National Prosecuting Authority Bill [B113-97]: deliberations

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Justice and Correctional Services

17 March 1998
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JUSTICE PORTFOLIO COMMITTEE
18 March 1998
NATIONAL PROSECUTING AUTHORITY BILL [B113-97]: DELIBERATIONS

The Chairperson (Mr de Lange, ANC) began by mentioning some aspects covered in the last meeting. He said that the committee had agreed that the provision of a seven year term with retrospective operation for present A-G’s would probably be unconstitutional and that it would be better to let them serve a term from the start of the operation of the act.

Mrs Camerer (NP) disagreed that there had been agreement on these issues saying that the A-G’s had a reasonable expectation of staying in their posts permanently. She was concerned that limiting their terms would be an unfair labour practice and would further demoralise the prosecuting authority.

The chair answered that the A-G’s had accepted in their submission that terms would be limited as long as provision would be made for pension arrangements (reflecting that they would have to retire from their positions before expected). He asked Mr de Lange (law advisor, Justice department) to include such a provision in the amendments.

Mr Hofmeyr (ANC) inquired whether the 65 year retirement age would apply.

Mr Gibson (DP) said that there should be an option to extend the age retirement age by two years if both parties agreed.

The Chair asked whether renewable terms should be allowed.

Mr Hofmeyr said the ANC did not yet have a position on this issue but his own view was that there should be an option to have no renewability, in which case terms should be longer.

Mrs Camerer said that dealing with the existing A-Gs and future appointees separately was discriminating against the former.

The Chair answered that this did not constitute discrimination and that Mrs Camerer had agreed to it previously.

Mr Gibson said there were difficulties with having different dispensations for old and new appointments.

The Chair answered that this had been done in other Acts before.

Mrs Camerer suggested that the existing A-G’s should be given the option of serving under the old act.

The Chair said that nobody wanted this but asked Mr de Lange (law advisor, Justice Department) to include this as an option in the amendments.

Mr de Lange Lange (law advisor, Justice Department) queried who will be regarded as present incumbents since some of the A-G’s for the former TBVC’s had been appointed under different legislation. This issue was briefly discussed. Provision would have to be made for this in the legislation.

The Chair called for discussion over issues raised by the delinking of the prosecuting authorities from the PSA. A special bargaining chamber would have to be created for prosecutors. Security for prosecutors could be provided for by making their salaries a fixed percentage of the A-Gs’ salaries.

Mr de Lange said his department was taking advice from their labour relations people on this. The Chair said it would be discussed after this advice was taken.

Mr Hofmeyr said that the prosecutors had not been consulted directly and had not given the PSA a mandate on the issue.

Mr de Lange said the department’s view was that there should not be positions that should be bargained which is why the proposal was for a fixed percentage salary.

The Chair asked what transitional arrangements would be needed until the national prosecuting office is set up.

Mr de Lange said that there would be a provision similar to that in the magistrates system but it had not yet been drafted.

The Chair brought up the issue of right of appearance in the High Court since senior prosecutors still had no right of appearance even though attorneys of three years’ experience did. There should also be a cut-off level of experience for senior prosecutors.

Mr Gibson asked whether this matter should not be dealt with in the Judicial Matters Bill.

The Chair didn’t think so but said that Mr de Lange Lange (law advisor, Justice Department) could make a suggestion.

With regard to S31 the Chair said that the department needed to make changes making sure there was no ambiguity because the areas of jurisdiction would differ compared to the existing legislation.

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