Scorpions closure: New Unit’s composition deliberations

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Justice and Correctional Services

14 October 2008
Chairperson: Mr Y Carrim (ANC), Ms M Sotyu (ANC) and Mr Jeffery (ANC)
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Meeting Summary

The Committee was due to deliberation on the South African Police Service Amendment Bill, but since some opposition Members had not received the relevant documents, it was decided instead to allow the parties to air their views on the composition of the new unit.

The IFP, DA and ACDP indicated their concerns that the proposals for the new unit would now ensure its independence. They pointed out that the head of the new unit as a Deputy Commissioner of Police, a line  function under the National Commissioner of Police, in fact meant that the National Commissioner would be responsible as accounting officer. Furthermore the Deputy Commissioner would be bound to follow the instructions of the National Commissioner, which was a serious impediment to independence. The IFP proposed that the new unit’s finances should be audited by the Auditor-General and that the new head of the unit should be appointed by the Minister of Safety and Security in consultation with the National Commissioner of Police. It was concerned that the proposed new Sections 17C(1) and (2)(a) were contrary to what the IFP had proposed. The DA noted that it would be tabling amendments to the effect that the head of the new unit should be appointed by the President, on the recommendations of Parliament, that the head be at the level of Director General, which would also make that person the accounting officer in charge of the budget and finances, and that the head must be accountable to Parliament, via a Ministerial Committee consisting of all the ministries designated to the Justice, Crime Prevention and Security Cluster. The ACDP had concerns similar to those expressed by the other parties on the independence and responsibility for finances. It pointed out that the proposed new Section 17B(1) had specified the need for some degree of independence. Furthermore the labour law issues must be resolved, assurances should be given to existing Members and the country’s investment in their expertise should be preserved wherever possible, the transitional provisions might impact heavily on existing cases, and the Bill should not be rushed through Parliament. The ANC indicated that the transitional provisions would be agreed upon once the Directorate of Special Operations and the Police Service had fully  engaged on the matter. The ANC believed that the current draft was a vast improvement on the initial draft, and that the ANC had opted for Model 4, because it believed that the head of the unit being at the level of Deputy Commissioner of Police would give a degree of independence. It believed that the Ministers in the Justice, Crime Prevention and Security Cluster should perform an oversight function over the new unit, that there should be an adequate legal unit and the National Prosecuting Authority (NPA) must provide the public prosecutors. It pointed out that the multi-disciplinary approach, the operational committee with the power to second people to assist with investigations, the capacity to gather intelligence and the complaints mechanism were all positive features and had attempted to accommodate concerns. It was however, adamant, that the prosecution side of the case should be separate from the investigation part, to avoid the types of problems that had arisen in the past. In addition, the fact that the Bill would be brought back to Parliament within 18 months of coming into operation for assessment of any problems, and the requirement that the Minister of Safety and Security address these problems in the next three years provided further safeguards. In the view of the ANC, the new unit was guaranteed a degree of autonomy within the parameters of an integrated structure that would erode the possibility of executive interference.

Meeting report

Introductory Remarks
Co-Chairperson Ms M Sotyu (ANC) noted that opposition parties had indicated that they did not receive the Committee’s Working Draft of the South African Police Services Bill, and therefore proposed that the deliberation be postponed until 16 October to give those Members a chance to scrutinise the draft Bill. She then suggested that an opportunity be allowed to all political parties give their opinion on the proposed new unit that would replace the Directorate of Special Operations (DSO / Scorpions).

Proposals for new unit to replace Directorate of Special Operations
Mr V Ndlovu (IFP) said that the current draft of the Bill did not allow for sufficient independence of the unit, and that the IFP proposed that that the new unit be independent from the South African Police Service (SAPS), but still under the executive authority of the Ministry of Safety and Security.

He added that the new unit’s finances should be audited by the Auditor-General and that the new head of the unit should be appointed by the Minister of Safety and Security in consultation with the National Commissioner of Police. Mr Ndlovu noted that the head of the unit should also be the accounting officer under the same Public Management and Finance Act (PMFA). The IFP was also not in favour of Clause 17C(1) and (2)(a) as these were contrary to what the IFP had proposed. He stated that the IFP proposed that the new name of the unit should be the Directorate of Organized Crime.

Dr T Delport (DA) stated that the DA would vote against the Bill as the independence of the new unit seemed to have been eroded, despite the Committee having agreed during a previous session that the independence of the new unit had to be guaranteed. As the Bill stood now, the head of the new unit would be appointed on the level of a Deputy Commissioner of Police, which was a line function under the National Commissioner of Police. The Deputy Commissioner would thus be bound to follow the instructions of the National Commissioner of Police. That would seriously hamper the unit's independence.

He added that the new unit's budget would now also fall under the SAPS, with the National Commissioner of Police as the accounting officer, which translated into that Commissioner effectively exercising access over the budget and the possibility of access over the unit's overall activities as well.

Dr Delport said that the DA was opposed to having the unit “employed” by the SAPS, as it would now become just another arm of SAPS. The Bill did also not have any safeguards to retain prosecution-led investigations.

He noted that the DA caucus would table amendments in the National Assembly, which would include the following:
- that the head of the new unit be appointed by the President on the recommendations of Parliament;
- that the head of the unit be elevated to the position of a Director-General, which would also make the head the accounting officer in charge of the budget;
- that the head of the unit had to be accountable to Parliament, via a Ministerial Committee consisting of all the ministries designated to the Justice, Crime Prevention and Security Cluster.

Dr Delport said that the DA had taken advice on the amendments that they would be proposing. It further proposed that the new name of the unit should be the Bureau of National Investigations.

Mr S Swart (ACDP) said that the Bill was a vast improvement on the original draft that had been presented, but that the ACDP did not support the model that the ANC had adopted, as it eroded the independence of the new unit. He noted that the ACDP had concerns similar to those expressed by the DA in regard to the budget and the other issues. He noted that Clause 17B(1) did specify that there was a need for some degree of independence. He added that the Bill also did not give any assurances to existing DSO members on the status of their posts.

Mr Swart noted that the Bill should also ensure that all labour law issues were resolved. He expressed his concern over the transitional provisions which might impact heavily on existing cases such as the Fidentia case. He cautioned against rushing the Bill through Parliament, considering the rising problem with organised crime in the country and the possibility that the State could lose out on valuable capacity in which it had previously made investments.

Ms Sotyu noted that the issues raised by the opposition parties would assist the Committee in finding some common ground during the deliberations. She pointed out that the transitional arrangements were still up for discussion. The transitional arrangements would only be agreed upon once the DSO and SAPS had fully engaged on the matter

Ms A van Wyk (ANC) read out the mandate from the ANC. She noted that the current draft was a vast improvement on the one that was initially tabled. The ANC had carefully reviewed all five models and opted for model 4, which would see the head of the new unit being elevated to the level of a Deputy Commissioner of Police, instead of a Divisional Commissioner as initially proposed. This, she said, would ensure that the unit had a degree of independence. The unit’s budget and the unit’s activities would be included in the SAPS Annual Report to Parliament. It was important that the new unit should be an effective tool in fighting organised crime and corruption, and thus the DSO and the SAPS should conduct a stringent selection and vetting process to retain and transfer the best suitable individuals to the new unit.

She added that the Ministers in the Justice, Crime Prevention and Security Cluster should perform an oversight function over the new unit and that the National Commissioner of Police had to ensure the new unit was also staffed with an adequate Legal Unit to assist investigators during the investigation phase where necessary, whereas the National Prosecuting Authority (NPA) had to provide the public prosecutors. The difference in this approach would result in the public prosecutors still being part of the NPA and not the new unit. The draft Bill also provided for a multi-disciplinary approach as well as an operational committee that would have the power to second people to the new unit to assist with investigations.

The Bill also provided for a complaints mechanism, chaired by a retired judge, and members of the public and any other individuals could approach the chairing judge if they had any complaints. This would ensure that the unit’s independence did not come into question.

The new unit would have the capacity to gather intelligence that would be obtained from the intelligence division within the SAPS and other local and international intelligence agencies. She said that opposition parties had to acknowledge that the ANC had done its best to accommodate all views

Mr S Ntuli (ANC) said that the Bill was trying to secure uniformity and that the prosecution side of the case had to be separate from the investigation part, as otherwise this could lead to problems similar to those previously experienced with the existing DSO. He added that the new unit could not be both referee and player.

Co-Chairperson Mr Y Carrim (ANC) noted that that the ANC had done its best in coming up with a model that was viable. He noted that some of the features of the proposed Model 4 could not be inserted in the new model as it would have resulted in an overhaul of the entire SAPS Act. He added that when he had visited the SAPS he discovered that the SAPS did work with prosecutors on some cases. He said that the SAPS Bill would be brought back to Parliament within 18 months of coming into operation, to assess the problems that were experienced, after which the Minister of Safety and Security would have three years to address these problems and report back to Parliament.

Mr Carrim added that the new unit was guaranteed a degree of autonomy within the parameters of an integrated structure that would erode the possibility of executive interference, and that the policy framework clearly stated that the National Commissioner, in consultation with the Minister of Safety and Security, would decide on which cases could proceed.

The meeting was adjourned.

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