Constitutional Court Ruling on the Disbandment of the Directorate for Special Operations

Meeting report

The Chairperson welcomed the delegates from the Directorate of Priority Crime Investigations (also known as the Hawks) and the Secretariat for Police.  She briefly reported on the Committee’s recent visit to the United Kingdom and Canada and the oversight visits to the Johannesburg, Pretoria Central and other police stations in Gauteng.  The Committee strongly condemned the continued killing of members of the South African Police Service.

Briefing by the Directorate of Priority Crime Investigations and the Secretariat for Police
Ms Jenni Irish-Qhobosheane, Secretary of Police, introduced the delegates from the Secretariat and the Directorate.  She advised that a joint briefing had been prepared for presentation to the Committee.

Lieutenant-General Anwa Dramat, Head of the Directorate of Priority Crime Investigations, presented the briefing to the Committee (see attached document).

The South African Police Service Act and the National Prosecuting Act were amended in 2008.  The amended legislation effected the disbandment of the Directorate for Special Operations (DSO), which had operated under the National Prosecuting Authority (NPA) and established the Directorate of Priority Crime Investigations (DPCI) within the South African Police Service (SAPS).  The constitutional validity of the legislation was questioned in the case brought by Mr Hugh Glenister in the Constitutional Court of South Africa (Hugh Glenister v President of the Republic of South Africa & Others, Case no. CCT 48/10).  The matter was heard on 2 September 2010 and was decided on 17 March 2011.

The Constitutional Court found that the Constitution imposed an obligation on the State to establish and maintain an independent body to combat corruption and organised crime.  However, the Court found that the legislative provisions establishing the DPCI were constitutionally invalid.  Parliament was given the opportunity to remedy the constitutional defect within 18 months (i.e. new legislation had to be implemented before 17 September 2012.)

The briefing included a summary of the principles applied by the Court.  The Court concluded that the DPCI currently did not have adequate measures of autonomy in place.  The DPCI was insufficiently insulated from political influence and the conditions of service pertaining to the Head and members negated autonomy.  The Court’s findings concerning security of tenure and remuneration of the Head and members of the DPCI were summarised. 

The Ministerial Committee was empowered to lay down guidelines in respect of the functioning of the DPCI and was required to hold regular meetings.  The Court considered the powers of the Ministerial Committee to be untrammeled.  The powers to determine policy guidelines and to oversee the functioning of the DPCI were conducive to intrusion into the core function of the entity by senior politicians.  Such powers were inimical to the independence of the Directorate.  Parliamentary oversight was more benign and less intrusive than that of the Ministerial Committee.  The powers of Parliament were insufficient to rectify the deficiencies of independence resulting from the extensive powers of the Ministerial Committee.  The content of reports submitted to Parliament was determined by the Head of the DPCI and the Ministerial Committee.  The Court considered other safeguards to assist and to protect the DPCI from political influence and interference to be inadequate.  The Court found that the provision in section 17B(b)(ii) of the South African Police Service Act was not sufficient to secure the independence of the DPCI.

The Court dismissed the constitutional challenge to the National Prosecuting Authority Amendment Act (Act 56 of 2008) and the South African Police Service Act (Act 57 of 2008) for failure to facilitate public involvement in the legislative process.  The Court declared that Chapter 6A of the South African Police Service Act (Act 68 of 1995, as amended) was inconsistent with the Constitution and invalid to the extent that it failed to secure an adequate degree of independence for the DPCI.

The briefing was concluded with a summary of the process underway to introduce new legislation in accordance with the order of the Court.  Ms Irish-Qhobosheane advised that a Bill would be tabled in Parliament during the latter part of 2011.

Discussion
Ms D Kohler-Barnard (DA) asked for clarity on the statement “Coordination by Cabinet (Ministerial Committee) was the gravest disquiet over the impugned provisions” on page 12 of the presentation document.

Lt Gen Dramat explained that the Court had singled out the extensive powers of the ministerial Committee as the most significant threat to the independence of the DPCI.

Ms A Van Wyk (ANC) pointed out that the current legislation made provision for the Minister to review the Act.  She asked if the review would coincide with the introduction of the new Bill.  She recalled that the issue of employment security for members of the DPCI was extensively debated by the Committee during the deliberations on the legislation.  A proposal to ring-fence the remuneration and conditions of service was agreed by the Committee but had not been implemented.  She asked if the proposal would be adequate to address the concerns of the Court.

Ms Kohler-Barnard wanted to know how the Secretariat planned to approach the issue concerning the independence of the DPCI.

The Chairperson pointed out that the purpose of the briefing to the Committee was limited to the ruling of the Constitutional Court.  The Committee would be briefed on the new legislation once the Bill was tabled in Parliament.  She asked for details of the planned timetable for the Bill.

Ms Irish-Qhobosheane advised that internal consultations and discussions on the Court ruling and on the proposed new legislation had commenced with interested parties and stakeholders.  Judge Pillay (the oversight judge) had raised certain issues and the Bill would include other amendments as well.  The records of the previous debates and deliberations of the Committee were being reviewed and discussions on the issue of security of tenure and conditions of service were being held between the Secretariat and SAPS.  The draft Bill would be ready in September 2011, would be submitted to the Cabinet in October 2011 and would be tabled in Parliament in November 2011.

Mr G Lekgetho (ANC) noted that the briefing had made no mention of public participation in the legislative process, which was a critical issue.

Ms Irish-Qhobosheane replied that discussions with various legal and academic experts had already been held and further consultation with other stakeholders and role players was planned for September 2011, before the Bill was submitted to the Cabinet.  The Committee would follow a different public hearing process as part of the normal Parliamentary procedure applicable to new legislation.

The Chairperson pointed out that the Court had found that adequate public consultation on the amendments to the relevant legislation had taken place.  The Committee would follow the normal Parliamentary procedure when deliberating on the Bill, which included public hearings.  She urged the Secretariat and the Department to adhere to the planned time schedule for the Bill as the Committee wished to avoid having to rush the new legislation in order to meet the deadline imposed by the Court order.  She thanked the DPCI and the Secretariat for the briefing.

The meeting was adjourned.