Scorpions Closure public hearings : Day 3

Meeting report

Introduction by Chairperson
Mr Y Carrim made some announcements:
- The final count of all submissions received opposing the disbandment of the Directorate of Special Operations (DSO) totalled 100 167 names.
- The Committee would receive further submissions from the public until Friday 22 August.

Mr Carrim informed the Committee that they had received queries as to whether a Member of Parliament under investigation by the DSO was able to vote on the processing of the Bill. He commented that this was a very sensitive and complicated issue and was being addressed by Parliament’s legal team. He would report back to the Committee on 19 August.

Centre for Study of Violence and Reconciliation submission (CSVR)
Mr David Bruce, Senior Research Specialist: Criminal Justice, submitted that the two Bills were not in public interest and should be opposed by Members of Parliament.

He submitted that if the DSO were disbanded, Section 16A(15) of the envisaged SAPS Act should be modified to prevent the National Commissioner from exercising a monopoly over which cases were to be investigated. He put forward that the existing S16(3) already empowered the National Commissioner to determine whether a matter falls within the ambit of S16(1). Together these two sections allow the National Commissioner, who had authority over one of the biggest police agencies in the world and who already wields enormous power, the ability to veto any investigation that did not meet his approval. He put forward that S16A(15) be rejected and an alternative be sought that did not provide a monopoly of authority to the National Commissioner.

He acknowledged the need to strengthen the systems of accountability in the DSO and SAPS and suggested that the Norwegian solution be used as an alternative where a specialised crime fighting unit was located within the national police agency, subject to the authority of the Director of Public Prosecutions in relation to the investigation of individual cases.

Umkonto We Sizwe Military Veterans Association (MKMVA) submission
Adv Mashudu Fhedzisani stated that the MKMVA was in support of the disbanding of the DSO as this decision was a product of a well thought out process that predated the resolution made at Polokwane.

He claimed that criticism of these Bills were based on speculation to prevent law enforcement agencies from investigating their perceived corrupt activities, but maintained that these investigations could be channelled through the SAPS with the Department of Justice and Constitutional Development to jointly ensure that they were handled with integrity. Section 199(1) of the Constitution referred to a single police force as a viable option for the future fight against organised crime and he submitted that the disjuncture between the DSO and the SAPS prevented the attainment of this imperative.

He suggested that the severe tensions that exist between the DSO and the SAPS were caused by the agencies working in silos and accounting to different political heads. He proposed that political oversight be vested in the Minister of Safety and Security while the National Commissioner exercise authority over the DPCI.

The only concern of the MKMVA was that SAPS Amendment Bill did not specify what was meant by ‘selected’ investigators – and inferred that ‘selection’ shall be based on ‘vetting’ in terms of the NSI Act 1994.

South African Democratic Teachers Union (SADTU) submission
Mr Thulas Nxesi, SADTU Secretary General, stated their support for the disbandment of the DSO. SADTU submitted that the DSO was created by a political decision and on that basis could now be disbanded by a political decision and not via the Constitutional Court.

He noted that investigators used in the DSO had served under the apartheid regime and therefore came to the DSO with huge political baggage. The DSO had focused on their attempt to bring down political figures such as Jacob Zuma and Mac Maharaj.

It was SADTU’s view that the DSO track record was exaggerated and therefore debatable and it alleged that the DSO used the media to create a division within the public of South Africa. Based on the DSO ability to pick and choose their cases, they were assured of successful prosecutions and yet organised crime had continued to flourish. He noted that the paralysing fear of violent crime in communities was worse than it was in 1999, despite the DSO’s high success rate.

He noted that the DSO had made extensive use of the media to fight their cases; that they used investigators who did not have the proper security clearances to search private properties; including the use of apartheid-era investigators. He also noted that their own investigators were criminally charged with corruption such as Adv Chavunga and that their unnecessary show of force when arresting unarmed politicians was a media tactic to instil public confidence.

He maintained that the SAPS was the only agency that had been constitutionally mandated to fight crime in South Africa and the DSO’s assumption of power was unsubstantiated.

He stated that it was SADTU’s submission that investigation and the decision to prosecute needed to be separated and could not be exercised by one body. Hence the DSO and the Directorate of Public Prosecution must act separately and independently of one another.

SADTU maintained that there was no basis for the Constitutional Court to have jurisdiction on the decision to disband the DSO and that its only function was to ensure that public participation was encouraged. However, he went on to say that the decision maker was not bound to follow the views of the public, but only to consider them before a decision was made.

Independent Democrats (ID) submission
Ms Patricia De Lille submitted that the Independent Democrats opposed disbandment of the DSO and suggested that the decision to disband was due to the DSO tackling highly politicised cases.

She stated that the reasons for the retention of the DSO included their ability to deliver results due to their lower case load; their unique multidisciplinary nature of investigation and their small organisation if more tightly controlled, could be monitored more effectively thereby reducing the risk of bribery and corruption.

She supported the contention that if the DSO was moved it would result in a loss of public confidence in the criminal justice system and government as South Africans would lose confidence that all were equal before the law, while corrupt persons may perceive this as a encouragement to corruption.

She also maintained that the complex issues of organised crime need a specialised unit of the nature of the DSO that had a high regard for professionalism.

She proposed that the DPCI would fail because it would have no independence - as the National Commissioner would have the final say on who should investigate a particular matter. Also, being de-linked from prosecutorial functions, it would have to rely on the SAPS for all intelligence information.

She proposed that the DSO should instead be strengthened and measures such as those suggested by the Khampepe Commission be implemented to rectify weaknesses.

Congress of South African Trade Unions (COSATU) submission
General Secretary of COSATU, Mr Zwelinzima Vavi, stated that his organisation was fully in support of the government’s decision to dissolve the DSO.

COSATU’s concern was that the DSO’s existence as a branch of the National Directorate of Public Prosecutions blurred the necessary separation of functions between investigators and prosecutors. They maintained that DSO acted as a separate elite force that was not subject to public accountability and thus increasingly became a law unto themselves.

He voiced COSATU’s concern that the DSO’s investigative work was not subject to the same oversight mechanisms as the SAPS and intelligence agencies.

He stated that the Special Browse Mole Report had shown that the DSO was illegally and unofficially involved in collecting political intelligence that was beyond their mandate. He also claimed that the DSO made use of outsourced companies for intelligence gathering without first putting them through a vetting process; as well as conducting investigations through the media without first informing individuals under investigation.

He noted that instead of focusing on the war of crime, it would be necessary to recognise that this fight be against poverty and inequality.

He stressed that COSATU supported the ANC’s decision to incorporate the DSO into SAPS as this would counteract inter-agency bitterness, resentment and rivalry and the creation of a single seamless and strong crime fighting unit would help rid the unit of other malpractices.

He mentioned that according to the NPA, the DSO had spent R120 million on consultancy functions, of which R1.2 million was paid to KPMG for 500 pages of testimony in the year 2003/2004. He stressed that these amounts contrasted sharply with the approximate R8 million allocated to the Commercial Crime Unit of the SAPS for the same year.

He proposed that meaningful measures be put in place to address police corruption and called strongly for the expansion of the role and capacity of the Independent Complaints Directorate (ICD) to monitor all levels of police corruption and be directly accountable to Parliament.

He noted that screening of DPCI members was necessary and emphasised that no person be employed in a position of seniority without the requisite security screening. Furthermore, the remuneration of DPCI members be determined by the Minister in consultation with the National Commissioner and the Minister of Finance.

Discussion
Mr J Mahlalela (ANC) raised the issue to COSATU as to what the perceptions of the public were and how did this influence the decision to disband the DSO?

Mr Vavi answered that the issue of perceptions was important and acknowledged that it differed in various sectors of society as perception was informed by where you stand in your class and in your race.

Mr Mahlalela further queried why there were undue delays in some investigations regarding Members of Parliament and speedy decisions in others?

Mr Bruce answered that this question spoke to the issue of police corruption. The CSVR were in favour of strengthening the ICD. He stated that there was more concern however with the nexus between organised crime and police corruption and stated that if powers were concentrated in a single unit under a single authority, it would be problematic. When one had diverse units with independent authority to initiate investigations into crime, it could serve as checks on each other.

Rev K Moeshoe (ACDP) stated that his party was in agreement that the DSO had committed a number of mistakes and that these were identified in the Khampepe Commission. The Commission had also made recommendations as to how these weaknesses should be addressed. He questioned COSATU as to why these recommendations were not given an opportunity to be implemented.

Mr Vavi answered that there was nothing that stopped a future unit to implement the Khampepe Commission recommendations but it did not mean that these could only be looked at if the status quo were maintained. He argued that the status quo was untenable and could not work and insisted that the dissolution go forward.

Rev Moeshoe questioned MKMVA on how the Khampepe Commission violated constitutional rights.

Adv Phedisani answered that the Khampepe Commission was not the doyenne of all legal knowledge. He suggested that Khampepe might have erred as it had not as yet been tested in the courts and that it only acted as an opinion.

Rev Moeshoe stated that it was known that the DSO had made mistakes and asked SADTU what specific failures could be identified?

SADTU replied that the DSO did not commit mistakes but they committed failures. Examples such as use of media and use of unvetted agent were serious failures.

Rev Moeshoe then questioned the CSVR as to which clause/s of the Constitution had been violated by the Polokwane gathering and why was the fragmentation of services the best solution to fight organised crime?

Mr Bruce replied that the clauses in the Constitution that were misrepresented by the Polokwane gathering were Section 199(1) to (3), in that other security agencies may be established by the state and that the establishment of the DSO was completely consistent with that. He questioned the case with regard to municipal agencies, and asked if this legislation flew in the face of the Constitution.

CSVR also replied to the second part of the question regarding why fragmentation was important to fight organised crime. This question related specifically to the known link between organised crime and police corruption - the evidence that organised crime units were highly susceptible to corruption. There had to be checks on each other.

Mr J Jeffries (ANC) posed a question to the CSVR for making reference to the equality clause in the Constitution in order to justify the separation of the DSO from the SAPS. He stated that the argument did not make sense as SAPS existed long before the DSO was implemented.

Mr Bruce replied that it was the principle of equality as a necessary component of the rule of law that was being referred to. When people see high profile Members of Parliament being arrested, they see the constitutional principles as alive and that all were equal before the law.

Mr Jeffries then questioned the ID about whether this was the launch of their election campaign. He submitted that the ID’s submission did not say very much and requested that they use the opportunity to engage and provide constructive criticism.

Ms De Lille objected to Mr Jeffries statement saying that the ID informed her of its mandate and not the ANC and that she had the right to speak as to what she was informed by the ID’s mandate.

Mr Jeffries requested protection from the Chairperson and stated that his point was that this was not an opportunity to speak for the cameras. It was wrong to use this opportunity as a place to garner support.

Ms De Lille interjected with a point of order that she would not allow herself to be insulted and requested protection from the chairperson stating that she was not a member of the ANC and therefore could not be told what to say.

Mr S Shiceka (ANC, Gauteng) intervened and stated that this Committee only had one chairperson and asked Ms De Lille to respect committee rules and not speak without being pointed out by the chairperson.

Mr Carrim asked Ms De Lille to calm down and suggested to the Committee that every member needed to participate productively and not to play political party games.

Imam G Solomon (ANC) stated that the rationale for the DSO was a specific mandate to combat organised crime which did not exist during the 1980s and it was important to understand the context from which these bills emanated

Mr Carrim requested the CSVR provide the Committee with further points relating to the equality clause and asked for their suggestions on how to beef up the ICD.

Democratic Alliance (DA) submission
Ms Dianne Kohler Barnard (DA) said that the Democratic Alliance opposed the disbanding of the DSO. She suggested that the decision to disband the DSO was politically expedient and showed a clear disregard for public opinion and for the Khampepe Commission.

She stated that the majority party had become morally bankrupt and that the attitude shown by both Committee chairs, particularly by Ms Sotyu who had made it clear that Parliament’s role was simply to implement the decision made at Polokwane, as the clearest indication for the level of disdain within the ANC not only for not following parliamentary processes but also for the views of the people. The focus on the formation of the new unit in an attempt to shift the focus away from why the DSO should be disbanded, was deceitful.

She stressed that Parliament must implement and take note of the voice of the people who had clearly shown their disapproval to disband the DSO. The DA was conscious of the needs, fears and desires of all the people of South Africa and not only a select minority as Mr Carrim had alleged.

She stated that the DA objected to the number of written submissions as tabled by the Committee as they had received 13 000 more than the 126 quoted. She asked for an investigation into the matter as the DA had a duty to ensure that the voices of the people of South Africa not be silenced.

She stated that South Africans were sick and tired of crime in this country and equated it to a tsunami that was reflective of a national emergency.

She said the Khampepe Report included a number of groups and individuals that support the retention of the DSO. The rationale for the establishment of the DSO still remained today; that no weight in the argument around the constitutional requirement for a single police service be given; the clear successes of the DSO and the characteristics that had lead to these successes.

She maintained that the disbandment of the DSO was a political decision taken by the current governing party to protect their leaders from criminal investigation, as six NEC members of the ANC were under current investigation by the DSO.

She noted that the DA was not alone in support of the DSO – it included the Khampepe Report, the Minister of Intelligence Services, the Inspector-General of Intelligence; the Institute of Security Studies, Prof Kader Asmal and the Foundation for Human Rights.

She proposed the use of highly qualified personnel and the use of the troika approach (integrating the skills of investigators, prosecutors and intelligence) as this was how it clearly differed from SAPS. She suggested that threats to prosecutorial independence be dealt with by implementing a series of checks and balances and coordination, enforced by regular meetings of the Ministerial Coordinating Mechanism.

Ms Kohler Barnard stressed that the SAPS did not have the necessary resources to attract and retain skilled staff as they already had a poor record with regard to redeploying, integrating and restructuring. She mentioned that the SAPS record on managing internal anti-corruption initiatives was also poor.

The existing cop culture was incompatible with the professional culture of the DSO and differences in pay scales and career structures would result in further tensions and disagreements between the SAPS and the new unit.

She recommended that the two Bills be rejected entirely as they were fundamentally flawed and that the recommendations of the Khampepe report be respected and implemented within three months. Further, the members of the executive who failed to fulfil their mandates in respect of the DSO and the SAPS must be held fully accountable without relocating the DSO from its current location within the NPA.

Adv Tertius Delport made an additional statement pronouncing that it would be a tragedy to implement this legislation, sending out the wrong message to the public. He committed himself and the DA to present a document to Parliament that would reflect a single voice to be heard from Parliament that would address the grave situation of crime in South Africa. He suggested that Parliament must not send out a message signalling to the public that there were differences on the disbandment of the DSO. He put forward five principles that Parliament needed to address:
- retain the concept of prosecution-led investigations for serious organised crime and corruption
- retain the concept of a special unit with the necessary expertise
- retain that this unit had a measure of independence
- introduce a structure where various ministries were represented
- unit to be placed within a departmental ministry but that its budget needed to be kept separate from the rest of the department budget
 
Police and Prisons Civil Rights Union (POPCRU) submission
Secretary General, Mr Abbey Witbooi, stated POPCRU’s support for the disbandment of the DSO as they believed that it undermined public confidence in the police.

He stated that the DSO was allocated unfair resources when compared to the SAPS, and these imbalances resulted in the tensions between SAPS and the DSO that amounted to a ‘secret war’ between them.

He believed that the relocation of the DSO was a political issue and not for a court to intervene on how the ruling organisation should rule. He also disagreed that the disbanding would give rise to further corruption. He stressed however, that the relocation of those working in the DSO must take into account their labour rights, and that a process to address the challenges that emanate from the integration be initiated.

African Christian Democratic Party (ACDP) submission
Mr Steven Swart stated that the ACDP believed that the government had breached its obligation by reversing the decision on the Khampepe Commission Report in order to further the interests of the ruling party.

He stated that the disbandment of the DSO would be in breach of Sections 198(a) and 41(1) of the Constitution.

He suggested that the ANC’s decision to disband the DSO was motivated by the fact that the DSO had been too successful , particularly in its investigations of high profile ANC members including the Members of Parliament involved in ‘Travelgate’, the successful prosecution of Mr Schabir Shaik and Mr Tony Yengeni; and the pending prosecution of National Police Commissioner, Mr Selebi and ANC President, Mr Jacob Zuma.

He noted that ANC Secretary General, Mr Gwede Mantashe, admitted that the ANC wanted the DSO disbanded because the unit was prosecuting all its leaders.

The ACDP firmly believed that in view of the high success rate of the DSO, the amending legislation being considered did not have a rational connection to a legitimate government purpose and was therefore inconsistent with the principle of legality.

He stated that they could not lose the expertise of DSO that had been built up over the last few years and at great cost to the taxpayer.

Furthermore he noted that Adv Mpshe, the Acting Head of the NPA warned that the collapse of the DSO would bring the criminal justice system into disrepute.

He stated that the ACDP had concern that the principle of constant prosecutorial oversight in investigations, which was the cornerstone of the successes of the DSO would be lost if the DSO was incorporated into the SAPS.

He noted that his concern was that the SAPS would not be able to retain and attract the accountants and lawyers necessary for this unit.

He concluded that the ACDP had serious concerns about both the desirability and the constitutionality of the two bills and that the DSO should be retained in its present form under the NPA, and that its shortcomings should be addressed according to the Khampepe Commission’s recommendations.

African National Congress (ANC) submission
General Siphiwe Nyanda, Chairperson of the ANC Sub-Committee on Constitutional Stability, spoke on behalf of the ANC and stated that the NPA Amendment Bill and the SAPS Amendment Bill ensured that the findings of Khampepe Commission come to a logical conclusion in the disbandment of the DSO.

Furthermore he stated that it was public knowledge that the ANC resolved at the Polokwane 52nd
ANC National Conference that the DSO be dissolved and that members of the DSO performing policing functions must fall under the SAPS and that the Minister of Safety and Security should bear responsibility for the capability to be created in the DPCI.

The ANC concurred with the finding of the Khampepe Commission which viewed the Hollywood style arrests as out of kilter with the Constitution.

He stated that the allegations that these amendments were being pursued with the objective of terminating current investigations and prosecutions conducted or pending by the DSO were unfounded, as stated in Clause 4(8) of the SAPS Amendment Bill that sufficiently rebuts these allegations.

He stated that subject to the amendment sought in Section 28(8)(a) of the NPA Act which would mean the protection of witnesses against self-incrimination, the ANC supported the NPA Amendment Bill and the SAPS Amendment Bill in the interests of strengthening the crime fighting capability of the State, compliance with the Constitution, national legislation and public international law instruments, such as the UN guidelines.

Discussion
Mr B Mangwanishe (ANC) raised a question to Ms Kohler Barnard as to the reasons for inciting South Africans to be xenophobic. He suggested that if she was truly interested in the fight against crime, she would not have committed a crime herself - that of hate speech

Ms Kohler Barnard suggested that Mr Magwanishe beef up his level of insults as during the last year she had been likened to a street walker to sleeping with criminals and others so that being told that she had to be in jail was quite old news. The xenophobia issue was unfounded as she had been speaking to the budgets dealing with displaced foreign nationals and had not supported xenophobia at all.

Adv C Johnson (ANC) thanked Dr Delport for his constructive and useful input. However, she stated that the written submission of Ms Kohler Barnard quoted very selectively from the Khampepe Report. She related her query to the Khampepe Report wherein it was stated that there was a thin line between prosecutors and the process of investigation - that they became so embedded in their investigation, they lose their objectivity. She asked how this could addressed.

Dr T Delport (DA) admitted to the thin line where prosecutors could lose their objectivity if they got very involved. He mentioned that this was a problem that existed in all professional fields and was not something that the law could legislate against. He explained that the law could say that you may not harm your neighbour but it could not legislate that you love them. This was a question of morals and culture - that you kept matters at arms length.

Ms A Van Wyk (ANC) stated that it was time to address statistics properly and quoted that from 2004-2007 the organised crime unit of the SAPS arrested 20 818 people.

In 2008, 131 organised crime leaders were arrested by the SAPS thereby cutting the heads of many snakes and for the year 2007- 2008 the SAPS cleared the streets of R1.3 billion worth of drugs Also in 2007 15 drug laboratories were closed down by the SAPS.

This clearly showed that the SAPS were working very hard and with very limited resources and there was a need to highlight that the SAPS was doing a lot to fight organised crime in this country.

Ms Kohler Barnard addressed Ms Van Wyk’s concern for the statistics of the SAPS by pointing out that the SAPS had thousands of workers as compared to only 300 DSO members. She stated that the SAPS deal with an entirely different stratum of crime and that the successes of DSO were evident in hugely prominent cases. She pointed out that the DSO also worked globally and this could not be compared to SAPS.

Mr L Greyling expressed his delight that the ANC had invited the ID to participate and promised that this invitation would definitely be responded to. He addressed the ANC and noted that the General had quoted liberally from the Khampepe Commission findings but stressed that he had not quoted liberally from the Khampepe recommendations. He proposed that it did not help to suggest that one party made selective use of the Khampepe Report; and the other party makes liberal use of it. He noted that all parties agree to the mistakes made by the DSO and these were serious issues to be looked into.

General Nyanda admitted that the ANC was selective in what it quotes. The logical conclusion of Khampepe Commission should be the DSO dissolution as it relates to the damning comments made by Khampepe; that the DSO was “out of kilter, unprofessional”. He stated that in any democracy, these types of statements made by a judge would automatically result in the dissolution of the unit and that it could only be left to conjecture why the findings of Khampepe had not led to a logical conclusion - the dissolution of the DSO.

Mr Greyling stated that they had heard from COSATU that the petitions received opposing the disbandment of the DSO only came from a certain sector of the population. He pointed out that public opinion polls indicate that this was not the case. He suggested therefore that if a truly scientific measure were needed, it would have to be through a referendum.

Furthermore, he noted that the ruling party had a particular mandate invested by the electorate to implement legislation and asked for explanation as to why the ANC prior to the 2004 election clearly stated that it would strengthen the prosecution system and the DSO. If the ANC had known that they would dissolve the DSO, why was this mandate sought only to now violate that mandate.

General Nyanda answered that it was known prior to the 2004 election that there were problems with the DSO but that it was within political party interest to tell public that the DSO would be strengthened. It would not have made political sense, months before the election, to admit to the electorate that the DSO was in disarray.

Mr Shiceka also welcomed proposals made by Dr Delport as useful contributions showing that he was a seasoned politician. He pointed out that the same could not be said for his counterpart, Ms Kohler Barnard.

He asked Ms Kohler Barnard if she agreed that DSO had violated the laws of the country as heard by the ACDP

Dr Delport addressed Mr Shiceka’s question and said that it was not known if the DSO had contravened laws of the land as no one had been prosecuted. He supported this by saying that there had been clear contraventions of protocol and the DSO had also encroached upon a terrain that was historically within the field of national intelligence.

Ms Kohler Barnard pointed out that there had been a violation of laws in the country by members of the SAPS, for example rape and murder, but the state would not close down the SAPS.
She said that the disbandment of the DSO was a short-sighted view.

Imam Solomon asked the ANC if the original mandate of the DSO shifted from fighting organised crime to a politically motivated agenda. If so, what were the causes for this?

General Nyanda answered that there was concern as to whether the DSO had violated its mandate and it therefore could be agreed that in some instances DSO had shifted its mandate to a political motivated agenda.

Imam Solomon addressed his question to the DA, saying that on one hand the DA sang the praises of the DSO in its fight against crime and its extreme competence in doing so and on the other, the DA stated the dismal situation of crime in South Africa. He asked for an explanation of this contradiction.

Dr Delport answered the Imam that it was agreed that South Africa had a crime problem and pointed out  that everyone had a contribution to make and that the DSO had a list of successes in its past.

Mr Malahlela echoed same sentiment of Mr Sitheka in congratulating Mr Delport’s contribution. He questioned the ACDP’s statement that the rational connection of an Act to a legitimate government purpose be subjectively determined

Mr Swart answered that a legitimate government purpose was objective and it could be determined by a court who would apply an objective test.

Mr Malahlela maintained that the rights mentioned in Constitution, for example, Right to life, property, dignity were still limited by Section 36 of the Constitution. He asked that one could therefore not say that the DSO’s function also be limited in terms of this clause.

Mr Swart addressed this question by explaining that the rights mentioned could only be limited by Section 36 where it was justifiable in an open society to do so. The question then was was it justifiable to do so. He stated that the ACDP did not believe that it was justifiable to limit the crime fighting capabilities in a crime weary society by disbanding the DSO.

The meeting was adjourned.