Sexual Offences Act judgment, Judicial Matters & Criminal Procedure Amendment Bills, NPA disciplinary and safety matters

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Justice and Correctional Services

14 May 2012
Chairperson: Mr L Landers (ANC)
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Meeting Summary

Members raised their concerns about the judgment handed down in Cape Town, on the previous Friday, in a Sexual Offences Act matter. The effect of the judgment was to declare certain categories of sexual offences no longer to be crimes. Members hoped that an appeal would be lodged, but questioned if this would preclude the Committee from bringing an urgent Committee Bill to correct what appeared to be a lacuna in the Sexual Offences Act. They noted that the judgment was contrary to a Free State decision, but that leading academics disagreed on the implications of the Act specifying a punishment in some matters but not others. There were concerns as to the implications on matters decided between now and the appeal, and the possible flood of applications from others convicted under these sections to have their convictions overturned. It was noted that the National Prosecuting Authority (NPA) and Department of Justice and Constitutional Development (the Department) had sought Counsel’s opinion, which was presently awaited and which would be conveyed to the Committee.

Members noted two submissions received from Eskom and Corruption Watch on the Judicial Matters Amendment Bill. Corruption Watch broadly supported the Bill but suggested that funding recovered by the Special Investigating Unit (SIU) must be retained by the SIU. Members agreed that the Bill already catered for this. Eskom, the entity who had successfully challenged the SIU’s legislative power to recover costs of its investigations, which led to this Bill being drawn, suggested that in matters where an entity had called for an investigation, costs should be recoverable, on the basis of a Service Level Agreement. Members thought that this was not acceptable. Firstly, it ignored the fact that the SIU was authorised to investigate by Presidential Proclamation. Secondly, this point had been considered in the past and a legal opinion obtained to the effect that this could compromise the transparency and independence of the SIU. Thirdly, there was a real possibility that an entity being investigated could hinder the investigation. Members noted concerns that whilst at the moment the SIU made a decision whether or not to charge an entity, on the basis of whether it could afford to pay, there was the potential that a charge against a cash-strapped municipality might result in money being diverted away from service delivery to pay the costs. The SIU suggested that the Intergovernmental Relations Framework Act provided safeguards, but Members were not convinced that it was adequate.  There was a distinction between recovery of costs by the SIU and recovery of audit fees by the Auditor-General, because the latter could be fairly accurately predicted and budgeted for annually. Members briefly debated whether the current model of “insourcing” was correct, and suggested that more thought was needed on the personnel structure. They also thought that a debate for a later time was whether the existing legislation on Accounting Officer responsibilities was being properly enforced. Members agreed, after substantial debate, that one solution to this would be to provide that National Treasury (or a relevant provincial treasury) should be consulted, as this was the body that would eventually have to bail out either the SIU, if it did not recover, or the entity being investigated that could not pay.  The drafters were asked to consult with Treasury officials and give feedback in the following week, so that this Bill was ready for debate in the House on 14 June, given the urgency of the matter for the SIU. This then led on to a brief discussion noting that the National Prosecuting Authority (NPA) foresaw some difficulties with clause 10. It was asked to advise, by the following week, whether it was seeking amendments, or whether it required more time to deal with the issues, in which case it might be proposed that clause 10 would be excised from the Bill and dealt with in other amending legislation, so as not to delay this Bill.

The Department’s drafting team briefly outlined the options that they had drafted for clause 1 of the Criminal Procedure Amendment Bill, and said that although they was not entirely convinced on the validity of concerns by commentators on the proportionality test, the second option would take account of these concerns. Members agreed that this wording be adopted, but asked that a more clearly worded amendment be placed before the Committee for adoption on the following day. They noted that the Bill sought to include the judgment of Judge Kriegler in the S v Walters matter, into the legislation and clarify when “shoot to kill” was appropriate.

The Committee then discussed whether it had a role to play in the widely reported issues around Ms Breytenbach, former Head of the Commercial Crimes Unit of the NPA. Ms Breytenbach had been an investigator into allegations against senior police officials which resulted in the laying, then withdrawal of charges. Ms Breytenbach had now been charged in a disciplinary matter on an unrelated matter, alleged that she had recently had shots fired at her, and there were attempts to force her off the road, whilst another official involved in similar investigations had been burgled and relevant files stolen. Members were concerned at the apparent links between the matters, but made the point that although there was much media interest, very little factual information had in fact been released. Members agreed that, given the circumstances, it would be appropriate for the Committee to indicate that it was watching developments closely, but differed in their suggestions as to how precisely this should be done. The DA’s suggestion that the Committee should call for the charge sheet in the disciplinary matter to ascertain whether this appeared to disclose a prima facie case were not supported, since some did not consider this to be in the mandate of the committee, being tantamount to involving itself in operational matters, whilst others questioned the rationale for doing this in this matter, but not others. The point was made that the NPA’s responsibilities to this Committee were still the subject of debate. All Members agreed that it was appropriate to express concerns as to how the safety of prosectors was being assured. It was finally agreed that Members should raise their concerns in the House on Thursday 17 May, to the Minister, and the Chairperson would ask the Minister to be prepared to answer questions on these points. Some Members also expressed personal doubts whether it was correct for the Chief State Law Advisor to be involved in investigations.

Meeting report

Sexual Offences Act judgment
The Chairperson noted an additional agenda item, arising out of a judgment handed down on the previous Friday in relation to the Criminal Law (Sexual Offences) Act (the Act) . There had been discussions between the Ministry, the Acting National Director of Public Prosecutions (NDPP) and others, and it would be necessary to consider this and correct any anomalies in the law.

Mr J Jeffery (ANC) had read the judgment, which he described as “bizarre”. It may be that the legislature made a mistake when drafting the Act, but the effect of the judgment was to make certain categories of sexual offences no longer crimes. The applicant was the Provincial Director of Public Prosecutions, Western Cape, and he was not sure if the Acting National Director of Public Prosecutions (ANDPP) would be a position to respond. He hoped that an appeal would be lodged, but any lacuna in the law would need to be corrected. The Chairperson had written to the Minster and had offered input from the Committee, as a corrective Bill may need to come from the Committee. It was necessary to rectify any defect in the law as soon as possible.

Mr S Swart (ACDP) was concerned about the judgment and agreed that urgent consideration had to be given to the matters. If there was a loophole, then Members must take responsibility. He understood that this judgment was in conflict with Free State decisions, and there was disagreement on the point between academic writers. He would support Mr Landers' suggestion that a Committee Bill be drawn, as had been done in the past, as this would expedite the matter, but wondered, from a practical point of view, if amending legislation could be brought if an appeal had been lodged.

The Chairperson said that another implication was that there could be a flood of applications from those already convicted under these sections.

Ms D Schäfer (DA) was also concerned, particularly as it was a full bench judgment. The fact that some offences had specified penalties, and others not, was potentially problematic. In principle, she agreed that the National Prosecuting Authority (NPA) should appeal, but said that there was a chance that the appeal might not proceed, and that actions taken between now and then could be invalidated. She urged that the Committee needed to receive a well-thought out and urgent opinion from the State Law Advisors. If the judgment was upheld, ongoing convictions and prosecutions would be at risk.

The Chairperson said that the courts had rejected retrospective legislation in the past.

Mr Jeffery added that the Constitution did not permit that.

Mr Lawrence Bassett, Deputy Chief State Law Advisor, Department of Justice &d Constitutional Development, said that the previous case of S v Booi seemed to reflect the correct position, but there were two schools of thought. He referred to two academic opinions by the writers Snyman and Burchell. The first held that if the statute failed to detail the punishment, it was at the discretion of the court, whilst the second was of the view that if the legislature, having created an offence, did not specify the punishment, then the offence could be called into question. There was definitely a conflict of views. The NDPP and Department of Justice and Constitutional Development (DOJ) had discussed the issue, and a Counsel’s opinion would be given later in the day. The Minister would probably be joined in any action. He had already asked his colleagues in Pretoria to start looking at what amendments might be required.

Ms Nomgcobo Jiba, Acting National Director of Public Prosecutions, National Prosecuting Authority, confirmed that there was agreement in the NPA that this had to be dealt with, and consequences if it was not, and reiterated that the opinion was awaited.

Mr Jeffery thought that the matter could not be taken much further than noting the urgency and getting a report back from the DOJ. However, it would be useful for the Committee to publicise its view, making reference to the Free State judgment, to make it clear that there was some difference of opinion. He cautioned that there was a need to be careful about procedure, but said that there was no indication of how the accused’s rights could be prejudiced, and this was different from the situation where there might be no indication that the actions of the accused did amount to criminal conduct. He noted again that a Committee Bill would be a faster way to proceed, as this would not have to go through the Cabinet process. He suggested that, within the next week, the Committee must get a report on the progress of the appeal, and proposals to amend the Act.

Ms Schäfer made the point that the fact that the two academics held opposing views strengthened her argument that the Committee and NPA could not afford to take the chance of an appeal not succeeding. 

Ms C Philane-Majeke (ANC) supported the notion that punishment lay in the discretion of the Court, but she also noted that the effect of this judgment would be to take away gains made in respect of punishment.

It was agreed that the Department and NPA would report back to the Committee.

Committee's Report on budget of Department of Justice and Constitutional Development
The Chairperson tabled the Committee Report on the budget and strategic plans. Members agreed to prepare themselves to discuss it on the following day.

Judicial Matters Amendment Bill (the Bill): submissions
The Chairperson announced that the Committee had received two submissions on the Judicial Matters Amendment Bill (the Bill).  The submission by Eskom spoke to the funding of the Special Investigating Unit, and he wanted the Committee to comment on it. The submission from Corruption Watch broadly indicated support for the Bill.

Mr Jeffery said that the brief submission from Eskom discussed whether the Special Investigating Unit (SIU) should be allowed to charge fees to and recover expenses from the entities that it was investigating. Eskom proposed an amendment to clause 4, to insert the phrase that recovery should be “in terms of the Service Level Agreement concluded between the institution and SIU”.  Mr Jeffery thought that this went too far. It meant that the state institution would be required to agree to being charged. It ignored the fact that the SIU would institute an investigation through a Presidential Proclamation. It also spoke to a point that he had raised earlier, in relation to local government. At the moment, the current wording left it largely up to the “goodwill” of the SIU whether it decided to charge the institutions being investigated. Whilst a body like Eskom would have the money to pay the costs, a local authority, particularly a municipality which had been stripped of money through the very corrupt activity that was being investigated, would not be able to pay, and if it was asked to do so, this could have very severe spin-offs on its level of service delivery. He thought that the SIU had to answer that concern.

Mr Jeffery suggested that one possible solution may be to write in a role for National Treasury (NT), because this was the body that, at the end of the day, may have to bail out the SIU, or a state institution who was unable to pay. Eskom was essentially suggesting that the state institution be given a veto, and there were sensitivities around this. He mooted whether perhaps there should be requirement of consultation with NT – whether “ in consultation” or “after consultation” would have to be debated. He was not sure whether this should refer to the Accountant-General, Director General or other person, and input might be needed from NT as to the structure.

Finally, Mr Jeffery noted that there was some urgency in finalising this Bill, to address the problems of the SIU, and he said that ideally the Committee should be put in a position to finalise it in time to have it debated in the House on 14 June.

Mr Swart said that the main concern expressed by the SIU was that departments did frustrate the SIU by claiming lack of funding to pay for the investigation costs. He therefore agreed that this submission by Eskom went too far, and it should not possible for an institution to hinder the investigations. He understood the SIU model to be similar to that of the Auditor-General, where the audit costs were built into the budget of institutions each year, and paid by them. He noted the need to ensure that funding constraints did not inhibit the SIU’s work. It was unacceptable that the SIU was struggling with capacity, when it could recover money if the work was done.

Ms D Smuts (DA) pointed out that it had been Eskom who had first noted the point that there was nothing in the SIU Act allowing it to recover costs. She did not agree that costs should be recovered only when the investigation was done at the request of the institution, as that ignored the investigations authorised by Presidential Proclamation. She supported Mr Jeffery's points about National Treasury.

Adv Nomvula Mokhatle, Acting Head, SIU, agreed with the concerns raised about the Service Level Agreement (SLA) suggestions and confirmed that in practice, institutions would raise a number of objections on costs.

Mr Gerhard Visagie, Head: Legal, SIU, endorsed the suggestions of the Committee. He said that over the last few years, the SIU had entered into SLAs with various state institutions, similar to what Eskom was suggesting. However, many years ago the SIU had requested an opinion from Senior Counsel, that was that if the SIU was dependent on a contractual funding model this would affect its transparency and independence, and funds could be withheld if reporting was not done to the institution’s liking. This would create tension between the purposes of the Act and the work of the SIU. Senior Counsel had suggested that it could be ultra vires the founding legislation. SIU agreed that Eskom’s suggestion went too far, even if this method had been used as a “necessary evil” in the past. SIU was of the view that The SIU believed that section 41 of the Constitution, and the Intergovernmental Relations Framework Act (IGRF) and protocols were sufficient to ensure that SIU would not ride roughshod over institutions that it was investigating, but would enter into proper arrangements, falling short of an SLA, but rationalising the work that it did.  He also made the point that the SIU was instructed via Presidential proclamation, and the idea of the state institution instigating an investigation itself was contrary to the Act.

Mr Visagie commented that the Bill used the phrase “may.. charge fees”. The point was taken that this seemed to be dependent on the SIU’s goodwill. SIU was not likely to be totally dependent on the fees it charged, and was possible that it may charge only for some of the investigations, whilst others, for instance investigations in a poorer municipality, would be done without charge. However, he took the point that the wording should not be too open-ended. He suggested that perhaps a system similar to the audit fees levied by the Auditor-General South Africa (AGSA) could be used. Sections 23(4), (5) and (6) of the Public Audit Act noted that if an auditee defaulted in paying audit fees, AGSA must notify NT, and in some cases also Provincial Treasury. After consulting with AGSA, the relevant Treasury may direct that audit fees could be defrayed from a vote on the national or provincial budget. This meant that a fee that could not be paid by the institution became a charge against the National Revenue Fund.

Another issues raised by Eskom related to the suggestion of an upfront agreement as to charges and rates. The Bill already gave the Minister the power to determine the maximum rates and this, in the opinion of the SIU, sufficiently dealt with the risks of over-charging of state institutions.

Mr Jeffery thought it was not necessary to debate the suggestion to draw a SLA further, as it did not find favour since no state institution should have the power to frustrate the investigation. He accepted that the word “may” and not “must” was used. He wondered if the safeguards in the IGRF were real, or were merely broad principles, and said there was room for legal dispute there, so this must be made quite clear in the Bill.  Mr Swart had made the point that audits were budgeted for, but audits were a regular annual occurrence that was foreseen, unlike investigations, which could not be budgeted in the same way. He pointed out that if there was to be defrayment against the future budgets of a small-scale municipality, this may result in effectively no budget for service delivery for several years, so that was not a solution. There was clearly recognition of the potential problems. Safeguards now had to be built into the Bill, to ensure that the work of the SIU was not hampered. He again suggested that wording be inserted requiring consultation with NT; the precise wording could be debated if there was general acceptance of the principle. The wording should also make it clear that this would not stop the work of the SIU, but was limited to the recovery of charges.

Adv B Holomisa (ANC) asked why the SIU, a state institution with a defined personnel structure, was charging fees as a private institution would.

Mr Sarel Robbertse, State Law Advisor, Department of Justice and Constitutional Development, said that the SIU had a set budget, but it could not foresee the number of proclamations to be issued by the President, nor the volume of work, in a year. In practice, the budget of the SIU was very soon depleted, and the reason for this amendment was to allow this budget to be supplemented by payments from the institutions being investigated, to allow the SIU’s work to continue.

Adv Holomisa asked why this was different from the work of the NPA or South African Police Service (SAPS).

The Chairperson explained that the “user pays” principle applied. The President signed the Proclamation but in the past the SIU would have to sit down with the institution and reach agreement on how it would pay for the investigation. Where it was clear that the investigation would expose the actions of some people, there was a danger that the institution may then decide to withdraw the funding to ensure that these matters did not come to light.

Mr Visagie said that it was all to do with capacity and the size of the contribution. It was possible to do an assessment of the needs of the SIU, based on staffing and operational costs, and these were discussed with NT when setting the baseline allocations. However, additional work being ordered meant that more funding was required. The model that was now being discussed would allow SIU to grow or shrink as needed. Whilst a study of many years of statistics in the NPA or SAPS would give a fair indication of the need for resources, the SIU’s needs differed widely from year to year.

Adv Holomisa asked if this explanation was suggesting that resources were needed outside the SIU.

Mr Visagie stressed that indeed human resources were the largest cost factor. In the past, SIU had not outsourced, but instead it insourced, bringing extra people in on a service-provider basis.

The Chairperson clarified that Mr Visagie referred to “outsourcing” as giving the work to another institution and asking it to provide a report, whereas “insourcing” meant that people were contracted in to work for and under the direct supervision and control of the SIU.

Mr Visagie agreed, and said SIU would second people with skills from elsewhere, or appoint them on a contract basis to work under SIU control.

Ms C Philane-Majake (ANC) raised concerns about the number of consultants, and suggested that instead the SIU should do a thorough assessment of its own personnel. She suggested that the SIU carried out a similar function to the Public Protector, who also dealt with substantial investigations, but levied no charge. She suggested that more thought was needed on the ideal personnel structure that would enable the SIU to perform effectively, and said that the more independent the SIU was, the better.

The Chairperson said that, in fairness to the SIU, it must be pointed out that the SIU brought money back to the state.

Ms Philane-Majake acknowledged that point.

Mr Swart asked if costs could be defrayed from NT for a local government investigation, as he was concerned that they should not be deducted from local government itself. The Committee had asked if the SIU had consulted with NT on the implications of the Bill, as presently worded. He asked what the implications would be of using either “in” or “after” consultation, bearing in mind that the President issued he Proclamation, and asked if it was possible that NT itself may block the investigation on the basis that the Department could not afford the payments.

Mr Jeffery said the SIU had advised that the reason it did not receive a larger allocation from NT was because NT was expecting this Bill to be passed so that SIU would be able to recover from some investigated institutions. This Bill was drafted to address the court finding that SIU did not have the power, at present, to enforce recovery. In essence, the question was whether the SIU should have a broad power to decide whom to charge, or if NT would play a role.

Mr Jeffery said, in answer to Mr Swart’s concern on local government, that whether or not there was any money to pay, the investigation would have to proceed. Currently, the SIU would determine whether the body being investigated had enough money to repay the costs, and Mr Jeffery’s proposal was merely an additional requirement for consultation with National Treasury. He noted that he was not getting much by way of positive feedback from the SIU and it could be that they had not considered this point.

Mr Visagie said that Ms Mokhatle would be speaking to the staff complement. He thought that it did make sense to involve National Treasury – but would suggest the wording “after consultation” with National Treasury” to avoid possible frustration.

Mr Robbertse agreed. There was already a requirement, in the case of provincial investigations, for consultation with the Premier, and that could be extended. If a state institution was not able to pay, perhaps an obligation could be imposed on National Treasury, to pay the funds out of the national revenue fund, to ensure recovery by the SIU.

A few Members indicated that this could be problematic. Mr Jeffery noted that the SIU did get a budget, as opposed to AGSA, which generated all of its own funds. He also stressed that where there was a provincial investigation, there would need to be consultation with the provincial treasury. He reiterated that he was not sure how, in practice, consultation with a Treasury was structured, and the correct wording would have to be used, and perhaps the SIU and Treasury should agree on the relevant wording and revert to the Committee.

Ms Schäfer agreed with what had been said. No state institution could be expected to have unlimited funds.

Mr Jeffery said that the Presidential Proclamation in itself was a safeguard.

Mr Swart noted that there was also reference to recovery of costs for civil proceedings, against the person responsible for misappropriating money, and asked if this meant party and party costs or attorney and client costs.

Mr Visagie responded that this would apply if the SIU conducted civil litigation in the name of the state institution, but stressed that this would not happen in many instances as it would definitely be an exception where the SIU would litigate on behalf of another institution, which had the prerogative to litigate itself. This was only likely to be done where there was refusal to sue, or lack of action. He noted that even where one party might win the case, it was not invariable that a costs order would be given, or that costs could be recovered.

Adv Mokhatle added that this might involve Counsel's fees, postponement costs and so forth. At the moment, the SIU was attempting to upskill its legally-trained personnel to take matters through to tribunals themselves, which would cut down on external legal fees charged to the SIU.

Ms Schäfer said that the Accountant-General, on another occasion, had told the Committee that there were often existing laws in place that covered the problem, but that they were not properly enforced. Accounting Officers were not being held responsible by their political superiors, for doing their job, for instance, complying strictly with the Public Finance Management Act. She wondered if Accounting Officers should not be held personally responsible for the costs, if they obstructed investigations.

Mr Jeffery said that this was a different issue, and possibly might be a point to consider later as an amendment.

Mr Jeffery said that there seemed to be agreement, in principle, between the Committee, the SIU and DOJ. He summarised that SIU and the drafters should consider with whom consultations at Treasury would take place, what the differing requirements might be for National and Provincial Treasury involvement, and to agree on wording. He stressed that the feedback was required by the Committee in the following week, to allow the Committee to finalise the Bill and have it debated on 14 June. He asked if there were any other clauses that needed debate.

The Chairperson said that his understanding was that all other queries had been answered already.

Mr Jeffery said that the Corruption Watch submission was broadly in support of the Bill, and Corruption Watch had suggested that the fees recoverable should go directly to the SIU. He thought that the present wording already catered for this and there was nothing more that had to be added.

Adv Jiba wanted to raise some points on clause 10. During the last meeting she had voiced some concerns about the location of the special investigators, and she reported that she had met with SAPS and had submitted a memorandum on her concerns to the Minister of Justice.

Mr Jeffery could not recall the precise concerns, and asked for more detail, wondering also if this might result in further amendments being proposed, or if the concerns related to implementation.

Adv Jiba said that her memorandum set out why the NPA had difficulties, and noted that if the NPA was to conduct financial investigations, further positions would need to be created and there were other implications.

Adv Holomisa was concerned at the statement that the points had been raised to the Minister, since it was this Committee that would have to effect any amendments. Usually, officials would need the agreement of the Committee on any proposed amendments, and he said that this seemed to imply that consultation with the Minister was still being done before proposals were to be made to the Committee.

Mr Jeffery said he still could not remember precisely what the issue was, and added that as he still did not have access, through Parliament, to the reports from the Parliamentary Monitoring Group, he was unable to check it. The Memorandum to the Bill indicated that the NPA had been consulted on the amendments, although he conceded that Adv Jiba had not been in her present position at that time. He wondered if this meant that the Bill was likely to be delayed by the NPA’s concerns. If so, then the clause should perhaps be excised from this Bill, and included in a Committee Bill or some other amendment later, such as the NPA Amendment Act that was pending, so as not to delay the SIU corrections.

The Chairperson confirmed that Mr Willie Hofmeyr had raised concerns after the Scorpions was disbanded, because the enormous expertise within that unit, particularly financial investigators, were immediately headhunted away and their skills were lost to the NPA. He had urged that something had to be done urgently to try to retain these skills and suggested that clause 10 did not go far enough to address the matter.

Adv Jiba said that her memorandum to the Minister related only to clause 10. There was no problem with clause 9. She was not suggesting that the Committee should hold back on the whole Bill because of the problems with clause 10, but said that it was possible that clause 10 might cause delay, as it had very serious implications for NPA.

MR Jeffery asked if Adv Jiba could inform the Committee, by next week, whether the NPA could propose amendments immediately, or if more time was needed. In the latter case, the Committee would probably decide to excise clause 10 from the Bill at this stage, as it was vital to get the SIU amendments through urgently.

Mr Swart said that he would be interested in hearing the full justification, balancing the concerns that Mr Hofmeyr had raised, as clearly the Committee had to take a fully informed decision. There could be serious consequences to leaving that clause out.

The Chairperson pointed out that the content of clause 10 would be included in another Bill.

Mr Swart accepted that, but pointed out that there was ongoing loss of expertise.

The NPA and SIU representatives were excused at this point

Criminal Procedure Amendment Bill (CPA Bill)
The Chairperson noted that the previous option 2 suggested by the State Law Advisors was now reflected on the document headed “Draft 15 May”

Mr Johan de Lange, Principal State Law Advisor, Department of Justice and Constitutional Development, said that the DOJ did not entirely agree with the concerns raised by commentators about the proportionality test. However, he had provided wording that would take account of these concerns, if the Committee wished, in the form of two Options, handed out at a previous meeting. He added that, following the Committee’s suggestions, he had e-mailed the suggested wording to a number of academics. Prof van der Walt had responded that she did not think it necessary to re-emphasise the proportionality requirement, as the Bill was clear enough, Dr Burger said it may prevent uncertainty, but did not really change the content of the Bill.

The Chairperson said that, essentially, option 2 would not change matters, but it was up to the Members whether they wished to include it.

Ms Schäfer thought that if there was any room for doubt at all, the Committee should err on the side of caution and use option 2.

Ms Smuts said that she was not sure whether the submission by Mr Beukman was implying anything further than already noted. The job of this Committee was essentially to make sure that what was said by Judge Kriegler was stated as a part of the law. SAPS officials apparently had a problem in understanding the current wording of the legislation, as to when they could shoot to kill. She agreed that the second option was preferable.

The Chairperson noted that Mr Beukman’s submission was saying that SAPS must do its work properly and be properly trained.

Ms Schäfer was still concerned about the wording, and asked how it was possible for a SAPS member, on a split second decision, to determine whether it would not be possible to effect an arrest later.

Mr Swart appreciated that the wording came directly from the matter of S v Walters but he had a similar concern. He thought the question was whether the Committee should follow the judge’s wording in that judgment, or use something different. He agreed that option 2 was the safer route to follow. He was surprised that there was no response from other commentators and academics,  particularly those who ha suggested that the present wording nullified the proportionality requirements.

Mr Jeffery said that this Bill dated back to 2010. The Committee was agreed that it should follow Judge Kriegler’s judgment so the question was simply how to word it. He quipped that perhaps the right way to communicate with Prof de Vos had not been found. He commented that he found the present document to be confusing, and another option might be, rather than attempting to detail what words should be substituted, simply to delete the whole of section 49(2)(2) of the Criminal Procedure Act and set out the new wording.

Ms Smuts said that Judge Kriegler’s words were set out. He had spoken of a certain kind of crime, which was another criteria, and it was clearly in that context that the phrase “at this time or at any other time” came into play. It was unusual that in his judgment he had set out, in precise and in plain language, what was constitutional and what was the law. It was simply this Committee’s task to give effect to that.

Members briefly discussed how to proceed, and agreed that the State Law Advisors would attend to producing a clearer draft for adoption on the following day.

Mr Jeffery wondered if there was a need to specify, in the Committee Report, that this approach had been taken to ensure greater certainty.

Members agreed that it was not necessary to say this in the Report.

NPA matters: Ms Breytenbach
Ms Smuts questioned whether the disciplinary matter concerning Ms Glynnis Breytenbach, a senior NPA prosecutor, was in court, and, having been assured by Mr Landers that it was not, said that she wished to discuss concerns around this matter.

She noted that Ms Breytenbach was the head of the Commercial Crime investigations at the NPA. She had been involved in investigating matters related to SAPS officials. She was presently suspended, . pending a disciplinary enquiry into her alleged conduct in an unrelated matter (Kumba). Recently, she ha laid a complaint with the Hawks that she had been shot at, and there was an attempt to force her off the road whilst driving. A report to the Inspector General of Intelligence (IGI) had noted that there were attempts to derail or hinder investigations into the same matter that she had been dealing with. Another prosecutor at the NPA had been burgled and files relevant to only certain investigations were stolen.

Ms Smuts was very concerned about the implications and felt that this Committee firstly had a duty to indicate that it was aware of the matters, was following developments, and wanted to be kept informed, after the disciplinary proceedings were concluded, by getting a verbatim copy of the transcript. She wondered if the Committee would be able to call for a copy of the disciplinary charge sheet against Ms Breytenbach.

Mr Swart shared these concerns, but was particularly concerned to know if the NPA had taken steps to protect Ms Breytenbach. When a similar query was raised a few years ago, Mr Swart was informed that the NPA did provide protection for prosecutors. He felt that it would be important for the Committee to monitor the disciplinary matter. However, at the same time it should be aware that it did not do this for all matters, so the question was why the Committee should be focusing on this case. It had been widely publicised in the media. The public were concerned at the apparent chain of events where allegations were made against a Lieutenant General who was suspended, then reinstated, and now his investigator was suspended. In his view these apparent links, as well as the need to protect the prosecutor, would justify the matter being monitored. He pointed out that a number of legal practitioners appeared to have been targeted, and the General Council of the Bar and Law Society of South Africa had also expressed concerns.

Ms Schäfer supported Ms Smuts' views. She agreed that, generally, the Committee should not “hand pick” investigations, but she thought it was necessary, at the very least, to have sight of the charge sheet. If this appeared to indicate a valid charge, then the matter must take its course; if not, then more detail should be requested.

Mr Jeffery noted that the ANC had not discussed the matter. He made the point that the concerns were largely based on what the media had reported.

Ms Smuts interjected that she had real concerns for the individual.

Mr Jeffery continued that there did appear to be some obfuscation. This was a particular disciplinary case against a particular prosecutor. He cautioned that the Committee should be wary of setting precedents. A disciplinary hearing was being held by the NPA, and Ms Breytenbach could, if dissatisfied, appeal to the Labour Appeal Court. He noted that there were suspicions that the whole issue was linked to the General Mdluli matter, but there were doubts. He thought it would not be more apposite for Members to raise their concerns during the budget debate on Thursday 17 May. The NPA would also be coming to account again to the Committee. He felt that the Committee should not become involved in operational issues. He said that if the Committee were to receive the charge sheet, it might then wish to start interrogating the charge sheet and that was not correct. Clearly any prosecutor, or judicial officer, whose personal safety was threatened, should be safeguarded.

Ms Philane-Majake supported Mr Jeffery and thought that calling for charge sheets would be overstepping the mandate of this Committee. Due process should be allowed to take place. If it later transpired that rights had been violated, the Committee could then decide what action to follow. She agreed that there were sensitivities about whether to intervene in specific cases.

Mr Swart said that individual MPs could continue to monitor the situation. Ms Breytenbach had been the Head of the Commercial Crimes Unit, and there was huge public interest in the matter. At the very least, the Committee could ask the NPA to state what steps had been taken to protect her.

Mr Swart also raised his concern that the Chief State Law Advisor had become involved in the investigations, and questioned whether he had the mandate to investigate, on what legislative provision this was based, how this would impact upon his already heavy workload, and on what terms the Minister had approved his appointment.

Ms Smuts was fully in agreement on that point.

Adv Holomisa thought it was incumbent upon the Committee to indicate its concerns when matters of this nature were raised. However, he cautioned that public opinion was based most often on media reports, and there was a need to be cautious. The Committee needed to use its discretion; whilst it should be cautious as to what precedent it set, it may be important that the Committee was seen as “monitoring” and at least expressing concerns. Normally, the responsible officials could be asked to brief the Committee. However, he was confident that the Minister could speak on the matter during the Budget Vote debate, and Members could even ask the Minister to deal with it. He did not agree that the charge sheet should be called for at this stage. He would prefer to wait for the Minister's comments. He suggested that it may be appropriate for the Chairperson to speak to the Minister and indicate that the Committee would like him to address the issue during the debate.

Ms Schäfer took that point, but said that there was no guarantee that the Minister would answer those questions. This was not an ordinary matter, and she had no doubt that the Committee would advocate similar action in a similar matter. Whatever was now in the public domain did not seem to disclose an offence, and she did not understand why the Committee did not have a mandate of oversight to call for that document.
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Ms Smuts reminded Members that the Minister's powers in respect of the NPA were limited; he had “final responsibility”, defined in section 33, which meant that he could ask the NPA heads for information. The NPA was already not fully independent, which was why she had called for different appointment mechanisms. She was not sure that the Minister was the right person to ask about the matter, since she felt that the Committee  in fact had greater powers, in terms of section 35, to call for information about the Mdluli prosecution, and this was a potentially related matter. She was not sure, however, how this could be done, other than calling for a copy of the charge sheet. She realised that this could set a precedent and took the point that it was potentially problematic, but that at least would demonstrate that the Committee was taking the matter seriously, and the process should be seen as transparent. She stressed that the greatest safety lay in transparency. Although the media coverage still did not indicate exactly what was going on, this would lead to “light being shone into dark corners” and make it clear that the Committee was watching developments.

Mr Jeffery said that he was still not clear what the DA was asking the Committee to do – except getting the charge sheet, and calling for protection for Ms Breytenbach. On the first point, Ms Smuts now seemed to agree that there were problems in calling for the charge sheet. In any organisation, there was potentially a host of issues that could result in disciplinary charges. In another province recently, issues between two senior prosecutors had given rise to accusations and counter-accusations, but in this instance the Committee did not call for the charge sheet. He was worried that calling for the charge sheet could then lead to the Committee examining it, asking more questions and debating whether it showed a prima facie case. He thought that these points should be raised not to the Minister, but to the Acting National Director of Public Prosecutions. He felt that the most the Committee could do would be to issue a statement, but even then, it would possibly be more useful for Members to raise their concerns during the House debate.

Mr J Sibanyone (ANC) was uncomfortable with calling for the charge sheet and would prefer the Committee to issue a charge sheet.

The Chairperson said that it was true that the seniority of Ms Breytenbach was a cause for concern. In regard to the charge sheet, he noted that this Committee was still seized with debating the extent of the NPA's accountability to this Committee, and that would have a direct bearing on the Committee’s mandate. The main concern was the link to the Mdluli issues. It was correct that Members would be free to raise this on the coming Thursday.

Mr Landers had some other personal concerns, and he emphasised that these were personal views, and not those of the ANC. Personally, he believed that a Judicial Commission of Inquiry should be appointed to investigate Richard Mdluli and all related matters. The manner in which government was dealing with all these matters was ad hoc, and did not inspire confidence. The IGI had conducted an investigation, recommended that he be charged, and then shortly afterwards recanted and said that the charges should be dropped. She was apparently now investigating again, but there was no clarity on how or why this was being done. Mr Landers had expressed his concerns on this to the Public Protector. He was also concerned about the appointment of the Chief State Law Advisor to investigate, and wondered if this was done in consultation and with the approval of the Minister of Justice. It was not part of this office’s mandate to investigate, since the mandate was limited to providing legal advice. There were other investigators, inside and outside government, who could quite easily have done the investigations. He believed that the plethora of investigations by the IGI, the disciplinary matters, and the Chief State Law Advisor’s involvement all demonstrated the need for a Judicial Commission, with powers of search and seizure, subpoena and summons.

Ms Smuts fully agreed with these sentiments and said that they would come well from Mr Landers.

Mr Landers then made the point that others had been disciplined, and some sanctioned, in the past, but the Committee had not concerned itself with specific matters, and it was difficult to establish a basis for doing so now. Although  she was a senior official, the same concerns could apply to a more junior official. These issues had to be borne in mind when debating the accountability of the NPA to this Committee. He urged Members to raise the points during the Thursday debate. In the meantime, he would try to speak to the Minister and obtain clarity, and at the least would ask him to come prepared to respond to Members’ concerns.

Ms Smuts noted that this should be raised in the context that the Committee was aware he could not assume responsibility for the NPA.

The Chairperson said the Minister would be aware of that. He was frustrated by the fact that a few people were privy to what was happening, the media had its sources, but the rest had to speculate. When the NPA next appeared before the Committee, the matter could be taken further.

The meeting was adjourned.

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