National Prosecuting Authority Bill [B113-97]: deliberations

JUSTICE PORTFOLIO COMMITTEE
1 June 1998
DELIBERATIONS ON DRAFT 9 OF THE NATIONAL PROSECUTING AUTHORITY BILL [B113-97]

Documents handed out
National Prosecuting Authority Bill - Draft 9
Transitional Arrangements - Chapter 7

Mr de Lange (Law Advisor) took the committee through the material changes which had been made in Draft 9.

The committee appeared to be in agreement as far as the qualifications for National and Deputy National Directors, which are given in s9. A matter still outstanding is whether these positions should be held by South African citizens. It appears that South African citizenship will certainly be a prerequisite for the National Director.

The committee continued to clause 12(4); Mr Hofmeyr (Chair - ANC) suggesting that the provision should rather say that the term of office will not exceed 10-12 years, than referring to an age limit. The effect is the same.

Mr de Lange suggested that the words "in consultation with the Minister of Public Service" be included in s18(1). This was agreed.

Mr de Lange then pointed out that s22(iii) and (j) were repetitive and one of them should possibly be omitted. Mr Hofmeyr replied that (iii) related to matters of policy and spoke of advice, while (j) was far wider and referred to recommendations.

Mr Gibson (DP) asked whether there was a difference between justice as a whole and criminal justice. (iii) could be changed, he suggested to include all advice and recommendations on justice.

Mr van der Merwe (IFP) asked about the Human Rights Committee's submission in respect of s22(2)(c).

Mr Hofmeyr said that the clause could not be changed because it reflected the wording of the Constitution.

The words "in writing" have been removed from s11(8)(a).

Mr Gibson asked why postponement required a decision from the National
Director.

Mr de Lange replied that this authority would be delegated.

The committee then went on to discuss technical changes and questions of grammar.

Mr de Lange has inserted an optional s25(2), giving the National Director the power to grant a person competence to prosecute in the High Courts and Supreme Court of Appeal.

Mr Hofmeyr said he would prefer if this was more limited and gave the National Director the power to determine and specify which courts he was granting competence for.

Ms Camerer (NP) asked whether the intention of this option would be for the person to continue appearing indefinitely without proper qualifications, as this would all but abrogate the Right of Appearance in Courts Act.

Mr Hofmeyr replied that it would give the National Director a broad authority; but that it should be limited in terms of time and place The option would have the same effect as allowing attorneys with adequate experience to appear in the High Courts. Committee members were asked to consider the proposal before the next meeting.

On p21 of draft 9, the onus of proof on the defendant has been removed in sub(10)(a). Mr de Lange told the committee that the intention was not to create a reverse onus, as this would inevitably be challenged in the Constitutional Court In any event, the offence is so well defined that if the courts accept the states' case as proved, the onus of proof shifts to the defendant.

Mr Hofmeyr then asked Ms Camerer for her input on accountability to Parliament.
Ms Camerer replied that at present all the Bill refers to is a vague annual report to the Minister and not to Parliament. She said that one should not underestimate the pressure which is exerted on a person who is under political control and that therefore provision needed to be made for the National Director to account to Parliament for all interventions and reviews. Present legislation, she said, established the independence at the highest prosecuting authority. While this legislation went counter to that and undermined what the NP had achieved in this respect.

Mr Hofmeyr replied that the independence of the prosecuting authority had increased because of the Constitution In terms of s35(2) of the present legislation, Attorneys General already believe themselves to be responsible to Parliament. It is not fair or reasonable; Mr Hofmeyr continued., that every time a Provincial Director overturns the decision of a Public Prosecutor to prosecute, he/she should report on it; and likewise when the National Director overturns a decision of the Provincial Director. Not least because it would infringe on the privacy of parties to the prosecution Mr Hofmeyr said that controversial cases have a way of coming to light and when they do members could ask questions in Parliament.

Mr van der Merwe responded that surely it was not too much to require that a breakdown of the number of prosecutions which had been stopped should be given to Parliament. Furthermore the controversial cases are not necessarily the important cases and these might never be heard about.

Ms Camerer agreed that this would allow the National Director to decide which cases he would report on.

Mr Hofmeyr reiterated that currently an Attorney-General who overrides a decision of the Public Prosecutor at Wynberg doesn't have to report on the decision.

Ms Camerer replied that the new Bill would result in the appointment of a political appointee above the Provincial Directors, who would have the authority to intervene in prosecutions and to stifle their ability to question decisions made by him with which they were unhappy.

Mr Hofmeyr replied that the members would undoubtedly get to hear about cases where the Provincial Director was unhappy. To which Ms Camerer responded that this may be so if the case was taken on review, but not if it was quashed before getting to court.

Mr Hofmeyr pointed out that in most democratic countries politicians are able to stop prosecutions and that Ms Camerer was being "mischievous". The NP, he said, was welcome to draft such a provision, but it would not be accepted by the ANC.

Ms Camerer asked Mr de Lange to draft a provision whereby the National Director was compelled to report to Parliament and give reasons. where he had disagreed with a decision of a Provincial Director.

The committee then went on to consider Transitional Arrangements - Chapter 7, which contains bridging provisions.

In terms of s43(a) and (b), Prosecutors appointed under the 1992 act can be reappointed by the President, who will determine the term and place.

s43(d) contains protection of pension benefits here appointments are not renewed. This will amount to an additional term of 5 years being added to the service period.

Mr Hofmeyr asked that the matter of renewable terms be flagged. as he was under the impression that they wore trying to move away from automatic renewal.

Mr de Lange then went on to s43(2) which deals with the TBVC jurisdictions. He said that this provision would solve the problem in Bophutatswana, where the current Attorney-General has a higher status than other Attorney-Generals.

Mr Hofmeyr pointed out that there were two steps to the provision: the incumbent was first "deemed" and then "appointed." Therefore, when the Hoexter Commission said, for example. that the Bophutatswana Attorney-General is now the Provincial Director of the North-West, this would not amount to an automatic appointment.

Mr de Lange agreed but said that salaries are protected. In terms of conditions of service, the position remains unchanged.

Mr Hofmeyr asked whether there was not a loophole in the Constitution which allowed for the restructuring of the Justice sector. It was anomalous to pay the Bophutatswana Attorney-General more, unless the Constitution instructed so.

Mr van der Merwe asked why the National Director was given a term appointment and not the other directors.

Mr Hofmeyr responded that the Attorneys General had accepted the need to facilitate transformation. The previous suggestion of terms would have resulted in many leaving immediately.

Ms Camerer responded that in fact only 4 would retire within that period.

Mr Hofmeyr said that for example Jan Swanepoel has 18 years left to serve. Even if he were given a renewable term of 7 years, this would not be enough and it would be preferable if he served to retirement.

Ms Camerer asked what protection there was for those who would not retire within the next 4 years.

Mr Hofmeyr responded that all the Attorney Generals had agreed that. assuming the President did not appoint them to the age of 65, the concept of a 7-year term backdated to the start of their service period was acceptable. Pensions, he reminded the committee, are protected in terms of s43(d).

Ms Camerer then said that the NP could not agree to provisions which would be to the detriment of the Attorney Generals, most of whom would have to look for another job. She asked whether it was not possible to fax them the provisions for response

Mr Hofmeyr said that this had already been done and that the committee was awaiting responses.

Mr de Lange went on to point out an important change in s43(2), where "becomes" had been changed to "deemed". The latter gives more discretion, as it is possible to construe the former as giving an appointment, which just needs to be confirmed.

s43(5) will require all members of the prosecuting authority to take or affirm the oath of office.

s43(8) is a new provision and Mr de Lange said that he is still awaiting feedback on it. It is based on the submissions of the Public Servants Association. In terms of the provision, those members who are Public Servants will be included in the Bargaining Chamber process. This is necessary in terms of s37(4)(a) of the Labour Relations Act.

Mr Hofmeyr asked how quickly this provision would come into play, as salary increases are scheduled for the end of the month

Mr de Lange responded that in terms of s18(4) the provisions would all come
into effect as soon as practically possible after commencement of the Act. He did not foresee difficulties if the prosecutors salaries were increased as usual it was not a good idea, he said, to stall on the increases.

Mr Hofmeyr said that Prosecutors' Unions had been calling him, but that the
Department and the Minister needed to sort out the logistics. The Central
Bargaining Chamber increases would go ahead and thereafter there may be
a notice.

The meeting adjourned.