To start with, the Chairpersons explained that the purpose of the meeting was twofold, namely to hear a briefing on the proposed pieces of legislation aimed at scrapping the Directorate of Special Operations and to receive an update from the Department of Justice regarding the review of the Criminal Justice System. It was stressed that that the joint committee would give assiduous attention to all the inputs made, and would not ignore submissions made in the form of petitions and signatures, even though they did not assist in the legislative process. Members of the opposition objected to the hearings. They claimed that the process was a cosmetic exercise and a waste of taxpayers’ money, aimed at misleading the country and merely satisfying regulations. In addition, some Members contested the numbers of submissions received, and examined whether it was proper that MPs who had been, or were being, investigated by the unit to participate in the joint committee.
The Deputy Minister of Justice presented an overview of the new integrated Criminal Justice System. He explained that Cabinet had approved a package of seven fundamental and far-reaching transformative changes that must all be adopted and implemented in an integrated and holistic manner to achieve a new dynamic and coordinated system. In giving the recommendations its stamp of approval, the Cabinet embarked upon a fundamental and radical journey from what is best described as a fragmented, unfocused and dysfunctional CJS to one that is focused, coordinated and well-managed at every level. This 7-Point plan followed an in-depth investigation by the four core law enforcement agencies and represented a major sustainable step towards reversing the unacceptable crime trends in South Africa. Certain Members complained that the presentation had nothing to do with the bills before the joint committee. It was suggested that the Cabinet had approved the review of the CJS before Polokwane and that this was an attempt to include the dissolution of the unit into the review retroactively. The joint committee also discussed the levels of indiscipline in the Criminal Justice System as well as the role of judges in the proposed Advisory Boards.
The Director-General in the Department of Justice advanced some of the reasons behind the Executive’s decision to establish the Directorate for Priority Crime Investigation. Government had identified that there the DSO was not achieving their objectives due to a lack of effective coordination and cooperation with other relevant structures. This sort of situation undermined public interest and also had the potential to undermine national security. For that reason, government proposed the establishment of a new priority crime-fighting directorate, located within the SAPS, to deal with priority crimes and high level organised crimes. An integral feature of this new approach ensured that all key stakeholders functioned collaboratively, sharing common objectives, priorities and performance measurement targets. Members debated about the connection between the review into the Criminal Justice and the decision to relocate the Scorpions. In addition, the joint committee discussed the merits of the prosecution-led model.
The Department of Justice provided a brief summary of the provisions of the National Prosecuting Authority Amendment Bill. The principle aim of the Bill was to repeal the provisions of the principle Act dealing with the establishment and the functioning of the Directorate of Special Operations.
The South African Police Services stated that the South African Police Services Amendment Bill proposed the establishment of the Directorate for Priority Crime Investigation. The DPCI would consist of selected members of DSO, SAPS Commercial Crime, the Organised Crime Component and other selected SAPS members. The presentation also focused on some of the findings of the Khampepe Commission of Inquiry on the importance of the troika approach. Members asked questions about the rank of the Head of the new Directorate, the Khampepe Commission and the Minesterial Coordinating Committee.
The National Prosecuting Authority urged that the successful DSO model for investigation should not be destroyed. In most serious cases, criminal trials had become a trial of the investigation rather than of the accused. Close co-operation between investigators and prosecutors was vital to ensure legality at all stages of the investigation, including intelligence operations, applications for, and executions of, undercover operations and warrants, and witness interviews. The prosecution authority further suggested that the mandate of the proposed new directorate should be focused and not too big. The mandate should include serious organised crime, serious and complicated economic crime, and serious and complicated corruption.
After the lunch break Business Against Crime (BAC) gave the background to its formation and said that organised crime was becoming more sophisticated, leading to the need to address it in a more comprehensive fashion. South Africa was particularly vulnerable to such crime and BAC was concerned that the Bills did not address the key issues adequately to fight crime. It supported enhancement of the investigative capacity of the SAPS. It suggested one lead agency properly mandated to do its job, integrating intelligence, investigative and prosecutorial skills, but that also could draw on other specialist skills, in particular relying on an intelligence-driven approach. It suggested that the new Unit be headed by the Deputy National Commissioner reporting directly to the National Commissioner. The Unit would have to be given specialist training and adequate resources, and must be governed by legislation providing a guarantee of appropriate multi-agency collaboration, oversight and independence from interference. Legislation must clearly set out lines of authority and accountability, and the proposed new Section 16 of the SAPS Act would have to be amended. Successes should be publicly acknowledged. Functional integration was needed. There must be effective Executive oversight by a body totally independent of political authority.
The Society for State Advocates represented a wide variety of Members. The Bills affected all prosecutors. They believed that the traditional model of prosecution was not adequate to address complex cases, although it was sufficient for less complex matters. Complex crimes instead required the multi-disciplinary approach currently used by the DSO, and especially the link between prosecutors and investigators. The new Unit should be staffed by members of the same independent authority who remained responsible for the investigation and prosecution in an uninterrupted and seamless process. It also stressed the need for proper oversight and high level coordination with government stakeholders.
Questions by Members to the NPA related to the volume of work, what percentage was done by private companies, the focus by the NPA on the speed of dealing with the matter, whether integrated methodologies could be applied in the interim, labour law issues, and intelligence gathering. Further questions related to the vetting of staff, the use of different but more appropriate approaches, the likely impact of the Bills upon current matters.
The Cape Bar Council commented upon Clause 3 of the SAPS Bill, saying that it needed to clearly delineate the powers of the Provincial and National Commissioner.
Mr Hugh Glenister noted that he had been heartened by listening to the Deputy Minister’s address on the Review of the Criminal Justice System, and that his views had altered since the time he had written his submission the previous week. He submitted that the DSO was successful in fighting corruption and there was no rational basis for the decision taken at the ANC Polokwane Conference, leading to the inference that it had been done to protect senior ANC members from being investigated. If so, this was not connected to any legitimate government purpose and this made the country more vulnerable to organised crime. The Bills themselves, and the manner in which they were being processed, violated his constitutional rights of life, privacy and dignity, and the principle of accountability. His application to interdict Parliament from proceeding was pending, and he asked that the parliamentary process be halted until the judgment was handed down. Parliament did not appear to have paid regard to the concerns of the people and were apparently rushing the bills through. He had 85 000 signatures on a petition opposing the disbandment of the DSO. He acknowledged the hard work of the police, but criticised the corruption of some, and believed that this problem must be addressed. He had chosen to approach the Constitutional Court because of the ANC statements from January to March attacking the DSO through the media, without giving the DSO the chance to defend itself. He did not believe that the NPA submission could be entirely impartial, as the NPA were not capable of attacking government, being government employees (he was corrected by a Member on this point).
The Chairperson asked which sector Mr Glenister was representing, apart from the petition signatories, where the petition was sent, assured him that the Bills would be dealt with in accordance with due process, and invited Mr Glenister to return to Parliament in September to make his sentiments known. The Chairperson denied having said that the public would not be heard. He asked Mr Glenister to keep an open mind, and to produce ideas on how Parliament could proceed with the establishment of the new unit.
Introductory Remarks by the Chairpersons
Ms Sotyu greeted everybody and apologised for the hearings commencing later than the scheduled time. She explained that the delay was due to the media engagements that both chairpersons had to attend to. She announced that Parliament’s justice and safety and security committees were considering a proposal from Cabinet to relocate the Directorate of Special Operations (DSO or Scorpions) under the South African Police Services (SAPS). The objective of the hearings was therefore to solicit the publics’ views concerning the two pieces of legislation, namely the SAPS Amendment Bill and NPA Amendment Bill, and thereafter take a decision on whether to implement the recommendation of the Executive. For that reason, she appealed to the public to fully participate in the hearings and to actively monitor how parliament processed the Bills. She asserted that all the deliberations would be transparent and that people still had the opportunity to submit further representations. In addition, she indicated that the joint committee had only received 116 written submissions thus far, and of those, only 35 had requested to make oral presentations. She gave an assurance that all petitions would be considered, despite the fact that they did not assist in the processing of the Bills. Finally, she informed the meeting that the provincial hearings would take place from August 11 to 15.
Mr Carrim emphasised that the two bills would be treated like all other pieces of legislation, with Parliament exercising its full oversight role in the processing of each clause. He further stressed that that the joint committee would give assiduous attention to all the inputs made, and would not ignore submissions made in the form of petitions and signatures, even though they did not assist in the legislative process. He appealed to the public not to prejudge the process and to mobilise people to make further submissions. Lastly, he clarified that the hearings were not only about the Bills but also about the proposed new Integrated Criminal Justice System.
Mr P Groenewald (FFP) questioned whether there was any purpose in having the hearings, given the fact that government had already decided to disband the Scorpions. He claimed that the entire process was a “window-dressing” exercise and a waste of taxpayers’ money, designed to mislead the country and merely comply with regulations. He also made reference to a press conference where the chairpersons were quoted as saying that the role of parliament was simply to implement the decision taken by the ANC at Polokwane.
In a similar vein, Dr J Delport (DA) described the hearings as a “farce”. He accused the ANC of not approaching the proceedings with an open mind and made reference to the press conference, where it was reportedly stated that the decision to absorb the Scorpions into the SAPS had already been taken. Also, he contested the figures that were presented of the number of submissions that were received. Finally, he stated that the current hearings did not comply with the standards of a proper hearing, as defined by the courts.
Adv L Joubert (DA) supported the comments made by his colleague. Also, he noted that the Glenister case will be heard by the Constitutional Court on the 20th August 2008. As a result, he wondered whether it would not be prudent for parliament to wait for the outcome of that case before proceeding with the hearings.
Mr Carrim gave an undertaking that he would consult with Parliament’s lawyers on this matter. However he believed that the judiciary had no authority to prevent Parliament from continuing with its own processes and legislative mandate.
Mr Sibanyoni (ANC) concurred with the Mr Carrim’s interpretation. He added that a law could be challenged only after (and not before) it had been passed.
Ms D Kohler-Barnard (DA) accused both Chairpersons of downplaying the number of public submissions received. She contended that her party had recorded over 100 000 signatures on petitions, and nearly 15 000 submissions. Accordingly, she enquired whether the Chairpersons viewed the petitions as irrelevant.
Mr Carrim rubbished suggestions that he and his Co-Chairperson had stated that they would ignore public submissions. He insisted that all input would be considered and that petitions would be given “due weight”, even though they did not help the legislative process. Furthermore, he indicated that while the actual number of submissions were in the vicinity of 15 000, the number of formal written submissions totalled 116. He invited the opposition parties to verify these figures with the Committee Section.
Mr S Swart (ACDP) shared the sentiments expressed by the previous Members. In addition, he asked whether it was proper that MPs who had been, or were being, investigated by the unit to participate in the joint committee.
Ms Sotyu acknowledged his concern and indicated that Parliament would consult its lawyers regarding this matter.
Mr S Shiceka (ANC) stated that the objective of the meeting was to receive a briefing from the Department and that the Committee should therefore not be sidetracked by other issues raised by certain individuals. He defended the chairpersons and stated that their views were misrepresented by the press. He maintained that parliament as a body did not have a view on whether the DSO should be relocated and that a determination on this matter would only be made after Parliament had listened to the views of the public.
Mr Carrim replied that interesting questions were raised at the press conference and in the meeting about the relationship between a decision made by 4 000 delegates at a conference, a majority party that commanded 70% of the elected support, the role of parliament and democracy. He added that there were no easy answers to any of the questions. He argued that the press conference was substantially skewed because there were misrepresentations in the press by a certain party about the thousands and thousands of submissions that were made. He continued by stating that the purpose of the hearings were not just about whether the Scorpions should exist. They were also about whether the Scorpions should be relocated within the SAPS and if so, on what terms it should be done. He argued that the role of the opposition was, at the very least, to participate actively in the legislative process, and to help restrain the majority party from always having its own way. To this end, he reiterated the importance of open-minded participation and involvement by all stakeholders. He recognised that people were sceptical about the process and requested that they suspend judgement until the process was completed in six weeks time. Finally, he affirmed that if the majority of South Africans, including the governing party’s supporters, were opposed to the measure, “surely Parliament must take note” of that.
Overview of the Criminal Justice System (CJS)
Mr Johnny de Lange, Deputy Minister of Justice and Constitutional Development, explained that his presentation would focus on the proposed new Integrated CJS. Government had been occupied with this task for more than a year and envisaged that the revised system would help to strengthen the CJS and reduce the unacceptable crime trends. For too long, the debate on crime and how to tackle it had been narrow, partisan and politically motivated. He hoped that all this would be set aside and that a bipartisan solution could be reached.
In November 2007, Cabinet approved a package of seven fundamental and far-reaching transformative changes that must all be adopted and implemented in an integrated and holistic manner to achieve a new dynamic and coordinated CJS. In giving the recommendations its stamp of approval, the Cabinet embarked upon a fundamental and radical journey from what is best described as a fragmented, unfocused and dysfunctional CJS that is mainly driven by the strength of the personalities in leadership positions, to a CJS that is focused, coordinated and well-managed at every level. This 7-Point plan, which followed an in-depth investigation by the four core Departments or Agencies (SAPS, DoJ, DCS, and NPA as well as several other involved stakeholders) into the present CJS that is plagued with blockages and weaknesses rendering it ineffective and inefficient, represented a major sustainable step towards combating crime and reversing the unacceptable crime trends in South Africa. The changes were outlined in the following manner:
Change One: Adopt a single Vision and Mission leading to a single set of objectives, priorities and performance measurement targets for the CJS by the Justice Crime Prevention and Security (JCPS) Cluster.
Change Two: Establish through legislation or by protocol a new and realigned single CJS coordinating and management structure flowing seamlessly from Cabinet to each court, and the appointment of a person from the Executive as Head of the CJS with coordination and management functions and not executive powers.
Change Three: Making substantial changes to the present court processes in criminal matters through practical, short and medium term proposals to improve the performance of courts, especially the regional courts.
Change Four: Implement key priorities identified for the component parts of the CJS, which are part of or impact upon the new court process, especially as it pertained to improving capacity.
Change Five: Establish an integrated and seamless National CJS ID database containing all information relevant to the CJS and review and harmonise the template for gathering information relating to the CJS.
Change Six: Modernise, in a holistic manner, all aspects of the systems and equipment of the CJS, including the fast tracking of the implementation of projects and modernisation initiatives.
Change Seven: Involved the population at large in the fight against crime by introducing changes to the Community Police Forum regime.
Quality and professional services in an integrated, coordinated, effective and efficient CJS was only achievable if the 7 fundamental steps were dealt with as a matter of urgency and in a committed fashion by all role players. All these initiatives will result in a swift, equitable and fair justice in criminal matters. It will also ensure that the CJS is an effective deterrent to crime on a sustainable basis and improve the legitimacy of and public confidence in the CJS.
In conclusion, he acknowledged that government had not always followed the correct priorities and also from time to time failed to allocate resources in a proper manner. It was envisaged that the new approach would rectify this and increase the quality of the work performed by the law enforcement agencies.
Mr Carrim commended the Deputy Minister on a very useful and wide-ranging presentation. He noted that it was the first time that the report had come into the public domain in such a comprehensive form. As a result, he suggested that the Department engage further with the joint committee after all the public hearings process was concluded. In the meantime, he advised political parties and the public to make written submissions in response to what the Deputy Minister had presented.
Adv Joubert thanked the Deputy Minister for an honest admission of the problems faced by the CJS. However, he failed to see how the presentation was relevant to the issue of the disbandment of the Scorpions.
Ms Kohler-Barnard argued that the Deputy Minister’s presentation had nothing to do with the two bills before the joint committee. She found it telling that Cabinet had approved the review of the CJS before Polokwane and that this was an attempt to include the dissolution of the unit into the review retroactively. She reminded the Deputy Minister that he had argued at the Polokwane conference for the retention of the Scorpions but had lost that debate. Lastly, she asked the Department to provide a cogent reason why the unit should be disbanded.
The Deputy Minister explained that the review was a genuine attempt (by government) to take an honest look at the system, and to identify weaknesses and dysfunctions within it. He clarified that the discussion around the review of the CJS would continue whatever the eventual decision about the fate of the Scorpions. He stated that government had chosen to look at all changes within the CJS holistically, and hoped that the Members would make a positive contribution to this debate.
Mr Swart was pleased that at long last, government was considering binding protocols across departments. Also, he interrogated why government was so intent on disbanding a unit that was so effective in fighting organised crime.
Mr de Lange replied that the objective was to establish a proper strategy for fighting organised crime, and that it was less important which bodies were utilised to do this, and more important that such bodies were well-equipped with adequate resources and efficient investigators.
Mr B Mangwanishe (ANC) declared that certain Members were failing to see the bigger picture, and pointed out that the adverts (for the hearings) stated that the joint Committee would deal with the review of the CJS as well as the two bills. Lastly, he remarked that the constant reference to the Scorpions (by certain Members) was merely politicking.
Mr Carrim observed that as part of the review, every single structure within the CJS was being reviewed. In light of this, he could not understand why the DSO should be immune from any review whatsoever.
Mr Groenewald asked what the timeframe was for the implementation of the new programme, given that this was a second review of such a nature that the country had carried out since 1994.
The Deputy Minister answered that the timeframe was ‘yesterday’. He explained that there were numerous task teams looking into various aspects of the review. As their reports came in, they would be presented to Cabinet for approval and implementation would follow. He indicated that the JCPS Cluster would attempt to implement as many changes as soon as possible, in order to capitalise on the momentum currently benefiting the review. In conclusion, he divulged that the he expected to see some of the proposed protocols being implemented within the next two months.
Mr J Van der Merwe (IFP) congratulated the Deputy Minister on what appeared to be an excellent document. He enquired whether the review addressed some of the challenges in the High Courts.
The Deputy Minister replied that this would be the subject of a separate review.
Dr Delport complained that there was a lack of commitment and discipline within the CJS. For that reason, he suggested that some form of mechanism be developed to instil discipline and a level of accountability in all role-players within the broad system.
The Deputy Minister agreed with this assessment, and stated that nobody paid a price for not doing what they supposed to do. One objective of the restructured CJS would be to create a rational, accountable system in which there would be clear responsibilities and incentives for performance and compliance.
Mr I Solomons (ANC) posed two questions. Firstly, he queried whether the Deputy Minister foresaw the creation of any legislation to enact the proposals set forth in his presentation. Secondly, he expressed concern that the inclusion of judges in the Advisory Board, referred to in the presentation, violated the principle of separation of powers.
In respect of the first question, Mr de Lange hoped that one day, when the system was working, it would become part of legislation. On the latter issue, he argued that judges and magistrates had a vested interest and should therefore be consulted on the issue. He stressed that such judges would be dealing with administrative matters, and therefore did not violate the principle of separation of powers.
Mr Carrim stated that this debate needed to continue with other role-players, and that clear guidelines needed to be established for the implementation of the new protocols. In addition, he encouraged the public and the opposition to put pressure on the Executive to deliver speedily.
Rationale regarding the relocation of the DSO: Briefing by the Department of Justice
(This is a summary of his general comments, which were not contained in any document)
Mr Menzi Simelane, Director-General, DoJ, explained that the Executive’s work was driven by government’s Programme of Action (PoA), which included a strategy to reduce crime by 7-10% per annum, transform the judiciary and create an effective CJS. Within the JCPS Cluster, different structures were set up to give effect to the PoA. The establishment of such structures were based on two criteria, namely how to ensure maximum and efficient utilisation of resources of government in order to achieve the objective, and secondly how to ensure that at all times, there was appropriate coordination between the various structures. In its investigations, the Cluster had identified that there was a proliferation of law enforcement agencies in the country. These included the SAPS, Financial Intelligence Centre Agency (FICA), Customs Unit, Immigration Branch, Green Scorpions, DSO and the Special Investigative Unit (SIU). An analysis of all the agencies showed that, despite the specialised focus of each entity, their work generally overlapped.
The Cluster had further observed that certain law enforcement agencies were not achieving their objectives due to a lack of effective coordination and cooperation with other relevant structures. This was considered problematic because their pursuit of a common objective demanded that they operated in an interdependent fashion. A breakdown in the relationship between agencies had the effect of creating unhealthy competition, lawlessness, lack of effectiveness, inefficiency, instability, uncertainty and unpredictability. This sort of situation undermined public interest and also had the potential to undermine national security. Government had identified that there had been a breakdown in the relationship between the DSO and SAPS, and that the country’s law enforcement framework had to be reviewed for that reason.
The review was a question of policy informed by the various inputs that the Executive had gathered over a period of time. Based on that work, the Executive proposed the establishment of a new priority crime-fighting directorate within the SAPS to deal with priority crimes and high level organised crimes. An integral feature of this new system ensured that all key stakeholders functioned collaboratively, sharing common objectives, priorities and performance measurement targets. The SAPS, being the organ of state which had the primary responsibility for fighting crime, was entrusted with this responsibility. He reasoned that this was the most appropriate step to take at this moment in the country’s history in order to avoid instability in the law enforcement environment.
Dr Delport addressed several issues. Firstly, he rejected the suggestion that the review of the CJS had propelled the decision to disband the Scorpions. On the contrary, he pointed out that the review had started some years ago and that the decision to integrate the DSO was only added on later. He maintained that the Executive’s decision was not driven by a quest to review the country’s CJS but by a quest to protect friends. Secondly, he questioned whether there was any sense in removing a successful, independent structure and placing it under the command of the National Commissioner of Police. He acknowledged that there might be defects in the unit but remained convinced that they could be rectified. Finally, he called all upon all Members to stand up against the decision and show that Parliament catered for the needs of the people.
Mr Carrim countered that if ANC members were expected to be open-minded; the same should apply to members of the opposition. He wanted to avoid endless discussions about what the relationship was between the two Bills and the CJS in terms of chronology. Even if it were established that the decision to relocate the DSO was an add-on as part of the review of the CJS, MPs still had a responsibility to link the DSO as part of the fight to deal with all forms of crime.
Mr Simelane admitted that the question of how best to structure the new unit was discussed quiet extensively and that there were different views and approaches advanced. In its assessment, the Department found that the DSO was not effective enough, and had failed to coordinate and cooperate as it was required to. It was on that basis that the proposal was made to relocate the DSO. He recognised that there was a degree of cooperation and coordination between the DSO and the SAPS. However, it was not at a level that was envisaged by the Department. Lastly, he pointed out that both the Ginwala and Khampepe Commissions listed the various material defects in the manner in which the DSO operated.
Mr Swart acknowledged the fact that opposition members needed to keep an open mind as well. He referred the DG to the Glenister case where government had given an undertaking that the prosecution-led investigation method of the DSO, regardless of where it was located, would be retained. He noted that the two Bills specifically excluded this model and was therefore concerned that the use of multidisciplinary prosecution guided investigation teams would not be incorporated into the new operational model.
Mr Simelane clarified that the Department was in favour of a court directed approach where an investigation had a particular outcome. He reasoned that there must be a successful court outcome in the form of a prosecution before one can measure any success. He added this sort of detail would be reflected in the reflected in the guidelines and not the in the specific legislation.
Mr Carrim requested the parliamentary researchers to itemise all the issues that the Executive had found problematic with the DSO.
National Prosecuting Authority (NPA) Amendment Bill
Mr Johan de Lange, Principal State Law Advisor, Department of Justice, summarised that the Bill emanated form a decision to amalgamate the DSO with the SAPS. The principle aim of the Bill was to repeal the provisions of the principle Act dealing with the establishment and the functioning of the DSO.
Mr de Lange explained that the definitions that contained direct or indirect references to the DSO were amended or deleted in this section.
Mr de Lange indicated that section 5 of the principle Act established the Office of the National Director of Public Prosecutions that consisted, among others, of special investigators. Accordingly, the clause deleted the reference to special investigators.
Mr de Lange pointed out that the clause deleted those provisions relating to the DSO. Notably, he mentioned that it was only the DSO that was being removed and that the principal Act still made room for Investigating Directorates to be established. However, should the Bills be passed, there would no longer be any Investigating Directorate but the empowering clause would remain intact should a need rise to establish one. In terms of the provision, a proclamation, establishing such an Investigating Directorate, must be issued under the recommendation of the Minister of Justice as well as the Cabinet Member responsible for policing, which would go some way in reducing the tension and lack of coordination.
Mr de Lange stated that the clause amended the principal legislation by making it possible for any number of Deputy National Directors to be appointed. The legislation, at present, provided that not more than four persons may be appointed to this position.
Clauses 5, 6, 7, 8, 9, 10, 11
Mr de Lange indicated that the following clauses contained consequential amendments
Clauses 12 and 13
Mr de Lange informed the joint Committee that these provisions contained transitional arrangements.
Mr de Lange announced that the clause effected changes to the preamble of the principal Act, by deleting those paragraphs that were inserted when the Act was amended (in 2002) in order to provide for the establishing of the DSO.
Mr Swart raised two issues. Firstly, he commented that it was incorrect to speak about the relocation of the DSO because the legislation sought to disestablish the unit and only relocate the investigative capacity to SAPS. Secondly, he examined under what conditions an Investigation Directorate could still exist.
Mr de Lange confirmed that only the investigative capacity would be transferred to SAPS. All other members of the NPA would not be relocated because their status was defined and protected in the Constitution. In respect of the second issue, he clarified that should the Bills be passed, there would no longer be any Investigating Directorate but that the empowering clause would remain intact should a need rise to establish one.
South African Police Services (SAPS) Amendment Bill
Dr Philip Jacobs, Assistant Commissioner: Chief Manager of Legal Division, SAPS, explained that in terms of it mandate, the DSO was able to investigate, gather and analyse information and institute criminal proceedings relating to crime committed in an organised or syndicated manner. The DSO’s prosecution-led investigation or troika approach used multidisciplinary teams that included prosecutors, investigators and where necessary, specialists such as forensic accountants and software engineers. The whole investigation was conducted in a manner aimed at securing a conviction. The prosecution-led investigation or troika approach had its origins in the Office for Serious Economic Offences, which was later absorbed into the DSO.
In the investigation of organised crime, SAPS accepted and applied the troika approach. However, SAPS believed that this did not necessarily mean that the prosecutor and the investigator must be members of the same organisation. In fact, in a number of jurisdictions across the world, there was a healthy division between the work of the prosecutor and that of the investigator.
The Khampepe Commission of Inquiry into the mandate and location of the DSO listed a number of the unit’s shortcomings. Notably, the findings criticised the uncoordinated relationships between the DSO, SAPS and the intelligence structures. It further highlighted a lack of oversight by both the Inspector-General of Intelligence as well as the Independent Complaints Directorate in respect of functions performed by the DSO. The Commission also admonished the DSO for failing to comply with vetting procedures, liaising with foreign intelligence structures and leaking information to the media.
Dr Jacobs said that the President, in his State of the Nation Address, announced the introduction of the two Bills and affirmed government’s commitment to fighting organised crime and improve the management, efficiency and co-ordination of the country’s law-enforcement agencies.
The Bill proposed the establishment of the Directorate for Priority Crime Investigation. The DPCI would consist of selected members of DSO, SAPS Commercial Crime, the Organised Crime Component and other selected SAPS members. The Bill stipulated that members of DPCI needed to be vetted in accordance with the National Strategic Intelligence Act, 1994. In addition, provision was made for the secondment of officials from other departments into the structure as well as for the appointment of persons that might be recruited in the future into the structure. Finally, he discussed the transitional provisions and the financial implications of the Bill.
Ms A Van Wyk (ANC, Safety and Security) queried the ranking of the Head of the proposed unit.
Dr Jacobs clarified that the Head of the DPCI shall be a Divisional Commissioner, who will be required to report to the Deputy National Commissioner responsible for crime detection and crime intelligence. He added that in terms of SAPS, all provincial and divisional commissioners were in fact Deputy Director Generals in terms of their salary structure.
Dr Delport observed that the presentation only contained reference to the negative findings of the Khampepe Commission of Inquiry. To rebut this, he read of the Commission’s findings, which stated that the Ministerial Coordinating Committee (MCC) had only started convening meetings from June 2004 and that it failed to discharge its responsibilities under the Act. The difficulties of the different law enforcement agencies, which were dealt with in the Commission’s report, may have been mitigated had the policies and procedures been put in place as required by the Act. Consequently, he argued that the blamed lied primarily with the MCC and not the DSO. He alleged that even after the Commission’s Report had been handed to the President, the MCC did nothing to remedy whatever defects there may have been.
Ms Van Wyk interjected to seek clarity as to why the Member was referring to the Khampepe Commission instead of responding to the presentation made by SAPS.
Ms Sotyu agreed with Ms Van Wyk and advised that the issues arising out of the Khampepe Commission would be debated after the public hearings when the Committee deliberated on the legislation.
Dr Delport countered that SAPS had introduced in their report reference to the Khampepe Commission, and that he was simply giving a proper perspective to a skewed presentation made by Dr Jakobs.
Ms Sotyu ruled that this issue would be discussed during the deliberations phase of the legislative process.
Even though he respected the Co-Chairperson’s ruling, Mr Swart expressed concern that the Memorandum of the SAPS Bill made clear reference to the Khampepe Report as a foundation for the Bill itself. However, he was satisfied that these issues would be addressed at a later stage.
In addition, Mr Swart rejected the assertion that the prosecutorial service would be strengthened by the exclusion of prosecutors from the proposed Directorate.
Dr Jacobs confirmed that prosecutors would not be transferred to the Directorate but redirected to the courts. Because of the experience they would have acquired, he remained convinced that they would enhance the prosecutorial service. Finally, he reiterated that the SAPS was not opposed to the troika approach and often cooperated with prosecutors.
Mr Magwanishe questioned why the Minister had to consult the National Commissioner when determining the salaries and allowances of members of the DPCI.
Dr Jacobs replied that the National Commissioner needed to be consulted because he was the accounting officer for both for SAPS as well as the proposed Directorate.
Mr Shiceka noted that the Bill made provision for the Head of the DPCI to report to the Deputy National Commissioner. On the other had, a separate clause made provision for the Head to report to the National Commissioner. He argued that this framework was contradictory and had the potential to create confusion.
Dr Jacobs did not foresee problems with certain issues being directed to the Deputy Commissioner. He added that the National Commissioner was the ultimate commander.
Ms P De Lille (ID) requested Dr Jacobs to shed some light on the obligation that the Bill placed on the Minster to establish a forum and other public institutions.
Dr Jacobs explained that the forum would replace the MCC and open it up to more role-players. While not mentioned, the public institutions referred to were those that were involved in the combat against crime.
Mr Carrim disliked the name of the proposed unit (DPCI) and requested the public to submit alternative names, in the event that it was decided that the new institution should be formed.
National Prosecuting Authority Presentation
Mr Mokotedi Mpshe, Acting National Director of Public Prosecutions, said he supported any efforts aimed at making the criminal justice system more effective and enhancing its credibility. He stated that the NPA respected the fact that it was the prerogative of Government to make policy regarding the proposed relocation of the DSO and the formation of a new DPCI within the SAPS. The NPA was fully committed to ensure that any policy that was adopted was implemented as successfully as possible. The entity believed that in considering a new Directorate, effect should be given to certain broad policy considerations. Any new organization should build on the integrated and multi-disciplinary method of work that has been developed in the DSO and in the SAPS/NPA collaborations in organised and commercial crime. It must bring together the DSO and key units in SAPS and other bodies to form a body with significantly larger capacity. It should ensure effective and better cooperation between the relevant law enforcement agencies and stakeholders. It should cater effectively for labour relations and transitional issues in a way that is immune to credible legal challenges.
Mr Willie Hofmeyr, Head: Assets Forfeiture Unit, urged that the successful DSO model for investigation should not be destroyed. In most serious cases, criminal trials had become a trial of the investigation rather than of the accused. Close co-operation between investigators and prosecutors was vital to ensure legality at all stages of the investigation, including intelligence operations, applications for, and executions of, undercover operations and warrants, and witness interviews. Challenges to the legality of the investigation had to be litigated effectively when required and investigations guided so that evidence gathering was focused on the eventual charges. Another vital success factor in fighting organised crime was an effective and integrated approach between investigations and intelligence, especially crime intelligence. The lack of clarity regarding the boundaries between pure intelligence and crime intelligence could be seen as a weakness in the DSO and it was vital that this area be clarified in the new directorate. Both the Constitutional Court and the Supreme Court of Appeal had so far held that there was no legal problem with prosecutors working hands-on with investigators, and this model should not be destroyed without proper discussion.
Mr Hofmeyr advised that the mandate of the proposed new directorate should be focused and not too big. The mandate should include serious organised crime, serious and complicated economic crime, and serious and complicated corruption. He also urged that there be a uniform salary structure and conditions of service in the new directorate for all members, including those from the SAPS, to avoid legal challenges and internal disputes. A high level of integrity and competence was essential, as any high-level specialised unit would face attempts to corrupt it and staff needed to have complete confidence in each other. Stringent and ongoing integrity vetting was vital to ensure it was clean. On independence, Mr Hofmeyr said that given the sensitivity of some of the investigations that might be conducted, it was important for the new directorate to have a significant measure of independence from other parts of law enforcement. There also should be an appropriate and active oversight body to ensure that allegations of manipulation or interference were dealt with effectively. Effective oversight and co-operation measures should include a MCC and a board with mainly "government stakeholders". They should define the parameters for the new directorate and ensure role purification and that it stayed within its mandate. They also should play a key role in promoting co-operation between the different entities required to work together, including the NPA, the National Intelligence Agency (NIA), SA Revenue Services (Sars), the Financial Intelligence Centre (FIC) and customs. They should have oversight over the investigations and day-to-day business of the new directorate and ensure a measure of independence. Lastly, he stated that measures were also needed to prevent damage to existing cases, which would involve some mechanism to keep together the teams of prosecutors and lawyers that had worked on the cases.
Mr Carrim asked for two submissions to be heard before any discussion took place.
Business Against Crime submission
Mr S Nzimande (CEO), accompanied by Dr G Wright (Deputy CEO), explained that Business Against Crime was formed as a non-profit agency in 1996 in response in response to a call by the then President Mandela for business to assist Government in the fight against crime. It welcomed the opportunity to contribute towards the discussion surrounding the proposed dissolution of the Directorate for Special Operations (DSO) and the planned establishment of the Directorate for Priority Crime Investigations (DPCI). Since their inception they had worked closely with government in their fight against crime and developed a relationship based on mutual trust and respect
Business against Crime (BAC) was governed by a Board of 25 business leaders representing industry, commerce and the public sector including office bearers from Business Unity South Africa (BUSA), Business Leadership South Africa (BLSA), the Big Business Working Group (BBWG) and the Black Business Working Group.
Mr Nzimande expressed the BAC’s reasons for making a submission as organised crime was evolving and becoming more sophisticated, and that there was a need to address organised crime in a more comprehensive fashion. He also noted that it was the BAC’s belief that South Africa was attractive to syndicates of organised crime as it was the gateway to Africa. With South Africa’s ports, financial institutions, banking systems, telecommunications and airports, it made it vulnerable to organised crime. He expressed his concern that the Bills did not appear to address the key issues adequately enough that were required to fight crime based on international and local best practices.
BAC supported the initiative to enhance the investigative capacity of the SAPS and suggested that there should be a single lead agency which was properly mandated to did its job and mandate that comprehensively integrated intelligence, investigative and prosecutorial skills. He also suggested that the lead agency needed to establish effective task teams by drawing on the additional specialist skills of other departments and government bodies. He stressed that it must be understood that Government recognised the new unit’s need for a strong intelligence driven approach.
Furthermore, the BAC suggested that the DPCI be headed by the Deputy National Commissioner who then reported directly to the National Commissioner, thus enhancing its status and power.
The unit itself needed to given specialist updated training that could deal with sophisticated organised crime syndicates and therefore needed to be adequately resourced.
A unique brand needed to be created in order to give its members a sense of pride and meaning as this would instil confidence. He stressed the need for legislation that provided the guarantee of appropriate multi-agency collaboration, oversight and independence from interference. He stated that publicly acknowledged superior results were of absolute necessity as this would instil public confidence and help to attract and retain skills.
He said that there was an absolute need for functional integration so that witnesses were protected from cross-organisation handovers as cases progressed from investigation to prosecution.
He also spoke to the need for legislation to provide clarity with regard to lines of authority and accountability. Here, he suggested that, Section 16 be amended so that the scope of DPCI was made very clear.
In conclusion, he emphasised that there was no tolerance for corruption and organised crime in this country and suggested that the Bill be revised to provide for effective executive oversight. He stressed that the credibility of the DPCI would be enhanced by an oversight body that was totally independent of political involvement.
Society For State Advocates (SSA) submission
Mr A Rossouw began by stating that they were representative from members across the board including those that work in specialised crime fighting agencies for example, the Asset Forfeiture Unit. He maintained that the proposed legislation affected all prosecutors, not just those that worked for the DSO. He assured the Committee that the SSA was committed to the fight against crime and dedicated to prosecute without fear, favour or prejudice as was expressed in Section 179(4) Constitution and Section 32 of the NPA Act.
He urged Parliament to learn from past experience in correcting past mistakes in that there was a concern from their members relating to the reversion to the more traditional model of divided investigation and prosecution when compared to the prosecution-guided model that was currently being used.
He noted that the traditional model adequately facilitated the less complex cases between the police and the prosecutors but that it was less successful in fighting complex cases and could even be inefficient and counter productive. He stressed that successful investigation and prosecution of complex crime required the multi-disciplinary approach, especially between prosecutors and investigators.
He strongly advocated the multi disciplinary approach that was created by the Office of Serious Economic Offences, which in itself was a creation of the public. He made mention that one of their members won an international award for work on the policing of cyberspace and that this was a prime example how successful the multi-disciplinary approach could be.
Furthermore, he suggested that the new unit be staffed by members of the same independent authority who remain responsible for the investigation and prosecution in an uninterrupted and seamless process from the beginning of an investigation to a conclusion in courts.
He stressed that proper oversight measures needed to be set up and high-level co-ordination with other government stakeholders need to be maintained.
He concluded with the recommendation that the best model for the investigation and prosecution of complex commercial crime and corruption was an integrated multi-disciplinary investigating team where proactive investigation techniques were required, resulting in swift investigation of crime.
Mr Carrim stated that there was a lot of overlap between the submissions of the Society for State Advocates and the NPA and asked the parliamentary researchers to tabulate all submissions in order to provide Parliament with one document.
Mr Bulelane Magwanishe noted his appreciation to the NPA and the BAC for their submissions. He addressed the NPA by questioning what percentage of work done by DSO was done by private companies and individuals.
Mr Willie Hofmeyr (Head: Asset Forfeiture Unit, NPA) answered by giving an explanation as to the volume of work that existed. He claimed that in the Brett Kebble case, there was enough work there that would keep their entire department busy for three years. He asked for understanding of the magnitude of the tasks. He explained that this was the reason for the DSO to put aside some of its budget to pay for specialised assistance especially in retaining the services of forensic accountants. He stated that he had no problem with employing outside assistance as this would ensure proper investigation, and that these companies were employed by the State before and had already established a good reputation.
Mr P Groenewald (FFP) questioned why some criteria as set out in Annexure D were not adequately addressed.
Mr Hofmeyr (NPA) accepted this criticism and explained that their focus was more related to the speed that the matter was being dealt with rather than on the lack of consultation that existed.
Adv Carol Johnson addressed the issue of integrated methodology and suggested that this method could be used in the interim, even before legislation was passed on it.
Mr Hofmeyr replied that integrated methodologies were already being used, for instance in the Sexual Offences Courts, the NPA worked on a day-to-day level with the police in order to successfully prosecute offenders. He advised that over the past 18 months, the NPA had launched a joint initiative with SAPS to build a specialist organised crime prosecutor capacity that could support the SAPS organised crime unit. It was evident that gaps were being identified if people were not working together in an integrated way; the results were poorer if people were following different command structures.
Adv Johnson asked about the problems with labour law and advised that it should be equal pay for equal work.
Mr Hofmeyr agreed.
Imam Solomons asked for clarity regarding the intelligence gathering of the DSO
Mr Hofmeyr replied that when the DSO was first established, the Head of Intelligence was Mr Richards who was a very senior person recruited from the Intelligence community, he was now with NIA. Therefore it was not that there was no attempt to deal with these issues but that difficulty was experienced when legitimate crime information gathering areas start to blur and then become pure intelligence issues. He said that it was difficult to identify where this blurring first occurred and admitted that therefore mistakes had been made. He asked that the new agency have a proper intelligence gathering capacity and not just a crime gathering capacity so that this blurring could be avoided. He stated that one of their concerns about the new proposal was that the issue of intelligence gathering had not been addressed
Mr Sitheko asked about the difficulty in the vetting of staff and requested an explanation. He also enquired about the problem of operational jealousy between agencies.
Mr Hofmeyr agreed that an integrated approach was the way to go. He explained that the issue of operational jealousies was personality driven; but that this was being addressed. He said that there was not a complete lack of cooperation but admitted that it was not optimal.
Mr Hofmeyr referred to the stress amongst specific individuals of the DSO and said that they were still consulting with the NIA about it, but they would take action where action was required.
He saw the issue of staff not being vetted as a more difficult issue. He explained that they were experiencing significant delays in renewing security clearances that might have expired and that they were addressing the issue.
Mr J Mahlalela (ANC) asked about transforming traditional processes to make them better.
Mr Hofmeyr replied that they tried to handle cases in the most appropriate manner and gave the analogy that they would not use a Rolls Royce in situations where a Toyota would do but acknowledged that sometimes a Jaguar might be needed. They were trying to develop models that were not too resource intensive, especially where it did not need to be resource intensive.
Ms Kohler Barnard asked about the feelings of the unit as to the impact this proposed legislation would have on the current case law as regards the Jacob Zuma case or the fact that they were under the control of Jackie Selebi.
Mr Hofmeyr replied that these cases were important but that certain specifications had been put in place as regards to sensitive cases.
Mr Swart addressed issues that occur due to lack of consultation.
A member of the NPA answered that this would be considered by the DSO.
Cape Bar Council submission
Mr Rudy van Rooyen said that the Council had issue with Clause 3 of the SAPS Bill in that it was unclear about the powers of the Provincial and National Commissioner. They wanted a clearer delineation of powers as their concern was that powers of the Provincial Commissioner would be whittled away.
Asst. Commissioner PC Jacobs, SAPS Head of Legal Services, noted the concern.
Submission by Mr Hugh Glenister
Mr Hugh Glenister began by saying that the Review of the Criminal Justice System that would be initiated by Deputy Minister Johnny De Lange had instilled hope back into the fight against crime.
He pointed out that his submission had been written the previous week and that his sentiment towards Parliament had since changed. He added however that it was necessary to continue with his submission as it still carried some significance to the day.
He stated that the DSO was successful in fighting corruption and that there was no rational basis to the decision taken at Polokwane. He could only infer that it was taken by the ANC to protect some of its members from being investigated. Therefore, the motivation for the disbandment of the DSO was unconnected to any legitimate government purpose and that it made the country more vulnerable to organised crime.
He initiated his argument by saying that the Bills, in the manner they were being processed, violated his constitutional rights of life, privacy and dignity. The decision also violated the constitutional principle of accountability.
He informed Parliament that he had brought an application to interdict the government, and asked for the parliamentary process to be halted until the judgement had been given
He maintained that he was against the manner in which Parliament had proceeded to disband the DSO without paying significant regard to the public’s concern. He said that it gave the impression that Parliament had rushed these Bills through without giving them due cognisance.
He said his petition against disbanding the DSO had attracted 85 000 signatures. He said that Parliament should not allow itself to be a rubber stamp.
Mr Carrim congratulated Mr Glenister in his ability to mobilise 85 000 signatures and noted their inclusion to the submission.
He then joked that Mr Glenister should rather join the ANC as his input there would be more effective. He also called upon Mr Glenister not to keep taking matters to the Constitutional Court, but to rather come and address Parliament about his concerns.
Mr Carrim questioned Mr Glenister as to what part of the public he represented, apart from his 85 000 signatures.
Mr Glenister maintained that it was just his personal feeling as regards to the general sentiment of the country. He also said that it was reflective of the feelings of his personal friends and if Parliament required a list of names as to who his personal friends were, he would be happy to provide this to them.
When asked by Mr Carrim to where he first sent his petition, Mr Glenister answered that he sent his 85 000 signatures to the Democratic Alliance.
Mr Carrim pointed out that it would have been more helpful if he had sent the signatures to Parliament directly and not via the DA.
Ms Kohler Barnard of the DA interjected and said that she had been provided with different figures.
Mr Glenister said that there was confusion as to the number of signatures obtained.
Mr Carrim asked Committee officials to provide the final figures on how many signatures were obtained, and that this must be made public by 2pm tomorrow.
Mr Carrim then invited Mr Glenister to return to Parliament during September and make his sentiments known as the Bill would only be processed at that time. He assured Mr Glenister that these Bills would not be hastened through Parliament and that they had to follow due process.
Mr Glenister claimed that the public’s concern against the disbanding of the DSO was not being addressed.
Mr Carrim then asked the Committee Secretary to arrange for Mr Glenister to receive the SABC taping of the Committee’s 30 July media briefing as Mr Carrim denied having said the public would not be heard.
Mr Glenister said that certain members of the ANC were making democratic conversation difficult by giving the impression that only if you agreed with them, they would talk to you; but if you were against them, they did not want to hear from you.
Mr Glenister acknowledged the hard work of the police force but said that it was public knowledge that some members of the police were corrupt. He said that it was more important to fix the problem and not to point fingers at who had the problem. He maintained that the police force needed to be fixed.
Mr Glenister explained that he chose to go to the Constitutional Court because bold statements were being made by the ANC in January, February and March of 2008 that attacked the Scorpions using the media as a weapon without giving the Scorpions an opportunity to defend itself. He decided that it was important to act immediately and therefore chose to approach the Constitutional Court as a media war was being waged against the Scorpions.
Mr Glenister maintained that he did not want Parliament to become a rubber stamp.
He further claimed that he had a problem with the NPA’s submission to Government. He explained this by saying that the NPA worked for Government and were paid by Government. The NPA therefore came to Parliament as Government employees and on that basis they were not capable of attacking Government.
A point of order was immediately made by Imam Solomons who pointed out that the NPA was an independent body and did not work for Government.
Mr Carrim said that the subtext of Mr Glenister’s claims revolved around everybody who supported the disbandment of the Scorpions were dishonest and without integrity. Mr Carrim explained that 4000 members who represent several thousand people had made a democratic decision to disband the DSO.
He implored Mr Glenister to keep an open mind and invited him to employ a monitor to go to all further committee meetings if he could not be there himself. He asked Mr Glenister to come forward with ideas as to how Parliament needed to proceed with the establishment of the new unit.
Mr Glenister admitted that he had listened to powerful input today but maintained that it was important that Parliament did not rush through the new Bills and that due diligence be applied to this process.
Mr Carrim said that if it necessary to slow the process down, he would do so in his capacity as Chair of the Justice Committee and invited Mr Glenister to return in September with new ideas. He said that there was no disagreement between Mr Glenister and himself and thanked him very much for his input.
- Review of the South African Criminal Justice System
- National Prosecuting Authority presentation
- Hugh Glenister submission
- National Prosecuting Authority Comment
- National Prosecuting Authority Annexure
- Business against Crime presentation
- Business against Crime submission
- Society for State Advocates submission
- South African Police Service Presentation
- Explanatory Note: National Prosecuting Authority Amendment Bill, 2008
- Cape Bar Council submission
- We don't have attendance info for this committee meeting
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