Special Investigating Units Amendment Bill: Deliberations

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Justice and Correctional Services

12 March 2001
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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
13 March 2001
SPECIAL INVESTIGATION UNIT 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]
Cape Bar Council comments on the Bill

SUMMARY
A vote was to be taken on the Bill but this was not forthcoming. The majority of the members agreed to the executive appointment of the head of the SIU and that such person should possess 'experience, integrity and conscientiousness'. However the Democratic Alliance wanted 'independence of mind' to be added as one of the criteria and initially suggested that such appointment be made subject to parliamentary approval.

Committee members will consult further with their parties with a view to reaching consensus when the vote is taken on 14/03/2001.

MINUTES
A vote was to be taken on the Bill but this was not forthcoming. When the Chair informed members that there had been consensus that the appointment criteria for the head of the SIU should be 'experience, integrity and conscientiousness', Ms Camerer (NNP) disagreed. She said that the Democratic Alliance (DP and NNP) had taken the view that the appointee to the SIU must be a person "of independent mind and possessing an independent spirit to act without prompting".

The Chairperson expressed surprise at the viewpoint that Ms Camerer had taken. He protested that this was tantamount to reopening an issue upon which consensus had been recorded. Ms Camerer explained that in the last meeting, individual parties were asked to look at the matter further and that her party had, after serious scrutiny and deliberations, decided that an adequate appointment mechanism be put in place to select the right candidate. Ms Camerer averred further that her party's position was born out of the clear realisation that this is an extremely important office which called for a personality with the nerve and courage to withstand the pressure the office carries.

The Chair wondered what kind of independence Ms Camerer had in mind in view of the fact that the envisioned SIU falls under the executive structures and therefore it is an organ of the state par excellence. He continued that the question of independence does not arise in the first place since the same is covered under the suggested criteria of integrity, conscientiousness and experience. The Chair went on to explain that the yardstick of "independence" touted by Ms Camerer is strange and far-fetched in legislation of this nature. He observed that such criterion has never featured anywhere in similar legislation.

Mr De Lange (Department of Justice) agreed with the Chair and underscored the importance of consistency when introducing new terminology into legislation as it has the potential to create constitutional problems. As with the Constitution, where consistency is adhered to, this legislation should avoid introducing strange terms and style.

Mr J Jeffrey (ANC) requested Ms Camerer to state the kind of mechanism she had in mind.

Ms Camerer, though outgunned, was not about to relent. She pressed forcefully that, in principle she was in agreement that the SIU was a state organ but that in view of the fact that the SIU will be pursuing the very state agents, it is of vital importance that the person appointed be one of unquestionable independence. She suggested that such appointment be made subject to parliamentary approval.

The Chair took great objection to such a mechanism. He explained that the SIU would be a special organ at the beck and call of the executive. The executive had the powers to terminate such investigations at any given time. It would not be practically convenient to expect parliament to be called upon to approve every other tribunal the executive appoints. Mr Mzizi (IFP) agreed with the Chair and took the view that the element of independence Ms Camerer was worried about is sufficiently covered under the other criteria. He said it should be the business of the executive to appoint such person as would be described under the Act.

Adv Masutha (ANC) lamented that the new item introduced by Ms Camerer was causing unnecessary confusion. He said that investigation of individual cases of corruption fall under the docket of the executive members. He offered that the issue raised by Ms Camerer would better be tackled under Chapter 9 institutions, which are independent of the executive. He said further that he did not see the practical purpose the insertion of the term 'independence' would serve.

Mr Swart (ACDP) referred to the Constitutional Court ruling, which he said was very clear. The said ruling at page 49 puts emphasis on conscientiousness and integrity as the critical criteria. Independence should safely be covered by these criteria.

Ms Chohan Kota (ANC) complained that too much time was being spent on issues that had adequately been covered in previous sessions. The Chair agreed and noted that two positions had clearly emerged. On the one hand, the majority of the members had agreed to the executive appointment of the head of the SIU. The person to be appointed should be one of experience, integrity and conscientiousness. The DA had taken a slightly different view namely that while it agreed to the executive appointment, independence of mind should be added as one of the criteria.

Having summed up these two positions, the Chair called upon members to consult further with a view to reaching consensus when the vote is to be taken on 14/03/2001. The meeting was adjourned.

Appendix 1:
PORTFOLIO COMMITTEE ON JUSTICE AND CONSTITUTIONAL DEVELOPMENT AMENDMENTS TO SPECIAL INVESTIGATING UNITS AND SPECIAL TRIBUNALS AMENDMENT BILL [B 9—2001]

CLAUSE 1

1. On page 2, in line 9, after "experience," to insert "conscientiousness and integrity,".
2. On page 2, in line 10, to omit "the office of" and to substitute "that office, as".
3. On page 2, in line 13, to omit "becomes" and to substitute "is".

NEW CLAUSE
1. That the following be a new Clause:
Amendment of section 6 of Act 74 of 1996
3.
Section 6 of the principal Act is hereby amended by the substitution for paragraph (a) of subsection (5) of the following paragraph:

"(a) Subject to subsection (6), the premises referred to in subsection (1) shall only be entered by virtue of an entry warrant issued by a member of a Special Tribunal, magistrate or judge of [the Supreme Court, other than the Head of the Special Investigating Unit concerned] a High Court, if it appears to such member, magistrate or judge from information on oath that there are reasonable grounds for believing that any book, document or object which may have a bearing on the investigation—
(i) is in the possession or under the control of any person or on or in any premises within the area of jurisdiction of such Special Tribunal, magistrate or judge; and
(ii) cannot reasonably be obtained in any other manner.".

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