How do I access the contract I signed with the NPA during witness protection?

The long answer

I’m not sure what you mean by saying that they showed your money, but I think you might mean that they did not keep your information confidential, which they are required to do. All personnel take an oath of confidentiality; breaching this is a serious offence.

Vukuzenzele says that protection agreements under the Witness Protection Act 112 of 1998 are confidential to ensure safety. The Act states that no person can disclose any information obtained while fulfilling his or her duties under the Act.

They say that there are exceptions to this rule: for example, if witnesses give their consent, or if it is in the public interest to disclose it. But even then, the safety of the witness and the reasons for the disclosure must be carefully considered.

The Law Library says that before the Director discloses any information about a protected person, the Director must take reasonable steps to notify the protected person about the disclosure they are thinking of making, and allow the protected person to make written representation to the Director about such disclosure. The Director must consider whether the need for disclosure can be met in any other way, and any other factor that should be taken into account, in the opinion of the Director. 

How is witness protection under the Office for Witness Protection (OWP) supposed to work?

Vukuzenzele says a witness is a person who will be giving evidence in court or making an affidavit, who may have to give evidence in the future, or who has given evidence in the past.

Lawfully Living says that the whole point of witness protection is to protect the person who is to give evidence in an upcoming trial and, in that way, to preserve important evidence. It usually means that the person has to take a new identity and address till the trial is over  –  and sometimes for much longer. 

Under the Witness Protection Act, every witness in protection must sign a Memorandum of Agreement with the Director of the Office for Witness Protection (OWP). 

This is a legally binding contract that sets out what both parties have to do:

1. The witness has to obey all security rules, not be involved in any criminal activities, give truthful testimony and cooperate fully with the Office for Witness Protection (OWP) and prosecutors.

2. The OWP, which is administered by the NPA, must provide safety, accommodation and monthly allowances for necessary living expenses, which may include salary replacement in some cases, and new identity and documentation. 

This signed agreement remains in place until the Director of the OWP thinks that the witness’s safety is no longer in danger. The Director also has the right to discharge the witness from the programme if the witness gets involved in crime or fails to keep their new location secret.

So can the OWP or NPA refuse to give you a copy of the agreement you signed with them?

No, I don’t think so. Any person who signs a contract is entitled to a copy. You have a basic right to access documents which set out your legal obligations. Even though witness protection agreements under the 1998 Act are confidential to ensure safety, you are a party to the contract, and you have a right to a copy.

If the OWP refuses to give you a copy, you can report it to the NPA Service Delivery Hotline at 0800 212 580, which operates 24/7. 

You can also contact the Head Office of the OWP directly at 012 845 6000.

The Department of Justice says that Section 14 of the South African Witness Protection Act of 1998 allows any person made unhappy by a decision or action taken by the Director of the OWP, or the Director’s delegate, to ask the Minister of Justice to review that decision.

They say that the Minister’s Review provides a way to address decisions that a witness is dissatisfied with, such as refusal of placement or discharge. Applications for review must be submitted within the prescribed period of seven days from the decision and in the prescribed manner. They say that the review acts as a check on the administrative actions of the Office for Witness Protection. 

• But you are obviously long past the 7-day review period. Your signed agreement will set out the procedure for making complaints, and you will have to follow that procedure. In other words, the signed agreement controls how complaints can be made.

The Law Library says if you’re in the witness protection program: 

• You must tell the director about any legal cases you’re involved in

• You must not do anything that might put the programme, yourself or others at risk. 

I presume that your lawyer has informed the Director of the case that you are opening against the National Prosecuting Authority (NPA) for mistreatment while you were in witness protection? 

The case against the NPA would be civil litigation, specifically a delictual claim for damages, in legal language. 

A delictual claim for damages is a civil legal action where a party seeks compensation for harm caused by another's wrongful conduct, often known as a "civil wrong". 

There are two types of delictual damage: 

1. Patrimonial (special) damages: financial losses like lost income or medical costs.

2. Non-Patrimonial (general) damages: compensation for pain and suffering, disfigurement, or loss of amenities.

The goal of a delictual damages claim is to compensate the injured party and place them in the same financial position they were in before. 

Elton.B Stevens Company says that it would need you to prove five things:

• The act or omission (in other words, what was done or not done)

• Wrongfulness (that the action violated a legal duty or right)

• Fault (through intent or negligence)

• Causation (If the harm would not have happened without the act, factual causation is established. Omission: would the harm have been prevented if the defendant had not failed to act?)

• Harm: (Actual loss or harm was caused).

If multiple causes contribute to the damage, the defendant (the NPA) is liable if their act made a material contribution to the harm, even if it was not the only cause.

Wishing you the best,
Athalie