The Committee continued to take submissions on the Bills that would result in the dissolution of the Scorpions and establishment of the new Directorate of Priority Crime Investigation (DPCI). The Democratic Alliance raised a point of order that it was not convinced of the necessity for this Committee to sit long hours in order to ensure that this legislation was passed in the current session. The Chairperson asked all present not to pre-judge the manner in which the Committee was dealing with matters. Several points were raised about a recent media briefing and statements by various members of government suggesting that the Scorpions were to be disbanded, as well as a radio advertisement that called for comments focusing on how the new Directorate should function, which created the impression that the whole question of the possible dissolution had been pre-judged. The Chairperson clarified the context in which statements had been made. There was also debate on the Co-Chairperson’s ruling the previous day that no questions be asked around the Khampepe Commission Report. It was decided again that the context was important, and the Chairperson ruled that there could be debate on this issue with civil society.
The South African Catholic Bishops Conference submitted that public perception was that the South African Police Service (SAPS) had not been successful in combating crime, but that the Directorate of Special Operations (the DSO) had, and therefore the motive to disband the DSO was questionable. The reasons why this Unit was brought into existence still pertained. The Bills were seen as a direct result of an ANC Policy Conference resolution, which was of concern. There was also public concern that Government had not acted on the Khampepe Commission findings for 22 months, but had only after the Polokwane Conference seen the DSO position as a priority. Various officials’ statements suggested that the public hearings were merely a matter of form and that the dissolution had been pre-judged. The Church therefore urged the Committee to display independence of spirit be shown and allow for proper debate and consideration.
The Institute for Democracy in South Africa (IDASA) raised several similar arguments. In addition the fact that the Review of the Criminal Justice System overview was presented only on the previous day made it difficult for civil society to comment fully on the Bills in context. IDASA was not convinced that there was a proven need to create the new Directorate of Priority Crime Investigation (DPCI). It submitted that the Bills were based on an incorrect interpretation of Sections 199(1) and (3) of the Constitution. IDASA suggested that there were several other options available for a robust crime fighting unit, such as one similar to that of Mauritius or the United Kingdom. It opposed the Bills. There should not be disestablishment without first making an attempt to implement the Khampepe recommendations.
The Helen Suzman Foundation reiterated some of these points and also noted that the Constitutional Court had commented in the NICRO case upon the State’s constitutional duty to eliminate crime. These Bills related not only to policies and institutions, but to the societal fabric and constitutional rights of all citizens. It was suggested that the chronology of the history displayed a clear link between the Polokwane resolution and the Bills, and created the impression that the ANC was trying to shield its members from investigation and prosecution by the DSO. The methodology of the DSO had proved successful. The arguments that the Constitution demanded a single police service were not correct. The cost implications were not fully known and therefore the Rules had not been followed. The Bills would do the opposite of what the integrated criminal justice system should achieve. It was suggested that discussion on the Bills was inappropriate before the Court finding in the Glenister matter on 22 August. The Bills offended several constitutional principles, had incurable deficiencies and should not be approved.
The DSO Concerned Group submitted that their observations were made on the basis of their practical experience in dealing with organised crime. The troika approach of prosecutorially driven investigations, intelligence and prosecution adopted by the DSO was proven to be successful while other models, including that proposed in the Bills, had failed. Even where there had been good cooperation with SAPS the accountability issues had been problematic. DSO Members had not been consulted, nor even told of the details around the decisions, but still did not know exactly what informed it. There was no guarantee that DSO investigators would be willing to move to SAPS, there was no guarantee of their transfer to the new DPCI, there was a risk of victimisation due to previous positions and no protection provided for in the Bills. The placement of DSO under SAPS offended the principle of separation of powers. The Bills failed to address crime that was affecting security and would hinder the fight against crime.
Questions and comments by Members gave some clarity on the public participation process, on the reporting lines, and on the naming of implicated officials, the attempts to strengthen the SAPS, the role and function of the Constitutional Court and the likelihood of challenges to that Court should the Bills be approved.
Ms B Madumisa submitted that it was not so much organised crime as crimes directed against individual that were of concern to South Africans, and the alleged success of the DSO must be measured against the fact that it had failed to counteract ATM bombings and cash heists. She supported the principle of collaboration amongst law enforcement bodies but called for a move of the DSO to the SAPS to strengthen the SAPS, and for proper resources to be given to every branch of the justice system. Any proposed new entity must have clear lines of responsibility and reporting.
The Centre for Constitutional Rights suggested that the Bills were inconsistent with the Constitution, fundamentally flawed and should be rejected. It seemed that they had been prepared in haste with insufficient attention to the Constitution. The DSO should not be disbanded without due consideration of the constitutional requirements that called it into existence, and the constitutional impact of its dissolution on the National Prosecuting Authority must be considered. Once again the Executive’s actions in response to the Polokwane Conference were questioned.
Mr Ivan Myers, a former SAPS Superintendent, opposed the incorporation of the DSO into the SAPS, pointing out that this would be a retrograde step since the SAPS was largely dysfunctional at present. He said that some elements at top levels of SAPS were ignorant and arrogant, did not have the necessary training or experience to offer guidance to junior staff, were obstructive to the DSO and had lowered morale. SAPS’s proposed increase of members would not address the problems, as it was quality that was lacking at present. He thought that SAPS should admit to its failings, that the DSO should remain where it was, as it had been proven effective and a formidable body that was respected, and be given the opportunity to expand. Further specific suggestions were made in relation to improvement of SAPS.
Mr Themba Langa claimed that the DSO was bent on conducting “unsavoury” investigations, in particular into Mr Zuma and that this was damaging the image of the country, affecting its economic standing because of the legal uncertainties being created, and were indicative of the apartheid insight of the DSO. The DSO was dividing the country on racial lines. It should not be permitted to destroy the political and economic situation. The DSO had failed to combat organised crime. Therefore its disbandment, and redirection of the funds spent on it, would be beneficial. He then suggested that it should be located in the SAPS as the “expansion of the SAPS’s capabilities and resources with the inclusion of the Scorpions” would produce positive results.
Members asked presenters to clarify some of their assertions, and asked how much had been spent by the DSO on outsourcing, and whether the presenters had studied the full Khampepe report.
The Institute for Security Studies opposed the legislation, and recommended that the Scorpions be retained within the National Prosecuting Authority. Nevertheless, the Institute suggested several proposals in the event that Parliament decided to relocate the Unit. One notable recommendation included the retention of the prosecution-led approach followed by the Scorpions. Afterwards, Members debated the prosecution-led approach, the mandate of the Scorpions, the importance of oversight, and South Africa reneging on its international commitments.
George Fivaz and Associates recommended that the new structure be mandated and structured in a manner which was dynamic and systemically flexible to enable it to adjust and expand its capacity and capabilities to meet and combat a constantly evolving criminal system. The broadening of the mandate was essential to optimise its prospects of success. While it might be argued that the proposal was virtually unique and without precedent, it might similarly be argued that the nature and character of the criminal challenge to South African society required precisely that: a new and innovative approach, combining both elements of the special resources afforded to the DSO; combined with an structurally and systemically entrenched inclusive, integrated and coordinated character which the DSO lacked; and within the organisational structure of the institution constitutionally charged with combating crime, the SAPS. Members asked questions about the prosecution-led investigations, the rationale for relocating the DSO and the specialised units in the police services. Members also debated the conundrum of intelligence and the power of the National Commissioner.
The Public Servants Association expressed concern about the transfer of special investigators from the Scorpions to SAPS as well as the discretionary powers, assigned to the National Commissioner of Police, to only absorb selected employees from the DSO. The entity was of the view that transfers of this nature were governed by the Labour Relations Act, which stated that there should be a continuation of rights and obligations in respect of the employer and employees.
Process of the hearings: point of order
Before the public hearings commenced, Dr T Delport (DA) noted that the holding of public hearings to consider legislation was a normal process of Parliament. He referred to a comment by the Chairperson that, if necessary, the Committee would sit until 2am. He asked why it appeared that this Bill was being pushed through at all costs, and who had given instructions for this unseemly haste.
Co Chairperson Mr Y Carrim (ANC) responded that his remark must be seen in context. On the previous day, the first part of the meeting had taken at least an hour longer than expected. When the matter was first being considered, he had said that no matter that there may be hundreds of submissions, all would be considered. Nobody had been refused the chance to make a submission. He had made that comment to illustrate that people would not be turned away for lack of time. He stated categorically that he was under no instructions, and nobody in the ANC leadership had asked him to act in any particular way regarding these Bills. It was not unusual that the Committee might take extra time. When deliberating the Child Justice Bill, the Committee had sat until very late at night. There was no question of "undue haste". In any event, Parliament would only be able to pass the Bill, at the very earliest, in the second or third week of September.
Mr Carrim noted that there had been a report that the two Chairpersons had said that there would be no need for a referendum. He pointed out that this was because the voters would have a say far more usefully during the forthcoming elections than they would have during any referendum. The Section 76 process was effectively public. The Constitutional Court would not find the Committees wanting if they did not follow procedures that they were in any event not obliged to follow. He asked that people not pre-judge the process.
Mr S Swart (ACDP) noted that there was still an outstanding issue from the previous day.
Mr N Vanara, Parliamentary Legal Adviser, noted that the matter was under consideration by the legal section, and would revert to the Committee.
Mr Carrim noted that if it was said that those being investigated by the Scorpions could not participate in the discussions on the Scorpions, the question then also arose whether they would be allowed to vote in the House. That was something for consideration.
Mr B Magwanishe (ANC) expressed the view that the DA was guilty of laziness and hypocrisy. There were some matters on which the Committee had sat until 1am in the past, but this point had never been raised at that time.
Mr Delport responded that the DA was neither hypocritical nor lazy. There was a good reason why the Committee had sat late before. He had asked what reasons there were in this case to do so. He had not received a proper answer. He did not feel that the issue should be politicised.
Mr Carrim noted that his remark had been a facetious comment, and he did not think more time should be spent on it.
Dr F van Heerden (FF+, Free State) asked how to reconcile the remarks that there was no hurry to finish this Bill with the remark about the first two weeks of September, only a short time away.
Mr Carrim reiterated that there was no hurry. He clarified that he had said that there was no possibility of going to the NA to adopt this Bill immediately, but that at the very earliest the likely date would be in September.
South African Catholic Bishops Conference (SACBC) submission
Adv Mike Pothier, Research Director, Parliamentary Liaison Office, SACBC, noted that his Office had existed since 1997, to present opinions, views and suggestions of the Catholic Church as a member of civil society. This was a Bill of great political significance. The public input was tremendously valuable and should not be diminished. The SACBC was concerned that the origin of these Bills, and the way they were coming, was diminishing these values. One of the reasons why these Bills had aroused so much interest, speculation and consternation was because crime was a matter of perception and the public perception (which was debatable, but indeed existed) was that on the one hand the traditional forces had not been successful, whereas the Directorate of Special Operations (referred to as the DSO or Scorpions) had been successful, but there was a move to disband them despite that success.
There was overwhelming perception that the reasons why this unit was first brought into being were still relevant today. The Church agreed that this was cogent. A church organisation would not usually comment on technical aspects of policing and so forth. However it was concerned that one expert after another had said that the reasons advanced for the disbanding were not good enough, and that whatever would replace the Scorpions was not up to the job, the Church felt that Government must take these comments very seriously, and should provide explanations where necessary and reasons for change. The pronouncements so far in the media had not done so. Until such reasons were advanced, the speculation would continue, and negative perceptions would worsen if the replacement Unit, the Directorate for Priority Crime Investigation (DPCI) did not come up to scratch.
What was more important than the content of the Bills and what they sought to achieve was the context in which they came before parliament. At the 52nd National Conference of the ANC (the Polokwane Conference) a resolution was taken that the Scorpions be dissolved. This had set a dangerous precedent. It was not correct for a ruling party, even one with 70% of the vote, to set this sort of detail or issue directives. It was noted that Cabinet was already by this stage looking at reform, but this was difficult to accept, given that government had had the Khampepe Report on the DSO available to it for twenty-two months and had done nothing to implement any of the recommendations. The DSO question only became a priority after than Polokwane Conference.
Adv Pothier said that the conference resolution linked further into other objections. The Minister had issued a statement in February that the Scorpions were to be dissolved. He asked how this left room for genuine parliamentary debate and consideration of the views of opposition parties and the public. The question on disbandment was repeated by the Chairperson of the Safety and Security Committee the previous week. He said that this appeared to indicate that the public hearings were merely a question of going through the motions. Parties may hear technical aspects, but the core question was not to do with the wording. It was instead the whole future of the unit, and it was a dangerous precedent if this had already been decided upon.
Adv Pothier pointed out that in the past Parliamentary Committees had sent bills back, rejected or amended them on the strength of civil society input or the party comments. That was how a democratic process should work. The same spirit was not apparent for these Bills. The SACBC therefore urged that that independence of spirit be shown, and that there be a distinct possibility that the fundamental core of the Bills be rejected should sufficient reason for them not be shown. If, after proper debate and consideration the Scorpions were dissolved that would be an open process, but at this stage that process did not appear to be followed. He reminded Members of Section 43 of the Constitution, pointing out that the legislative authority was vested in “parliament” and not in a conference of a ruling party.
Institute for Democracy in South Africa (IDASA) submission
Mr Gary Pienaar, Senior researcher, IDASA, expressed appreciation for the reassurances on the previous day that these proceedings would meet constitutional requirement. Apart from the controversies raised at the media briefings, he pointed out that recent radio announcements had said that submissions to this Committee should focus on making the proposed new Directorate work.
Mr Carrim interjected that this Committee had nothing to do with the radio advertisements. He asked whether the text of such advertisements should not, as a matter of course, be approved by Chairpersons of Committees to check that they were consistent with the Bills under discussion. He said also that there had been some statement that anyone wanting to speak must phone a number to book a slot. That was not following procedure and he would like to take this further during the lunch break. The Co-Chairpersons had not approved this advertisement and he apologised on behalf of the Committee section for the inaccuracy.
Mr Pienaar accepted his point. He said that all those making public submissions were of course within their rights to request retention of the DSO and that all differing views must be considered on their merits. Public interest, not public numbers, must be taken into account.
Mr Pienaar commented, in relation to the presentation by the Deputy Minister on the previous day, that it was positive that the Executive had been asked to disclose its blueprint, but the fact that this was given only on the previous day made it impossible for the public to comment properly. Government should be explaining at the outset why it believed that the new DPCI would be more effective and preferable to the DSO. However, the review by Government yesterday failed to mention the DSO at all in the analysis of the problems, nor had it given any rationale for creation of the new unit. It had in fact indicated that the creation of the DPCI would cause disruption to the South African Police Service (SAPS). Mr Hugh Glenister, in his remarks, had noted that this was the fourth review of the Criminal Justice System and there was no guarantee that this one, like the others, would produce the correct results.
IDASA therefore was of the view that there was no need to create a DPCI at this time, and given that it would have to compete with numerous other imperatives this alone raised fundamental queries. The backlog project had proved successful in having trials finalised. For this project, court staff were recruited from outside the criminal justice system, and the fact that they operated so effectively gave weight to the argument to see the DSO as a unit independent of this system.
Mr Pienaar submitted that the Bills were based on the incorrect interpretation of section 199(1) of the Constitution. Any claim that this referred to a single police service, and consequently that the DSO, not being a single service, must be disbanded, was incorrect in law and furthermore ignored section 199(3), which allowed for the possibility of additional law enforcement structures. The rationality of such an argument was doubtful and this was in itself a reason to dispute the dissolution of the DSO.
The Memorandum on the SAPS Bill omitted discussions of the findings and recommendations of the Khampepe Commission, and in fact the Bills were in contradiction of the central recommendations. Government had made no attempt to implement the recommendations of that Commission. The weak terminology used in Clause 16A, that the Forum “may” be effective was not compelling. The rationale was questionable and government’s failure to provide reasons further added to the doubts.
Mr Pienaar noted that the theme of the written submission of IDASA was focused on strengthening institutions of law enforcement and supporting the rule of law. A fundamental precondition was meaningful independence of any unit, and that was central to public confidence. Yesterday there were repeated affirmations of the strength of the mandate, and IDASA endorsed that. However, a failure to ensure robust independence would render anything that was put in place ineffective. The central pillar of the DSO entailed the authority to initiate its own investigations, rather than awaiting centralised procedures and instruction.
International best practice showed the value of mutual accountability to independent institutions. The mere fact that appeals were a fundamental basis of any legal system showed a recognition that people could err or be driven by incorrect reasons. The written submission of IDASA suggested a middle way between retention of the DSO and creating a weakened DPCI. One alternative might be the secondment of SAPS to Directorate of Public Prosecution (DPP) offices. A second alternative could be a unit with the DSO characteristic, managed by a board comprising representatives of the different spheres, but retaining the independence of the National Prosecuting Authority (NPA). Examples of this could be found in the ICAC of Mauritius or the Serious Organised Crime Agency of the United Kingdom. The latter was a non departmental body with four directorates, reporting to a Board, and combining intelligence, analysis, investigative and prosecutorial skills. IDASA submitted that the proposed composition and placement of the DPCI would fail to support the achievement of government objectives, as it would not advance the cause of crime fighting and would depart from the proven efficacy of the DSO.
Lack of respect for an ineffective agency would not engender public trust that was so necessary to counteract crime. Given the international success of DSO and repeated findings on its legitimacy, its dissolution would undermine public confidence and efforts to combat organised crime.
IDASA therefore submitted that there should not be disestablishment without firstly making an attempt to implement the recommendations of the Khampepe Commission, or providing substantial and compelling reasons not to implement those recommendations and substantial and compelling reasons also why the DPCI would improve the current situation. The Bills should not be approved in their current form
Helen Suzman Foundation (the Foundation) submission
Ms Raenette Taljaard, Director, Helen Suzman Foundation, noted that she had deep compassion for the strictures under which Parliamentarians were placed.
Ms Taljaard noted that she too wished to speak to the context in which this legislation was being introduced. The Constitutional Court, in the NICRO case, had commented that crime struck the very core of the fabric of society, affecting a number of citizens’ rights, undermining the rule of law and foundational values, whilst those committing crimes violated their own constitutional duties and responsibilities. The State had a constitutional duty to eliminate crime. She noted that the discussions around the DSO related not only to policies and institutions, but around the societal fabric and constitutional rights of all citizens.
Ms Taljaard set out a detailed chronology of the history of this matter, stating that she believed that this would illustrate that the process was flawed. Parliament itself had created the DSO in 1999 to 2001, as a specialised agency focusing on combating organised crime. In 2005 the Khampepe Commission was appointed to report on the location and mandate of the DSO, and this report was delivered to the President in February 2006, recommending, amongst others, that the DSO be retained within the National Prosecuting Authority (NPA). The National Security Council approved the recommendations of the report in June 2006 and the report was endorsed. However, that report was not released to the public until May 2008. Instead, in June 2007 the ANC’s National Policy Conference recommended that the DSO be dissolved and in December the 52nd National ANC Conference adopted that recommendation as a resolution and instructed government to carry out such dissolution. In January 2008 the newly elected National Executive Committee of the ANC decided that this should be done by June 2008, in February 2008 the State of the Nation Address already alluded to impending “restructuring” but the Minister of Safety and Security already stated, in the same month that the DSO “will be dissolved” and its work absorbed into the SAPS. In March 2008 Hugh Glenister launched a High Court application raising fundamental constitutional breaches by the Executive. In April 2008 government said that legislation to give effect to “the decision” had been approved, and the Bills were published in May and June. Only in late June 2008, in the advertisements calling for submissions, was reference made for the first time to the Overview of the Proposed New Integrated Criminal Justice System (the Overview). This differed from the standard procedure in which this review would normally follow the Green and White Papers. On 30 July the Chairperson of the Safety and Security Portfolio Committee stated that the ANC had “taken the decision” to dissolve the DSO and that the only detail would be the provisions of the Bill. The Overview document was presented for the first time on 5 August and the public hearings were from 5 to 8 August.
This all impacted upon the public participation. It was vital to have a discussion on the successes of the DSO, which had been shown to be very effective in combating organised crime, with a success rate of more than 80%. A necessary part of that was the prosecution led, and intelligence driven investigative approach (the troika approach), which was included when the DSO was formed. Its independent and impartial investigation was vividly demonstrated by the pursuit of key government officials and linked individuals as well as the pending prosecutions of Jackie Selebi and Jacob Zuma. A number of DSO investigations were pending against senior members of the ANC and other parties
The fact that there was a clear link between the Polokwane resolution and the amendment Bills created the inescapable conclusion that the government was attempting to shield members of the ANC from effective investigation and prosecution.
The dubious rationale that the existence of the DSO could not be justified because the Constitution demanded a single police service had already been dismissed by the Khampepe case and the Constitutional Court dicta in the Potsane case.
Ms Taljaard also said that there had been failure to comply with Rule 243(1)(c)(iii) of the National Assembly rules in that the cost implications were not fully addressed and therefore the Committees could not fulfil their constitutional duties. This concern was amplified during the SAPS submission, where SAPS had said that it had no clear cost audit on the proposals.
Ms Taljaard noted that the opportunity for organisations to meet yesterday with the Chairpersons was appreciated, but there was ongoing public confusion, cynicism and concern about the processes. The processes must be shown to be constitutionally sound and the truncated time periods were problematic.
Mr Peter Leon, Attorney, Webber Wentzel, representing the Helen Suzman Foundation, said that the Overview tabled the previous day made no attempt to link the Bills with the overview. The Bills seemed to be doing the opposite of what Government was trying to achieve through an integrated criminal justice system.
Mr Leon noted that the Glenister application was set down for argument on 22 August. He submitted that it was improper to discuss these Bills before the Constitutional Court made a finding. The High Court did not deal with the substance of that complaint because the ruling would affect the single system.
The Memorandum on the Objects of the SAPS Bill suggested that the Bills were seeking to “relocate” the DSO. This was a misnomer; it was in fact an abolition. The Overview spoke of a holistic and integrated approach to address crime, to address the past weaknesses of lack of coordination between the different players. No proper criminal justice system review had been proffered. The Bills failed to give proper effect to the recommendations of the Khampepe Commission, which was accepted by Cabinet, who then failed to ensure that the criminal justice system and the coordinating committee operated more effectively. The Bills were effectively destroying the troika approach that had been implemented by the DSO and found successful. The proposed new Section 16A of the SAPS Act was disestablishing the DSO, and would concentrate huge power in the SAPS Commissioner. One of the greatest achievements of the DSO interaction with SAPS had been that each organisation was keeping checks and balances on the other. The overbroad new mandate of the DPCI resulted in a loss of focus on organise crime. The effect of implementing these Bills would be that the troika approach would be lost, that cooperation and integration would be diminished, and powers of search and seizure would be weakened.
The Bills also now contained national security vetting provisions identical to those in the NPA Act, which was directly contrary to the Khampepe Commission’s findings that these had been inadequate.
Mr Leon submitted that there were fundamental infringements of several constitutional principles. The conduct of government leading up to the introduction of the Bills was a breach of the rule of law, as the legislation was seemingly initiated for improper purposes and on the basis of unlawful dictates from the Polokwane Conference. The legislation was flawed because it was rationally connected to its stated objectives or to legitimate government purposes, nor to the recommendations of the Khampepe Commission. It infringed citizens' rights, and the State's duties to take positive measures to respect, protect, promote and fulfil the rights in the Bill of Rights (section 7(2) of the Constitution). In addition, the Bills infringed sections 198(a), sections 41(1)(a) and (b), and section 41(1)(g) of the Constitution.
For these reasons he submitted that the Bills suffered from incurable constitutional deficiencies and should not be approved. The disbanding of the DSO would amount to serious and unjustified violations of the rule of law. He urged Members to have regard to the Constitution and not to party policy.
In conclusion, Ms Taljaard mentioned that the name of the Minister of Justice had been listed as under investigation on a document filed by Mr Glenister in his application. Affidavits had been filed to remove that name from the list, and she also wished to have the name struck from documents before this Committee.
The DSO Concerned Group (the Group) submission
Ms S Linger and Mr William Viljoen represented the DSO Concerned Group, who were making submissions based on their years of experience in DSO matters. The main issues the Group wished to raise were prosecutorial involvement, relocation of personnel, independence from the Executive and the proposed new Section 16B into the SAPS Act, and the mandate of the new unit.
THE DSO prosecution model had been finally adopted after other models had been tried and found wanting. Whilst the SAPS model addressed run of the mill crimes, it did not effectively address long term criminal investigations and prosecutions. This was in part because prosecutor and investigator were under different accountability lines, and instructions issued by one party could not be followed through effectively. It was essential, in dealing with offences of organised crime and corruption, that prosecutor and investigator had a common objective. In the DSO model the investigations were prosecutorially-driven from inception, so that there was no confusion around final accountability. The Group submitted that to ignore this model and repeat the experiences of the past would do a disservice to citizens, as it would hinder the fight against crime. It was true that the involvement of prosecutors from the outset took time and resources, but on the other side there was saving in that the leads and witness investigations were totally focused and the cases finalised more quickly. Money laundering and enterprise fraud were complex issues. Guidance by prosecutors skilled and experienced in these areas would enable investigations to be conducted with confidence and knowledge and to achieve a balance between the rights of individuals and the public. Acquittals on technical points would lessen public confidence, and prosecutors tended to select evidence that they knew would be admissible, and make real-time decisions. The DSO model allowed for continuity of prosecutors. Although there were cases where SAPS had good relationships with prosecutors, the final accountability under that model had always been an issue.
DSOs member were directly affected by the relocation, but they had not been consulted nor given the opportunity for input. They had eventually merely been told that the decision had been taken, but not what informed that decision. The proposed strengthening of SAPS would only happen if the majority of the DSO investigators did transfer to SAPS and there was no guarantee, even then, that SAPS would properly utilise their specialised skill and experience. The new Section 16A (3) of the SAPS Act did not provide for transfer directly to the DPCI, and the fact that many investigators had not been through SAPS training could be used as a disqualification. There was lack of security of tenure at DPCI, as the National Police Commissioner would have so much power. Given the factual situation with Jackie Selebi, the DSO officials were not willing to submit themselves to the whim of the Commissioner. There was a real threat that the perceived antagonism could be translated into victimisation and the Bills did not provide any protection should this occur. At the moment only the individual DSO members’ commitment to the fight against crime was keeping them at the DSO, but at least 40% were already actively seeking other employment as they did not see SAPS as providing an environment where they could be effective.
The Group submitted that putting the DSO under SAPS would be contrary to the separation of powers. An independent investigation was imperative to establish public confidence. The SAPS Bill would result in all investigations under central control of the Commissioner, a situation with a high potential for corruption. Having a body with the power to prevent corruption was a necessary component of democracy.
The Group said that the proposed Section 16B(5) to the SAPS Act drew on section 28(6) of the NPA Act. This was a valuable instrument during investigation, but only if used correctly. A refusal by a person to answer questions served no real purpose, and past experience of section 205 of the Criminal Procedure Act showed that it led to substantial delays and allowed suspects to conduct a fishing expedition.
In relation to the mandate of the DPCI, the Group noted that the Bill did not refer to high level organised crime. The Bill failed to address crime that was threatening security. It was reverting to a model that had proved inadequate to address organised crime, was removing a functioning unit that addressed all three priority cases, and replacing it with one that would not be able to do so. The disbandment of the DSO would set the fight against crime back twenty years. The Group therefore proposed that a proper analysis must be performed, so that positive aspects could be built on. The Group was prepared to be involved, but had never been given the opportunity
Mr Willie Viljoen added that a question was raised the previous day as to how intelligence was handled in the troika model. When the DSO was established, it was envisaged that it would use SAPS Intelligence and the National Intelligence Agency (NIA). SAPS did not cooperate and the NIA mandate was not directed at crime intelligence. The DSO therefore established its own capacity. It was important to distinguish between intelligence and crime information; DSO dealt with the latter, only becoming involved in intelligence in order to populate its database and draft a threat analysis. There had been no separation between gathering of information, investigations and prosecutions; all were conducted simultaneously by a dedicated team, many of whom would handle their sources themselves. The DSO already had a vision, but was waiting for others to join it.
Mr Carrim asked that any further written submissions commenting on issues that arose during the hearings should be submitted by Monday 18 August.
Mr J Jeffery (ANC) noted the comments on the public participation process. He thought this had been clarified on the previous day. He confirmed that the approach of the Committee was not based upon the Polokwane Conference, so he was not sure why this was still an issue, and asked whether the submissions had taken into account the supplementary comments of Mr Carrim on the previous day. He suggested that the content of yesterday’s meeting should perhaps be disclosed.
Mr Pothier responded that the possibility was still strong that the Scorpions would not be dissolved, no matter what was said at these hearings. An assurance that this was not so would reassure the public.
Mr Carrim interjected that if the public hearings established that the overwhelming majority of South Africans were opposed to the dissolution of the Scorpions then the ANC would take this into account. It would raise the matter at its study group. There were many challenging comments about the highest decision making body, the views of the electorate, and the relationships with the ANC. The role of the public hearings, the nature and quality of the democracy and the role of parliament had all been debated. He pointed out that if, for instance, a significant part of the Catholic Church constituents opposed a Church action, it would have to keep an open mind. The statements last week had been made in response to a particular party’s claim that certain figures would be available. The press conference was accurate to a degree, but whatever was happening now was more important. The question of whether the Committee was proceeding legally and democratically was still being proved. Only at the end of the process could this be properly assessed. He noted that to date there had been about 116 written submissions, with around 100 000 petition signatures, and further SMSs. Mr Glenister had apparently said that he was treated well by this Committee.
Adv Pothier responded that the whole substance lay in the process. He was encouraged by the remarks and must accept that the statement that the Scorpions were to be dissolved would not be applied without due consideration.
Mr Leon noted that public participation was indeed a major issue. The Committee would have to take into account the principles from the Matatiele and Doctors for Life Constitutional Court cases. It would also have to consider how to deal with the document that was tabled for the first time yesterday, spelling out what Cabinet was proposing, how it could get meaningful comments in the absence of this document, how the Review of the Criminal Justice System would impact upon the legislation before the Committee, and what time frames were to be considered.
Mr Carrim commented that the public was not being asked to respond to the Overview. It was work in progress. Only Business Against Crime had been involved to date. The Committee would be writing a report on the response of the public to the submissions of the Deputy Minister. The public would be given another four weeks or so to submit comments on this.
Mr Leon said that the other issue was how the review related to the legislation.
Mr Jeffery asked whether the Justice and Peace Commission submission differed from that of the SACBC. Two submissions were made from the Catholic Church and he suggested that perhaps it would be useful to correlate them.
Adv Pothier responded that the Justice and Peace Commission did not contradict the “official” decision that was a more impartial one since the Justice and Peace Commission was circulating a petition. The popular support for the Scorpions from that petition did not translate into the Church’s official position since it was not expressing support for the office but was commenting on principles.
Mr Jeffery mentioned that the Khampepe Report had a number of comments on political accountability.
Mr S Swart (ACDP) intervened at this point to call for a ruling. On the previous day Co Chairperson Ms M Sotyu (ANC) had ruled that the Khampepe issues could not be raised. He had found that astonishing. He asked for another ruling on the point.
Mr Carrim said when engaging with civil society stakeholders anything could be discussed. The Research Unit had done an overview of the Khampepe report and would take the Committees through it. The ruling yesterday had been made in relation to the Overview briefing by the Deputy Minister, and was partially based on time considerations.
Dr Delport was not sure that this was a correct reflection of what had occurred. SAPS had referred to the Khampepe Report and Dr Delport had commented that their representation seemed to be skewed. He was then ruled out of order.
Co Chairperson Ms D Nhlengethwa (ANC) noted that the Khampepe report issues would be dealt with in the following week. Members had agreed on this.
Dr Delport said that there was no agreement on the issue; he was forced to submit to a ruling by the Chairperson.
Mr Swart said that he supported the fact that the Khampepe issues could be considered in more detail later. However, as a fact, issues arising from that report were being raised in the submissions. He believed that it would be important for Members to be able to engage on them briefly. The Memorandum to the Bills referred to the Khampepe Commission and Dr Delport had wished to know why that Memorandum was dealing with only selected issues.
Mr Carrim noted that it was a fact that the Khampepe report contained both positive and negative aspects, but there could be some difference of opinion on the relative weight attached to either side. He thought that there was a distinction between the Department briefing the Committee and representations from civil society. He agreed that points around the report should be aired in discussing the submissions from civil society.
Ms A van Wyk (ANC) said that she did not see any reason why this should not be discussed now.
Mr Carrim ruled that Members may ask questions on the Khampepe Report. He noted, in response to a comment from the DA, that the Committee would ask SAPS whether it believed that it had given a fair representation of the Khampepe report in its submission.
Ms Taljaard said that a great deal of cynicism had resulted from the media briefing and that required reactive combating. She appreciated the comments on a free-flowing exchange. Exchanges such as this one on the Khampepe report would be of concern in the context of the processes, as any “flare ups” in the processes would further impact upon public participation concerns.
Mr Jeffery resumed with his question. He noted that political accountability was one of the issues raised, and queried whether it would be correct for political accountability to rest with one Minister while another remained responsible for the budget. He noted that there had been input from IDASA on the location of the Scorpions and its powers when they were formed, and whether this was not an area to be addressed again.
Mr Pienaar said that a change of reporting lines would not be objectionable if it retained the independence of the Scorpions and what they were currently doing. He recommended that a model similar to that of the United Kingdom would not be inconsistent.
Ms Taljaard said that there were positives and negatives to the Khampepe report. However, she said that there had been Executive failure to implement the recommendations of that report. The Vadi Report some years ago reflected that this Parliament called on the Executive, as a matter of urgency, to establish the Inter-Ministerial Cabinet Committee and ensure that it was meeting. There was a need to determine why that recommendation was not followed up in the House over all those years, and why the Khampepe Report had not been implemented.
Mr Jeffery noted that the Helen Suzman Foundation promoted liberalism, which generally focused on individual rights. He said that he perceived a problem in the person involved in the investigation also taking the decision whether to prosecute, and cited problems with previous cases. He also said that he was uncomfortable with the naming of those under investigation; normally people would be named when charged, there had been problems in the past with leaks and he therefore thought the reference to those “implicated” was unfair.
Ms Taljaard responded that liberalism included the Constitutional rights of individuals. On the naming, she pointed out that she had used the word “implicated” and that word implied that a person was innocent until proven guilty. The names were already in open Court, and it was equally important to reflect them in this submission. It was noted that the documents flowed from the Court process, and that was why she made it clear that the Minister of Justice’s name must be removed.
Mr Jeffery said that this Bill was trying to address diversion of resources with the DSO on one side and the Organised Crime Unit on the other, and asked if, in light of the Review of the Criminal Justice System, this was the best approach. He suggested there was a need for further engagement with the DSO Support Group.
Mr A Moseki (ANC, North West) asked how and when Parliament should have been engaging in the process.
Mr Moseki asked the Helen Suzman Foundation for its comments on whether the Constitutional Court should not be deciding on these matters and whether it could give a proper decision.
Ms Taljaard responded that the Foundation absolutely did respect the Constitutional Court and hoped that the President would refer these Bills to the Constitutional Court. She believed it would have much to say on the Glenister application, the Executive prerogatives, and the separation of powers. Equally she hoped that the Committee, if it found areas of constitutional concern, would exercise its constitutional powers so that the process could be strengthened.
Mr Leon not only endorsed Ms Taljaard’s comments, but noted that the Foundation did not hold the view that the Constitutional Court judges were counter-revolutionaries.
Mr Moseki asked the DSO Group whether they were comfortable with the decisions and results of the Polokwane Conference and whether they would be prepared to come back with constructive contributions if asked.
Mr Viljoen responded that the DSO had not been comfortable with the Polokwane decision. DSO had not expected this, were concerned about how the decision affected individuals, believed that it affected the Constitutional and the rule of law and the country’s ability to fight crime. If the DSO had been privy to cogent and logical reasons for disbandment, then it might understand the matter better. On the contrary, in March 2007 the Minister of Justice had addressed the DSO National Conference, indicating that it was a valuable component of the criminal justice system. The DSO would have expected concerns about the unit to have been relayed through political channels, but this did not happen. He stressed that DSO had no alliances to any political party. The DSO would be prepared to come back with constructive input.
Mr Moseki noted that capacity must be utilised to ensure that crime was dealt with in the best way. He asked the presenters if they were opposed to strengthening the SAPS by including the investigative unit.
Mr Pienaar said that IDASA was not opposed to strengthening of SAPS, and noted the comment of the Deputy Minister on the need to recruit new staff.
Ms Taljaard said that the Helen Suzman Foundation respected the SAPS and believed that they had a role in the fight against organised crime. The key was what institution had been created, what conditions had changed, and fundamentally, in respect of the powers enshrined by law, which were the most effectively, especially in relation to search and seizure. The Foundation did not wish to denigrate any agency’s role in the fight against crime.
Mr Leon added that the location of the new Unit did not address the issue of the troika methodology, and the checks and balances that would be thrown into disarray by this process.
Mr Viljoen said that the DSO was in essence looking at how different tiers of investigation aligned with court systems. The Organised Crime Unit of SAPS would deal with anything and would operate at a slightly different level. As already proved, there was room for another tier, being an organisation dedicated to specific and complex matters and investigations that could not be dealt with in the normal run of business. For that, the Group felt that the troika model should apply. Prosecutor-guided programmes should operate in the Organised Crime Unit. There should be unity across the three units. He noted that DSO already believed that there should be close cooperation and he cited that DSO had recently given information to SAPS that resulted in 18 successful search and seizures.
Mr Z Ntuli (ANC, KwaZulu Natal) asked the SACBC how the "feeling of the people" was being assessed.
Ms D Kohler Barnard (DA) asked how large the constituency of the SACBC was.
Adv Pothier responded that about 10% of country was Catholic, representing about 4.5 million people, on a par with other mainline churches. The Catholic Church was a hierarchical organisation applying certain values and principles. As he had said before, the Church would approach the legislation from the standpoint of its morality and teachings, and from its support for the democratic process. It did not purport to claim that the Catholic population did or did not support the DSO.
Ms D Kohler-Barnard (DA) asked what action IDASA was likely to take if the Bills were passed in their present form.
Mr Pienaar said he could not reply to that and asked Ms Judith February, Manager of the Political Information and Monitoring Service-IDASA to do so.
Ms February said that IDASA wanted to keep an open mind about the process. It had not made any decision on litigation or future strategy.
Ms Kohler Barnard asked the Helen Suzman Foundation whether, in its opinion, there would be sufficient grounds for another challenge if it were to happen that the Bills were pushed through in response to the Polokwane Conference decisions, and if Mr Glenister’s case were found to be premature.
Mr Leon responded that on the issue of the separation of powers the Court may decline to express a decision. If so, then the whole question of ulterior motives, the rule of law, and other issues would need to be brought into the equation. Hopefully the Bills would be referred by the President to the Constitutional Court, but if they were not, then he thought that a number of civil society organisations would do so.
Ms Kohler Barnard was horrified to hear that the DSO staff had not been consulted. On the previous day Mr Willie Hofmeyr had indicated that he had attempted to ease the staff’s concerns. The move was in flagrant disregard of the labour legislation. She asked if there had been any move from anyone to explain what could possibly be done. The potential waste of brain power was horrific.
Mr Pienaar responded that until the time that the first draft of the Bills was produced the DSO was not consulted. When the drafts appeared, questions were asked about details. The only information that management gave was that there was uncertainty, with no details available. He referred to the affidavits filed in the Glenister matter.
Ms Brenda Madumisa submission
Ms Madumisa noted that she was making her submission in her personal capacity and on behalf of her family. Her submissions were informed by her experiences with cheque fraud. She and other concerned black professional South African women had pondered what the DSO was about, and in particular had asked themselves why its impact had not been shown in matters such as ATM bombings and cash heists. They did not have the answers but believed that this apparent lack of impact must be investigated. When Business Against Crime was first set up she was one of the first members, along with a number of CEOs of multi nationals, and it was noted that there was generally ignorance about the levels of crime in the country and concern that the SAPS were desperately ill equipped. South Africa, being a developing society, had reached the stage where more people were cognisant of their rights and better educated, and the legal system must adapt or lose the confidence of the public. Any reform that did not reflect the rule of law, or was shortsighted, would not be supported.
Ms Madumisa noted that previously the Office for Serious Economic Offences was intended to address the investigation of economic offences. It had not succeeded because of lack of capacity. This was alleviated with the introduction of the NPA Act. She supported the principle that there must be collaboration between all law enforcement bodies to address white collar crime. She questioned the argument that if the DSO were to be disbanded, there would not be vigorous investigation. Part of the problem was that while calling for public support on the one hand, the country was undermining the SAPS and, in sending members overseas for training, was sending a negative message to the public about its capabilities.
Ms Madumisa noted that for the ordinary South African, the effects of crime were not felt at organised crime level, but at the level of offences against their persons, such as theft, housebreaking or rape. Personally she believed that there was a need to strengthen the SAPS, and she believed that the DSO skills (acquired through her taxpayer’s contributions) should be moved to the SAPS for this purpose.
Ms Madumisa noted the argument that the DSO staff feared they would be "forced" to maintain the old styles of investigation by the SAPS. Against, she saw this as undermining of the SAPS. Perceptions that the DSO had been successful were very subjective, depending on what side was shown. She would want to see a strengthening of the whole justice system, ensuring that every branch was given proper resources. It was not possible to look at the DSO in isolation from the criminal justice system. In relation to comments made about the DSO staff, she felt that the labour process would take its course at the right time. It was more important to establish one credible organisation that was capable of dealing with crime in the country.
She pointed out that investigators into money laundering in the UK had commented that it took an enormous amount of experience to understand what money laundering was all about. The National Crime Squad in the UK was comprised of diverse skills. If South Africa had been serious about giving capacity to the DSO it should have done so properly, without the need for outsourcing. There were many people whose skills, following the disbanding of specialist units of the SAPS, were still available. She therefore recommended that a new proposed entity have clear lines of demarcation, responsibility and reporting, and that it was appropriate to have the DPCI
Centre for Constitutional Rights (CFCR) submission
Adv Paul Hoffman, Director: Centre For Constitutional Rights, believed that there was no need to debate the Bills clause by clause, because both were inconsistent with the Constitution, should be regarded as invalid and therefore rejected.
These Bills had been prepared as a matter of urgency, and it seemed that insufficient attention had been paid to the Constitution. Parliament was not sovereign, as the Constitution, together with the rule of law, held that position. The conduct of the ANC in passing the Polokwane resolution and the proposed laws was therefore invalid.
The main thrust of the Bills and resolutions was that the DSO would be disbanded and their investigative personnel would henceforth be housed in a new unit of the SAPS. It was submitted that the DSO could not be liquidated without regard to the constitutional requirements that had called it into existence. The NPA and DSO fell under separate chapters of the Constitution. This was done deliberately. The NPA was given independence to act without fear, favour or prejudice and the SAPS was put firmly under the control of the minister of Safety and Security with no institutional independence.
It was clear, from the NPA Act, that the necessary functions given by the Constitution to the NPA were in fact and law carried out by the DSO. Therefore the constitutional implications of the DSO dissolution must be considered, including whether dissolution would allow the constitutional independence of the NPA to survive. He doubted whether NPA could be independent if it had to look to the SAPS to carry out functions.
Much of the debate around the dissolution was focused upon the effect on the DSO and its personnel. The effect of that dissolution on the NPA had not been dealt with. Both Sections 179(4) and 179(2) were fundamental to the rule of law. A basic test of constitutionalism was that there must be limitations on the powers of government. Only an independent NPA could prosecute prominent officials. Although the NPA had had accusations made about its independence, none of these had ever been proven in a court.
The Executive should not act under dictation of the Polokwane resolutions, and all powers were limited by what the Constitution allowed.
The question of the effects upon the international obligations of the country must also be considered. South Africa was a signatory to the UN Convention Against Corruption, and must have specialised anti corruption bodies. If these Bills were passed there would be not such a body.
Mr Ivan Myers submission
Mr Ivan Myers said that he had until recently been a Superintendent in the Police Force, prior to his “forced departure”, and had held various posts in his twenty eight years of service, including that of anti-corruption investigator He admitted that he was currently engaged in an action against SAPS for reinstatement. He was not using this platform to air his discontent; he had no problem with the SAPS but only with those elements who were destroying SAPS through ignorance and arrogance. He believed that DSO should not be incorporated into SAPS and that the nation deserved to know the reality of the SAPS. His view was shared by many members of the SAPS who were unable to voice their concerns for fear of dismissal.
Most functional members of SAPS viewed the DSO as an effective force, and had been willing to assist them. Animosity towards the DSO was found at superior levels and in isolated cases. The Independent Complaints Directorate (ICD) had independently observed instances of top management of SAPS being obstructive.
SAPS top officials were currently not experienced or knowledgeable enough to give guidance to other SAPS members. It was to be expected that not all would comply with the laws of the land. It was unfortunate when decisions by politicians affected law enforcement and therefore also the safety and interests of the electorate.
The Bills proposed a lateral move of the DSO from one ministry to another, with powers, organisational structure and mandate unchanged. This would not happen. The DSO had retained its structure from the outset, and this had been proven effective in developing bonding, and security in performing functions. SAPS, on the other hand, having already been through three restructurings since 1995, was now being restructured again. There was chaos that was affecting its members and its ability to fight crime. The few who had benefited from restructuring had limited skills and knowledge of the fundamentals of policing. Every restructuring so far had resulted in mass exodus, or in people with skills being deployed out of their areas of expertise. There were insufficient competent people left to place at clusters. He cited a number of other examples and noted that morale was low. SAPS was dysfunctional and sick. It envisaged increasing its complement to 193 000, but such use of quantity and not quality was not helpful.
Mr Myers said that quality of work left much to be desired. There may be arrests, but there were few convictions. There were some dedicated, committed and competent officials who deserved to be given credit but they were finding themselves in difficult circumstances. He had no doubt that the references in the Bill to “vetting” of DSO investigators would result in any who were perceived to pose a threat not being taken over into the new DPCI. The DSO would not be feared if they had failed. They had made substantial inroads into corruption and were revered and respected by criminal elements. SAPS had to admit to its failings.
Mr Myers recommended that the DSO recommend a separate entity and retain its mandate to investigate specialised crimes, that it be afforded an opportunity to expand, that an independent audit be conducted into the SAPS, which should be realigned, and that SAPS’s duplicate and unnecessary posts be aligned. An attempt should be made to identify the detectives who were properly trained, and the specialised units of SAPS must be re-established without delay.
Mr Themba Langa submission
Mr Themba Langa, Senior Partner, Langa Attorneys, said that the NPA and should be permitted to exercise of duties without fear or favour. The present format of the NPA did not allow for this, due to problems with the separation of powers. Certain amendments of the NPA Act were long overdue.
Mr Langa said that the “unsavoury investigations” by the DSO, in particular into Mr Zuma had damaged the image of the country. DSO was pursuing investigations of select politicians and this conduct had assumed a significant economic impact. Rating agencies had noted that the rule of law may be of concern as the political and legal uncertainties were likely to remain unresolved for some time. The DSO was therefore creating destabilisation. No criteria used to show their success were given. He submitted that the Scorpions had proved repeatedly that they were a crime fighting machinery with an apartheid insight.
The debate on the future of the Scorpions had uncomfortably divided South African society along racial lines. Therefore there was a need for Parliament to disband it and ensure that state institutions served the full range of South Africans in a non racial manner. The Scorpions would stop at nothing to destroy the fragile political and economic situation. They should not be entitled to do this, and pursue “nebulous and self contracted charges” through their search and seizure mechanisms. Their very existence was “emitting toxic political and economic concentrations”.
The Scorpions had failed to combat organised crime, and therefore better government funding should be directed to the SAPS. Alternative mechanisms should be identified to complement the law enforcement agencies, as well as to increase support for community policing forums. The disbanding of the Scorpions would halt the negative economic consequences of their actions, and allow South Africa to invest more in increasing productivity and enhancing South Africa’s attractiveness to foreign investigators.
It was a fallacy that the disbandment of the Scorpions into the SAPS would undermine the State's capability to combat crime and corruption. Their existence in the NPA already created a “legal quagmire”. It was legally correct to locate the capabilities of the Scorpions in the SAPS and it was a valid conclusion that the expansion of the SAPS's capabilities and resources, with the inclusion of the Scorpions, would produce positive results.
Mr Jeffery asked Adv Hoffman to clarify the contention that dissolving the DSO would be unconstitutional, as this would deprive the NPA of its power to carry out certain functions. He noted that the DSO only did organised crime investigations so for other investigations NPA was reliant on the police. He also pointed out that the Bills were only removing a body brought into existence in 2001, and thus he did not see that the constitutional argument applied. Furthermore he queried the contention that if the Scorpions did not exist, there would not be any high level investigation. He pointed out that the Zuma rape case was not investigated by the DSO.
Mr Tlokwe noted that he had been involved in military intelligence in Umkonto We Sizwe, and that this experience had proved that lack of proper screening of outsourced personnel created potential for problems. For the past three years, the private security industry itself had not been screened. Experience internationally had shown that USA had taken 30 years to realised that human trafficking was taking place in their churches.
Mr S Shiceka (ANC, Gauteng) asked how much had been spent on outsourcing by the Scorpions. He believed that the DSO was being run by private companies and interests and asked for comment. He further cited an instance where an officer of the DSO, apparently pursuing a campaign to highlight the successes of the DSO, had behaved improperly towards an alleged offender, insisting upon handcuffing him when he was quite prepared to give himself up quietly and cooperate.
The Chairperson ruled that the DSO Group should respond the following day.
Mr Shiceka asked the Helen Suzman Foundation whether, in suggesting that Parliament should wait before passing these Bills, it accepted that Parliament was a separate body with its own powers to proceed.
Ms Kohler Barnard asked Ms Madumisa if she had had any personal contact with the DSO in March 2007 in her capacity as a company director.
Ms Barnard told Adv Hoffman that she had found some of the analogies he drew very interesting.
Ms Kohler Barnard asked Mr Myers for further information. She confirmed that only 14% of the SAPS were properly qualified. The DSO move to SAPS was intended to bolster SAPS but she asked if Mr Myers believed that this would happen, or if the DSO staff were likely to end up in dead-end positions. She asked what would happen to salary structures also.
Mr Kohler Barnard questioned Mr Langa’s assertions that the DSO had no proven success. She informed him that it had been one of the first successful organisations worldwide in money laundering and corporate fraud. She cited their further successes, giving statistics in relation to confiscation, money laundering, and prosecutions. She said their extensive successes should not be downplayed, and the statistics were available. She picked up on his remark that the Scorpions were creating a “greenhouse effect” and commented that the only greenhouse was likely to result from the hot air he had spoken.
Mr B Magwanishe (ANC) raised a point of order, saying that some of the remarks addressed by Ms Kohler Barnard to the presenter were objectionable.
Ms Kohler Barnard said that she for her part had found much of what Mr Langa had said to be very rude, especially since the Scorpions could not respond, but that in her personal capacity she was prepared to tender her apologies.
Dr Delport asked Ms Madumisa for comment on her assertion that those fighting for retention of the DSO did not have a credible and qualitative analysis of success and failure. He asked her on what credible and qualitative analysis she had based her recommendation.
Dr Delport commented to Mr Langa that the only cogent reason that he seemed to have advanced for removal of the Scorpions were that they were prosecuting Mr Zuma.
Mr M Moatshe (ANC) asked the CFCR to elaborate further on the assertions around the ANC Conference Resolutions and for further comments on the role of the Parliament in relation to Section 76 of the Constitution.
Mr Moatshe asked Mr Myers to give some details upon the triple salaries that he had mentioned in the written presentation, and if he was suggesting that the SAPS Act be reviewed for this reason.
Mr Magwanishe asked Mr Myers why, if the SAPS was so dysfunctional, he was fighting so hard to return to them. Mr Magwanishe also noted Mr Myers’s assertion that DSO had remained unchanged. However, it was clear from the budget hearings that this was not so. In regard to his comment that they were effective because they were feared, he noted that fear could not always be equated with success, as many dictators had shown.
Mr Swart appreciated the concerns of Ms Madumisa about crime. He asked her if she had managed to read the Khampepe report on the need for separation of prosecution and investigation, as the report was quite detailed in this regard. The Khampepe report had noted that the troika model was successful and should be retained.
Mr Swart then also asked Mr Langa if he had read the Khampepe report. He found it disturbing that Mr Langa had asserted that the discussions and dissensions had a racial slant. He noted that Judge Khampepe had given some strong recommendations and had gone so far as to say that it was “inconceivable” that the legislature would see fit to repeal the provisions of the NPA Act that related to the location and activities of the DSO.
Imam G Solomon (ANC) said that the point of context was strongly made by the SACBC. The Polokwane Conference was not the context of these Bills, but instead the context was the Review of the Criminal Justice System. It would be important to have input on that Review. Creation of “own context” would amount to rhetoric serving only the interests of individuals. He commented that the SACBC had said on the one hand that the ruling party had a right to set policy and determine the agenda of government, but had then contradicted itself by saying that it should not do so in this instance. Finally he pointed out that Dr Delport had said, during a speech in 2002, that the DSO would have to be managed carefully and would need to work with the police. If he had said "in the police" that would accord exactly with the Cabinet decision now taken.
A Member asked Ms Madumisa what she had meant by referring tot he subjective nature of the public perception.
A Member asked Mr Myers whether, if the restructuring problems were addressed in SAPS, he would still feel so strongly that DSO should not move to SAPS.
A Member asked Mr Langa whose public interest he was referring to in his submission.
Adv Hoffmann clarified that all political parties were entitled to have whatever policy and programme they wanted to, provided that it was not inconsistent with the Constitution. He maintained that the decision to relocate the Scorpions was invalid and unlawful, and urged the ruling party to be mindful of their responsibility to uphold the Constitution.
Ms Madumisa replied that the issue raised by Ms Kohler-Barnard did not have any relevance to the proceedings.
Similarly, Mr K Khumalo (ANC) found the question irrelevant, and stated that it was not Parliament’s business to interrogate members of the public about their past.
Ms Nhlengethwa informed Ms Madumisa that she could decide whether to answer the question or not.
Ms Madumisa replied that she would answer the Member privately.
Mr Myers surmised that only 30 members of the DSO would be required to relocate to SAPS if the legislation was passed. As a result, he reasoned that SAPS would not be bolstered by any degree and that that it should be able to absorb the salary structures of those individuals. Finally, he presupposed that the talents (of the DSO members) would be wasted and suppressed in the proposed new structure.
Ms Nhlengethwa accused Mr Myers of making too many assumptions.
Mr Langa did not discount the good work done by the Scorpions. However, he maintained that the current method in determining the Unit’s success was too simplistic. He added that a proper analysis should include an evaluation of the Unit’s resources, caseload and the amount of time it took to secure a conviction.
Ms Madumisa alleged that the unit had failed to fulfil its mandate, particularly in relation to the ATM bombings and cash-in-transit heists. Also, she claimed that whatever success the DSO might have achieved, it had failed to have any material impact or effect on the majority of citizens in the country.
Mr Langa responded that it was incorrect to infer that his submission was in defence of Mr Zuma. He explained that his submission focused on three issues, namely the issue of justice, separation of powers and the balance of cost to benefit.
Mr Myers answered that his sole reason for wanting to rejoin the police had to do with his determination to make a contribution to the country.
Ms Madumisa confirmed that she had indeed read the report of the Khampepe Commission.
Mr Langa indicated that he had read the Khampepe Report. He pointed out that he disagreed with the conclusion of the report, and maintained that any legislation that straddled across the separation of powers was unconstitutional.
A member alleged that the DSO did not deal effectively with corrupt officials in their ranks.
Mr Myers claimed that when the Scorpions noticed corruption within their ranks, they rid themselves of that individual immediately. The corrupt official was suspended and put through the courts system. On the other hand, the SAPS retained dishonest officials in the services and in some cases even promoted them.
A member asked whether the fact the prisons were full was a sign that the police were doing their jobs.
While he acknowledged that the country’s prisons were filled beyond capacity, Mr Myers did not accept the logic that this was due to the effectiveness of the police. He asserted that more prisons should be built because, in terms of the available statistics, there were at least 500 000 more people that should be incarcerated.
A member asked Mr Myers to analyse the amount of members, caseload and conviction rates of the police and the DSO.
Mr Myers informed Members that the DSO employed approximately 300 people. The Unit investigated less than 5% of organised crime and managed to achieve an 80 to 90% conviction rate. In contrast, the SAPS had more than 168 000 members in their employ and they battled to attain a 40% conviction rate.
A member examined whether the CFCR represented a particular constituency.
Adv Hoffmann replied in the negative. He explained that the organisation’s mission was to uphold the Constitution and this was done on a non-partisan basis.
Institute for Security Studies (ISS) submission
At the outset, Mr Prince Mashele, Head: Crime Justice and Politics Programme, ISS, declared that the Institute shared the view expressed by Judge Sisi Khampepe in her report that the “rationale for locating the DSO under the National Director of Public Prosecution (NDPP) and the Minister of Justice still pertains”.
The UN and AU Anti-Corruption Conventions, which South Africa was a signatory of, made it mandatory for the existence of anti-corruption bodies that were independent or free from undue influence. While South Africa had a number of agencies tasked with combating and preventing corruption, the DSO was the only body that was guaranteed a measure of independence and a degree of protection from executive interference in terms of the Constitution. The decision to relocate the Scorpions could therefore be interpreted as an attempt to renege on the country’s commitments to the two Conventions.
The ISS therefore opposed the legislation, and recommended that the DSO be retained within the National Prosecuting Authority. Nevertheless, the Institute suggested the following proposals in the event that Parliament decided to relocate the Unit:
Parliament should reconsider the exclusion of prosecutors, as per the provisions in the SAPS Bill. The prosecution-led approach of the DSO proved enormously successful in the fight against organised crime.
A section should be added to the SAPS Bill to specify how the DPCI would deal with cases of corruption involving the police, particularly those in high-ranking positions.
The authority to appoint the Head of the DPCI should be vested in the Minister of Safety and Security, in consultation with the Minister of Justice, National Director of the NPA and Parliament, in order to prevent the possible manipulation of the DPCI by the National Commissioner of Police.
A provision should be made to ensure that the Head of the Directorate accounted to directly to Parliament in order to ensure a sense of national responsibility on the part of the DPCI; and
A provision should be made to establish a Ministerial Coordinating Forum and a Coordinating Committee of government Officials to strengthen aspects relating to the work of the DPCI.
Mr J Jeffery (ANC) enquired whether corruption was one of the gazetted categories that the DSO could investigate.
Mr Mashele replied that while corruption was not expressly stated, it could nevertheless be implied from the wide mandate given to the Unit. In essence, any crime that was attached to an organised crime could be investigated by the Unit. It was therefore not surprising that Mr Selebi’s case was linked with that of Mr Agliotti’s despite the fact that the former was a case of corruption, and the latter involved organised crime.
Imaam G Solomon objected to the fact that that Mr Selebi had been singled out. He asked whether Mr Mashele envisaged that every future National Commissioner would be in a similar situation as Mr Selebi.
Mr Mashele clarified that he was not insinuating that all future National commissioners would be in a similar position as Mr Selebi. Instead, He urged Parliament to build into legislation mechanisms that would prevent a recurrence of the current circumstances surrounding the suspended National Commissioner.
Mr Jeffery rejected the argument that the DSO should be retained so that it could act as an outside body to monitor SAPS. While he accepted that checks and balances were necessary, he contended that the country could not afford to create too many bodies to oversee other structures. Lastly he stated that the police were capable of investigating corruption within their own ranks.
Mr Mashele said that he would be concerned if anybody was opposed to the principle of checks and balances. Part of Parliament’s responsibility was to exercise oversight and it was for that reason that the proposal was made to strengthen the checks and balances in relation to the appointment of the Head of DPCI.
Mr Jeffery dismissed the assertion that the success of the DSO was largely attributed to the prosecutorial-led approach that the unit adopted. He argued that the success that the unit achieved was as a result of the huge funding that it received. Finally, he asked if Mr Mashele had considered whether greater resources were the more fundamental reason why the DSO enjoyed a greater success rate.
Mr Mashele found it surprising that that there were committee members who had read or interpreted something which the Institute did not say. There was nowhere where the Institution said that the DSO had succeeded only because of the prosecution-led approach. Instead, the Institute made reference to a finding of Judge Sisi Khampepe who stated that a multidisciplinary approach, which was internationally proven, was the best model for dealing with organised crime.
Mr A Moseki (ANC) asked if there were any sound reasons to relocate the Scorpions.
Mr Mashele explained that he was making a case for the retention of the Unit. He admitted that there were numerous problems with the Unit, and stated that he agreed with a number of the negative findings made by the Khampepe Commission. However, he explained that the Institute took the approach that all this could be rectified, without having to disband the unit.
Kgoshi L Mokoena (ANC) asked the Institute to shed some light on whether the country would be reneging on its international commitments if it passed the legislation.
Mr Mashele clarified that it could be interpreted in that manner, given the important contribution that South Africa had made to the AU and UN Anti-Corruption Conventions.
Mr Hennie Van Vuuren, Head: Corruption and Governance Programme, ISS, indicated that the Scorpions were held in high regard throughout the continent. It was imperative to create a type of body that could operate in a space where it was relatively free from external interference, particularly from the executive.
George Fivaz and Gibson Njenje submission
Mr George Fivaz, Former National Police Commissioner, explained that the aim of the submission was to ensure that the DPCI was established without the structural and systemic shortcomings which plagued the DSO. It was common cause that South Africa was facing a massive criminal onslaught affecting all citizens in every corner of the country, and that combating this onslaught was among the country's absolute priorities. It was also common cause that this challenge was greater today than it was a decade ago, when the idea of a priority crimes bureau (the conceptual predecessor to the DSO) was first conceived. Crime was now better organised and a greater threat to society than it was a decade ago. From that perspective, it was clear that the DSO initiative failed to achieve its primary objective of first containing and than rolling back the gains made by the organised crime in South Africa.
The reasons for this were primarily structural and systemic. The DSO was consciously established and operated in isolation both from the SAPS (the state organ charged constitutionally with combating crime), and from other security cluster organs and agencies, effectively dividing the strength and capacity of society's anti-crimes forces.
To achieve its objective, the DPCI must reverse this, serving not only as the shock troopers of the anti-crime initiative, but also drawing together all of society's anti-crime capabilities into a single force able to strike hard and to strike successfully. It must serve to consolidate and coordinate the country’s forces. It was essential therefore that the DPCI was mandated and structured in a manner which was dynamic and systemically flexible. In their view the broadening of the mandate, both to expand the focus of the DPCI's activities, and to give it the organizational flexibility, was essential for success.
While it might be argued that the proposal was virtually unique and without precedent, it might similarly be argued that the nature and character of the criminal challenge to South African society required precisely that: a new and innovative approach, combining elements of the special resources afforded to the DSO with a structurally and systemically entrenched inclusive, integrated and coordinated character which the DSO lacked; and within the organisational structure of the institution constitutionally charged with combating crime, the SAPS. The presenter also discussed the optimal operational structure of the proposed Directorate and also provided a comparison of the resources, staff and work done by the SAPS and DSO.
Mr P Groenewald (FFP) asked Mr Fivaz to elaborate on why he believed that the Scorpions should be relocated.
Mr Fivaz argued that given the country’s high crime levels, there was a need to create a formidable body to bring it down to acceptable levels. As someone who had served in the security structures of the country, he did not see any sense in tussling about one “small Unit”. While he conceded that there were weaknesses in the police, he was not convinced that the best way to respond to this would be to create parallel structures next to it. He argued that this would have the effect of fragmenting the police’s ability and diluting its power to such an extent that the damage might be irreparable. He highlighted that the police was the constitutionally mandated body responsible for investigating and combating of crime. If there are serious concerns regarding competency and corruption within the police service, it was essential to deal with it and not try to create additional structures.
Mr Groenewald questioned whether SAPS should have specialised units in their structure.
Mr Fivaz replied that he had been an outspoken critic of the decision to dismantle the specialised units in the SAPS. In light of the country’s problems with drugs and violent crime, it did not make sense to do away with the Narcotics Bureau and the Murder and Robbery Unit. Finally, he advised that provision should be made for the Head of the DPCI to propose to the Minister of Safety and Security what categories of crime must be investigated by the Directorate from time to time.
Imaam Solomon observed that according to many submissions, the success of the DSO was mainly due to the prosecutorial-driven investigations. Conversely, he noted that Mr Fivaz took a different view, and argued that such an approach should only be used in special cases as a temporary measure in order not to make it a permanent feature.
Mr Fivaz explained that the notion of prosecution-led investigations was an old concept. He recognised that it might be necessary to use the approach in some instances. However, he cautioned that ideally there should be a separation between investigators and prosecutors because the two performed different functions. As a solution, he proposed that task teams should only be set up to focus on a specific event for a specified time. Prosecutors can be seconded and attached to a team for of period of time. This would ensure that there was a proper separation of powers.
Mr Groenewald remarked that the passing of the legislation would make it difficult to investigate the National Commissioner because he would be in charge of both SAPS and the Directorate.
Mr Fivaz reiterated that in terms of the Constitution, the police had a responsibility to investigate any person regardless of their status.
Ms A Van Wyk (ANC) stated that most presentations contained legitimate criticisms of the SAPS Bill. In many ways it can be strengthened and it should be done when the Committee deliberated on each clause. One of those criticisms was that it did not reflect Cabinet’s decision that the specialised units within SAPS should be given the same resources and legal framework as the DSO.
Additionally, Ms Van Wyk queried the legislation would concentrate too much power in the hands of the National Commissioner. Also, she asked whether his proposal to have a board would help restrict that power.
Mr Fivaz replied that the position of National Commissioner had authority in other jurisdictions across the world. Consequently, he reasoned that this should also be the case in South Africa as well .In addition, he contended that the creation of a board would ensure that there were checks and balances and curtail any attempts by the National Commissioner to manipulate the system.
Mr S Shiceka (ANC) applauded Mr Fivaz for an illuminating presentation. Thereafter, he examined whether other intelligence structures would participate and be involved in the work of the DPCI.
Mr Fivaz replied that it was not possible to deal with crime investigation without proper intelligence. For that reason, it was essential that all other intelligence structures assist the police in their work.
Public Servants Association of South Africa (PSA) Presentation
Mr Koos Kruger, Provincial Manager: Western Cape, PSA, stated that his organisation was concerned about the transfer of special investigators from the DSO to SAPS as well as the discretionary powers of the National Commissioner of Police to only absorb selected employees from the DSO. The PSA was of the view that transfers of this nature were governed by the Labour Relations Act, 1995 (LRA), which provided for the transfer of a business, trade, undertaking and service. After analysing the Act and the proposed legislation, the PSA contended that the inclusion of specific provisions (sections 16(A)5(a), 16 (A)5(b) and 16 (A)9) of the SAPS Bill contradicted section 179 of the LRA Act. A proper implementation of the LRA Act ensured continuity of employment, the transfer of contracts of employment and continuity of rights and obligations in respect of employer and employees.
No questions were posed to the presenter.
Members asked the following questions in response to the submissions that were made earlier in the day. The organisations were expected to provide written responses to these questions.
Mr J Sibanyoni (ANC) addressed his first question to the SA Catholics Bishops’ Conference. He wanted the organisation to elaborate on their insinuation that the function of fighting crime would stop with the passing of the Bills. Secondly, he asked who the concerned members of the DSO were and what they concerns were. He implied that they might be concerned about being vetted before being absorbed into the new structure. Thirdly, he said that the Helen Suzman Foundation had made a good attempt in terms of the chronology of events in their submission. However, he stated that they did not start at the beginning because they give an impression that in so far as the ANC discussing the issue of the scorpions it started at the policy conference in June. This was not the case because the matter was debated at the Mafikeng and Stellenbosch conferences. The Polokwane conference was the culmination of all these prior events.
Mr F Maserumule (ANC) asked whether the DSO Concerned Group would be happy to join the new structure if the changes addressed their specific concerns.
Mr Carrim reminded everybody that Parliament had not taken a decision at this stage. He reassured the public that their input would assist the Committee in that regard. Lastly, he indicated that the public would be given a further opportunity to make written submissions to the Committee.
The meeting was adjourned.
- Centre for Constitutional Rights (CFCR) submission
- Centre for Constitutional Rights (CFCR) overview
- Webber Wentzel submission Annexure A
- Webber Wentzel submission Annexure B
- Webber Wentzel submission
- Southern African Catholic Bishops’ Conference submission
- Public Servants Association submission
- Mr Ivan Myers submission
- Ms B Madumisa submission
- Mr Themba Langa submission
- Institute for Security Studies (ISS) submission
- IDASA submission
- Summary Table of Substantive Changes Effected by the Bills
- Helen Suzman Foundation presentation
- Helen Suzman Foundation submission
- George Fivaz and Associates submission
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