Scorpions closure: National Prosecuting Authority Bill & SA Police Service Amendment Bill: deliberations

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Justice and Correctional Services

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

The Committees, sitting jointly, deliberated on the proposed amendments to the South African Police Service Amendment Bill [B30B-2008], as reflected in an updated working draft dated 15 October. The Democratic Alliance representative noted that his party would be tabling its proposals for amendments to the Bill in the House, and accordingly he did not see that it would serve any purpose to object to each of the clauses as they were discussed. He also noted some procedural concerns, feeling that it was thwarted by the Committee’s desire to finalise the Bill before the end of the Parliamentary session. The Committee noted the objections and continued with the discussions on the draft. Several clauses in the Bill provoked intense debate and slow deliberations. The issue of defining key terms and concepts in the Bill proved daunting. These debates included the meaning of ‘organised crime’ and the number of persons capable of organised crime, the adequacy of the wording, and whether it would be open to legal challenge. Further debates were conducted on ‘in an organised fashion’; ‘national priority crimes’, and the use of the word ‘serious’ in the phrase ‘serious organised crime’. Several Members commented that the issues had already been canvassed during the workings of the sub-Committee and that they saw little point in prolonging the debates any further. On some issues it was unclear whether the Committee had fully achieved closure, or whether they must debate the wording again.

The Committee dealt at length with the effects of the transfer of staff from the Directorate of Special Operations to the South African Police Service, especially the security and screening measures and concerns were raised whether there was agreement between the National Prosecuting Authority and the Police Service on vetting during the transition by Crime Intelligence as opposed to the NIA. The Committee debated the legality of screening measure requiring urine samples for drug testing, for instance, and agreed that as long as they were performed with the knowledge and consent of those being vetted then this would protect against possible legal challenges. The order of the proposed Section 17D was changed. It was confirmed that the establishment of the Directorate would require Ministerial appointment. It was noted that crime intelligence needed to be more carefully dealt with, since specific wording was needed to distinguish between general intelligence functions that any police officer would have, as opposed to those relating to the special crimes unit.

In the afternoon session, the Committee continued to deliberate from Sections 17J of the SAPS Bill. 
The Chief State Law Advisor proposed that the operational committee meet at least twice a year to review the manner in which the Directorate performed its functions and to identify any problems in or impediments to its proper functioning. Members said that they would not like to be so prescriptive but did wish it to be recorded that the Committee must meet regularly and as “operationally required”.
The Committee agreed that the establishment of a complaints mechanism would deter possible abuse of the new unit, and it was agreed that a retired judge would be the most appropriate head of such a body, to be appointed by the Minister after consultation with the Chief Justice. Members raised the labour issues, but believed that they could not adequately debate whether Section 197of the Labour Relations Act was applicable, and that this Bill should refer generally to the Labour Relations Act.

The Department of Justice then presented some of the proposed amendments to the National Prosecuting Authority Amendment Bill. Members were generally satisfied with the proposals. Under Clause 1 there had been a substitution for the definition of ‘investigating director’, as special investigators would fall away as all SAPS investigators would henceforth fill this role, and that the National Director could be asked to appoint one of the existing Directors of Public Prosecutions to exercise the powers and functions under Section 28 of the Act. Clause 8 was rejected, as it seemed to provide for something that was no longer in existence. It was noted that Clause 14 was a provision that should have been in the National Prosecuting Authority Act but that had, during a previous process of certification, not been mentioned.

Meeting report

South African Police Service Amendment Bill (the Bill): Deliberations on Committee’s Working Draft (the Draft) of 15 October 2008
Mr J Jeffery led the deliberations on the Committee’s Working Draft (the draft) of the Amendment Bill, on a clause-by-clause basis. He asked the Committee to defer its attention to the Long Title of the Bill, which was the first item on the Working Draft, until the end of the deliberations, since it described what was in the Bill.

Clause 1
Mr Jeffery then started with page 3 of the draft. He stated that since an insertion was being made into the South African Police Service Act, which was self-contained, there were more technical provisions that would fit in later. However, the effect of Clause 1 was basically an addition of the new subsection (d) at the top of page 4, which concerned members appointed to the Priority Crime Investigation Unit (or, under the new name the Directorate for Priority Crime Investigation)(the Unit or Directorate) to be established under the new Section 17B.  This specified who was in SAPS and was therefore making it clear that members of the Unit would be a part of SAPS.

Dr T Delport (DA) asked about the general approach to the deliberations on the amendments. He stated that he had indicated, the previous day, in clear terms that the DA would not support the Bill as it currently stood. The DA would propose amendments. It would not make sense therefore to point this out again and again at the end of each clause. This had been the objective of his general statement on the previous day. On behalf of the DA, he would not raise the issue time and again, but this did not mean that the DA in any way acquiesced to the wording or to that particular clause under discussion.

He further indicated that the DA had felt thwarted from preparing its amendments by the Committee’s desire to finalise the Bill before the end of term, which had even prompted an announcement to the effect that the need for expediency could require the suspension of the three-day rule.

Co Chairperson Mr Y Carrim and Mr J Jeffery (ANC) were, however, of the opinion that the DA was manoeuvring around this technical point as a political tactic to foil the bid that this legislation be concluded in the current term.

Mr Jeffery responded that he thought those members who supported Model 1 or Model 2 would obviously be opposed to this clause. Dr Delport was therefore being very helpful, and he accepted and understood that he would not be supporting this clause. He asked whether, aside from that, there were any amendments or comments on other clauses before the Committee.

Ms Christine Silkstone, Parliamentary Research Officer, pointed out that there was a reference to the new Section17B, but that it should refer to Section 17C

Mr Jeffery responded that this was correct.

Co-Chairperson Mr Y Carrim stated, in response to Dr Delport, that even if he did not agree with the Bill he might nevertheless discover technical issues such as that raised by Ms Silkstone. The Committee would obviously like the opposition parties, even if they did not support the proposed model, to contribute to the discussion.  He wanted to have some clarity about the process. He confirmed with Dr Delport that the DA’s proposals for amendments would be tabled to the House in terms of Parliamentary rules.

Clause 2
Mr Jeffery proceeded to Clause 2, which was an amendment to Section 16 of the SAPS Act, which listed what could be investigated nationally, as some things could be dealt with provincially. This would be read with the definition of priority crimes. It was fairly technical and he asked Commissioner Jacobs to explain how it fitted in.

Commissioner Philip Jacobs, Head: Legal Services, South African Police Service (SAPS), stated that the first part was really to consolidate what SAPS had been extending, making it clearer what organised crime was, and aligning it with the National Prosecuting Authority (NPA) Act, as well as with the insertions that would have been made in other legislation.

Mr Carrim stated that he firstly wanted to check whether ‘the person’ committing organised crime was either a juristic person, or entity, or an individual. If an individual conducted criminal deeds in an organised fashion, without co-operating with anybody else, could he be said to be conducting ‘organised crime’. Secondly, there was reference, in sub-clause (2)(a) ‘a manner which could result in substantial financial gain for the person’. He asked whether a person who had stolen a large amount of money from another relative living in his house, would have committed organised crime. It was necessary, in his view to clarify who ‘a person’ was, what ‘substantial financial gain’ and ‘in an organised fashion’ would mean.

Commissioner Jacobs responded that regard must be had to the word ‘or’ in that paragraph between (1) and (2), which said group of persons or syndicate. The meaning of syndicate was thus that at least two persons would have to be involved for the definition of ‘ organised crime’. Looking at the heading of Section 16, this was not strictly limited to organised crime but also to crime that needed to be investigated on a national level because of its complex nature or cross-territorial nature. It was certainly possible to believe that a single person could, in quite an organised fashion, commit a crime that normally would involve more than one person.  The organised fashion part was not vital; as long as the criteria of substantial financial gain for the person was met. Once again, however, this linked up with the total structure of the Bill. The Head of the Directorate would actually decide whether a particular matter fell within the ambit of what would need to be investigated. The drafters were trying to make Section 16 as broad as possible but there would be a narrowing in terms of the cases that would finally be selected for investigation by this Directorate.

Mr Carrim said that although he did not quite understand all that had been said, he would not delay the meeting if others were satisfied with the explanation.

Mr Jeffery suggested that perhaps the NPA could provide a response to this since it was a legal issue.

Mr Willie Hofmeyr, Deputy National Director of Public Prosecutions, NPA, said that Section 16 had been discussed in terms extensively, and whatever was finally in the legislation should leave no room for doubt or legal challenge as to what the new Unit could or could not do. If one person, acting alone, could steal money in a very complicated way, then it could well be that the Unit should investigate cases like that. He gave the example that in a typical case there might be a tip- off that there was a big drug consignment, yet if only one person was caught, with respect to one action related to the drug consignment, it would be undesirable if there could be a challenge that this Directorate could not legally deal with the matter.  The law was wider and the ideas that should be policy guidelines seemed to be getting narrower.

The Parliamentary Legal Adviser present referred to the wording in the first line of: ‘by the substitution in subsection 2 for paragraph (a) of the following paragraph’. She felt that there was something wrong and suggested that it should rather read: ‘in substitution of (a) of the following paragraph, or ‘by the substitution in subsection (2) of paragraph (a)’.

Mr Jeffery asked, and received confirmation that she was saying that the existing (2)(a) was to be replaced with this. He then said that the wording should rather read: by the substitution of paragraph (2)(a) with the following paragraph’, or something to that effect.

Mr Hofmeyr indicated that he had one more issue with paragraph (c), and requested clarity on the use of the word ‘alleged’, since it was unknown to talk of ‘alleged offences’ in legislation. The practice was to refer to them simply as ‘offences’ and there was nowhere else where the term ‘alleged offences’ was used.

Commissioner Jacobs responded that this could be taken out, since it would make little difference to the meaning.

Mr Jeffery requested an answer to the query on the wording of (2)(a).

A Parliamentary Legal Advisers responded that only one paragraph of subsection (2) was to be amended. That is why there was reference to: ‘by the substitution in subsection (a)’ because the substitution related only to subsection (2) and paragraph (a). She suggested that there was no need to change the wording.

Mr Jeffery stated that he agreed to the wording, stating that it was really a highly technical form of wording.

Commissioner Jacobs asked whether paragraph (d) was correctly referenced, as there was firstly use of roman numeral (i)A.

Mr Hofmeyr responded that this was actually an insertion of another new paragraph, which was why both the roman numeral (i) and the A appeared. The (i) was in square brackets.

Mr Jeffery commented that section 2A contained the crux of the Bill. He asked if everybody was happy about the implications of the Bill, and particularly if SAPS and the NPA were satisfied that it would not be open to any legal challenges, especially around the definition of the phrase ‘in an organised fashion’. He was not raising any particular issue but just wanted to check if there was consensus on that definition.

Commissioner Jacobs responded that he believed that it did not really deviate from what was presently in the NPA and the SAPS legislation and in other legislation, especially the reference to ‘in an organised fashion and manner’. He did not believe that there was any difference. It was also important not to deviate too much from the present model in the sense that there were many decided court cases and principles. This was not a case of inserting something new, but rather consolidating and widening it up.

Clause 3
Mr Jeffery then moved on to Clause 3, which was the insertion of an entirely new Chapter 6A, which established the Directorate for Priority Crimes investigations (the Directorate or Unit). The first clause in this Chapter contained the definition of what the Directorate was. This was obviously very basic, and once again he noted the incorrect reference to Section 17B, which should refer to Section 17C.  The cross referencing to the Ministerial Committee had not been checked as yet. However, the more important definition was that for ‘national priority’ offence. This included serious organised crimes, serious commercial crimes, serious corruption which required national prevention or, if necessary, investigation, crimes that required specialised skills for their prevention and investigation, as referred to in the existing Section 16(1) of the SAPS Act, which had been referred to on the previous page of the Draft. The operational committee was just a cross reference.

Chapter 3: Definition of scope of Directorate’s investigations
The third part of this referred to the ‘national priority offence; which was really adding to what this Directorate could investigate. Commissioner Jacobs had earlier mentioned that there was the intention of a broad rather than a narrow scope, to try to avoid challenges to whether the Directorate could or could not investigate certain matters.

Mr S Swart (ACDP) raised the use of the word ‘serious’, stating that a lot would turn on this word as to whether a crime fell within this Unit rather than out of it, and raised the point of what was ‘serious organised crime’ as opposed to mere ‘organised crime’. The use of that word was limiting, in his opinion, and he asked for consideration to be given to it.

Mr Hofmeyr responded that there had been some discussion on these matters. He thought that to a large degree Section 16 defined either of the two concepts. Perhaps on a technical point, rather than using the words ‘as referred to in Section 16’, Section 16 should rather purport define what it was covering, rather than a new explanation altogether. He submitted that he thought that the word ‘serious’ had been inserted as a kind of pointer to the legislative intent but that it was necessary to look at Section 16 to see what was intended. He asked the drafters whether ‘referred’ was the right word to use, or whether the Committee should use something stronger.

Mr
Swart submitted that if the NPA and SAPS were happy, then he would agree to that. He had, however, thought that the use of the word was limiting on the powers of this Unit. Taking out the word ‘serious’ would extend the ambit. Using the word ‘serious’ could give rise to legal challenge. Organised crime was already defined in Section 16(1), and he felt that this might limit the definition.

Commissioner Jacobs added that he personally agreed that the word ‘serious’ was not needed, because there was already a mechanism for selecting the matters that could be investigated, by the Head of the Unit and the National Commissioner. This could be a guideline for those undertaking that selection. It might be that it was indicative of the intention that this Unit should not look at all cases, but would confine itself to some, and it could be the threshold being built in, but it would not, in his opinion, be a problem to take the word out.

Ms A Van Wyk (ANC) commented that this was really not an essential point, but it was important to consider why it should perhaps be kept; if the word was not included, quite apart from the intention of the clause, the Unit might be bogged down by issues that were not that important or that did not require the Unit’s special skills. If keeping the word would not unduly limit the work, then she felt it should be kept.

Mr. Hofmeyr stated that although he did not feel too strongly about it, he was happy for inclusion of ‘serious’, but it must be clear that Section 16 in fact contained the crux of the definitions, and the word ‘serious’ amounted to a statement of intent, rather than being legally binding. 

Mr Carrim commented that Members they had not arrived at using the word ‘serious’ easily. There had been quite an extensive discussion on principle, and if they were to deviate from principle, then they must be able to explain the deviation, in order to ensure the integrity of the process. One of the principles was that if all parties agreed on the issue, then the word could be left out. However, he agreed with Ms van Wyk’s comments. Thirdly, there was no legal issue; Members could just agree now instead of holding endless discussion. He agreed that what had been said by Mr Hofmeyr was technically correct. He then asked Mr Jeffery to comment on how this could be drafted.

Mr Jeffery responded that this was really an intention clause, so the word appeared in the correct place. It was possible to take out the words:  ‘National Priority Crime means…’ and then insert ‘crime which requires national prevention and investigation’ so that there would be no need to use the word. He could not remember the original wording, but the drafters had put this under the new Section 17D, which focused more on the intention than the legally binding nature. Alternatively, it was possible to include, under (a), the need for a priority investigative unit to prevent, combat, and investigate crimes, in particular serious organised crime, serious commercial crime and serious corruption. This would place this squarely under the broader intention section.

Commissioner Jacobs commented that he agreed that reference could be made to this in the application of the Chapter, as Mr Jeffery had suggested, and then to keep the wording around the National Priority Offence in the broader Section 16. Clearly the application of the Chapter then reflected the intention that the selection would be by the Directorate.

Mr Carrim then asked what had been the original wording concerning the Priority National Offence prior to these changes.

Mr Jeffery responded that he thought that there had been insertions for organised crime, and commercial crime and corruption, which were not mentioned previously. The national priority offence, as originally worded, had meant organised crime and crime that required special skills to investigate. Serious commercial crimes and serious corruption were inserted later. He suggested that perhaps there could be a reverting to the original definition, then insert, under ‘investigate crimes’ a reference to ‘in particular, serious organised crime, serious corruption and serious commercial crime.

Dr Delport asked for clarity. He stated that the draft that he had stated, under Section 17A,  ‘national priority offences’ which covered everything. Now it was being suggested that in Section 17B there should be another term used -  ‘priority crime’ - which was not defined. He asked why the term priority offence could not simply cover everything.

Mr Carrim asked why matters could not be simplified. He was concerned that at this late stage Members were moving in an unnecessary direction. Nobody liked the original draft of the Bill, which had been unreadable, through no fault on the part of any person, and it was difficult to instil elegance into what was essentially an inelegant Bill. Both the previous and current Ministers had commented that this whole piece of legislation would need to be overhauled and the Chairperson of the Committee had said that it was on the agenda. There were implications to what the Committee was doing, and he was not sure that all of these were clear to Members. He agreed with Dr Delport that the terms should be used consistently. He asked the Committee to move forward so that they could vote on this without being held up every time.

Mr Jeffery suggested that he would fine-tune the wording outside of the meeting, but obviously the Members would see the final draft before the vote.

Mr Hofmeyr suggested the definition should refer directly to Section 16(1) rather than saying something and then making a reference to what was contained in that Section.

Mr Carrim responded that whilst he appreciated that Mr Hofmeyr was making a technically and intellectually sound suggestion, this was nevertheless a political Bill. People reading this Bill would not have the SAPS Act in front of them. Although one could not repeat whatever was in the SAPS Act, there should also not be constant cross references to it. The policy was that the matters to be covered would be serious organised crime, serious commercial crime and serious corruption. He requested the Committee to mandate the relevant technical experts to make the relevant changes, under the guidance of the SAPS sub-committee. He requested that Mr Jeffery should try to approve something before the following Tuesday.

Mr Enver Daniels, Chief State Law Adviser, Office of the Chief State Law Adviser, proposed that the wording ‘as referred to in 16(1)’ should be left out. He feared that inclusion of this reference would give rise to many future problems.

Mr Jeffery proposed that Mr Carrim’s suggestion be adopted. He felt that Members were talking in circles. He asked that the Committee move to the new Section 17B.

New Section 17B
Mr Jeffery then continued that this was the broader intention chapter, which was concerned with the need to establish a Directorate in the SAPS. The rest of this clause would depend upon how the Committee would technically refine where the reference to ‘serious organised crime, serious corruption and serious commercial crime’ would appear. The clause dealt with the factors that needed to be taken into account, where appropriate, including the fact that the Directorate required a multi-disciplinary approach and integrated methodology involving the integration of all government department and institutions. It was necessary for the Directorate to have the necessary independence. It must be equipped with the appropriate human and financial resources, and provide for the secondment of persons whose integrity was beyond reproach. This was the gist of the clause.

Mr Jeffery said that there had been some discussion around the fact that a multi-disciplinary approach was not necessary for every crime. That was why the word ‘appropriate’ had been put in. Mr Carrim, Chairperson of the Justice Portfolio Committee, had then put forward the suggestion that the phrase ‘unless it is necessary’ should be added, but when this was done it did not quite make sense. The words ‘where appropriate’ in fact covered every case, and so he asked whether ‘unless it is necessary’ should be deleted.

Mr Carrim corrected Mr Jeffery, saying that this was in fact not his suggestion; he had rather believed that the words ‘where appropriate’ should be removed, and ‘unless it is necessary’ should be inserted. There was a difference. Everyone had agreed that on order for the Directorate to be able to deal with organised crime, it was necessary to have a multi-disciplinary approach. However, SAPS they had rightly pointed out that not every case required a multidisciplinary approach. The phrase ‘where appropriate’ gave too much latitude to the Directorate. Without Parliament wanting to be overly prescriptive, he pointed out that these were issues that everyone had agreed to, and there was no need to deviate. The policy behind the use of  ‘where appropriate’ was correct, but the wording was not. 

Mr Jeffery responded that this was an intention clause, and he did not think that any Court challenges would be raised on it. He felt that there were two options, and of the two he preferred ‘where appropriate’ as he believed that it made more sense than ‘unless it is necessary’.

Commissioner Jacobs agreed that the latter phrase did not fit in very well with the rest of the clause.

Mr V Ndlovhu (IFP) complained that the debate was losing ground, despite previous discussions that had led to consensus on adoption of ‘where appropriate’. A lot of time had been spent during that debate and it was unnecessary to dwell on the matter once more.

Co-Chairperson Ms Sotyu asked the State Law Advisers to assist the Committee to arrive at a position.

Mr Hofmeyr responded that this matter had been raised on the previous day, and there had been a suggestion that a choice should be made. In his own view, neither of the two was to be preferred, since this was an intention in general of how the Unit should operate, and not how it should operate in individual cases.

Adv Carol Johnson (ANC) submitted that neither one nor the other phrase was much different, and she felt that this was splitting hairs.

Ms Sotyu stated, after listening to Mr Ndlovhu and Adv Johnson, that the phrase ‘where appropriate’ should be adopted.

Mr Jeffery asked if there were any questions or comments on the new Section17B(1).

Mr Hofmeyr pointed out that since there was no longer a sub-section (2) the numbering could be reflected simply as 17B.

New Section 17C : Establishment and composition of Directorate
Mr Jeffery then proceeded to the provisions dealing with the establishment and the composition of the Directorate. He pointed out that the issue of the appointment of the Head of the Directorate was quite involved, and the drafters had decided to adopt established practices, which made the appointment subject to Cabinet approval.

Commissioner Jacobs indicated that a request had been made on the previous day for a document on the Department of Public Service and Administration (DPSA) entitled The Recruitment and Fulfilment of Positions of Head of Department and Deputy Director Generals. This document had now been obtained, and it set out the whole process and other relevant information. In that document, the words ‘in concurrence’ with Cabinet were used. He suggested that then clause should then be consistent and read:  ‘Head of the Directorate, who shall be a Deputy National Commissioner, appointed by the National Commissioner in concurrence with Cabinet.’

Mr Jeffery asked if these were regulations.

Commissioner Jacobs responded that these were not regulations, but an extract from the DPSA publication. That was how matters had been dealt with in the past.

Mr Jeffery submitted that the intention of the Committee had always been to have a Ministerial appointment. The drafting team had only adopted the National Commissioner route because they had thought that this was how it had been done, although the problem was that this did not appear to have been legislated. He was pleased that the provisions had now been identified. The clause should therefore make reference to  ‘appointed by the Minister in concurrence with Cabinet’.

Mr Ndlovhu affirmed that this had been debated and agreed to on the previous day.

Ms Sotyu verified that the Committee was comfortable with an appointment by the Minister.

Mr Daniels asked whether, in view of the proposed changes to subsection (2)(a) the Minister would still be required to report to Parliament on the appointment of the Head of the Directorate, or if the Minister would now simply inform the Legislature.

Mr Jeffery responded that the intention had always been that Parliament should be informed. He had understood that the Minister reported on, rather than notifying matters to Parliament, and that word had been deliberately used.

Ms Sotyu indicated that everyone had decided on ‘report’.

New Section 17D: Security screening
Mr Jeffery then moved to the provisions on security screening and integrity measures in the new Section17D, which basically followed the existing procedures in the National Strategic Intelligence Act. Although there were amendments to that Act pending at present, this was also consistent with those amendments. He suggested that the Committee should look at the provisions on screening up to the new subsection (4). The remainder dealt with slightly different issues. There had also been a request for a provision allowing for further integrity-checking in the form of lie detector tests. The NPA had been tasked to draw up a draft, which had been given to Commissioner Jacobs, and which would form a whole new subsection (8). He had had not as yet seen what the comments were on that.

Ms Sotyu said that the new draft had been distributed on the previous day.

Mr Jeffery said that it would be possible to deal with that by itself, since it was essentially stand-alone and suggested that the Committee should revert to 17D(8) at a later stage.

Mr Swart raised an issue that he had tabled the previous day. He was struggling to understand the motivation behind moving from a screening by the National Intelligence Agency (NIA) to a screening by Crime Intelligence. Whilst he appreciated that another document would still be provided, he asked Commissioner Jacobs for further clarity, saying that he had not understood the oral explanation. He also wanted to caution the Committee as to what it had given the Directorate of Special Operations (DSO or Scorpions) by way of undertaking. He requested confirmation from both SAPS and the NPA that there was agreement on this issue. This new Section was much different from what the Committee had told the Scorpions. There were legal problems with the NIA doing the screening. He was concerned that if the NIA had done screening, which was valid for a period of five years, then this could be overridden by Crime Intelligence. This could be important for maintaining integrity, if new information came to light, but was somewhat uncertain. He said that this might have been debated while he was not present, but nonetheless would like the NPA and SAPS to indicate whether they were happy with the current formulation.
           
Mr Carrim responded that when the Committee had gone to the DSO it had been addressing that specific concern. The Committee had tried to put the DSO at ease, and had made its statements in good faith. He had understood that this was how the Intelligence legislation had dealt with matters. He had been proven incorrect, and subsequent to this, Mr Jeffery and the sub-Committee had discussed the matter and reached consensus. No issues of policy or ideology were involved, and there was no deviation from the principle. It was the practicalities of understanding the legislation that had necessitated the changes. There were only one or two major shifts that were significant, and these could be explained in terms of Model 4. The Committee could not be bound by what Mr Carrim had, in good faith, said when he was not aware that legislation stated something different.

Commissioner Jacobs responded that this clause had been changed at some stage to re-align it with the National Strategic Intelligence Act. The mandate of the counter-intelligence of all SAPS members would in future apply to all members of the new Unit as well. This was to the effect that crime intelligence, including vetting, was the responsibility of the Crime Intelligence Division. As he had explained the day before, there was a provision in the National Strategic Intelligence Act where the SAPS could request NIA to assist it with vetting. This was very much related to issues of capacity and it had been pointed out that there was a Bill pending that proposed that NIA could assist SAPS. However, it must be realised that once the current members of the DSO had been transferred they would become SAPS members. This basically meant that they would fall within the SAPS mandate as prescribed in terms of the National Strategic Intelligence Act.

Mr Hofmeyr said that the NPA had been aware of this, but had not had the same understanding that the initial vetting for the transition would be done by NIA, bearing in mind that there were large numbers of people that had outstanding clearances already with NIA. This had been the original understanding, but this could have changed.

Commissioner Jacobs responded that according to his research, there apparently had been some agreement. As he had said earlier, it could be accommodated within the present Act. SAPS could actually ask NIA to assist them with the vetting. On a practical level, however, it was desirable that all members of the new Directorate be vetted by the same institution.

Members then debated in depth what would be the effects of the proposed screening and integrity measures on the transitional arrangements from the DSO to SAPS. Of particular concern was the issue of how transferring members could be affected by the backlog in clearances, and how the legislation could determine their status in the intervening period whilst awaiting the outcome of vetting. The Committee debated whether a time limit should be stipulated in the legislation to indicate the maximum waiting period for those who had not been cleared and were waiting for vetting whilst employed on a temporary basis. Members agreed that the stipulation of a time frame was impractical, given the unpredictable nature of security screening and co-dependent nature of vetting between the various institutions, which included those in the financial sector. The Committee also debated on the legal implications of the additional integrity measures as contemplated by 17D(8), which included the acquisition of urine samples for drug testing. It was agreed that the security and integrity measures would not threaten civil liberties as long as they were carried out under conditions of informed consent, to prevent legal challenges.

New Section 17E
Mr Jeffery proceeded to the new Section17E, which was concerned with the functioning of the Directorate, what it did, what it should investigate in terms of the national priority offences. The Head of the Directorate was to decide which crimes were to be investigated by the Directorate, subject to guidelines by the Ministerial Committee. Any other offences or national offences referred to it by the National Commissioner were subject to those guidelines. If the investigation picked up other matters, then Head of the Directorate could say that the investigation should be extended, with the restriction that the Head of the Directorate was to be connected to that investigation. This was intended to try to prevent witch-hunts. There was also now a provision in the Bill to make provision for the NPA Act’s requirements, similar to the Terrorism legislation.

Mr Carrim stated that although at that stage he did not want to complicate matters, he wondered if for sequential reasons Members should not consider the functions of the Directorate before considering its composition. It could be easier to deal with functions earlier, but the subheading referred to “establishment” and he would not like to complicate matters at this stage.

Mr Jeffery said that it really did not make much difference where this clause appeared. He suggested that it could come in after the clauses dealing with establishment and composition. He also noted that when this version of the Bill had been to the subcommittee there were some other amendments, which were not included in this Draft. He asked Members who had been present at the multi party sub-committee to raise these points. He suggested that the function of the Directorate should be placed as 17D, following the parts dealing with the establishment, but before dealing with screening.

Mr Carrim questioned whether, in the new Section 17E(1)(a), line 2 should not read ‘policy guidelines’ instead of policy guideline’. 

Mr Carrim also wanted to ask about a policy issue. The Committee had agreed that it was important for Parliament to have an effective oversight role, and, in light of some very bad past experiences with the DSO, it had been agreed that the Executive and Parliament must also be responsible for the failures of the DSO in the sense of monitoring. During earlier discussions on the Model reforms, it was agreed that policy guidelines would be subject to ratification in some cases, and tabling in Parliament. He asked where this was covered.

Mr Jeffery responded that it was covered in the new Section17K(4).

Mr Carrim suggested that it be made clearer in the amendments, as this had not been changed during previous discussions. He would not object to this being changed, but argument would need to be presented to the Committee on that point.

Mr Carrim referred to line 3, asking whether it was correct to use the phrase ‘desirable in the public interest or in the interest of justice’. It was important to state whether these interests were separate, or if the interests of justice would overlap with public interest.

Mr Jeffery asked Commissioner Jacobs to respond.

Commissioner Jacobs responded that similar wording appeared in the NPA Act.

He noted that a question was raised on the clause that stated that the Directorate could expand its investigations if other issues came to light, and whether these other issues must be specific to the crime being investigated, or whether they could also be related to other crimes that were not matters of national priority. He noted that the extension of the investigation would apply to matters related to the principal investigation. He accepted that this might not necessarily be classed as a national priority crime on its own, but that it must be connected to the initial investigation.

Mr Jeffery admitted that he had not yet confirmed that the wording matched the similar provision in the NPA Act. He also referred to the use of the complaints mechanism as a safety measure.

Ms van Wyk commented on the practicality of Commissioner Jacob’s point that it may be preferential for the Directorate to continue with an investigation rather than have the matter taken up anew by a different unit. She emphasised the need for practical considerations in the drafting of this part of the Bill.

Another member highlighted the importance of the word ‘connected’ with regard to the matter of extending investigations.

New Section 17F
Mr Jeffery noted that the new Section 17F dealt with the attempt to make the multi disciplinary approach more prescriptive, as opposed to voluntary. There was no need to deal with the individual clauses in depth.

Commissioner Jacobs felt that the Committee should focus on subsection (3), noting that the Directorate could be assisted by seconding help from relevantly-qualified government departments or institutions.

Mr Carrim then Mr Jeffery whether the wording should be that the Directorate ‘shall be assisted’ as opposed to ‘could be assisted’. The Committee had agreed that the multi-disciplinary approach and case by case assistance should be the norm. He also asked the Parliamentary Research Office to advise him who had mandated the change to ‘may’ instead of ‘shall’.

Mr Jeffery responded that the matter had been brought up in the subcommittee meeting but that the issue had not been clearly resolved.

Mr Carrim submitted that he had a grammatical concern in line 2, questioning whether ‘are’ or ‘is’ should be used. He also drew attention to the inconsistency when the word ‘head’ was sometimes used with a small and sometimes a capital H.

Mr Carrim noted, in respect of subsection (6), that there had been problems with the wording of the NPA legislation. He asked if it was clear that the Directorate would not be the body to gather, correlate and use the crime intelligence. He said that when this was read out earlier, it seemed that it could be interpreted that the Directorate would perform these functions with the support of the intelligence agencies, in particular SAPS.

Commissioner Jacobs expounded on the clarity of the definition of crime intelligence. This could include the work that was done by any investigator in SAPS. He pointed out that the SAPS was mandated to gather and use intelligence, but that mandate was not limited to the special crimes unit. An ordinary detective could perform certain functions, such as using an informant, but this could be regarded as an intelligence function. He then recommended that there be specific wording regarding the general intelligence functions that any ordinary SAPS investigator had, and those that related to the special crimes unit. He indicated that support of the crime and intelligence division could come from any other government organisation.

Mr Jeffery drew attention to 17F(2), asking whether the use of the word ‘appointment’ had been discussed.

Mr. Carrim indicated that the wording should read ‘such secondment’ and not ‘such appointment’.

Mr Jeffery drew attention to other words that needed to be consistently spelt.

Ms Van Wyk commented that she thought that the proposed subsection (6) was clear enough. She agreed with Commissioner Jacobs that SAPS would have certain investigative powers which could not be taken away. She was satisfied with the way this had been worded.

Clause 17J
Mr Enver Daniels, Chief State Law Adviser, Office of the Chief State Law Adviser, read out the amendments proposed by his office concerning Clause 17J(2). He said that the intention was to establish an inter-departmental committee to assist the new unit in its operations.

Ms A van Wyk said that she felt it was important that the operational committee should meet more then twice a year, so that any problems could be identified earlier

Adv L Joubert (DA) proposed that the Committee legislate that the operational committee must meet as regularly as possible.

Co-Chairperson Mr Carrim said that he did not have a strong view about it and that he did not see the need for the Bill to be too prescriptive. It was important that the operational committee meet as regularly as possible, without putting a minimum or maximum cap on the number of meetings.

Mr Jeffery indicated that he also had a problem with the twice-yearly requirement, as if this were to be inserted, then so must a penalty if they failed to meet as prescribed.  He proposed that a provision be inserted that specified that the operational committee had to meet as regularly as possible as was necessary to perform its line function.

He added that he did not like the wording “degree of intergovernmental relations* and that he preferred the wording contained under the subclauses (c).

Mr Daniels said that in the draft Bill there had been no provision that compelled the operational committee to meet, and that the Committee had not included a specific number of times for the meetings. However, it was within the mandate of the Office of the Chief State Law Adviser (OCSLA) to assist this Committee. He said that the operational committee could be compelled to meet, and if they did not meet as required then Parliament could pass a vote of no confidence.

Mr Daniels then noted that the Ministerial Committee would deal with dedicated matters other then what was related to the Directorate, and thus the operational committee would be relied upon to do most of the oversight work. It was noted that the Bill had no provision to ensure that the Unit was provided with Departmental assistance and that the word ‘degree’ had been taken from the original draft of the Bill.

Assistant Commissioner Jacobs agreed that there should be an obligation to meet as regularly as possible, and proposed a sub clause (d) that would address the issue of having to meet regularly.

Mr Ndlovu noted that the operational committee had to meet before the Ministerial Committee, and thus it could not be only twice a year. He proposed that the operational committee meet at least four times a year.

Mr Jeffery noted again that he would prefer to avoid imposing constraints by specifying numbers. He believed that a more general provision had to be inserted in the Bill and that the report should include a reference that the Speaker’s Office and the Rules Committee had to apply their minds on the matter.

Ms van Wyk proposed that a provision be inserted that stated that the operational committee had to meet as operationally required.

Mr J Malahlela (ANC) noted that he agreed partially with Mr Jeffery but that there needed to be some form of provision that compelled the operational committee to meet regularly.

Mr Carrim replied that the Bill could specify that the operational committee had to meet regularly as operationally required.

Mr Jeffery noted that there was no need to include the reference to the National Intelligence Agency as intelligence would be gathered by SAPS.

Clause 17 K
Mr Jeffery said that a new sub clause 17K(4) had been inserted into the Bill.

Mr Carrim noted that the ANC did not support sub clause (a), as it had not been part of the model that the ANC preferred. He added that it was clear that Parliament had an oversight function, but that it would be conducted through the normal reporting processes by government departments.

Mr Ndlovu said that sub clause (4) had been agreed upon by all the political parties at a previous meeting.

Adv Johnson said that Mr Carrim had not been present at the previous meeting where all political parties had decided on that. The decision was taken that much oversight was needed.

Mr Carrim said that procedures were an internal executive matter and that the guidelines needed to be approved by Parliament. The Committee should agree on the policy framework in which the Unit could determine cases.

Ms van Wyk noted that Parliament would ultimately expect the new Unit to report on certain matters and that Parliament could specify which guidelines were necessary.

Clause 17L
Adv Joubert proposed that the Minister should consult the Chief Justice during the selection process for a retired judge who would head the complaints mechanism that would be established.

Ms van Wyk noted that the ANC caucus had discussed the inclusion of the Chief Justice, and that it had been decided that the Chief Justice had to be part of the consultation process, although this was not specified in the Bill.

Ms Carrim said that it was important to avoid the complaints mechanism being abused by criminals to avoid prosecution.

Mr Jeffery stated that in order to prevent criminals from abusing the mechanism a screening process was necessary, to ascertain whether the complaint warranted an investigation by the retired judge.

Mr Hofmeyr said that the Bill should set out in detail that only serious complaints that related to serious cases would be considered. The legislation should give the retired judge the discretion whether a complaint warranted an investigation.

Mr Rodney de Kock, Deputy National Director of Prosecutions, Western Cape, NPA, said that the current provision that pertained to the complaints mechanism was very broad, and that individuals could abuse it by launching a challenge in a High or the Constitutional Court. He added that this might impede on the NPA’s investigation, which could eventually lead to bigger problems such as the eventual targeting of the investigation, the investigators and the prosecutor.

Ms van Wyk stated that the NPA had proposed a complaints mechanism and should thus indicate what they really wanted.

Mr Carrim noted that the complaints mechanism had nothing to do with the NPA and that it was provided for to avoid the problems that had been experienced with the NPA over the past eight years. He added that in cases of organised crime there was a bigger possibility of political interference and that the argument had been that criminals should not be given the opportunity to appeal the case at every opportunity. There was a need for the generic provisions to be redrafted, so as to reduce the parameters for unwarranted complaints. The complaints mechanism was only to be utilised by the general public who might have general complaints against the NPA.  He asked whether the Independent Complaints Directorate (ICD) should also not be included in this provision.

Ms van Wyk said that the mandate of the complaints mechanism had been “designed” in conjunction with that of the Independent Complaints Directorate, but it was decided not to include the ICD as some of these cases could be too complex and sensitive to be handled by them. It was believed that a retired judge, due to his or her standing and experience, would be a more suitable candidate, as judges generally enjoyed a much higher degree of integrity, expertise and respect.

Mr Jeffery noted that the complaints mechanism should only be utilised for specific issues such as unfair investigation practices and targeting by the NPA. Previously, individuals could lodge a complaint with the Public Protector or the Human Rights Commission, but this had proved to be problematic, hence the importance of the retired judge.

Ms Johnson said that the ICD fell under the SAPS Act. It was felt that the appointment of a retired judge would ensure the independence of the complaints mechanism. The ICD did not have the power to refer the matter for a review, whereas a judge could do so.

Mr Daniels proposed that complaints be referred to the Unit first, which would enable the judge to determine whether the complaint had been dealt with, and if not then he or she should take over the investigation.

Mr Carrim said that the Minister’s regulatory role was to ensure that abuse did not take place and that more regulations had to be added into the principal Act that would act as safeguards against possible abuse.

Mr Daniels proposed that the retired judge could also make regulations in consultation with the Minister.

Mr Hofmeyr replied that the judge could only make recommendations on regulations.

Mr Hofmeyr then proposed, and Members agreed,  that “undertook” in Clause 17L(5) be substituted with “undertaken”.

Schedules
Commissioner Jacobs noted that it should also be stated in the schedules, under item (9), that individuals that had been aware of corrupt activities, but did not report on them, could also be prosecuted under the Prevention and Combating of Corrupt Activities Act.

Transitional Provisions
It was proposed that the sub clauses that dealt with consent and severance packages be moved to the NPA Bill. A similar move should happen for sub clauses (6) and (7) that dealt with outstanding disciplinary actions.

Mr Hofmeyr noted that the cross referencing had to be tidied up in the Bill, and that there had been general agreement that the issue of rights and privileges had to be adequately addressed by the State Law Adviser’s Office.

Mr Daniels replied that the issue had not yet been considered, and that his office still had to look at the provisions. He hoped to table the results by lunchtime on the following day.

Mr Jeffery noted that the review report was needed in the morning and not at lunchtime, as the technical committee wished to finish the Bill.

Ms van Wyk said that ‘special investigators’ in sub clause (5) should be substituted with ‘the people’ as it would affect all of the staff that would be transferred from the DSO to the new Unit.

Mr Carrim said he was unsure about the labour provisions, as Members had not been briefed on what section 197 of the Labour Relations Act contained.

Commissioner Jacobs noted that the new unit would be transferred as a going concern, in terms of the Labour Relations Act.

Adv Johnson said that the State Law Advisers had indicated that Section 197 was not applicable and that the Committee agreed that there should be consent.

Mr Daniels noted that there was no possibility of the transfer of an entity as a going concern within government structures, and that the whole entity would be taken over in its entirety.

Mr Jeffery asked who dealt with labour disputes within government structures.

Mr Daniels replied that the Chief State Law Adviser’s office was able to deal with labour disputes as the nature of its work dictated a diverse knowledge base.

Mr Hofmeyr proposed that the referral to Section 197 should be substituted with “subject to the Labour Relations Act”, as no one seemed to have any specific knowledge of what Section 197 contained.

Mr Carrim replied that the Committee did not have a mandate to amend the Labour Relations Act, and therefore that this legislation should make reference to the Labour Relations Act.

Ms Johnson asked whether the wording should not reflect ‘subject to the Public Servants Act’, as it dealt with the transfer of public servants.

The matter was unresolved and left to the technical sub committee to resolve.

Selection of personnel
Ms van Wyk asked why “information” was included in sub clause (2), as the criteria seemed to be broad enough.

Commissioner Jacobs replied that there had been no specific reason that led to the insertion of “information”, but it was generally felt that there would be certain information that had to be reviewed and considered. If the Committee wished to remove the wording, then he would have no objection.

The Committee agreed that ‘information’ would be omitted from the selection criteria.

Mr Swart asked how the whole selection would work in practice, as it appeared that staff would first be transferred to the new Unit and then face a selection process. He said that this would put special investigators at risk of losing their jobs.

Mr Hofmeyr noted that he too had raised the issue and that it would make more sense to inform members whether they would be employed in the new Unit, before the transfer took effect.

Mr Jeffery said that the current political heads of the DSO and the SAPS had to enter into an agreement on this matter, and that the Committee Report should reflect this.
 
Ms van Wyk asked what ‘amongst others’ meant in sub clause (3).

Mr Jeffery said that sub clause (3) was only a guide that listed some of the factors that constituted the criteria, and asked whether any provision had been made to include the head of the new Unit on the selection panel.

Mr Hofmeyr noted that initially it was agreed that the head of the Unit would head the selection panel and then present the list of candidates to the National Commissioner of Police.

National Prosecuting Amendment Bill (NPA Bill)
Mr Johan de Lange, Principal State Law Advisor, Department of Justice, read through the amendments made by the Department of Justice.

Clause1
Mr de Lange noted that consequential amendments had been made. The definition of ‘investigating director’ had been substituted, and a new clause was to be substituted for it, which omitted any reference to ‘investigating director’.

Mr Carrim said that the Committee had to scrutinise this Bill closely, as he was worried that certain items might get slipped in. The amendments might look technical, but had to be carefully considered lest they have political consequences.

Mr Jeffery asked how there could be investigating directors without there being an Investigating Directorate. He asked how this had worked in practice before the establishment of the DSO, under the powers vested by Section 28 of the NPA Act.

Mr Hofmeyr replied that the suggestion was that special investigators would fall away, and that the Prevention of Corruption Act no longer would apply as the SAPS investigators had been deemed to be special investigators by nature. He said that the suggestion was that the National Director could be approached to appoint one of the existing Directors of Public Prosecution to exercise the powers and functions in terms of Section 28, hence the cross referencing to the SAPS Act.

Mr Jeffery asked what would happen to Section 21 crimes, such as corruption and anti-terrorism, as there is no reference to that in this NPA Bill.

Mr Hofmeyr replied that the new Unit would eventually investigate most of these crimes.

New Section 24
Mr de Lange noted that a new Section 24(2) was now being inserted (see attached document). It was to amend Section 24 of the principal Act, by insertion of a new subsection to provide for the powers, duties and functions of an Investigating Director or one designated under Section 17E(3) of the SAPS Act.
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Clause 3
Mr de Lange noted that the whole of Section 7 of the principal Act was being repealed and replaced. 

Clause 4
Mr de Lange asked whether the Department of Justice needed to change the number of Deputy National Directors of Public Prosecutions (DNDPP) to four or three.

Mr Jeffery asked how many DNDPPs were currently employed by the NPA.

Mr Hofmeyr replied that there were currently three DNDPPs, after the resignation of the Director of the Directorate of Special Operations.

Mr de Lange noted that experience in the past showed that it was better to allow circumstances to dictate how many were needed.

Mr Jeffery noted that there should not be more then four DNDPP.

Mr Carrim asked why four were needed.

Mr de Lange replied that the number was limited to four.

Mr Jeffery replied that presumably only the President could appoint a DNDPP. Before the DSO had been established the Act had specified that there be three, and after the DSO was established this was changed to four.

Mr Carrim proposed that, in order to save time at this meeting, Mr de Lange should deal only with the most important changes.

Ms Sotyu proposed that the number remain as originally stated.

The changes to this Clause were accordingly rejected.

Clause 5
Mr de Lange noted that certain chapters in the principal Act had been repealed.

Clauses 6 and 7
There was no discussion on these clauses.

New Clause: Amendment of Section 28
Mr Jeffery proposed that the new clause be rejected as it provided for a Unit that was not in existence any more.

Mr Carrim agreed and said that it was too clumsy.

Clause 9

There was no discussion on this clause.
 
Clause 10
Mr de Lange noted that purely consequential amendments had been made.
 
Clauses 11 to 13
There was no discussion on these clauses.
 
New Clause: Benefits for Termination of Service

Mr de Lange noted that the proposed new clause had originally been included in the General Laws Amendment Bill, but that during the process of the certification to the National Prosecuting legislation it had slipped through the cracks and was omitted.

Mr Jeffery asked whether the State Law Adviser had rejected the clause during the certification process.

Mr de Lange replied that the State Law Adviser had felt that it should be in the National Prosecuting Authority Act.

Transitional Provisions
Mr Jeffery asked what would happen to the transitional provisions from the SAPS Bill.

Mr de Lange replied that pending the deliberations it would make sense to insert a new clause 43 B into the Bill, to deal with the process of transition.

The meeting was adjourned.

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