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PORTFOLIO COMMITTEE ON JUSTICE
11 March 1998
DELIBERATIONS ON NATIONAL PROSECUTING AUTHORITY BILL
Documents handed out:
The meeting was a continuation of the two previous meetings held on Monday and Tuesday. The committee discussed the clauses in the bill dealing with appointment and terms of office, in relation to the submissions made on these clauses.
There are three viewpoints from the submissions made on clause 8 which deals with the appointment of the National Director of Public Prosecutions (NDPP). The Constitution says that the President makes the appointment. However, should the bill prescribe a procedure for the appointment, should there be a term of office and what should the requisite qualifications be?
Concerning procedure, Mr Hofmeyr (ANC) said that Parliament should not set up a committee to prescribed to the President or to limit his choice. The President should be able to consult and the procedure has to be constitutional. It is an Executive privilege to appoint the heads of Prosecution Services in other parts of the world.
Ms Camerer (NP) said that there should be a transparent appointment procedure otherwise the appointee might be seen as a puppet of the ruling party. There should be a committee that proposes a possible candidate, which the President could decline if he so chooses.
The Chairperson commented that the idea was understandable, but was it constitutional?
Ms Camerer responded that the use of a transparent process did not necessarily pose a constitutional problem.
The Chairperson stressed that the prosecuting authority system prescribed in the bill ensured the independence of the prosecuting authority. He particularly stressed the fact that the appointee would be removed one step away from the Executive and would not sit on cabinet, like the United States system.
Mr O' Malley (IFP) commented that an intermediate body that proposes a candidate would not be unconstitutional. The Chairperson said that in the constitution there are three ways of appointments and the submissions made did not convince him that if the committee proposes a process, it would be constitutional.
The committee would then put forward four options for consideration:
1) the current one proposed in the bill
2) the view of Ms Camerer and Mr O' Malley where a committee would put forward a list of names to the President and he can choose whether to use the list or not.
3) the Judicial Service Commission or this committee put forward names and the President is bound by it.
4) a list of names is put forward and the President chooses from it.
Regarding qualifications, Ms Camerer felt that there was a need for some objective measure. Mr Hofmeyr said that the ANC was happy with the current clause. They also agreed with the Namibian clause. He commented that the words "fit and proper" do have meaning in South African law.
The Chairperson said that there were four options for qualifications:
1) leave it as is in the bill
2) something similar to the Namibian example
3) something similar to judges
something similar to directors of public prosecutions
The IFP indicated that they wanted the same criteria as prescribed for the directors, but with fifteen years experience. Ms Camerer said the number of years should not matter.
The committee then focussed on tenure. Should there be a term of office with the option of renewal or should there be no term of office, that is, they would be appointed until retirement?
Mr Hofmeyr informed the committee that the ANC did not have a final view yet. International experience of a fixed term shows that current appointee should not be there when next administration is put into place. Whether the term should be renewable or not, there were good and not so good arguments. He said, unlike the IFP, the ANC did not have a problem with the President making the appointment on fixed terms.
Ms Camerer said that the NP did not have a problem with the President determining the fixed term of office as long as there was a limit on the term. The NP did have a problem with renewability. If the committee was going to endorse this idea, then she suggested it be shortened, to make it the same as the term of two governments. She didn't want it to be fourteen years, rather a maximum of ten years and the President should not be able to extend the period if the person is over 65 years old.
Mr O' Malley said the IFP was opposed to the ad hoc extension and to the President determining the term.
Mr Hofmeyr said that the person should not forced to retire at 65 years. It was a waste of resources and career paths often only reach that stage when the person is approximately 60 years of age.
The Chairperson summed up the options regarding tenure:
1) one term - either ten or twelve years
what existed in the bill (one term, the length being in the President’s discretion subject to a maximum of 7 years, and an option of renewal)
3) add to bill with a limit on renewability (not longer than ten years) and no renewal for appointees once they reach 65 years.
4) term must be fixed in bill (seven years) with only one renewable period. If the person is 65 years, there would be no option of renewal. If the period was renewed, then only for one period.
With regard to suspension, the Chairperson said that the committee should consider whether to have a hearing after the suspension or before it. The Department should include this when they make amendments as the grounds for a specific suspension or removal should be made public.
The committee then discussed the appointment of Directors, as there was nothing in the constitution regarding it. The Chairperson said the committee could look at two different processes for Directors; current and future. Under democracy people should be allowed to stay in a position until retirement, especially if they were previously marginalised. He said there were three issues:
1) procedure of appointment
3) term of office
Looking at appointment procedure, Ms Camerer asked whether the procedure should not be the same as for the National Director of Public Prosecutions. She suggested that the Judicial Service Commission could play a role in the appointment and the President could accept or reject the nominations and ask for advice.
Mr O' Malley felt the smaller role the Executive played, the better. The perception of independence and objectivity should be ensured.
Mr Hofmeyr said that the distinction was parallel to what was required in the long term and what was required presently. One cannot inform people currently in jobs that they must leave. The NP's suggestion that the Judicial Service Commission should review current Attorneys General was untenable and unconstitutional. The Directors should not be appointed with a more transparent process compared to the National Director.
The Chaiperson said the committee had the same options as before. The options included:
1) making the Judicial Service Commission the sole appointee
2)or the National Director of Public Prosecutions
3) or the President after consultation with the National Director of Public Prosecutions.
The committee went on to qualifications of the Director. Mr Hofmeyr felt that the qualifications should be the same as for the National Director of Public Prosecutions. Ms Camerer, on the other hand, suggested that the National Director of Public Prosecutions should be more senior. Mr O' Malley said the IFP felt the person should have experience of ten years.
Mr Mazizi (IFP) said there should be minimum standards and there was a problem with subsection 2(c) which says "in the opinion of the President". The Chairperson pointed out that it would depend on the option chosen.
Regarding the term of employment, the options were seven plus seven years or no set term of office. The Chairperson said that if the tenure was only seven years, then people wouldn't choose it as a career. He felt that fixed terms might be inhibiting. Appointees might, however, be lackeys of ruling party.
Ms Camerer added that fixed terms prevent problems when administrations change. The NP suggested a maximum of two terms of seven years each.
Mr O' Malley indicated that the tenure should be the same as for the National Director of Public Prosecutions. Renewal should occur only once and be subject to discussion. The difference is that the age of 65 for retirement is not specified in the bill for Directors as it does for the National Director of Public Prosecutions.
Mr Hofmeyr informed the committee that the ANC did not want fixed terms of office. He said there were problems with limiting tenure. An example would be judges who are appointed until retirement age. To force the best qualified persons out of the civil service would not be a good idea. At the level of the National Director of Public Prosecutions, there is an argument regarding fixed terms as the person will work closely with the Executive , a political position, unlike the Director's position. He said that forcing early retirement would be expensive, as special pensions need to be paid. Thus the options were:
1) no fixed term (with retirement date)
2) one term of seven years (with possible renewal)
3) IFP suggestion
For the next meeting the Department must look at present incumbents who fall under transitional arrangements. The problems that exist there are pensions, tenure, contracts, etc.