Scorpions Closure: Report-back on recusal of MPs; Response to submissions

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Justice and Correctional Services

02 September 2008
Chairperson: Mr Y Carrim (ANC) and Ms M Sotyu (ANC)
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Meeting Summary

The Chairperson announced the decisions of the multi-party sub-committee, whose written resolutions would be formally placed before the joint Committees the following week. This subcommittee had met twice to decide what its position was on whether members of parliament who had been investigated by the Directorate of Special Operations (DSO or Scorpions) should be permitted to process these two bills and related issues. The broad issues were acknowledged as complex and challenging, and the new Parliament would be asked in the Committee Report to consider rules around conflict of interest and spell out a policy. The credibility of parliament must be maintained, but the principle of innocent until proven guilty must be observed. It was unreasonable to suggest that everyone whose name was on the list of clients of the travel agencies should recuse themselves. Those members who had pleaded guilty, plea-bargained or were facing trial had recused themselves already because the ANC had decided it was politically necessary to do so, in relation to the processing of this legislation. The subcommittee had not reached a final agreement on the further 13 members who had been referred to the multi party disciplinary committee. The opinion of Senior Counsel was not required, since there were not legal issues involved, and the issues were already before Court, in the application of Mr Glenister. The sub committee believed it had taken the matter as far as it could. The Speakers and Chief Whip’s Offices had apparently reached a similar conclusion that recusals, further than those already agreed, were not necessary.

The Committee continued to consider the two Bills dealing with the disbanding of the DSO. The Committee Researchers took the Committee through the constitutional points raised, noting the summary of the submissions. The Chairperson asked for specific comment on whether there had been a rational decision, linked to legitimate government purpose, and the suggestion that there might have been bad faith if the Executive had merely relied on the decisions taken at Polokwane, which in turn were linked to the ANC leadership. The Research Unit had been asked to look into the international obligations, although he doubted whether the UN Convention would dictate where the DSO must be located. The Chief State Law Adviser tabled a lengthy document dealing with the constitutional questions, but in summary concluded that the separation of Executive authority, Parliament and the parties would ensure that the Polokwane decision would not impact on the powers of the President and Cabinet, nor would it affect the ability of Parliament to approve or dismiss the legislative proposals. The points made by some commentators were based upon the current difficulties rather than on actual constitutional violations. He did not believe that the Bills contained anything subject to constitutional attack, and no legal authority was advanced to support the objections. However attention would need to be paid to whether the Bill catered for the Minister’s final responsibility under section 179(6). The South African Police Service agreed with this view. Some philosophical questions were asked as to whether the party manifesto and the policy conference should contain conflicting statements, and as to how members should manage party and parliamentary mandates.

The Committee also discussed the submissions that had suggested that the disbandment of the DSO was in violation of the international obligations that South Africa had as signatory to the UN Anti-Corruption Convention and the AU Convention on Preventing and Combating Corruption. The Chief State Law Adviser was of the view that there was no contradiction between the disbandment and the Conventions. SAPS pointed out that these instruments were adopted in terms of the present Corruption Act, and that SAPS was the body to whom corrupt activities should be reported.

Members agreed that the country would have to have a specific organised crime unit, and also agreed that it should be independent. They discussed whether the location within SAPS would compromise independence, and also discussed whether the line of reporting to the policital Head, the Minister of Safety and Security, was a further hindrance to independence. This would be discussed in further detail. The ANC indicated that it did not believe that the powers and functions allocated to the National Commissioner under the Bills as presently worded was acceptable, nor that it allowed for sufficient independence be allowed. The State Law Adviser was of the view that Ministerial oversight was important to ensure that law enforcement agencies were properly coordinated. Other options may need to be considered. An opposition Member suggested that these options must include the question of whether there should be disbandment of the present unit at all. The question of a single police force was discussed. Members posed the suggestion that perhaps the unit be set up within SAPS as proposed in the Bill, but that Parliament must review the situation in a few years, similar to the clause inserted recently in the Child Justice Bill. 

Members also discussed whether caucus was able to challenge the decision of the Executive. Members also asked that the SAPS and DSO be requested to provide statistics on investigation, charges and convictions against their own members, to ascertain whether each had shown itself capable of policing itself effectively. The allegations as to the current state within SAPS were outlined. Members were unsure whether vetting should be legislated for or not, and it was requested that the National Intelligence Agency attend the next meeting to give a report. The Special Investigating Unit Head explained that there were some very good detectives within SAPS but they were hugely overworked, and the perception was that the DSO could investigate matters better than SAPS. He described the nature of some of the investigations, cautioning that they were complex and lengthy. He would also provide further information, as requested on prosecutor-led investigations, at a future meeting.

Meeting report

Report back on meeting of multi-party subcommittee
Chairperson Mr Y Carrim (ANC) said that there had been a meeting held of the multi-party sub-committee, and their written resolutions would be finalised over the weekend and formally placed before the joint Committees the following week.

He noted that this subcommittee
had met twice to decide what its position was on whether members of parliament who had been investigated by the Directorate of Special Operations (DSO or Scorpions) should be permitted to process these two bills and related issues.

The subcommittee had made the following observations:
a) The broader issues were complex and challenging and, given the limited time at its disposal, the Committee should not rush into policy decisions and set a precedent as the basis on which Parliament should operate. When the Committees gave a final report to Parliament, they should set out some of the issues arising and ask that the new Parliament, within the first 24 months of its five-year term, must consider the rules around conflict of interest and spell out a policy.

b) All parties believed that it was vitally important that the credibility of parliament be maintained and elevated, and that was a major decision

c) All parties agreed that people had constitutional rights as individuals, including the right to be regarded as innocent until proven guilty.

d) There was consensus that it would be unfair and unreasonable to suggest that all the approximately 250 people whose names had appeared on various lists, should recuse themselves from participation in this process. The four travel agencies who had been accused of fraud had submitted the names of every one of their clients to the DSO, despite the fact that many of them had been involved in no wrongdoing at all. It was ridiculous to suggest that those never implicated in anything should, merely because their names were on the list, be recused.

e) Those members who had pleaded guilty, plea-bargained or the two who were facing trial had recused themselves already because the ANC had decided it was politically necessary to do so, in relation to the processing of this legislation.

f) The sub committee had not reached agreement on the further 13 who had been investigated but where no action was taken. The National Prosecuting Authority had referred their names to the multi-party disciplinary committee that was looking into the cases.

g) There was no reason to seek the opinion of Senior Counsel, because the issues were not of a legal nature, but were around the values and policies of the parties.

h) It was noted that Mr Glenister was going to court on the issues of these members, and other points, and ultimately the Courts would decide.

i) A proposal was made that the Ethics Committee should look at this issue in the abstract, not to investigate the individuals but to look at whether there was a conflict of interest in this case. This committee might want to apply its mind to whether the issue of voting would apply to these members. This had not been finally decided upon.

j) All members of the sub-committee agreed that they had attended to this matter as far as they could, and the matter must draw to a close next week.

Mr S Swart (ACDP) said that the Committee also looked forward to finality. It was not its intention to delay, and it was necessary to reach a speedy conclusion.

The Chairperson thanked all the parties for their presence. He thanked them for the degree of cooperation and conciliation shown and particularly expressed his thanks for Mr Swart for offering a way forward.

The Chairperson also said that the Speaker’s office had reached the opinion that it would not be appropriate to require anyone to recuse themselves. The ANC Chief Whip’s office had, based upon the opinion drawn by parliamentary legal adviser Mr Vanara, reached the same conclusion. The proposal around the referral to the Ethics Committee was a new one.

SA Police Service Amendment Bill & National Prosecuting Authority Amendment Bill (SAPS Bill and NPA Bill): Continuation of hearings
The Chairperson noted the presence of teams from the National Prosecuting Authority (NPA), the South African Police Service (SAPS), the Office of the Chief State Law Adviser (OCSLA) and asked that the Members refer to two documents prepared by the Committee researchers. The first was a longer document, dated 25 August, containing summaries of all the submissions, with a clause-by-clause consideration of issues, and the second, dated 28 August, was a shorter summary setting out the themes emerging from the public hearings. He asked that the Members consider the themes and stressed that at this stage no party had taken any formal decisions.

Ms Christine Silkstone, Parliamentary Committee Researcher, noted that the shorter document was selective because it dealt with the broader issues, and that some of the submissions that contained noteworthy analysis or comment had been included. The arguments for and against disbanding the DSO were contained in quite a lot of detail in the first (longer) document. She said that it had been quite difficult to create a summary because of substantial overlap between themes and submissions.

Ms Silkstone proceeded to summarise the Constitutional issues. The Helen Suzman Foundation raised issues of the rule of law, said that there was no link to a legitimate purpose, that certain Constitutional rights were breached, and that the State's duty to uphold the Constitution was not followed.

The African Christian Democratic Party (ACDP) had said that the high crime rate was inconsistent with the constitutional rights and the rule of law, as set out in section 10, 11, 12 and 25 of the Constitution. The disbanding of the DSO would be contrary to Constitutional imperatives, as this would worsen the crime situation. Persons exercising public power needed to be accountable, and all decisions must be rationally connected to a legitimate government purpose. Since it was acknowledged that the DSO was successful in the fight against crime, therefore the decision to disband them was not rational.

Hugh Glenister argued that the Bill violated his constitutional rights. He said that government conduct should not be arbitrary and there was no reason to ignore the recommendations of the Khampepe Commission. He said that the only reasonable inference for its closure was to tie in with the ANC decision at Polokwane. The DSO had been successful and he inferred that the decision was taken to prevent members of the ANC from being investigated, and that this made South Africa more vulnerable to international and domestic organised crime. This decision undermined the peace and well-being of South Africans, violated the Constitutional liability, and was made without due consideration.

Ms Silkstone noted that the FW de Klerk foundation had suggested that there was bad faith in the reasons to dissolve the DSO, that the decision was based on an incorrect interpretation of section 179 of the Constitution, therefore was irrational and arbitrary and no legitimate purpose was used.

The Centre for Study of Violence and Reconciliation (CSVR) raised the question of equality. It was difficult to subject SAPS to scrutiny and oversight. By contrast, the DSO had managed to do so, and their closure would reduce accountability. SAPS had a severe problem regard to anti-corruption and their own anti corruption unit was closed in 2002. The units involved in investigating organised crime were vulnerable to corruption and DSO’s closure would further weaken an already weak mechanism. It would also weaken the accountability of other senior officials of State, because the power to investigate criminal investigations was centralised in the Bill in SAPS. The existing SAPS culture was deference to authority, and this was exacerbated by censure being applied arbitrarily in the organisation. Respect for the law and trust in government institutions was vital, and its closure would send a message that those who subjected high level political and government officials to scrutiny would be punished.

Ms Silkstone said that some interesting points had been raised by Adv Thembi Burhali and read these out.

The comments of Mo Schaik had also commented on the Constitutional imperative around the decision to disband. He noted that the legislation had not paid attention to democratic checks and that the prosecutorial independence raised the potential of abuse of powers.

The Chairperson thanked the researchers for their summary.

He noted that the question of whether there had been a rational decision, linked to legitimate government purpose, was a recurring theme. The question was how far rights under the Constitution had been undermined. He found some of the arguments advanced to be rather weak, and would like to hear a response from different commentators.

The Chairperson also pointed out that the theme of “legitimate purpose” was also linked to the question of whether there had been any bad faith in the introduction of the Bills, because of the decisions taken at Polokwane, which in turn were linked to the ANC leadership.

Another theme seemed to suggest that the fact of a different culture in the SAPS took precedence over the need to uphold the law.

The Chairperson said that the FW de Klerk Foundation had raised a very interesting comment. They had argued that the NPA’s ability to comply with Section 179(4) of the Constitution would be compromised if the law enforcement agencies were solely dependent on SAPS for investigation. However, before the advent of SAPS this had been the position.

In respect of the international obligations, he commented that the Research Unit of Parliament had been asked to look further into the point, but he found it very difficult to believe that this could be so. The United Nations Convention was unlikely to say where the DSO should be located.

The Chairperson also said that he had been interested to note in the media reports a comment that Julius Malema had “angrily responded” to questions. He did not get this impression, but Mr Maleme must speak for himself. Neither he, nor Mr Carrim, had said that the Youth League must provide a list of DSO informers, and this particular part of the report was “outrageously inaccurate”. There was a suggestion that the DSO had within its ranks security police and this made it have a certain political bias. He asked the DSO to tell the Committee how many of their staff had been drawn from the “old order”, not just the Security Police but also the Civil Co-operation Bureau (CCB) or Total Onslaught members, and at what levels they were employed. He hoped that the misstatements would be corrected.

He also asked the DSO to comment whether it was correct that the Constitutional Court had decided that a single police force, incorporating the old provincial forces, the Bantustans and others would be set up, and whether there had been legal opinions on this point.

Office of the Chief State Law Adviser (OCSLA): Briefing and response
Mr Enver Daniels, Chief State Law Adviser, OCSLA, tabled a new document, noting that this document corrected a number of errors that had been picked up in the previous document. He noted that both the Bills had been drafted in accordance with the Department of Justice and South African Police Service instructions and in accordance with the rules of parliament. Because of the controversy surrounding the Bills, greater than usual attention was paid to them.

Mr Daniels wished to comment on the allegations that these Bills were simply introduced to give effect to the resolutions adapted by the ANC National Conference at Polokwane in December 2007. This resolution was taken; however it was incorrect to construe it as binding on the State. He pointed out that the Executive authority of South Africa was vested in the President, who exercised executive authority, together with other members of Cabinet, by implementing legislation, developing and implementing national policy, preparing and initiating legislation and performing other executive functions. Because of the separation between the party and the State, the Polokwane decision would not impact on the powers of the President and Cabinet. Similarly, Parliament, within the limits of the Constitution, was free to enact any legislation that it wished and must follow the rules of Parliament when doing so. If legislation was inconsistent it would be subject to judicial review. This meant that Parliament could pass these Bills, as indeed any others, with or without any changes it wished to make.

Mr Daniels briefly set out the history of the current incorporation of the DSO in the NPA Act. He said that the establishment of the DSO within the NPA had not been constitutionally offensive, and the Khampepe Commission had noted that there was nothing unconstitutional in the DSO sharing a mandate with SAPS.

Mr Daniels said that his Office had paid careful attention to Sections 198 and 199 of the Constitution. In his view it was incorrect to interpret this as saying that only the police should investigate crime. There were a number of reasons advanced as to why there should be a single police force, why the police should be responsible alone for investigations and to uphold and enforce the law. However, OCSLA did not want to express any opinion on the merits of this. The concept of a single prosecuting authority had been considered by the Constitutional Court. He cited the case of Potsane, where the Court found that "single" did not mean "exclusive". The Khampepe Commission found nothing constitutionally offensive about he DSO being located within the NPA, but noted the tensions, and recommended that the responsibility for the policing function of the DSO be transferred to the Minister of Safety and Security. In effect, they seemed to be hovering in the direction of a single police service, although suggesting that the DSO remain where currently located within the NPA. The Commission did seem to be mindful that the activities of the law enforcement agencies must be properly coordinated, and that this could best be attained by giving the Minister of Safety and Security the oversight functions. These Bills seemed to be building on this suggestion.

He stressed that the Bills did not offend the provision of the Constitution. There had been extensive public participation. He said that perhaps some general observations should be made.

At this point the Chairperson noted that Mr Daniels was simply reading through the document that had been tabled. The Committee would go through these submissions on their own. He would like specific responses from the bodies to questions raised by the public. He asked other Members if they had suggestions about how best to proceed, in a way that would be comprehensive, yet expeditious. For instance, there had been an argument that there was no rational decision linked to a legitimate government purpose. He would like to have comment specifically on that point.

Mr Daniels said that this point was covered on page 11 of his document. The CSVR had argued that the principle of equality before the law was fundamental. The potential to ensure that all people were legally accountable in the same way would be best done by ensuring that there was a diversity of agencies authorised to investigate organised crime and corruption. It submitted that dissolving the DSO would concentrate all crime investigation powers under the National Commissioner of the SAPS. Investigators located in the SAPS, and subject to the authority of the SAPS national commissioner, would not be able to investigate their senior officers, who would therefore be shielded. Anyone they wished to protect would also be shielded. They had suggested that for this reason the DSO should be separate from SAPS, so as to avoid the risk of corruption and abuse. Mr Daniels commented that in fact Section 2 of the Constitution required that the conduct of all public officials in South Africa must be subject to the Constitution. He believed that although the CSVR had pointed out problem areas, and what could happen if the proper safeguards were not put in place, they had not proved that there was anything constitutionally invalid about the Bill. It had not identified the specific provisions of the two Bills that it felt were constitutionally unsound. He noted that they had raised some strong concerns, which should be taken into account, around practical implementation. He noted that the right to equality before the law had been considered by the Court cases of Harksen v Lane and Hugo, which set out the two-stage analysis. He went on to say that the issue of political sympathy was not envisaged, as sections 198(c) and 199(5) stressed that there must be enforcement in compliance with the law. The Constitutional Court had also clarified the duty imposed by section 39(2) of the Constitution.

Mr Daniels said, therefore, that in summary the State Law Advisers could not find any support for the arguments advanced by CSVR. The Bills did not contain anything that they believed was subject to constitutional attack. There was no legal authority advanced to support the objections, and these objections seemed rather to be directed at the policy decisions. He said that there were numerous checks and balances in the Constitution.

However, Mr Daniels did want to add that the Bill might not, in its present form, cater adequately for the Minister’s final responsibility under Section 179(6). The prosecuting authority was not a Chapter 9 Institution, nor was it part of the courts in which judicial authority was vested. Section 206 said that a member of the Cabinet must be responsible for policing. Section 207 provided that there be a national Commissioner to control and manage the police. He submitted that these two sections must be read together to determine how the supervision over the police service was exercised by the Executive. Responsibility ultimately meant control.  Therefore the role of the Minister must be considered in relation to the operations of the Directorate for Priority Crime Investigation (DPCI), if criticisms levied against the Scorpions were to be avoided.

The Chairperson asked how Mr Daniels would comment on the allegation that this was not a rational decision linked to a legitimate government purposes. The views of the CSVR would be taken into account. He wanted simple explanations that the average MP, who was neither a lawyer nor a constitutional expert, could understand.

The Chairperson asked if the crux of the matter was that whilst legitimate concerns were being expressed, it was incorrect to say that the equality clauses would be undermined if the country was to proceed with setting up the DPCI.

Mr Daniels said that he had interpreted the CSVR argument to mean that the disbanding of the DSO would result in concentration of powers in the National Commissioner only, who could then protect himself and anyone else. This was an argument that ignored the Executive controls exercised through the Minister, Cabinet, the President and Parliament. The argument seemed to be based upon the difficulties that the current national commissioner was experiencing.

Asst Commissioner Dr Philip Jacobs, Chief Manager: Legal Services, SAPS, said that he agreed with the view expressed by Mr Daniels.

The Chairperson commented that the CSVR seemed to have raised quite legitimate concerns, but that the argument around unconstitutionality was not justified.

The Chairperson then asked for a specific answer on the comment that this did not appear to have been a rational decision linked to a legitimate government purpose.

Mr Daniels said that he had dealt with this issue. Parliament had the power to pass legislation. If the purpose was to locate the DSO within SAPS and thereby strengthen SAPS to deal with organised crime, then this seemed to be a legitimate purpose.

The Chairperson asked Mr Daniels to comment on the allegation that it was the actions against senior politicians that were seen as a threat, which would be a reason for dissolution. He also asked for comment upon the statement that government had seemingly decided to proceed with this because of the resolutions of the Polokwane Conference, based upon the fact that there was no inkling of the intentions prior to that conference, and the inference thereby gained that government was acting on instructions of the ANC policy conference.

Mr Daniels said that this point was dealt with in detail in the written presentation. There was a separation between party and State, and the Executive exercised executive authority through the Cabinet and President, who had the power to initiate and develop policy irrespective of the ruling party. This had been done.

The Chairperson said that whatever government did, and whatever Polokwane had decided, surely the final point was that the Bills belonged to Parliament. He asked whether the test was not linked to how the system operated. In a proportional list system, where Members of Parliament did not have a specific constituency, he said that it would surely be reasonable that they received a mandate either from the five-year election manifesto, or from the highest decision-making body of the party. Members were accountable to the party they represented, not to a direct constituency. Norms and values would dictate public hearings be held, and the views of the electorate had to be taken into account. Members of Parliament had to manage their parliamentary mandates to ensure a constitutionally sound democracy. In many cases the Bills passed had emanated from ANC policy conferences, and the same would apply to the DA or IFP positions, as their members would similarly have to maintain the mandates. Members must be open to being convinced of any viewpoint. He asked a question how a Member should manage a party and parliamentary mandate.

Mr Daniels said that this raised some philosophical issues. The electorate entrusted the running of a country to a party for five years. If the electorate disagreed with the current ruling party, then it would punish it at the polls. He did not see that it made much difference whether there was proportional representation. The question was whether the Executive had merely rubber-stamped the Polokwane resolution, but this suggestion ignored the separation between State and party. Cabinet had exercised its executive authority, and did look at the matter independently, and also developed policies through the two draft Bills.

Legislative authority meant that Parliament had the authority to deal with these Bills as it saw fit. It must consider public submissions, and whether to alter the Bill. The submissions about equality were put forward by CSVR but they did not point to one provision that suggested that equality had not prevailed. The National Commissioner of Police did have difficulties at present, and perhaps the Committee should look at how to exercise control over that Commissioner.

Commissioner Jacobs, in response to the same issue, said that at a practical level the command control was coordinated. The Khampepe Commission had discovered certain disjunctures in the ministerial responsibilities. It had suggested that the DSO remain in the NPA, but that the Minister of Safety and Security should take control of the policing operations. This would not have answered the current problem.

Mr Johan de Lange, Principal State Law Adviser, Department of Justice, said that when Parliament had passed the initial legislation to establish the DSO, this was done for a specific purpose, to fight organised crime. Government was now asking that further legislation be passed. The Executive’s recommendations had been clouded over by various perceptions. The Executive had the Khampepe recommendations and that was the most reliable test. If government was introducing the legislation to enhance the fight against crime, then this would be a legitimate purpose, whereas if the purpose was to protect people, then clearly it would not pass the test of legitimate purpose.

The Chairperson made the point that until the new model had been seen, it was difficult to tell if there was a rational purpose. Clearly the new unit must be more effective.

Adv L Joubert (DA) said, on the issue of legitimacy, that the question was whether this legislation would ever have been introduced if the decision to disband the DSO had not been taken at Polokwane. He doubted that it would.

Mr V Ndlovu (IFP) said that proportional representation meant that the members belonged to a party, and therefore everything would fall back to the party. Therefore the suggestion that the legislature could differ from what the party thought was not, to his mind, quite correct.

Mr J Jeffery (ANC) spoke of the transfer of political oversight to the Minister of Safety and Security. He asked SAPS whether the suggestion was a practical one, and how it would tie in with the budget. If the DSO and the NPA fell under the Department of Justice budget, then he queried how it would be practically possible to have oversight falling elsewhere, without that budget following.

Mr B Magwanishe (ANC) said that he agreed with Mr Ndlovu. He pointed out that the electorate would vote for a party because of the policies that they promised to implement. Those policies must be made at party conferences. The same was true of the opposition parties. Even in the USA, people would be elected because of what they promised to implement. The issue was whether the Executive had applied its mind in terms of implementation. The ANC made no apology for having taken the resolutions; the delegates had applied their minds and should implement the policies of the conference, as that was what the electorate had appointed them to do. He noted that many other policy decisions had been implemented in parliament – such as the abolition of the death penalty - and there was no cogent reason to see this one as any different.

The Chairperson said that this Committee had recently voted to abolish floor crossing, and that was a policy decision out of the same conference, which happened also to have been supported in principle by the opposition parties.

Adv Joubert commented that the policy conference might be a high authority, but then so was the political manifesto prepared for the elections. In the 2004 ANC manifesto there was a promise to strengthen the DSO, yet now this was a completely different issue. He would have thought that the ANC should have gone back to the people to tell them of the change of plan.

The Chairperson said that the election manifesto appeared only once in the five-year period, and it could not be suggested that no major decisions could be made outside of that. He said that he thought the parties must agree to disagree. It was true that the 2004 manifesto had contained this statement, but also true that another decision was taken at the policy conference. It was up to the electorate to decide if they agreed with the ANC policies or not, and a clear indication of that would come out of the election. This was a philosophical debate. He would not be entirely comfortable if the decision to disband the DSO was, for instance, taken by the National Executive Committee, but it must be recognised that it was taken by over 4 000 representatives. He thought that Members must apply their minds to how to balance the party mandate and the parliamentary mandate; the issue was the level of detail.  
 
The Chairperson asked the parliamentary researchers to continue with their summary of the submissions made during the public hearings.

Ms Christine Silkstone stated the next section of the summary (see attached document, dated 28 August) dealt with the international obligations and the argument that disbandment of the Scorpions would violate such international obligations.

The Chairperson reminded Members that the international obligations discussed here were the UN Anti-Corruption Convention and the AU Convention on Preventing and Combating Corruption.

Mr Enver Daniels advised the Committee that the Office of the Chief State Law Adviser felt there was no contradiction between the proposed disbandment and the Conventions.

Comm Philip Jacobs mentioned that the international instruments had already been adopted by Parliament in terms of the present Corruption Act. Section 34 of that Corruption Act said that SAPS was the institution to which corrupt activities must be reported.

Mr Swart indicated that the media reports had indicated that the Constitutional Court, during the Hugh Glenister case, had suggested that any new model adopted would have to comply with international obligations, and that this must be borne in mind.

Adv Joubert noted that the Anti Corruption Convention also contained a clause relating to independence, and he questioned if the proposed new structure would comply with this clause.

Mr Ndlovu asked for clarity regarding the issue of independence of SAPS and asked at what level it would be located.

Mr Daniels stated that, after having briefly compared the provisions of the Conventions against the two Bills, he did not think that there was any compromise. He mentioned that disbanding the Scorpions would not compromise the State’s obligations under the Conventions.

The Chairperson stated that the country must have a specific organised crime unit that was independent. He questioned whether the location of that unit within SAPS would compromise its independence. Any new model must ensure that independence was secured. He further noted that even parties who argued for the dissolution of the Scorpions were not entirely happy about the powers and functions allocated to the new model, especially the notion that the Police National Commissioner would have the power to decide on all cases.

He proposed that the issue of independence be flagged for further discussion at a later date.

Comm Jacobs stated that the UN Convention mentioned a structure that would “enable the body to carry out its functions effectively and free from undue influence”. He noted that this also related to the independence and the power of the National Commissioner. He further noted that the UN Convention and other similar instruments did provide for some latitude, but also recognised the constitutional system as sovereign. He believed that it was possible for every government department to function without undue influence, and that this was the acid test for independence.

The Chairperson stated that the ANC felt that the powers and functions allocated to the National Commissioner in the Bills was not acceptable, and that greater independence should be allowed.

The Chairperson then asked Comm Jacobs for an explanation as to how the Bills envisaged that the establishment of the Directorate for Priority Crimes Investigation (DPCI) would be more effective in fighting organised crime and corruption.

The Chairperson said that he found the fact that Mr Ndlovu’s question was not answered was very revealing.

The Chairperson also noted that if the new model was adopted, it would be necessary to look at other options. For instance, perhaps the Minister should appoint the head of the new division. He also noted that there should be a Deputy National Commissioner located in the Office of the Commissioner, that might not necessarily be appointed by the Commissioner but appointed by the Minister of Safety and Security, after or in consultation with Parliament.

The Chairperson then drew the members’ attention to the issue pertaining to a single police force.

Mr Daniels replied that this had not been tested in the Constitutional Court, but that the judgment in the Minister of Justice v Andries Potsane case would apply, in that the State could have more than one organisation with powers similar to the police.

Mr Johan de Lange, Principal State Law Advisor, DOJ, agreed with the Khampepe Commission in that regard.

The Chairperson then referred to the Helen Suzman Foundation’s submission. This suggested that the public was not given enough time to play an informed role in the deliberations about and refining of policies in the Overhaul of the Criminal Justice System. It was suggested by the Foundation that wide-ranging public hearings be held in this regard.

The Chairperson suggested that members go back to provinces to provide information and ask for public comment on the Overhaul of the Criminal Justice System, and also should report to the public on the progress of the hearings.

The Chairperson then spoke about the accountability issues. He noted that the Institute for Security Studies (ISS) had suggested if the DSO be disbanded, a new unit, established outside the SAPS but answerable to the Minister of Safety and Security, should be explored.

The Chairperson further stated that the Overhaul of the Criminal Justice System (CJS) required that every structure be reviewed. He questioned as to why the DSO was above review. He understood that the matter might have become blurred by the pending charges against the ANC president.

Mr Swart agreed that all units needed to be reviewed. However, he questioned why in that case the DSO had not been reviewed before a decision was taken to disband it; this seemed to be putting the cart before the horse.

Mr Jeffrey replied that the Khampepe Commission report had addressed this issue. He noted that the report did not suggest the disbandment of the DSO but that it did speak to changing the lines of responsibility.

The Chairperson then requested that Members make a more active contribution to the discussion at hand. He stated that in addition to the Khampepe Report there were other political processes that warranted review of the DSO, one of which was the Browse Mole Report. He mentioned that to reduce the review to these two items was incorrect and stated that it was not so much a matter of putting the cart before the horse, but rather questioning why the horse was so close to the cart.

Mr Deon Rudman, Deputy Director General: Legislation, DOJ, stated that Recommendation 4 of the CJS review related to the implementation of key priorities identified for the component parts of the CJS, which in turn would impact upon court processes and improving capacity. He noted that this required a dedicated focus to adopt proper organized-crime fighting structures and strategies and therefore directly related to the two Bills being discussed.

The Chairperson requested a more substantial answer from the DoJ as to the relationship between these two bills and the overhaul of the CJS.

As an aside, the Chairperson spoke of statements made to the media by Julius Malema. He reminded Members of the committee that youth had a propensity to speak their mind more vigorously, and that the older Members need to be more wise and temperate of their opinions of the youth.

Mr Jeffrey also spoke to the point that was raised by Mr Mo Shaik, who suggested that this issue  could be dealt with in the long term, and that this was not something that had to be decided in  this Bill. He suggested that unit should be placed in the SAPS for now, but that it should be decided at a later date if it should remain there. He felt that consideration of a totally new unit at this stage would be premature.

Mr Swart agreed that it would be necessary to investigate various models for the new unit, especially in the light of it being answerable to the Minister of Safety and Security, which was in turn linked to the issue of independence. He asked for this point to be flagged for consideration at a later date.

Mr Daniels noted that Article 36 of the UN Convention spoke about the specialised unit being given independence to carry out its functions. He said, however, that this was not the same as independence as set out in Chapter 9 of the Constitution. He noted that the issue of ministerial oversight was very important, in order to ensure that law enforcement agencies be properly co-coordinated.

Mr Swart maintained that it was necessary to look at different models, accountable to the Minister of Safety and Security, and that no possible model should be excluded from consideration.

The Chairperson stated that it would be necessary to find a framework that worked for everyone. He questioned if was possible to include a clause in the Bill to the effect that within a certain time – say three years – this model must be reviewed to take into account whether certain criteria as set by parliament were being followed and whether such model was working optimally.

Mr Jeffrey replied that this was possible, as a similar clause had also been included in the Child Justice Bill.

Ms A Van Wyk (ANC) queried why there was a belief that the new unit could not be independent if it was located within SAPS.

Mr P Groenewald (FF+) asked if the ANC would consider retaining the DSO where it was presently situated.

The Chairperson said that at this stage the Committee was following the programme of the day. It was necessary firstly to decide on the key principles and consider various models. Having done that, the next issue would be to address the question of whether the DSO should be retained, or not. A Motion of Desirability to pass the Bills that sought to disband the DSO in its present form and set up the DPCI would then be put to the Committees. He stressed that all arguments would then be presented to the caucus for deliberation and decision. As far as the ANC as a political party was concerned, this decision had already been taken at Polokwane. He requested that all parties play a role in providing caucus with various models for consideration.

Mr Jeffrey addressed the issue of independence, and raised the question if the police were capable of investigating themselves. He requested that statistics be provided from SAPS on this matter, to ascertain how many police officers had been investigated, charged and prosecuted. He then raised a further issue that if the unit was made answerable to the Minister of Safety and Security, who was a political Head, this could blur clear levels of independence.

Adv Joubert complimented the Chairperson on the fair manner in which the public hearings were held. He then asked if any precedent existed whereby a political party may have taken a decision that was approved by Cabinet, but was then overruled by caucus.

The Chairperson stated that some of the legislation passed previously was substantially different from the caucus agreement.  He stated that what these Committees were seeking to do was to establish a particular relationship, in a proportionate system, between a party mandate and a parliamentary mandate. The fact of the matter was that the caucus had the final decision.

Mr Groenewald explained that independence would exist only if the head of a structure did not have to answer to any other Commissioner in the police services as to whether a matter be investigated or not.

Mr Jeffrey stated that the Constitution specified that the prosecuting authority had the power to institute criminal investigations, and it was assumed that the police could also be investigated. He noted that it was not correct to have political interference with any investigations.

The Chairperson stated that if the new model was pursued, then there seemed to be agreement that the SAPS Bill in its present form was not acceptable as it did not provide for the maximum measure of independence. He suggested that further negotiation was required as to how to achieve more independence than the Bill currently allowed.

Mr Swart suggested that at the same time counter-strategies to the simple dissolution of the DSO must be considered, particularly due to the nature of the cases currently being dealt with. He suggested that a phased-out approach also be considered.

The Chairperson asked members to report back to caucus, setting out the various options. He suggested that a multi-party sub-committee be set up we meet and try to fine-tune these various options, in a closed meeting, before reporting back to the Committees.

Adv C Johnson (ANC) drew the Committees’ attention to the process followed with the Child Justice Bill, where various options from all parties were considered, after which the matter was taken to caucus. She noted that the Bill approved by Cabinet and the one finally tabled in Parliament were completely different and that this should indicate that the caucus had an open mind and could make its own decisions.

The Chairperson continued to discuss the status of the new Unit. He agreed that it should not be as low as currently reflected in the Bill

The Chairperson then continued to the issue relating to the suggestion of multiple agencies. He explained that a multiple agency unit existed outside of SAPS, which would ensure independence and at the same time ensure multiple sites of fighting crime.

The Chairperson continued to briefly discuss the problems existing with SAPS. He noted that the submissions revealed that morale was low, corruption was high, and the culture of SAPS was different to the DSO as the latter was a specialised unit. The submissions also pointed to the flaws in recruitment, selection and training, and the fact that the DSO was much better resourced than SAPS.

The Chairperson then moved to the problem of vetting.

Mr Jeffrey suggested that this was a more internal matter, and need not be legislated upon.

Adv Johnson suggested that this was part of an oversight function, and not a legislative process.

Ms Van Wyk stressed that there should be a distinction between perception and reality. She noted that there was a perception that SAPS did not have the capacity to deal with complicated crime. This was not quite true. There were currently cases before the courts that had been dealt with by SAPS.

The Chairperson requested that Comm Jacobs respond to these critiques.

Comm Jacobs agreed with Ms Van Wyk that there had been a constant restructuring process in SAPS since 1994, and that it would be unfair to say that it had a bad record. He stated that there was no complex crime investigated by the DSO that could not just as well be investigated by SAPS. He agreed that there were issues relating to capacity of the police officials, but assured the Committee that there were programmes put in place to address these issues. For example there was a programme to assist members of SAPS who were illiterate. Another programme dealt specifically with the improving and restructuring of detective services. He maintained that SAPS used the best-practices approach in order to address organised crime together with prosecutors. He was concerned at the generalised accusations made by Members of the Committees.

Mr Groenewald agreed that SAPS was doing excellent work, but mentioned that there were some “bad apples” in SAPS. He then requested figures from SAPS on the number of police officials being investigated, in order to ascertain if the SAPS were capable of policing themselves.

Mr Jeffrey agreed that the issue was to see if SAPS had this capability of investigating themselves, no matter what crime the charges related to, including murder, theft, or corruption. He said figures should be provided on all areas of police investigation, charges and convictions.

Ms Van Wyk requested that figures be provided for SAPS and the DSO, in order to ascertain a more balanced view.

Mr Willie Hofmeyr, Head: Special Investigating Unit, NPA, stated that the corruption and investigation figures would be provided by the DSO in the following week. He stated that in a number of cases of organised crime the DSO had worked with SAPS. He maintained that there were some very good detectives in the police, but the difficulty was that the good detectives were overloaded with work, and did not have the time and capacity to deal with crime. He explained that the reason why corruption cases were being referred to the DSO by State departments and private companies related to their belief that the DSO would investigate the cases better. He mentioned that there were complex cases requiring a lot of commitment; some might take around four years of investigation before they were ready to proceed to court.  He maintained that there were no easy answers here, and that the challenge was how to build capacity in the long term and increase the level of skills in this area. He also stated that prosecutorial independence did not mean a lack of accountability. He further explained that with any institution that dealt with more sensitive cases, there were always instances where powers could be abused, but that some of the allegations were not true.

The Chairperson indicated that it might be necessary to review the whole security system.

Mr Swart stated that the prosecution-led investigation model still needed to be debated, as it also touched on questions of independence. He noted that prosecutors needed to be independent and to be accountable.

Mr Jeffrey stated that it might be useful to know why the police anti-corruption unit was disbanded.

Mr Jeffrey also requested clarity on the role of the DSO regarding police corruption.

Mr Jeffrey also asked for precedents on prosecutor-led investigations.

The Chairperson clarified that there were submissions that prosecutors and investigators should not be in the same unit. He noted that prosecutions should play a role, but not in the same unit, and that the question of the form that the prosecution should take was another matter requiring further consideration.

Mr Hofmeyer replied to Mr Jeffrey by noting that there were many precedents for the prosecutor-led model and that these would be elaborated upon in the following week

Mr Magwanishe asked if this model could only be led by a prosecutor, or whether any qualified person could take that leading role.

Mr Magwanishe also asked about vetting and requested that National Intelligence Agency (NIA) be present at the next meeting in order to provide clarification on this matter.

The meeting was adjourned.

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