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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
7 March 2001
SPECIAL INVESTIGATING UNITS AND SPECIAL TRIBUNALS AMENDMENT BILL: DELIBERATIONS
Chairperson: Adv J De Lange (ANC)
Documents handed out
Special Investigating Units And Special Tribunals Amendment Bill [B9-2001]
The Committee continued its deliberations on the appointment and removal mechanism of the Head of the Special Investigating Unit. As no consensus was reached on the appointment mechanism and other matters it was resolved that the parties would study the Bill and make representation to the Committee. Thereafter the Committee would vote on the Bill on Tuesday 13 March 2001.
The Committee focused on Clause 1 (a) and (b) of the Special Investigating Units and Special Tribunals Amendment Bill.
Clause 1 (a)
The Chairperson drew the Committee's attention to Mr Delport's recommendations regarding the appointment and removal mechanisms for the Head of the Special Investigating Units.
Dr J Delport (DP) said that it would be impossible to appoint somebody who has never had any ties with a political party to be Head of the SIU. He asked whether it would not be feasible to have regard to the appointee's public profile, status and experience to be a fit and proper person for appointment.
The Chairperson recommended that Committee members focus on Dr Delport's proposal because he had proposed broad criteria.
Dr Delport agreed that they were broad criteria.
Ms Camerer (NNP) said that regard must be had to the appointee's experience and ability to act independently or to be seen to be acting independently, just like the Public Protector. The appointment would be a weightier one if the appointee had both the experience and integrity.
Imam G. Solomon (ANC) said that in other comparable legislation, reference is only made to the phrase 'fit and proper' and that 'experience' was an additional factor in this Bill. If further criteria or requirements for the appointment were inserted there would be a danger of the exclusion of potential candidates as some would not satisfy added requirements. 'Fit and proper' is adequate in matters of this nature.
The Chairperson agreed with Imam Solomon's opinion and added that he did not think that the phrase 'fit and proper' cannot cover integrity, intellect, experience or even political affiliation. However he added that the Committee should consider these factors, as they did not weaken the appointment process.
Mr M Mzizi (IFP) said that political affiliation should not be a factor in these matters and that the integrity and capability of a potential appointee should be the determining factors, as he would be serving the public.
The Chairperson agreed that Mr Mzizi's point was very valid.
Mr J De Lange (Dept of Justice) said that from the legal point of view the phrase 'fit and proper' covers such factors as integrity, intellect and experience.
The Chairperson agreed with Mr De Lange. Dr Delport added that public perception would also require that an appointee should possess the qualities that Mr De Lange had mentioned.
Mr S Swart (ACDP) also agreed with Mr De Lange.
Imam Solomon said that the phrase 'fit and proper' has been the determining factor in legislation over the years. Conscientiousness of an appointee could only be tested in practice. 'Fit and proper' has been tried and tested insofar as these appointments are concerned.
Mr J Mgidi (ANC) agreed that the words 'fit and proper' covered all other criteria that had been alluded to by the Committee.
The Chairperson said that the phrase 'fit and proper' is a legal term that can be used in different contexts. This phrase is used in a manner that fits the level of independence of the structure. He added that the use of the words "fit and proper" in the context of the Bill is open to vagueness in a sense that what one may regard as experience, another person may not regard as experience. Similarly, what one person regards as conscientiousness may not be so regarded by another person. Ultimately, the matter is reduced to perception.
The Chairperson resolved that the appointment mechanism issue should be taken to the individual parties in order for them to make further comments for presentation to the Committee.
Clause 1 (b)
The Chairperson said that the criterion at present is that objectively sound reasons need to exist before a person may be removed from office. A person is at liberty to challenge the reasons of removal on the basis that they are not objectively sound.
Mr Swart asked Mr De Lange how the Director of Public Prosecutions could be removed.
Mr De Lange answered that he may only be removed by Parliament because he is essentially a civil servant.
Mr Swart suggested that because the present removal mechanism is justiciable there is no harm in the present formulation.
Dr Delport added his support for the formulation as it stands.
The Chairperson said that he supported it due to the fact that the appointee could challenge his removal within legal grounds if he were unjustifiably removed from office.
Mr De Lange said that the Department of Justice's view was that it would be better if he were removed by the President. This was because when an appointment is made it is not permanent but a temporary appointment with an object of making an enquiry.
Ms N Botha (ANC) said that she was concerned about the addition of the word "sound reasons" in the removal procedure because it might create a condition where people begin to argue "sound reasons" as if the procedure to be followed is not that of a civil servant.
The Chairperson replied that the appointment would not be that of a civil servant. The appointment would be based on a contractual relationship. The word "sound reasons" do not really have to be in the Bill because the appointment would be contractual. He said that there is a possibility that the wording is superfluous.
Mr Sokhela (State Law Advisor) pointed out that, with regard to the appointment criteria, the words "conscientiousness" and "integrity" are elements that could not be objectively proved. It was felt that "experience" is a factor to be retained due to the simplicity of its proof.
The Chairperson agreed that that was the general view of the Committee.
The Chair concluded that the Committee would vote on the Bill on Tuesday next week after outstanding issues have been finalised.
The meeting was adjourned.