National Prosecuting Authority Bill [B113-97]: deliberations

Meeting report

JUSTICE PORTFOLIO COMMITTEE
27 May 1998
NATIONAL PROSECUTING AUTHORITY BILL: DELIBERATIONS

Document handed out:
6th draft of National prosecuting Authority Bill

The committee continued going through the sixth draft of the Bill. The legal advisor/drafter, Johan De Lange, took the committee through the sixth draft indicating where changes have been made to the tabled bill. The committee discussed the changes and indicated to Mr De Lange where further changes needed to be made.

Clause 21 - Prosecution Policy and issuing of policy directives
Prosecution policy will not be tabled in Parliament as soon as determined, but later in the National Director’s annual report to Parliament. However, the first prosecution policy under this Bill must be tabled within three months after the appointment of the National Director.

Mr Hofmeyr (chairperson) (ANC) expressed concern at the time limit of three months as it is likely that the Prosecuting Authority will be busy with making appointments. He proposed that it be specified that the prosecution policy should be tabled as soon as possible, but not later than 6 months after appointment of the National Director.

Clause 22 - Powers, duties and functions of National Director
This clause makes it clear that the National Director is head of the Prosecuting Authority. The National Director’s powers are listed simply by repeating the powers listed in section 179 of the Constitution.

The wording in sub-clause (1) is not clear. Mr De Lange said that the intention of (1) is to say that the National Director is the head of the Prosecuting Authority to the extent set out in this Act.

Mr Gibson (DP) said that the Democratic Party wished to note an objection to clause 22 (2) (c ), which states that the National Director has the power to review a decision to prosecute.

Mr Hofmeyr (ANC) replied that the clause simply repeats the wording of the Constitution.

Mr Gibson (DP) said that he still disagreed with it, particularly allowing the National Director to overturn a prosecutor’s decision to prosecute.

Mr Hofmeyr (ANC) replied that the National Director needs to have the power to overturn decisions to prosecute, for the sake of "national interest".

Sub-clause (6)
Mr Hofmeyr (ANC) expressed doubt as to whether it was necessary for the National Director to have to consult with his/her deputies on the drafting of a Code of Conduct for members of the Prosecuting Authority.

Mr De Lange (legal advisor) pointed out that the words "after consultation" ensure that one deputy who disagrees cannot hold up the process.

Mr Gibson (DP) said that to remove the reference to deputies from the clause would further centralise the Bill and that his constituency were not in favour of such centralization.

Mr Hofmeyr (ANC) replied that at present there is no Code of Conduct and that he felt that it would be problematic for the National Director to have to work in consultation with his deputies.

Mr Gibson (DP) pointed out that the subject of discussion was a Code of Conduct - which is something which there should be wide consultation on.

Mr Hofmeyr (ANC) still felt that they should take out Deputies.

Ms Ngwane (ANC) disagreed. She said that the wording was such that one renegade deputy could not hold the process up. The National Director needs to consult as widely as possible, especially because each Director is running their own "homelands".

Sub-clause 5
The same queries were raised around how widely the National Director should have to consult around the setting up of a complaints structure. The wording used is "in consultation with" the Deputies and the Directors. However, all the National Director is doing is advising the Minister. The ultimate decision lies with the Minister. This was flagged for later discussion.

Clause 23 - Powers and functions of Deputy National Directors
This clause specifies that the National Director shall designate one Deputy to exercise responsibility over all the Special Investigating and Prosecutions Units.

Ms Ngwane (ANC) made a general statement about the sentences being too long in the Bill and asked whether the words "subject to the control and directions of the National Director" were necessary in sub-clause (1).

Ms Jana (ANC) said that the Bill needs to make it clear that the National Director is in control.

Mr Hofmeyr (ANC) said he was worried that the words "shall assist the National Director" were not sufficient.

Mr Gibson(DP) asked whether clause 23 was necessary at all.

Mr Hofmeyr (ANC) said that the National Director was empowered to authorise his deputies to perform any of his powers, functions or duties.

Ms Chohan-Khota (ANC) said that the National Director can delegate to his deputies, but can the deputies delegate further?

Mr Hofmeyr (ANC) said that they could not, unless it is specified in the Bill.

Clause 24 - Powers, duties and functions of Deputy National Directors

Sub-clause (2)
A discussion on Unit Directors and Special Units ensued. Besides Unit Directors, there will also be "roving" Directors. There is currently one "roving Attorney-General". At present there is one Special Unit; OSEO (Office for Serious Economic Offences).

Clause 25 - Powers, duties and functions of prosecutors
Mr Hofmeyr (ANC) indicated that under the tabled bill, prosecutors would have been subject to all and sundry. The amendment ensures that control over prosecutors is restricted to their immediate "bosses" - the Directors.

Chapter 6 - Delegation by Director and appointment of prosecutors
This chapter has been deleted.

Chapter 5 - Powers, duties and functions relating to Special Investigating and Prosecutions Units

The OSEO Act has been transplanted into this Bill.

The chapter starts off with a definitions clause which defines "inquiry", "unit" and "specified offence".

There was a discussion on terminology and it was decided that there was a need for further discussion on suitable names for Unit Directors and roving directors.

The committee adjourned for tea. The afternoon session was not monitored.