What lies behind the decline in commercial crime prosecutions
New research says delays, withdrawals and poor case management are to blame for the poor performance by specialised commercial crime courts
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New research by the University of Cape Town has found that withdrawals, repeated postponements and poor case management are major factors behind declining commercial crime prosecutions in South Africa’s specialised commercial crime courts. Illustration: Lisa Nelson
- South Africa’s Specialised Commercial Crime Courts have grown from two courts with 20 prosecutors in 1999 to 22 courts with about 300 prosecutors today — yet convictions have fallen sharply.
- Researchers found the average case involved less than two accused, about two witnesses, and offences worth under R500,000 – contradicting the National Prosecuting Authority’s (NPA) claim that cases are becoming more complex.
- Of the 356 cases studied, 34% were withdrawn and half have been postponed more than 14 times.
- The NPA’s Specialised Commercial Crime Unit head said the findings require deeper analysis, arguing that delays are caused by multiple role players across the criminal justice system, not prosecutors alone.
- The NPA was critical of the report’s scope and methodology.
Case withdrawals, repeated postponements and poor case management are among the factors causing a decline in successful commercial crime prosecutions in South Africa’s Specialised Commercial Crime Courts (SCCCs).
This is according to a new report by the Democratic Governance and Rights Unit (DGRU) at the University of Cape Town, which challenges the National Prosecuting Authority’s (NPA) explanation for declining commercial crime prosecutions.
Researchers examined 356 cases closed between 2022 and 2024 in nine of the 22 specialised commercial crime courts, using court files from KwaZulu-Natal, Palm Ridge in Gauteng, Mpumalanga and Bellville in the Western Cape.
The NPA’s Specialised Commercial Crime Unit (SCCU) has grown from 20 prosecutors operating in two courts in 1999 to about 300 prosecutors in 22 courts today. Yet the number of cases enrolled and convictions secured has fallen sharply.
In its latest annual report, the NPA partly attributed the decline to a decision to migrate some matters to Regional Courts, and to the increasing complexity of cases remaining in the specialised courts.
Speaking at the report launch on Wednesday, 3 June, data analyst Michael O’Donovan said these explanations were “questionable”.
“Migrating cases to regional courts should not result in lower verdicts in SCCCs. As cases are moved to regional courts, the capacity of SCCCs to absorb other cases remains unhindered,” he said.
He argued that delays alone cannot explain the decline. He said the report sought to test whether the courts are in fact dealing with increasingly complex cases.
The report found that the average value of offences was just below R500,000. “Although the amount is not trivial, it’s not in line with expectations spurred by the magnitude of losses in state capture,” said O’Donovan.
On average, cases involved less than two accused persons and about two witnesses, and 44% of cases were finalised without any witnesses being called. These figures do not suggest that SCCC cases are typified by complexity. “In fact, the opposite is suggested,” the report states.
Fraud, theft and other common-law offences dominated the courts’ workload. Only 19% of charges involved legislation typically associated with organised crime and corruption, such as the Prevention of Organised Crime Act and the Prevention and Combating of Corrupt Activities Act. Most cases related to fraud and other common-law offences – corruption, theft and forgery.
The researchers also found high withdrawal rates (34% of cases) and lengthy delays.
“Matters should not be enrolled in an SCCC unless the intention is indeed to proceed with prosecution and sufficient evidence should already be amassed,” the report states.
Researchers also argued that the SCCU’s high conviction rate of 88% may reflect prosecutors avoiding difficult cases, either by not enrolling them or by withdrawing them later.
Half of all cases experienced more than 14 postponements, while a significant proportion were postponed more than 25 times and some more than 75 times.
Although postponements requested by the accused accounted for the largest share (40%), the report found that prosecutors were responsible for 16% of postponements, and court administration issues, such as unavailable interpreters, power cuts, and equipment failures, accounted for a further 11%.
Speaking at the launch, Dullah Omar Institute senior researcher Jean Redpath said postponements were a problem across the court system.
“We see courts postponing not until next week but next month or three months,” she said.
Commercial Crime Unit responds
Responding to the findings, SCCU head advocate Nkebe Kanyane said a deeper analysis of withdrawals was needed and cautioned against placing responsibility solely on prosecutors.
“If there’s a high withdrawal rate, of course we must look at why that is. With the methodology we use, there shouldn’t be such high withdrawal rates. But at the same time, we don’t seek conviction at all costs,” she said.
Kanyane said prosecutors may withdraw matters after considering representations from the defence and reassessing the strength of a case. She added that withdrawn matters could sometimes be re-enrolled.
She said that the report did not sufficiently consider the role of the judiciary and defence lawyers in contributing to delays.
“The NPA and SCCU are not the criminal justice system. That is a whole system that requires accountability by a whole lot of roleplayers,” she said.
On postponements, Kanyane said many were caused by defence requests, including changes in legal representation and requests for additional time to prepare.
NPA responds
The NPA disputed the report’s methodology and scope. Spokesperson Bulelwa Makeke said the findings were based on a sample of nine courts and relied on charge sheets and court records rather than the evidence in the case dockets.
Makeke said many of the cases analysed between 2022 and 2024 had been enrolled before the SCCU revised its intake criteria in 2021, and therefore did not necessarily reflect the current workload of the specialised courts.
The NPA also rejected the notion that prosecutors may be avoiding more difficult cases and prioritising matters with a higher likelihood of conviction. Makeke said prosecutors are required to determine whether there is “a reasonable prospect of a successful conviction” before taking a matter to trial. “This test does not require a guarantee of a conviction, but equally does not mean that prosecutors should not take difficult cases to court,” she said.
“If prosecutors were only pursuing cases with higher chances of conviction, we would also see far fewer acquittals, which is not the case.”
Regarding withdrawals, Makeke said, “An analysis of the reasons for withdrawal would need to be done to have a proper conclusion.” The report did not examine how many withdrawn matters later returned to court.
“Not every investigation can be finalised before enrollment. This is simply not realistic. Often arrests are accompanied by searches – which requires further investigation to be conducted,” she said.
While agreeing that cases take too long to finalise, Makeke said the reasons behind postponements required closer examination.
“Once the underlying reasons are identified, the data can then be more meaningfully interrogated and understood. From our experience and analysis, the vast majority of postponements in SCCC cases occur at the instance of the accused. Interestingly, the DGRU report acknowledges this fact, but at the same time, it rejects the idea that accused persons are employing Stalingrad tactics as a significant factor”.
She said active case management by presiding officers was crucial to reducing delays.
The UCT report does recommend stricter case management, as well as a more continuous trial roll to reduce repeated postponements and ensuring that only trial-ready matters are enrolled. It also recommends improving court data systems so that the performance of specialised commercial crime courts can be tracked more accurately.
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