Judicial Matters Amendment Bill [B11-2012]: briefing by the Department of Justice and Constitutional Development

Meeting report

Presentation: Briefing Document on the Judicial Matters Amendment Bill [B11-2012]
Mr Sarel Robbertse, Principle State Law Adviser from the Department of Justice and Constitutional Development (DoJ&CD), said that the Bill was intended to address practical challenges and enhance organisational efficiency. The Bill sought to amend the Special Investigations Unit (SIU) Act 74 of 1996 and National Prosecuting Authority (NPA) Act 32 of 1998. The amendment to the SIU Act was to further regulate the litigation functions of the SIU under clauses 1,3,4,5 and 8; provide for the secondment of a member of the SIU to another state institution under clause 2 and to provide for the funding of the SIU under clauses 4, 6, 7. The amendment to the NPA Act was to do away with the requirement for the Minister of Justice and Constitutional Development to consult with the National Director of Public Prosecutions (NDPP), the Minister for the Public Service and Administration and the Minister of Finance in the event of ordinary cost-of-living remuneration increase for the Deputy Director of Public Prosecutions (DDPP) and prosecutors as well as to provide for the appointment, continued employment and conditions of service of persons employed in the NPA as financial investigators and analysts. The original purpose behind the enactment of the SIU Act was to create a mechanism which was the Special Tribunal that was aimed at dealing more speedily with civil litigation flowing from the investigations of the SIU into serious cases of malpractice and maladministration. This intention was manifested in the long title and Section 4(1)(b) and (c) of the SIU Act. This purpose had been affected by some decisions of the courts that limit the locus standi of the SIU e.g. SIU and Another vs Mfeketo and Twenty Similar Matters 2001 (1) SA 1089 (SpT) and SIU V Ngcinwana and Another [2001] 1 All SA 392 (E) at page 397.

The proposed amendments were intended to allow the SIU to litigate on behalf of state institutions. One of the reasons for affording the SIU this power was to assist with the recovery of losses suffered by the state institutions as a result of serious malpractice and corruption. Clause 1 of the Bill amended Section 2(1)(b) of the SIU Act. The amendment changed the phrase “justiciable civil disputes” to the phrase “civil proceedings”. Clause 3 amended Section 4(1)(b) and (c) of the SIU Act. Clause 4 also amended Section 5(5) and (7) of the SIU Act in order to amend existing wording as well as to reaffirm that the SIU may institute and conduct civil proceedings in its own name or on behalf of a state institution in the Special Tribunal or a court of law. The amendments proposed to the current Section 5(9) were consequential as a result of the proposed Section 4(1)(c) and 5(5) of the SIU Act, this would further provide for the appearance of advocates or attorneys of the SIU on behalf of the SIU itself and state institutions in the Special Tribunal or court of law. Clause 5 amended Section 8(2) of the IU Act to specifically confer powers on the Special Tribunal to adjudicate upon “civil proceedings” rather than a “civil dispute” brought before it by the SIU either in its own name or on behalf of a state institution or interested party. Clause 8 amended the long title of the Act so that it would expressly provide that the SIU was empowered to institute and conduct proceedings in any court of law either in its own name or on behalf of a state institution.

Clause 2 amended Section 3 of the SIU Act by adding a new sub-section 6 to provide for the secondment of a member of the SIU to a state institution for a particular task or for a particular period but only if the member consents. This secondment would not adversely affect the rights, privileges and service benefits of the persons seconded. This amendment would assist state institutions with the establishment and enhancement of in-house anti-corruption capacity; assist other law enforcement agencies; enhance skills of members of the SIU and assist state institutions with the planning, directing and conducting of internal forensic investigations. Clause 4(a) amended Section 5 of the SIU Act in order to empower the SIU to charge and receive fees and expenses incurred from state institutions for anything done in terms of the SIU Act in respect of a particular state institution or a state institution identified by the afore-mentioned state institution. This also included legal fees incurred as well as interest. Clause 6 sought to broaden the power of the Minister of Justice when making Regulations in terms of Section 11(1) of the SIU Act. Clause 7 inserted a new Section 13A, 13B and 13C in the ISU Act to provide for the funding, accountability and auditing of the SIU. Clause 9 sought to do away with the cumbersome and time-consuming consultation process in respect of cost of living increases of the DDPP and prosecutors in terms of Section 18 of the NPA Act.

Clause 10 sought to amend the NPA Act in order to further regulate the appointment, remuneration and conditions of employment of service of financial investigators or analysts who were used by the Asset Forfeiture Unit (AFU) in financial investigations or processes relating to the proceeds of unlawful activities or the civil recovery of property contemplated in the Prevention of Organised Crime Act (POCA) 121 of 1998. The financial investigators or analysts were appointed as special investigators in terms of Chapter 3A of the NPA Act. Section 5 of the NPA Amendment Act 56 of 2008, which regulated the transfer of the investigating capacity of the Directorate of Special Operations (DSO) to the South African Police Service (SAPS), repealed Chapter 3A of the NPA Act. The unintended consequences of the repeal of Chapter 3A was that the appointment, remuneration and conditions of service of financial investigators and analysts were not regulated by statute. This would be corrected through the insertion of clause 43B in the NPA Act.

Discussion
Mr S Swart (ACDP) noticed that the Minister of Finance and Treasury had not been consulted at all, why was this? Even though this was not a Money Bill there would no doubt be some financial implications regarding appropriations. 

Ms M Smuts (DA) asked if the SIU which was already an odd entity was not being made further complicated by the proposed amendments. In the Ngcinwana judgment Judge Froneman said that the SIU was an odd entity as it had the powers and functions of a criminally investigative nature, it could institute civil proceedings and adjudicate in certain matters all at the same time. Were there any further broader constitutional issues that the Committee had to be mindful of? Surely the secondment of a SIU member to a state institution was a function of the Public Service Commission (PSC)? How many more functions could the SIU take on, was there not a limit to the number of functions that the SIU could have?

Prof G Ndabandaba (ANC) referred to page 6 and asked for an interpretation of ‘from time to time’.

Mr Robbertse said that investigations by the SIU included Service Level Agreements (SLA) and this would have certain monetary implications for the state institution involved. This was done with the consent of Treasury and they were aware of the conclusion of SLA’s. The matter of the Bill being a Money Bill was settled by the State Law Advisers when they certified the Bill as not being a Money Bill.

Mr Lawrence Basset, Chief Director for Legislative Development from the DoJ&CD advised that Treasury should be consulted as a matter of caution.

Mr J Jeffery (ANC) said that the Bill was not from the Minister of Justice on his own. It was from Cabinet so the Committee had to assume that it had the support of everybody, there should therefore not be any approach to Treasury on whether they were happy or not. The issue of the Bill being a Money Bill was not one that the Minister of Finance was going to make a pronouncement on as it was a legal question. He was opposed to any approaches to the Minister of Finance, if there were any changes then the Minister would be consulted.

Mr Willie Hofmeyr Head of the AFU, did not think that Treasury was in the loop about this Bill throughout. Treasury had also said that there were a range of other state institutions that had the power to recover their costs for example the Auditor General (AG).

Mr Jeffery recalled that when the SIU made its presentation to the Committee it had said that one of the reasons why Treasury had not given it more money was because it was expecting the Bill to be passed.

Adv Nomgcobo Jiba, Acting National Director of Public Prosecutions (NDPP), said that there must have been adequate justification for clause 10 to be inserted in the Bill. The concern around clause 10 was that it may take one back to the days where there was a turf war between the DSO and SAPS. If there were going to be investigators in the NPA who were going to conduct the same investigation as SAPS then was this not going to be a duplication of functions. There should be further consultation with SAPS so that one did not have problems or complaints from SAPS.

Mr Swart sad that he was satisfied with the explanation on the Money Bills issue, one would not want a similar situation as the trafficking legislation where the Minister of Home Affairs came three years down the line with concerns. The Bill had to be passed as soon as possible.

The Chairperson referred to Adv Jiba’s comments and said that as Mr Jeffery correctly pointed out the Bill had gone through Cabinet and this included the Minister of Police. The problem was that whenever the Executive was not satisfied with what the police were doing and put steps in place to address this, the police would complain. SAPS had to do some introspection.

Mr Jeffery said that the Bill had already gone through the Justice Crime Prevention and Security cluster (JCPS). The affected Ministers and Deputy Ministers sat on that structure. The Bill had to be put out for public comment. The Committee had already made a commitment to the SIU to pass the Bill before end of term in June. This would give the NPA and SAPS time to engage.

The Chairperson said that the Committee would make every endeavour to finalise the Bill before Parliament rose in June. The advertisement for public comments had already been sent out.

Mr Robbertse answered the rest of the questions. He stated that members of the SIU were not civil servants therefore the PSA Act was not applicable to the SIU and this was why the power to second had to be created somewhere else. It was possible for the SIU to be seen as a plaintiff and investigator however the SIU was there to uncover maladministration and malpractice, there was a real need for government institutions to be subjected to a body like this. The SIU was not the adjudicator, a court of law or independent tribunal would always be the final arbitrator. The phrase from ‘time to time’ was used in a lot of legislation and allowed the necessary body to do what it had to.

The Chairperson thanked the Department and adjourned the meeting.

Meeting Adjourned.