National Prosecuting Authority Bill [B113-97]: deliberations

Meeting report

JUSTICE PORTFOLIO COMMITTEE
26 May 1998
NATIONAL PROSECUTING AUTHORITY BILL [B113-97]: DELIBERATIONS

Documents handed out:
National Prosecuting Authority Bill – sixth draft (NPA 31)

The Chairperson, Mr Hofmeyr (ANC) said the National Assembly debate date for the Bill is Thursday 4 June. The Bill should be finalised by the committee by Monday 1 June. The committee would thus be sitting the whole week, mornings and afternoons.

The legal advisor, Mr Johan De Lange, went through the sixth draft indicating changes. New wording is underlined, while wording which has been removed is in bold and in brackets. He said that the sections dealing with transitional arrangements and parliamentary accountability are still in draft form.

Areas where the committee needed further clarification were discussed and contentious issues were flagged for later discussion.

Chapter 1
Definitions

The following definitions have been added:
National Office
Special Investigating and Prosecutions Unit
Unit Director

Chapter 2 - Structure and Composition of National Prosecuting Authority
Section 2 – Single National Prosecuting authority
Subsections (2) – (4) have been transplanted to other sections

Section 3 - Structure of prosecuting authority
This is a new section, "Sub-section (c ) is specifically to cater for "roving" Directors

Section 5 – National Office
The section now makes provision for 3 Deputy National Directors and 3 Unit Directors in the National Office
Sub-section (2) (e) elicited some discussion from the committee due to the use of the word "supervise". This issue was flagged for later discussion.

Section 6 – Offices of prosecuting authority at seats of High Courts
It was noted that there was no need to specify "and the Witwatersrand Local Division of the High Court" because the genus "High Court" covers all High Courts, be they provincial or local divisions.
Each Office shall be head by a Director or a deputy director under the supervision of a director.

Section 7 – Special Investigating and Prosecutions Units
De Lange said that these new provisions were modeled on the OSEO Act (Office for Serious Economic Offences) provisions. Hofmeyr (Chairperson) mentioned that the idea is to have three special Units; one for the existing OSEO, one for Organised Crime and another for say example Priority Crimes. Each Unit will be under the control of a Deputy National Director and a Director.

Ms Chohan-Khota (ANC) asked for clarity on 7(3) – Does the reference to "Director" refer to a Director under 3(c )? The question was then asked whether section 7 should specify that the Director is a Unit Director.
Mr De Lange (advisor) said that he wanted to avoid creating a perception that Unit Directors were on another level (ie more senior) to normal provincial directors. However, it would be possible for clarity sake to refer to him/her as a Unit Director in 7(3).

Mr Hofmeyr (Chair) said that the whole issue of names should be flagged for thinking about. The term "Unit Director" is rather bureaucratic and not "sexy" enough. Furthermore, the Unit Directors will be situated in the National Office under the control of the National Director – it is thus a bit awkward to say that they are operating under a Deputy National Director. The words "subject to the control of a Deputy National Director" are problematic. This was flagged for later discussion.

Some discussion on names and terminology ensued at the end of which the legal advisor asked the committee to make its decision as timeously as possible as name changes involved a lot of re-drafting. He then referred the committee to section 13 which makes provision for the President, after consultation with the National Director, to appoint a Director to head each Special Unit. There is also further provision for the President to appoint one or more other Directors to perform certain defined functions.

Chapter 3 – Appointment, remuneration and conditions of service of members of the prosecuting authority.
Section 9 is a new section. It provides that "[t]he need for the prosecuting authority to reflect broadly the racial and gender composition of South Africa must be considered when members of the prosecuting authority are appointed." This section is the same as the one in the Constitution for judicial appointments.

Section 10 – Appointment of National Director
Procedure: The ANC indicated that they want to keep section as tabled, ie leave the power to appoint in the hands of the president. The other options which include the use of the JSC or a selection panel, were not discussed, however there did not appear to be a final decision made.

Qualifications: The draft lists three options. There was some discussion around whether or not to restrict the post of National Director to SA citizens. There appeared to be general agreement that they should do for the National Director, but not for the Directors. The ANC indicated that they would probably go with option 2 which provides that; the National Director must be a SA citizen; must possess legal qualifications that would entitle him/her to practise in all courts in SA; and by virtue of his or her experience, conscientiousness and integrity, be a fit and proper person to be entrusted with the responsibilities of the office of National Director.

Section 12 – Term of office of the National Director
The chairperson referred the committee to the option clause and indicated that all parties seemed to be in agreement that the National Director should be appointed for 10 or 12 years without the option of renewal. The tabled bill said that the National Director would be appointed for a term determined by the President with an upper limit of 7 years. Directors will stay in office until they reach the age of 65.

Grounds for removal from office
Some committee members wished to insert as a ground for removal, insolvency and the conviction of a crime without the option of a fine.
Ms Camerer(NP) indicated that the National Party would also like to see the "no criminal record" provision under the qualifications section. De Lange (legal advisor) indicated that the three grounds specified in the Bill were imported directly from the Constitution under the section dealing with removal of judges. The Chair requested De Lange to investigate the incorporation of these further grounds for dismissal.

Section 13 – Appointment of Directors
Ms Chohan-Khota (ANC) asked whether it would be more advisable to make the National Director and Director’s terms of office coincide.
Mr Hofmeyr (ANC) said that the ANC was in favour of no set terms for the Directors, but appointment until 65 years of age.

Section 16 – Appointment of Prosecutors
A question was raised as to who the employer of prosecutors will be? The answer given was the Justice Department, but subject to the laws governing the public service.
The Attorney Generals have been heard to complain that they are given the power to withdraw a delegation to a prosecutor, but they have no say in appointments. The new amendment will give them a say in appointments because it provides that prosecutors shall be appointed on recommendation of the National Director or a member of the prosecuting authority designated for that purpose (ie a Director). The chairperson asked De Lange to check this amendment with the Minister and the Public Service Commission.

Section 17 – Conditions of Service of National Director, Deputies and Directors
De Lange brought to the committee’s attention an amendment which decreased the salaries. The National Director shall no longer receive a salary on a par with a judge of the Supreme Court of Appeal, but on a par with a judge of the High Court. High Court judges receive about R374 000 per year. The Chairperson asked Mr De Lange to find out what the salaries of Director Generals were and to indicate what the effect of this Bill will be on the Attorney General's present salaries.

Mr De Lange said that the Attorney Generals receive about R265 383/year at present. The Directors will receive in the region of R293 000/year under this Bill. This means that there will be a substantial increase in the present salaries.

The National Party asked why the National Assembly debate date for the Bill had been changed from the 8^th to the 4^th of June. The Chairperson said that the change was made in order to try and get the Bill to the NCOP by the 10^th to give the NCOP time to consult around the Bill and to pass the Bill by the end of this session. The NCOP justice committee members were invited to attend this week’s deliberations, but they are in the provinces this week.