Scorpions Closure public hearings: Day 5

Meeting report

Opening Remarks
Mr Carrim noted that Ms Nhlengethwa would co-chair the meeting in the absence of Ms M Sotyu. He announced that members of the public could continue to submit written submissions despite the fact that all oral representations would be brought to an end the following week.

Democratic Alliance Youth League of Mpumalanga submission
Mr Stanley Zondi, Mpumulanga Provincial Leader, DA Youth League, declared that his organisation opposed the relocation of the Directorate of Special Operations (DSO and Scorpions) into the South African Police Service (SAPS). He contended that the integration of specialised units into the general police diluted the state’s intensity to expose and prevent specific crimes. In view of that, the DA, along with two-thirds of South Africans believed that the dissolution of the Scorpions would weaken the fight against crime. The drive by the ANC to disband the Scorpions was nothing more than a blatant example of the governing party putting its own narrow interests above the interests of the people of South Africa.

In addition, Mr Zondi criticised Parliament for allowing an unfairly short time for the public hearings. In Mpumalanga, a predominantly rural province, covering 83 000 square kilometres with a population of 3.6 million people, only one public hearing was organised. Parliament had conducted the hearing in Witbank -in the far east of the province - and overlooked larger industrial towns such as Nelspruit, which was home to 560 000 people and the Mpumalanga Legislature. He further complained that the Witbank hearing was hijacked by the ANC Youth League, who ensured that opposing views were suppressed. Moreover, he alleged that the ANC members, who attended the hearing, were uninformed about the functioning of the Scorpions. Lastly, he urged Parliament to arrange more public hearings, particularly in rural areas, so that ordinary people could be heard.

Discussion
Mr J Jeffery (ANC) addressed several issues. Firstly, he described the bulk of Mr Zondi’s presentation as “political rhetoric”. Secondly, he argued that Mr Zondi’s observation that the Scorpions were a great crime-fighting unit was contradicted by the former head of the Scorpions, Advocate Leonard McCarthy, who stated that “perceptions that the Scorpions were a mighty crime-fighting unit, better than the police, was both dangerous and misleading”. In addition, he referred to Mr Zondi’s claim that two -thirds of South Africans were opposed to the dissolution of the Scorpions, and enquired whether a referendum had been conducted to determine that figure.

In the same vein, Mr B Ndlovu (IFP) asked whether Mr Zondi had any proof to verify his assertion that the majority of South Africans were opposed to the dissolution of the Scorpions.

Mr Zondi maintained that the majority of South Africans wanted the Scorpions to be retained. To reinforce his point, he cited a survey conducted by the Human Sciences and Research Council and Markinor, which showed that 67% of the respondents trusted the Scorpions compared with the 31% that said that they trusted the police.

Mr S Shiceka (ANC, Gauteng) opposed the presenter’s contention that the ANC members, who attended the public hearings in Mpumalanga, were not apprised about the activities of the DSO. Consequently, he examined what criteria Mr Zondi had used to arrive at such a conclusion. Finally, he informed Mr Zondi that the issue of the Scorpions had been debated in the ANC structures as far back as the ANC’s 2002 Stellenbosch Conference.

Mr B Magwanishe (ANC) was dismissive of Mr Zondi’s submission, and inferred that it had been written by someone else.

Ms D Kohler-Barnard (DA) exclaimed that Mr Magwanishe’s comments were insulting.

Mr Magwanishe retorted that it was equally insulting for Mr Zondi to state that members of the ANC did not understand the operations of the DSO.

Undeterred by the condemnation, Mr Zondi answered that his assessment was based on common sense. He insisted that the ANC would have been embarrassed by the utterances and ignorance of many of its supporters in Mpumalanga.

Mr Shiceka asked whether Mr Zondi was aware that the DSO had violated the rights of South Africans. To illustrate his point, he mentioned that the Scorpions had humiliated many people, such as the President of the ANC (in relation to the Browse Mole Report), and had never apologised for their actions.

Mr Zondi responded that the police had also violated the rights of South Africans yet no one called for SAPS closure.

Mr Magwanishe enquired why an individual, who favoured the rule of law, would support an institution that had been involved in illegal intelligence gathering.

Mr Zondi responded that his party was not oblivious to the fact that the Scorpions had flaws that needed to be addressed.

Mr Jeffery referred to Mr Zondi’s remarks regarding the inadequacy of the public consultation process, and questioned whether he could provide examples of National Assembly Committees that had held provincial hearings in respect of a section 75 Bill.

Mr Zondi maintained that the public hearing in Mpumalanga was inadequately organised. He explained that the relevant information was not properly disseminated to the public at large and that only members of the ANC were informed about how to get to the hearing. 

Mr J Sibanyoni (ANC) disagreed with Mr Zondi, and pointed out that information on the public hearing had been broadcast by two national radio stations.

Mr Carrim clarified that Members of Parliament did not have anything to do with the technical organisation of the hearing. That responsibility lay with the Committee Section. He instructed the Committee Section to draft a report on the technical arrangements that were made for the hearing in Mpumalanga.

Mr Carrim said that the level of consultation (on the two Bills) was unprecedented, and that he could not recall a single parliamentary committee consulting as widely as this Committee had done in respect of a section 75 Bill.

Mr S Swart (ACDP) refuted this statement, and clarified that the Home Affairs Portfolio Committee had held extensive public hearings throughout all the provinces when it considered the Civil Union Bill, which was a section 75 Bill.

Mr Carrim conceded that this happened on very rare occasions.

Mr Carrim thanked Mr Zondi for his participation, and advised him to mobilise as many submissions as he would like, by next week.

Moe Shaik Submission
To begin with, Mr Moe Shaik, former Deputy Intelligence Coordinator: National Intelligence Coordinating Committee, indicated that he was not representing any member of his family, and that he was making the submission in his person capacity as someone who had served in the security services of the country.

He noted that Chapter 11 of the Constitution, which established and governed the country’s security services, clearly prescribed that there be ‘a healthy blend of democratic aspiration and practical safeguards’ against any abuses of the security services. Given the history and the role of the security services in apartheid South Africa, this particular chapter was written to provide the constitutional basis for ushering in a new era for the security services. The drafters of the Constitution sought to construct a democratic framework for the security services. The drafters intended to make all of the security services subject to national legislation, to the rule of law, to the authority and oversight of Parliament, and to the command, control and oversight of the executive. It was intended that the security services be subject to a strict and enforceable code of conduct ensuring that their activities were non partisan in respect of political parties; to coordination, judicial scrutiny and monitoring in respect of interception and monitoring intelligence activities; and to civilian monitoring of security services activities by an Inspector General appointed by Parliament. These important democratic safeguards were not enacted for nothing. They were enacted in order to prevent the abuse of power by the country’s security services, and to provide appropriate sanctions in the event of such abuse.

Central to the problems of the DSO was the difficulty of defining its nature. The Khampepe Commission argued that the DSO was neither a police service nor an intelligence service and described the DSO as a law enforcement agency. This description suggested that the DSO was part of South Africa’s security services.

The NPA Act combined the powerful functions of prosecutorial, investigative and information gathering all in one entity. Unfortunately it did so free from the constitutional checks and balances that were the bulwarks against the misuse of any of those combined and powerful activities. In this regard, the founding legislation of the DSO failed the stipulations of the Constitution. Judge Khampepe found that the DSO had established an intelligence gathering capacity beyond the ‘information’ gathering mandate provided for it in law. The intelligence gathering activities of the DSO ought to have been subject to the provisions contained in Section 210 of the Constitution, which provided for the oversight of such activities. The current NPA Act circumvented these constitutional requirements and allowed for the DSO intelligence gathering activity to be free from any democratic oversight. The Constitution entrusted the NPA with ‘the power to institute criminal proceedings on behalf of the state and to carry out any necessary functions incidental to instituting criminal proceedings and for it to do so ’without fear, favour or prejudice’. The latter was the basis on which the NPA and the DSO argued that they had a constitutional right to prosecutorial independence, free from the control and direction of the Executive.

As a result of the shortcomings of the NPA Act, the DSO managed, during the decade of its existence, to resist every attempt to subject its activities to the requirements of Chapter 11 of the Constitution. It did so to its detriment, in a short-sighted approach to cling on to its unchecked power.

He concluded that the relocation of the DSO into the police should not be seen as an end in itself, but rather as a step in a new direction. The final direction must be informed by an honest debate about the desired future shape and structure of South Africa’s criminal justice system.

Discussion
Mr P Groenewald (FFP) challenged the view that members of the DSO, who were involved in illegal activities, would not be prosecuted by the NPA. He argued that there were current cases that suggested the opposite was in fact true.

Mr Shaik replied that in the past ten years, there had been numerous violations by the DSO, and cited the unit’s treatment of Mac Maharaj. In addition, Mr Shaik referred to a newspaper article, which reported that a member of the DSO was found in a car with a fugitive in Cape Town. There was an allegation that when the matter involving the said DSO member went to court, it was thrown out due to problems with his case docket. Mr Shaik argued that this was a classic example where it was important for the NPA to ensure that the prosecution of that member was done without fear, favour or prejudice. But due its inefficiencies (possibly deliberate) there was no prosecution. It appeared that the NPA could effectively prosecute those that they chose to prosecute, and equally, they could through their “inefficiencies”, not prosecute those that they did not want to prosecute. Over the past decade, he only knew of one instance, where a member of DSO was prosecuted for leaking information. This was despite the fact that there were repeated leakages, and that the NPA Act imposed a fine or imprisonment of no less than 10 years for any person that was guilty of leaking information.

Adv L Joubert (DA) asked how the case involving the suspended National Commissioner, Mr Jackie Selebi, would be handled if the Scorpions had not been in existence.

Mr Shaik replied that he did not want to discuss the matter involving Mr Selebi, because it was before the courts. Apart from this, there ought to be any agency established within the police service to deal with corruption in that entity.

Adv L Joubert (DA) believed that Mr Shaik’s definition of intelligence was too wide, and contended that the legal drafters did not have criminal intelligence in mind when they drafted Chapter 11 of the Constitution. He added that it was not possible to investigate crime without criminal intelligence.

Mr Swart rejected the claim that there was no oversight over the DSO, and maintained that Parliament’s Justice Committee exercised regular oversight over both the DSO and the NPA.

Mr Shaik explained that the National Strategic Intelligence Act, which was passed in 1994 and subsequently amended, clearly defined the terms military intelligence and criminal intelligence. The latter was defined as intelligence required for the prosecution and investigation of crime. The NPA Act provided a broader definition of criminal intelligence, and authorised the NPA “to gather, collect and analyse information”. In the White Paper on Intelligence, the term “intelligence” was defined as intelligence which government departments and agencies needed to generate to execute their legal and functional responsibilities. This definition implied that the NPA also had intelligence gathering capacity. However, in the exercise of this capacity, the NPA was required to observe the same fundamental approach to their tasks as other national intelligence organisations. In effect, the NPA was also supposed to appear before the Joint Standing Committee on Intelligence like other intelligence organisations.  If they engaged in the collection of intelligence, they were bound by the same checks and balances by which every other national intelligence agency was bound. Moreover, the whole matter of intelligence had been severely overlooked in respect of the current NPA legislation. He urged that whichever model emerged in the Amendment Bill, that it take due recognition of that fact. Lastly, he emphasised that the National Strategic Intelligence Act had made provision for the gathering of departmental intelligence, but that it should take place in a particular context - that it is still regulated and controlled.

Mr Shaik argued that the policy of the NPA was skewed because it only prosecuted cases where it had a reasonable prospect of success. This meant that the NPA selected its cases very well in order to achieve a high success rate. This policy was at variance with the Constitution, which required the NPA to lead prosecutions on behalf of the state, and allow the judiciary to determine whether the version presented by the NPA or by the defence was correct.

It was agreed that Mr Shaik would respond to the following questions in writing: Mr Swart asked Mr Shaik to provide his views on the DSO’s integrated model of prosecution-led investigations, which had proved successful and was endorsed by Judge Khampepe.

Mr Swart rejected the claim that there was no oversight over the DSO, and maintained that Parliament’s Portfolio Committee on Justice exercised regular oversight over both the DSO and the NPA.

Mr Groenewald disagreed with Mr Shaik’s contention that the DSO was free of executive control, and asked him to elaborate on this claim.

Adv Joubert pointed out that in terms of the United Nations Convention Against Corruption, which South Africa was a signatory to, the state had a responsibility to establish an independent body to deal with corruption.

Mr Shiceka noted that the SAPS Bill referred to high priority crimes and questioned whether such a grouping should be developed by the police only or by the public.

Mr Carrim noted that Mr Shaik had not mentioned anything specific about the SAPS Amendment Bill. He was interested in his views about some of the key principles that the Committee should consider if it decided to go the route of the new model.

ANC Youth League (ANCYL) submission
Mr Clifford Motsepe, National Working Committee Member, ANCYL, stated that the 52nd ANC National Conference, under the commission Peace and Stability, correctly took a decision to dissolve the DSO. The Congress noted that defeating crime was in the best interest of the National Democratic Revolution and that community policing was the best model of policing. Guided by Section 199(1) of the Constitution which provided that the security services of the Republic consisted of a single defence force and a single police service, the Congress further resolved that this constitutional imperative should be implemented. There was certainly no room for importing any other interpretation of this section other than what the intention of the legislature was. The ANCYL was at the forefront of, firstly conceptualizing this idea and ultimately making sure that it found its way in the resolutions of the ruling party.

In addition, the Youth League tabulated five reasons why the Scorpions must be dissolved:
- It was trite law that those who were charged with investigations may not ultimately have the authority to initiate criminal prosecutions.
- The separation between officials who investigate crime and those who decide to prosecute was an important one. However, in the last six years, the ANCYL had observed with disgust how this blurring of separation of functions had been used, either deliberately or negligently by the DSO and National Prosecuting Authority to let criminals off the hook in the form plea bargains.
- The DSO was disproportionately resourced compared to the SAPS. In addition to these resources, the DSO outsourced almost any function that would bolster their capacity in the form of auditing firms and security companies. The SAPS did not have such luxuries.
- The "grandiose" media tactics employed by the Scorpions might influence the public, including judges that an offence had been committed. The "secret media briefing" of selected journalists by former National Director of Public Prosecutions, Bulelani Ngcuka, on Zuma's case had marked the turning point of the abuse of state resources to "attain narrow, selfish, and sponsored aggrandisement".
- The Browse Mole Report had once and for all confirmed that the DSO is indeed infiltrated by foreign agents.
He added that the Scorpions were guilty of using security companies that did not have security clearance.

Discussion
Adv Joubert noted that the Youth League’s motivation for the scrapping of the Scorpions was based on a misinterpretation of Section 199 of the Constitution. He pointed out that the Khampepe Commission and the Constitutional Court had ruled that the provision did not mean the country should have only one law enforcement agency.

Mr Carrim advised that the Committee should avoid further debate on this matter because the Constitutional Court had already provided direction.

Mr Julius Malema, ANCYL President, replied that the interpretation of the courts should not dictate to the Youth League how it should define what “single” meant. The ANC had intended the term “single force” to have a literal meaning.

Mr Swart referred to the Youth League’s remark that those who were charged with investigations may not ultimately have the authority to initiate criminal prosecutions. He said that there was case law, such as S v Kilian, which stated that there was nothing wrong with prosecutors leading investigation. As a result, he asked the ANCYL to shed some light on what role they believed prosecutors should play in the new unit.

Mr Motsepe clarified that there was nothing wrong with prosecutors leading investigations. Unfortunately, the NPA had allowed itself to be used as a political pawn, and had been abused to achieve certain political agendas.

Mr Groenewald believed that the disparity in the allocation of resources would continue even if the new unit were located within the police service.

Mr Groenewald asked whether ANCYL would have demonstrated the same passion had Thabo Mbeki been investigated by the DSO in relation to the arms deal. He added that he was aware that Mr Malema was prepared to die for Mr Zuma, and therefore wondered whether he was equally prepared to die for President Mbeki.

Mr Carrim joked that Mr Malema could not die more than once.

Mr Malema declared that he was prepared to die for all leaders of the “revolution”, including the President of the country. As a young revolutionary, it was his responsibility to defend the “revolution” with everything that it took. However, he added that he would first defend himself, and not simply roll over and die.

Mr Motsepe emphasised that the Youth League would have demonstrated the same passion and zeal for Mr Mbeki if he were ever in a similar situation.

Mr Ndlovu sought clarity as how the Youth League envisaged the new structure.

Mr Motsepe proposed that all the smaller units currently within the SAPS would merge with the DSO and form a single unit under SAPS. This would ensure the optimum use of scarce resources, and enhance the quality and sustainability of the state’s fight against organised crime.

Ms Kohler-Barnard questioned whether Mr Malema had any involvement in the Youth League’s submission.

Mr Malema confirmed that all submissions by the organisation had been made as a collective input, and that as President, he took ultimate responsibility for the submission.

Ms Kohler-Barnard asked the Youth League to elaborate on their comment that the Scorpions should dissolve in favour of community policing. She asked whether the Youth League believed that community policing had the capacity to deal with intense fraud and organised crime investigation. She also asked if people in neighbourhoods would have the same ability to deal with crime as would advocates and highly trained professionals.

Mr Malema said that as long as the communities were not organised to fight against all forms of criminal activities, there could not be success in the fight against crime no matter how many units were formed. The solution to this problem was street committees, strengthening community police forums and communities taking an active part in the prevention of all crime. Until communities were mobilised and conscientised, the country would fail, irrespective of whatever sophisticated crime fighting unit was introduced.

Ms Kohler-Barnard noted the Youth League’s comment that it was not the ultimate aim of the prosecutor to obtain convictions. She asked if he was suggesting that prosecutors should go to court prepared to lose a case. What did he see the role of the prosecutor to be?

Ms Kohler-Barnard noted that the Youth League had spoken about DSO members receiving a better salary than the members of SAPS, but asked if it was aware that the DSO members were all highly qualified professionals.

Ms Kohler-Barnard noted that the ANCYL claimed that it was determined to inculcate a culture of human rights, and wondered how this would accord with Mr Malema’s comments about the killing of citizens and everybody who did not share his beliefs. She also enquired whether the ANCYL supported the recent comments by COSATU that members of the Scorpions should be killed.

Mr Shiceka intervened to say that he thought the Chairpersons should protect Mr Malema from this line of questioning. The reference to his statements made outside this forum had no relevance to the matter at hand, and these had been handled by the South African Human Rights Commission.

Mr Carrim explained that he was about to intervene, but that the ANCYL could defend themselves

Mr Malema said that there was a problem with language in the country. Not everybody spoke the same language. English, the language of the imperialists, was being used to communicate with one another. He had actually used the word “kill” to mean “do away with the unit” and integrate it with the SAPS. He explained that he did not literally mean to kill people, but used the word “kill” to demonstrate his passion and determination. It must be understood in context. In understanding the sensitivities of South Africans, in particular minorities, it was decided that the ANCYL would not use the word so often.

Mr Shiceka asked if the ANCYL had any intention of convening a youth council to educate the youth, particularly the DA Youth, about now to deal with organised crime.

Mr Malema replied that the ANCYL engaged with other youth, including the DA, through the general South African youth structures on all these issues.

Mr Malema indicated that the Public Protector had stated that the DSO had violated the rights of the ANC President. He was disappointed that even when the Public Protector recommended specific action to be taken by Parliament, nothing had been done. The judiciary, Parliament and the State had failed Jacob Zuma as not one single arm of the state had intervened to protect the violation of his rights.

Mr Malema insisted that there were apartheid agents in the DSO. He claimed that they were using the Scorpions and the country’s laws to further the interest of the imperialists and the defeated minorities. They used the country’s progressive laws to deal with ANC members, and were doing so through their infiltration of South Africa’s DSO unit. He maintained that before the Scorpions was integrated into SAPS, all the members of the unit must be vetted.

Mr Malema insisted that some of the ANC members had, unwittingly or otherwise, bought into the agenda of the imperialists, and were attempting to serve the interests of South Africans only to discover that they were in fact boosting the agenda of the wrong people. There was a deliberate attempt to divide the country, and once the ANC was divided, minority parties would emerge.

Mr Carrim said that the public hearings were not only about the two Bill, but also about the overhaul of the criminal justice system. The Committee was therefore keen to hear from the youth on how the country could reduce crime generally.

Mr Malema promised to submit further information on this matter.

Mr Carrim reminded Members that the next presenter, Mr Aggujaro, had previously enquired whether he would receive immunity from prosecution if he made his oral representation. The Committee had consulted the parliamentary legal advisor on this matter, who had given his opinion that no member of the public appearing before a Committee at a public hearing was entitled to any immunity. To resolve the problem, the Committee had suggested that Mr Aggujaro make his oral submission to a multi-party subcommittee in a closed session. However, Mr Aggujaro had brought his lawyer to the meeting today and decided that he would rather speak in an open public hearing and abide by the norms of Parliament.

Mr Carrim cautioned Mr Aggujaro that this was not an inquiry into the so-called Travelgate affair, and that he was free to make reference to that matter only in so far as it related to the behaviour of the Scorpions. Finally, he informed Mr Aggujaro that the DSO could act against him if it felt that he had said anything that warranted such action.

Giuseppe Aggujaro Submission
Mr Giuseppe Aggujaro, indicated that, unlike many other presenters, he had had direct exposure and contact with the Scorpions because they had prosecuted his wife in the Travelgate case. For that reason, he was in a position to comment, with authority, about how they investigated cases and compiled evidence. The DSO used investigation methods that undermined the rights of people to be presumed innocent until proven guilty. They used the press to prosecute citizens who were not even properly informed of the charges against them. They plea-bargained with criminals, who admitted guilt to serious crimes, so that they could extract information that would enable them to pursue the bigger prize.
The DSO compiled profiles of their suspects by using slander, historical background and confidential personal information to craft defamatory profiles, which forced suspects into plea bargains.

Mr Aggujaro stated that he had access to all the information and documents of the accused in Travelgate scandal. The DSO had recklessly listed names of 320 MPs, compiled negative profiles of them and gathered evidence such as family background, credit history, domestic problems, salaries and private interests. By doing this, the DSO had degraded the public’s perception of parliamentarians and undermined the authority of Parliament. In addition, he alleged that the DSO had groupings of investigators and prosecutors who were involved in the former Security Police, undercover Apartheid operations and Pagad operations. Some of them had links with the old SADF Army and were undercover operatives in other African countries.

Discussion
Mr Swart disagreed with some of the wide-ranging accusations made by Mr Aggujaro against the DSO. He noted that Mr Aggujaro had alleged that the DSO had groupings of investigators and prosecutors who had been involved in the Security Police, undercover Apartheid operations and Pagad operations. He said that the former Minister of Justice, Mr Penuell Maduna, had categorically stated that the DSO did not consist of apartheid-era personnel. In fact, that accusation was more appropriate to the SAPS, because it was an amalgamation of different police forces, including the old SAP. It was “nonsense” to state that the DSO had recruited former apartheid police forces, and he asked what the basis for such an allegation was.

Mr Aggujaro insisted that the way the DSO compiled evidence was problematic. He repeated his claims that the DSO threatened and intimidated people by using illegal techniques.

Programme for the Bills
Mr Carrim indicated that the multi-party subcommittee would meet the following day to determine the programme. As far as he was aware, there was only one outstanding submission (from the Helen Suzman Foundation), which the Committee would hear next week. This would then mark the end of the public hearings but the Committee would continue to accept written submissions.

Given that the Bill was contested, he proposed that two representatives from each of the DSO, SAPS and civil society, participate in the initial deliberations on the Bills. In addition, the subcommittee would reach a decision the following day on the role of MPs who were prosecuted or investigated by the DSO. He hoped that there would be consensus, and in the absence of that, Members would have to agree to disagree.

In respect of the Committee’s programme for the following day, he explained that the Research Unit would provide an overview of all the submissions as well as the Khampepe Commission Report. The State Law Advisor was also expected to reply on constitutional issues.

Mr Carrim commented that if there was an injunction on the ANC to be open-minded, the same applied to the opposition party. The Committee could not decide whether to withdraw the two Bills before it had gone through the submissions it had received. Therefore, it was only under the motion of desirability that the Committee could consider the DA’s proposal to withdraw the Bills. He stated that the subsequent programme would be shaped by the outcome of the motion of desirability. Lastly, he stressed that the highest organ in Parliament for the ruling party was the parliamentary caucus, and it was that structure that would take the final decision on the Bills.

The meeting was adjourned.