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PORTFOLIO COMMITTEE ON JUSTICE
16 FEBRUARY 1998
HEARING OF EVIDENCE ON THE NATIONAL PROSECUTING AUTHORITY BILL
Chairperson: Adv. J de Lange
Attorney-General: Eastern Cape
Human Rights Committee
South African Human Rights Commission
General Bar Council
Office for Serious Economic Offences
South Peninsula Municipality
Public Servants Association
City Legal Advisor
Chief Justice: Braamfontein
Society of State Advocates
Introduction by Chairperson
The Chairperson, Adv. J. de Lange, expressed the desire to concretize the structure envisaged in s.179 of the Constitution, and to make sure that the legislation is suitable from day one. He stressed that this was the most important legislation dealt with by the Justice Portfolio Committee, and the prosecuting authority must have integrity and the confidence of South Africa.
The Chairperson outlined the schedule for the day and for the week. In particular the Chairperson drew attention to the historical process which was taking place in regard to the drafting of legislation in isiXhosa, isiZulu and Sepedi, and that the Committee would be receiving a visit from Chief State Law Adviser, Enver Daniels, concerning this affair.
Briefing by Department of Justice – Mr. Rudman
The Bill is the result of a lengthy consultation process. A planning unit considered a draft bill, which was then circulated to various stakeholders, including the judiciary, prosecutors associations, attorneys-general, regional offices of the Department of Justice, senior public prosecutors, State Attorneys, the Association of Law Societies, the General Council of the Bar, Nadel, BLA (Black Lawyers Association), the Director of OSEO, Chief Magistrates, magistrates and Justice College. The comments raised through this process were evaluated and a redrafting was undertaken . This new draft was submitted to Cabinet, and once again it was sent out to stakeholders who were asked this time to make comment to Parliament.
Mr. Rudman proceeded to summarize the salient points from each clause in the bill. It was stated at the end of the Departmental overview that any holder of the office of attorney-general at the time the bill becomes an Act would be regarded as a Director of Public Prosecutions (DPP) for the purposes of the Act until such time as their given term expires.
The Chairperson asked whether it was the intention of the drafters and the Department of Justice to remove the supervisory role played by Parliament. The Department replied in the negative, stating that in no way was this their intention.
Ms. Camerer (NP) asked whether the Chief Justice had been consulted during the consultation process. The Chief Justice had made strong recommendations that the responsibility of the Minister should not extend beyond administrative responsibility and that there be a transparent process between the Minister and the NDPP. Ms. Camerer stated that the Judicial Services Commission played an important role, and hence its suggestions and those of the Chief Justice should not be ignored. The Department answered that at that moment they did not have the representations of the Chief Justice at hand, but that they would look them up and make a copy available to Ms. Camerer.
Furthermore, Ms. Camerer inquired as to the submission of the Public Servants’ Association (PSA) which was critical of certain provisions, and she requested that the Committee have an opportunity to question the Association. Mrs. Camerer was informed that the PSA would be making an oral submission on Friday and that there would be ample time to ask questions of them at that time. It was also noted that the PSA had not been consulted during the first round deliberations on the draft Bill.
Mr. Hofmeyr (ANC) asked what the motivation was behind the decision to allow the President to appoint the DPPs. Mr. Rudman replied that these are the same provisions relating to appointment as exist under the Attorney-General Act 1992, and that the drafters had merely followed those guidelines. Mr. Hofmeyr went on to highlight a recent visit of the Justice Committee to Canada (and the United States) during which it came to light that public servants were expected to take a salary cut in line with a civil servants’ stringency program. At present the salaries of the NDPP and the DPPs would be incapable of being reduced during terms of office, and Mr. Hofmeyr expressed the concern that the Department "cover their backs" as there may be a need to reduce salaries due to some circumstance. Mr. Rudman conceded this, but went on to state that the Department had received requests from some prosecutors that their salary level be specified in the Act. However, the Minister had taken a policy decision that a line be drawn at the level of DPP.
Ms. Camerer (NP) raised the issue of Amnesty International’s submission and their recommendation of the UN Guidelines. The Chairperson stated that he would circulate copies of the submission and that individual members could examine the proposals for themselves. (It should be noted that provision for the UN Guidelines is made in the Bill – s.10(1)(j)).
Submission by Dr. J. d’Oliveira SC – Attorney-General for Transvaal
Dr. d’Oliveira stated that his submission was a potpourri of suggestions encompassing a business point of view. He stated further that at the time of making his written submission he only had access to a proof copy of the Bill and hence some of the technical points he would be raising may not be relevant.
The submission was interrupted by the Chairperson at the arrival of the Chief State Law Adviser who stated that he would not be making an address, but that merely he was making copies of the Bill available in other national languages which would be tabled before the House. The Chairperson reiterated the fact that this was indeed a momentous occasion in the history of South Africa – this is the first time that a bill has been presented in these languages – and he congratulated the State Law Advisers on their role and hard work and he pledged his personal support to the vital work which they had undertaken.
Dr. d’Oliveira resumed making his submission. In particular, attention can be drawn to section 7 (page 5) at Clause 8(2)(a) where Dr. d’Oliveira pointed out that the Department had yielded to submissions on this point.
In relation to section 8 of his submission, Dr. d’Oliveira stated that Amnesty were against "re-appointments" and not appointments as he stated in his submission. He apologised for this error.
(Dr. d’Oliveira and Mr. Roberts - Attorney-General for Eastern Cape – had consulted together on their respective submissions, and they agreed to answer questions together after both had delivered their oral submissions).
Submission by Mr. L. Roberts SC – Attorney-General for Eastern Cape
In relation to NPA 4, Mr. Roberts stated that all the points 1,3 and 4 had either been dealt with already by Dr. d’Oliveira or would be dealt with in NPA 7. Point 2 was an inadequate proposal and no attention should be paid to it, and besides it is picked up in NPA 7 as well.
Mr. Roberts read his submission.
In relation to paragraph 2, the Chairperson asked on what point of law was this aspect of the submission being made. What rights have been generated which are now potentially infringed? Is this matter based on equity or law? The Chairperson brought attention to Item 18, Schedule 6 which he believed covered transitional arrangements. Mr. Roberts replied that he was making this point, and whilst doing it he was speaking only for himself, on the basis of equity.
In relation to paragraph 3, Mr. Roberts added that the Bill must spell out where pension rights are to come from in an accountable formula, and that these provisions must not be left for the President to sort out on an ad hoc basis.
Mr. Roberts read his submission.
Questions to Dr. d’Oliveira SC and Mr. Roberts SC:
The Chairperson pointed out that although the two attorneys-general were in agreement with each other in relation to their submissions, the two held differing views in relation to the retrospectivity aspect, namely from what point was time as an A-G construed to have started running. Dr. d’Oliveira wanted time to start from the commencement of the new Act, whilst Mr. Roberts felt that time should run retrospectively and that if the period was backdated, the maximum period of seven years should be the benchmark.
Ms. Camerer (NP) asked Mr. Roberts whether he had considered any of the points raised in the submission of the Public Servants’ Association. Indeed, to retrospectively remove rights would perhaps be unconstitutional. Mr. Roberts replied that he was not entirely clear on all the details of the PSA submission, yet all their concerns would be met if his proposals were to be followed, albeit by different means.
The Chairperson once again stated that he did not know where all these new rights had emerged. It was a straightforward matter of generating new legislation in line with the Constitution. Section 179 and Item 18 made it clear that the legislation would create "a new animal" which would be protected and regulated by the Act. Rights under the old system did not count, yet the new Act would have to comply with rights provisions in the Bill of Rights.
Ms. Jana (ANC) asked Dr. d’Oliveira whether the requirement of the NDPP in clause 8(1) was too vague. She suggested either adding "legally" to "appropriately qualified" or the need to spell out the criteria.
The Chairperson stated that "appropriately qualified" was the test laid down in s.174(1) of the Constitution in relation to the appointment of judges. Bearing this in mind, why should there be a more stringent test in relation to the appointment of an attorney-general?
Dr. d’Oliveira answered that "legally qualified" would go some way towards creating a measure of equivalence with regard to the qualifications of the holders of the office of attorney-general. In addition, it would meet the UN Guidelines. An experience level of 10 years practice in the law would create an ‘esprit de corps’ and bolster the quality of the division. The Constitution provides the minimum requirements, and there is nothing to stop greater requirements being laid down by national legislation to raise standards.
Mr. Hofmeyr (ANC) asked whether the UN Guidelines were more specific on selection criteria, since he had studied foreign jurisdictional positions and found that they did not have much more to add. Dr. d’Oliveira stated that in other jurisdictions the attorney-general equated more with the position of Minister of Justice, and hence any comparison between the two should be treated with due care. He added that South Africa had moved away from the old-style attorney-general towards a criminal prosecutor in the guise of a DPP. As such there is a need for specific qualifications in relation to technical skills and professionalism, and hence more research should be done in this area. Thus it should be a policy decision that the NDPP is suitably qualified.
To summarise: the requirements for appointment as DPP should also apply to the NDPP.
Mr. Solomon (ANC) asked whether "concurrence with the Minister" in clause 2(3) pointed towards Ministerial control. In terms of clause 10(2) it is clear that this should lie with the NDPP. Furthermore he suggested an addition to Dr. d’Oliveira’s submission –section 4, page 3 at point 2 – by including a third possibility, namely the deletion of the words "in respect of any prosecution". This was accepted.
Mr. Du Plessis SC (Northern Cape) added that in terms of clause 2(3) the Minister has a power of veto over the policy, in other words he or she can only say what cannot be in the policy but cannot influence or determine the policy to any other extent.
Mr. Hofmeyr (ANC) raised the issue of policy directions in Dr. d’Oliveira’s submission in relation to clause 15(4). The Chairperson added that these notifications were necessary to keep the NDPP informed of regional movements, and to better enable the NDPP to set common standards. Dr. d’Oliveira agreed in point, and stated that he would still like to see the sub-clause removed as is, but would be happy to have it placed in another clause of the Bill and re-formulated.
Submission by Mr. de Vries SC – Attorney-General for Witwatersrand Local Division
Mr. de Vries stated that he was giving his submission on behalf of the prosecutors in the Witwatersrand division, and that he shared their impotence in addressing their concerns. The "new animal" created is in fact merely a head which has no provision for the limbs and body, a role fulfilled by the prosecutors who carry out 90% of the workload. The Bill does not address the position of the prosecutors at all satisfactorily. He beseeched the Committee that they allow the attorneys-general and the prosecutors a role in the drafting process to avoid any future problems in the courts and the prosecution service, and to meet the desire of the Chairperson to get this "right from the start". This process would take no more than a week if the relevant parties were eager to resolve any outstanding difficulties, yet it would undoubtedly solve future problems which would no doubt arise if left as is.
The Chairperson asked whether this was the general feeling of the other attorneys-general. Dr. d’Oliveira stated that as far as the situation in the Transvaal is concerned, linkage is not an option, i.e. they want the prosecuting authority to be removed from the public service.
Mr. Hofmeyr (ANC) stated that the issue of de-linking had been deliberated much by the government, yet the situation was "not entirely within our hands". Personally he would like to see the complete de-linking of the prosecution authority from the public service. However, he stated that he had sympathy with the view advocated by Mr. de Vries, and would try and pursue that point of view.
Ms. Camerer asked for clarity on the purpose of the bill. Was it supposed to achieve de-linkage?
The Chairperson replied that the Minister is bound to de-link the prosecution service from the civil service, yet at the moment problems still existed. The bill reflected these inherent problems as it was a compromise. However, it must be noted that the bill is merely a first step in the de-linking process.
Ms. Ngwane (ANC) asked what expertise was required before appointment to the position of DPP or Deputy DPP. She argued that the two should have nothing to do with each other. Mr. de Vries replied that one must make full use of the people who have administered the Criminal Justice System in the courts for the last 30 years – hence one should use the prosecutors who have essential experience.
Mr. Hofmeyr (ANC) asked for his question to be addressed. The Chairperson stated that he would attempt to persuade all involved to go the full distance and to pursue the issue to its logical conclusion. He added his support for the Minister, for the stand taken by the Minister and for the de-linking process.
Dr. d’Oliveira stated that there was considerable confusion regarding who was ultimately in control at provincial levels, and that the lines of authority between DPPs and Deputy DPPs need to be clarified. The Chairperson added that if such problems have already arisen, new lines of authority may be perceived as existing which will in turn generate future conflict. Hence there is a need to study the role and function of the respective offices and discover where the buck stops.
Dr. d’Oliveira concluded by saying that Deputy DPPs want to know that they are under the control and authority of a DPP, even though it is recognised that the Deputies play a vital and essential function which is virtually autonomous.
Submission by Mr. Nel SC – Attorney-General for Transkei
In terms of clause 13 Mr Nel stated that the appointment of national directors (NDPP) and DPP’s are limited to two terms which is potentially a waste of good man power. He raised the issue that since these were not political positions why should they be so
limited ? In such regard the President should have an unfettered discretion to re-appoint as often as he deems fit.
In relation to clause 29 Mr Nel pointed out a lacuna regarding someone uniquely in his own position.
The Chair interjected and asked where the rights which Mr Nel feared would be violated derived from. An interchange took place between Mr Nel and the Chairperson during which Mr Nel attempted to establish the legal basis for his argument, namely that since he had been appointed as an Attorney General for the purposes of the Prosecuting authority in the Transkei Region under the former administration and had continued to hold such position for 11 years he ought not now be denied access to his current position. The Chairperson inquired under which legislation was Mr Nel appointed as the Attorney General for the Transkei Region, to which Mr Nel replied that the 1992 Act did not cover his unique position but that rather he had been seconded the Civil Service Act and further more was dealt with in terms of the constitution of the Transkei.
The Chairperson stated that Mr Nel had never been appointed an Attorney General of South Africa, which Mr Nel conceded, and hence why should he now be afforded that privilege. Mr Nel made reference to previous drafts of the Bill in which his continued position had been guaranteed, and he inquired as to why this stance had been revised. He stated that at no time did he hold himself out to be an Attorney General of South Africa with the full benefits that this position enjoys.
The Chairperson stated that what Mr Nel was attempting to do was preempt the process of parliament. Mr Nel responded by reference to his submission in which he evoked maxims of Equity. Mr Nel was informed by the Chairperson that the new administration was attempting to remove the divisions within society imposed by the previous regime, hence it would be inappropriate to assume that the Transkei Region will even exist in the future. Mr Nel accepted this position and proposed that in the hypothetical situation of the Transkei Region remaining a division of the Attorney General’s Office his status should remain unchanged, albeit without the direct benefits of being an Attorney General in nomine.
Mr Hofmeyr (ANC) suggested a possibility that those who held office as Attorneys General in the TVSC should hold the position as acting DPP’s which would go some way towards meeting the concerns raised. Mr Nel stated that he would consider it demeaning to now be known as an acting Attorney General after a service of 11 years. However he recognized the almost certain outcome that there would exist one Attorney General for the entire Eastern Cape Division, and that he would abide by that final decision.
Ms Ngwane (ANC) asked whether Mr Nel’s suggestions undermined the appointment process destined to happen after the Bill had been passed. This would bind Parliament’s hands in relation to the appointment and restructuring process. Mr Nel reiterated that his main concern was to be treated equally in terms of clause 29.
Submission by Mr J Smit SC – Attorney General for Mafikeng
Mr Smit stated that he did not come to Parliament to address his individual situation as he believes it to be the wrong forum for such matters. He added that the suggestions and comments raised in NPA 7 and NPA 15 would adequately address his own situation without going deeply into his personal circumstances, which are outlined in the written submission.
Mr O’Malley (IFP) asked three questions:
Should South Africa establish a single national prosecuting authority?
The IFP is ambivalent to this idea. He further made reference to the United States of America in which the individual counties and districts maintained a large degree of autonomy.
Mr O’Malley suggested further that the Judicial Services Commission (JSC) should have a role in the appointment process of both the National Director and the Directors.
He drew attention to the appointment process and problems associated with no fixed minimum term of office.
Dr d’Oliveira stated that in relation to question 1 that such a decision was the people’s choice and had been concretized in the Constitution. As such there had been decision by the corps of Attorneys General that they would accept such a position and attempt to make it work.
Dr d’Oliveira favoured the inclusion of the JSC in the appointment process in line with the appointment of Judges.
Dr d’Oliveira stated that the position in relation to tenure was exactly the same as in the 1992 Act in relation to the National Director. In relation to Directors he suggested that the committee take note of his submissions. Mr Roberts added that there should be a fixed term of seven years with no option for reappointment so that there could be no perception of favoritism in terms of performance.
The Chairperson thanked the Attorneys General for the time they had dedicated and for their technical and practical suggestions. He briefly summed up his interpretation of the mood of the majority of the Attorneys General and dissolved the meeting, to be reconvened on Wednesday the 18th February 1998.