NPA Bill: Department response to public submissions; Cannabis for Private Purposes Bill: deliberations (with Deputy Minister)

Meeting report

The Chairperson welcomed all the members of the Committee, the Deputy Minister of Justice and Constitutional Development, Mr John Jeffery, together with delegates representing the Department of Justice and Constitutional Development (DoJ&CD) to the meeting.

She outlined the agenda items for the meeting and indicated that the Committee would be receiving a briefing on the National Prosecuting Authority (NPA) Amendment Bill [B29B-2023] and the Department’s response to the submissions received on the Bill. The Committee would deliberate on the Cannabis for Private Purposes Bill [B19B - 2020] S75.

The NPA Amendment Bill [B29B-2023] was first tabled in Parliament on 29 August 2023 and was referred to the Committee on 5 December 2023.

The Chairperson handed over to the Deputy Minister to take the Committee through the NPA Amendment Bill [B29B-2023].

Opening Remarks

The Deputy Minister indicated that the purpose of the Bill was to amend the provision in the NPA Act 32 of 1998 (NPA Act) that the President of the Republic of South Africa (RSA) by proclamation can establish an investigating directorate on specific issues. Earlier in the term the President established an Investigating Directorate on Corruption and the intention of the Bill is to ensure that the Investigative Directorate (ID) is made a statutory body. In addition, the Bill enables the ID to employ its own investigators. He highlighted that the Bill had a provision on the appointment of the National Director of Public Prosecutions (NDPP), that was removed due to complexities of the powers the President of the RSA has to appoint the NDPP. The President, Mr Cyril Ramaphosa, set up a process, including a team, that conducted the interviews for the appointment of the current NDPP and the question was whether this could be put into ordinary legislation or whether it needs to be a constitutional amendment. He said the Bill needs to be viewed in the context that there will be an overhaul of the NPAA.

Briefing on National Prosecuting Authority Amendment Bill [B29B-2023]

Ms Kalay Pillay, Deputy Director-General: Legislative Development and Law Reform (DDG: LD&LR), took the Committee through the NPA Amendment Bill [B29B-2023].

She highlighted that the President established an ID in the Office of the NDPP (ONDPP), by Proclamation No. 20 of 2019 in terms of section 7(1) of the NPA Act. The ID was required to investigate and prosecute serious, high-profile or complex commercial or corruption cases or cases involving offences or unlawful activities arising from the Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State. However, in its current form, it is an entity created by Proclamation and not a permanent entity or unit within the NPA.

Clause 1

The first clause extends the Preamble to provide for the NPA to fulfil its constitutional mandate in terms of the Constitution of the Republic of South Africa, 108 of 1996 (Constitution) and to provide for the establishment of the ID against Corruption, with investigative capacity, to prioritise and to investigate matters in respect of its specific mandate. The Preamble is also amended to underscore the importance of the establishment of the ID against Corruption in light of the systemic corruption in society which requires specialised, dedicated and multi-disciplinary measures to combat corruption.

Clause 2

The second clause amends certain definitions of the NPA Act, which are consequential in nature arising out of the establishment of the Investigating Directorate Against Crime.

Clause 3

Clause 3 amends section 5 of the NPA Act to include investigators as part of the ONDPP.

Clause 4

Clause 4 amends section 7 of the NPA Act by establishing an ID, to be known as the Investigating Directorate Against Corruption (IDAC), with the aim to investigate and carry out any function incidental to investigations and where appropriate, institute criminal proceedings and carry out any necessary functions incidental to instituting of criminal proceedings, relating to—

offences or any criminal or unlawful activities committed in serious, high-profile or complex corruption or commercial or financial crime cases arising from the recommendations of commissions of inquiry;

matters reported to the Investigating Director in terms of section 27 of the NPA Act;

matters referred by the National Director to the Investigating Director in terms of section 28(1)(b) of the NPA Act; and

include the existing offences or categories of offences listed in Proclamation No. 20 of 2019, which have been specifically spelt out in the Bill.

Clause 5

Clause 5 amends section 13 of the NPA Act to include, in the criteria for the appointment of a head of the IDAC, that such person must be a fit and proper person, with due regard to his or her experience, conscientiousness and integrity.

Clause 6

Clause 6 inserts CHAPTER 3B and provides for the appointment, remuneration and conditions of service of investigators. It also provides for the vetting of investigators, the condition for appointment and of being in possession of a security clearance. The vetting investigation must be conducted in terms of section 2A of the National Strategic Intelligence Act 39 of 1994, as amended by the General Intelligence Laws Amendment Act 11 of 2013.

Clause 7

Clause 7 amends section 22 to make provision for the training of investigators.

Clause 8

Clause 8 inserts a new section 22A for a complaints mechanism to appointment a retired judge for a non-renewable period of five years to exercise oversight over the investigators.

Clause 9

Clause 9 inserts section 29A in the NPA Act to provide for the powers and functions of investigators. An investigator has the same powers as are bestowed upon a peace officer or a police official in terms of the Criminal Procedure Act 51 of 1977. These powers relate, inter alia, to the investigation of offences, entry and search of a premise, the seizure and disposal of articles, arrests and the execution of warrants.

Clause 10

Clause 10 inserts section 43C in the NPA Act to provide for transitional arrangements. It provides that the current ID shall cease to exist as a separate investigating directorate and shall become part of the IDAC. It provides that the Investigating Director and staff of the current ID shall remain in office and continue their functions in the IDAC.

Clause 11

Clause 11 effects consequential amendments (as reflected in the Schedule) to the definition of "Directorate" in section 1 of the Regulation of Interception of Communications and Provision of Communication-Related Information Act, 70 of 2002 (RICA). The Schedule amends RICA to make provision for the IDAC.

Clause 12

Clause 12 amends the Index to the NPA Act.

Clause 13

Clause 13 contains the short title and date of commencement.

(See Presentation)

Discussion

Ms A Maleka (ANC, Mpumalanga) asked how the Bill ensures that the IDAC will operate independently and do its work without any interference. She asked for clarity on the challenges that the IDAC needs to overcome to function optimally.

Mr T Dodovu (ANC, North West) welcomed the presentation done by the DoJ&CD. He stated that the Bill was overdue and the Committee should work at finalising the passage to become an Act.

He suggested that the ID should be referred to as the IDC (Independent Directorate - Corruption) to indicate that it focuses solely on corruption.

Mr Dodovu highlighted the issue of the office of the judge that would look into the complaints and transgressions pertaining to the officers of the IDAC. He asked the Department to provide a turnaround time for the complaints made against officers of the IDAC. He added that he understands that the retired Judge has limited resources in order to look into the matter and it would require a fully functioning office of the retired Judge to deal with the complaints.

The Chairperson asked the Department to explain how the process of hiring the retired Judge will be operationalised in terms of time frames and the appointment process.

The Deputy Minister indicated that the Constitution provides that the national legislation must ensure that the NPA exercises its functions without fear, favour, or prejudice. He stated that it is the same legislation that is being amended to establish the IDAC as a permanent body. With the current NDPP, there have not yet been allegations of political interference in the cases done thus far. He added that the process of the prosecutions would be under the control of the NDPP. The fact that the IDAC can employ its own investigators means that they are not dependent on any secondment.

Deputy Minister Jeffrey highlighted that the NPA Act refers to the ID and that is where the title stems from. The Act provides for the Investigating Directorate against Corruption. He said that there is still provision for the President to appoint other investigating directorates by proclamation. Unlike the Scorpions, IDAC can only investigate corruption and related matters. He stated that if there is taxi violence or a case of zama zamas that needs the ID to act on, the new IDAC would not be able to assist as it only deals with corruption. There is nothing that stops it from being referred to as the IDC, but there will be other investigating directorates. He indicated that there were concerns from the police around the matter of the Hawks.

Provision is made in the Bill for a retired Judge to investigate complaints. The question remains around the wrongdoing of investigators and what happens to them when they do wrong, thus the provision in the Bill for a retired Judge to be appointed to investigate such matters.

Ms Pillay highlighted that when the investigating directorate is legislated it will be called the Investigative Directorate against Corruption.

She stated that the Bill does not have a specific turnaround time to deal with complaints as it would limit the complexity of such investigations, however, there is a provision in the Bill for the appointed Judge to report annually for transparency.

She highlighted that after the President has accepted the Bill, the Minister of the DoJ&CD and the Department would identify a Judge and process the appointment according to the Judge’s remuneration legislation so that the Judge is appointed in consultation with the Chief Justice.

Public Comments

The Chairperson indicated that the Bill was advertised for public comments from 7 December 2023 to 26 January 2024. The Committee received submissions from Afriforum, the Council for The Advancement of the South African Constitution (CASAC), Transnet and the Helen Suzman Foundation.

Ms Pillay took the Committee through the Department’s response to the public comments.

Clause 4

CASAC

• Section 7 (1A) (a) must be amended to expressly include any matters referred to the NPA by the Special Investigating Unit (SIU) following an investigation in terms of the Special Investigating Units and Special Tribunals Act 74 of 1996.

The DoJ&CD did not agree with the proposal. The proposed mandate of the IDAC is primarily to investigate and prosecute corruption, whereas the matters arising from SIU investigations and its mandate may not be corruption-related, but include maladministration.

Clause 6

Transnet

• Supports the objectives of the Bill. The nature, scope and complexity of commercial and financial crimes require not only relevant and specialised experience and skill but also formal tertiary education. The financial and commercial acumen in an investigation is crucial in the establishment of relevant evidence, including access and use of information available to trace and investigate crime. It is recommended that the minimum qualification for investigators of the Investigating Directorate against Corruption be a relevant tertiary education.

The DoJ&CD did not agree that a tertiary qualification be a requirement for appointment. This may limit or preclude the recruitment of investigators who have built up extensive skills and knowledge through experience who are from, for example the South African Police Service (SAPS) or the Directorate of Priority Crime Investigation (DPCI), but who do not possess a tertiary qualification but may have built up the necessary skills and experience to make an invaluable contribution if appointed as an IDAC investigator. A similar provision is in the Independent Police Investigative Directorate (IPID) Act in relation to IPID investigators (sec 22(2)). This provision requires a minimum of a Grade 12 certificate to be appointed as an IPID investigator.

Afriforum

• The NPAB, in its current form, does not proffer substantive solutions to the myriad of challenges crippling the National Prosecuting Authority (hereafter “the NPA”). It falls short of implementing meaningful reforms necessary to overhaul the existing issues within the NPA.
• The NPAB neglects the critical aspect of parliamentary oversight of the NPA, allowing it to remain predominantly within the political influence and control of the national executive – a situation that raises severe concerns about the independence and impartiality of the NPA.

The DoJ&CD noted all the comments. In its response, it stated that these amendments intended to establish the IDAC as a permanent entity in the NPA and not render the IDAC responsible for the investigation and prosecution of corruption, susceptible to disbandment by way of proclamation. The establishment of the IDAC is a significant step in creating a permanent structure within the NPA to drive prosecution-led investigation into corruption and to prosecute these offences. Any amendment to the legislation, if passed by Parliament, can then only be amended by Parliament. This is significant as the current ID is established by way of a Presidential proclamation.

Helen Suzman Foundation

• Broader Reform of the NPA is required in so far as appointment and removal of the NDPP, DNDPPs and DPPs is concerned. It is essential that the process for their appointment be designed to reduce the risk of undue political influence; and to give the public confidence that the most suitable candidates are chosen.
• Giving Parliament, Cabinet and the President a critical role in appointing the NDPP, DNDPPs and DPPs reduces the risk that one centre of political power holds sway over the NPA’s top leadership – without exempting the appointment process from political oversight altogether.

Deliberation on the Cannabis for Private Purposes Bill [B19B - 2020] S75

The Chairperson indicated that the last meeting the Committee had regarding the Bill was on 25 January 2024. The Committee received the Department’s response to the submissions on the Cannabis Bill. Many commentators raised issues outside the Bill, particularly with respect to the right to cultivate. The Department informed the Committee that the right to cultivate is not prohibited, but clause 4(5) prohibits the cultivation of cannabis in excess of the number of plants that will be determined by the Minister of the DoJ&CD in the regulations. The Bill creates a new legal framework to govern cannabis for private use by adults and intends to deal with children and cannabis usage.

The Chairperson asked the Department to elaborate on the reduction of penalties.

Response

The Deputy Minister said that the DoJ&CD’s duty would be to ensure that serious penalties of dealing with large quantities of cannabis or transporting are enforced. There were issues with the penalties for adults who allow children to use cannabis to be lowered. The Department would want to avoid a situation where a family member who may be a breadwinner is criminalised.

Mr Makubela Mokulubete, Legal Advisor, DoJ&CD, said the Deputy Minister had addressed the matter. In short, the sentiments that the Department received when the bill was before the Portfolio Committee is that the Prince judgement legalised the use, possession and cultivation of cannabis. However, the Bill still made provision for penalties that are higher in terms of the incarceration of offenders and as a result it was contrary to the sentiments expressed in the Prince judgement. The suggestion was that to avoid the misconceptions that the bill is still criminalising, we should reduce the penalities. The suggestion was incorporated and accepted and the penalties have been reduced. The bill, as introduced, the penalty for dealing in cannabis was 15 years and as a result of the proposal that the penalty should be reduced, it came down to 10 years. In addition, there are lower jail sentences and the provision of a fine. This was a result of the engagement with the Portfolio Committee.

The Deputy Minister said the serious offence of dealing is a 10-year sentence and the Minister, by Regulations, will set the amount of cannabis that can be grown or possessed and how much the amount is if you are over that will be dealing. The offences relating to children, the attempt there is likely to be parents or other adults looking after the child. If there is a problem at home, the custody can be determined by the Children’s Court. The idea is not to send the father, who may be working to jail for a long period. That is why there is a maximum of 12 months imprisonment.

Dealing is 10 years, possession in more than a prescribed amount is 5 years, cultivating in more than a prescribed amount is 5 years, engaging a child to deal in cannabis is 10 years, and transportation is 5 years.

The Chairperson indicated is that the next meeting is scheduled on Friday, where the Committee is set to consider the Bill.

On the NPA, there will be further deliberations in the meeting next Wednesday.

The Chairperson adjourned the meeting.