South African Police Service (Hawks) Amendment Bill: public hearings Day 2

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25 April 2012
Chairperson: Ms L Chikunga (ANC)
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Meeting Summary

The African Policing Civilian Oversight Forum said that the Directorate for Priority Crime Investigation should not be located under the South African Police Service as the role of DPCI was primarily to fight corruption. Any form of political direction had to be transparent. There was an inconsistency in the way priority crimes were defined. There were problems with the criteria for appointment of the Head of the Directorate. The Forum recommended a fixed, non-renewable term of office. Provisions for remuneration had to be sharpened. There was an issue with security clearances, with a suspicion that the withdrawal of a clearance could hinder investigations. There was an overlap between police corruption and organised crime. The National Commissioner of Police had been subjected to political interference.

Members disagreed on the claim of discrepancies regarding the definition of priority crimes. There was an appeal process regarding security clearances. Comparisons to the Independent Police Investigative Directorate to this Directorate were invalid. There was a link needed between anti-corruption investigation and organised crime investigation and other policing activities. Members asked if there was a cut-off point, beyond which corruption cases should not be investigated. Members challenged the suggestion that the Head of the Directorate should be on the same appointment level as the National Commissioner. Members asked how the Directorate could be sure of its own budget.

The Helen Suzman Foundation told Members that an independent body to combat corruption was a constitutional imperative. An important consideration was separation of powers and the need for a system of checks and balances. The Constitutional Court had ruled that the current situation with the Directorate enough independence from political interference. Particular problems concerned the lack of security of tenure, uncertainty over remuneration, and a lack of criteria for appointment and dismissal of members, even as far as the Head of the Directorate. An anti-corruption body needed to have the resources and mandate to achieve its objectives. The Head should have the discretion over which cases to investigate. The role of the Minister had to be assessed. Financial control by the National Commissioner could be used to interfere with investigations. The reporting channels specified in the Bill were problematic constitutionally. The Foundation concluded that the current Bill had not satisfied the terms of the Glenister judgement, in particular by not placing the Directorate outside the control of the Police.

Members asked if a new Act was needed to satisfy the recommendations made by the Foundation. Members felt that Parliament had been forced to rush through the legislative process and would be embarrassed if more errors in the bill were revealed. Members asked if the financial arrangements suggested would demand that there be two accounting officers for the Police. They were told that this had been the case with the Independent Complaints Directorate. The presenters were told that the Court had not ruled that the Directorate could not be placed within the Police. The Head of the Directorate had been allocated special powers.

Professor Mhango argued that the Amendment Bill was compliant with the judgement. Parliament could not decide over where the anti-corruption should be placed. The principle of a non-renewable term of office was correct, but the length of the term might be more flexible. Adequate provision had been made for Parliamentary oversight. The powers of the Ministerial Committee had been diminished. Laws should not be based on possible actions.

Members asked if there was not a contradiction in that the Head of the Directorate would be a Deputy National Commissioner, but would not be responsible to the National Commissioner for most aspects of the Directorate's work. The question of security clearances needed more discussion. The legislation was too much centred on individuals. Members were told that centralised policing authorities were more appropriate for a country like South Africa. There were more benefits of having the unit inside the Police than out.

A joint submission by the Open Society Foundation-SA, Legal Resources Centre and Corruption Watch was of the opinion that the Amendment Bill was not consistent with the judgement. While it would not be unconstitutional to have the anti-corruption body within the South African Police Service, the three organisations considered it unwise. Independence required insulation from political management and control. Public confidence was essential. The bodies had reservations over the security of tenure for all members of the Directorate. The term of office for the National Commissioner was still renewable, which could expose this person, who was ultimately in charge of the Directorate, exposed to political pressure. The Head of the Directorate should have more powers to determine policy and needed to be able to report directly to Parliament. The Head should be the accounting officer and should be able to argue his or her own budget, free of potential interference from the National Commissioner. The requirements for security clearances were too broad and powers of deciding on this matter should be delegated to the Head. Their conclusion was that the anti-corruption body should be an independent body outside of the South African Police Service.

Members complained that presenters were quoting sections of the Constitution out of context. Making the Head of the Directorate the Accounting Officer would impose a heavy administrative burden. There was a suggestion that the Directorate could be incorporated into the National Prosecuting Authority. Suggestions of creating a body similar to the Independent Police Investigative Directorate were countered by statements that this Directorate was reactive in nature while the Hawks had to be proactive in their investigations. Presenters were assured that funding for the Hawks would be ring-fenced and could not be used to exert pressure.

The Council for the Advancement of the South African Constitution said that the lack of a single body to fight corruption indicated a lack of political will. Key factors from the Glenister judgement were the lack of independence and effective measures. The public had to have confidence in an anti-corruption body. At was abundantly clear to the Council that the unit could not be located within the South African Police Service due to the poor public image of the Police, especially in the light of the serious charges levelled against senior Police officers. The Amendment Bill was not compliant with the Glenister judgement. A radical new approach was needed. Their submission echoed the sentiments of earlier submissions on the lack of criteria for appointments and the lack of security of tenure for members of the Directorate.

Members felt that calls for political will were inconsistent with fears of political interference. There had been no political interference with the Hawks. If entirely new legislation was needed, it would have to be the work of a different Committee. Some Members felt that a repeated lie would become credible to the public. Not enough attention was being paid to public perception. Political appointments should not be seen as political interference. Members were told that a Chapter 9 institution would be the best option. The Police were not an independent body but were required to act impartially. The new body should also focus on educating the public. The presenters were thanked for also addressing corruption in the private sector.

 The South African Chapter of the Association of Certified Fraud Examiners was established to counter fraud and other white-collar crime. They were part of an international organisation. They were concerned with a number of aspects of the Amendment Bill. They felt that a Chapter 9 institution would be the best vehicle for an anti-corruption body. They presented training to the South African Police Service. The submission reviewed the Glenister judgement. The main problems with the Amendment Bill were related to the perception of a lack of independence and of security of tenure for members of the Directorate.

Members asked if even a Chapter 9 institution would be free from political interference. Parliament had to show its determination to fight corruption. The submission was criticised for not considering the current Amendment Bill as concession had already been made to bring the Bill in line with the Glenister judgement.

Meeting report

The Chairperson expressed the Committee's condolences to the family of a metropolitan policeman who had been murdered over the weekend.

Submission by African Policing Civilian Oversight (APCOF) Forum
Mr David Bruce, an independent researcher, said the key concern of APCOF was to consolidate the position of the Directorate for Priority Crime Investigation (DPCI, also known as the Hawks). APCOF felt that the role of DPCI was primarily to fight corruption, and they needed protection from interference. Therefore DPCI should be located outside the South African Police Service (SAPS).

Mr Bruce said that operational independence was consistent with full accountability. There was provision in the SAPS Amendment Bill for political direction, but this had to be done in a transparent way.

Mr Bruce said that there was a definition of national priority offences, but the Act was inconsistent with other references. Political direction should be according to clear guidelines. The first implication was that Section 17(B) and Section 17(A) should refer specifically to organised crime and corruption. APCOF was motivating that the Head of the Directorate should have discretion in prioritising crimes to be targeted. Parliament should specify what other crimes should be investigated. The Bill should contain guidelines that there should be no prevention of investigating specific crimes and persons.

Mr Bruce spoke on the lack of criteria for the appointment of the head and deputy head.

Mr Bruce said that APCOF was aligning itself to submissions made by other bodies. The appointment of the Head of the DPCI should be a fixed and non-renewable period. The second aspect was confusing provisions regarding remuneration. APCOF proposed that Section 17(G) should be deleted. They had also commented on the recommendations for the removal from office of a member.

Mr Bruce said another issue was security clearance. Revoking a security clearance, according to an American report, was a common way of removing a person from office. There was no recourse to such a decision. There were provisions in Section 17(L). Complaints could be laid with a retired judge, but any appeals regarding clearances would have to go to the Inspector-General for Intelligence. However, this would not prevent the use of security clearances to compromise investigations. A blanket security clearance was needed for the DPCI. If all still had to be cleared, any withdrawal should only happen once the Inspector-General was satisfied that this was a correct move. There should be a report on any instance of a clearance being withdrawn. The responsibility should reside in an agency other than the SAPS.

Mr Bruce said there was an overlap between police corruption, and corruption in general, with organised crime. This emphasised the point that the SAPS should not be involved with security clearances.

Mr Bruce said that the concern that the office of the National Commissioner (NC) was subject to political interference. There were aspects of the appointments process on which the Constitutional Court (Concourt) had pronounced, one of them being a renewable term. It seemed inappropriate that the DPCI should report to the NC, and that the NC should oversee the budget process for the DPCI. The Independent Police Investigative Directorate (IPID) was an example of such an independent statutory body.

Ms A van Wyk (ANC) did not understand the inconsistency regarding the definition of priority crime. The definition could change from time to time. She asked why Section 17(G) should be deleted. There was already an appeal process in place for the case of a security clearance being denied or revoked. She did not know why people were saying that IPID was now a separate body. This had always been the case. In fact, this was a constitutional requirement. IPID had a very clear mandate, and could not be part of the SAPS. It dealt with serious allegations of specific crimes by SAPS members. The situation was not comparable. The submission recognised the link between corruption and organised crime. The Hawks only dealt with the upper end of these crimes. A detective might be investigating a case at a lower level only to find the story was much bigger, and a Hawks investigation was warranted. By having DPCI outside of the SAPS would cut this link.

Ms van Wyk understood that APCOF was not opposed to different levels of organisation dealing with corruption. She asked why AFCOF felt that only a body external to the SAPS could deal with corruption. The Bill addressed some of the issues raised in the Glenister judgement. The Head of the Hawks now had discretion to move staff as required. The NC of SAPS reported to Parliament on the whole organisation. She asked if APCOF's concern would be addressed if the head of the DPCI reported separately.

Ms D Lishiva (ANC) asked if staff should be allocated.

Mr G Lekgetho (ANC) agreed with APCOF that the mandate should be clear, but it should not be open-ended. However, it could open a can of worms. Corruption had not started in 1994. People should know when corruption had started. A starting date should be set, beyond which no investigations would be undertaken.

Mr M George (COPE) asked what APCOF meant by a clear mandate. If the agency was not part of the SAPS, he asked what rank the Head would hold. There could be only one General. The head of DPCI could not hold the same rank as the NC. He asked who should be setting the guidelines. He asked who should be defining the crimes, whether it should be left to the agency or whether it should be determined by Parliament. He asked how the head of the agency should be appointed. He asked if a fixed non-renewable appointment would fix the problem of pressure. If the Inspector-General was a political appointment, there was no guarantee that his decisions would not be influenced politically. He asked if Mr Bruce was not contradicting himself. Any suggestion which would require an amendment to the Constitution, would need enough support to be passed.

Ms D Molebatsi (ANC) how the procedure of the Head being removed after an enquiry could be better defined.

Ms V Ndlovu (IFP) gathered that APCOF was saying that some people should be vetted but not others. If this was the case, he asked how these people would be determined. The SAPS was a broad structure of the security cluster. Where reasons were given for the refusal of a clearance, he asked if reasons should be made public or kept within DPCI. It seemed that Mr Bruce was saying that the Head and Deputy should not fall under SAPS. He asked how the accountability trail would work in this case. There were Parliamentary structures in place. He asked if the Head of the DPCI should be equivalent to the NC of SAPS, and if so, whether the budgets should be totally separate or ring-fenced under the SAPS budget.

The Chairperson said that Mr Bruce was referring to an entity outside the SAPS. The judgement had not found any fault with DPCI being under the SAPS.

Mr Bruce said that operational independence and accountability could be reconciled. The Head of the Directorate would guide the DPCI in applying the Corrupt and Related Activities Act. In many countries there were diverse agencies enforcing laws. With the concurrence of Parliament, the Minister should be able to guide the Directorate on the definition of priority crimes. APCOF was not motivating that these aspects of the Bill be removed, but that the discretion on interpreting the Act should fall to the Head.

Mr Bruce said that APCOF would question the necessity of all members of DPCI to have security clearances. Those involved in specific types of investigation might need a clearance, for example, any investigation into the arms deal. Insofar as it was a requirement, such clearances were provided by intelligence agencies and could be withdrawn as a means of interfering with an investigation, even if such a clearance was subsequently re-instated.

Ms van Wyk said that a certain case could not stand still should an investigating officer first need to have a security clearance processed. All members of the former Directorate of Specialised Operations (DSO, popularly known as the Scorpions) had held security clearances and this had never been an issue.

Mr Bruce admitted that it might be advisable to have all members cleared. There should be provision to prevent abuse of clearances.

Mr Bruce said that there were situations in many countries where mandates overlapped. There were protocols in place. The SAPS was one of the largest police services in the world. The very fact of locating the DPCI within the SAPS ultimately meant that the Directorate would be subject to the influence of the NC. It could not develop its own culture distinct from SAPS. The key issue was to carry out complex criminal investigations. Members should have full crime investigative powers. The Special Investigative Unit (SIU) did not have such powers, nor did it prosecute the people it investigated. Location within the SAPS emphasised the concept of the centralisation of powers. In a democratic country it was far healthier to have a diversity of powers.

Mr Bruce said that the Scorpions had not been formed under the Constitution, nor was the IPID. The constitution made it possible to create organisations other than the SAPS. This was not the case, for example, with Defence. There was scope for a diversity of agencies such as the various municipal police departments. Clause 199(1) made explicit provision for a single military force. Clause 199(3) made provision for the creation of non-military security forces.

Mr Ndlovu did not want to argue with Mr Bruce. What he wanted to know that the second prize for APCOF was if they could not get their primary objective.

The Chairperson said that time was running short. She felt that Mr Bruce had answered the most important questions. The Head of IPID was accountable to he Minister. IPID had a staff off 334 whereas DCPI already had more than three thousand staff with further expansion planned. It would become a Department based on its size.

Helen Suzman (HSF) Foundation submission
Mr Francis Antonie, HSF Director, said the Concourt felt that it was intrinsic to the Constitution that there be adequate independence for any entity investigating corruption. Whatever structure was chosen, there should be sufficient independence. The creation of such an entity was constitutionally enforceable. Failure on the part of the state to create such a body infringed on a number of human rights, even the right to education and health care. His second observation went back to considerations on separations of powers argument, and the system of checks and balances for good governance.

Mr Antonie read from the judgement that there was no objection to some Executive involvement, but it had to be measured. The Concourt felt that the DPCI was insufficiently isolated from interference. Conditions of service made interference possible. There was only a degree of separation. There was no job security. There was an absence of statutory remuneration levels. The Minister of Police should submit any guidelines to approval to Parliament. Two years after the legislation had been passed, no such guidelines had been published. Grounds for dismissal needed to be on objective grounds.

Mr Antonie quoted from the judgement. The court would not be opposed to a series of reasonable management measures. In this context, the HSF found that the proposed Bill did not meet the standards required by the judgement. The unit would not be sufficiently independent.

Mr Lewis Mash, Researcher, HSF, emphasised that the submission arose from the Glenister judgement. The obligation for an independent crime fighting body was intrinsic to South Africa law. There were two measures of independence. The first was a comparison to other bodies in a similar position. The second was the perception of a reasonable citizen. Tests of measures of independence had to be comparative. The Concourt had suggested some institutions to which the DPCI could be compared, including the Scorpions and the National Prosecuting Authority (NPA). The first area indicated by the Concourt was the appointment of the head of the DPCI. The criteria should be vigorous and substantive. This was lacking from the Bill. There was no reference to the Head being fit and proper. This provision had been part of the founding legislation for the DSO. The NPA Act had listed specific qualifications for the Head of the DSO. The Public Protector had to have specific qualifications and experience.

Mr Mash said that the setting of objective criteria would allow Parliament to test whether a correct appointment had been made. The appointment would be made entirely by the Executive, namely by the Minister in consultation with Cabinet. Chapter 9 appointments such as the Public Protector were made by Parliament and confirmed by the President. A Parliamentary vote was more transparent and democratic, and more in line with the values of the Constitution. The absolute minimum was that the Bill should contain a list of objective criteria. Ideally the process should be more transparent and not entirely in the hands of the Executive.

Mr Mash turned to the security of tenure issue. As the Bill stood, the condition of employment of the head was non-renewable term not exceeding seven years. There was no minimum time stipulated. If the Committee was satisfied with the concept of a non-renewable term, the wording could allow a degree of flexibility. The HSF felt that a non-renewable term was best practice. However, this was not the same as a fixed term. There should be proper measures to dismiss the Head if necessary. At present, Clause 8 of the Bill did not include the words "fit and proper", there was a provision to dismiss the Head if he or she were no longer "fit and proper". If this was such a critical condition, then it should be a condition of appointment. There was too much Ministerial discretion for a dismissal and was open to political influence. It was a problem that the Minister had discretion to suspend the Head with or without pay. A suspension presumed innocence and should therefore be with pay. An independent committee should investigate the circumstances. As the Act stood, SAPS members were subject to a lower threshold of dismissal. The only criterion seemed to be the interests of the SAPS, and was much more difficult to test.

Mr Mash said that the provision for security clearance was a contentious issue. The concern of the HSF was that members of the unit could have their clearances withdrawn on an arbitrary basis. The NC could then redeploy such effected members. This impinged on security of tenure. In paragraph 222 of the judgement, the Court stated that the lack of tenure was problematic. This had not been addressed in the Bill.

Mr Timothy Kenny, Justice and Governance Unit, HSF, said that it was crucial that this reconstituted unit be well resourced, work with a proper mandate, and have access to crime fighting and intelligence networks. It must have the independence to do its job. A degree of independence from political control was needed.

Mr Kenny said that Clause 4 of the Bill did not make it clear where the DPCI would be placed. It seemed it would still be under the NC. He too referred to other entities which also needed to act independently. There should be a similar clause in this Bill. Clause 12 had been removed but had been re-introduced. This Clause referred to a Ministerial Committee.

Mr Kenny moved on to Clause 7. HSF was concerned with a number of policy guidelines, which seemed to be cast in stone. The requirement to follow Ministerial guidelines was problematic. The discretion of the Head to decide on investigations should be preserved without fear of political interference. The powers of the Ministerial Committee had been seen to be problematic by the Concourt, and had simply been shifted to the Minister. HSF did not feel that the minister was qualified to provide such guidelines. It was implied that the Head would be compelled to follow guidelines. The HSF was perturbed by the lack of clarity on "specified offences". The Combating of Corrupt Activities Act listed a number of priority crimes. The reference to Section 34 of the Act was a careless insertion in the Amendment Bill and should be deleted. The memorandum made it clear that the Minister had the power to make political interventions that could interfere with the work of the DPCI.

Mr Kenny had not seen sufficient provisions for countering political interference. If the basic errors were not corrected a systemic breakdown would result. The DPCI needed to fight corruption. The legislation for the DSO had conformed to the international best practice of the troika approach of detection, investigation and prosecution. The current Amendment Bill fell short of this standard.

Mr Kenny moved on to Clause 11 said that the DPCI had no financial independence as long as it remained within the SAPS. The NC could withhold funding in order to stymie the work of the unit. The Khampepe Commission had found that there was already sufficient legislation to set up the unit. There would be an impact on the unit wherever it was located.

Ms Sara Gon, HSF, presented a different approach. She quoted from the Amendment Bill. The Minister's role and that of the NC had changed from optional to prerogative requirements. The use of the word “may” had been changed to “must” and “shall”. She quoted relevant sections of the Constitution on the role to be played by the Minister in policing matters. In terms of Section 207, no matter how this legislation would be drafted, the head of the DPCI would always be subject to the authority of the NC. If the head had the powers envisaged by the Concourt, then the powers of the NC would be undermined. This contradiction could not be resolved in the Bill itself.

Ms Gon said that the native conception of independence would be compromised by the current wording of the Amendment Bill. The Bill faced an unintended dilemma concerning the placement of the DPCI. On the one hand the Directorate could not report to the NC, on the other hand any legislation in which the head of a body under the SAPS but not accountable to the NC, would be unconstitutional.

Ms Gon said that Section 16A to H would be amended by the Bill. Provincial Commissioners would have the authority to refer matters to the DPCI. This might amount to a breach of the constitution as it might undermine the authority of the NC. It equated the authority of a Provincial Commissioner to that of the NC. She believed this was unintentional. At the same time, the NC had authority over the Provincial Commissioners and could influence the work of the DPCI.

Mr Antonie submitted that the Amendment Bill did not meet the requirements of the judgement. The HSF made some recommendations. To comply with the terms of the judgement, the Directorate and its Head could not fall under the SAPS. The process of interviewing candidates for appointment as Head should be done by an outside body or by Parliament. The term of office must be defined. Discretion must be given to the Head on the cases to be investigated. The criteria must be vigorous and substantive. The head should have financial control. Security clearances must be clarified and not be used as an abuse of power. The Directorate and its head could not fall under the NC, but any legislation that would not place a policing body under the authority of the NC was unconstitutional.

Mr George said that there had been a repeated call that this agency must be outside SAPS. He asked if HSF was saying that the whole process was wrong. The business at hand was to amend the SAPS Act. A new Act would have to drafted to accommodate the recommendations raised by HSF. On the term of office for the Head, he asked what the merits of non-renewable, fixed-term and indefinite appointments would be. He asked for clarification on an odd perception. The body would deal with corruption throughout the country. The perception of independence was important. Perceptions played an important role, especially when people felt the law as not addressing their concerns. There had been repeated assertions that the Bill did not meet the requirements of the judgement. He asked if the recommendations would satisfy the judgement.

Ms D Kohler-Barnard (DA) had noted many substantive difficulties. The dilemma sketched by HSF was the greatest problem. She asked where HSF would see the body being placed. Various options had been offered. There had been a suggestion that the deadline for the amendment of the legislation should be extended, and she asked if the Concourt would entertain such a request. She could not understand how there was no requirement for the Head to be a fit and proper person. The process was now being rushed through and she wondered if there were any other legal dilemmas in the Bill. It was a huge embarrassment.

Ms Molebatsi commented on the recommendation that financial management should be in the hands of the head of the DPCI. She asked if this would imply that two accounting officers would be needed.

The Chairperson said that the committee had made many changes to the IPID Bill both as a result of the public hearing process and of their own deliberations. She made it clear to HSF that Members were receptive to recommendations. Submissions were still being accepted.

Mr J Jeffery (ANC), a Member of the Portfolio Committee on Justice and Constitutional Development, said that the HSF was strong on the point that the unit should not be under SAPS, and that this would in fact be unconstitutional. This was a contradiction to the Concourt ruling. He had to conclude that the Concourt allowed for the possibility of inclusion with SAPS. He feared that HSF was second-guessing the judges.

Ms Kohler-Barnard objected to Mr Jeffery restating her questions. It was bizarre.

Mr Jeffery could not recall an provision for minimum terms for public servants, only maximum terms. In the case of a fixed term the Concourt judges served on such a basis while other judges served until retirement. A non-renewable term would mean that there would be no currying of favour in anticipation of a second term. All were committed to the fight against corruption, but differed on how this should be achieved. The National Planning Commission (NPC) did not advocate a single body. The Concourt had not ruled on absolute independence. No one was totally independent. Law enforcement bodies internationally should not be getting into different fields. He asked if the frailty of humans had been considered.

Ms van Wyk wanted to respond to a few issues. One was the concept of a fixed term. In Chapter 9 institutions, all Heads had fixed terms. She wanted to respond to the argument on Section 207 of the Constitution. The Concourt was not arguing for absolute independence. The most common international model was to house anti-corruption units within a law enforcement agency. The Constitution did limit the powers of the NC, together with the Public Finance Management Act (PFMA) and other legislation. The Amendment Bill would give the Head of Hawks the same powers as the NC in certain areas. The Head of Hawks was now being given the authority to act independently of the NC, and these powers should be extended. The Head could go directly to the NPA.

Mr Ndlovu argued that the term "fit and proper" only came in at the end of the Bill in terms of dismissal, but not at the time of appointment. The HSF argument was based on separate people outside the Ministry of Police. A security clearance could be revoked by the NC but HSF had not followed up on this point. He asked what would happen to members of the Directorate who were found to be corrupt themselves.

Mr Antonie welcomed the rich range of questions posed by Members. On the location of the DPCI, there was a coherent argument that the unit should not be within SAPS. Justice might be a better location.

Ms Gon said that if HSF had interpreted the Constitution correctly, then DPCI could not fall under SAPS. The essence of the Bill should be more universal than specific.

Mr Jeffery asked why HSF was saying that the placement of the body under the SAPS was unconstitutional.

Ms Kohler-Barnard said that there had always been a body within SAPS. She asked if this was correct.

Mr Mash was not saying that the Concourt was incorrect. They were not saying that the DPCI could not exist either. The problem was the clear constitutional requirement for an independent anti-corruption unit. It would be unconstitutional to rule that there could only be one anti-corruption unit.

Mr Jeffery said that rulings had been made on the independence of the DPCI. The Concourt could have ruled that a separate body should be created.

Mr Ndlovu criticised Members for not respecting the Chairperson.

The Chairperson explained the process of follow-up questions to the HSF delegation.

Mr Antonie said that Mr Jeffery had been his student at university. Mr Jeffery had been a good student but not a punctual one. He denied Mr Jeffery's allegation that HSF was doing contortions to avoid his questions. It was a question of separation of powers and independence. The particular type of constitutional protection was not to be found in the current structure of the DPCI. The Concourt was practising progressive jurisprudence. The Concourt had spoken on the possibility of influence being exerted on members of the DPCI. The issue had been addressed under its concerns over security of tenure.

Ms van Wyk still felt Section 207 (2) of the Constitution was relevant. The NC was not acting in a vacuum with unfettered powers.

Mr Mash said that the same Section directed the NC to manage the SAPS. This did not allow that the powers of the NC could be withheld regarding a specific section of the SAPS. Section 2 made it clear that the NC must manage the SAPS.

Mr Antonie saw a way forward regarding Section 207. There would always be a question of independence. It could arise in any situation, but would arise if DPCI was within SAPS because of financial management and command and control structures. He could not express an opinion on what the Concourt might say to an extension of its deadline for the corrected legislation. HSF had originally suggested that Parliament be given twelve months to rectify the legislation but the Concourt had been generous in allowing eighteen months. The judges were reasonable people.

Mr Antonie felt there had to be two accounting officers. He could not see any legal impediment to this.

Mr Kenny said that this was mentioned in the submission. In the case of the Independent Complaints Directorate (ICD), the legislation had provided for the Head of the ICD to be an accounting officer. Financial independence would go a long way to securing operational independence.

Mr Antonie said that there was a lot to be thought about concerning the location of the DPCI. It was as much a question of how it should be housed as where. Nothing had been prescribed. There were many possibilities, such as a Chapter 9 body or a similar arrangement to the NPA. The Concourt had set out its criteria clearly, and the question was if these criteria were being met. The dilemma around Section 207 had put the matter in a new light.

Mr Mash said that the terms of office stipulations did not conform to norms. Elsewhere, the NPA Director was appointed for ten years. The wording could be simply "term of seven years".

Mr Jeffery asked if there were any examples of minimum terms.

Mr Mash thought he had done that. Perhaps two questions were being conflated.

Ms Gon said there was a legislative fixation on fixed terms. Should a public servant be found to be incompetent, the only way out of a fixed term employment was a massive payout. It would be better for public servants to be employed until retirement age, subject to laws of dismissal. There was a great distinction between fixed and non-renewable terms. Her suggestion was that a simple path should be followed.

Submission by Prof Mtende Mhango: School of Law, University of the Witwatersrand
Prof Mtende Mhango, Wits School of Law, said that the Concourt had ruled in a previous case was that it was the duty of Parliament to address the fears of the nation. The Glenister judgement found two main defects in the SAPS Act. Firstly, there was a lack of security of tenure and secondly there were doubts over the independence of the DPCI. Parliament had followed the instruction to amend the SAPS Act in accordance with the judgement.

Prof Mhango said that it was not up to Parliament to decide where the DPCI should be located. The only question was of independence. It was right for the Executive and Parliament to make an operational decision on the location of the unit. On security of tenure, he felt that the provision to appoint the Head for a non-renewable term of seven years maximum was correct. There would be political pressures on an incumbent seeking a second appointment. Previously the Head and Deputy Head of the Hawks had the option of a renewable term. The Bill addressed this quandary. The terms were now fixed. He would suggest wording such as "non-renewable term of between five and seven years". There was a practice of appointing Heads of Departments for five years in some cases and seven years in others.

Prof Mhango said that the salaries of members of the Hawks other than the Head and Deputy Head had raised concerns due to their absence. It was coupled to the security of tenure problems. Adequate independence required that members should have adequate and assured salaries to carry out their duties vigorously. This would apply to all members. The Bill was compliant with the judgement. On the removal of the Head, the main defect found by the Concourt was that the reasons for dismissal were too broad. Clear criteria were now in place. These were the same grounds as applicable to the Head of the DPA. All of the concerns of the judgement were thus reflected in the Bill. Employees would now be required to take an oath of office to uphold the Constitution and to be impartial. Under the DSO, only the Head, Directors, Deputy Directors and prosecutors were required to take the oath.

Prof Mhango said that all employees would now take the oath. This was seen as a sign of independence. The Head of the Hawks was empowered to appoint the staff. These powers entrenched the independence of the Hawks. This was one of the litmus tests of independence.

Prof Mhango said that the Concourt had found the role of the Ministerial Committee to be defective. The Bill had addressed this problem in a number of ways. The work of the Hawks would now be directed by guidelines issued by the Minister with the approval by Parliament. Such guidelines would not be valid unless approved by Parliament. This Bill clearly contemplated the oversight role of Parliament. The Concourt had found that the Ministerial Committee arrangement could exert political influence. Now policy would only be issued by the Minister, although the committee still had a role to play. Clause 17 (I) used the word “may” instead of “shall” in terms of the role which the Ministerial Committee might play. It no longer had the power to manage the daily operations of the DPCI. The Bill would be constitutional.

Prof Mhango said that the Constitution provided for a Member of Cabinet to oversee the SAPS. This mandated the Minister in playing a role in all matters concerning policing. The move from the ministerial committee to the Minister was in line with the judgement. The Court had said that any attempt to influence the Hawks would be unconstitutional. The Head of the Hawks would no longer be subordinate to the NC in terms of managing the Hawks. The only exception was if the Head of the Hawks wanted to recruit personnel from SAPS.

Prof Mhango commented on Chapter 9 institutions. The judgement had not mandated Parliament to establish the Hawks under Chapter 9. The Constitution was the supreme law.

Prof Mhango said that Section 85 (1) of the Constitution said that all executive authority in the country was vested in the President. It was a well-vested international principle that all policing and prosecutional functions were an executive function. If Parliament passed a law denying the Executive control, then it would be constitutionally invalid. It was significant that the Bill granted the Minister sufficient oversight powers.

Prof Mhango quoted a judgement in a case in the United States of America. It was not unthinkable that power should be vested in the executive. Parliament had passed some laws exempting themselves from the laws of the country, and this was constitutional. The principle of separation of powers made exclusive power possible, but the Bill did introduce a system of checks and balances. Parliament could remove the President or the Cabinet. The Executive could refuse to assent Bills which were unconstitutional. The judiciary could rule against malicious prosecutions. Furthermore, the electorate could dismiss their public representatives.

Prof Mhango said that the Concourt had ruled on potential rather than actual abuses of power. There was no allegation that the Hawks had abused their powers. Courts were not meant to rule on possibilities. In conclusion, he stated that the SAPS Amendment Bill complied with the Glenister judgement and would create a perception of independence of the DPCI by a reasonable person.

Mr Ndlovu wanted to take an issue on the location of the Hawks. The Professor was saying that the NC would not be consulted except where there was recruitment from SAPS. The Head of the Hawks would serve as a Deputy NC. He asked if this was not a contradiction. He noted the different terms of office. He asked if the term in the Bill should be amended. He was worried about security clearances. He sensed that different presenters had a different perception. He asked if all members of the Hawks should be vetted, or just some.

Ms van Wyk found it refreshing that there was an independent thinker and not a group submission. There was clearly an indication that some issues would have to be discussed with the Department. The issue of security clearance was one of them. A number of submissions made to the Committee had suggested that the fact that the NC would be the accounting officer for the Hawks would impact on the perception of independence. In many of the submissions, she had the impression that Members were being called on to legislate around individuals. The Hawks did not deal with corruption exclusively. There were other bodies such as the SIU and Public Protector. She asked what the Professor's ideal model would be to fight corruption.

Mr L Ramatlakane (COPE) noted that the Professor had spoken to Section 207 (2) of the Constitution but not to Section 207 (1). One of the issues raised was that Section 207 (1) spoke to control and management. He asked if the NC and the head of the Hawks should be on the same level. The litmus test of independence could be based on the appointment of staff. He asked if the this alone would satisfy the judgement. There was also an issue around the oath. He thought that there was already an oath in the SAPS, and asked if the oath sworn by Hawks members would replace that of SAPS. The Amendment Bill would have to be tested against the Constitution. He had noted some contradictions. He was hearing that the Professor was saying that the attention should be on the constitution or on the Concourt. There might be another legal test. The unit could be taken elsewhere, but would still have to be accountable to Cabinet.

The Chairperson asked if it would be constitutional for the DPCI to be under the SAPS, or not. She sometimes battled to visualise the concept of the reasonable person.

Prof Mhango replied that the location question kept coming up. His view was that the Concourt had been clear. Their only concern was the independence of the body. The question was independent of what. There were three branches of the state, legislative, executive and judiciary, and not four.

Prof Mhango was undecided about how long the term of office should be. The incumbent should have enough time to establish him or herself. The benefits might only be seen later. Five years should be the minimum.

Prof Mhango regarded security clearances as an operational area and had therefore not commented on the matter. Sufficient information was needed to guide decisions. He would leave this matter to the experts.

Prof Mhango said that the Concourt ruling was that absolute independence was not required. Given the financial and operational procedures, a high level of independence was possible. In theory the Deputy NC fell under the NC.

Ms Kohler-Barnard said that the Deputy NC fell under the NC and that was a fact.

Prof Mhango said that there would be a special arrangement for the Head of the Hawks, who would be allowed exclusive decision-making powers in some areas.

Prof Mhango said that his experience revealed that where central structures were in place, crime fighting had been efficient. Where there was fragmentation, even in well-resourced countries, there was less efficiency. In South Africa's case a single system was more appropriate.

Prof Mhango explained why he had singled out Section 207 (2). Section 207 (1) was more about the daily running of the Police. Section 207 (2) dealt more with overall command and control. He had been trying to make an argument that there had to be some political oversight. It spoke to the role of the Executive.

Prof Mhango said that some experimentation was needed to find the ideal model. This process had started with the Scorpions. The Concourt had delegated the role to Parliament. The appointment process was one aspect of a number of serious factors to be considered in judging independence. One had to look at the totality of the circumstances. There were various factors that he had considered, and the combination of the factors led him to decide that there was compliance with the judgement. He had not been aware that SAPS members took an oath of office. The Scorpions had take an oath which the Hawks had not done.

Prof Mhango said that Parliament must comply with Concourt judgements. When it made laws, however, it had to interpret the Constitution. A judgement of the Concourt was simply the Court's interpretation. Interpretations could change as judges were changed over time, but the Constitution remained supreme. The minority judgement would become future law, in his opinion. Parliament could not wait for complaints.

Prof Mhango said that there were more benefits to locating the Hawks within the SAPS than elsewhere. The service could be streamlined. Resources could be shared. He did not agree that there was a constitutional problem with their location, neither had the Court. He did not want to create hypothetical problems. The Concourt could not have issued the judgement if an amendment to the Constitution would be required.

Prof Mhango said the definition of the reasonable man was extremely subjective. This language was used by many courts, but it was difficult to say what was meant by it. Judges often interpreted this based on their own experience.

The Chairperson found it fascinating that judges at the Concourt could have different interpretations of the Constitution.

Open Society Foundation-SA, Legal Resources Centre & Corruption Watch submission

Adv Steven Budlender, an attorney representing the Open Society Foundation-SA, Legal Resources Centre and Corruption Watch, said that Concourt had indeed said that the DPCI could be placed within SAPS providing that there was sufficient independence. At the same time, Parliament had the right to place it in some other place. The organisations he represented felt that placing the unit within the SAPS, while not unconstitutional, was unwise.

Adv Budlender touched on what independence required. The first core element was security of tenure. His organisations had a serious problem in that there was no requirement for Parliament to approve the appointment of Head and Deputy Head. Parliament should play a fundamental role. There were no criteria for the appointment even the provision in the Bill for an Acting Head did indeed prescribe various criteria. On the minimum fixed term of office, the terminology of “not exceeding 7 years” was problematic. A better model to follow would be Section 190 of the Constitution, which specified that the Auditor-General (AG) should be appointed for a “fixed, non-renewable term of between five and ten years”. It was also a threat to security of tenure that there was no minimum length to the term.

Adv Budlender suggested that Section 17G should be deleted. Whereas the Amendment Bill required Parliamentary approval for remuneration and other conditions of service for ordinary members of the Directorate, Section 17G made provision for the Minister to regulate conditions of service without Parliamentary approval.

Adv Budlender said that removal from office was a fundamental element impacting on security of tenure. There was no role for Parliament to play and no requirement that the Head should be restored even if so recommended by Parliament. “Loss of confidence” was too subjective a term. Again, in the case of the Public Protector and AG, a Parliamentary process was required. There was no special protection for Deputy Heads and Provincial Heads, or for other DPCI members. The Concourt had specifically discussed the lack of security of tenure for such persons.

Adv Budlender said it was important to distinguish between accountability and management. The Minister was assigned political responsibility for the SAPS in terms of Section 206, but the control and management function was assigned to the NC in Section 207.

Adv Budlender quoted the Concourt on the role of the NC. The NC had a renewable term of office, which the Concourt felt exposed the NC to possible political and other pressures. The legislation should ensure that the NC did not play a specific role, or if he or she would, then the provision needed to be brought into line. The Concourt had made a unanimous rule on the question of successive terms in a different case.

Adv Budlender said that the Minister would make policy guidelines, with Parliamentary approval. However, the head of the DPCI had no role to play. This was inconsistent with Section 17 C 1. This could be compared to the powers of the National Director of Public Prosecutions, the AG and Public Protector, who were empowered to determine policy and the scope of their investigations. The reference to “selected offences” was too vague.

Adv Budlender moved on to Section 18K. The organisations he represented were concerned that the provision in the original amendment had been removed from the current Bill which provided for the Head of the DPCI to report directly to Parliament. In the current Amendment Bill, the DPCI would be represented by the NC. His recommendation was that the working of Section 17K(2) should be amended to replace 'National Commissioner' with 'Head of the DPCI'.

Adv Budlender felt that the ruling of the Concourt in terms of financial control. Section 17H provided that the NC would be responsible for the budget of the DPCI. Consultation with the Head of the DPCI was required, but not the agreement of the Head to this budget. The NC would also be the accounting officer for the DPCI, whereas in IPID the Executive Director was the accounting officer, and similar the Secretary for Police was the accounting officer in the Civilian Secretariat for Police. He recommended that the Head of the DPCI should be able to argue for his budget before Parliament, and should also be designated as the Accounting Officer of the DPCI.

Adv Budlender had listened to the debate on security clearance. The current law required security clearance for members of the DPCI but not for members of the SAPS. He did not think that investigations of corruption would compromise national security. The sweeping requirements of Section 17E may create the perception that the unit was not independent. His recommendation was that either Section 17E(4) should be deleted. Alternately, the powers vested in the NC under 17E(4) should be transferred to the Head of the DPCI. Section 17E(4) was incompatible with 17E(5) and (6)

Adv Budlender said that the minimum level independence would be easier to achieve if the DPCI did not fall under the SAPS. Its presence would create overlapping lines of authority, and disrupted the SAPS hierarchy for no good reason. The relationship between the NC and the DPCI was particularly problematic for independent functioning. His organisations felt that it would be impossible to achieve the independence requirements listed by the Concourt under the arrangement as laid out in the Amendment Bill. His recommendation was that the DPCI should be an independent institution, either on a model similar to IPID, or be set up as a Chapter 9 institution.

Adv Budlender did not see it as a fundamental problem that the Hawks would have policing powers while not being part of the SAPS. Parliament did have the authority to confer policing powers on any group for a specific purpose. There was concern that there might be a perception that there would be two police forces. There was a precedent from a case where a prosecution in the South African National Defence Force had been challenged on the grounds that only one prosecution authority could exist. The Concourt had ruled in this case that the single prosecuting authority replaced the many different authorities that had existed under apartheid. There was no constitutional objection for the Hawks being set up as an alternate police service.

Ms van Wyk was glad that Adv Budlender had said the task was difficult and not impossible. He had raised many valid points and Members would consider the submission when deliberating on the Bill. She asked why presenters who presented themselves as knowledgeable about the Constitution kept quoting Section 207 (1) out of context. She quoted Section 207 (2). The SAPS Act guided the NC in his or her management function. Submissions were ignoring the contents of the Amendment Bill. Certain exclusive powers were granted to the Head of the DPCI. More powers could be granted. The Bill made provision for a ring-fenced budget and internal appointment of staff. The DPCI could approach the NPA directly. Other issues could be incorporated such as disciplinary procedures and staff terms of office. The Bill started with a reference to Section 207 (2).

Ms van Wyk said that there was good logic for IPID being outside the SAPS. Specific crimes by SAPS and metro police members were targeted. Making the Head of the DPCI the accounting officer would impose a lot of administrative responsibility. IPID had only 337 members as opposed to the 3 900 in DPCI, but already the Executive Director of IPID was preoccupied with administrative matters. There was nothing stopping Parliament from allowing the Head of the DPCI from reporting directly to the Committee for operational and financial accounting.

Ms van Wyk said that DPCI received various support services from SAPS. Many of its investigations started with routine SAPS investigations. It was acknowledged internationally that organised crime and corruption were intertwined.

Ms Kohler-Barnard noted that there was no suggestion that the DPCI should fall under the NPA. Their relationship with the Scorpions had inspired public confidence and had enjoyed a 90% conviction rate. This should be the aim. She asked if there were good reasons why this partnership should not be attempted. She asked if the IPID or Chapter 9 model would be more successful. IPID was a reactive agency but there was no longer a body which could look at the affairs of senior SAPS members. If corrupt Police officers or top politicians were suspect then there was no mechanism to investigate them. The Acting NC had admitted in front of the Committee that he was subject to interference.

Mr George said there was no way that a body within the SAPS could not be accountable to the NC. There had been much reference to perceived independence. This had to be the way that the public perceived the body. He asked if the public would have this perception. If Parliament was to amend the Constitution, a two-thirds majority was needed. This might not happen. He asked under what circumstances the clause regarding loss of confidence would be applied. He could not consider a situation where the NC would not play a role in the body's function. The main accounting tool presented to Parliament was the Annual Report. This came from the Department. He asked what guarantees would be afforded by the proposed ring-fencing procedure.

The Chairperson found it interesting that there was concern over the NC, who was a political appointment. The Head of the DSO had been appointed by the President. The NPA deputy directors and its directors could be appointed by the President. It seemed that presenters were looking for absolute independence.

Mr Ndlovu asked what Adv Budlender would recommend for a term of office for the Head of the DPCI. The Head might be suspended for alleged misconduct but be subsequently exonerated. He asked what would happen in such a case.

Ms van Wyk said that the SAPS had favourable figures in comparison to the Scorpions, with the difference that SAPS could not be selective in which cases they took on. A similar unit in Hong Kong had received 108 000 complaints but only 443 had gone to court, and only 88 had resulted in convictions. Most countries which were signatories to the UN convention on corruption had their units within law enforcement agencies.

Adv Budlender acknowledged that there were more subsections to Section 207. There was no constitutional requirement for independence for SAPS. However, the Concourt had made a specific ruling on a body which would specialise in anti-corruption. The mere conferral of certain powers on the Head of the DPCI did not mean that the NC had no role. This was not the case as the Bill stood. The NC still had an influence over the Directorate.

Adv Budlender accepted that there was a specific mandate for IPID. The bodies had different functions. It did, however, show that it was possible for locating a body related to policing outside the SAPS. The concern that the Head of the Directorate would be swamped with administrative work was not valid as this person would have a significant administrative function in any event. In terms of forensic investigations, separation from SAPS would not preclude the DPCI from receiving assistance from SAPS. A provision could be included in the Bill.

Adv Budlender said that DPCI could still consult with SAPS on organised crime, and undertake combined operations. The DPCI could go back to the control of the DPA. He had no comment on the merit of either case. However, the one requirement was independence. It was not for him to choose the best option. The Directorate must be seen to be independent. The test was still in the view of the reasonable man.

The Chairperson asked if Adv Budlender thought the Concourt had erred.

Adv Budlender was not suggesting this, and did not think it impossible that DPCI could be included in the SAPS, but only if the tests for independence could be applied. Legislative checks and balances would be needed to ensure that the NC did not play a role in the affairs of the DPCI.

Mr George asked if it was possible for Parliament to make law that superseded the Constitution.

Adv Budlender said it would be unconstitutional to restrict the constitutional duties allocated the NC. The Directorate would have to be independent financially. The key in the judgement on the question of terms of service was not the length but the renewabality was a problem. The length of the term was not really an issue but should be long enough to let the person get into the job.

Adv Budlender said that after Parliament had considered the suspension of Head then due process would follow. The South African courts were clear on the question of independence. The South African constitution was unique and while international practice was noted it was not followed blindly. The NC could have his term renewed on a successive basis.

Council for the Advancement of the South African Constitution (CASAC) submission
Mr Sipho Pityana, Council for the Advancement of the South African Constitution (CASAC), was concerned that despite there being several private and government initiatives, there was no single body to fight corruption. There was no common understanding of corruption. CASAC had conducted detailed research South Africa was a signatory to various international initiatives, which did advocate an independent body. Public awareness was critical. There was a lack of focus on corruption in the private sector. The single most lacking factor was the lack of political will. This was demonstrated by the lack of, amongst others, independence of the agency, adequate resources, zero tolerance and the presence of legal frameworks. A clear demonstration of the political will would be the establishment of a new Chapter 9 organisation.

Mr Pityana said two key factors emanated from the Glenister judgement. One was independence, and the second was that corruption-fighting measures must be effective. The majority ruling had spelt out further requirements. Public confidence was critical. This was linked to perceptions about the SAPS. All sorts of charges had been levelled against the most senior members of the SAPS. Ordinary citizens were confronted by requests for bribes on a daily basis by law enforcement officers. Even the most optimistic and patriotic citizens were despairing.

Mr Pityana said that it was abundantly clear that an anti-corruption unit could not be located with SAPS. It was important to bear in mind the minimum requirement of the judgement, it was CASAC's view that the optimal option must be put into place. Parliament must convey the political will.

Mr Pityana had concluded that the proposed Amendment Bill was not an optimal solution. It was not in compliance with the judgement.

Mr Vusi Pikoli, Council Member, CASAC, said that a functional unit was needed. There was a question over how to change public perceptions. There should be no interference with the anti-corruption unit. A radical approach was needed rather than a re-arrangement of existing instructions. It would be futile to repeat the mistakes of the post. Preventative measures needed to be put in place. The public needed to be educated on corruption. The Minister's guidelines would not be sufficient guidance. On police matters there was no requirement in the Constitution for SAPS to be independent. It all came down to personal and institutional integrity. A new start was needed. A parliamentary process was needed to appoint the Head of the institution. It would be more objective. Pre-determined criteria must be specified. There should be disclosure of interests.

Mr Pikoli said that CASAC agreed with much of what had been said in previous submissions on the security of tenure. There should be objectivity in disciplinary procedures leading to dismissal. The budget should be directed appropriately.

The Chairperson said that the Glenister judgement dealt with potential political interference. There had been no examples of such interference with the Hawks. She asked how public perceptions could be measured. CASAC was suggesting a Chapter 9 institution. A potential change to the Constitution would have to go through a different Committee. The current Head of IPID and of the Hawks were both appointed by the Minister, as was the Secretary for Police. There had been no complaints since the appointment of the current Head of the IPID. She asked if CASAC was suggesting that Parliament abandon the current process and work on a totally new Bill instead. Some important issues had been raised. The suspension of the current NC proved that nobody was above the law. The President had appointed a board of enquiry to investigate the charges.

Mr Lekgetho said that corruption undermined the democracy. Three sentences in the submission talked about political will, and yet political interference was to be avoided. He felt this was a contradiction. He asked what they meant by a public participation process. All had to consider what they considered to be corruption. A can of worms might opened. Cut off dates were needed so that backlogs could be addressed.

Mr Ramatlakane asked how the triple mandate should be dealt with. He asked how an anti-corruption unit would deal with a mandate. The location of the body was a concern. If a Chapter 9 institution could not be achieved, he asked what other measures could be taken to ensure independence. There was no requirement for SAPS independence. This had not been articulated before. In terms of Section 207 of the Constitution, he asked if this would act as a constraint on independence.

Ms van Wyk was interested that the unit should only deal with corruption. International studies indicated a link between corruption and organised crime. Education was needed. This should be the responsibility of all government Departments and the private sector. It should be part of the moral fibre of society. The fight against corruption should be part of the education system. This was the second submission which had touched on perceptions. If a lie was repeated often enough people would believe it. Section 119 (7) of the Constitution stipulated that no law enforcement agency could advance or hamper the work of any political party

Mr Ndlovu had been a Member of the Committee that had appointed the current Public Protector. He asked how the concepts of an act of Parliament could be divorced from political interference. He asked if the principle of disclosure should be applied to both the candidate and the persons making the appointment equally.

Mr George said that the Chairperson had stated that the unit must be within SAPS. In structures like the Chapter 9 bodies, he asked if an amendment to the Constitution was needed, and if not, how the CASAC proposals could be realised. Most of the work done by the Scorpions was actually started by SAPS. The linkage of organised crime to corruption was still being raised. He asked if there should be no link with SAPS whatsoever if it was to be established outside SAPS.

Ms Kohler-Barnard said that not enough attention had been paid on the section of the judgement relating to public perception. She was also concerned about the linkage of crime at the lowest level to serious corruption. SAPS should be dealing with corruption at that level. Serious organised crime was exploding. Top investigators were needed to deal with global drug cartel rackets. The submission referred to all manner of priority crime, but the mandate of the unit was to deal with corruption etc. She asked if the et referred to other categories of crime.

Ms Molebatsi noted that the incorrect Bill number had been cited on the submission.

The Chairperson asked if being appointed by a politician amounted to political interference in itself. In the NPA Act, the President had the power to summarily suspend the Head and Deputy Head. This was surely potential political interference. In terms of the Constitution, political direction over the SAPS was assigned to the Minister but management and control functions to the NC.

Mr Pikoli said the appointment by the Minister was not necessarily a sign of improper influence. The point was politicians were involved in corruption all over the world. The legitimacy of the process had to be ensured. The main concern was the corruption involving politicians. It was correct that investigation into charges could lead to further allegations. Having an independent anti-corruption unit would not exclude the possibility of cooperating with other law enforcement agencies.

Mr Pikoli said that creating a Chapter 9 institution was the desirable option, but this would be decided by Parliament.

Mr Pityana said that Ms van Wyk had raised an important issue on independence. The section she had quoted related to impartiality rather than independence. SAPS was an instrument of the executive. It must be impartial in fulfilling this task. South Africa had a legitimate elected government. The people elected Parliament. Parliament elected the President, who then appointed the Executive. The public relied on Parliament. The people had to have confidence in the Executive. The issue was not that there was a lack of confidence in the Executive. Corruption reached up to high levels of government and the private sector. The reluctance in appointing an independent authority harmed the public perception. Parliament was the forum people could approach for assistance. The establishment of an independent body would work with government and the Executive. Business also had a role.

Mr Pityana said that education should indeed be done across the board, and should be championed by the proposed anti-corruption body. It was wrong to take a minimist approach. He had read the resolutions of the ruling party on corruption. He had been filled with joy on seeing this commitment. These resolutions were in tune with the Glenister judgement. Parliament would have to decide if a Chapter 9 agency was needed, and hence the need for an amendment to the Constitution.

Ms van Wyk believed it all went about political will. If this will was lacking, even from the Head of an organisation, it would not succeed. Chapter 9 institutions included the Public Protector, who was currently the darling of the people. Previous incumbents had not carried the same favour with other parties. If the political will was there, adequate independence would be ensured by appointing the right person with the correct resources and degree of independence to proceed without fear or favour.

Mr Pityana said that this was not entirely true. Political will manifested itself in different views. Political will was a measure of support for the plans of the ruling party. If the Public Protector was in a slumber, that person should be called to book. There was evidence of political interference. Mr Pikoli, who had already left the room, had been dismissed. The public had seen this as political interference.

The Chairperson said that the head of the DSO had been removed, but people still thought the Scorpions had been political independent.

Mr Pityana said similar incidents served to test the independence of a body. NC Cele was facing an enquiry. There was a perception that there was rampant corruption to the highest levels in SAPS, There was a particular public perception around SAPS. It was inconceivable that there would be immediate public support for an anti-corruption unit within SAPS. The political will would be reflected by the establishment of an independent body.

Mr Lawson Naidoo, Executive Secretary, CASAC, said there had been due process in the Pikoli matter. Independence dictated that due process be held.

The Chairperson was still not sure that political appointments would amount to political influence. Consistency was needed.

Mr Pityana said that judges were appointed by the President after consultation with the judiciary. The judiciary would examine the candidates and make suitable recommendations. Debates about appointments were part of a vibrant democracy. He wondered what the Concourt would have ruled had the Pikoli dismissal had been referred to them.

The Chairperson said that the judgement had referred to the DSO as a good example of an independent body.

Ms van Wyk said that the Scorpions had been presented as the ultimate in an independent body. This was part of the minority judgement.

The Chairperson commended CASAC for being the first organisation to raise the issue of private sector corruption.

Mr Pityana said that CACAC had published a report on corruption during the apartheid era. The starting point should be the mandate from the Constitution on the use of resources. The comparison to the appointment of judges was there to ensure the confidence of the public and hence the legitimacy of the process. The democratic dispensation should be all-inclusive. He had confidence that the Committee would do the right thing.

Association of Certified Fraud Examiners (ACFE) submission
Ms Gillian Bolton, former ACFE Board Member, said the ACFE was an association designed to counter fraud and white collar crime. The South African chapter had been founded in 1998. Three were 3 000 members representing 600 companies and government entities, including SAPS. Chapters had been established in other African countries.

Ms Bolton said that corruption had a corrosive action. She reminded Members that it took two to do the proverbial tango. The South African Chapter was committed to counter corruption. They had worked with the Hawks, and presented training to SAPS and the SIU at no charge.

Ms Bolton said the Chapter had serious concerns over a number of aspects of the Amendment Bill. A number of senior SAPS officers involved in fraud investigation did not know what to look for.

Ms Bolton said that the Glenister judgement, while identifying the need for an anti-corruption body, did not specify that it must not be part of the South African Police Service. However, the Court had found that the provisions for the DPCI did not meet the test of independence.

Ms Bolton said that the Concourt had also looked at international agreements to which South Africa was a party. Key issues which needed to be considered relating to the Bill were independence, specialisation, security of tenure, guaranteed access to financial and other resources, and adequate training.

Ms Bolton said that the terms of the judgement obliged the State to create an anti-corruption unit. Whilst the DPCI was described as being “shielded from undue political interference” the Concourt did not feel that its independence was sufficiently safeguarded. This was indicated in the lack of security of tenure and the provisions for political oversight which were in the Bill. While accountability was needed, the Court had been concerned about the degree of political interference which was allowed in the Bill.

Ms Bolton said that the DPCI had a mandate to investigate “priority crimes”. This implied that there would not be the amount of specialisation required by the Concourt.

Ms Bolton said that there was a lack of security of tenure. Members of the DPCI, even the Head, could be dismissed on subjective grounds. Remuneration levels were not determined, which diminished the status of the unit. The Bill still made some provision for an unacceptable level of influence by the Ministerial Committee. While provision was made for Parliamentary oversight, the Concourt felt that the Bill still left more authority in the hands of the Ministerial Committee. The provision for a retired judge to hear complaints was noted, but the Concourt felt that complaints could only be addressed after the fact, and that the judge would not be guaranteed free access to information.

Ms Bolton said that the South African Chapter of the ACFE did not believed that the Amendment Bill addressed the Glenister judgement directives adequately. Even if the unit were constituted in the same way as had been the case with the DSO, it would not be sufficiently independent. For this reason, the ACFE recommended that the Chapter 9 institution would be the best option for an anti-corruption unit, especially in the light of the easy way the Scorpions had been disbanded.

Mr Ndlovu said that five requirements had been listed to achieve independence. He asked if there would be no political interference in a Chapter 9 body. He asked if the Amendment Bill would address the concerns expressed by the ACFE.

Mr George said that everybody was suggesting that the unit should be outside SAPS. Only Adv Hoffman had actually motivated the suggestion. To create a Chapter 9 institution, the matter would have to be referred to the Committee on Justice or an Ad Hoc Committee. This body would be completely different to the Hawks. A clear message must be sent that Parliament was serious about fighting corruption.

Mr Ramatlakane said that a statement that the Bill in its current form would not address the Glenister judgement. There was a suggestion of the formation of a body similar to the DSO. He asked why ACFE considered the Chapter 9 option the only solution.

Mr Lekgetho noted the Concourt judgement had not specified that the DPCI should be removed from SAPS control. He asked if ACFE felt the court had erred.

Ms van Wyk said the Amendments introduced into the Bill had not been considered. Powers had been removed from the Ministerial Committee. Exclusive powers had been granted to the Head of the DPCI. These could be further strengthened. The submission was a critique of the Act rather than the Amendment Bill. A new institution could create another level of ineffective bureaucracy. Turf wars might result. The fully independent body in Hong Kong had an extremely low conviction rate. The SAPS had a responsibility to deal with all crimes. The Public Protector and SIU were also investigating cases of corruption. She asked why it would be wrong for SAPS to have a unit looking at the top end of organised crime and corruption. Members had not heard arguments to support the inclusion of DPCI within SAPS.

Ms Kohler-Barnard was interested in the complaints mechanism. This had been introduced after the Scorpions had been chucked out. This had led to the concept of a retired judge hearing complaints. She asked if the work of such a judge would be hampered. There was no mechanism to act pro-actively.

The Chairperson asked what international best practice was.

Ms Bolton said that the first question was that recommendations made did not correspond to the judgement. The submission resulted from the experience the members of ACFE had gained while working with law enforcement agencies. Parliament had a role to respond to Constitutional problems. Their recommendations might be broader than the specific requirements related to the Bill. The work done by the Public Protector was a good advertisement for the potential of a Chapter 9 body.

Ms Bolton said that wherever the unit was placed would lead to questions over training and resources. There was a way of parcelling up responsibilities for the fight against corruption and organised crime. A lot of discussion would be needed to determine responsibilities for the different law enforcement agencies. She agreed that resources would have to go into education. The investigation of corruption required other techniques. There had been high profile investigations. The NC should not be implicated.

Ms Bolton said that the work of a Chapter 9 institution was well illustrated by the Public Prosecutor. She would not say that the Concourt had been mistaken. They had had to grapple with many issues. This story of the Scorpions had taught the country lessons.

Ms van Wyk said that there had been a lot of discussion about Section 207. The minority judgement had shown that this section of the Constitution had been discussed at length.

Ms Bolton said that just because Section 207 had been discussed did not mean that it had swayed the opinion of the judges. A number of complaints would result in convictions. One must not lose sight of the collective effort of a number of groups. There had been significant debate about a number of issues. Creating a specialist anti-corruption unit would sharpen the focus on corruption. The Public Protector had an enormous number of cases and would benefit from the assistance from such a unit.

Ms Bolton said that the DSO had been seen as an effective crime-fighting tool. The man in the street had a poor perception of the Police and there were many examples of poor service delivery to the public. Being reactive was not necessarily an optimum way of dealing with an issue. It was best to deal with matters as soon as one was aware of a situation. The ACFE was not convinced of the effectiveness of the retired judge. If a law enforcement officer believed that he or she was being hamstrung, it was not necessarily the best way to wait to see the judge. A proactive approach was needed. Other mechanisms such as the Presidential hot line could be used.

Ms Bolton said that ACFE had been approached to provide a broad perspective. They had not gone into the same level of detail as the various lawyers that had made detailed submissions. Their submission had therefore been on a general basis rather than the specifics. She offered her support in terms of research and information.

Closing remarks
The Chairperson said that Members had been exposed to a situation of seeing how important and binding a Concourt judgement could be. Members would now have to review the submissions and then deliberate on the Bill. The delegation from the University of South Africa had been unable to present an oral submission.

The Chairperson tabled the IPID report. She requested Members to study the report so that it could be adopted the following Week.

Ms van Wyk said the issues tabled by the Department should include issues emanating from the submissions.

The meeting was adjourned.

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