate that there was a clear policy framework in place. One of the reasons for the hearing was the admission of the Department that there was a lack of co-ordination. He felt that not enough emphasis was placed in the briefings on the need for co-ordination. It would appear that there was no clear policy or service level agreement between the stakeholders. This situation prompted the Committee to ask questions about how the problem could be solved without the existence of service level agreements, a policy framework and mechanisms to ensure co-ordination.  He expressed doubt that abalone poaching was truly considered to be a high-priority crime.

The Chairperson disagreed with Mr Mbili's assertion that the presenters did not emphasise the need for greater co-ordination and synergy.  SAPS had alluded to the fact that there were gaps in co-ordination and mentioned the need for operating in a single system.  All the presenters had indicated that abalone poaching was considered to be an organised crime and viewed it as a high priority. The NPA had developed additional capacity and appointed dedicated prosecutors of its own accord.  The efforts made by the various stakeholders were not interlinked and the meeting was called for this reason. There was a perception that the several entities involved were working in parallel rather than together.

Mr Mbili clarified that Members of the Committee were not prosecutors. The Committee's concern was to correct the problem of abalone poaching for the future.

Ms Ngcaba confirmed that the DEA had accepted that there were gaps in co-ordination and an insufficiently uniform approach by the various organs of State with regard to abalone poaching. It was the Department's understanding that for abalone poaching to be afforded the desired level of priority, amendments were required to the Schedules of the Criminal Procedure Act. In 2008, the Department had submitted a written request to the Minister of Justice and Constitutional Development. Further engagements were taking place to ensure that the amendment was effected. The Department had made increased resources available. The voluntary nature of agreements reached impeded the Department's ability to work uniformly. There was no effective way of enforcing the memoranda of understanding entered into as these agreements were based on the laws governing the different Departments. The Department was uncertain over finding of the Auditor-General in this regard. As the accounting officer of the Department, she lacked jurisdiction over other Departments. A high-level framework decided on at Cabinet level was necessary. An amendment to the Schedules guiding the law enforcement agencies was required. A further matter was the issue of skills development in a highly technical area. Environmental crimes were not easily understood. She was hopeful that the meeting between the Ministers of Water and Environmental Affairs and Justice and Constitutional Development during the first week of September 2009 to discuss the reopening of the environmental courts would lead to a helpful outcome in filling some of the gaps that currently existed. 

Ms M Mangena (ANC) asked for clarity on the differing policies. She asked SARS to explain the statement made that outgoing goods were only searched when a warning was received from the security services.  She was concerned that SARS was prevented from searching unless such a warning was received.

Mr Pillay advised that there were literally millions of transactions every year. It was not possible to cover more than three or four percent of the containers, vehicles or persons leaving the country. SARS relied on risk indications. It was necessary to keep a balance between facilitating trade and detecting wrongdoings. One of the difficulties that SARS experienced was that goods like fish were refrigerated and were problematic to inspect.  SARS attempted to inspect refrigerated goods but lacked the proper facilities for the task. SARS was continually improving its system of risk identification.

Mr M Steele (DA) awaited an admission from the Department of Justice and Constitutional Development that a serious mistake was made when the environmental court at Hermanus was moved from a regional court to a district court. He requested the commitment of the Department to reopen the environmental court and to ensure that the court was provided with the necessary facilities and support staff to make it effective.

The Chairperson understood that the Hermanus court had had a high conviction rate, yet it was closed. One had to ask why the court was closed.  He asked when the court would be reopened.

Advocate De Kock explained that the Constitutional right of access to justice dictated that a person should be tried in a court nearest to the jurisdiction in which he or she lived. Witnesses needed by the State also had to have access to the court. The matter of proximity was one of several reasons. The court in Hermanus had regional court jurisdiction. However, it transpired that 70% of the cases did not require the jurisdiction of the regional court. The decision to close the court in Hermanus was based on the effective deployment of resources.

The Chairperson commented that the environmental court concept had not been well thought-out before implementation. 

Advocate de Kock agreed that had been the case at the time. The Department had argued that the success of the court in achieving a high conviction rate spoke for itself. However, together with other challenges that accompanied the logistics, it was felt that continuation of the environmental court was not feasible.

The Chairperson asked if the high conviction rate was not sufficient reason to continue the court.

Advocate De Kock advised that the court was functioning but the operation had changed. There were cases on the court roll, as mentioned in the briefing. There was a substantial number of cases on the court roll (i.e. more than 1 000 cases). Not all the cases were related to environmental crime. Only 178 cases were related to environmental crime. The success achieved resulted from the co-ordinated efforts of deploying resources in an integrated manner.  The idea was to do the same in other areas.  An approach had been made to the Ministry and the matter was under discussion.

The Chairperson argued that the reasons provided were strange, since the matter of accessibility, jurisdiction, and the question of resources remained constant. A decision was taken to implement the environmental court, but only after implementation had important constraints, that should have been foreseen, become apparent.  He asked if the Department had submitted a report when the environmental court was closed down.

The Department responded that the manner in which the operation had changed had been documented. The decision to close the court was also made in terms of a policy decision by the Department and at Ministerial level that Government could not afford specialised courts. The processes occurred in 2007 and were documented.  A separate report had not been submitted.

Mr N Singh (IFP) commented that, having listened to all the entities present, it was clear that there was no holistic approach to the problem of abalone poaching. Abalone poaching had been considered a national priority but only on paper. It was clear that the different entities present had been talking past each other and not with each other.  The same thing had happened in the past but he was hopeful that the day's proceedings would result in a charter for the way forward. He suggested that the Committee was given a commitment that a joint action committee would be established, with a convener appointed from amongst them to deal with the issues identified by Ms Ngcaba. The issues included amendments to existing legislation and dealing with outstanding court cases. Referring to the briefing by the representative of the NPA, he lauded the fact that a good relationship had existed in 2003.  However, the Auditor-General's Report included comment on the number of outstanding court cases. A joint action committee needed to deal with the modus operandi. As Mr Ainslie had said, abalone poaching did not affect only marine resources but was linked to the smuggling of drugs and other contraband, both nationally and internationally, and was a very serious matter. The Committee was concerned over the financial losses incurred as well. This matter was the responsibility of the DEA and was not the responsibility of the other entities.  He felt that the hearing had been a useful exercise but felt that the intelligence services could have made a useful contribution.

Mr D Maynier (DA) was pleased at the mention of coastal patrols. However, he felt that the South African Navy, the South African Police Service, and Marine and Coastal Management did not have sufficient resources to effectively patrol the coastline of South Africa. There were not enough platforms available and in many cases, the wrong platforms were used. Frigates cannot do inshore patrol; and he suggested that all three Departments concerned were under-funded.  He asked if the Departments concerned agreed with his position.  He wanted to know what platforms were available for coastal patrol, how many were deployed and if they were adequate to effectively patrol the coastline.

The representative from SAPS responded that different sea board units for the coastal patrol were in the process of being built. It was futile to allocate resources without proper development.  SAPS had a presence at the ports of entry and along the coast between the ports of entry. SAPS could provide a list of resources deployed to the Committee.  However, SAPS could do with more platforms and more specialised units along the coastline.

Ms Ngcaba agreed with Mr Maynier's hypothesis.  South Africa had a long coastline and an exclusive economic zone extending 200 nautical miles from the coast. She doubted that the Department would ever obtain the desired resources.  Some resources had been provided by Government and the Department had a number of patrol vessels.  However, the vessels could not be used to their full extent because of high running costs. Over and above that, the Department had invested in electronic equipment, such as cameras. She conceded that existing resources could be better but more platforms and more resources were necessary.

Mr N du Toit (DA) said that the response of SAPS was most unsatisfactory. No details were provided on the number of ships and platforms and the questions asked had been circumnavigated. A recent article in Die Burger indicated that members of the public knew more about abalone poaching than the authorities. The word 'task team' had not been mentioned at all. In the last three years, no task team had been developed by the parties concerned. No information was provided on who was responsible for the decision to close the Hermanus environmental court. The points made by the Department of Justice and Constitutional Development were understood but he felt that more could be done. He suggested that a peripatetic judge was appointed to try environmental cases and that a supporting task team was included in the court system. It was disconcerting, from the viewpoint of the Committee’s oversight responsibility, that nobody seemed to find the time to work and plan together. He was perturbed that departments had been asked to return with answers to questions but had not done so. On a previous occasion, dated copies of certain protocols had been specifically requested [15 September 2009 meeting: responses of Mr Saliem Mohamed, Chief Financial Officer: Marine Living Resources Fund]. These documents had not been produced. He wanted to know if this was yet another case where Departments were telling the Committee things that were not true. He wanted to know how many boats, wet suits and vehicles had been confiscated, how many people had been arrested and how many had been prosecuted for abalone poaching. Thus far, the Committee had not obtained answers from certain quarters and unsatisfactory answers from others.

The Chairperson informed Mr Du Toit that the DEA had submitted 'two very big files' to him.  He expected that the information requested by Committee would be found in those files, but he would have to personally study the content before he could arrange for copies for the Members. He agreed that SAPS should provide detailed information about the number of vessels that they had patrolling the coasts. 

Mr Cele said that he thought that an answer had been given. If a list was required by the Committee, it could be provided by SAPS.

Mr Du Toit asked the assumption could be made that no vessels were in fact available to be deployed. He said that it was possible to poach abalone by swimming a short distance from the shore. Large-scale poachers were removing the abalone from deep-water reefs.  He recalled a time, many years ago, when most of his generation had been sports divers and the taking of abalone had been lawful and poaching was unknown.  He pointed out that one needed a boat to get to the deep-water reefs to extract the abalone.

The Chairperson acknowledged that Mr Du Toit felt that the detailed information requested from SAPS had not been provided to the Committee. He confirmed with Mr Cele that SAPS would provide the written information to the Committee in due course.

Mr Mbili raised a point of order. He said that Members should not interrogate the officials as if they were present at a meeting of the Portfolio Committee on Water and Environmental Affairs. He pointed out that this was a meeting of the Standing Committee on Public Accounts and the proceedings should be confined to the business of the Committee. Some of the questions asked were not appropriate to the Committee's business. There was a serious conflict of interest. He protested that if Members wanted to ask such questions they should present them to the appropriate Portfolio Committee and that Members might need a workshop to help them understand this Committee's roles and functions.

The Chairperson acknowledged Mr Mbili's objection.

Mr S Thobejane (ANC) was pleased to note that all the entities present had acknowledged that their approach was fragmented and that they were aware of the challenges before them. He thought that it was an oversight that the Committee had omitted to invite the relevant Portfolio Committees to attend the hearing. He urged a co-ordinated way forward, including agencies that were not present, such as the intelligence agency. However, the Committee might not achieve its aims if it did not report its views on this subject to the relevant Portfolio Committees.

The Chairperson said that the meeting had been called because the Committee was aware of the fragmented approach and the presentations had confirmed that impression. He said that the Committee sought an integrated approach. Other Portfolio Committees on Justice, Police and Environmental Affairs had been invited but he was aware that the Portfolio Committee on Environmental Affairs was holding a video conference with the Parliament of the United Kingdom.

Advocate M Malale (ANC) said that there must be sustained co-ordination amongst stakeholders. He supported Mr Singh's proposal that there should be a joint task team representing the stakeholders

Mr T Bonhomme (ANC) said that he had enjoyed the frankness of the discussion. It was important for the Committee to know that the Departments concerned understood their weaknesses. With regard to criminals and corruption, he had not heard of any statements that case files had gone missing. He thought that was unusual. He asked if any case files had been mislaid.

The Chairperson said that, notwithstanding the relevance of Mr Bonhomme's query, poachers would have an incentive to extract abalone if they knew that their police dockets were 'lost'. He volunteered to 'bail SAPS out' on responding to the question in an open hearing.

Mr Maynier was astounded that the SAPS could not tell the Committee how many platforms they had available on any given day to carry out coastal patrols. The DEA had agreed with his statement that the South African Navy, the SAPS, and the MCM did not have sufficient resources effectively to patrol the 3 000 kilometre long coastline of South Africa. He asked the Commissioner and the Divisional Commissioner of Police if they agreed with his statement.  He wanted a simple ‘yes’ or ‘no’ answer.

Mr Cele replied that there was no simple 'yes' or 'no' answer.  He emphasised that he was clear about that point, unless the Committee was to tell the SAPS what to say. He and his colleagues had answered the questions. The answer was that there were no adequate resources across all spheres of Government. 

The Chairperson inferred that the National Commissioner's answer was a 'yes'.

Mr Du Toit said that somebody had to be held accountable. Money had been lost, as had been noted in the previous meeting on the subject. The Director-General of the Department had informed the Committee that abalone was now commercially extinct. The species had been exploited to such an extent that it could not recover its former numbers. He asserted that the Committee's business did not stop with the delegates present. He asked the delegates if there was anything that they could do about the issue without the co-operation of their respective Ministers.

The Chairperson asked Mr Du Toit to pause. Sensitive to Mr Du Toit's use of the phrase 'your Ministers', he said that he imagined that Mr Du Toit wanted to ask how much the officials could do without the support of the respective Ministers. It would be time-consuming to ask each individual Department to respond. The matter was self-evident. The officials held their positions in order to ensure that the political head, i.e. the Minister, could discharge his political commitment in relation to the Department concerned. In principle, there was agreement that political support was required and it was not simply a matter of a dialogue between the Committee and the officials. 

Mr Steele said that if the war against poaching was to be won, co-ordinated efforts would be needed from everyone concerned, including the customs officials and the coastguards. The revenue loss to the country was deplorable. However, if the war was won, then there would be no product. There would be no confiscated abalone generating income for the Marine Living Resources Fund. It would then have to be asked how the latter would sustain the operation of Marine and Coastal Management without this source of income.

The Chairperson concluded the discussion by saying that he said that he considered the issue to be straightforward and that there was no contradiction as to what the actual challenges were. He expressed his agreement on the need for co-ordination and pleaded with the officials to make every effort to achieve this. The Department had conceded during the previous meeting that some areas were not patrolled. These areas were a poachers' paradise. Sanctions should be considered, even if legislation needed to be introduced. Abalone as a commodity was now virtually extinct because of poaching. There was a need for a review on the decision to close the environmental court because there was no formal report on that closure. The environmental court had achieved a high conviction rate.

Other business
Members of the Committee were advised that they were invited to join the joint meeting of the Portfolio Committee on Cooperative Governance and Traditional Affairs, the Standing Committee on Finance, the Standing Committee on Appropriations, the Standing Committee on the Auditor-General, the Select Committee on Cooperative Governance and Traditional Affairs, and the Select Committee on Finance and Appropriations for the mini launch of the Clean Audit Programme already in progress in the Old Assembly Chamber.

The meeting was adjourned.