Scorpions Closure public hearings: Day 6 & response to public submissions

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Justice and Correctional Services

08 September 2008
Chairperson: Mr Y Carrim (ANC) & Ms M Sotyu (ANC)
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Meeting Summary

The Committee then continued with the public hearings on the proposed disbandment of the Directorate of Special Operations (DSO). The Young Communists League submitted that the mandate and powers of the DSO should be clarified, and that investigators and prosecutors should remain separate. The League questioned the DSO’s successes, complained that these were mostly high-profile cases that seemed to benefit the “big fish”, and that they had instigated conflict between parties, as evidenced by the Browse Mole report. It alleged that the DSO was only concerned with protecting companies and the rich against the criminals, had not ever become involved in the bread price-fixing scandal, and was involved in scandalous plea-bargaining, citing the Mark Thatcher incident. It was alleged also to have persecuted high figures in the ANC, to have lost all credibility, to have not once investigated its own National Prosecuting Authority, and to have been infiltrated with “old-order” operatives. However, it also said that if the members were committed to fighting crime, then they should not object to being transferred to SAPS.  The League suggested that the Independent Complaints Directorate should deal with corruption in the SAPS. Members noted that the parties had referred the question of whether those accused under the Travelgate investigations should be allowed to vote on the future of the DSO, and the Chairperson explained the referral of matters to the Parliamentary Ethics Committee. They questioned to what extent the Youth League was relying on facts rather than perceptions, and the Mark Thatcher plea bargain was explained as not involving the DSO at all, but resulting from the decision of the Court. It was suggested that if substantiated evidence of numbers and roles of former apartheid-operatives could be obtained, it should be forwarded confidentially to the Chairperson of the Committee. The Chairperson summarised the four possible approaches that had become apparent in the course of the public hearings, and that would be further examined.

The Helen Suzman Foundation made an additional submission. Firstly, the Director clarified the facts of the Mark Thatcher case, which a Member later commented were very different from what the public had perceived them to be. Secondly, the decisions of the Constitutional Court around the public participatory process were fully set out, and highlighted. Something more than mere observance of the formalities was required to prove compliance with the Constitutional imperatives, and legislators must have discarded their own perceptions, fully considered all angles, and not have a pre-determined mindset.

Mr Pieter Groenewald, representing the Freedom Front Plus, submitted that the DSO should not be disbanded but should remain part of the NPA as it was a unique and effective unit for combating crime through prosecutorial led investigations. He submitted that there were no Constitutional reasons for the DSO to be disbanded and that the rationale for suggesting this was a political decision based upon a flawed interpretation of the Constitution. He stated that the deficiencies with regard to the DSO could be resolved without it being disbanded and asked for the two Amendment Bills to the NPA and SAPS to be discontinued. Members asked how he thought the Khampepe Commission recommendations should be implemented, and said that they might wish to return with further questions.

The South African Police Service responded to questions posed at earlier meetings, around the issues of the numbers of police officials investigated, charged and convicted, how this compared to other countries, and whether the percentage was considered to be high or low, as also how many had originally been investigated, with some members expressing the view that the statistics should be available for the public to know. A DA Member proferred the results of her own research, and the Committee on Safety and Security were requested to help in obtaining the figures, which should be provided in the next two weeks. Further questions were asked as to whether there had been improvements in dealing with corruption.

The Head of the Special Investigating Unit responded to questions about the operations of the DSO. He too clarified the position in relation to the Mark Thatcher case. Explanations were given in relation to outsourcing, and the search and seizure procedures at the Union Buildings, and the accusations of “cherry-picking” of cases where there was a reasonable prospect of prosecution, although the Committee was not satisfied with that explanation and requested that a written text be provided on the criteria for selection. Statistics would still be provided to show the internal integrity of the DSO, and the names of senior persons within the National Prosecuting Authority who had been investigated were noted. The case against Mr Powell was still pending. In relation to complaints about the “Hollywood-style” of operations, it was noted that since Mr Pikoli had headed the NPA, there had been no such operations. Complaints that such operations had violated human rights had not been able to be substantiated in Court. In respect of the allegations around leaks of information, it was explained that any possible leaks were immediately investigated. Specifically in relation to the Browse Mole Report it was noted that the NPA was awaiting the information that would enable it to take action against the person allegedly responsible for leaks, and was also awaiting the information that would enable it to launch a prosecution.

Questions around the caseload were clarified by the figures of approximately 300 cases per year spread over 300 investigators, but it was mentioned that most cases occupied a number of investigators each, and that in the UK and USA about 33 cases were finalized each year, with a staff of 300. were immediately investigated. It was stressed that the new unit must have capacity. In regard to allegations that high numbers of DSO staff had been members of the security police during the apartheid era, it was clarified that nine of the 300 staff had worked for the former security police, three with the Third Force Investigation and five in the anti-terrorism and anti-Pagad investigations in the Western Cape. Their integrity was, however, considered to be beyond reproach. Hidden agendas would not be tolerated at all.

The Chairperson asked the bodies specifically to address how many members of the police service were from the “old Order” and received that answer that the majority had been, but that those who were opposed to the constitutional democracy had taken packages in the early 1990s. He asked specifically for comment that a person who might oppose the Constitution might locate himself in the police or DSO in order to gain a better vantage point for continuing his activities in opposition to the new order. Another Member asked that the same sensitivity be shown towards members of the DSO and the police service, who both faced dangerous working conditions.

The mandate around corruption was explained, and it was emphasised that it was inaccurate that the DSO had only targeted members of the ANC. The DSO worked as a team and it would be difficult for one person to conspire to do something without this being picked up. Senior management looked into the merits of every case. Although partiality had been claimed, it had never been proven in the Courts. Everything possible was being done to combat the allegations of non-impartial workings, and this challenge would remain for any unit that were to take over. The Chairperson asked specifically for a response to the view that the DSO had members with agendas that did not serve the democracy, and that it served certain political ends that had tried to shape the discourse relating to the succession in the ANC. It was stressed by the NPA that it did not form part of certain investigations although it had asked to be included.

Meeting report

Disbandment of Scorpions: Public Hearings
Young Communists League (YCL) Submission
Mr Buti Manamela, representative for Young Communists League, stated that the YCL regarded the Directorate of Special Operations (DSO or Scorpions) as a most sensitive issue as crime was an overwhelming problem and must be fought from all quarters. He submitted that the mandate and powers of the DSO should be clarified. The YCL believed that the old fashioned approach where the investigators were separated from the prosecutors was the most advantageous and in line with the separation of powers, as envisaged in the Constitution. He conceded that he did not have the figures, but questioned the alleged successes of the DSO, feeling that they were much exaggerated, and furthermore that the “successes” were mainly high profile cases where the DSO was grand-standing. The statements and other leaks to the media were considered by the YCL to have compromised the rights of the accused to a fair trial, and developed and instigated conflict among political parties, resulting in a lack of fairness. He cited the Browse Mole report as an example. The YCL considered that the DSO relied upon perceptions rather than fact. One of the perceptions was that the DSO was only concerned with protecting companies and the rich against the criminals. It had not been involved, or even interested in, the unholy co-operation between those companies involved in the bread price fixing matter. He added that the DSO seemed to the YCL to be manipulated by political control. Further, he added the DSO was involved in scandalous plea-bargaining. He referred to the Mark Thatcher plea bargain, where Mark Thatcher had paid a small monetary amount to escape imprisonment, whereas other, less culpable people found themselves incarcerated in foreign and South African jails. In addition, the DSO had persecuted high figures in the ANC.

He felt that under the leadership of Bulelani Ngcuka the DSO had lost all credibility and the DSO had no stability. He added that the DSO had been allocated wonderful resources across the whole Unit, as evidenced by their motor vehicles, while on the other hand there was a perception that the SAPS were corrupt, inefficient and leaderless. There had never been any investigation into the corruption in the National Prosecuting Authority (NPA), and thus it was very critical of the investigations of the DSO into the SAPS corruption. He felt that a separate institution should deal with alleged corruption in the SAPS, if there was any, and that this should be done by the Independent Complaints Directorate (ICD) of the SAPS, which would be the obvious body and would be capable of such an investigation if had the powers and resources of the DSO.

The YCL submitted that the DSO should confine itself to organised crime and money laundering, not tax evasion, and wanted prosecutorial investigations of these crimes so that a warning was sent to organised crime syndicates that they should not consider South Africa an easy target. South Africa should not be negative on this issue and should show syndicates that it meant business by dissolving the Scorpions so that it could be more effective in the fight against crime.

Addressing the Labour Relations aspects about the proposed dissolution of the DSO, he submitted that the members of the DSO were very committed to fighting crime and as committed members would not mind being transferred to the control of the SAPS and having their skills absorbed into the SAPS. However, he suggested that all the members of the DSO be security-vetted again, before such transfers were effected, because the YCL felt that there were too many of the apartheid era operatives now working in the DSO.

Discussion
Mr S Swart (ACDP) asked whether the YCL felt that all those accused under the Travelgate investigation by the Scorpions should be allowed to have a vote on deciding the future of the Scorpions. He suggested that the majority party would have an interest in “whitewashing” the accused in the Travelgate defalcations, and that this was an ethical question which should be faced fairly and squarely. He indicated that the ACDP was interested in this, and was referring the question of the apparent conflict of interests to the Parliamentary Ethics Committee.

Ms D Kohler Barnard (DA) questioned whether the YCL was even aware of the mandate of the DSO, or whether it was not simply proceeding on the basis of perceptions. She added that the Mark Thatcher plea bargain had not arisen from the DSO, as it related to another law that was very new and untested, and that there had been justifiable concerns about whether a conviction would have been secured against Mark Thatcher. The plea bargain was useful in that Thatcher had capitulated, thus saving a lot of court time, expense and embarrassment for all concerned. The suggestion for payment of an admission of guilt and payment of a fine had been accepted not by the DSO, but by the Court.

Ms Kohler Barnard said that the YCL’s unsubstantiated claim that the DSO was riddled with former Apartheid diehards was “ludicrous in the extreme”. The facts and figures were obtainable from Mr Willie Hofmeyr, who was present. As a rational person she objected strenuously to the constant repetition of illogical and incorrect views, which was seen as giving accreditation to those views. Facts and figures and a cost analysis were required In order to judge the effectiveness of the DSO

A Member suggested that secondment of the DSO to the SAPS appeared to him to be the most effective solution to the problem.

Ms A van Wyk (ANC) submitted that the Scorpions should be absorbed by the SAPS, and that in her view organised crime would be best countered by the SAPS.

Mr V Ndlovu (IFP) asked about the allegations of corruption among the SAPS, wanting a further explanation as to what the YCL had meant. He also wanted an explanation of the term “prosecutorial investigation” which had been used. .

Mr Carrim then explained that the question of a possible conflict of interest on the part of those Members of Parliament who had been investigated as part of the Travelgate scandal had been considered by the Parliamentary Legal Advisers, who were of the opinion that there was no conflict of interest, but that the matter was one of ethics, which were never clear cut. The question had thus been referred to the Ethics Committee of the House of Assembly, as it was more a political than a legal problem. He added that there were only thirteen cases, that they formed part of disciplinary proceedings against the Members concerned, and that they were not limited to the ANC Members, and for this reason it was being referred to a multi-party disciplinary committee. However, he cautioned that as each party had its own perception of ethics there might be troubles ahead.

Mr Carrim then turned to the averments and defences about the numbers and roles of former apartheid-era operatives operating in the DSO. He asked whether there were empirical figures to substantiate either submission. He suggested that if any party had names of such operatives then the correct course of action was to submit the names of such persons to him, as Chairman of the Committee, on a confidential basis, as he saw this as the only pragmatic way of ending the continuous stream of allegations. He exclaimed that ideological and philosophical matters were being raised. If there was constant suspicion about operatives in the DSO, then surely this might extend also to suspicions against any “operatives from the old order” who were still active in the ranks of the prosecutors, and whether they might not also be running their own agendas.

Prof B Turok (ANC) pointed out that the direction of thought was wandering into an untoward and novel area of debate, and if this was happening then perhaps investigations might also be extended to the Judiciary, some of whom had been in office since prior to 1994.

Mr Carrim added that he felt that there were too many platitudes used, and he asked that the Committee be given norms and standards by which to judge. He added that the judiciary was only becoming an issue now and he felt that it should be put to rest. Judges were competent to evaluate the evidence placed before them by lawyers acting for the defence and prosecution, and to arrive at decisions in terms of the Rules of Evidence.  The stronger the submissions by the lawyers, the stronger and more effective became the judiciary. He did not want to go in the direction of judging the Judges.

Mr Manamela submitted that his presentation reflected upon the NPA Bill and its mandate. He said that any documents could be made to support a view point. He claimed to understand the mandate of the NPA and the DSO. With regard to plea bargains, he still felt it scandalous that the “big fish” were let go free while the “little fish” were hung out to dry, and stated that the operation of plea bargains reflected a racial attitude to crime, and that the DSO did not operate without fear or favour. He submitted that there was still too much of the apartheid-era thinking and operations that had not gone away. He added that the YCL saw the main feature surrounding the DSO not as service, but as the intention to change in order to defend the Constitution and the country without fear or favour, so that all segments of society had access to the benefits. YCL felt that this could only be achieved by the SAPS.

The Chairperson intervened at this point to advise of the presence in the Gallery of the Lord Chancellor of the United Kingdom and his party. He then joked that there was a kingdom in Kwazulu Natal, and that some questioned whether Kwazulu Natal did actually belong in the Republic of South Africa.

Mr Manamela supposed that the distinguished visitors would be surprised to find a communist present and addressing the South African Parliament.

He contested the figure of 13 members of Parliament being investigated under Travelgate, as given by the Chairperson, saying that there were claims that 250 members were still involved. He asked that all Members, whatever the figure, should be allowed to vote to disband the DSO, and that this must be sorted out as soon as possible. He added, in relation to the facts and figures, that people did not have access to facts, but relied upon what they were told, which showed up the disparity and therefore the need to disband the DSO. He said that there was a need for consistency. If Members of the ruling party were investigated, there was just as much need to investigate those involved in bread price-fixing scandals, which impacted on many more of the public. He added that if the DSO was viewed as successful, then its members could continue to be as successful under the SAPS.  He asked that there be no compromise, and that matters which affected the ordinary man on the Soweto Taxi should receive as much care, attention and consideration as did crimes affecting any other segment of society. Crime impacted upon everyone, and the percentage and consequences of the loss to all losers must be taken into account.

The Chairperson thanked Mr Manamela, for an original and thought provoking presentation. He said that in the process of the public hearings, the Committee was slowly edging to a conclusion that there may be four approaches to the question of the DSO: these being entire dissolution; entire absorption in the SAPS, partial maintenance of the current position, with the prosecutorial role being assigned to the Scorpions, who would then lose their investigative role; or, as suggested by the YCL, a clarification of the role of the DSO with a concentration on all forms of crime as a compromise. It seemed to him that currently the DSO did disproportionately benefit the “top dogs”. YCL’s had been the only submission to say that they wished to have a far more effective body, but under different control. This approach was welcome.

With regard to plea bargains, he said that the Criminal Procedure Act permitted these, whatever charge the accused was facing. The accused had the right to approach the prosecution with a suggestion to plea bargain. The prosecution would consider all aspects of such an overture. Having come to a proposed settlement with the accused and his legal representatives, this would then be placed before the presiding judicial officer, who could either accept the plea bargain and impose the appropriate sentence, or reject it, in which case the prosecution must proceed with the case.
Mr Jeffrey confirmed that the plea bargaining procedure was first considered by the prosecution and then approved by the Court. It was the NPA, and not the DSO, who had control of the plea bargain process.

Helen Suzman Foundation (HSF) Additional Submission
Ms Raenette Taljaard, Director, Helen Suzman Foundation started to speak on the Mark Thatcher plea bargain.

The Chairperson interrupted, stating that the Committee Secretary had been informed that the HSF had wished to address the Committee on some issues, but that plea bargaining was not one of those issues.

Ms Taljaard replied that she had a number of issues. However, it was necessary to have regard to the  reasons for the acceptance of the Mark Thatcher plea bargain. The charges against him had been framed under the Regulation of Foreign Military Assistance Act, which, at that stage had never been tested before. His defence had not been tested through the interlocutory process, and it seemed that the trial would be long, expensive and drawn out. The plea bargain was a practical conclusion to the matter. It was necessary to keep it entirely separate of the DSO issues.

Ms Taljaard then said that she had three issues to raise. She began with the question of public participation. The decision by the HSF to participate further had been taken pursuant to an article in the Sunday Times of 17 August 2008, headed “We may not listen but we would still like to hear from you”. She submitted that this went to the root question as to whether South Africa had a representative or a participatory democracy. She supported her submission with references to decisions of the Constitutional Court upon the parliamentary process, in the matters of Doctors for Life ats Speaker of the National Assembly and Matatiele Municipality and 10 others ats the President of the Republic of South Africa and others. She reflected upon the duties imposed by Sections 59, 72 and 118 of the Constitution and the duty imposed upon public representatives to foster and facilitate public involvement in the legislative process, as part of the right to political participation. She quoted the judgment of Judge Ngcobo at page 116 of the Doctors for Life case, as also statements on page 127, where she had enunciated the legal definition of reasonableness, stressing that the context was all important. At page 129 the Judge set out the Constitutional Court’s view that it was ultimately important to consider whether the legislature had taken steps to afford the public a reasonable opportunity to participate effectively in the law making process, by providing a meaningful opportunity to facilitate public involvement, and also whether it had fulfilled the duty to take steps to ensure that people could indeed take advantage of the opportunities provided. She noted that these statements were reinforced by pages 145 and 146, stating the test as to whether Parliament had complied with its duties. At page 200 Judge Ngcobo said that  while the doctrine of the separation of powers was an important one in the constitutional democracy, it could not be used to avoid the obligation of a court to prevent the violation of the Constitution. She further pointed to passages from pages 201, 205 and the judgment by Judge Sachs.

Ms Taljaard submitted that something more than mere observance of the formalities was required to prove compliance with the Constitutional imperatives. Not only should there be public participation in the legislative process, but the legislators should turn their minds fully to the question, discard their “fears and frailties of perception” and ask themselves whether they, as public representatives, had fully considered all angles in arriving at a decision, or whether they had merely obeyed their party Whip or ignored the force of the representations by having a pre-determined opinion before those hearings.

In support of her submissions, Ms Taljaard pointed out that the State Law Advisers had already questioned the constitutionality of the current approach, where there was a perception that State interest was subverted to party interest. The Parliamentary Law Advisers were conspicuously absent in an area where they should be zealously turning their minds to the constitutionality of the process.

Ms Taljaard then outlined the ethical considerations around allowing members of Parliament who had been the subject of investigations by the Scorpions to consider and vote upon a decision for the dissolution of the Scorpions. She had heard of the legal opinion that this was an ethical and not a legal matter, and therefore one for the Ethics Committee. She submitted that there were in fact overwhelming ethical considerations to set the minds of the public at rest regarding the legitimacy of the process. No amount of facile excuses would justify to the man in the street whether something was fit and proper if it was not.

Discussion
The Chairperson added that in the next 24 days Parliament itself would convene a Committee to consider the ethical aspects and perhaps draw new rules and regulations.

Mr G Magwanishe (ANC) said that he had listened to all the submissions, but remained concerned about what exactly “reasonableness” was. He was uneasy about that fact that parliament might have taken all steps to ensure reasonableness, but that the Constitutional Court might still hold that these were unreasonable. He asked what differences there were between the Doctors for Life case and the Khutsong matters, where the views of the people had been ignored.

Mr Jeffery said that he suspected that the submissions were saying that the perceptions of the people, the public, were more important that the perceptions of the public representatives.

The Chairperson said that the question before the Committee had been regarded from many angles before moving into specific proposals. The Committee had even requested four academics to give their input. Stakeholders remained extremely suspicious of the motives behind the Bill. It was clear that the public did not trust politicians, were wary of them, and that politicians should be saying to the people “Don’t listen to what we say, observe what we do”. He said the approaches by the stakeholders had varied greatly from that of the Democratic Alliance, which wished to retain the Scorpions at all costs, and that he was reaching out to a party that had so much to offer, and was expressing their right to oppose the dissolution of the Scorpions. He felt that the decision to embark upon public hearings was unusual. It had not been followed in the Municipal Structures Bill or the Property Rates Bill. He felt that that Parliament should engage with the public, not out of fear of the Constitutional Court, but because it was the right of the public in terms of the Constitution to be consulted.

He reiterated the four options that now seemed to be before the Committee. He stressed that he did not wish it to be said that he was in favour of any one option, as the time to decide that would come later when consideration was given to the vote. He added that the question of the ethics was receiving attention. He reiterated that Parliament would be looking at this soon, and from a different perspective.

Ms Taljaard apologised if she had been perceived as lecturing to the Parliamentary Committee. She reiterated that public participation, through submissions from the public, was at the heart of the matter. The process must be seen to be reasonable, in the light of the tests enunciated by the Constitutional Court. She felt that Judge Sachs’s concession that the reasonableness must be tested on a case by case approach did not in fact disturb this requirement. She added that she felt that the Khutsong matter had been correctly decided, but conceded that it was not as clear-cut as the Doctors for Life case.

Mr Jeffery said that the views of a colleague were always welcome, no matter how contrary.

Ms Taljaard replied that she was no longer a colleague of Mr Jeffery. She was now a member of the most important sector of all, the public, and was exercising the right of her employer, also a member of the public, to address Parliament on an issue of the day.

Mr Z Ntuli (ANC) added that he had listened with great interest to the explanation of the Mark Thatcher plea-bargain, and that this was certainly perceived very differently in the townships, who believed that Mark Thatcher should have been punished more severely because his actions had de-stabilised another African country, causing suffering to women and children in particular. He still felt that Thatcher had escaped prosecution, and that things must be resolved.

Mr Enver Daniels, Chief State Law Adviser, Office of the Chief State Law Adviser, explained that his Department had been asked to prepare on four models. It was a pleasure to hear Ms Taljaard, who had lifted the tone of debate considerably even if he disagreed with her conclusions. He explained that consideration had been given to the Khampepe Commission report and all its aspects, some of which had been disingenuously ignored by other parties, who had addressed themselves to selective recommendations only. He said that parties would participate in elections, not Government, and the NCOP felt that the seeking of public participation should be in their ambit, but that Ms Taljaard was correct in her readings of the Constitutional Court cases. 

Freedom Front Plus Submission
Mr Pieter Groenewald (FF+) declared that there was no doubt that the purpose for the creation of the Scorpions (DSO) was to establish a unique, effective and specialised unit which, together with the initiation of prosecutorial driven investigations, could combat all crime, especially priority crimes. This was endorsed by President Mbeki in the first State of Nation address and subsequently emphasized by the then-Minister of Justice, Penuell Maduna, in the National Assembly in 2000.

He also submitted that Section 199(1) of the Constitution stipulated that the security services of the country consist of a single police force and any other intelligence services established in terms of the Constitution. He noted that the governing party used this section of the Constitution to justify the disbandment of the DSO, and that the decision that a new unit be created within the SAPS was determined at the 52nd ANC Polokwane Conference in December 2007.  He mentioned that this view contradicted the findings of the Khampepe Commission and that of the State Legal Advisor, who had expressed the view that the establishment of the DSO within the NPA was not found to be constitutionally offensive. He submitted that the rationale for the dissolution of the DSO was not a merit-based decision by the Government, but a political decision based upon incorrect interpretation of the Constitution.

He also stated that it was clear that the political attitude of the ANC towards the DSO had changed from praise in 2002 to urgency for their dissolution in 2007, which could be construed to be political revenge against political opponents. He also stated that the deficiencies of the DSO were of such a nature that they could have been resolved without the DSO having to be disbanded. He asked that the recommendations of the Khampepe Commission be implemented and that the two
amendment bills be discontinued. He noted that the continuation of this matter would politicise the issue of crime and send a clear message to criminals that the ANC was on their side.

Discussion
Mr M Moatshe (ANC) commended Mr Groenewald for citing ANC documents in his submission. He commented that strategies changed all the time and that the DSO was not needed any more as it was creating serious conflict in our country. He noted that the DSO had a political bias and explained that if people who were supposed to fight crime were creating more problems in the country, then they would have to be moved aside.

Mr B Magwanishe (ANC) addressed Mr Groenewald for suggestions on how the Khampepe recommendations could be implemented.

Mr Groenewald (FF+) responded that how this should be done still needed to be resolved.

Mr S Mahote (ANC) asked if the submission reflected the view of the FF+, or was it the personal submission of Mr Groenewald.

Mr Groenewald replied that the submission reflected the viewpoint of the FF+.

The Chairperson suggested that further questions to Mr Groenewald be asked at a later stage and that it would be a better use of time now to obtain answers from Dr Philip Jacobs: Assistant Commissioner: Legal Services, SAPS, on concerns expressed previously.

Responses from South African Police Services (SAPS)
The Chairperson enquired from Comm Dr Jacobs as to the number of police officials investigated, charged and convicted, their ranks and the type of crime for which they were charged.

Comm Jacobs replied that this question related to the issue as to whether the police were capable of investigating themselves. He noted that the total number of SAPS members convicted during the previous financial year was 624, and that their ranks varied from student constable to senior superintendent. The charges ranged from drunken driving to murder. He further noted that out of the total of 624 police officials convicted, 106 of them were convicted on corruption and fraud related cases.

The Chairperson requested that Dr Jacobs provide information as to how this figure compared to other countries in the world, and whether it was a high, reasonable or low percentage. He mentioned that this could provide clarity on public perception around police corruption.

Ms Van Wyk reiterated that the police were capable of apprehending their own members and that they had the capacity to do so. She also mentioned that the police service, as much as any other organization, was a reflection of society and that it was important not to create the impression that the police were not capable of policing the country, as this would be damaging for the country.

The Chairperson enquired from Dr Jacobs as to how many people were originally investigated.

Comm Jacobs explained that he was unable to obtain this figure as it related to the number of roll-over charges from the previous year.

The Chairperson noted that it was a reasonable question to ask if the number could be placed in context empirically, as 624 out of 1 000 was very different from 624 out of 10 000. He also stated that such information was required as it related to aspects of the Committee’s oversight role.

Ms Van Wyk noted that these sorts of statistics were not kept and could not be obtained with a press of a button.

Mr Groenewald expressed his concern if those statistics were unavailable, as the public had a right to know in order to establish trust the police.

The Chairperson noted that he would take it upon himself to deliver these statistics.

Ms Kohler-Barnard expressed her concern that corruption in SAPS was a huge issue in the public’s perception of trust for the SAPS. She noted that her own investigation into the matter showed that less than 50% of police officials charged with crimes were still working in the police force, and that this was a area of great concern.

Mr Magwanishe enquired from Ms Kohler-Barnard as to how she conducted this research, where had she obtained those figures, and what was the nature of the research.

Ms Kohler-Barnard replied that it was independent research and that the percentage quoted was obtained from the Minister of Safety and Security.

The Chairperson expressed his surprise at how low the figure quoted by Comm Jacobs was, saying that to have 624 members convicted out of a police force of 124 000 members was astonishing.
 
Comm Jacobs reminded the Committee that in terms of Section 34 of the Corruption Act, it was an offence not to report corruption to the SAPS. He noted that some of the cases were investigated at station level and others sent to the Organised Crime Unit and the Commercial Crime Unit of the SAPS.

The Chairperson asked if there had been an improvement in the quality of SAPS services in dealing with corruption.

Comm Jacobs explained that it was difficult to find such figures. He noted that there was no increase in the number of reported cases of corruption in the past year, and that this could also be a reflection of cases being dealt with more expeditiously.
 
The Chairperson requested that the Portfolio Committee for Safety and Security ensure that these figures be obtained, as a reasonable answer to this question was required.

Mr Ndlovu also requested that these statistics be produced in order to debate the issues further.

Mr Magwanishe expressed his concern that Ms Kohler-Barnard plagiarised information and asked her to acknowledge all her sources of information.

Ms Kohler-Barnard replied that Mr Magwanishe had insulted her from the first moment she walked in, and that she would not be called a liar in Parliament. She noted that she was reading from her own statement given to the media in June.

The Chairperson clarified that Ms Kohler-Barnard had read from her own statement, based on independent research drawn from information from the Ministries.

Mr Ntuli reminded members that the world was listening to members making serious references to crime in their discussions around the new DSO. He said that it was important to bear in mind that the men and women police officers working at the cold front of conflict were dying in their attempt to fight crime. He requested that Dr. Jacobs provide valid and credible information in order to discourage members from squabbling about information sources.

The Chairperson ruled that the issue would be deferred for two weeks, in order to give Dr Jacobs and his team more time to provide such information. He asked Members to transcend narrow parochial party politics, as crime was a serious issue in this country. He also stated that it did not help to direct criticisms against the SAPS, and asked members to choose their words more carefully.

Mr Ndlovu also emphasised that members must not be seen as unduly criticising the police, but should reach a conclusion to the problem.

Ms Kohler-Barnard offered to forward her research to the Chairperson to inform members that the document was fully referenced.

Responses on the DSO, by Head of the Special Investigating Unit
Mr Willie Hofmeyr responded to some of the issues that were put to him previously.

In relation to plea bargains: Mr Hofmeyr mentioned that a full document would be provided. He also wanted to clarify that the Mark Thatcher case was not one that was handled by the DSO.

Questions had been asked on the issue of outsourcing, Mr Hofmeyr noted that over the last seven years, R90 million was spent on work given to forensic accounting companies, and that this accounted for 5% of the DSO budget. He explained that it was a large amount but that the DSO was happy to spend this money in convicting big commercial companies, as such services were needed in large corporate corruption cases. He further noted that outsourcing to a private security company had only occurred at the search and seizure operations of the Union buildings. He explained that the Presidency was briefed beforehand, and that members of the Presidency and National Intelligence Agency (NIA) had accompanied the security company to the Union buildings to obtain the mirror images of the computers. He said that national security was not compromised at any stage.

On the issue of so-called “cherry picking”, when the DSO had been accused of only taking on cases if there was a reasonable prospect of prosecution, Mr Hofmeyr mentioned that this was a standard principle of the National Prosecuting Authority (NPA) as a whole, and was based upon the Commonwealth system. He stated that the DSO would not be likely to put someone through a lengthy trial, without knowing that it should be likely to obtain a conviction. He noted that, in accordance with guidelines agreed upon by the Minister and formally tabled in Parliament, the DSO has a more careful selection process. He explained that the same thing happened in other commercial crime cases, and that cases were only prosecuted if there was a good prospect of conviction.

The Chairperson interjected to say that there was no consistent policy regarding “cherry picking” and that this was not an adequate answer. He requested that Mr Hofmeyr provide the Committee with a written text that stated the following: how “cherry picking” was highly selective, what the criteria for selection were; and how would this relate to the media hype caused by such selection.

Mr Hofmeyr stated that statistics would be provided to show the internal integrity of DSO, and its zero-tolerance rule. He mentioned that there had been some questions asked as to whether the NPA would investigate high profile people in its organisation, and noted that it had indeed acted against a number of very senior persons. These had included Mr Brink Ferreira, Director of Public Prosecutions (Free State), Mr Dawood Adams, Head of Witness Protection programme, Mr Johnny Borcherds, Deputy Head of Witness Protection Programme, Mr Jeff Ledwaba,  Deputy Head of the Scorpions, Col Chivunga,  Senior member of the Scorpions Gauteng office and Paula Khantsi, Senior advocate for the Scorpions

He reminded the Committee that the NPA took a great deal of care when allegations were made about senior members of the NPA, to ensure that such cases were dealt with in a transparent way that could be defended from criticism. He noted that the NPA did not want to be in a position where it was perceived as being soft on members of its organisation regarding crime prevention.

Another issue was raised about allegations made against Mr I Powell, of the Western Cape. Mr Hofmeyr stated that the case was with the Director of Public Prosecutions, who had requested police to conduct further investigations. At this stage the case was still pending.

Complaints had been raised about the media profile of the Scorpions and the “Hollywood style” of conducting some cases in the NPA: Mr Hofmeyr stated that there were debates about this in the NPA. He noted that when Mr Pikoli came into the NPA as National Director, he had a firm view that this was not appropriate. Mr Hofmeyr reminded members that there were no “Hollywood style” operations during the last two years and stated that the DSO had moved completely away from doing things in that kind of manner.

Mr Hofmeyr also mentioned that these complaints had also been made in the context that they were considered to violate human rights at the expense of gaining media coverage. He said that this very question had been raised in Court, where it was held that there in fact had been no violation of any person’s constitutional rights. He further noted that some judges had said that the public wanted to see law enforcement bodies doing their job.

Mr Hofmeyr then moved on to discuss issues raised in two particular cases; being the Motaung case and the Machobe cases in the Eastern Cape. Mr Hofmeyr stated that these were not DSO cases; the Motaung case was a police case and the Machobe case was investigated by the joint anti-corruption task team (JACT) in the Eastern Cape.

In regard to the allegations around leaks of information, Mr Hofmeyr alerted the Committee to the fact that Mr Pikoli had taken serious steps to deal with the issue of leaks and that if there were any allegations seen in the newspaper that emanated from the NPA, they were immediately investigated.

Questions had been raised as to the caseload of investigations in the hands of each investigator. Mr Hofmeyr stated that detailed figures would still be provided, but that there were approximately 300 DSO investigators and 300 cases per year, which meant that there was 1 case per investigator. He also mentioned that most cases had between three and five investigators working on them. He asked that this must be seen against the perspective of international equivalent units. An evaluation of the serious fraud office in the UK and the US reflected that within a 5 year period, 33 people were convicted on average per year, with a staff of 300 people, and that one particular case had thirty one people working on it full time. He also said that cases like the Fidentia one were resource-intensive cases. He said that it was vital for the new unit to have the capacity to deal with those kind of cases and therefore not leave them uninvestigated.

Much emphasis had been placed during the submissions on the allegedly high numbers of DSO staff who had been members of the security policy during the apartheid regime. Mr Hofmeyr stated that out of 300 people working for DSO, nine people had worked for the former security police, three of them actually worked in the Third Force investigation that was set by the Goldstone Commission, and that five had been very key players in the Anti-Pagad, and Anti-terrorism investigations in the Western Cape. He noted that there was no reason to doubt the loyalty of these nine former security police agents to the DSO. They had taken a real risk to their careers and their lives in dealing with threats to South Africa’s new democratic order.

He also mentioned that there were allegations that members of the DSO had hidden agendas. He stated that hidden agendas would not be tolerated in the DSO, and that had been made quite clear from the beginning. Furthermore, he stated that 99% of the former police force were still in service and most of them were doing good work for the South African society. People must be very careful about making general allegations or implications about the background of police officials. He explained further that those who were in principle opposed to the new dispensation basically took exit packages and left the State’s service in the mid 90’s. He stressed again that the NPA and the SAPS did not tolerate people with other agendas.

The Chairperson interjected that Parliament would like to know how many members of the police service were from the “old order”.  He stated that the Committees were establishing the empirical and theoretical arguments that pertained to the disbandment of the DSO. He maintained that a theoretical discussion should be facilitated to question if people who worked in the old order, and thus had represented old order values, had used their location and vantage point within SAPS and the DSO to wage a struggle against some high-profile persons. He asked Mr Hofmeyr to respond to that political point, and especially to the hypothetical situation that an old order person who opposed the Constitution and the new order could locate himself in the police or DSO to gain a better vantage point for his continued activities. Even liberals might concede that this was a reasonable supposition. He therefore wished to have the empirical facts, as well as Mr Hofmeyr’s thinking on why a reasonable activist, brought up in the tradition of the ANC, would not imagine that the police or the DSO would be an ideal location for people opposed to the transition.

Mr Ndlovu asked the Chairperson if that was a political question he was asking.

The Chairperson responded that it was a fair political question to be asked.

Mr Swart reminded members that the same sensitivity needed to be shown towards the DSO as had been shown to SAPS. Members of the DSO also place their lives on the line every day, and their members had suffered a large number of attacks, which Mr Hofmeyr was attempting to answer. He recommended that Members must be thoroughly even-handed in their approach when the work of the DSO and SAPS was being discussed.

The Chairperson maintained that these theoretical issues must be raised and addressed, in order for the new model to work. He noted that no allegations were being made but that the argument merited political discussion.

Mr Groenewald enquired from the Chairperson if he was talking from experience, and questioned if the ANC tried to become involved in the previous dispensation and infiltrate as members of the security forces in order to gather information.

The Chairperson responded that he did not understand the question.

Mr Ndlovu said to the Chairperson that if a political question was asked, then he could well expect a political response such as that made by Mr Groenewald.
 
The Chairperson stated that his question not only addressed the theoretical issue but also related to common public perceptions. He stressed that it was part of his job as Chairperson to facilitate such discussion, and if members were not happy, they could choose another Chairperson at the next election.

Mr Hofmeyr replied that the DSO had a mandate around corruption, which was largely meant to investigate government, whoever that government was, and also to investigate members of the private sector associated with that government. He stressed that it was incorrect to suggest that the DSO only targeted members of the ANC, and cited the cases of Mr Marais and Mr Malatse as examples. He maintained that most corruption investigations would be targeted at people in the current government.

He further noted that the NPA management was aware of its mixed organisation and the current transitional society. He stressed that cases did not happen because there was some hidden agenda, but because there were facts that supported the launch of an investigation. He explained that in the DSO, individuals could conduct cases, and that every case would be signed off at the DSO head office, where the people were entrusted to be fair and impartial. He stressed that the DSO worked as a team and that it was very difficult for one or two people to conspire to do something on their own.

He also stated that he was aware of the allegations that DSO had shown partiality in the way it selected to investigate some people and not others. He said that this point had been raised and argued in the courts, but no one had yet been able to provide evidence to persuade any Court that there had been political partiality or lack of proper behaviour on the part of the DSO.

He maintained that during the last two years, since Mr Pikoli had come into the DSO, there had been a great deal of care that all sensitive cases were looked at by the entire top management of the NPA, and to ensure that every case was well-established on merits and that it deserved to be taken to court.

He stressed that the NPA and the DSO were doing everything in their power to combat the notion that they had acted non-impartially, or with political motives. It was very difficult for public servants to stand and deal with what were essentially political perceptions, but every possible measure was being taken to ensure that whatever was done was beyond criticism. He further stressed that it was vital for the future of the prosecuting authority in our country that these perceptions be dealt with. It would take time to move away from these perceptions, but again he reiterated that everything possible was being done.

Mr Groenewald noted that the issues discussed were issues raised by the ANC Youth League and by the Young Communists League, and asked how they would obtain answers to their questions.

The Chairperson noted that a written reply would be given to them. He also stated that people in the ANC thought that, as discussed in Polokwane, the DSO had been a voice for that strata of society unhappy with the transition. He also noted that there was a strong current of thinking in the ANC alliance that the DSO was an explicit form of fighting the transition. He further stated that the underlying issue was the question that if some of the DSO personnel should be retained, much stronger vetting procedures were needed, as well as a system of integrative monitoring. He also said that there was a strong view that DSO had members with agendas that did not serve our democracy, and that it served certain political ends that had tried to shape the discourse relating to the succession in the ANC. He asked that these arguments be responded to by Mr Hofmeyr in due course.

Mr Hofmeyr then spoke to the Browse Mole report, and said that there was an investigation into this matter. He mentioned that the NPA had indicated that it was ready and willing to take action on this but that it had not been placed in possession of any evidence on which to take action. He also mentioned that the NPA was ready to take action against the specific person in the DSO that was identified as the possible source of the leak, but was still waiting for the evidence needed in order to act.

The Chairperson questioned that in as far as actions against the former head of the DSO were concerned, the laws of this Parliament defined a framework that must attend to any misconduct. He mentioned that there were also people who argued that the misconduct constituted a criminal act, and asked if criminal law could be used.

Mr Hofmeyr replied that it was stated in the Judicial Commission of Inquiry report that a formal investigation was conducted into this matter by the State, which may or may not be continued. He mentioned that the NPA was not part of that investigation, although it had requested to be included. He stressed that it was not fair to ask the NPA why it was not acting, as it would like to act.

The Chairperson requested that the relevant Committee Chairs and the Ministers be approached to ascertain what was happening in this matter. He mentioned that he would confer with Mr Siyabonga and obtain finalisation on this issue.

Mr Hofmeyr addressed lessons for the future and said that it was very important that the new unit had credible mechanisms in place to deal with allegations, as it would face exactly the same kinds of issues and criticisms. The credibility of an oversight mechanism was very important to any institution that investigated sensitive issues.

The Chairperson noted that getting the facts was only half the solution to the problem of corruption, and the other half was public perception. He asked members to think of concrete ways of dealing with public perception.

Ms M Sotyu (Co-Chairperson, ANC) reminded members that when questions were drafted for discussion, some members of SAPS needed to be alerted.

The meeting was adjourned.



 

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