National Prosecuting Authority Amendment Bill: public hearings

Meeting report

The Chairperson mentioned that nine organisations would present their submissions on the NPA Amendment Bill.

Thereafter, he asked if any apologies were received in addition to the one submitted from Ms Yako.

Mr Vhonani Ramaano, Committee Secretary, said that no apologies were received.

The Chairperson indicated that Adv Swart would have to leave the meeting at 10:30 to attend the Multi-Party Chief Whip’s Forum.

SACBC Submission

Adv Mike Pothier, Research Coordinator, SACBC Parliamentary Liaison Office, took the Committee through the presentation.

• The organisation proposed that Section Seven of the NPA Act being amended so that the ID is established through statute, rather than by presidential proclamation, so that has greater independence from the executive
• Advocated that there be a higher voting threshold for the disbandment of the IDAC to avoid what occurred with the Scorpions
• Disagreed with Clause Six of the Bill, which states that the head of the IDAC will be appointed by the President, after consultation with the Minister and NDPP, because it compromised its independence
• Argued that the IDAC should be made independent from both the Department of Justice and Constitutional Development (DoJ & CD) and NPA

(See Presentation)

Discussion

The Chairperson asked the SACBC if it had a specific formulation that it could submit to the Committee.

Mr Pothier said that one of the formulations would be to have greater parliamentary oversight on the appointment and dismissal (and implementing a super majority threshold for their dismissal) of the IDAC and its Director.

HSF Submission

Ms Nicole Fritz, Executive Director, HSF, and Ms Renisha Naidoo took the Committee through the presentation.

• Argued that Section 179 (1)(a) of the Constitution and NPA Act be amended so that the President’s power to appoint an NDPP or Deputy National Director of Public Prosecutions (DNDPP) should be shared with the Minister of Justice and Parliament, which would see the Portfolio Committee on Justice approving candidates (in consultation with the Minister and President) recommended by an independent panel represented by suitably qualified persons
• Furthermore, that Parliament be given a central role to suspend or remove the NDPP, DNDPPs and Directors of Public Prosecutions (DPP), thus limiting undue political interference
• Proposed the Bill include a provision requiring a two-thirds majority in Parliament to disband the IDAC

(See Presentation)

Discussion

Ms N Maseko-Jele (ANC) asked for the HSF’s thoughts on the proposal to make the NPA independent from the DoJ & CD.

Ms Naidoo asked the Member to clarify whether her question related to the independence of the IDAC or the NPA.

Ms Maseko-Jele asked for the organisation to comment on both.

Ms Naidoo indicated that the IDAC should be made sufficiently independent to conduct its mandate without fear, favour or prejudice, similar to how Section 206 (6) of the Constitution envisages IPID’s independence.

The HSF did not believe that the executive's role in the appointment could be removed from the Act at this point. Instead, it believed that Parliament had the capability to ensure that the DNDPP’s are insulated from political interference in their appointments by having a panel set up to interview the candidates, and a list of recommended candidates being screened by the Portfolio Committee. Nothing in the Constitution and Act prevented the President from consulting with the suggested panel or the Committee on the appointments for the DNDPP, she added.

Adv G Breytenbach (DA) asked if the organisation believed this was an opportune moment to legislate the appointment process of the NDPP and DNDPP’s, thereby strengthening it, rather than continuing to depend on the good will of the President to follow a consultative process. In addition, she asked if the HSF did not feel that the Bill should include a legislative removal process which insulates high-ranking members of the NPA so that they are not as vulnerable to political interference.

She asked for the HSF’s view on the standalone independence of an effective corruption-busting unit and if it could be housed within the NPA.

Ms Naidoo agreed that it was an opportune moment to strengthen the appointment process of high-ranking officials in the NPA and include a legislative removal process to protect them from political interference. At this point the HSF felt that all institutions in the country should be strengthened to improve the country’s democracy.

On housing a corruption-busting unit within the NPA, she said that sufficient safeguards and measures should be implemented to promote IDAC’s independence and provide it with support.

The Chairperson asked why the HSF proposed that the ID be appointed by the Portfolio Committee and not Parliament, given that the former is a sub-structure of the latter.

Ms Naidoo indicated that the proposal is centred around increasing parliamentary oversight on the appointment process of the ID.

The Chairperson asked if the responsibility should be given to Parliament or the National Assembly.

Ms Naidoo said it was not the HSF’s place to dictate which of the two bodies would be best placed to execute the responsibility.

CW Submission

Mr Nkululeko Conco, Attorney, CW, and Ms Refilwe Chulu, Researcher, CW, took the Committee through the presentation.

• CW is an anti-corruption non-profit organisation that seeks to expose corruption, nepotism, the abuser of power and public funds by public and private sectors
• Proposed that the Constitution be amended to provide for the independence of the NPA from the DoJ so as to prevent undue political interference
• Contended that prosecution policy directives, legislation, and policy be strengthened to effectively address crime and corruption in SA.
• Called for adequate resourcing from a financial and personnel perspective of the IDAC
• Advocated for an improvement in the mechanisms providing oversight on the NPA

(See Presentation)

Discussion

Adv Breytenbach stated that she had two questions for the CW. One, she asked tCW how it believed the IDAC would maintain its independence given that it expressed support for the proposal to house the IDAC within the NPA.

Two, she asked if the CW did not believe that this was the opportune moment to craft legislation that will adequately deal with the independence and appointment process, instead of the department’s stop-gap measures it proposed in the legislation.

Ms Chulu, on how CW believed the ID would maintain its independence, remarked that the CW preferred for the IDAC to be made an independent structure to prevent it from being disbanded like the Scorpions.

Mr Conco agreed that this was the right time to make substantial legislative change to the appointment and removal process of the NDPP and DNDPP’s in the NPA.

Afriforum Submission

Mr Louis Boshoff, Campaign Officer, Afriforum, took the Committee through the presentation.

• AfriForum is a civil rights organisation which places focus on defending the rights of all South Africans particularly of minority communities
• Believed that the Bill neglected to give Parliament greater oversight on the NPA, leaving it vulnerable to undue political interference
• The Bill did not touch on inefficiencies affecting the South African Police Services (SAPS), the backlogs in courtrooms and overcrowding in correctional centres
• Argued that the Bill did not engage with the institutional weaknesses and operational deficiencies within the NPA, such as a lack of funding and human resources

(See Presentation)

Discussion

Adv Breytenbach asked for Afriforum’s view on why the DoJ & CD was clinging, after all this time, to a model that sought to house the IDAC within the NPA, thereby subjecting it to no permanence, and whether this should be viewed as a concern.

Mr Boshoff indicated that Afriforum proposed securing the independence of the NPA to avoid political interference.

Accountability Now Submission

Adv Paul Hoffman, Director and Head of Projects, Accountability Now, took the Committee through the presentation.

• AN is a non-government organisation focused on public interest litigation, public awareness and education, as well as accountability, human rights, and the rule of law
• The organisation has campaigned for the introduction of a new Chapter Nine anti-corruption body since 2012
• Called for the rejection of the Bill as it did not implement the binding Constitutional Court (CC) Glenister judgement, which touched on the shortcomings of the SAPS
• The Bill did not meet the ANC’s National Executive Committee (NEC) resolution for the Cabinet to establish a new standalone, specialist body that is independent and permanent
• Expressed dissatisfaction with Deputy Minister’s remarks that the Bill was a stopgap measure and not wholesale reform of the NPA Act
• Believed that there was no separation of functions between SAPS and the NPA relating to the investigation of serious corruption

(See Presentation)

Discussion

Adv Breytenbach mentioned that the DA planned to introduce two PMBs which relied on AN’s presentation document it provided to Parliament.

Adv Hoffman indicated that he had sight of the DA’s PMBs (Constitutional Amendment Bill and Enabling Legislation) which followed some of the ideas set out in AN’s presentation document. What AN put on the table did comply with the human rights obligations in Chapter Two of the Constitution and State undertakings in treaty law which have been adopted and ratified by Parliament under Section 281 of the Constitution, he said. The STIRS (specialised, trained, independent, resourced and secure in tenure of office) criteria was binding because of these human rights and treaty obligations.

AN believed that both PMBs that are to be tabled should receive urgent attention from Parliament.

Adv Breytenbach asked if the Committee and society should be concerned that the legislation still proposed that the IDAC be housed in the NPA, especially considering what occurred to the Scorpions.

Adv Hoffman felt that the department had tabled the Bill solely to give off the impression that it was taking steps to combat corruption. To him the Bill was a wholly inadequate response to the corruption and the binding decisions of the CC Glenister Judgement. The Bill was not constitutionally sound and would be vulnerable to litigation and should be rejected and replaced, he stressed.

Ms Maseko-Jele asked AN if it did not think that the Bill was a reflection of the government’s attempts to strengthen the institutions that will fight against crime and corruption and a maturing democracy. Moreover, she asked if the suggested Chapter Nine anti-corruption body would not complicate matters.

Adv Hoffman elaborated that Parliament was faced with a binding constitutional decision that requires the anti-corruption unit of the state follow the STIRS criteria. AN had not advocated that a Chapter Nine institution was the only way to address that.

Nevertheless, the organisation noted that the DoJ had not responded to the ANC NEC’s resolution for an independent anti-corruption entity to be established, he added.

F W De Klerk Foundation Submission

Ms Tyla Dallas, Manager: Constitutional Programmes, F W De Klerk Foundation, took the Committee through the presentation.

• The Foundation is a non-profit organisation that seeks to promote the Constitution and the values, rights and principles enshrined in the Constitution; to monitor developments including legislation and policy that may affect the Constitution or those values, rights and principles
• Like AN the foundation did not believe that the Bill followed the STIRS criteria set out by the CC in the Glenister Judgement;
• That there was no clear separation of investigating powers between the SAPS and NPA;
• And the fact that the NPA will not be made independent
• While it was pleased that the IDAC would have separate powers to investigate corruption matters, it was concerned that the structure and functioning of the unit was too similar to the Scorpions, leaving it vulnerable to disbandment
• Recommended that the two Private Member Bills (PMB) set to be introduced in Parliament by the Shadow Minister of Justice be seriously taken into consideration. The one bill proposes amendments to sections 181, 193 and 194 of the Constitution to establish a new Chapter 9 Institution called the Anti-Corruption Commission, while the other seeks to govern the functions, powers and composition of the Commission

(See Presentation)

ACJR Submission

Dr Jean Redpath, Senior Researcher, ACJR: UWC Dullah Omar Institute, took the Committee through the presentation.

• The ACJR conducts high-quality research, teaching and advocacy on criminal justice reform and human rights in Africa
• Expressed concern that the Bill did not touch on the NPA’s lack of independence in relation to funding, and proposed that the NPA Act should be amended to provide for the NPA to submit its own budget vote, save for the salary of the NDPP, which should be a direct charge against the National Revenue Fund, similar to the salaries of judges
• It submitted that the NPA Act must provide for a policy to be determined by the NDPP to guide the hiring of specialist skills in the NPA, which must be tabled in Parliament and be subject to review
• It proposed that an appointment committee be provided for in the Bill which will consist of two representatives from the Legal Practice Council (LPC), unions representing prosecutors, retired judges, members from the Portfolio Committee, and legally qualified persons from civil society or academia. This committee will interview and recommend suitable candidates for the NDPP to the President
• Another proposal made was for DNDPP’s to only be appointed for a tenure of ten years, similar to the NDPP

(See Presentation)

Discussion

Ms Maseko-Jele asked for the ACJR to elaborate on the committee that it proposed. Also, she asked for clarity on its proposal for a retirement age requirement for appointed NDPPs.

Adv Breytenbach asked if the ACJR believed that the Committee should be dealing with a stopgap legislation in a matter of such importance, or should rather spend its time drafting the correct legislation for the matter at hand.

In addition, she asked for the organisation's opinion on the independence of the NPA.

Dr Redpath explained that the ACJR proposed that an appointment committee be established, and that it include representatives from the LPC, retired judges, unions representing prosecutors, two members of the Portfolio Committee, and working lawyers. Once the process is concluded a name would be recommended to the President for his or her final decision.

Regarding the question on the retirement age of an NDDP, she explained that at the moment the NDPP has to serve for ten years or until age sixty-five. The ACJR was concerned that a suitably qualified candidate close to the retirement age would not have the time to settle in the position. Whereas the DNDPP can be appointed at any age and serve until age sixty-five, which the ACJR feared may lead to stagnancy in the NPA. Thus the ACJR argued that the tenure should be similar to that of the NDPP. However, it felt that those individuals should be employed as special prosecutors on the same salaries once their tenures come to an end, so that their skills are not lost.

Touching on whether a new Bill should be drafted, she felt that due to the crisis the country was facing, the Bill should be passed urgently as the NPA needed some of the amendments to adequately prosecute State Capture-linked cases.

The ACJR believed that the current legislation was not in line with Section 179 (4) of the Constitution, which requires the NPA act without fear, favour or prejudice.

The Chairperson asked what retirement age the ACJR was suggesting for the NDPP.

Dr Redpath mentioned that the ACJR’s proposed that the DNDPP’s as well as the NDPP be limited to a ten-year term.

Ms Maseko-Jele asked how the ACJR believed that the Committee would be able to choose two Members to serve on the appointment committee given that there is a multitude of parties represented in Parliament.

The Chairperson asked who would chair the appointment committee.

Dr Redpath highlighted that the proposal was still in its infancy and only made to begin the discussions on such a committee. Nonetheless, she proposed that either both the majority party and official opposition be chosen, or the Committee could choose Members with extensive legal backgrounds.

She was unsure who would be the chair of the committee.

Open Secrets Submission

Ms Luthando Vilakazi, Attorney, and Ms Jane Borman, Attorney, took the Committee through the presentation.

• OS, established in 2017, is dedicated to promoting the right to truth and contributing towards social justice by holding private actors implicated in economic crimes and related human rights violations to account
• It was pleased that the Bill, in Clause Five, established the IDAC as a statutory entity focused primarily on combating corruption. However, it too was concerned that the Bill did not seek to make the entity wholly independent from the political interference of the President and Minister of Justice;
• Moreover, it argued that wholesale reform was required to reduce the power of the President and Minister to appoint the NDPP and DNDPPs
• It pointed out that the Bill did not provide for the separation of functions between the Hawks and NPA
• The organisation submitted that the Bill had to provide a term limit for the tenure of the IDAC

(See Presentation)

Action Society Submission

Mr Ian Cameron, Director: Community Safety, and Ms Kaylynn Palm, Media Liaison Officer, took the Committee through the presentation.

• AS, established in 2019, is a proactive civil rights organisation operating as a non-profit company that advocates for policy change
• It called for the NPA to made independent similar to the Independent Police Investigative Directorate (IPID)
• Applauded the Bill’s provision to establish the IDAC as a statutory entity within the NPA as it believed it signalled a clear commitment by the government to tackle corruption
• However, it felt that the ID’s efforts to do so may be compromised by the lack of financial and organisational independence;
• As such, it advocated for the IDAC to be a separate entity outside of the NPA
• It also submitted that the Bill include a provision for the devolution of the NPA’s powers to the provinces to enhance efficiency and localised responsiveness

(See Presentation)

Discussion

Ms Maseko-Jele asked if the AS was referring to the independence of the NPA’s finances or that of the IDAC. If the IDAC was to be made independent, who would it report to, she asked.

Adv Breytenbach asked for the AS to elaborate on what a model of the devolution of the NPA’s powers would be.

Ms Palm explained that it meant independence from political interference.

Mr Cameron, on the devolution model, said that it was important to have a decentralised model to give power to local NPA capacity to provide better accountability. However, it noted the danger that may ensue by giving several bodies prosecutorial powers.

Ms Maseko-Jele asked for clarity on what AS meant when it referred to political interference.

Mr Cameron said that it seemed certain people did not face prosecution due to political connections.

NPA Submission

Adv Anton du Plessis, Deputy National Director of Public Prosecutions: Strategy Operations and Compliance, and Dr David Broughton, Senior State Advocate: Researcher and Legal Support, took the Committee through the presentation.

• The NPA’s submission mainly relates to Section Seven of the Bill, which provides for the security screening or vetting of investigators appointed or assigned to the IDAC
• It submitted that the NDPP should have a discretion to decide whether an IDAC investigator is unfit to hold office because his or her security clearance has been withdrawn and must be discharged. Whereas the current NPA Act does not provide the NDPP with the discretion, and states that they must immediately discharge the investigator from office if their security clearance is withdrawn

(See Presentation)

Discussion

Ms Maseko-Jele asked why the NPA had presented its submission to the Committee if it was part of the team that drafted the Bill.

In addition, she asked if an official in the ID did not have security clearance whether they could conduct investigations.

Adv Breytenbach said that she had several difficulties with the presentation, one of which was that it presupposed, through the proposal of he or she being given the powers to dismiss an investigator if their security clearance is withdrawn, that the NDPP would always act in the best interests of the NPA. Any legislation passed had to deal with those issues and protect the criminal justice system from NDPP’s with dishonourable intentions.

In addition, she asked why the NPA believed that housing the ID within the NPA would guarantee its independence.

Adv du Plessis confirmed that the NPA had given extensive input on the Bill when it was drafted. It was presented to the Committee because it wanted to point out the issue it submitted in its presentation. 

Regarding the question on whether the amendments insulated the process from an NDPP not committed to the rule of law, he stated that the NPA agreed with the suggested broader reforms on the appointment of a NDPP going forward.

Touching on why the NPA believed housing the ID within the NPA would guarantee its independence, he indicated that the legislation made steps to secure the independence of the ID in line with the CC’s judgement, and would move the NPA towards a prosecutor-led model in dealing with high-level corruption matters.

Adv Shamila Batohi, NDPP, added that the NPA held extensive discussions with the department on the Bill, during which it proposed these amendments. However, the department indicated that it was too late to include the recommendations and advised the NPA to make the submission to Parliament.

The Chairperson asked if the NPA had failed to submit its proposed amendment on time or if it was declined by the DoJ.

Adv Batohi elaborated that there was insufficient time to engage with the department on the proposed amendment.

Dr Broughton, on the question related to the withdrawal of security clearance, stated that the NDPP has to be afforded the discretion whether to discharge an investigator from office if security clearance is withdrawn. The majority judgement in the Glenister 2 case pointed out that the NDPP Office had the necessary and constitutional independence. With that in mind, the NDPP will have to regard the reasons for the withdrawal of security clearance before taking the decision.

Ms Maseko-Jele asked if it was compulsory for all investigators in the ID to have security clearance when investigating high-profile corruption matters, and if this has been the practice in the department.

Adv Batohi said it was critical that all investigators had the necessary levels of security clearance to conduct their work. The NPA has submitted the relevant documentation for investigators in the ID to obtain top secret clearance from the State Security Agency.

Ms Maseko-Jele requested that the NPA provide the Committee with a detailed report on the matter in its next appearance.

The Chairperson asked her what information she was asking for.

Ms Maseko-Jele indicated that she wanted a report on the investigators who are awaiting security clearance.

Adv Batohi said that the NPA could provide the number of security clearance applications it has submitted, not their names.

Closing remarks by the Chairperson

The Chairperson informed Members that the Committee would meet to receive responses from the department on the submissions made.

The meeting was adjourned.

The Chairperson then opened the floor for discussion.