Special Investigating Unit and special tribunals amendment draft bills

Meeting report

STANDING COMMITTEE ON PRIVATE MEMBERS' LEGISLATIVE PROPOSALS AND SPECIAL PETITIONS
21 February 2001
SPECIAL INVESTIGATING UNIT AND SPECIAL TRIBUNALS AMENDMENT DRAFT BILLS

Chairperson: Mr PAC Hendrikse

Documents handed out:
Special Investigating Units and Special Tribunals Amendment Bill [B9-01]
Letter dated 15 January 2001 from Minister Steve Tshwete

SUMMARY
The Committee considered the legislative proposal made by Mr F Beukman (NNP) under the name Special Investigating Units and Special Tribunals Amendment Bill.
It allows for Parliament to be involved in the appointment of the Head of a Special Investigating Unit. The person to be appointed should be an attorney or advocate who has been in practice for at least ten years and should have ten years' experience in the financial or auditing industry. The proposal includes the removal from office of the Head of the Special Investigating Units.

On the other hand, the similarly-named legislative proposal of Adv H Schmidt (DA) made the recommendation that the number of Special Investigating Units be reduced to no more than one. This was due to the difficulty in issuing proclamations from the State President's Office concerning the approval of the investigations of such Units.

The Committee resolved to refer both proposals to the Justice Portfolio Committee which is about to consider the certified, tabled Bill of the same name.

MINUTES
Special Investigating Units & Special Tribunals Amendment Draft Bill: Mr Beukman (NNP)
Mr Beukman's motivation for the proposed amendments flowed directly from the Constitutional Court judgment CCT 27/00 about the constitutionality of the Special Investigating Units (SIU) legislation.

He said the amendment before the Committee deals with Section 3 of the Bill. He noted the Constitutional Court held that the appointment of a judge to head the SIU violated the doctrine of the separation of powers required by the Constitution.

Mr Beukman's proposed amendment to the Bill dealt with how they could assist or contribute to a situation where a person who has been appointed as the head of the SIU is acceptable and can promote the principle of constitutionalism.

Here follows his legislative proposal:
Special Investigating Units And Special Tribunals Draft Amendment Bill
To amend the SIU and Special Tribunals Act in order to provide for the participation of Parliament in the appointment of the Head of the Unit; to promote the independence, impartiality, dignity and effectiveness of the Head of the Unit; and to strengthen the role of Parliament to scrutinise and oversee the executive action; and to make provision for the inclusion of civil society in the appointment process.

As the previous Act stated, the head of the Unit should be a judge - the proposal is that -
Amendment of Section 3(1) of Act 76 of 1996
APPOINTMENT
(3)(1) The President, on the recommendation of the National Assembly, must appoint a South African citizen who is a fit and proper person as head of the Special Investigating Unit established by him or her; and who

a) is qualified to be admitted as an advocate or an attorney, and has practised for an accumulative period of at least 10 years after having been so qualified and;

The purpose of this requirement is to strengthen the whole idea to have somebody with a legal background.

b) has specialised knowledge of and experience, for a period of at least 10 years, in the fields of finance or auditing.
(3)(2) The National Assembly must recommend a person -

a) nominated by a committee of the Assembly proportionally composed of members of all parties represented in the Assembly; and
b) approved by the Assembly by a resolution adopted with a supporting vote -

(i) of at least 60 per cent of the members of the Assembly;
(ii) the involvement of civil society in the recommendation process may be provided for as envisaged in section 59(1)(a) of the Constitution.

Mr Beukman said the National Assembly should also be involved in removal of office:

Amendment of section 3(4) of Act 76 of 1996.
REMOVAL FROM OFFICE
(4)(a) The Head of the Special Investigating Unit may be removed from office only on-
a) the ground of misconduct, incapacity or incompetence;
b) a finding to that effect by a committee of the National Assembly; and
c) the adoption by the Assembly of a resolution calling for that person's removal from office.

2. A resolution of the National Assembly concerning the removal from office of the Head of the Special Investigating Unit must be adopted with a supporting vote of at least two thirds of the members of the Assembly.

3. The President may suspend a person from office at any time after the start of the proceedings of the National Assembly for the removal of that person; and must remove a person from office upon adoption by the Assembly of the resolution calling for that person's removal.

THE OBJECTS OF THE PROPOSED LEGISLATION
The intended amendment Bill has as object to provide for the active participation of Parliament in the appointment of the Head of the Special Investigation Unit. It also provides for public participation and involvement of civil society in the recommendation process. The amendments strengthen the role of Parliament in overseeing executive action.

FINANCIAL IMPLICATIONS
The proposed legislation will have financial implications with regard to the involvement of Parliament and civil society in the recommendation and appointment process. It is foreseen that the financial implications will be of a limited nature.

He concluded that these are the amendments that he wished to propose.

Special Investigating Units & Special Tribunals Amendment Draft Bill: Adv H Schmidt (DP)
Adv Schmidt said that his proposal is interrelated to the one that was submitted by Mr Beukman. It only dealt with substituting the possibility of having various Special Investigating Units as per proclamation by the State President to having a single Special Investigating Unit. The reason for this is the problems that are being encountered concerning the issuing of proclamations in the Office of the President concerning the approval of investigations of such Units.

Discussion
Mr T Abrahams (UDM) commented on the proposed qualifications for the head of the Special Investigating Unit and said that they would appear to be mutually exclusive. According to his experience, a qualified attorney or advocate who has been in practice for more than 10 years would not have ten years' experience in the field of finance or auditing. Even a senior counsel who specialises in commercial work might not satisfy the criteria. He thus requested Mr Beukeman to reconsider this proposal.

Mr H Bekker (IFP) suggested that it would have been better to have the word "or" because it is not necessarily that a legal person is the best person for this type of work. He said that it is commonly known that there may be persons better equipped for this role in the auditing profession.

The Chairperson asked what the Committee should do with the matter, given the fact that the tabled Special Investigating Units and Special Tribunals Amendment Bill [B9-01] was already with the Justice Portfolio Committee.

Adv Schmidt replied that one of the options was to refer the proposed amendments to the Justice Portfolio Committee to be dealt with. The Justice Portfolio Committee would have the option to accept or reject the proposed amendments.

The Committee ultimately resolved to refer the proposed amendments to the Justice Portfolio Committee.

The meeting was adjourned.