Deliberations on National Prosecuting Authority Bill

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Justice and Correctional Services

09 March 1998
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PORTFOLIO COMMITTEE ON JUSTICE
10 March 1998
DELIBERATIONS ON NATIONAL PROSECUTING AUTHORITY BILL

The Committee continued going through NPA27, a summary of submissions made on the bill.

Clause 8 and 9

The Committee decided to leave discussion on appointment procedures and related matters until Chairperson de Lange is present. (Mr Hofmeyr assumed the Chair).

Clause 10

NPA1: The principle is good, but the Prosecuting Authority cannot be obliged to publish every policy directive.

NPA3: The National Director will deal with cross-border cases (e.g. drugs and gangs). It would be cumbersome to insist on consultation in such instances. Furthermore, it would not be desirable to make consultation a legal requirement as it could lead to the withdrawal of a prosecution for not being technically legal. This is contrary to the desire to ensure that offenders are punished.

NPA12: The Committee disagreed with the suggestion.

NPA14: Clause 10(1)(a)(iii) - The Committee agreed with the suggestion.
Clause 10(1)(k) – The Committee agreed to look into the suggestion.
Clause 10(1)(l) – The Committee agreed that this sub-section should be discarded.

NPA19: The Committee has no problem with the broad principles of the submission, but it asked why there is a need to go into so much detail in the bill? The Minister can prescribe what he wants to, and besides, there will be parliamentary oversight anyway.

General discussion: Clause 10(1)(a): Should "in terms of this Act" be inserted? This will be examined and discussed later.
Clause 10(1)(e) : "members" - what does this mean? This should be rephrased.

Clause 11

NPA2: The Chair cannot see why Parliament would do this.
There is a need for clarity on which words to use (at line 20, Clause 11) - in the interests of the "administration of justice" or "justice"? Debate should focus on the extent of each.

NPA3: This should be determined in practice, but the Committee must think about it due to the greater role of prosecutors in the future.

NPA12 & 14: There is a need to consider whether "for the purposes of criminal prosecution" implies criminal and civil.

It was decided that the Department can probably omit sub-section(3) because this is covered elsewhere - (section 10(1)(b)).

Clause 14

NPA12: This is an option to consider.

NPA14: This is dealt with under clause 15(7)(a).

NPA14a: Deputy Directors are part of the public service. There is a need for substantive discussion on de-linkage, and a need to push the issue. It is generally felt that all concerned parties are in favour of de-linking.

Clause 15

NPA3: The Committee agrees that clause 2(c) is too wide, and therefore it must focus on a way to solve the problem.

NPA14: sub-clause 6: A sound point.
sub-clause 2(b) - The Committee agrees with the suggestion.
sub-clause 2( c)(ii)(bb) - The Committee agrees with the suggestion.
sub-clause 3 - The Committee agrees with the suggestion.
sub-clause 4 - There is a need to redraft this sub-clause, because the National Director needs to know general guidelines issued by the Directors.

General discussion: The DPP should not give instructions to the Auditor-General, Public Protector, etc.. There is a need for the possibility of a process of consultation, and so the Committee and the Department must look at the way this situation was dealt with in the Public Protector Act.

NPA16: The Committee recognises the concerns raised in this submission, and that there needs to be a line of command. Hence, the Department will look at the whole of this clause, together with other guiding legislation, and draft it anew.

Clause 16

NPA6: The Committee accepts sub-clause(5) as an option to consider.

NPA14: Concerning clauses 16(1)a, b and c in the bill, the Department must harmonise these clauses (re. institute, conduct, appeal).
16(1)(b) (ii) – The Committee agrees with the comment made.
16(2) – The Committee agrees with the first comment on language usage.
Regarding the second comment on this clause, there is a need for "agent appointment" from the Magistrates’ Bench – [viz. rural scenario where the only prosecutor is ill]. At present, the proposal is too restrictive. (It was suggested that if magistrates are not to be used, one could prescribe the use of the senior prosecutor in the area). The Department was asked to look more closely at the law because there is a conceptual problem if one attempts to separate the magistrates and the prosecuting authority.

NPA16: 16(1)a - This is a valid concern. The Department will re-draft the sub-clause taking this into consideration.
Clause 16(1)b - This point should apply also to (a) and (c). There is a need to clarify the issue – i.e. perhaps by the inclusion of "and/or".

Clause 17

NPA16: It was felt that this clause could be left as it presently stands. There was some talk of removing clause 17(d), but this issue shall be examined further.

Clause 18

NPA7: The ANC was reluctant to take ‘term-appointments’ as wide as they have been envisaged in the bill, however, where they will go with such ‘term-appointments’ (and the boundaries have yet to be drawn) there is a need for a special dispensation, i.e. in line with dispensations applying to Directors-General. The Department will draft something on these lines.

NPA9: Sub-clause(4) would go some way to addressing the situation and concerns raised in NPA7. The suggestion raised for subclause1, in relation to a central bargaining chamber, can only be discussed when there is consensus as to the limits and function of a professional prosecuting authority.

NPA12: The Committee does not want a situation where salaries are bargained for, and therefore it is suggested that the salary level should be "equal to"…followed by the level at which the salary shall be pinned. However, this issue will be discussed further once information relating to said salary levels is available.

NPA14a: This needn’t be discussed at this moment as it deals with de-linking.

NPA19: There is a problem not raised here regarding fringe benefits. The concept itself is acceptable, except there may be occasion when there is a general scheme to reduce such levels of benefit, etc., within the civil service. In such instances, it would be necessary to reduce those of the prosecuting authority as well. There is a need to look further at the wording of the bill in order to make this explicit. It was stated by the Chair that the salary of the prosecuting authority is not as sacrosanct as that of the judiciary.

NPA22: If salaries are to be linked, there is a need to first examine the full salary scale.

Clause 19

NPA9: Serious work needs to be done into this area. The Department will examine the proposals closely. It was expressed that this decision should be taken by the executive and that it should bear responsibility for its decision.

NPA14a: This depends on de-linking, and cannot be discussed until such decision has been made.

NPA22: This comment is in relation to salary linkage, and has already been discussed.

Clause 20

NPA9: No comment was made on this proposal.

Clause 21

NPA2: In principle the Committee agrees with this proposal. It will examine the question further.

NPA12: This suggestion will be taken under consideration. The Constitution spells out what ‘co-ordinate’ means in terms of policy guidelines, but there is a need to have clarity here in order to harmonise. There is agreement that something must be done to this clause.

Clause 22

NPA14: There is general agreement with the submission.

Clause 25

NPA3: There is a need to cater for both options (i.e. that in the bill and the submission), therefore the clause must be broad enough. The Department will examine this further.

The meeting adjourned.

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