Scorpions closure: Response to public submissions

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Justice and Correctional Services

03 September 2008
Chairperson: Mr Y Carrim (ANC) and Ms D Nhlengethwa (ANC)
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Meeting Summary

The two Committees sitting jointly continued their deliberations on the implications of the relocation of the Directorate for Special Operations / Scorpions (DSO) to the South African Police Service (SAPS) in terms of proposed legislation. The Committee deliberated on the input by several stakeholders during the public hearings, specifically relating to the proposed Directorate for Priority Crime Investigation (DPCI) and whether it would have the ability to combat organised crime, serious complex financial crime, and high-level corruption. They discussed the nature and scope of its mandate, including its powers and functions; and the appropriate oversight framework and institutional culture. They questioned how the DPCI mandate would enhance the fight against crime in ways that permitted the exercise of oversight responsibility without compromising on the new unit’s objectivity and independence.

Whilst the decision to disband the DSO emanated from a desire for a clear separation of investigative, prosecutorial and intelligence powers the Committee noted that there seemed to be an inextricable relationship between these spheres, and that the current wording created problems and attempted to cross reference provisions in a confusing way. 

The Committee considered the DPCI mandate in the context of organised crime, serious economic offences and high-level corruption, including corruption within the SAPS. The SAPS had argued that it could successfully achieve its mandate in terms of the Constitution and enabling legislation, and that a multi-disciplinary approach should operate, subject to policy discretion based on the exigencies of criminal investigation as opposed to explicit legislation that would dictate the conduct of priority crime investigation along an integrated or multi-disciplinary approach. The National Prosecuting Authority (NPA), on the other hand, felt that the role of the prosecution in the investigation of priority crimes deserved a more proactive mandate, to direct the course of investigations in such a way as to ensure a higher success rate in court trials. There was a growing trend toward sterner legal challenges to the investigation phase, which SAPS could not always deal with adequately, thus making it a critical requirement that prosecutors be involved at every stage of crime investigation. SAPS argued that the inclusion of investigators and prosecutors in the same organisation created problems in terms of accountability and independence. The Committee deliberated on the S v Kilian matter. The Chief State Law Adviser believed that prosecutor involvement with investigations could negatively affect an accused’s right to a fair trial. However, the NPA submitted that the Court in this case had decided that there was nothing inherently illegal about a prosecutor becoming involved in the investigation, provided that the methods were acceptable. The Parliamentary Researchers were asked to study comparative jurisdictions in this regard.

The scope of the DPCI mandate was cited as potentially challenging, given the DSO’s recent history where the mandates may have been exceeded. The NPA suggested the implementation of enhanced internal integrity measures to prevent corruption, and an oversight mechanism that permitted objectivity and independence whilst being aware of the balance to be achieved between investigation, prosecution and intelligence. SAPS expressed concern that prosecution-led or prosecution driven initiatives were unclear, as to whether this also entailed operational command and control. NPA responded that the major issue related to a challenge of institutionalising a multi-disciplinary approach in view of the possible conflicts that would arise within an integrated structure. Professional differences were a more plausible cause for conflict as opposed to overlapping mandates and it was critical to ensure co-operation between differing institutional cultures and to set up effective oversight structures.

In the afternoon session the researchers summarised some of the submissions around the roles of the National Commissioner of Police and the unit, noting comments that there did not appear to have been sufficient thought given to the checks and balances to the role of the National Commissioner of the SAPS. The comment was made that the framework should have been set out, and that the Hampered Commission had said that there could be effective overview of the DSO without necessarily disbanding it. The labour issues also needed further consideration, as did the fears around victimization, security of tenure for ex-DSO members seconded to SAPS, the possible loss of skills and security vetting. SAPS conceded that there must be a re-think on a number of issues, including voluntary severance packages and the State Law Adviser asked for some more time to deliberate on the various issues raised. The DSO was also asked to come up with figures as to how many members might not be willing to transfer, and what skills were likely to be lost.

The Bills were criticised as weak on the labour issues, and several Members also expressed concern that the budgetary aspects were also weak, with the Chairperson suggesting that Parliament should simply return defective Bills to the Executive until the budget had been properly detailed. It was impossible to implement legislation without a proper strategy and without full information on the numbers required. It had been intended that the entire DSO budget would simply be transferred but it was conceded that there were certain aspects needing further refinement, including consideration of a phased-in approach. There must also be an exit strategy for departing personnel to allow for smooth continuation of existing investigations and the Chairperson suggested establishing a multi-party subcommittee to consider these matters in confidence. It was noted that certain of the submissions had been referred to the Parliamentary Ethics Committee. 

Meeting report

Scorpions closure: SA Police Service Amendment Bill & National Prosecuting Authority Amendment Bills: response to submissions
Ms Christine Silkstone, Parliamentary Researcher, provided the Committee with a summary of the main submissions by stakeholders during the public hearings, specifically on the issue of whether the proposed Directorate for Priority Crime Investigation (DPCI) would have the capacity to successfully combat priority crime. Some contributors had argued during public hearings that the mandate given to the DPCI was inadequate because it relied on an outdated definition of organised crime compared to the one that was in the National Prosecuting Authority (NPA) Act.  It was also suggested that section 16(2) of the South African Police Service (SAPS) Act did not specifically mention corruption, and serious and complex financial crime, all of which currently fell within the mandate of the DSO. It had been proposed that section 16(2) of the SAPS Act be amended further to include the serious economic offences in DPCI’s mandate. There was also a need to fine-tune the mandate by focusing more on corruption and organised crime. The Helen Suzman Foundation had also expressed the concern that the DPCI had an overbroad mandate compared with the more focused mandate of the DSO.

Ms D Nhlengethwa (Co-Chairperson) asked SAPS for comment on the issues about the mandate emanating from the submissions

Comm (Dr) Philip Jacobs, Assistant Commissioner, Legal Services, SAPS, responded that in respect of the proposed section 16(2) there had been an attempt to broaden its scope by, for instance, the insertion of references to the Interception Act, which covered serious economic offences. The use of cross-referencing admittedly resulted in legislation that was not user-friendly, and this was not an ideal scenario, given that the mandate of the DPCI must be very clear. On the other hand, it was important for the mandate to be broad enough to cover all serious offences. SAPS was in agreement with the submissions regarding the need for clear and succinct language that would ensure that all issues were broadly covered.

Comm Jacobs noted that the SAPS had closed down its Anti-Corruption Unit for a number of reasons. At some stage, the SAPS had realized that there was inadequate capacity for anti-corruption. The biggest need in investigations had been the issue of police corruption within the context of organised crime. The SAPS had therefore decided to place its Anti-Corruption Unit within the Organised Crime Unit, and to investigate police corruption within the context of organised crime. It had then allocated other forms of corruption to its Commercial Crime Unit, and was building capacity for high-level anti-corruption matters through training and skills transfer initiatives between the two units.

The Co-Chairperson asked if the Department of Justice and the NPA had any comment.

A representative from the Department of Justice commented that the relocation of the DSO into the SAPS, in the form of a DPCI, would resolve the jurisdictional challenges that it had encountered previously, since the latter had a broader constitutional mandate for dealing with all types of criminal activity.

Mr Willie Hofmeyr, Deputy National Director of Public Prosecutions, NPA, responded that the use of the phrases ‘serious economic crime’ or ‘serious organised crime’ could provide accused persons with an opportunity to argue that at the time of their arrest, the offence in question had not been a “serious” one and was therefore not within the mandate of the authorities. It would not be ideal to create a situation where criminals could say that an investigation was illegal from the outset because it had been outside of the authority’s mandate. The DSO mandate had contained specific internal guidelines about the nature of crimes that it could investigate. The correct approach would therefore be one that took into account specific internal guidelines. These would have be phrased in a way that was flexible so that whatever oversight mechanisms were in place the new unit would be able to adapt to the changing nature of organised crime. A key issue in the mandate would be how to reflect an integrated methodology in terms of its practical outcomes. It was difficult to define such a model in precise legal terms. There was a need for the law to be more explicit on the issue of complex corruption and economic crime. At present, these issues appeared in the proclamation and it was important to ensure that there was a legally defined mandate that referred to them, as well as wording incorporated in the Act itself.

The Co-Chairperson observed that Mr Hofmeyr’s comments referred to the “Troika methodology” of prosecutorially driven investigation, intelligence and prosecution that had been used by the DSO.

Adv L Joubert (DA) asked about the function of the proclamation. He wanted to know how it operated in practice.

Mr Hofmeyr responded that the NPA Act simply made provision that, apart from what the law prescribed as the mandate, the President, by way of proclamation, could add further focus areas. The DSO originated from the Investigating Directorate on Organised Crime (IDOC) and the Investigating Directorate on Serious Economic Crimes (IDSEC), and the proclamations setting out their mandate remained in place, particularly because it was important for continuity for the transition from the old bodies to the new. The proposed new law was not very strong on transitional mechanisms. The current transition mechanisms that were in the NPA Act to cater for the previous transitions were relevant. Similar provisions would be required in the new Act.

Ms A Van Wyk (ANC) commented that the Committee had agreed to look at the mandate and to discuss ways of broadening it. Previous deliberations had already established the lack of responsibility over police corruption. The Committee could take this as an opportunity to look at the corruption issue within SAPS to decide whether it was satisfied with current structures. She suggested that in order that the Committee have a full understanding of the capacity of the new unit, it would require copies of the proclamation relating to the mandate.

Mr V Ndlovhu (IFP) asked how the DCPI would combat rampant police corruption.

Comm Jacobs responded that there were mechanisms in place for dealing with corruption in the police force. If a SAPS member acquired a criminal record, their membership would terminate. The Organised Crime Unit (OCU) had adequate capacity to deal with corrupt SAPS members. 

Ms Van Wyk responded that there was a need to ask whether the Committee was happy with corruption being dealt with by the Organised Crime Unit as opposed to an Anti-Corruption Unit or any other specifically mandated unit or branch such as ‘internal affairs’.

Co Chairperson Mr Y Carrim asked the SAPS to answer why they had dissolved the Anti Corruption Unit (ACU) in 2002 and transferred its capacity to the OCU. There was also a need to clarify whether this implied that it was not the task of the DSO or the new unit contemplated by the legislation to deal with corruption. If there was agreement that corruption was not within the mandate of these two organs, then the next enquiry would be whether the SAPS was sufficiently equipped in terms of structures. Whilst the Legislature had limited authority to dictate the internal structural arrangements that would fall within the ambit of Executive decision-making, the Committee could nonetheless submit proposals to Parliament in its report.

Comm Jacobs responded that when the ACU was itself tainted by corruption, this prompted the transfer of these matters to the OCU.

The Chairperson asked if there had been any significant improvement in combating corruption since the transfer of the anti-corruption unit into the organised crime unit. He asked whether there were any statistics to indicate the OCU’s progress.

Mr Jacobs responded that he preferred to obtain statistics rather than trying to estimate on his own what they were. He thought that the statistics would show some improvements, but it would be safer for the Committee to rely on exact figures than on his own perception.

The Chairperson asked Comm Jacobs to respond to the comment that the mandate given to the DPCI used a more outdated definition of organised crime than the one contained in the NPA Act.

Comm Jacobs responded that section 16 still covered the same areas of organised crime, since it included crimes requiring specialised skills or attention. It therefore was not restricted only to organised crime, but covered most of the areas in the organised crime environment. He agreed, however, that there was a need to streamline the provision to avoid arguments about mandate when it came to implementing the Act. It was supposed to be clear and broad enough to cover all the issues for investigation without raising any possibility for legal challenges through the courts.

Mr Hofmeyr said that the existing DSO proclamation was in the NPA’s submission. He said it was not entirely clear whether the whole of commercial crime and organised crime would go into the new unit. The NPA did not really hold strong views about whether the new unit should include corruption in the police-led initiative, as this was a matter for debate, but it was certain that it would be vital to look into corruption in the new unit as well. Corruption was not limited to the SAPS, but had been a problem in the DSO as well, who had assumed that the rigorous security screening for those entering into the organisation would make continued scrutiny unnecessary for people who were employed. He suggested that perhaps the law should make provision for enhanced internal integrity measures, beyond the normal screening procedure for members of the new Directorate. There were significantly higher risks of corruption when dealing with extremely wealthy criminals. For instance, a case had occurred recently where law enforcement officials were offered bribes of between R10 to15 million. These were large amounts of money compared to their salaries, and it was important to ensure that the new unit remained immune to corruption as result of such temptations.

Adv C Johnson (ANC) commented that there seemed to be a perception that the Independent Complaints Directorate (ICD) was equipped to deal with police corruption. She submitted, however, that the ICD looked at complaints in general and did not look at corruption in a proactive manner. One could not therefore safely rely on the ICD to look at police corruption. She felt that the mandate should be flexible enough to accommodate possible changes to the face of criminal activities. She asked about the process of defining the nature of priority crimes.

Comm Jacobs responded that the fact that section 16 was not reflected in the text of the Bill and the fact that the definition of serious offence was also not reflected in the Bill caused a lot of confusion on what the mandate would be. There was much commonality between section 7 of the NPA Act and the way in which section 16 was structured. However, he agreed that as presently worded the provisions of the Bills were not user-friendly.

Mr M Moatshe (ANC) asked for clarity regarding the new model. He wanted to know who would investigate the DPCI to address sensitive matters of national security.

Mr Hofmeyr responded that a proper and effective oversight for the DPCI was vital. There had been a proposal to make the DSO subject to Intelligence Oversight mechanisms but this proposed legislation had not been processed through Parliament. It should be made clear that the DPCI should have an intelligence mandate, and must be subjected to intelligence oversight mechanisms to avoid similar problems in the future. The ICD should retain its normal oversight role. When dealing with high risk investigation areas, the unit itself might need to have a more proactive and intensive integrity process within the unit. It could not simply rely on oversight.

Ms Silkstone then presented a summation of the stakeholder submissions on integrated methodology. The submissions had concentrated on the advantages and disadvantages of the troika method. Concerns had also been raised about secondment, and specifically the lack of a policy framework to deal with this issue. There were concerns around the problems surrounding secondment. The Bill did not mention any specific investigator / prosecutor strategy.

Comm Jacobs responded that SAPS supported the idea of multi-disciplinary approach. The SAPS also supported a situation where a prosecutor could be designated to support and provide guidance in an investigation, but would not support that prosecutors be employees of the same organisation located in the same building. This would not be a healthy situation. The relationship differed from country to country. In some the relation was closer, whilst in others it was more distant. There was value in a multi-disciplinary approach to enable essential skills to be deployed in the fight against crime. Expertise was required in different types of cases, such as the use of a psychologist to profile a serial killer, for example. Even though there were in-house legal advisers in the SAPS these did not replace the legal expertise of prosecutors, since there were instances when in-house legal advice was inadequate. This assistance was necessary in the context of serious crime. The SAPS had a system in place whereby prosecutors were identified in the context of organised crime, and the NPA identified prosecutors to work with investigators. However, there was a line that was to be drawn

The Co- Chairpersons asked Comm Jacobs to explain to the Committee why SAPS was of the view that having prosecutors and investigators in the same unit was not good a thing. Mr Carrim further asked why, if the SAPS did not think that they should be together in the same unit, but had no objection to still working together, this had not been stated in the Bill. This was in relation to the SAPS submission that it did not have to be law but could be a policy decision.

Comm Jacobs responded that this related to other disciplines and not just prosecutors. There had also been views that people from SARS and other institutions should be placed within the DPCI and that they must retain the powers that they had in terms of the legislation governing their own departments. It all boiled down to a question of accountability. This was where the problem was with the current DSO. It was important to retain the degree of objectivity that was required of a prosecutor, for example. The SAPS suggested that the inclusion of strong secondment provisions would almost force other institutions to second their employees to the unit. 

The Chairperson responded that content of the Bills, rather than the mere fact that provision was made for secondment, would determine whether employees were being “forced” or not. He said that legislation applied to government as a whole and he could not envision a scenario where a person seconded from SARS would bring with him his “own” law, since the law was all-embracing.

Comm Jacobs responded that there was some confusion over terminology. One could speak of prosecution-led, prosecution-guided, prosecution-serviced or court-directed investigations. These various terms were an indication of the difficulty in reflecting the multi-disciplinary approach in the law. It was also important to consider the present structure of how secondment worked in public practice.

The Chairperson asked whether the decisive role played by prosecutors could not be considered. He noted that the strongest argument coming out of the submissions was the issue of integrated methodology.

Comm Jacobs responded that there was a need to protect the prosecutor’s independence.

The Chairperson submitted that there should be a more explicit provision for an integrated methodology and pointed out the need to consider the experiences of the United Kingdom (UK) and other models, as to how prosecutors could play a role without being located in the same unit as investigators. He stated that those who wanted the DSO to be retained had to consider ways of changing its current methodology.

Adv Joubert asked for some examples of the models used in other countries.

Comm Jacobs responded that the integrated approach was under review in Canada. Other jurisdictions such as Australia accepted the role of the prosecution in criminal investigation. However, he noted that SAPS did not have up to date research, and preferred to refer this question to the Parliamentary Research team. 

The Co-Chairperson asked for a response to the MK Military Veterans Association’s submission that it was against the laws of natural justice for the DSO to have the power both to investigate and prosecute.

Mr Hofmeyr responded that at the heart of what the Committee was deliberating was the question whether there was going to be a multi-disciplinary approach to fight crime. A multi-disciplinary approach was by far the most effective way of dealing with complicated crime. The challenge before the Committee was to build an institution where such a multi-disciplinary approach could be institutionalised. The goal was to create an environment where people worked together as a team. There was a need for a model that accommodated the different professional competencies and gave them an equal say in what was done. A further challenge was to fashion an organisation that would institutionalise co-operation to manage the inevitable professional differences that could arise. While secondments could be an effective short-term solution, they would not work well in the long term. When disagreements arose between people who had not worked together for very long, this could be prove cumbersome to resolve. Conflict resolution mechanisms were required for the different components of the integrated unit, so that they would function smoothly and productively. There were important features that needed to be built in, to ensure that whatever differences arose could be resolved. The NPA had attempted to build a model of institutional co-operation in its Asset Forfeiture Unit. It was essential to build trust and lasting relationships. 

Mr S Swart (ACDP) requested SAPS to comment on the Supreme Court ruling in S v Kilian, which had stated that it was not a problem for prosecutors to guide and exercise oversight over an investigation and that this would not result in the loss of their professional objectivity. The need for prosecutor involvement appeared to be emphasised, regardless of the model that would be achieved.

Mr Enver Daniels, Chief State Law Adviser, responded that S v Kilian was located under section 179(2) and section 205(3) of the Constitution. The Office of the Chief State Law Adviser did not agree with the view that a prosecutor could be fully involved in an investigation. It was concerned about the right of an accused to a fair trial when a prosecutor was intricately involved with an investigation. Mr Daniels illustrated this with an example of his personal experience as a practising lawyer, when two criminal trials had collapsed as a result of a prosecutor’s involvement with witnesses. He submitted that the Constitutional Court had not definitively ruled on the extent to which a prosecutor could be involved with an investigation.

Mr Hofmeyr clarified the facts of the Kilian case, explaining that the person who did the interrogation of the accused and compelled him to answer self incriminating questions had ended up prosecuting him as well. The court held that the mere fact that the prosecutor was involved did not in itself constitute an illegality, but regard must be had to whether he had, in the course of that involvement, done something wrong. There were internal ways of ensuring that the bounds of propriety were not crossed. The presence of prosecutors in investigations was a safeguard for accused persons. Prosecutors were officers of the court, with an obligation to divulge any irregularity when they became aware of it; they could not cover up or be quiet about the matter. Their involvement was far from being an intrusion into the rights of the accused person, but was meant to ensure that the details of the investigation were being observed by somebody who was an officer of the court and who had certain ethical obligations. Nobody had been able to cite anything that said it was illegal for prosecutors to be involved in investigations. Whilst he accepted that a policy decision could be taken that this was undesirable, this must not to be confused with what was constitutional or what the law required. If a policy decision was to be made, then at the very least the legislation should stipulate the old model whereby investigators and prosecutors were co-located, but still retained their chain of command in the SAPS and the NPA. It was still clear that they would sit together and work on the same cases. When people sat in different offices and there were issues that have to be resolved, they had to make appointments, which could mean that weeks could pass before resolving the issues.

Adv Johnson asked about the issue also related to methodology on plea-bargaining. There had been complaints during the public hearings over the lack of consistency in plea-bargains, and reference had been made to cases such as the one involving Mark Thatcher. She asked if there was a way of arriving at consistency in the exercise of plea-bargaining.

Comm Jacobs responded that there were cases that had created negative public perceptions, such as the Equatorial Guinea case. It was important to exercise this power responsibly, as was the case with any other power conferred by legislation.

Mr Hofmeyr responded that admittedly mistakes had been made in plea-bargaining. Initially, plea-bargains were highly centralised in the NPA, but were then decentralised rather too quickly. The NPA was reviewing plea-bargains in a bid to promote uniformity. Plea bargains worked well in places like the United States and Canada, partly due to the availability of clear sentencing guidelines which limited judicial discretion.

Ms Silkstone provided a brief summation of the powers and functions according to the proposed section 16 of the Amendment Bill, and section 28 of the NPA Act. She noted comments that these were extraordinary powers that should be exercised with caution. She also provided a summary of the comments related to the type of oversight body that would be applicable to the DPCI. The Committee deliberated briefly over the advantages and disadvantages of Executive oversight of the DPCI, as compared to Parliamentary oversight

After the lunch adjournment, Ms Silkstone continued to summarise the submissions around the role and duties of the National Commissioner of the South African Police Service (NC), saying that concerns had been expressed that not sufficient thought having been given to how to build in checks and balances. The discussions had also focused on the future roles of the DPCI. She added that there had been a policy framework outlined, but a concentration on the powers of the NC. She foresaw bureaucratic problems and felt that the organisation’s framework should have been set out first. She added that the overview of the Khampepe Commission’s report showed that the Commission had concluded that there could be effective overview of the DSO’s work without necessarily disbanding it. The opposition parties had expressed a similar view, but the ANC argued that the DSO was disjunctive.

A further cause for concern was that the labour issues had not been considered, and there might be legal challenges arising out of the issue of salaries and conditions of service. There was also a fear of victimization, especially of those who had been involved in the Selebi case. Another question concerned the security of tenure for ex-DSO members seconded to SAPS. Additionally, there might well be a loss of skills and expertise. Another issue was around security vetting of the members of the DSO. It was noteworthy that the Public Servants Association (PSA) had not yet approached the Committee with their standpoint regarding the labour issues, especially for the support staff.

Commissioner Jacobs conceded that a rethink was necessary. He submitted that the salaries bill would not change greatly. The Minister of Finance could make arrangements and Section 24 of the SAPS Act would operate. However, he conceded that the disruption of career paths was of great concern and should be considered in the broader issues. He added that salaries were related to experience and years of service and also qualifications. Security vetting would be done in terms of the National Intelligence Agency (NIA) Act and could be performed by SAPS if the NIA did not have sufficient capacity. In terms of the labour laws there would have to be individual consultation with every member on transfer, and it was clear that there could not be transfers against the will of the transferees. Willing consultation must take place on both sides.

The Chairperson interposed and said that it seemed there was a very real danger that the members of the DSO could object to their transfers on the basis that, if the Bill was passed, then there was an assumption that transfers would follow. This might be construed by the Labour Courts as unilateral action on the part of the employer.

Mr Swart said that he was of the opinion that such a situation would be termed constructive dismissal by the Courts.

Mr Enver Daniels, Chief State Law Adviser, added that the position was potentially very complicated. He asked for the Committee’s indulgence to consider the matter, and also yesterday’s matters, at greater leisure.

The Chairperson replied that he would like the report at the next meeting of this Parliamentary Committee. He asked the DSO to do an investigation of its members to determine which members were truly committed to the unit, and were prepared to accept the transfers, and which were not. He asked that the members of the DSO be clearly advised that there was no vengeance and that there was a sincere wish that they stay and move over to the proposed new unit. He also asked that the Parliamentary Legal Advisers be consulted in regard to their position.

Mr Swart agreed and said that the question of voluntary severance packages should be canvassed so that both the Department and the DSO members knew up front what they were likely to meet. All efforts should be geared towards not losing expertise.

Adv Johnson said she recalled that earlier there had been a request for information on salaries and emoluments, but that almost half of this information was still awaited.

The Chairperson added that there were no guarantees that the proposed integration would take place but that extensive investigation was required.

Comm Jacobs conceded that the transfers must be done with consultation and could not be done unilaterally.

Mr Willie Hofmeyr added that there had been some success in encouraging members of the DSO to accept a transfer, and that this question would have to be cleared up. He was aware that some of the members had been approached to move into the private sector. Some of them, particularly the legal staff, had very valuable and scarce skills, which were at a premium, and so there was no certainty that the DSO members could be retained as a unit.

Adv Johnson commented that the Bill was weak on the Labour issues.

Mr Joubert wished to know whether Inspector Leonard McCarty was the only management member who had left or whether there were others still intending to leave.

Mr Hofmeyr added that he was not sure, but that those legal and investigative members who had left or were about to leave possessed invaluable expertise and experience.

Mr Joubert wished to know the staff turnover rates

Mr Hofmeyr replied that he was unable to provide such information at present.

The Chairperson suggested that this be investigated and the figures provided, so that the question of training and retraining could be established.

Adv Johnson said that the DSO would be treated differently within the SAPS.

The Chairperson then stated that discipline applied to all. He was of the opinion that the budgetary aspects of this Bill were weak. He felt strongly that unless the Parliamentary Committees were apprised fully on the budgetary aspects of Bills, the Committees should merely return the deficient Bills to the Executive. He conceded that this Bill was special and had aroused a lot of interest, but he felt that no exceptions should be made and deficient Bills should, as a matter of course, be returned to the Executive as being unacceptable to parliament.

Ms A van Wyk added that an implementing strategy could not be considered fully without an audit investigation to support it. This clearly did require details and numbers, and these had not been placed before the Committee. There must be a focus on the management team.

The Chairperson replied that he was sympathetic to the difficulties, but he was of the opinion that the costs associated with the proposal could still be established and laid before Parliament, in order for Parliament to perform its oversight function. He conceded that this could even be done in a phased approach, but he cautioned that the Bills could not be passed unless and until this had been done. He added that his fourteen years experience of parliament, he had realised that wonderful laws were conceived, debated and passed, but without an implementation procedure such wonderful legislation could not achieve the intention, and every one suffered as a result.

Mr Hofmeyr conceded that the intention was that the whole DSO budget would also be transferred. However, this did need to be thought out better, and there were certain aspects, such as the salary bill for the prosecutors, which needed to be addressed and refined. There had simply been an assumption that there was sufficient money

Ms van Wyk added that there should be a phased approach. It was likely that many persons would perhaps fall within the cracks, so it was necessary to avoid this by explicitly setting out everything.

Mr Swart supported this comment, referring to the Fidentia investigations, which were at an advanced level and had involved specially trained expertise.

The Chairperson asked that an exit strategy be established for departing personnel, so that there was ongoing continuing advance with investigations such as Fidentia and others of a similarly involved nature. He proceeded to suggest that a multi-party sub committee could be established to look into matters of a highly sensitive nature, so that the state of such investigations could be established securely but confidentially. He added that the process behind this Bill had been initiated about two years ago and he felt that there could have been more research. Nonetheless he wanted to thank the researchers, and emphasised that they worked for Parliament, and not only one section of Parliament. If there were any errors, he would like to know why, so that this could be improved upon next time. He added that the thematic issues had not been clearly expressed or added to.

Mr Swart concurred, adding that there had been many lengthy submissions, and he felt that these could have been collated and summarised.

The Chairperson said that personally he was exhausted by the lengthy submissions and time devoted to hearings, and that the Committee would continue next week. He added that certain aspects had been referred to the Parliamentary Ethics Committee – in particular the submission by Mr Glenister - for consideration and deliberation, and that it was necessary to exercise caution on some issues.

Mr Swart concurred.

The Chairperson added that everyone should appreciate the guidelines as established by the Ethics Committee, that there should be no inopportune breaches, and that the multi party subcommittee should work harmoniously.

The meeting was adjourned.


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