Scorpions Closure public hearings: Day 7 & response to public submissions

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Justice and Correctional Services

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

The Committees continued the public hearings on the proposed disbandment of the Scorpions. The Inkhatha Freedom Party opposed the disbanding of the Scorpions and the integration of a similar unit with the South African Police Service. The IFP argued that the decision to relocate the Scorpions was aimed at protecting high-ranking ANC members and would not advance the fight against organised crime. Notwithstanding this standpoint, the IFP was resigned to the fact that the ruling party would force its will on the public, and disregard the outcry. In view of that, the IFP outlined five points that would strengthen the proposed Unit’s ability to effectively combat organised crime and corruption. Notably, the IFP insisted that the proposed Unit must be completely independent and should report directly to the Minister of Safety and Security. It also made recommendations regarding the mandate of the proposed unit, its selection of members, the involvement of prosecutors and conditions of employment.

The co-Chairperson noted that certain points made by the South African Police Service (SAPS) in their written submission had not come out during the oral hearing. He highlighted that SAPS had the capacity to investigate complex and high priority crimes.
Since July 2006, the Organised Crime Component of the SAPS, the Asset Forfeiture Unit and the National Prosecution Service had jointly undertaken an Organised Crime Initiative, where they jointly addressed organised crime from identification to conclusion of criminal prosecution. This initiative, which ensured that dedicated prosecutors were assigned to complex organised crime investigations, empowered the investigators and prosecutors to have a better understanding of organised crime. This working methodology worked well, and in some places, the investigators and the prosecutors shared the same office location without resorting under one Department. In addition, he confirmed that SAPS not only supported and used the troika principle; but also adopted a multi-disciplinary approach in the investigation of cases, including the use of designated prosecutors in such investigations or projects. In criminal investigations, the investigator must take the lead, with the professional assistance of prosecutors, intelligence and any other support by the specificities of the investigation in question.

Reading from the Reaserch Unit’s Overview of the DSO, Mr Carrim indicated that the unit pioneered a new approach which combined intelligence, investigation and prosecution. In that sense, it was unique to have prosecutors and investigators in the same unit in an accusatorial system like South Africa. The DSO’s legislative mandate was intentionally wide to avoid court challenges on the grounds of jurisdiction. However, such a wide legislative mandate was not very useful, and there was need for an operational mandate. When the enabling legislation was drafted, it was intended that this would be a negotiated operational mandate, to be determined by a Ministerial Co-ordinating Committee. This was to devise procedures to co-ordinate the activities off the DSO. Concerns had been raised that this Committee did not fulfil its functions effectively. Both the South African Police and the Department of Justice indicated that they agreed with the contents of the report. Conversely, the National Prosecuting Authority challenged certain aspects of the report, in particular, the claim that South Africa was unique in having prosecutors involved in criminal investigations. Members lambasted the Ministerial Coordinating Committee for being an ineffective entity, and also discussed whether other jurisdictions had convened independent inquiries to deal with cases involving sensitive public figures.

Parliament’s Research Unit summarised all the findings and recommendations of the Khampepe Commission.
The Judge had found that the Scorpions ignored their own vetting law, illegally gathered intelligence and even compromised state security. Khampepe identified an urgent need for the Scorpions to stop publicising their investigations, as this could violate the constitutional rights of those under investigation. Also, the judge saw no problem with the fact that the police had their own unit also dealing with organised crime and believed that the latter should be strengthened so that it could emulate the success of the Scorpions. The Jjudge had recommended the establishment of a special committee comprising the police commissioner, the Scorpions and the security cluster directors-general, among others, who would refer cases to the relevant law enforcement agency and act as a deadlock breaking mechanism. Notably, the report recommended that the Directorate of Special Operations should remain in the National Prosecuting Authority (NPA) and not be relocated in the police.

The National Prosecuting Authority (NPA) and the South African Police Service (SAPS) briefed the Joint Committee on the organisational and operating structure of their respective agencies, as well as the threat of organised crime in South Africa. The DSO had five regional offices, and used a multi-disciplinary approach. It used investigators, crime information collectors, threat analysts to give direction to the DSO's mandate, and forensic accountants. The Operational Support Division comprised of other investigators and prosecutors who assisted in both the judicial and investigation processes, and the Operational Desks comprised Deputy Directors of Public Prosecutions and State Advocates. The Project Management Office comprised project management custodians and investigators for each region, and the Special National Projects Unit comprised investigators and prosecutors who dealt with projects within the DSO that were of national or international importance. It was reported that organised crime had proved to be a significant threat to international security, and these syndicates tended to operate more in emerging democracies where the State was generally weak, and had a lack of resources and legal expertise to adequately address this problem. Organised crime generated about R100 billion annually. The syndicates had massive resources at their disposal. South Africa was particularly vulnerable due to the lack of protection of the coastline, coupled some internal political issues, the distrust of law enforcement agencies, inequality, poverty, capitalist values and the type of commodities that South Africa imported and exported. It was explained that, unlike in Europe, there was no mafia-style operation, but small groups of criminals tended to band together and use street gangs, legitimate businesses and the types of crime that were difficult to detect.

The SAPS noted that its main role players involved in fighting organised crime were the detective service and the Crime Intelligence Unit (CIU) that investigated syndicate operations like cash-in-transit heists, ATM bombings. Terrorism and mercenary activities had also been included as well as illicit diamond trading, human trafficking, counterfeit goods, pyramid schemes and drug smuggling. He added that in most cases there had been a link between organised crime and terrorism in respect of money laundering for the purpose of advancing the goals of terrorism, especially in the procurement of arms.

Members asked for a breakdown of the DSO Employment Equity status, as well as the percentage of DSO employees that had formerly worked for the apartheid regime, and a schematic breakdown of DSO structures. They noted that employment equity figures were not good enough, and asked whether lack of coordination between SAPS and the DSO as detailed in the Khampepe Report was due to structural problems or clash of personalities. The Chairperson said that the Ministers of Safety and Security and Justice should perhaps be asked to explain why there had not been better coordination. He also noted the one line of thinking that the DSO should be completely disbanded, but said that it seemed that South Africa did need a specialised and dedicated unit to deal with organised and other related crimes. Members asked the police and prosecution authorities to come up with a standardised definition of “organised crime”, and it was suggested that the Revenue Services should also play a role in addressing the problem. With regard to the SAPS presentation, the Committee requested clarity on the lines of demarcations of the different units, as there seemed to be overlapping mandates.

 A sub-committee would also be formed that would include technical experts from IDASA and the ISS to provide guidance on the legislation to expedite the process.

Meeting report

Disbanding of Scorpions: Public hearings continued:
Inkatha Freedom Party (IFP) Submission
Mr Velaphi Ndlovu (IFP) voiced his party’s strong opposition to the proposed disbandment of the Directorate of Special Operations (DSO or Scorpions). The IFP believed that the decision of the majority party was made without reference to the merits and successes of the Scorpions, but was a subjective knee-jerk reaction to the unit's investigation of high-ranking ANC members. The decision to disband the Scorpions reeked of political self-protection and would not advance the fight against organised crime and corruption. It was apparent to the IFP that the majority party would force its will on the public, notwithstanding the outcry, and would disband the Scorpions. In the face of this reality, the IFP made several recommendations to strengthen the proposed Unit's ability to effectively combat organised crime and corruption:

Mr Ndlovu made the following observations:
- The proposed Unit must be completely independent, and should not report to the National Commissioner of Police, but directly to the Minister of Safety and Security.
- The Unit's mandate must be clearly spelt out in the legislation.
- The Head of the Unit, in consultation with both the Ministers of Justice and Safety and Security, should select the required personnel. This must be done in accordance with specific criteria that must be stipulated in the Bill.
- The South African Police Service (SAPS) Bill must clearly state that the transferring members of the DSO would retain the same conditions of employment that they currently enjoyed.
- The legislation must make provision for the temporary secondment of any state official to assist the Unit in its investigations.

Discussion
Mr B Magwanishe (ANC) commended the IFP for the manner and spirit in which they had engaged in the process so far. In addition, he described the IFP’s approach as being consistent with good oppositional politics and hoped that other parties would emulate this example.

Mr Carrim recognised the validity of the IFP’s input, and assured Mr Ndlovu that each proposal would be considered as part of the discourse.

Comments of SAPS on Public Submissions
Mr Carrim noted that SAPS’s written comments on the public submissions contained substantial information, which was not properly conveyed when the organisation had presented its oral response. Consequently, he decided to highlight those aspects of the report that had not been touched on in the oral submissions, but which were germane to the discussion.

To start with, Mr Carrim mentioned that SAPS was involved in the investigation of complicated and high profile cases, such as the Boeremag matter, the Krion case and the nuclear proliferation cases against Mr Wisser and Mr Geiges. Since July 2006, the Organised Crime Component of the SAPS, the Asset Forfeiture Unit (AFU) and the National Prosecution Service had jointly undertaken an Organised Crime Initiative where they jointly addressed organised crime from identification to conclusion of criminal prosecution. This initiative, which ensured that dedicated prosecutors were assigned to complex organised crime investigations, empowered the investigators and prosecutors to have a better understanding of organised crime. This working methodology worked well and in some places, the investigators and the prosecutors shared the same office location without resorting under one Department.

In respect of organised crime as well as the investigation of serious economic offences, SAPS supported and used not only the troika principle, but also a multi-disciplinary approach where other skills were required in order to successfully investigate a matter. In some Organised Crime Offices, such as in Polokwane, a prosecutor had been designated to work closely with the Organised Crime Unit and even had an office with that Unit, without the Prosecutor and investigator being members of the same institution. SAPS maintained that it was not necessary to reflect the troika approach in legislation.  It was also the multi-disciplinary and not only the troika approach that was necessary for the successful investigation of priority crime investigation. There were many views about the contents and meaning of terms such as “prosecution-guided”; “prosecution-led”; “prosecution-driven”; and “prosecution-serviced” investigations. SAPS was in favour of a multi-disciplinary approach to the investigation of priority crimes. This included the use of designated prosecutors in such investigations or projects. In criminal investigations, the investigator must take the lead, with the professional assistance of prosecutors, intelligence and any other support by the specificities of the investigation in question. This could be done as a Task Team approach without it being a requirement that the other disciplines be necessarily employed in the Directorate for Priority Crime Investigation (DPCI). In some instances, it was accepted that there might be specific needs identified:  for instance to employ forensic auditors on a permanent basis.

The SAPS noted that the command structure of the DSO entailed control over investigators by prosecutors. This would make it impossible for the Minister for Safety and Security to effectively exercise any control or direction in terms of accountability in respect of the investigators of the DSO.

Finally, Mr Carrim stressed that the document was useful and urged all Members to read it.

Discussion
Mr Carrim suggested that the Committee should pay a visit to the DSO so that they could allay the fears of its members.

Ms A Van Wyk (ANC) proposed that the Committee spend half the day with the DSO and the remainder of the day with the Organised Crime Unit (OCU).

In recognition of the concerns expressed by members of the DSO, Mr Carrim preferred that the Committee spend an entire day with the unit, and half a day with the OCU.

Members did not oppose this proposal.

Overview of Directorate of Special Operations (DSO / Scorpions)
Mr Carrim stated that the creation of the DSO was intended to raise public confidence in the ability of Government to fight crime. It should be noted that the SAPS today was not the same organisation it was in the late 1990s, and it was possible to argue that the issue of police weakness was no longer justification for the organisational separation from the DSO.

The legislation creating the DSO took months to finalise. The opposition had expressed fears that the DSO would be the “president’s private police force”, and that there would be problems with the police around ‘turf’. Fears were also expressed about whether such a body would be constitutional, given that the Constitution provided for a single national police service. It was claimed that the DSO pioneered a new approach that combined intelligence, investigation and prosecution. In this sense, South Africa was quite distinctive in having this investigative component to a national prosecuting authority, in addition to a national police force.

In the English legal tradition, parts of which were inherited in South Africa, prosecutors did not become involved in criminal investigations. Powers of investigation were granted to the police, who, on completing their investigation, handed their findings (in the form of a police docket) to a prosecutor. The prosecution did not get directly involved in the combating or investigation of crime except in a reactive sense, by looking at the facts of a case after a crime was committed and investigated. In South Africa, this clear demarcation of functions between prosecutors and investigators began to blur as prosecutors took on a more active investigative role in the late 1980s. A well-known example could be found in the commission of inquiry regarding the prevention of public violence and intimidation (the Goldstone Commission), which operated from 1991 to 1994. In an adversarial system, it was exceptional to have prosecutors and investigators in the same unit, but in an inquisitorial system the two could be combined.

The DSO’s legislative mandate was intentionally wide to avoid court challenges on the grounds of jurisdiction. However, such a wide legislative mandate was not very useful, and there was need for an operational mandate. When the enabling legislation was drafted, it was intended that this would be a negotiated operational mandate. The negotiated mandate was to be determined by a Ministerial Co-ordinating Committee (MCC) consisting of members of Cabinet. They were to devise procedures to co-ordinate the activities off the DSO, including procedures for the transfer of investigations to and from the DSO, and where necessary the responsibility of the DSO in specific matters. Concerns had been raised that this Committee did not fulfil its functions effectively. This had been argued as one of the reasons for the resultant problems, including intense rivalry between the various role-players. Another concern was that the scope of the DSO’s mandate had contributed to inappropriate politicisation of its decisions to pursue certain cases.

Finally, Mr Carrim criticised the MCC for being ineffective, and insisted that this body must be held to account.

Discussion
Mr Carrim thanked the Research Unit for producing a useful document.

Mr J Jeffery (ANC) found the document instructive, and believed that it could be used as a basis for engagement.

Mr Carrim enquired whether there were any aspects of the document that the different departments disagreed with.

Dr Philip Jacobs, Assistant Commissioner, Legal Services, SAPS, admitted that he had not studied the document in detail. Nonetheless, he was satisfied that the document provided an accurate summary of all the issues.

Mr Deon Rudman, Deputy Director: Legal Services, Department of Justice, confessed that he also had not studied the document in depth.  Nevertheless, he reckoned that the document appeared to be an accurate reflection of all the issues. Lastly, he clarified that he was responsible for legislation and was not involved in the functioning of the MCC, and therefore could not comment on it, except to say that the findings in the document were consistent with the findings of the Khampepe Commission.

Mr Willie Hofmeyr, Deputy National Director of Public Prosecutions, NPA, acknowledged that he had not read the document, and could therefore only comment on those issues that were highlighted by Mr Carrim. Firstly, he challenged the report’s claim that South Africa was unique in having prosecutors involved in criminal investigations. In fact, the idea for the Office for Serious Economic Offences (OSEO) came from the British, who recognised that the traditional model of keeping prosecutors separate from investigators did not always work optimally. The South African version of OSEO was taken more or less word-for-word from the English model and it was not a South African innovation at the time. He indicated there were other models in the world similar to the DSO and some of them were even based on the DSO. In addition, he explained that while the American Federal Bureau of Investigation (FBI) was a distinct entity, it was housed in the same Department as the whole of the federal prosecution service. Finally, Mr Hofmeyr accepted that the document was useful and gave an undertaking to examine it comprehensively.

Mr Enver Daniels, Chief State Law Advisor, Office of the State Law Advisor, observed that the report had failed to mention the role of the security police in directing political trials in the 1980s. Given this sort of abuse, he advised Parliament to tread carefully when considering the involvement of prosecutors in investigations.

Mr Jeffery noted that the relationship between the DSO and its intelligence gathering activities had been identified as a major area of concern. It was unfortunate that the document only made some reference to this issue and did not delve into it in a substantial way. In addition, he advised that research should be conducted into how countries that applied the accusatorial system dealt with the concept of prosecution-led investigations.

Mr S Ntuli (ANC) bemoaned the failure of the MCC to meet and effectively coordinate the activities of the DSO.

Mr Ndlovu believed that some coordinating committees failed to work because the representatives pursued their individual mandates and did not operate as a collective.

Mr Hofmeyr agreed with the viewpoint that the MCC never functioned effectively. He urged that this matter should be seriously addressed regardless of whatever new organisation was devised. He was of the opinion that it was necessary to look at structures below the ministerial level because things needed to be processed at a lower level before they reached the MCC.

Ms D Kohler-Barnard (DA) noted the repeated claims that the DSO became inappropriately involved in matters involving political figures. Accordingly, she enquired whether the ANC had expected the DSO to ignore those cases, many of which had resulted in convictions. 

Mr Carrim indicated that he would offer a tentative response and that other members of the ANC could come to his aid. The ANC’s view was that no person was above the law, and that included the President of the country as well as the President of the ANC. Any person who was involved in organised crime ought to be investigated by the DSO. However, the manner in which the DSO had conducted its work had given rise to legitimate perceptions, particularly within the ranks of the majority party and its voters, that senior ANC politicians had received undue attention from this unit as against other aspects of organised crime. In addition, Mr Carrim argued that the DSO had been the architect of its own problems. To underline this point, he claimed that the timing of some of its announcements gave credence to the accusation that the unit was being used as a political pawn. It was not credible to argue that the DSO did not allow itself to be the subject of politicisation. Parliament’s Joint Standing Committee on Intelligence had in fact determined the unit had acted beyond its mandate.

Ms Van Wyk believed that politicians and parliamentarians, more than anybody else, should be prosecuted for any criminal activity. Philosophically, she wondered what the level of outcry would have been if the leader of an opposition party had been subjected to the same treatment that the DSO meted to Mr Zuma. It would have been stated that the country was in a crisis and that government was using the State’s resources to go after its political opponents.

Ms Kohler-Barnard reminded the Committee that Helen Zille was actually arrested and taken to court. This was a clear example of the use of the State machinery by SAPS.

Mr Carrim asked the State Law Advisers to shed some light on whether other jurisdictions had used an independent Senior Counsel to deal with cases involving sensitive public figures, such as the Bill Clinton case.

Mr Enver Daniels recalled that special prosecutor Kenneth Starr was appointed by the US Congress to conduct an independent investigation into the Monica Lewinsky affair. He suggested that Parliament had similar powers in terms of its oversight and could hold full inquiries. He added that he was not aware that those powers had been used by Parliament to its fullest.

Khampepe Commission of Inquiry: Parliamentary Research Unit Summary

Mr Peter Daniels, Parliamentary Researcher, identified and discussed the thirteen terms of reference investigated by the Commission.

Rationale for the establishment of the DSO
Findings
The Judge found that despite indications that crime levels were dropping, organised crime still presented a threat that needed to be addressed through a comprehensive strategy. The Judge was not persuaded that the rationale for the establishment of the DSO had since disappeared.

Recommendations
Accordingly, she recommended that despite indications that organised crime was being addressed on a concerted basis, the rationale for the establishment of the DSO remained valid.

The legislative mandate of the DSO
Findings
The Judge was also satisfied that there was nothing unconstitutional in having a structure such as the DSO located under the prosecutorial authority. There was ostensibly no legal impediment in having a structure such as the DSO, and all of its disciplines, falling under one ministry.

Recommendations
The nature of tensions associated with mandates that overlapped suggested that apart from a Ministerial structure which would be useful to determine policy directions, it would still be important to establish a committee with relevant individuals at the appropriate levels of authority who were able to deal with the day-to-day operational issues that were likely to arise.

Evaluation of the implementation of the legislative mandate of the DSO
Findings
The Commission was not satisfied that the MCC convened its meetings only from June 2004 and found it regrettable that the MCC did not properly discharge its responsibility under the Act. The difficulties of the different law enforcement agencies that were dealt with in the report may have possibly been averted or mitigated had the policies and procedures been put in place as required by section 31 of the NPA Act. The scathing criticisms levelled at the DSO could not be shrugged off easily. The manner in which the legal mandate of the DSO had been implemented afforded the DSO the unfair advantage of case selection for its investigations. This in itself caused conflict and tensions between the DSO and the SAPS. In the Judge’s view, the structure of the MCC was inadequate to fully address the daily operational difficulties that may arise.

Recommendations
The nature of tensions associated with mandates that overlapped suggested that apart from a ministerial structure which would be useful to determine policy directions, it would still be important to establish a committee with relevant individuals at the appropriate levels of authority who were able to deal with the day-to-day issues that arose, and who would be empowered by the MCC with a sufficient mandate to resolve these issues. Such a structure was to be called the Multidisciplinary Vetting Structure “the MVS” or the Operational Committee, as suggested by the parties. The introduction of such a structure could effectively address the challenges that currently existed. It was recommended that the mandate of the ICD should cover the investigative component of the DSO. 

Systems for management and control of the DSO
Findings
The systems for management and control appeared to be coherent and proper, save that the National Director of Public Prosecutions (NDPP) had not strictly complied with the provisions of section 19B of the NPA Act in that some of the special investigators of the DSO had been appointed without any security screening by the NIA as provided for in the NPA Act. The NDPP’s failure to perform his functions and discharge his obligation in this regard may have exposed the DSO to some security risk, and/or to conduct prejudicial to the objectives of the DSO.

Recommendations
The Report recommended that the NDPP must take immediate steps to ensure that the DSO was compliant with the provisions of section 19B of the NPA Act. It was unacceptable that the DSO would expose matters of national security, as envisaged in the NPA Act, to officials who had not been properly accredited to handle such information. The Judge recommended that the relevant legislation be amended to provide a wider category of DSO personnel for security vetting, namely Special Investigators; Senior Investigators; Regional Heads and persons engaged from the private sector entities.

Systems for communication of the DSO
Findings
The Judge found the leaking of information by the DSO and the style in which some of the operations were conducted to be reprehensible and unprofessional and that it had corroded public confidence in the law enforcement agencies. The Judge believed that the public confidence would be enhanced when the DSO did its work within the bounds of professional ethics and in harmony with the fundamental rights guaranteed in the Constitution and the Bill of Rights.

Recommendations
The Judge recommended that the NDPP pay close attention to how the DSO executed its mandate.

Oversight and accountability of the intelligence and related operations of the DSO
Findings
It was both perplexing and perturbing that the DSO viewed its dependence on the intelligence agencies as a hindrance as opposed to an opportunity at greater collaboration and collective effort. The provisions of section 41(h) of the Constitution were instructive. All organs of State such as the DSO were enjoined to co-operate with other state organs such as the National Intelligence Agency (NIA) and South African Secret Service (SASS) in mutual trust.

Recommendations
There was a compelling reason to harmonise the political oversight over the activities of the DSO.  A dichotomy resulted from the fact that the Minister for Justice and Constitutional Development had political responsibility over the NPA without having political accountability over the ‘policing’ functions of the DSO. The Minister did not participate in the threat analysis and the compilation of threat analysis data in relation to safety and security matters. These functions fell within the political accountability of the Minister of Safety and Security, although that Minister did not have accountability for the activities of the DSO. This hads to be addressed through section 97(b) of the Constitution.

The constitutional and legislative mandates of the SAPS
Findings
The Judge was of the view that there was nothing jurisprudentially unsound in conferring law enforcement responsibilities to any agency other than the SAPS. Moreover, the provisions of section 97(b) of the Constitution supported that conclusion.

Recommendations
The Report dealt with the shared legislative mandate that the SAPS had with the DSO in respect of organised crime under the heading Legislative Mandate of the DSO.

Systems for co-ordination and co-operation between SAPS, Intelligence Agencies and the DSO
Findings
There were no systems of co-ordination and co-operation between the DSO and SAPS. Prior to the DSO being invited into the National Intelligence Coordinating Committee, there was virtually no co-operation between the DSO on the one hand and the SAPS and the intelligence agencies on the other.

Recommendations
It was recommended that the DSO be placed in a more permanent status within the National Intelligence Coordinating Committee (NICOC). This recommendation should not be understood to mean that the DSO should become an intelligence agency within the meaning of section 199 of the Constitution. The recommendation sought to convey, instead, that the DSO should form part of the law enforcement structures and share expertise and information for an overall effective crime-combating strategy.

Effectiveness and efficiency of coordination of intelligence: DSO/SAPS/NIA
Findings
The national mandate for the co-ordination of crime intelligence rested with the crime intelligence division of the SAPS. The DSO was not empowered to gather crime intelligence as intended in the National Strategic Intelligence Act. When the DSO was established it was supposed to make use of the existing intelligence structures, but this did not happen.

Recommendations
The various intelligence structures appeared to be effective. Save to the extent that the community of intelligence agencies had in the past not included the DSO, the matter had now been addressed to give a limited status to the DSO within NICOC. The recommendation that the DSO be included formally within NICOC as proposed was repeated.

Efficacy of co-ordinating systems that exists between the intelligence agencies
Findings
Under this term of reference the Commission was to look into various matters including matters related to the rationalisation of resources and minimising undue duplication. The nature of the resources required by these law enforcement agencies, as well as the efficacy of the equipment that they used in what they did, were matters that required expert knowledge and understanding. The Commission could not discharge this task responsibly without such assistance and, in the interests of time, proposed to address this aspect under the recommendations.

Recommendations
In relation to the rationalisation of resources as well as minimising undue duplication, the reports considered pursuant to on-site inspections conducted on the DSO, the SAPS and NIA revealed that the matter required people with extensive technical knowledge about the equipment utilised by these structures. There was some evidence of duplication of equipment amongst these structures. The recommendation was that a suitably qualified person, with extensive technical knowledge in the field of intelligence, be engaged to specifically address the proper rationalisation and minimising of duplication of resources, in a focussed and erudite manner.

Training or further training on policing or investigating methods
Findings
There were no systems of co-operation and co-ordination between the SAPS and DSO, in terms of which both agencies could formally share their respective training methods in the investigation and combating of organised crime. This arrangement should be facilitated and encouraged, and, if necessary, legislation should be drafted to facilitate it.

Recommendations
The Report recommended that the DSO and the SAPS streamline the training of their personnel to achieve greater efficiencies.

Locating investigators and prosecutors within the NPA
Findings
The structure of the DSO, within the current legal framework, was not only novel but was also unique in the world. There was no legal impediment in having such a structure falling within a prosecuting service as long as the independence of prosecution was safeguarded. It was the Judge’s considered view that the integrity of a particular prosecutor was a vital factor in the independence of his/her office. It was therefore crucial that the integrity of individual prosecutors be one of the cardinal issues to be closely determined and scrutinised in the appointment to that office.

Recommendations
Judge Khampepe was satisfied that the practice of housing multiple disciplines under one command structure was sound practice. The structure of the DSO in this regard, enhanced a closer co-operation amongst the various disciplines.

Location of the DSO
Findings
The argument that the establishment of the DSO was to be a temporary structure was further undermined by the fact that the reading of the NPA Act clearly pointed to the contrary. There was instead, evidence that the incorporation of the DSO in the NPA was deliberate. It must be remembered also that the amendment resulted in the integration in the DSO of other specialised directorates that were, till then, operating as separate investigating directorates had legitimised or transformed itself did not hold merit either. A careful consideration of all the evidence presented demonstrated that government was concerned that the capacity of the SAPS structures to deal with organised crime was suspect, in part, because of the corrupt elements within the SAPS structures and the transformation challenges it faced.

Recommendations
Until such time as there was cogent evidence that the mandate of the Legislature (to create a specialised instrument with limited investigative capacity to prosecute serious criminal or unlawful conduct committed in an organised fashion) was demonstrably fulfilled, the Judge held the view that it was inconceivable that the Legislature would see fit to repeal the provisions of the NPA Act that related to the activities and location of the DSO. The Judge was satisfied that the rationale for locating the DSO under the NDPP and the Minister for Justice and Constitutional Development in 2002 still pertained. Having considered the totality of the evidence and the law relevant to the terms of reference, the Judge’s considered view was that the DSO should continue to be located within the NPA.

Mr Peter Daniels indicated that the police and National Intelligence Agency (NIA) had accused the DSO of unilaterally drafting Circular 1, which was the DSO’s operational manual. There was a strong feeling that they should have involved other law enforcement agencies and this was one of the main reasons for tension with SAPS.

Discussion
Mr Carrim congratulated the Research Unit for producing an outstanding Report.

Ms Kohler-Barnard applauded the Research Unit for an astute summary. She commented that most of the issues that were continuously raised during the public hearings had in fact been dealt with and answered in the report. The void left by the MCC seemed to be at the very crux of the entire issue. As a result, she felt that members of the MCC should appear before Parliament to answer for their dereliction of duty. 

Mr Carrim
agreed that the MCC had failed dismally and blamed it for the present challenges. In addition, he berated government for failing to implement the recommendations of the Khampepe Commission. However, he suggested that parliament should accept half the blame for consistently failing to hold the Executive to account. Finally, he suggested that the Committee leave the proposal by Ms Kohler-Barnard in abeyance.

Mr Ndlovu sought clarity on the acronym MVS.

Mr Carrim explained that it stood for Multidisciplinary Vetting Structure.

Mr Jeffery addressed the opposition parties, and argued that Judge Khampepe’s recommendation of transferring political accountability of SAPS members to the Minister of Safety and Security was not implementable, particularly in terms of parliamentary accountability and budgetary responsibility.

Adv L Joubert (DA) clarified that when the DA called for the DSO to continue in its current form, this did not mean that it wanted to implement everything that was contained in the Khampepe Report.

Mr Jeffery asked whether this meant that the DA disagreed with this particular recommendation. 

Ms Kohler-Barnard believed that Mr Jeffery was simplifying the matter. She explained that the main thrust of the DA’s position was that the unit should be independent and not fall under SAPS.

Mr Jeffery questioned whether it was possible for a Minister to have political responsibility without budgetary responsibility.

Ms Kohler-Barnard did not accept the view that political accountability should necessarily be related to budgetary responsibility in all situations. In addition, she explained that the DA did not have any problem with the joint reporting lines, as this should have been handled by the MCC.

Dr Jacobs believed that the disjunction in ministerial accountability was not remedied by making the Minister of Safety and Security accountable for the investigators in the DSO.

Mr Carrim addressed several issues. Firstly, he noted that the Khampepe Report contradicted the Research Unit’s assertion that the DSO was unique. Secondly, he observed the Commission’s comment that opponents of the DSO felt that the unit was a law unto itself and pointed to the fact that the unit had drafted its own circular to underlie this point. However, the DSO would argue that it had had no choice and had to draft its circular precisely because the MCC failed,.

Adv Joubert asked to what extent, if any, the Khampepe Report was considered or used when the amendment Bills were drafted.

Dr Jacobs confirmed that the Report was considered when the amendment bills were drafted. However, he conceded that there were two major issues that were not implemented in the Bills. The first related to the placement of the unit, and the second issue concerned the proposed MVS.

Co-Chairperson Mr Y Carrim (ANC) said that the ANC suggested that the Joint Committee formed a smaller subcommittee, that would then invite two technical experts from Institute for Democracy in South Africa (IDASA) and the Institute for Security Studies (ISS) to assist the sub-committee on the technical aspects of the Bill. Parliament had always invited technical experts to give their opinion on controversial legislation. He added that their comments, even if they were not in support of the Bill, would be extremely valuable.

Mr S Swart (ACDP) supported this suggestion, as he found a similar arrangement useful during the Child Justice Bill legislative process, as Members did not always know everything.

Ms D Kohler-Barnard (DA) said she never encountered any sub-committees at the Committees on which she served and asked for the rationale behind this suggestion.

Mr Carrim replied that the legislative process that pertained to the closure of the DSO had been going on for quite some time now and that Members had expressed their concern with not being able to visit their constituencies for some time. This sub-committee would serve as a platform where Members could be frank with each other and exchange ideas, as this Bill had become a matter of great contention.

He added that at this closed meeting Members would also be able to ask questions that pertained to sensitive information, on which only SAPS or the NPA could provide answers. The five models that had been proposed had to be analysed to see which would work best. Members would consult their respective caucuses. These sub-committees had in the past worked very well as it was easier to identify problems. All participants would have their views recorded in a report that would be tabled to the joint Committee. However, if any party felt that this exercise would not be useful then it would be dropped.

Mr Swart noted that a media release would have to be issued, as there had been a lot of public and media interests before and during the course of the legislative process.

Mr Carrim responded that a media release would be issued, and that it should not appear as if the ANC was trying to hide certain information, as the parliamentary rules did not allow for that.

Ms Kohler-Barnard said that she did not oppose the suggestion, but merely had requested clarity on the purpose of such a sub-committee.

Directorate of Special Operations (DSO / Scorpions) Briefing on operating methodology & prosecution strategy
Mr Willie Hofmeyr, Deputy National Director of Public Prosecutions, National Prosecuting Authority (NPA), briefed the Joint Committee on the operating methodology of the DSO. The DSO had five regional offices, based in Pretoria, Cape Town, East London, Durban and Bloemfontein. Its operating methodology was based on a multi-disciplinary approach, with investigators that conducted regular investigative work, crime information collectors that gathered information related to declared DSO investigations, analysts who compiled a threat analysis which gave direction to the DSO's mandate, and forensic accountants that assisted with cash flow analysis and the identification of possible further evidence that should be gathered in complex commercial investigations. The Operational Support Division comprised other investigators that assisted case investigators when requested to do so. Prosecutors assisted in both the judicial and investigation processes. The Operational Desks were comprised of Deputy Directors of Public Prosecutions and state advocates, who were responsible for assistance and guidance on legal matters. The Project Management Office comprised project management custodians, and consisted mainly of investigators that were appointed for each region and assumed responsibility for effective project management principles. Finally the Special National Projects Unit comprised investigators and prosecutors that dealt with projects within the DSO that were of national or international importance.

The DSO had a broadly formulated mandate that was defined in terms of section 7(1)(a) of the National Prosecuting Act (NPA).This mandate said that the public, as well as the private sector could engage the DSO with their complaints. A complaint would thus be evaluated and, if deemed appropriate, an investigating team would be assigned to the case, who would in turn register the case docket on the SAPS system (Case Administration System, or CAS)

All applications for search and seizure had to be approved by the NPA Head Office. Once that approval was given, then a Judge would be approached to grant such the applications. The DSO had placed a lot of emphasis on the relationship between prosecutor and the investigator, as constant engagement between these two very important entities was necessary to reach the desired successful outcome. This tied in directly with the DSO's strategy of ensuring that all investigations were done in accordance with the prosecution-driven methodology that focused on the end result of a successful prosecution, and not on the prosecutor taking the lead in the case.

Prosecution Strategy
The particular prosecution strategy that applied to the different cases of the DSO varied, due to the nature of the offence committed. One of the important principles when prosecuting racketeering or organised crime cases had been to prosecute the less important suspects first, in the hope that they would testify against the masterminds behind these operations, but that did not mean that they would automatically become state witnesses in terms of section 204 of the Criminal Procedure Act (CPA), of 1977.

Due to the complex nature attached to plea bargaining agreements, Regional Heads could not authorise these agreements. They could only be authorised by the Investigating Director and the National Director of Public Prosecutions (NDPP). The National Prosecuting Service (NPS), a Senior Prosecutor or a Deputy Director of Public Prosecutions (DDPP) was also involved in this process. The rationale behind this decision was taken due to the sensitive nature of the offenses the DSO had been tasked with.

Further detailed information was contained in the accompanying document.

Mr Hofmeyr noted that the DSO currently employed 320 investigators, five forensic accountants, 55 lawyers, and 86 administrative personnel. Of these 60% and more are investigators, 10% are lawyers and 43% were tasked with the operational aspects of the DSO.

Organised Crime: DSO viewpoint
Mr Hofmeyr said that organised crime had proved to be a significant threat to international security. It was clear internationally that organised crime syndicates tended to operate more in emerging democracies where the State was generally weak,  had a lack of resources and legal expertise to  adequately address this problem. Organised crime syndicates had massive resources at their disposal, which made it very difficult for the State to combat this scourge.

The focus on money had become a major part of targeting organised crime syndicates, as international analysts had said that financial disruption to these activities was paramount, particularly as it was difficult to put such criminals behind bars. One of the biggest stumbling blocks at the moment was that criminals were becoming more like legitimate business people as they also looked at the potential risk involved when “investing” their money. This had led to an escalation of crimes involving abalone poaching, cable theft and social grants. The importance of this signified a that a approach had to be adopted in dealing with these type of crimes in a more flexible manner, in order to adapt to the stringent processes involved in investigating and prosecuting these cases. It was believed that organised crime generated about R100 billion annually.

He added that it was imperative to note that organised crime in South Africa was not built on a mafia-style hierarchy, but rather by a network of criminals who worked together, either due to a mutual interest or upon introduction. These were small groups, which made it very difficult for law enforcement agencies to infiltrate.

Organised crime flourished in those areas that were particularly difficult to identify, and would involve illegal immigration, the trafficking in human beings, illicit tobacco, economic crimes and environmental crimes. One of the latest trends that had been identified was that international and national organised crime syndicates started to build alliances with local street gangs to distribute drugs, as they already had their own operational networks.

This tied in with the spate of money laundering incidences where criminals laundered their money into different businesses to legitimise their actions and to build a sense of respectability, which would avert suspicions as to why they had such a lot of money. In some instances legitimate businesses were used by these syndicates to launder their money, either through the promise of financial reward or through extortion.

Mr Hofmeyr noted that even though figures showed that crime was coming down, that did not necessarily include organised crime, as the networks were spreading very rapidly due to immigration, migration, flexibility of borders due to trade agreements, the entry of low-cost air carriers into the aviation market, technological advances and ultimately the force of globalisation.

South Africa’s vulnerability to organised crime
South Africa was a haven for organised crime as its coasts were not well protected, but the well-developed infrastructure also impacted heavily on their success in South Africa. This situation, coupled with some internal political issues, the distrust of law enforcement agencies, inequality, poverty, capitalist values and the type of commodities that South Africa imported and exported attributed heavily on South Africa's vulnerability.

Mr Hofmeyr said that a loss of public confidence in the State led to criminals taking advantage of the weaknesses within a State, and that most ordinary law enforcement agencies did not have the required expertise to deal with these type of syndicates as they had not been trained to focus on corruption and similar crimes but only on maintaining safety and security.

He added that people were sometimes willing collaborators and that National Treasury had expressed its concern with the escalation of economic crimes and their impact on the capital markets. The financial power of organised crime had had a significant impact on South African society and had changed the perception of these criminals being “men with big guns”. The problem had become much wider. The influx of Nigerians, Italians, Chinese,  Eastern Europeans and Pakistanis had also had an adverse impact in eradicating these type of crimes, as they had managed to infiltrate the security industry as well.

Discussion
Mr Carrim asked for a breakdown of the DSO Employment Equity (EE) status, as well as the percentage of DSO employees that had formerly worked for the apartheid regime.

Mr Hofmeyr replied that the DSO staff component consisted of 52% Black Africans, 31% Whites, and 9% for both Coloureds and Indians. Of this total, 64% were men and 36 % were women. Mr Hofmeyr noted that in law enforcement it had been very difficult to attract women.

Ms A van Wyk (ANC) said that everybody seemed to use the same excuse when it came to under-representation of women in the work place and that it had to be challenged. She pointed out that the South African Police Service (SAPS) had just received an award as the government department with the most progressive EE status, as it employed thousands of women.

Prof B Turok (ANC) said that he was not a member of the Justice Portfolio Committee, but hoped the Chairperson would allow his question.

Mr Carrim replied that it was most unusual for such a request to be granted, but in light of Prof Turok's rank, the question would be allowed.

Prof Turok asked whether the lack of coordination between SAPS and the DSO detailed in the Khampepe Report had been due to structural problems or to something else. He explained that perhaps he problem between SAPS and the DSO could be blamed on a lack of political will, as the Ministerial committee that had been tasked with this interdepartmental relationship did not have meetings most of the time, if at all, and that Cabinet had been most surprised by this. It would thus appear that the problems that had arisen were due to structural problems as well as personality clashes.

Mr Hofmeyr replied that the problem had been partially structural, as both SAPS and the DSO had relied on higher level engagement between the Ministers of Justice and Safety and Security. It became evident that they hardly engaged on certain matters, which led to complications for the DSO as it had to compile its own threat analysis when SAPS did not want to provide it with information.

He added that there had also been a clash of personalities between SAPS and the DSO, which ultimately had an adverse effect on relations between these two law enforcement agencies as SAPS had been of the view that the DSO received all the elite cases and the glory that went with those.

Mr Carrim noted that it would be prudent to invite Minister Nqakula and Minister Mabandla to come and explain why they had failed in their duties. He pointed out that the “terrorists” attacks on America could have been averted if only the law enforcement agencies had worked together, and that a similar situation seemed to be happening with SAPS and the DSO.

Adv C Johnson (ANC) asked for a schematic breakdown of the DSO structures.

Mr Hofmeyr said that he would provide this shortly.

Mr Carrim said that there was one line of thinking that said the DSO should be completely disbanded, but the information on organised crime had shown that South Africa needed a specialised and dedicated unit that could adequately deal with organised and other related crimes. The implications would be too far-reaching if Parliament failed to take these considerations into account.  He added that the Committee would look at the advantages and disadvantages of having the Scorpions disbanded and would work from there.

Ms van Wyk noted that she discovered that SAPS and the NPA did not have the same definition of what constituted organised crime, and that this might cause some problems in the long run. She added that the definition provided by SAPS left less room for interpretation.

Mr Carrim asked SAPS and the DSO to find common ground on a single definition of organised crime for the sake of uniformity, and asked that the Department of Justice (DOJ) should also be approached.

Mr Hofmeyr replied that the NPA decided that it would not define organised crime in broader terms, as there was no single international definition on it, and that it depended on various elements such as how it would be applicable in practice.

Mr Swart asked whether organised crime really had a GDP of about R100 billion.

Mr Hofmeyr replied that the R100 billion was only an estimate as the NPA could determine fully how much money these syndicates actually generated.

Mr Ndlovu noted that during a recent visit to Brazil a lot had been said about Africa being a haven for organised crime syndicates due to its weak border controls. He noted that in South Africa, SARS should also be allowed to play a bigger role in addressing this problem.

Mr Hofmeyr replied that that the NPA accepted the fact that globalisation and free trade agreements had given rise to several problems, but due to the economic considerations this had become a challenge.

Mr Carrim requested that the DSO and SAPS engage Parliament as well on the single definition of organised crime.

South African Police Service: Organised Crime Strategy
Dr Philip Jacobs, Assistant Commissioner, Legal Services, SAPS, noted that the main role players involved in fighting organised crime were the detective service and the Crime Intelligence Unit (CIU) that investigated syndicate operations like cash-in-transit heists, ATM bombings. Terrorism and mercenary activities had also been included, as well as illicit diamond trading, human trafficking; counterfeit goods, pyramid schemes and drug smuggling.

He added that in most cases there had been a link between organised crime and terrorism in respect of money laundering for the purpose of advancing the goals of terrorism, especially in the procurement of arms.

The Organised Crime Component of the SAPS consisted of 1 621 members who had been structured in 33 units, of which 29 Units had been placed under provincial command and 4 at national level.

The Commercial Crime Component (CCC) included the Serious Economic Offences Unit (SEOU). The CCC consisted of 19 Operational Units, of which 17 had been placed under provincial command and 2 at national level. The Commercial Crime Component was also responsible to follow up suspicious transactions reported by the Financial Intelligence Center (FIC).

Discussion
Mr Carrim noted that he was confused with all the structures mentioned by Dr Jacobs and that the Joint Committee requested clarity on the lines of demarcations of these different units as there seemed to be overlapping mandates.

Dr Jacobs said that he would provide that information in due course.

The meeting was adjourned.

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