National Prosecuting Authority Bill [B113-97]: briefing

SELECT COMMITTEE ON SECURITY & JUSTICE
3 June 1998
NATIONAL PROSECUTING AUTHORITY BILL [B 113-97]: BRIEFING

SUMMARY
The committee was briefed on the National Prosecuting Authority Bill. The committee adjourned for 10 minutes to allow the chairperson to phone the Minister to draw his attention to the committee’s concerns regarding the fast-tracking of the Bill. The Minister implored the committee to assist him in addressing the prosecutor crisis by processing the bill as quickly as possible, citing the already lengthy duration of the Bill. The committee postponed the finalization of the bill until 12 June 1998.

DETAILED MINUTES
The Chairperson (Mr Mohseen Moosa) said that today’s meeting was an urgent meeting which was called in order to give attention to the National Prosecuting Authority Bill. Although the bill is not yet formerly before the NCOP, the Minister has approached the chairperson and asked him to urgently dispose of the bill. The urgency is due to a need to address prosecutor’s concerns.

Members of the opposition parties expressed sympathy with the Minister wanting to salvage prosecutors, but questioned how the bill intended to do this.

Input was made by Mr De Lange (Legal Advisor - Department of Justice). He said that Section 179 of the Constitution provides for the establishment of a single National Prosecuting Authority. He stated further that the Bill does not de-link prosecutors from the Public Service, but only provides for a different salary dispensation. At present, prosecutors have to use the Central Bargaining Chamber to negotiate salary adjustments and it has proved very difficult for one sector to campaign for separate/preferential treatment.

The Chairperson asked whether the urgency was warranted. Mr De Lange answered in the affirmative. He said that drafting of the bill began in 1996 and the department gets calls on a daily basis from prosecutors, asking whether the bill has been finalised yet. The Public Service is due for another salary increase and prosecutors will be treated once again as normal civil servants. This will not be good for morale.

The Chairperson said that he wanted to assist the process and that he felt that the problem didn’t lie with the Minister, but with the National Assembly. He said that the National Assembly has taken too long with the bill and they are already on the 10^th draft.

Mr Selfe (DP) complained that the whole reason for having the NCOP is to allow provinces to make an input. The Foreign Military Assistance Bill was also rushed through the NCOP committee. People in his province are suspicious of the National Council of Provinces in that they feel that their views are not given serious consideration. There is a very real risk of undermining the relationship which NCOP members have built up in the provinces if the committee is given so little time to consider bills. He said that the problem lies with the NA committee unpacking legislation to the last comma. The NA should show some consideration and the NCOP committee should hold by its commitment to consider bills properly.

Mr Pienaar (IFP) raised concern about the financial de linking and asked where the money for salary increase would come from. Responding to that, Mr. De Lange said that the money comes out of the budget of the department of justice. The Department is not allowed to budget for salary increases until they have been authorised.

Advocate De Ville (FF) asked what the National Assembly has done to speed up the bill.

The Chairperson said that the NA had started deliberating last week and that their chairperson was out of the country so Mr Hofmeyr (ANC) had to be appointed as chair in the interim. The bill is set down to be debated in the NA on Tuesday and the NCOP on Thursday.

Mr De Lange said that he would be able to get a final draft of the bill to the committee by tomorrow.

The Chairperson informed him that the committee members would be going to the provinces tomorrow and Friday.

Adv De Ville (FF) objected to the explanation given as to why there was the need for urgency now. He said that these reasons have existed since 1996 and didn’t arise within the last two weeks. He said that this signaled disrespect from the NA to the NCOP and that the committee should not allow this to continue.

The African National Congress through Mr Surty confirmed the legitimacy of the concerns raised. He said they had tackled them in the joint whipery meeting. The problem has also been brought to the Speaker’s attention. The bill does to an extent effect the provinces, but the bill deals with a national justice issue, which is a national government competency. He said the Bill does not envisage an office in each province but only at the seat of each High Court. It seeks to consolidate an approach on prosecutions. However, he conceded that provinces were entitled to make an input.

Mr Surty suggested that the Minister’s attention should be drawn to the special difficulties facing the committee. He suggested that the committee adjourn for 10 minutes while the chairperson phones the Minister. Mr Surty further complained about what would be the position if an amendment to the Bill is necessary after it is finalized, and quoted as an example, the qualifications clause. The committee agreed to adjourn so as to give the Chairperson an opportunity to consult with the Minister and inform him of the committee’s difficulties.

The chairperson said that he had fought a lot in the past when the committee had been rushed, but that in this instance, there is a greater need at stake. If prosecutor’s salaries are changed twice there is likely to be adverse publicity and dissatisfaction. The morale of prosecutors is an important factor contributing to the conviction rate. He suggested that the committee should meet again on Monday and that they should get broad agreement from the NA that they will concur with any amendments suggested by the committee.

Mr Surty agreed with the chairperson’s concerns but thought that he should still phone the Minister. The rest of the committee supported Mr Surty’s view. The meeting adjourned to allow the chairperson to phone the Minister.

When the meeting resumed the Chairperson reported that the Ministers expressed sympathy with the committee’s concerns but stated that he needs to be equipped to address the prosecutor crisis now and implored the committee to assist him.

The Chairperson, Mr. Moosa, recommended that the committee would have to meet again on the Monday 8 June 1998, and if need be the committee would have to make amendments to the Bill.

Mr De Lange (legal advisor) proceeded to brief the committee on the bill.

Advocate De Ville of the Freedom Front Party asked if there was anything controversial in the Bill.
In response to that , Mr. De Lange, pointed out some problem areas of the Bill, namely: the qualifications clause, stating that there has been dispute as to Director's position being only open to South African citizens. Another area is clause 10 which deals with procedures for appointments with some people arguing that the Judicial Service Commission be involved in the appointment.
The counter argument is that that would be unconstitutional as the Constitution provides for appointment by the President. Other amendments which have been effected to the Bill: P19 Clause 25 Sub Clause 2 allows prosecutors to appear in the High Court but that has not yet been finalized. P26 Clause 35 deals with accountability to Parliament of the Prosecuting Authority. The National Director shall be appointed by the President for a period not exceeding 10 years. The Directors should stay in office beyond 65 years of age. The Deputy National Director's: not more than three will be appointed.

The Bill also envisages the creation of Investigating Directorates, including the Office for Serious Economic Offences. Chapter 5 is the repetition of powers given under the Office for Serious Economic Offences Act.

Mr. De Lange stated that each and every High Court will have a Director.

Mr. Pienaar asked what would then happen to Provinces without a High Court?

Mr. De Lange said that it would be made sure that every Province will have a High Court.

Mrs. Tyobeka Lieta proposed that the finalization of the Bill by the committee be postponed until Monday so as to allow sufficient time for consultation with the provinces. A consensus was reached on this point. The dates set for the next meetings, were Monday 8 June 1998 at 10h00 and Wednesday 12 June 1998 at 09h00.