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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
12 October 2000
SCORPIONS LEGISLATION: PROPOSED AMENDMENTS TO THE NATIONAL PROSECUTION AUTHORITY ACT
Chairperson: Mr JH De Lange
Drafter: Adv J De Lange of the Department of Justice
Proposed Amendments to the National Prosecuting Authority Act, 1998: Draft D
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Proposed Amendments to the National Prosecuting Authority Act: Draft C
The Committee went through the latest draft of the Bill, Draft D, which incorporates changes and suggestions made to date. Discussion focused on security screening of special investigators.
The words "of prosecuting" have been added to the penultimate clause of the Preamble so that it reads: "with the object of prosecuting such offences". Adv De Lange said this change was not final.
The Chairperson said he was not satisfied with the Preamble and wanted Adv De Lange to continue to "play" with it.
Clause 1 Definitions
(b) reads "in Chapter 5, includes the head of the Directorate of Special Operations". The definition of "Investigating Director" at Chapter 5, clause 26, will therefore be deleted since it is not necessary that it appear twice.
Clause 7 Investigating Directorates
The word "activities" has been added to clause 7(1)(c)(ii)(aa) so that it reads "any criminal or unlawful activities". Clause 7(1)(c)(i) reads "offences committed in an organised fashion".
The Chairperson said clause 7 is a very important one and suggested that "criminal or unlawful activities" should be linked more clearly to "organised fashion" in order to make the link to organised crime more explicit. He asked Adv De Lange to try and mesh (i) and (ii) together.
Clause 19B Security screening of special investigators
Referring to clause 19B(2), Mr Swart (ACDP) noted that the grounds for dismissal are now very narrow.
Mr Mzizi (IFP) asked why screening was done only by the Intelligence Agency.
The Chairperson answered that there is only one agency here so all functions have to be filled there. He asked Mr De Lange if there was a problem with "may be appointed" in that this might mean screening procedures would come up only at the appointment stage.
Ms Chohan-Kota (ANC) complained there was no indication of how information would be obtained ie by polygraph test?
The Chairperson answered that polygraph tests can be prescribed by contract under clause 19C(5). These details would be in the employment contract.
The Chairperson asked Adv De Lange to sort out the security screening details.
Mr Mzizi (IFP) asked if constitutional rights were being infringed by the prohibition against striking at clause 19C(3).
The Chairperson answered they had looked at the constitutionality of the provision and reminded the Committee Members that constitutional rights are not absolute but can be limited. What cannot be taken away from workers are their collective bargaining rights. There has to be a mechanism so that workers can air their views. He stated that the employment contract would make it clear there was no right to strike and these provisions would meet a constitutional challenge.
Ms Camerer (NNP) asked if Mr De Lange had corrected what she sees as a problem with the English of clause 19B(1)(b). She called the passage "contorted" and "tautological". The Chairperson responded that this is the nature of security screening: it can never say definitively that a person is a security risk; but only suggest the possibility. Nevertheless, the Chairperson asked Mr De Lange to look at the wording of the section.
Clause 24 Powers, duties and functions of Directors and Deputy Directors
The Committee discussed at some length the ostensibly innocuous change at 24(2)(a) of "in" to "throughout the whole of the Republic".
Ms Camerer asked why it did not read simply "in any court in the Republic" for the sake of plain English. The Chairperson said it had been changed to show the Scorpions are not attached to any geographic area of the country but work throughout the Republic. He did agree they could think of a more simple way to indicate this.
Clause 26A Ministerial Co-ordinating Committee
The Chairperson objected to clause 26A(1)(b), saying it reads that the Committee can run the unit. He suggested it read "determine procedures for the co-ordination of activities". He insisted it be clear that the Committee touches on procedure but does not run the Scorpions.
The Chairperson also still wonders why the Minister is included at clause 26A(2)(a). He said he asked the Minister of Finance what and he thought and the Minister answered that maybe it has something to do with customs and excise.
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