Scorpions Legislation: Proposed Amendments to the National Prosecution Authority Act

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
16 October 2000
SCORPIONS LEGISLATION: PROPOSED AMENDMENTS TO THE NATIONAL PROSECUTION AUTHORITY ACT

Chairperson: Mr JH De Lange

Drafter: Mr J De Lange of the Department of Justice

Relevant Documents:
Opinion by Chief State Law Adviser on Constitutionality of Directorate Of Special Operations Bill
Draft E: Proposed Amendments to the National Prosecuting Authority Act
[this draft is not available]
Draft F: Proposed Amendments to the National Prosecuting Authority Act
Draft C: Proposed Amendments to the National Prosecuting Authority Act

SUMMARY
The Committee considered amendments effected by the drafter following their proposals in the previous meeting. Members were satisfied with most of the provisions and directed minor alterations in some, with an eye to consistency and cohesion. The Chairperson requested the drafter to find out from the National Prosecuting Authority why the wanted a repetition of their provisions on powers of search and seizure under the disposal of items. He directed that after finalising the Bill the drafter should send copies to the Prosecuting Authority, the police and the National Intelligence Agency to let them know about the course covered so far. The constitutionality of the Bill was confirmed in a memo from the State Law Adviser.

MINUTES
Scorpions legislation
Draft E: Proposed Amendments to the National Prosecuting Authority Act
Clause 1 Definitions
The Committee was satisfied with all the definitions. The Chairperson noted there was still one definition to sort out at clause 26, "specified offence".

Clause 7 Investigating Directorates
The Chairperson noted that this is the "jurisdiction clause" and thus the most important part of the Bill.

The Committee agreed to change the order of clause 7(1)(a)(ii) and (iii) so that "gather, keep and analyse information" precedes "where appropriate, institute criminal proceedings and carry out any necessary functions incidental to instituting criminal proceedings".

The Committee decided to remove "and are not isolated incidents" from the definition of "organised crime" at 7(1)(b), as a gang-related offence could occur only once or there might only be evidence of one offence. In addition, the Committee agreed to change "interrelated" in the same definition to "related".

The Committee also agreed to delete the words "for any particular purpose" from Clause 7(4)(a)(v) since they were seen to be superfluous.

Clause 19B Security screening of special investigators
Clause 19B(3) was changed to read "…be subjected to further security screening as contemplated in subsection (1)(a)".

Clause 24 Powers, duties and functions of Directors and Deputy Directors
The phrase "in the whole of the Republic" at clause 24(2)(a) was restored, in place of "throughout the whole of the Republic".

Clause 26 Application
The Committee agreed to move the definition of "specified offence" to the definitions section of clause 1, so that all definitions would be together in the same place.

The Committee agreed to change "set out" at clause 26(1) to "contemplated".

The Chairperson acknowledged that clause 26(3) is creating concurrent jurisdictions between the Directorate of Special Operations (the Scorpions) and the South African Police Service, but said this is not a problem.

Clause 26A Ministerial Coordinating Committee
The Committee created by this clause will function as a "deadlock breaking mechanism" according to the Chairperson.

Clause 29 Entering upon premises by Investigating Director
Clause 29(5)(b) has been added to the Bill so that it will be consistent with a South African precedent, the Hyundai case, in terms of grounds under which a search warrant may be granted by a court. The idea is that there must be a "reasonable suspicion" of an offence before a warrant may be granted in order for it to be in keeping with the Constitution.

Constitutionality of Bill
Mr Daniels of the State Law Adviser gave a presentation on the constitutionality of the proposed legislation. He found the Bill to be constitutional.

Afternoon session
Chapter 3A Appointment, remuneration and conditions of service of special investigators
Clause 19C Remuneration and conditions of service of special investigators
Mr Jeffery said Clause 19C(4) says the Directorate shall be deemed to have been designated as an essential service in terms of section 71 of the Labour Relations Act, 1995, for purposes of the application of Chapter IV of the said Act. He asked if it is appropriate for legislation to take over an executive function.

Ms Chohan-Kota said it is not taking over the function of the Minister but merely doing it on the Minister's behalf.

Clause 29A Powers of special investigators
The Chairperson said that Mr De Lange should draft subclause (3)(a)(ii) to stick with the wording in the Constitution so that it provides for "investigating, prevention or combating" of crime. He said the subclause should provide for "other criminal or unlawful activity"

The Chairperson said in subclause (3)(b)(i) after the "Gazette;" the word "and" should be added.

Clause 29B Disposal of items
Mr De Lange said since they plan to repeal clauses 31 and 31, there would be no problem of cross-referencing his suggestion that clauses 29A and 29B should be 31 and 32 respectively. The Committee was happy with the proposal.

The clause provides for disposal of items that the unit might have confiscated in terms of its search and seizure powers. Mr De Lange said the problems experienced by the prosecuting authority are because all the powers of search and seizure were granted in the Office for Serious Economic Offences Act of 1991. These were then included in the NPA Act, but unlike with the Criminal Procedure Act which follows up the powers of search and seizure it gives by saying what should be done with seized items, the NPA Act does not. Mr De Lange said he believes there might be a lacuna in this regard.

The Chairperson said in principle he has nothing against including the provisions here but his concern is to repeat only certain aspects of the Criminal Procedure Act in the Bill and not repeat the whole.

The Chairperson said Mr De Lange should find out from the prosecuting authority why they want the powers granted under sections 28 and 29 to be repeated here.

Clauses 30 and 31
Mr De Lange said the clauses are deleted.
The Committee agreed to the clause.

Chapter 6 General provisions
Clause 36 Expenditure of prosecuting authority
In subclause (5) instead of the head of the Directorate this is changed to the National Director. The Committee agreed to the clause.

Clause 38 Engagement of persons to perform services in specific cases
Mr De Lange said subclauses (3) and (4) are from the Judicial Matters Amendment Bill. The Committee had no problem with these clauses.

Clause 40 Regulations
Mr De Lange said he has kept the clause as it was basically. He has just added subclause (1A).

The Chairperson said the clause should say the Minister may "in consultation" with the National Director and not "after" consultation.

The Chairperson said Mr De Lange should add a provision for retirement under this clause.

He said the words "divisions" and "branches" in subclause 1A(d) should be removed. Mr De Lange said he would put in "various structures" instead.

Mr Jeffery (ANC) asked if under subclause (1) it is really necessary to list all the things in respect of which the Minister has power to make regulations which power he has under subclause (a) anyway.

The Chairperson said subclause (1) applies to the National Prosecuting Authority except the Scorpions. Subclause (1A)(r) covers a situation where the Act says the Minister may or must make regulations. Subclause (1A)(s) covers a situation where the Minister is not required or permitted by the Act to make regulations, so it is an enabling provision. Subclause (1)(c) provides for an instance where the Act does not say that regulations are to be made but there is a need for regulations.

Mr De Lange said these provisions were copied from the Intelligence legislation which also falls outside the Public Service Act. He said his view is that (1A)(r) may be omitted as (1)(a) or (c) could cover this. He also thought there is duplication in (1A)(r) and (s).

Replying to Mr Jeffery 's question on why subclause (1)(a) is needed if there is the list under (1A), the Chairperson said the formulation in the subclause is always included in legislation. Subclause (1)(c) and (1A)(s) are "catch all" provisions. He said since South Africa is a constitutional state and the Directorate falls outside the Public Service Act, which affects people's conditions of service, the Bill should spell out the matters in respect of which regulations should be prescribed. He agreed that there is no need for subclause (1A)(r) as this would be needed if (1A)(a) to (q) were not there. He said Mr De Lange could take out (1A)(r).

Mr Jeffery asked if there is a need to include (1A)(m) since what it provides for is covered by the Public Finance Management Act.

Mr De Lange said the Intelligence Act from which the provisions were taken was enacted before the Public Finance Management Act came into being. He said he believes the latter Act provides for what (1A)(m) covers and he would look at that.

Clause 40A Unauthorised access to or modification of computer material
The Chairperson wanted to know why the deeming provision now replaced by subclause (3) has been changed.

Mr De Lange said the deeming was to give South African courts jurisdiction and the new formulation in the subclause takes a shortcut.

The Chairperson said he preferred the initial formulation.

He said the Committee has not sorted out the issue of negligence under the clause.

Clause 41 Offences and penalties
The Chairperson said the penalty provision in subclause (3) should carry a maximum sentence of five years not two years.

In subclause (6)(c)(i) the Chairperson said after the words "of this Act" it should be added "and any other law".

Chapter 7 Transitional arrangements
Clause X Transitional arrangement relating to Investigating Directorate
Mr De Lange said clause X would probably be clause 43A.

The Chairperson said Mr De Lange should look at whether it is necessary to amend the Prevention of Organised Crime Act in view of the changes in this Act. He said most of the amendments that Mr De Lange would now be required to effect are of a technical nature. He said Mr De Lange should call the National Prosecuting Authority on the search and seizure powers and provisions on disposal of items to find out what they really require there. When Mr De Lange is finished with finalising the Bill he should forward copies to the National Prosecuting Authority, the police and the National Intelligence Agency to show how far the Committee has gone. The Chairperson, however, mentioned that this is not intended to get input from these stakeholders. The meeting was adjourned.