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JUSTICE PORTFOLIO COMMITTEE
18 FEBRUARY 1998
PUBLIC SUBMISSIONS AND DELIBERATIONS 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
Hearings continued with the following oral submissions being presented by the Vera Institute, the Attorney-General for Bisho and the South African Human Rights Commission
Submission by Mr. C. Stone: Vera Institute:
Mr. Stone prefaced his submission with a statement that the purpose of his submission was to inform the Portfolio Committee of the problems that surrounded the inception of the last national prosecuting authority to be established in the developed world – that of the establishment of the Crown Prosecution Service (CPS) in England and Wales in 1986.
Following a Home Office White Paper, the CPS was launched on a single day. Almost instantaneously, what had been regarded as a sensible constitutional reform became the focus of a large degree of criticism. Even though large numbers of delays, acquittals and diversions had previously taken place, the CPS was seen as a new target for criticism. What was most extraordinary was that large numbers of prosecutors blamed this new service for their own failures.
In 1987, the DPP provided for the publication of the Prosecution Policy. This however was criticised for being "out of touch". In 1988, the CPS was plagued by understaffing problems, with more than one quarter of posts left unfilled. The Civil Service, which for years had been seen as an attractive place of employment, could no longer compete with the private sector, and hence the necessary candidates failed to apply. The DPP provided that non-legal staff should act as case-screeners in the first instance, but lawyers objected to this procedure, sued and obtained a High Court injunction restraining the DPP from making such a decision. The DPP appealed but subsequently dropped the appeal, but significant damage had already been done to the image of the CPS. The CPS began to rely more heavily on private contract lawyers to prosecute cases. These lawyers were better paid than CPS staff prosecutors, so the situation arose where CPS staff were leaving the service only to then be rehired on a private contract basis. In an informal survey undertaken at the time, 79% of staff believed that the CPS had been started without adequate preparation and foresight, whilst more than two-thirds believed that "worse was still to come".
By 1991, the CPS had gone through still more problems, but was slowly making a comeback when the DPP was arrested for the solicitation of prostitutes in King’s Cross. The new DPP consolidated the regional offices into 13 divisions, and urged the CPS to take a more pro-active role in the pre-trial investigative process. However, rising crime lead to blame being aimed at the CPS which was now perceived as the weakest link in the criminal justice system. Indeed, 96% of prosecutors stated that they had no confidence in their management.
The Labour Party pledged to reform the CPS once again, and to de-centralise the service by creating 42 sections. This has since changed, and they are awaiting the report of the Glydwell Commission on the matter.
Mr. Stone stated that two things could be gleaned from the English experience. First, that Parliament should not underestimate the vulnerability of the National Prosecuting Authority to criticism, and that there is a need to be able to respond constructively. The English did not anticipate the need for some sort of public liaison officer, and it took them ten years to publish prosecution policy that was accessible (in terms of language, focus and content) to the public, and twelve years for prosecutors to work with the police. Second, the National Prosecution Authority should be based on excellence rather than tenure. In England, the legal profession was changing but the Civil Service was not, and therefore the Civil Service failed to realise that their "job for life" approach could not compete with the occupational experience and expertise gained in the private sector.
Ms. Camerer (NP) asked whether the problem in England resulted from the misconception of prosecutors as to the nature of their functions.
Mr. Stone replied that the value inherent in the CPS was very high, but that the point was missed that if a superstructure was placed on top of an existing decentralised service, unless there was clarity as to the new roles, there would be a breakdown in efficiency. It is quite easy to miss the important vision of the role played by prosecutors.
Mr. Hofmeyr (ANC) asked whether the implementation of the CPS was a focus for criticism because previously the service had been decentralised. Since the prosecuting authority in South Africa already has a great deal of negative press, how could such pitfalls be avoided?
Mr. Stone replied that restructuring is the wrong response when confronted with problems. Rather, a key lesson to learn is the pro-active nature that the national authority can fulfil. No government in the world can compete with the private sector in respect to lawyers who are prosecutors on terms of salary. What should be highlighted and concentrated on are strengths in recruiting people to work in the NPA. Thus, one could stress that the NPA is an ideal place for young attorneys to "cut their teeth" or gain valuable experience before moving on to more sophisticated advocacy work. Furthermore, the NPA needs a pro-active role with the public and the police, and to make a common cause in the fight against crime.
The Chairperson thanked Mr. Stone for his very useful input and stated that he would pass a resolution to look at matters regarding implementation now, without waiting until the legislation is finalised, and that he would approach the Minister for the purposes of moving on this issue with urgency.
Submission by Mr. Langeveld SC – Attorney-General for Bisho
Mr. Langeveld read his submission.
Ms. Camerer (NP) asked whether State Advocates would slip into the role of Deputy Directors of Public Prosecutions. Mr. Langeveld replied that a present Deputy A-G will become a Deputy DPP. He added that both senior and junior state advocates will be known as prosecutors, and some regard this as a potential demotion.
The Chairperson stated that one must start looking at performance to enhance and create a more professional service. Mr. Langeveld agreed.
Mr. O’Malley (IFP) asked about the possibility of private contract lawyers being brought in to reduce case-load. Mr. Langeveld replied that as a matter of principle he did not wish to see this, but he also recognised the enormous practical problems faced by the prosecuting authority. He cited the position in his own department where there was only one advocate specialising in the area of commercial prosecution, and that this advocate was in court basically every day. He concluded by stating that this must and would be a policy decision made by the Department of Justice.
Submission by Mr. de Villiers – South African Human Rights Commission:
Mr. de Villiers read the Commission’s submission.
The Chairperson asked how the Commission viewed the NPA, as either an organ of State or as a sui-generis body. Mr. de Villiers replied that it was viewed as having a dual function, with political accountability being the main reason cited for retaining it within the control of the Minister of Justice. The NPA must also be independent and must have the perception of being politically unbiased.
Mr. Solomon (ANC) asked how independence could be ensured. Mr. de Villiers replied that this would be taken care of through the appointment process, and would work its way through into the policies of the National Director.
A point of contention arose between the Chair and Ms. Camerer regarding the essential nature of decisions to prosecute and decisions not to prosecute. The Chairperson stated that such decisions were all political since in the event of no legal base or insufficient evidence there could be no decision involved – no prosecution could ensue. Mrs. Camerer stated that if the NPA is a sui-generis arm of the executive, and the executive decides prosecution policy, there would be a severe risk of the National Director and his/her political boss sitting together to create policy. This would clearly be unsatisfactory. The Chairperson stated that the model to be adopted here placed sufficient distance between the NPA and the politicians, and that world trends had been followed.
Mr. de Villiers summed up by stating that the Commission wanted a mechanism to promote transparency and to prevent the appointment process being obviously political. If the JSC were involved in the appointment process, this would provide the necessary transparency.
The Chairperson adjourned the meeting to be reconvened on Friday 20th February at 9 a.m. in the Old Assembly Chamber.