The Portfolio Committees on Justice and Safety and Security considered the five models that had been suggested by the sub-committee for a unit to replace the current Directorate of Special Operations (Scorpions). The Democratic Alliance, African Christian Democratic Party and Freedom Front Plus stressed their desire to have an improved Scorpions, along the lines proposed by Judge Sisi Khampepe. However, contrary to the Khampepe report, they called for Ministerial responsibility for the unit to rest with the Department of Justice. The Inkatha Freedom Party campaigned for a model that established a board to deal with complaints and to review cases of major importance. The African National Congress differed significantly in its views, indicating its support for a new model that would firmly locate the new unit with the South African Police Services, under the Minister of Safety and Security. The prosecutors would remain with the National Prosecuting Authority, while other experts would be seconded from their various departments, and would work with the police on day-to-day matters but remain answerable to their own institutions. In addition, the ANC wanted the unit to have no crime intelligence-gathering capabilities, be subjected to stricter vetting procedures and be headed by a Deputy National Police Commissioner. This party also indicated that it regarded the current formulation of the two Bills as far too weak, believed that the Model 4 was a significant improvement and stressed that the unit would be strengthened by the retention of the Ministerial Co-ordinating Committee, parliamentary oversight, the establishment of comprehensive transitional provisions, and removal of the crime intelligence function.
The technical experts advised that the concept of a Board should be included in Model 4, the preferred model for the ANC, to ensure accountability and protect the unit from political interference. Members questioned how this would differ from the Ministerial Committee and the Operational Coordinating Committee, questioned whether it would be appropriate to refer to it as a Board, whether it should serve as a case review mechanism, whether it should have the power to review cases, or decide whether or not to prosecute, and whether those being prosecuted might not thereby be given opportunities greater than those prosecuted for ordinary, not organised crime offences. Other Members were concerned that a structure between the National Prosecuting Authority and the Courts could destroy the independence of the Authority, and about the multiplicity of inputs. The National Prosecuting Authority agreed that such a Board would be useful, and could enhance or institutionalise the types of mechanisms already carried out by that unit. The sub committee and technical experts were asked to look further into the issues, as well as the composition, appointment and dismissal of the Board. Comments were made that seconded persons needed support, and the need to ensure that the Ministerial Coordinating Committee must convene regularly. The sub-committee was requested to check the provisions of the National Conventional Arms Control Bill to see how this matter was handled there.
The Committee’s report was adopted, subject to inclusion of a reference to the Labour Relations Act.
Mr Carrim noted that all parties had agreed to a set of general principles for an effective organised crime fighting unit. However, there were differences among the parties as to which model would best give effect to these principles. Each party would be afforded the opportunity to indicate which of the five models, which had been identified by the technical subcommittee, it preferred.
New Unit: Proposed models
Democratic Alliance (DA)
Dr T Delport (DA) stated that the DA supported Model 1, which retained the Directorate of Special Operations (DSO or Scorpions) but removed all its flaws as identified by the Khampepe Commission. This model sought to preserve the Directorate of Special Operations in the National Prosecuting Authority (NPA) and continued the use of the prosecution-led investigation method. He asserted that the independence of the unit, as well as the cooperation between various stakeholders, needed to be improved. He noted that some of the models, particularly Model 4, would require substantial amendments in order to comply with the general principles that the Committee had set. Lastly, he gave an undertaking that the DA would work with the Committee to ensure that whatever model was finally adopted included the basic principles that were agreed on.
Mr Carrim enquired whether Model 1 was an accurate reflection of what the DA had envisaged.
Dr Delport replied in the affirmative.
African Christian Democratic Party (ACDP)
Mr S Swart (ACDP) said that his party also opted for Model 1, despite the apparent deficiencies in the current model. He argued that the prosecutor-driven investigation method had proved successful and that any defect in the present model must simply be improved upon. The ACDP expressed concern about the possible damage to existing cases, such as the Fidentia and the Johannesburg Consolidated Investment cases, which were expected to continue for 10 years, should the Unit be substantially altered. Finally, he gave an undertaking that his party would contribute to whatever model was accepted by the majority.
Mr Carrim commented that he was equally concerned about the damage to existing cases.
Inkatha Freedom Party (IFP)
Mr V Ndlovu (IFP) stated that his party favoured Model 2 because it encompassed all aspects that the IFP envisaged in the proposed unit. Notably, this model established a Board that would be chaired by a retired judge in order to ensure integrity, to deal with complaints and to review cases of major importance. He was adamant that the unit should be independent and free from political interference. Mr Ndlovu also pledged that his party would work with other parties regardless of which model was decided on. At the same time, he urged other parties, including the ruling party, to look at model 2 as the model that should be taken forward.
Freedom Front Plus (FFP)
Mr P Groenewald (FFP) noted that although he had proposed model 5, largely as a political compromise to stop all the arguments about who was controlling whom and who was investigating whom, the FFP preferred Model 1 because it allowed for prosecution-driven investigations. In view of that, he declared that his party would not support Model 4 as it created a distinction between prosecuting prosecutors and investigating prosecutors. Finally, he accused the ANC of “going through the parliamentary motions” simply to avoid a future constitutional challenge, knowing full well that their decision to scrap the Scorpions had already been taken.
Mr Carrim contended that even if it were true that the ruling party was going through procedures simply in order to meet the needs of the Constitution, it nevertheless showed that it was abiding by the Constitution and the rules of Parliament in the fact that those procedures were being followed. Additionally, he remarked that Model 5 was not “sellable”, and advised Mr Groenewald to withdraw this proposal from the Committee’s report.
Mr Groenewald rejected this recommendation, and maintained that he had not participated in the entire process, only to withdraw his proposal at the end.
Mr Carrim continued to engage the FFP around the usefulness of Model 5. He argued that there was no logic in creating a new ministry (as outlined in this Model) when the tendency was towards rationalising ministries.
Mr Groenewald asked why Mr Carrim had not raised all these issues in the sub-committee when the different models were being developed. He was steadfast that Mr Carrim could not convince him to withdraw the model.
African National Congress (ANC)
Mr Carrim indicated that the ANC caucus had agreed to propose the adoption of Model 4, which created a new unit under the South African Police Services (SAPS). In addition, he noted that there were aspects of Model 2 that were reconcilable with Model 4. As a result, he encouraged all the parties that supported Model 2 to engage rigorously on the features that could be incorporated into Model 4. Furthermore, he explained that the new unit would follow a multi-disciplinary approach and include participants from the South African Police Service (SAPS), the National Prosecuting Authority (NPA), the South African Revenue Service (SARS), Department of Home Affairs, the Financial Intelligence Centre and other intelligence agencies. All experts that were seconded from their various departments would be answerable to the new unit for their day-to-day activities but would still remain politically accountable to their relevant authorities. He highlighted that prosecutors would be divided into two categories, namely investigating prosecutors and prosecuting prosecutors, with both remaining answerable to the NPA.
Mr Carrim indicated that the ANC was not happy with the current format of the Bills before the Committee and described them as “weak, limp and pathetic”. He argued that they were not properly thought through, and that Model 4 was a significant improvement on the proposed unit as set out in these Bills.
Lastly, he listed the following features that would strengthen the unit:
-the retention of the Ministerial Co-ordinating Committee (MCC)
-the vital need for effective parliamentary oversight
-the establishment of comprehensive transitional provisions
-the removal of the crime intelligence function from the new unit
Mr Carrim asked the technical experts whether there were any aspects from Model 2 that could be included in Model 4.
Mr Prince Mashele, Head: Governance and Political Monitoring, Institute for Security Studies, believed that the concept of a Board should be transplanted into Model 4. He reasoned that a Board would ensure accountability and protect the unit from political interference.
Mr Carrim enquired how the Board would differ from the MCC and the Inter-Departmental Operational Coordinating Committee (OCC).
Mr Mashele explained that the Board could perform a specific role, namely to serve as an integrity assurance mechanism, to serve as a case review mechanism, and to serve as a complaints mechanism. Such functions could not be handled entirely by the MCC or by the Complaints Directorate. Lastly, he advanced that the Board would be neutral, and not deal with governance issues or operational matters.
Mr Carrim probed two additional issues. Firstly, he questioned whether it was appropriate to refer to such a structure as a Board, as opposed to a mechanism or another name. Secondly, he asked who would be responsible for appointing such a Board and how this would be done.
Mr Mashele maintained that it was suitable to refer to such a structure as a Board because of its large mandate. In addition, he proposed that such a Board should be appointed by Parliament through a similar process that was followed for the appointment of the South African Broadcasting Corporation (SABC) Board.
Mr Gary Pienaar, IDASA, suggested that such a structure should instead be referred to as a Panel.
Mr Carrim maintained that the notion of a Board sounded too lofty and specific.
Mr Carrim recalled that Mr Mashele had previously stated that such a Board could be headed by a judge.
Mr Mashele motivated that the Board should be spearheaded by a retired judge because it would deal with complex legal matters. He added that the Board should be composed of individuals that represented the various relevant sectors.
Mr J Jeffery (ANC) sought an explanation as to why the Board would be authorised to review cases.
Mr Mashele clarified that the Board would not be authorised to review ordinary cases but only high profile and sensitive cases, such as that involving the suspended National Commissioner of Police, Mr Jackie Selebi. He pointed out that the NPA already called for outside opinions when it reviewed certain cases, and that this process needed to be institutionalised. Finally, he stated that the Board would not necessarily deal with the matter itself and may appoint a subcommittee of experts to advise it.
Mr Jeffery argued that the decision around whether to prosecute or not rested with the NPA, and could not be exported to the Board. He felt that the idea of a board reviewing high profile cases could result in accusations of political interference.
Mr Willie Hofmeyr, Head: Special Investigation Unit, NPA, explained that the Board would deal with complaints about the manner in which an investigation or prosecution was conducted. It was intended to be proactive and provide quality assurance in the absence of a complaint. He agreed that it would be useful to build in such a process, even though the mechanism was used from time to time by the NPA in any event. Lastly, he admitted that there was some difficulty in combining the quality assurance mechanism with a complaint mechanism, because there may subsequently be a complaint in a case where it had already been quality assured.
Mr Jeffery saw no reason why this quality assurance mechanism function should be performed by the Board when it was already carried out by the NPA, and voiced concern about how this would be activated.
Mr Mashele believed that there was nothing wrong in locating such a process with the Board, in order to ensure the integrity of the prosecutorial function.
Mr Hofmeyr agreed with the view that the Board would strengthen the credibility of the prosecuting authority.
Mr J Van der Merwe (IFP) also voiced concern about the proposed function of the Board. He disliked the idea of a structure between the NPA and the courts because it destroyed the independence of the NPA, as emphasised by Judge Nicholson.
Dr Delport cautioned that problems could arise by having a multiplicity of inputs into the final decision, as opposed to a single structure that could be held accountable.
Mr Mashele reminded Members that most of the problems of the DSO had stemmed from the fact that the MCC did not operate effectively. He reiterated that there was nothing wrong in having a Board that would review the work of the unit in conjunction with the NPA, which retained the sole right whether to prosecute or not.
Mr Jeffery recalled that Jacob Zuma had taken his case to the Public Protector because he had a problem with the investigation and not the prosecution. He cautioned that the Board should not be allowed to interfere with the NPA’s independence and prosecutorial discretion.
Mr Swart supported the idea of a Board, notwithstanding the concerns of some Members. He suggested that the subcommittee be mandated to investigate the possibility of incorporating this proposal, as it was international best practice in other jurisdictions.
Mr Hofmeyr reminded Members that there had been repeated allegations that certain investigations had been politically manipulated. The role of the Board would be to deal with allegations in cases where these started to threaten the integrity of the prosecuting authority. Given the NPA’s bitter experience, he maintained that the Board should be established to preserve the integrity of the institution.
Mr Carrim sensed that there was significant scepticism about the role of the Board, and urged the technical experts to reflect on the Committee’s remarks regarding this matter.
Ms M Sotyu (ANC) supported the suggestion that the subcommittee should deal with all the issues that were raised in today’s discussion.
Mr B Magwanishe (ANC) interrogated two issues. Firstly, he expressed concern about the multiplicity of bodies – including the MCC, OCC and the Board - that it was suggested should be established. Secondly, he enquired about the involvement of Parliament in the appointment and the dissolution of the Board.
Mr Mashele replied that Parliament could determine what its involvement should be in the appointment and the dissolution of the Board.
Adv C Johnson (ANC) questioned whether it was correct to have a Board in respect of organised crime, but not for other forms of crime. She pointed out that a person who was accused of an organised crime, could have recourse to the Board whereas this would not apply to those persons charged with other crimes. This implied that there were two dispensations, and she wondered whether this was reasonable and rational.
Mr Mashele replied that this question could be linked to why there was a need for a specialised unit to deal with organised crime. There was a recognition that organised crime required some form of specialisation.
Mr Magwanishe believed that the idea of a Board would be more appropriate for Model 1 rather than Model 4.
Mr Hofmeyr advised that Model 4 should clearly spell out that those persons who were seconded to the unit on a full time basis must be supported by secondary personnel.
Asst Commissioner Dr Philip Jacobs, Legal Services, SAPS, expressed doubts about the effectiveness of people that were seconded on a full-time basis. He contended that the value of such a person would be lost because those seconded tended to lose roots with their mother department.
Ms A Van Wyk (ANC) agreed with the comments expressed by Comm Jacobs.
Mr Mashele disagreed with this interpretation and argued that the skills of persons that worked in a specialised environment would be enhanced on a year by year basis.
Mr Carrim noted that Ms Van Wyk had suggested that the MCC convene at least once a year, and that a small team comprising of all relevant Ministers should convene three times a year.
Mr Magwanishe was not uncomfortable with this proposal. He believed that the MCC should meet more than once a year, given that they were able to attend Cabinet meetings every week.
Ms Van Wyk explained that the proposal was derived from past experiences.
Mr Carrim enquired whether the Committee could not compromise, and have the MCC meet at least twice a year and the subcommittee four times a year.
Mr Magwanishe stated that he would accept the majority decision.
Mr Mashele believed that the MCC should convene once a quarter – namely four times a year. He informed Members that the Khampepe Commission did not cite the issue of time as a reason why the MCC did not meet.
Mr Carrim noted that the Committee was veering towards recommending meetings twice a year. At the same time, he instructed the subcommittee to apply its mind further on this matter.
Ms Van Wyk suggested that the Committee study the National Conventional Arms Control Bill to see what mechanisms it had developed to ensure that the Inter-Ministerial Committee convened regularly.
Mr Carrim indicated that the Committee would visit the DSO the following day and SAPS the day after. He stated that Members would listen to the concerns of members of the DSO and reassure them that their services were still needed.
Committee’s report on the Bills
Mr Swart observed that the report had failed to make mention of the Labour Relations Act.
Mr Carrim agreed that reference to this should be included under the transitional provisions.
The report was adopted by the Committee, with the amendment.
The meeting was adjourned.
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