Special Investigating Units Amendment Bill: Deliberations

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
6 March 2001
SPECIAL INVESTIGATING UNITS AND TRIBUNALS AMENDMENT BILL: DELIBERATIONS

Chairperson: Adv JH De Lange

Documents handed out:
Letter from SAPS (Appendix 1)
Special Investigating Units and Special Tribunals Amendment Bill [B9-2001]

SUMMARY
The Department of Justice and Constitutional Development discussed the amendments made to the Special Investigating Unit Act, 1996, by the introduction of the Special Investigating Units and Tribunals Amendment Bill. The opposition was concerned that the Special Investigating Unit was not an independent body and that it was part of the Executive. The ANC was convinced that the Special Investigating Unit is an organ of the Executive. Thus it was difficult to envisage how it could be independent from the Executive.

MINUTES
In the South African Association of Personal Injury Lawyers vs Heath and others, the Constitutional Court held:
- The appointment of a judge as the Head of a (Special Investigating Unit) SIU is unconstitutional.
- The proclamation appointing Judge Heath as the Head of the SIU is unconstitutional.
- The proclamation referring the allegations concerning the South African Association of Personal Injury Lawyers to the SIU for investigation is unconstitutional.

Adv De Lange stated that the Committee would only be dealing with the appointment of the Head to the SIU.

The Director of Parliamentary Legislation: Department of Justice and Constitutional Development, Mr J De Lange, stated that the purpose of the Bill is to bring the appointment of the Head of the Special Investigating Unit into line with the judgment of the Constitutional Court (South African Association of Personal Injury Lawyers vs President of the Republic of South Africa). It is aimed solely at amending the provisions that the Constitutional Court declared unconstitutional.

Section 3 of the Act does not make provision for an 'acting' Head of the Unit. The section is amended to provide for this.

Section 3 refers to the power of the President to remove the Head of a Special Investigating Unit (SIU) from such office. According to the Act the President was required to consult with the Judicial Service Commission in removing a Head from office. Since judges would not be allowed to head such Units there is no longer a need for such a requirement.

The Bill removes the reference to judges in all the provisions of the Act.

Section 5 of the Act is amended by the deletion of subsection 8. Subsection 8 gave the Head of the Unit the power to issue interim interdicts or suspension orders. This was previously possible, as the Head of the Unit could have been a judge. However, it would no longer be possible for the Head of a Unit to carry out this judicial function, since judges would not be allowed to head any Unit.

Discussion
Dr J Delport (DP) was concerned with the clause in the Bill that related to the appointment of the Head of a SIU. He stated that the Head should be an independent person who is not involved in any political organisation. There should be something in the Bill that emphasised the independence of the Head.

Furthermore, the President can remove a Head from office if he provides sound reasons for doing so. There should be some mechanism in place to allow for the reasons to be made public or to be debated. The DP will make proposals that deal with these two issues.

Adv De Lange stated that although these were useful comments, members should try to keep the debate in respect of the Bill short. He stated that in terms of Dr Delport's argument, only those people who have kept their political affiliation secret would be eligible for the position as the Head of a Unit. He suggested that if the judgment of South African Association of Personal Injury Lawyers vs Heath and Others were read carefully then the issues raised by Dr Delport might be explained or resolved.

Mr Swart (ACDP) also expressed concern about the issues raised by Dr Delport. He stated that the removal of a Head from a Unit was a serious matter, thus there has to be sound reasons to do so.

Ms S Camerer (NNP) raised a point about the connection of the SIU with the Executive. She asked whether it was advisable for the Units to operate by a Proclamation by the Executive. A way of divorcing the SIU from the Executive should be looked at.

Adv De Lange said that SIUs work on the basis of a Proclamation. That is the substance of a SIU. SIUs do not have their own jurisdiction. The main aim of the SIU is the recovery of State assets. It is not an all-encompassing crime fighting mechanism. If SIUs had their own jurisdiction, then they are no longer retrieving State assets, but are an anti-corruption unit. This would be unconstitutional, as it would be infringing on the duties of other bodies, eg the police. SIUs have to work by Proclamation and the Government institutes every proclamation.

Mr JS Mgidi (ANC) said that SIUs are an organ of the State. Their main aim is to retrieve the State's assets. Thus it would be difficult to envisage a SIU completely independent from the Executive. Also it should be remembered that the Bill does not change the purpose of the Act.

Mr Mgidi asked whether the removal of subsection 8 in section 5 of the Act, would have any implications on the effectiveness of the SIU.

Adv De Lange replied that since a judge could no longer be the Head of a Unit, it would not be possible for the Head of a Unit to issue interdicts and suspension orders. If such a power were left within the Act and the Head makes such orders, this would definitely be challenged.

Adv De Lange stated that the amendment to section 3 of the Act allows for the appointment of an acting Head when there is already a Head appointed. There should be words included in the Bill to allow for the appointment of an acting Head when the position of Head is vacant. Mr De Lange (Director-Parliamentary Legislation) said that this would be looked at by the Department of Justice and Constitutional Development and him self.

The meeting was adjourned.

Annexure 1
COMMENTS OF THE SOUTH AFRICAN POLICE SERVICE ON THE SPECIAL INVESTIGATION UNITS AND SPECIAL TRIBUNALS AMENDMENT BILL, 2001

The Chairperson of the Portfolio Committee on Justice and Constitutional Development, has publicly requested inputs on the above-mentioned Bill, not later than 2 March 2001.

In essence the Bill gives effect to the Constitutional Court case of South African Association of Personal Injury Lawyers V Heath and Others Case CCT 27100.

The Bill removes the requirement that a judge should be Head of the Special Investigating Unit, and further provides that: "the President may at any time remove
the Head of a Special
Investigating Unit from office if there are sound reasons for doing so.

In so far as the Bill gives effect to the above judgement of the Constitutional Court it is supported.

From a crime investigation point of view the South African Police Service is in favour of the continued existence of the Special Investigating Unit only until it has finalised presently outstanding matters and that it should not take aboard new matters

The focus of the Unit was not the investigation of crime but to recover monies owed to the State as a result of criminal behaviour In the process criminal investigations were not addressed.

A process to transfer the criminal investigations of the Special lnvesti9ating Unit to existing investigating units of the South African Police Service is underway.

The opinion is held that very little can be done by the Unit that cannot be dealt with by existing structures.

Police personnel are drawn from their investigation tasks into the Unit, which. focuses on civil procedures, resulting in loss of personnel to the South African Police Service.

The Committee is requested to consider that the Act in its amended form should be kept in place temporarily in order to allow the Special investigating Unit to finalise outstanding matters.

Yours faithfully
National Commissioner: South African Police Services