Public submissions and deliberations on the National Prosecuting Authority Bill

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Justice and Correctional Services

19 February 1998
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JUSTICE PORTFOLIO COMMITTEE

JUSTICE PORTFOLIO COMMITTEE
20 FEBRUARY 1998
PUBLIC SUBMISSIONS AND DELIBERATIONS ON THE NATIONAL PROSECUTING AUTHORITY BILL


Relevant Documents:
Attorney-General: Transvaal
Attorney-General: Witwatersrand
Attorney-General: Eastern Cape
Attorney-General: Transkei
Attorney-General: Mmabatho
Attorney-General: Bisho
Amnesty International
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
Vera Institute

Submission by Mr. Kahn SC – Attorney-General for Western Cape

Mr. Kahn stated that his initial opposition to the Bill was that it might lead to political interference in the prosecutorial arm. If the National Director and Directors were eligible for re-appointment, they could be perceived to be lackeys of their political masters. This could place Directors in impossible positions when the time for re-appointment drew near, and could cloud decisions to prosecute. Accordingly, both the ND and DPPs should only have a single term, and should be appointed for a duration left open to the discretion of the President.

Mr. Kahn stated that it had previously been canvassed that the Judicial Service Commission be involved in the selection of future Directors and National Director, but he added that he had a problem with this. It was never envisaged in the Constitution that the JSC should have this role. The JSC is only intended to be used for the appointment of judges. The intention is that the President must appoint, perhaps with the consultation of the Minister of Justice.

Mr. Kahn finally added that he believed that there must be stronger legal qualifications for the office of National Director, otherwise the situation may arise where a Director would be subject to legal advice and direction from a National Director who possessed less legal experience etc.

The Chairperson raised the issue of de-linkage from the public service. Mr. Khan replied that he felt very strongly that the prosecution authority should be de-linked. He stated that prosecutors do not belong in the public service, but rather enjoy a sui-generis position.

The Chairperson raised the benefit currently held by Directors-General whereby they are deemed to have served two seven year terms in respect of pension rights although they have only served a single term (the Commissioner of Police was cited). Mr. Kahn was of the opinion that the same benefits should be available to the new Directors and National Director as are available to Directors-General.

Ms. Jana (ANC) asked for further explanation on the submission that the ND be as qualified as the DPPs. Mr. Kahn outlined the arguments again and added that in light of the past, the President should have some measure of discretion. Hence there is a need for a "reasonable qualification" since some applicants will not have been in the government service for more than ten years. Mr. Kahn suggested underpinning a minimum – of between eight to ten years.

Mr Gibson (DP) asked Mr. Kahn to clarify the issue of an "indeterminate" term in his submission. Mr. Kahn replied that the term was a single, non-renewable term which would be determined by the President and the candidate. In addition, the 65-year retirement age and single term would remove patronage and would ensure that no candidate would lean towards the President for favour, and the grant of a second term would amount to such favour. If an incumbent is to be removed, it shall be by way of the prescribed means, for example for misconduct or failure to carry out duties.

Mr. Hofmeyr (ANC) asked whether Mr. Kahn shared the worries voiced by other Attorneys-General relating to the power and functions applying to Deputy DPPs. At present, Deputy A-Gs are subject to the directions and control of the Attorneys-General, but the Bill omits the word "control" which could lead to future problems. Mr. Kahn stated that although there were isolated instances of Deputies not understanding the chain of command, this problem was not serious. Accordingly, he was not overly worried about the omission.

Mr. O’Malley (IFP) asked Mr. Kahn about the powers of the ND in relation to decisions to prosecute or not to prosecute. Mr. Kahn replied that there existed natural checks and balances where differences arose between the National Director and Directors. The ND would never order a Director to prosecute where the Director had decided not to, unless such a decision was a gross miscarriage of justice, and where the ND decides not to prosecute where the Director has so decided, there shall still exist the press, public, committee censure and other forms of dissent.

Submission by Mr. Swanepoel – OSEO

Written submission: NPA 3a

Mr. Swanepoel read his submission.

The Chairperson asked Mr. Swanepoel his views on the de-linking of the prosecution service. He was also of the opinion that the service should be de-linked, and was pleased to see that in respect of salaries this had been achieved in the Bill. Mr. Swanepoel was of the opinion that de-linking would improve the salary lot of prosecutors who were easiliy lost to the private sector due to their financial expertise.

Mr. Hofmeyr (ANC) stated that the Bill did not attempt to sort out where OSEO fitted in. He felt that OSEO should also be dealt with in the same legislation establishing the office of National Director.
[The Chairperson drew attention to clause 11 of the Bill]
Mr. Swanepoel replied that OSEO employees enjoyed doing advocacy work and other work of a similar nature, and were therefore keen to remain part of the prosecuting authority. This also had the added bonus of making this line of work attractive to different people.

Submission by Ms. Proudlock – Human Rights Committee:

Written submission: NPA 19

Ms. Proudlock read experts from the Human Rights Committee’s submission.

The Chairperson asked if Ms. Proudlock knew of any other jurisdictions in the world where the prosecuting authority fell under the judicial arm of government and not the executive.

Ms Proudlock listed various factors which point to the prosecuting authority being classified as quasi-judicial or sui generis functionary. These included:

The prosecuting authority is located in the Constitution under the chapter which deals with the courts and administration of justice, and not the chapter on the executive.

The Panel of Experts commissioned to do research during the Constitution drafting process made the following finding: " Historical and comparative evidence and an analysis of the duties of a prosecutorial authority suggest that the nature of this office is neither a purelu executive nor a purely judicial nature, but rather quasi-judicial or sui generis."

The recent Namibian case handed out to the committee found that the funcyions of the prosecutor gneral are quasi-judicial in nature.

The Criminal Procedure Act has numerous references to the prosecutor as an "officer of the court". And the functions which prosecutors have to perform are often judicial in nature, eg plea bargaining and withdrawal of charges.

The Chairperson said that his question had not been answered. What he wanted to know was wether there was any country in the world where the prosecuting authority did not fall under the executive branch of government.

Ms. Proudlock replied that she could not answer this specific question at present, but that she would do further research and submit it to the Portfolio Committee by the end of the following week.

Mr. Green (ACDP) asked if he could please have full copy of the submission as his copy was incomplete. He asked about the question of the prosecuting authority’s accountability to parliamnt and how this effected the concept of the separation of powers.

Ms Proudlock answered that ensuring that the prosecuting authority was accountable to Parliament does not offend the principle of separation of powers, but is in line with ensuring that there are checks and balances on the powers of the various arms of government.

Ms. Jana (ANC) raised a question about the criteria for appointment of the National Director, specifically the HRC’s recommendation that the "absence of a high party political profile" be included as a criteria. Ms. Proudlock clarified the position that the Human Rights Committee advocated in that appointees to the post of National Director should not have a high party political profiles, however in the event of them having one the bill should specify that they vacate such position/office.

Mr. Landers (ANC) asked whether what was being advocated was merely establishing a glorified accountant in the Minister of Justice, as the Minister would only be responsible for accounting to parliament for the money spent by the National Director.

Ms. Proudlock read to the Committee from a document listing other powers and functions given to the Minister of Justice by the Constitution and the bill which went a long way to establishing that the Minister is not a glorified accountant but in fact was adequately equipped to fulfill his constitutional mandate.

The Chairperson asked for a copy of the document to be made available to the Committee for he believed that it would be of great assistance.

Mr. Hofmeyr (ANC) stated that he had some problems with the Human Rights Committee’s proposals in relation to appointment mechanisms. One cannot rely so easily on the example of the TRC since the legislation gave the power to the President to set up the Commission, and by his own initiative he decided to have a more inclusive process. Mr. Hofmeyr added that he envisaged a Constitutional problem. If Parliament had been given the power to appoint the National Director, it could limit its own power by a more inclusive appointment process. Yet how can Parliament on its own initiative limit the power enjoyed by the President which derives from the Constitution? In traditional Western democracies it is an issue for the Head of Government to make such appointments.

Ms. Proudlock stated that it was her considered opinion that establishing an intermediary appointment mechanism would not limit the President’s power, specifically becaise he would not be obliged to follow the recommendation made by the body. There would be scope for deviation, particularly if a shortlist is recommended to the President.

There were more questions asked on the appointment process and Ms Proudlock stated that she stood by the argument that the use of a body to make recommndations to the President, would not limit the President’s constitutional power of formal appointment. She said she would do further research on the issue to substantiate the argument and report back to the Committee the following week.

The Chairperson thanked the Human Rights Committee for the time and extensive research put into their submission.

Submission by Mr. Downer – Society of State Advocates:

Written submission: NPA 22

Mr. Downer read his submission.

Mr. O’Malley (IFP) asked :
whether State Advocates were unhappy about all being known as prosecutors?
whether the Society of State Advocates was opposed to the idea of a National Director?
why prosecutors were to be appointed by the National Director and not by regional Directors within their own offices?

Mr. Downer replied:
that this was a question of sentiment rather than substance, and that ultimately it was irrelevant.
that initially the Society was opposed to a ND, but that it had moved forward with the democratic process (its views on the matter had previously been debated in the Justice Portfolio Committee) and was attempting to work with the concept.
that the Chairperson’s earlier comment that fiscal control be placed at a high level was valid, and that not only did it fit in hierarchically well (President appoints ND, Minister appoints Directors, ND appoints prosecutors) but that this would undoubtedly involve input from the regional DPPs as to needs and suitability.

Mr. Hofmeyr (ANC) stated that the Minister and the Portfolio Committee were committed to the process of de-linking the prosecution authority from the civil service. He acknowledged that the Bill was to some extents a compromise, and that there was a need for a greater mechanism of fiscal control with the establishment of the NPA. At present the Bill only addresses salaries.

Mr. Downer replied that the de-linking of salaries from the civil service was such an achievement that the Society did not wish to "rock the boat" or create any further delay by arguing for greater de-linkage. However, ideally they would like to see the process go further, especially to the real issue involved, namely conditions of service.

Mr. Green (ACDP) asked whether the proposal in clause 8 of the submission was too restrictive in that it would affect those disadvantaged from the past regime.

Mr. Downer replied that the wording for their submission had come directly from clause 12(1) of the Bill. He stated further that there was a question of balance – the need to be sensitive to those affected by the past who wished to be considered as applicants, and the desire for professional expertise and competence. Mr. Downer concluded by stating that he did not wish to see the situation where the ND was less qualified than the Directors.

The Chairperson highlighted that the Office of the ND was a bit top-heavy, and that Directors in the office were intended to act as prosecutors as well. However, no Deputy DPPs were envisaged in that office, nor was there provision for a Deputy National Director. This was a concern.

Mr. Downer agreed with the concerns raised by the Chairperson, and stated that it would be a good idea to have a Deputy ND.

Submission by Mr. van Rensburg – Public Servants Association:

Written submission: NPA 9

Mr. van Rensburg read his submission.

Mr. Hofmeyr (ANC) asked Mr. van Rensburg to clarify his position on contractual appointments, which he understood as being advocated for the purposes of greater independence. There was some conceptual difficulty since the Bill did not deal with appointment mechanisms in terms of contractual employment.

Mr. van Rensburg stated that the terms of employment should be changed to take account of the desire to have contractual appointments.

Mr. Hofmeyr continued by referring to the PSA’s idea of a Collective Bargaining Chamber. He stated that this was the contrary to Mr. Downer’s representation that there should not be such a chamber debating the salary of the ND and Directors. The legislation sets up the office and states clearly that the salary of the ND should not be less than a judge, and the salary of the Directors is linked to that. This is clearly an attempt to remove the setting of such salaries from the "hurly-burly" of collective bargaining.

Mr. van Rensburg merely replied that the linkage of the salary issue to a collective bargaining chamber was a maximum position. [He further made reference to s.210 of the Labour Relations Act]

Mr. van Rensburg shed further light on the application of pension rights and accruements as highlighted in the PSA submission.

Returning to the issue of salaries, Mr. Hofmeyr (ANC) stated that Mr. van Rensburg was acting as though the prosecutors were being removed from the civil service as well, despite this not being the case. What the Bill merely does is to remove their salaries from the civil service, and to allow the Minister to determine these separately without recourse to a bargaining chamber.

Mr. van Rensburg answered that this is what the PSA objected to, since it amounted to other people bargaining on their behalf.

The Chairperson closed the meeting and thanked everyone who had taken time to make submissions, both oral and written. He stated that many essential points had been raised during the week, points which in some instances, had never been raised before.

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