South African Police Service “Hawks” Amendment Bill [B7B-2012]: Adoption, Judicial Matters Amendment Bill [B11B-2012]: Departmental of Justice briefing

Meeting report

South Africa Police Service Amendment Bill: Civilian Secretariat for Police Presentation
The Chairperson reminded Members that certain issues had been raised after the last meeting on 19 June 2012. This Bill had a deadline of 17 August for submission to the House.

Mr D Bloem (COPE, Free State) noted that concerns had been raised at the last meeting, and were debated and settled. If there were no other issues raised by other Members, he proposed the adoption of the Bill.

Mr A Matila (ANC, Gauteng) seconded that suggestion, and felt that all concerns had been met. Nothing new needed to be raised. Mr Matila thought it was not necessary to make a statement in the House, as there was no disagreement.

The Chairperson read out the Committee Report, and confirmed the adoption of the Bill.

Ms Jenni Irish-Qhobosheane, Secretary of Police, Civilian Secretariat for Police, thanked Members for their deliberations.

Judicial Matters Amendment Bill: Department of Justice briefing
Mr Lawrence Bassett, Chief Director: Legislative Drafting, Department of Justice and Constitutional Development, tabled a briefing document on the Judicial Matters Amendment Bill (the Bill).

Mr Sarel Robbertse, State Law Advisor, Department of Justice and Constitutional Development, noted that there were two main reasons for the Bill. The Bill firstly set out amendments to the Special Investigating Unit Act (SIU Act), to regulate its litigation functions and provide for the secondment of a member of the SIU to another State institution. There was also an intention to do away with the requirement that the Minister of Justice and Constitutional Development must consult with the National Director of Public Prosecutions, Minister for Public Service and Administration and Minister of Finance on ordinary cost-of-living remuneration increases for prosecutors. Finally the amendments aimed to provide for appointment of financial investigators and analysts in the National Prosecuting Authority (NPA).

The litigation function amendments were set out in clauses1, 3, 4, 5 and 8 (see attached document). Mr Robbertse explained that originally it was intended that the Special Investigating Unit (SIU) should be able to pursue civil litigation as a result of its investigations. However, the Courts had interpreted the SIU Act narrowly, and their decisions had severely limited the locus standi of the SIU. The amendments were intended to state specifically that an SIU Tribunal should be able to litigate on behalf of state institutions, primarily in order to assist with the recovery of losses suffered by state institutions, as a result of serious malpractice (including corruption) or maladministration.

Clauses 1 substituted the phrase "justiciable civil dispute" with "civil proceedings", because a Court had previously held that an SIU Tribunal could not investigate a matter where there was no "justiciable civil dispute" where 20 people had been brought before the Tribunal but had not entered an appearance to defend, and where it was therefore held that no dispute was established.

Clause 3 of the Bill substituted section 4(1)(b) and (c) of the SIU Act to make it clear that one of the functions of the SIU was to institute and conduct proceedings, before a Special Tribunal or court of law, for any relief to which a state institution was entitled. The phrase "or any court of law" was now specifically included.

Clause 4 substituted sections 5(5) and 7 of the SIU Act, to reaffirm the point that the SIU may institute and conduct civil proceedings.

Clause 5 was amending section 8(2) of the SIU Act to confer powers on a Special Tribunal to adjudicate upon civil proceedings. He explained that the SIU was appointed to do investigations under section 2(2) of the SIU Act. If a Presidential Proclamation was issued, it would provide that the SIU could approach a Special Tribunal to hear matters uncovered during the investigation. Clause 5 would expand upon this and make it clear that the Special Tribunal had those powers.

Clause 8 substituted the long title of the SIU Act. In previous cases  the long title had been interpreted as indicating that the SIU had no powers to litigate. That was now being amended to ensure that the intention to investigate and litigate was included.
The second group of amendments related to the secondment of members of the SIU to other State institutions. A new section 3(6) was to be added to the SIU Act, by clause 2 of the Bill. The reason was that SIU members should be able to assist state institutions with the establishment and enhancing of in-house anti-corruption capacity and procedures, to assist other law enforcement agencies, including the Asset Forfeiture Unit, in joint operational projects, and to enhance the skills of the SIU members with practical exposure to the operational methods of other law enforcement agencies, whilst also assisting those other institutions with their forensic investigation.

The third group of amendments allowed the SIU to charge and recover fees and expenses from state institutions. Mr Robbertse explained that at the moment the SIU would be allocated a set budget. However, during the year, other unforeseen investigations could be undertaken, which often meant that the baseline budget was insufficient. In the past, the SIU would enter into a Service Level Agreements (SLA) with State agencies, requiring them to make a contribution to the investigation. However, this was, strictly speaking, outside the ambit of the Act, and could have caused problems to the other institutions. Clause 4 therefore sought to amend section 5(1) of the SIU Act to give the SIU the specific power to enter into SLAs when it conducted investigations. The question had been raised what would happen if certain State agencies may not have sufficient funds to pay for the investigation, and for this reason a new section 5(1A) was also to be inserted, to specify that a State agency could approach a national or provincial Treasury for a ruling on whether it should be asked to pay, and, if so, what amount was affordable.

Clause 6 sought to broaden the power of the Minister to make regulations also in relation to fees and expenses that the SIU may recover, by prescribing a certain tariff of allowances.

Clause 7 inserted new sections 13A, 13B and 13C in the SIU Act. The new section 13A contained provisions around funding of the SIU. Section 13B provided for the accountability of the Chief Executive Officer of the SIU and 13C provided for the auditing of the accounts and financial statements of the SIU, in support of the amendments to charge fees.

Mr Robbertse then moved on to describe the amendments to the NPA Act.

Clause 9 of the Bill sought to do away with the cumbersome and time consuming consultation process that was currently in place, in respect of cost of living increases of Deputy Directors of Public Prosecutions (DPPs) and prosecutors, as set out in section 18 of the NPA Act, although the consultation process when the Minister determined the salary structures would be retained. A full motivation was contained in the document.

Clause 10 sought to amend the NPA Act to further regulate the appointment, remuneration and conditions of service of financial investigators or analysts used by the Asset Forfeiture Unit. There had been an unintended consequence caused by repeal of Chapter 3A of the NPA Act, which had regulated the appointment of people to the Scorpions, and which was repealed when that unit was disbanded. At the moment, there were no statutory or other prescripts regulating employment of financial analysts and investigators, and so the amendment sought to insert a new section in the NPA Act to define the persons who would qualify as financial investigators and analysts, and to state, in respect of existing staff, that notwithstanding the repeal of the Chapter 3A, they would still be employed. The amendments also set out further conditions around these posts, provided for their powers, and also for the employment of future investigators and analysts and their conditions of service.

Mr Bassett added, in respect of the funding of the SIU that the SIU Act was drafted in 1996 and it did not deal with funding of that entity. These amendments were aimed at correcting the position and providing for more detailed funding provisions, and allowing it to add to its own budget. This amendment was suggested by, and done in consultation with, the National Treasury.

Discussion
Mr D Bloem thought that more detail was needed. He sought clarity on the sentence " further regulate the litigation functions of a Special Investigating Unit" He asked how many special investigating units there were, as this wording implied that there were more than one.

Mr Robbertse noted that section 2 of the SIU Act allowed the President to appoint one or more SIUs. However, since the enactment of the SIU Act, only one SIU was in fact appointed. For all practical purposes, there was likely to remain only one SIU, but in order to cover the possibility that more than one might be appointed, this was the phrase used.

Mr Bloem raised questions as to why it was necessary to provide for fees to be charged. He knew that the SIU had in the past charged fees to the Department of Correctional Services (DCS) for undertaking investigations.

Mr Bassett explained that this was, in the past, done on the basis of SLAs, but the legality of that had since been called into question and so this amendment was aimed at ensuring that in future there would be legal backing for this.

Mr Robbertse added that the Bill also contained a provision to retrospectively authorise any expenditure that a state institution had paid to the SIU. This was contained in the proposed section 13A (3), and he read out the wording of the amendment, which stated that these payments would be treated as if the amendments were already in place.

Mr J Gunda (ID, Northern Cape) questioned clause 9, and wanted some clarity on the phrase "cost of living".  He wondered if the Bill was to give the Minister to decide how much the cost of living allowance would be.

Mr D Joseph (DA, Western Cape) asked if powers were separate from functions and whether the phrase "powers and functions" should be used.

Mr Robbertse said that "functions” and “powers" could be used interchangeably. Section 4 of the SIU Act stated that the SIU may collect evidence and "if applicable, institute proceedings in a Special Tribunal against the party concerned". The courts had come to the conclusion that this did not give the SIU the power to litigate on behalf of a state institution. The amendment was intended to strengthen the powers and to make it clear that the SIU should be able to litigate on behalf of others, listing the array of issues that could be litigated upon.

Mr Joseph questioned the reason behind the Minister having to consult, and asked if there would be any further consultation with any other person. He also wanted to know why the arrangements for prosecutors differed from those for other public servants.

Mr Matila agreed with this concern, saying that the likelihood of a conflict could arise. In addition, he felt that this posed the danger of corruption, since it was removing controls, as well as introducing possible conflict within the public service. He thought that if anyone was to determine the cost of living allowances, it should be the Minister of Public Service and Administration.

Mr Robbertse noted that currently the Minister of Justice and Constitutional Development had the responsibility of determining the increases of Directors of Public Prosecutors, by notice in the Gazette. However, prior to that, a whole consultation process must be followed, including the Minister of Justice having to consult with the Minister of Public Service and Administration and National Treasury. He clarified that the cost of living increases were the yearly increases to which all civil servants were entitled, and that although all civil servants would receive those, the increases did not actually become effective for DPPs until after this whole consultation process had been followed. Once the Minister of Justice had the approval in the first place, he could then gazette it directly.

Mr Bassett explained that the original briefing document given to Members had a longer explanation on this. There was no change as to who actually determined the salaries. Since inception, the NPA Act provided that salaries were determined by the Minister of Justice and Constitutional Development, after consultation, and with concurrence of the Minister of Finance. He noted that there were two types of increases. The first was a cost of living adjustment, which was paid to every public servant as a matter of course. Whilst the Minister of Public Service and Administration (PSA) made that determination for most public servants, the Minister of Justice had to do a similar determination in relation to the prosecutors, and in practice exactly the same allowance would be fixed. However, a long consultation process had to be followed. Mr Bassett then explained that if there was a total salary restructuring for prosecutors–for instance, to try to keep the salaries of magistrates and prosecutors on par to avoid attrition from one profession to the other – then it was agreed that the Minister of Justice should continue to engage in the full-blown consultation process, with the Ministers of PSA, Finance and the National Director of Public Prosecutions. It was very cumbersome to do this for the cost-of-living adjustment alone, since this was largely a formality. In addition, it had in the past caused delays, as the public servants had received their increases in about April, but the consultation process for prosecutors had in practice meant that they were not paid till November.

Mr Joseph asked if this proposal had been raised and cleared with the Minister of Public Service and Administration, and whether the unions to which the prosecutors belonged had also been consulted. Public servants would be concerned if there was any discrepancy in the increases.

Mr Robbertse said that he would report back on this point. He was not sure of the position in relation to unions.

Mr Matila thought that the current situation was not correct. If all public servants were to get a 7% increase, but prosecutors have another cost-of-living allowance added to that, this would discriminate. He cited the problems in local government around municipal managers' salaries. He felt that this was creating loopholes for corruption. All public servants' salaries should be determined at one point. He asked what the reason was for the discrepancy.

Mr Bassett said that there were specific reasons why this procedure had been adopted in 1998, but he would have to check on them. He referred to the wording, stressing that the cost of living allowances for DPPs "shall" be the same as the public service cost of living increases. The idea was to have prosecutors and public servants on exactly the same level. There would not be room for manoeuvrings. The reasons behind the Minister's determination were probably connected with prosecutorial independence, but he could check up on this further.

Mr Matila said that when government had realised there were problems with health workers, their salaries were properly adjusted, but they remained public servants. He asked why, in principle, prosecutors should be treated any differently. He thought the NPA Act had to be changed.

Mr Robbertse said that even if this were to be done, provisions were needed to deal with the position now. Section 9 stated clearly that the Minister had to follow the general public service provisions. However, the process was complex.

Mr Gunda understood that something must be in place. However, he also noted that some public servants were receiving their adjustments prior to the prosecutors. He therefore asked if the same was being done in DCS for all those who had had adjustments to medical aid entitlement. He asked who was currently determining the cost-of-living allowance.

Mr Bloem suggested that if Members thought there should be changes to the wording, they should submit them.

Mr Robbertse confirmed that the cost-of-living adjustments were done after a consultation process in which the unions and officials were involved. The Minister of Public Service and Administration would then determine the cost-of-living increase for all civil servants. Prosecutors, being civil servants, were included in this category, but an additional process was currently set out by which their cost-of-living increases must be further confirmed, and the intention behind the amendment was to short-circuit this.

Mr Bassett reiterated that the whole problem was that whilst the rest of the public servants obtained their increases in April or May, the Minister of Justice still had to consult with the Minister for Public Service and Administration, and the Minister of Finance, and the National Director of Public Prosecutions, all of whom were probably involved in the process in the first place. This gave rise to unhappiness amongst the prosecutors, who lost out on the interest they could have earned.

Mr Nzimande suggested that Members were concerned by the principle, and would have to decide how to deal with the anomaly in relation to the prosecutors. However, he would not like the anomaly to be laboured at this point.

The Chairperson clarified that the proposal was to do away with the duplication of the consultation that pertained at the moment.

Mr Matila said he still had a problem. He asked if, at the end of negotiations, salary increases would be backdated.

The Chairperson explained that the process was lengthened by the need for double-negotiations.

Mr Matila said that the salary increases must clearly be effective from the date when decided for the remainder of the public servants.

Mr Nzimande said that this Committee was not required to make a decision now, but should deal with the unsatisfactory situation that the Minister of Justice bore that responsibility in the first place.

Mr Bassett confirmed that the salary increases would be backdated, but DPPS were unhappy at having to wait for so long before they were paid. He confirmed that he would provide more detail on why the Minister of Justice made these determinations. Section 179 of the Constitution said that the NPA consisted of the National Director of Public Prosecutions, who was appointed by the President, and that prosecutors were "as determined by an Act of Parliament". He said he would report back on the debates in 1998, but thought the reasons for wording the Act in this way were probably linked to prosecutorial independence, and giving effect to what the Constitution envisaged.

Mr Joseph agreed that a further report should be given on the history. He preferred that one Minister should deal with all salaries, and if consultation was needed, then it should be the Minister of Public Service and Administration who consulted with other relevant ministers.

The Chairperson agreed that the Department should report back on this point, in the following week.

Mr Matila asked the Committee Researcher to do some work on this as well and asked that the State Law Advisors give input. He believed that judges, prosecutors and magistrates should not be treated differently.

Mr Nzimande thought that Mr Matila was referring to the Parliamentary legal opinion.

Mr Joseph asked what would happen if the Treasury indicated that there was no funding to pay for SIU investigations, who would take responsibility, and whether investigations would continue.

Mr Bassett replied that the Bill, by the insertion of section 1A, said that the state would only be liable to pay “to the extent determined” by national or provincial treasury. If a state institution could not pay, the SIU would still have to continue the investigation, as it had been mandated by the President. However, there would probably be some arrangement with National Treasury on funding. Before SLAs were put in place, the investigations were carried out against the baseline budget. He stressed again that the investigation would always proceed. The intention behind the mention of National Treasury was to allow a determination of whether the state institution could pay, and in what amount. If the institution was not in a position to pay, it would not be forced to do so.

Mr Nzimande asked if the SIU had a Chief Financial Officer. He hoped that the advice from Treasury was based also on consultation with the Auditor-General, as there would be two streams of funding; the allocation and the fees charged in the future.

Mr Robbertse said that the SIU was an entity in terms of the Public Finance Management Act (PFMA) and would have a Chief Financial Officer. The proposed new section 13B, on page 5, restated that the Head of the SIU was the accounting officer of that SIU and would remain responsible for monies received by, or payments made by, the SIU, and for keeping the necessary financial records. The new section 13C provided that the accounts, financial records and statements would be audited annually, as provided for in the Public Audit Act.

The meeting was adjourned.