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JUSTICE AND CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE
6 September 2000
DIRECTORATE OF SPECIAL OPERATIONS BILL: HEARINGS
Directorate of Special Operations Bill (B 39-2000)
Diagram of the Directorate of Special Operations' Accountability Structure
Diagram of Proposed National Director of Public Prosecutions Structure
Chairperson: Adv JH De Lange
Representatives from NPA, the SAPS and NICOC:
Mr Bulelani Ngcuka, National Director Public of Prosecutions; Mr Willie Hofmeyr, Director: NPA; Mr TC Williams, Deputy National Commissioner: SAPS, Mr SG Nel, Legal Consultant: National Prosecuting Authority; Mr LH Max, Provincial Commissioner, Western Cape: SAPS; Mr PC Jacobs (Flip), Assistant Commissioner: SAPS; Mr Linda Mti DG - Co-ordinator for Intelligence: National Intelligence Co-ordinating Committee (NICOC).
The National Prosecuting Authority said they are not looking for a second police force. What they want in the Bill is a "lean and mean" structure for the Scorpions. The structure should show clearly that the Directorate is a separate unit within the National Prosecuting Authority with a separate budget and a dedicated administration support. Further, jurisdiction should focus on the offender rather than the offence. The Authority would forward a detailed submission of their proposals for each clause.
The SAPS were concerned with clause 7 of the Bill and how the Scorpions and the SAPS would co-ordinate and co-operate in terms of this clause. They felt that the Bill should spell out clearly issues of jurisdiction.
The Committee was not convinced that the stakeholders have clarified how the issue of jurisdiction should be dealt with. They were not satisfied that the Commissioner of SAPS and the National Director of the NPA could always reach an agreement on jurisdictional issues without a deadlock breaking mechanism being provided for. It was suggested that the Cabinet Committee could act as such a mechanism. Other suggestions by the Committee was that the Bill should provide for involvement of the Inspector General for Intelligence and a body such as the Independent Complaints Directorate to deal with abuses of power. A proposal was made to effect the Bill as an amendment to the National Prosecuting Authority Act.
In the afternoon session, the Committee considered the unclear structure outlined by the Bill for the organisation of the Directorate of Special Operations, particularly the relationship between investigators and prosecutors. It asked the National Prosecuting Authority for a sketch of what the DSO structure should be.
The Chairperson asked the stakeholders to state what should be in this Bill as well as to talk on the structure of the Directorate of Special Operations (DSO) and the issue of constitutionality. He repeated the concern he had raised the previous day about unfounded reports in the media claiming he questioned the constitutionality of the Bill. He reminded everyone to bear in mind the objective of creating a workable Bill. He said claims that the different departments are being "played off" against each other were untrue. The attempt was to give the departments an opportunity to conceptualise what they think the Bill should carry.
National Prosecuting Authority
Mr Ngcuka, National Director: National Prosecuting Authority, said the Directorate of Special Operations (Scorpions) has been in operation for a year now. Last year at the opening of Parliament in June, the President had declared his intention of a Ministerial Coordinating Committee setting up a special investigating unit for South Africa within a very tight timeframe. Fourteen days later, the President announced that the unit would be in the form of a troika, with intelligence and prosecutions, reporting to the Director of the National Prosecuting Authority. The unit would be situated in the Department of Justice. The aim was to set up a prosecution-led crime investigation unit.
This Directorate has been learning from experience and has been open about what it is trying to do and about its setbacks. It has been advised by the FBI in the US and Scotland Yard in Britain and new recruits have been sent to train in these countries. The Directorate has engaged with other experts all over the world.
Mr Ngcuka said a disadvantage facing the Directorate is that it is the first of its kind in the world. There is no precedent to learn from. Experience has shown that the Directorate needs a simple structure and that it be located within the prosecution services. He said he believes the unit must not only be adequately staffed but must also be self contained. Mr Ngcuka said, "If we are to have an elite unit we can't afford to wait in line" for the assistance of other departments because they have their priorities. The Directorate cannot investigate crime unless they have an intelligence capacity to provide information to investigators plus ensuring that prosecutors are involved from the start.
The Directorate does not want to be involved in investigating incidents of crime only when committed but to investigate the people behind the crime - the focus should be on the offender.
"Give us a unit that is self contained, situated in the Prosecution Services, with a simple structure that can act effectively. We don't need a second police force", Mr Ngcuka concluded.
Mr Willie Hofmeyr, Director of the Asset Forfeiture Unit in the NPA, focussed on key principles in the Bill and attempted to answer questions that had arisen. He said the DSO should be prosecution-driven as the purpose of an investigation is to secure a prosecution at the end of the day. This principle does not come across clearly in the Bill and it should be clarified. On the question of constitutionality as Mr Ngcuka had said, the idea is not to create a second police force.
He referred to diagram which shows the DSO accountability structure. Cabinet decides on the unit. The President chairs the Ministerial Coordinating Committee on Safety and Security which comprises of the Ministries of Defence, Home Affairs, Intelligence, Justice and Safety and Security. The DSO is situated within the Prosecution Services which are in the Department of Justice.
Mr Hofmeyr did not think legislation should spell out sub-structures within the DSO. He said that they have learnt from experience that they need to adjust the sub structures as they go along. "We would like to keep the structure as lean and mean as possible" but would also like it to have flexibility.
The Serious Economic Offences Unit and the Organised Crime Unit should cease to exist and be integrated into the DSO so that these areas of crime can be dealt with by specialised people in the Directorate. He reiterated that how the DSO should be structured, should not be spelt out in the Bill.
On Chapter 5 dealing with Special powers given to Directors to do search and seizure, Mr Hofmeyr said that their feeling is that it is not a good idea to duplicate powers. In other Acts these are framed differently from this Bill. This raises questions as to whether the Director of the National Prosecuting Authority (NPA) would have powers in terms of those laws and the Bill. Mr Hofmeyr proposed that the Bill should instead refer to powers in the NPA Act and incorporate them by reference. This would obviate the need to amend two pieces of legislation.
He agreed that the structure's accountability should be to Parliament, on similar principles as the NPA, and probably done separately to the NPA.
On Clause 7 dealing with priority offences, Mr Hofmeyr said that in principle they have no problem with the clause as it stands. They believe they need to discuss refinements to this clause with other role players. He said a problem lies with clause 7(1)(a)(i) in that when investigating an organised crime syndicate, it is very difficult to do so only for a category of crime. The way the clause is phrased at the moment it would be important to specify that the Directorate can investigate groups of people and individuals. This is important to avoid jurisdictional problems with people saying the DSO had no jurisdiction to investigate them but only a specific crime.
He commented that the NPA had not come to make concrete amendments to the Bill but thought it would be important for everyone to agree on the underlying principles. He indicated that detailed proposals on the Bill would be forwarded to the Committee in due course.
South African Police Service
Mr Lennit Max, Provincial Commissioner, Western Cape: SAPS, said they made written submissions on the Bill. In the light of the presentation by the NDPPA he hopes that the stakeholders Mr Hofmeyr referred to involve the SAPS as Clause 7 is also crucial to them. There is a need to cooperate and coordinate the operations on the SAPS and DSO under this clause. He said the SAPS view is that the Asset Forfeiture Unit should be situate outside the DSO where it would be expected to have a complementary role to other crime fighting agencies such as the SAPS. Besides Clause 7 and the need to coordinate, the SAPS would like to make no further submission.
The Committee Chairperson's comments
The Chairperson said he would assume that the SAPS would have concerns about Clause 7. He said the Committee would engage with them on the clause. He said the diagram showing the DSO accountability structure is correct. He said he does have a problem with the NPA's Diagram of the Proposed National Director of Public Prosecutions Structure as it shows a fragmented structure for the DSO.
He said Clause 10 of the Bill provides for the Chief Investigating Officer who is subject to the Minister. But the Minister is not even included in the Bill. He wondered whether any thought had been given for the NPA to fit within the Directorate.
He said the other area he is worried about is jurisdiction as no clause in the Bill provides for this. The only provision is for mechanism to deal with jurisdiction.
Clause 7(1)(i) provides for "any offence falling within a category of offences determined by the Minister" which is very narrowly defined and the courts might just decide to interpret it even more narrowly. What if an offence has not been committed yet? It is the offenders that the Directorate should be looking at and categories of crimes would limit jurisdiction. The word "offenders" should instead be considered. The Asset Forfeiture Unit is not covered by the Bill as it only deals with offences. If the Bill was passed there would be uncertainty as to what powers are given.
The Chairperson said that if he appeared for the defence he would not hesitate to dispute jurisdiction in every matter. He said in federations where different investigating units have jurisdiction, the jurisdiction clause is drafted very clearly. The problem facing the Committee is what powers are being given to the Directorate. Is it going to work in practice?
The Bill has no deadlock breaking mechanism. If two people are given veto over something you need to give them a deadlock breaking mechanism. If the unit is going to work it should be as unencumbered as possible.
The Chairperson said another concern is the complete denial of the right of people to strike in the Bill.
Mr Nguka's response
Mr Ngcuka said they had not intended to deal with the individual clauses of the Bill but merely to give a conceptual framework. They would at a later stage give the Committee a detailed document outlining their proposals. They believed it critical in this meeting to give the principles that underpin the Directorate. He pleaded that they not be drawn into a clause by clause discussion of the Bill. He said he agreed with most of what the Chairperson said. There is a need to streamline the structure to include ordinary prosecutors, the Asset Forfeiture Unit, the Directorate of Special Operations. The Asset Forfeiture Unit cannot be made part of the DSO as it should render service to all other divisions. It must be possible for provinces to utilise the divisions as well.
Mr Ngcuka defended as suitable the structure in Diagram of Proposed National Director of Public Prosecutions Structure. He said the CEO and support services is shown outside the DSO because the intention is to have an administration that is shared between all the services (the NPA, the Asset Forfeiture Unit, the DSO). He emphasised the need to professionalise management for the entire institution. He said the view that if one is a good cross examiner in court, one would make a good manager is incorrect. Lawyers should be released to do the work they are qualified best to do and management should be left to persons qualified for that.
On the question of constitutionality, Mr Ngcuka said the Bill as it stands does create an impression that a second police force is being created. Section 179 of the Constitution would be dealt with by ensuring that the Bill shows that the DSO is part of the National Directorate of Public Prosecutions (NDPP).
The right to strike should be dealt with within the limits in the Constitution. The Directorate cannot afford to have people refusing to do their jobs at certain times.
Mr Hofmeyr on jurisdiction said Clause 4 purports to provide for jurisdiction but he has doubts that it is strong enough to stand a challenge of jurisdiction.
The Chairperson pointed out that there is a difference between functions and jurisdiction.
Mr Hofmeyr said he does not think they require a situation where the DSO has exclusive jurisdiction. Even for urban terrorism where there has been the strongest argument for such exclusive jurisdiction, he does not think so. In many cases the DSO is going to be working with the police. He said he does not think legislation should specify jurisdiction. Instead there should be an ongoing mechanism established to decide on jurisdiction. Mr Hofmeyr said he thinks jurisdiction should be public so that it is known that the DSO has jurisdiction over certain crime activity.
The Chairperson said a difficulty with this would be whether once a case has been taken on by the DSO, the police are excluded from it. Also in instances where people are sent under cover and the other units do not know, this would pose problems.
Mr Hofmeyr said they have discussed these issues and feel it is difficult to put them in legislation. It is not practicable to decide on categories of offences that the DSO can investigate. Even with organised crime the DSO has capacity to investigate only about 10% of that and the rest is dealt with by the police.
The Chairperson reiterated that he is not happy about not putting jurisdiction in the Bill. He said there is nowhere in the world where concurrent jurisdiction is left to the different units to sort out themselves. He asked Mr Hofmeyr to explain the mechanism for deciding on jurisdiction.
Mr Hofmeyr said in terms of clause 7(1)(a)(i) the Minister of Justice will identify a category of offences after consultation with the Minister of Safety and Security in accordance with guidelines formulated by the Ministerial Coordinating Committee. Then the National Director of the NPA with the National Commissioner of the SAPS agree on the general procedure to be followed for referral to the DSO.
The Chairperson asked if the DSO can take over a case that the police are already investigating and what the basis for that would be.
Mr Hofmeyr replied that he thinks the procedure would spell that out. He does not know what the procedure would be but hopes that it would be simple.
Assistant Commissioner Jacobs of the SAPS said the Bill should ensure that it prevents bungling of investigations by stating how the SAPS and DSO would work together. The wording in the Bill may not be capturing this. The main concern is about coordination and cooperation between the DSO and SAPS. The Bill should have a clear jurisdiction clause and mechanisms to deal with other problems.
Ms S Camerer (NNP) said she thinks the formulation of the Bill impacts on accountability and the Parliamentary oversight role. If jurisdiction cannot be spelt out clearly it means there would be problems in fulfilling the oversight role. She asked the NPA to enlighten the Committee on their proposals for Clause 7 as it is difficult to engage on the issue without knowing their proposals.
Mr L Landers (ANC) said the role of the Inspector General for Intelligence should be specified especially regarding that part of the DSO work involving intelligence gathering. He stressed that the Committee wants the unit to succeed, but this does not mean that there would not be abuses of power, etc. If checks and balances are not in place he foresees problems. He would like to see that issue addressed. Also regarding the powers to grant security clearances, there are existing laws saying only NIA can do that. These should be looked at to provide legal certainty around the issue.
Ms Chohan-Kota said the DSO appears to have a "top heavy" hierarchy. One of the difficulties is that what is created is something completely separate from sub-directorates of the NPA. She asked if in the conceptualisation, the NPA has thought of providing for the DSO through the NPA Act with amendments to allow for a separate budget and administration for the unit.
Mr Ngcuka said 90% of the cases the Directorate deals with are referred to it by the police. 9% from the Ministerial Committee and only 1% does the Directorate take up on its own. Before taking on a case, the Directorate declares an inquiry in terms of the NPA Act to see if there are reasonable grounds to do so. If so, preparatory investigation is undertaken with a view to prosecute.
The NPA is entitled to supervise all investigative work done by the police because at the end of the day the police give the dockets back to the prosecutors for prosecution. The Prosecuting Authority has a statutory duty to supervise investigations. The Scorpions must complement the South African Police Service and the latter bears the primary responsibility of policing crime. Mr Ngcuka emphasised that the police and the DSO work together and not against each other.
He said the intelligence capacity of the Scorpions is limited to the "phenomena" they deal with. The Directorate has to try to ensure that it keeps its structure clean. To this end it must have a counter intelligence unit within its structure. The Directorate cannot look to other divisions to do this for them as they have their own priorities. He said the Inspector General for Intelligence might have a role to play.
On parliamentary oversight, Mr Ngcuka said the DSO would want to be able to come to Parliament to say what it is they are doing. He said they deal with information and would want to have a situation where the public has confidence in the Scorpions. Parliamentarians as public representatives could facilitate this confidence if they understood what the Directorate does.
He agreed that the Bill seems to be creating a "top-heavy" structure. What the Directorate wants is a lean structure that is able to work in practice. "The DSO is going to work in co-operation with the police or not at all," he said. It must be clear what the areas of jurisdiction should be but this should not be "cast in concrete" in Parliament.
Mr Meyer (SAPS) said he agrees with Mr Ngcuka that there must be no scope for the defence to destroy the efforts of an investigation through a technicality. It is important that the SAPS and the DSO must not be seen as opposing each other but as a unit working together.
Dr J Delport (DP) said jurisdiction is important because it defines the scope of operation. It defines how smoothly the Directorate operates. He said an attorney cannot broker an agreement between two people and say "it will work because you are decent people". He said there is no way the issue of jurisdiction can be left as it is at the moment. Substantive advice is needed on how it will work in practice before the drafters write how it should be.
Ms P Jana (ANC) said Clause 4 provides for the integration of intelligence, investigation and prosecution which begs the question of constitutionality. She asked if this does not necessitate an amendment to the NPA Act and an audit of intelligence legislation to be carried out.
[As an aside, she asked Mr Ngcuka why they had allowed the Rwandan Bishop to escape. The Chairperson interjected that this did not have to be answered. However Mr Ncuka agreed to. He said they had received information that the Rwandan Bishop was in South Africa on a false passport and with an expired visa. He was wanted in Rwanda and was trying to obtain a false visa to the United States. The Scorpions liaised with the prosecutor in Rwanda to see if the Bishop was wanted which was confirmed and were asked to keep him in custody. Mr Ngcuka said he thought they would continue monitoring the Bishop's actions until a warrant came from Rwanda but information was obtained that he was about to leave. He was apprehended and handed over to Home Affairs because the Scorpions had no warrant and he was illegally in South Africa. He was to be kept by Home Affairs while the Scorpions were waiting for a warrant to be able to extradite him to Rwanda. Home Affairs deported the Bishop to Kenya where he came from. When the people from Rwanda came with the warrant, the Bishop was already gone. Mr Ngcuka said this was an unfortunate question of miscommunication and they accept responsibility for the blunder. ]
Mr J Jeffery (ANC) said the role of conflict resolution relating to the working relations between the DSO and the SAPS could be given to the Cabinet Committee. He said the CEO is part of the directorate and should not be outside as the Diagram of the Proposed National Director of Public Prosecutions Structure shows. He was against the provision that Directors can spend money then go to the CEO afterwards to ask for what they had already spent.
Mr Jeffery asked if the assigned directors are members of the Directorate. Between the National Director and the Chief Investigating Officer who is accountable to whom? He asked if this Bill should not be effected as an amendment to the NPA Act which would specify clearly where the DSO structure fits. He felt that the role of a body such as the Independent Complaints Directorate might be needed for the Scorpions and asked if this has been considered.
Mr Hofmeyr said throughout the world where there is concurrent jurisdiction, it is a very sensitive issue. Clause 7 attempts to manage the tension and try to make it workable.
Mr Hofmeyr said the idea is to have a single CEO with an administration that will support all the separate units of the NPA. In the future it is hoped that Justice would also have its own CEO to professionalise management in the Department.
He said the attempt through the Bill is to create another arm within the NPA which would do away with the need to duplicate Chapter 5. He said he is not happy with how the prosecutors are integrated in the Bill. Whatever structure is set up, it should be made clear that the prosecutors working on the DSO should be fully part of the DSO.
On the Independent Complaints Directorate, Mr Hofmeyr felt that internal procedures would deal with the issue. The Minister may make regulations on issues of misconduct. He said they would, however, like to consider the matter before taking a decision on it.
Mr Hofmeyr said the Directorate looks at national priority crimes because of the nature of those crimes and because of people involved in those crimes (even though the crimes may not be serious ones) that is why the NPA is opting for the term "offenders".
Before adjourning, the Chairperson said that what had come out clearly is that the Directorate must be a separate unit within the NPA, separately funded with a dedicated administration support service. He commented that this is a matter of wording.
The Chairperson noted that the time allotted for consultation had passed and that the Committee now had to look at achieving what had been proposed in the morning session. He commented that he himself was having trouble conceptualising how the proposed DSO would function, and outlined some of the problems he identified:
- The issue of finances
The National Prosecuting Authority is currently under the administration of the Department of Justice, whereas this Bill sets it out as having a separate authority.
- The division of the prosecution and investigation units in the DSO
The Bill set these units out as two clear entities and it appears as if their functions are entirely separated?
The Bill is not clear about whether it appoints investigators to the unit or not.
Mr Johan De Lange of the Department of Justice commented that the budget might be hard to accommodate. He also noted that the way in which the DSO will fit with the National Prosecution Authority might be a constitutional anomaly in that it would not be unconstitutional but an oddity. In addition, certain reforms in the National Prosecution Authority are now being envisaged; it will be hard to build these into the DSO before they are made.
The Chairperson disagreed saying it might be a nuisance but everything (NPA reforms and DSO) would go into one Act.
Mr Hofmeyr, the Director of the Asset Forfeiture Unit within the NPA, said he agreed with Mr De Lange of the Department in that it would be a long and very technical process to co-ordinate the DSO provisions with those of the NPA. He suggested they pass a Bill separately that would set the DSO up as part of the NPA.
The Chairperson replied that the eventual result of the above comments was that the Bill would have to be re-drafted. He said the DSO is part of a whole structure so there will be clashes with its integration whether it is accomplished with one Bill or not.
[Mr Nel, Legal Consultant with the NPA, said there was a problem with the "Conditions of Service" in Chapter 6 in that the only new members would be those that fall under the CEO.]
The Chairperson commented that staff from other departments, for example the NPA, are being rationalised into the DSO. He asked, in view of this, how could there be a separate Act?
Mr Masutha (ANC) commented that the investigation section of the DSO would be pivotal and asked what would be the approximate division in resources between the investigation and prosecution unitsof the proposed DSO.
Mr Hofmeyr replied that the NPA had between four and eight investigators to each prosecutor and that as intelligence demands increase, the intelligence capacity is increased. He added that the DSO would probably rely more on intelligence than the NPA. He also thought there would be no need for a Director of Investigations in the DSO since he thought the DSO's intelligence units would be more integrated into the DSO structure than the NPA. The DSO would not have the usual command structure, as with the police, and would rationalise its investigators, so these provisions in the Bill need great coherence.
The Chairperson interjected that the issue of rationalisation needed to be prioritised. He asked who would be making these decisions, who would make appointments and who would be in charge.
Mr. Hofmeyr said they wanted to allow for a greater flexibility but how they would do this was hard to set out at this moment.
Mr Jeffery (ANC) asked about the relationships between the Directors and members of investigating units, saying these relationships seemed vague, as well as the relationships between directors and prosecutors. He noted that in Clause 3(b) and Clause 7(1)(b) of the Bill, directors and prosecutors are assigned whereas Clause 11 says they may be appointed. He asked why they were not simply seconded ie without assignments. He also asked what the name "Scorpions" encompasses ie is an assigned director a Scorpion? He wanted to know if Scorpions were a nickname or an official name. If it is indeed an official name, it should be mentioned in the Bill. It currently is not.
Mr Hofmeyr thanked Mr Jeffery for this last suggestion and agreed that the name "Scorpions" should be mentioned in the Bill. He also agreed that prosecutors had not been sufficiently integrated into the DSO and that provision should be made for secondment. He thought, however, that this should be on an ad hoc basis.
The Chairperson then asked what was the difference between secondment and assignment?
Mr Hofmeyr agreed it was not clear and said they were working on that. He did comment that although they wanted directors and prosecutors to be fully integrated into the DSO structure, he thought it best not to cast this in the legislation.
The Chairperson noted that the hierarchies of processes of the NPA were clearly spelled out and in keeping with the Constitution. Likewise, he said there would be no problem if all positions of the DSO were spelled out in the Bill, including the investigators. He agreed that finances would have to be dealt with separately. He suggested that a separate chapter on investigations be drafted and reminded the Committee that their present discussion was purely hypothetical and set out no mandates.
After breaking for tea, the Chairperson noted that many of the issues that the Committee was discussing now were different from what was actually set out in the Bill. He asked Mr De Lange of the Department to provide the Committee with a sketch of what the Bill really says. He wanted the Committee to use this sketch in a workshop. He also noted there had been no submissions on this Bill. He felt the Committee had gone as far as it could for the time being. He asked if there were any more comments.
Mr Mti, NICOC's Co-ordinator for Intelligence, said the stakeholders needed an opportunity to interact. He asked what were the political imperatives of this Bill. He said it was difficult for NICOC to come in without clarity. The Chairperson said, indeed, the intelligence side can make a submission and welcomed their interaction on these issues.
Mr Hofmeyr said it was important for the Committee to summon interaction at the political level and asked the Chairperson to help drive that process.
Commissioner Williams, the Deputy SAPS National Commissioner, said they have an interest in the Bill being finalised since they have many seconded members. He said they want to stay "in step" with the draft Bill as it goes forward and noted that there had already been many substantive changes in the DSO. He wants these changes to be more clear, noting that uncertainty destabilises.
Mr Mgidi (ANC) asked if they should request the NPA also to draft a sketch of what it wants. He suggested this would be more efficient. The Chairperson agreed and went on to comment that even when he himself reads this Bill, he does not understand the structure it outlines. The relationships and interactions are not clear. This being the case, how can they know if what the Bill says is what the NPA really wants?
Mr Hofmeyr said he thought the Bill was relatively how they saw it from the beginning. The big variable in his mind was should the DSO be formally part of the NPA structure or should it stand alone?
Mr Masutha suggested they also look to what extent the Bill will impact on other legislation.
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