Scorpions Closure: National Prosecuting Authority Amendment Bill & South African Police Service Amendment Bill: adoption

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Justice and Correctional Services

19 October 2008
Chairperson: Mr Y Carrim (ANC)
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Meeting Summary

During the first portion of the meeting, the drafting team presented their latest amendments to both the South African Police Services (SAPS) Amendment Bill and the National Prosecuting Authority (NPA) Amendment Bill. At the outset the process to date was summarised, and it was reported that amendments were still being made to this document right up to the current morning. It was noted that the opposition members had not attended the Technical drafting meetings, to which the DA responded that there was no obligation upon it to assist the ANC in drafting what was essentially an ANC Bill. The changes to the Bills were then presented.

The change to the Long Title was noted. In respect of Clause 3, that detailed the new sections to be inserted after Section 17 of the SAPS Act, it was noted that the new Section 17C now provided for appointment by the Minister, in concurrence with Cabinet. The new Section 17E(8)(a) would be changed by prefacing the existing wording with ‘if’ and inserting ‘must’ in place of the word ‘may. This would then correlate to the word ‘must’ that should also be used in (8)(c). In addition, the word ‘random’ was to be moved in front of ‘entrapment’ in (8)(a). Concerns were raised about the implications of the new Section17E (1) and (2), which seemed to contradict the assurances made previously to the Directorate of Special Operations (DSO) members. The multidisciplinary approach in the new Section 17F was also a focus of debate, with questions whether personnel who were seconded to another Department would retain their powers and functions as determined by their governing statutes. Members raised questions around the Ministerial Committee referred to in the new Section 17I and the provisions of the new Section 17L, relating to the administration of the complaints mechanism, but the drafting team had felt that the Bill should not be too prescriptive, and there would be mention of the issues in the Committee’s Report. Revised wording was presented for the New Clause 13 substituting Section 43A, relating to the transitional provisions of the legislation. Opposition Members felt that these provisions did not give much assurance to former members of the DSO about their prospects for career growth and continuity of employment in the DPCI. A further concern related to the status of pending investigations that would be transferred to the new unit, as it was argued that sensitive pending cases could be decided upon by politicians, to which the ANC responded that past experience had not shown this to be the case. 

The meeting was adjourned to allow Members the opportunity to reflect upon the amendments, and to allow for a revised final draft to be prepared. Despite the various areas of contention and their divisive impact on the deliberations, the Committee noted several positive changes that would be brought in by the new laws. The implementation of Parliamentary oversight mechanism over the functioning of the Directorate, and the establishment of a complaints mechanism would address prior serious concerns around the DSO exceeding its mandate by carrying out crime intelligence functions beyond what it was legally empowered to do, and it was noted that the provisions of the new Sections 17K and 17L were inserted to fulfil the main policy objectives for the new law.

During the vote process, objections were raised by the Democratic Alliance, supported by the Inkatha Freedom Party and the African Christian Democratic Party, that voting be deferred so that the finalised amendments could be considered by their respective parties. The ANC refused and insisted that the Bills be voted on immediately. In the vote on the Bills, 12 votes in support of the Bills were recorded whilst 4 votes were noted against them. The Bills would be debated in the National Assembly on 23 October.

 

Meeting report

South African Police Service (SAPS) Amendment Bill: Deliberations
Mr J Jeffery, Head of the Joint Committee’s Legal Drafting Team, provided a re-cap of the process up to date. He stated that the Joint Committees had deliberated until late on Thursday evening. A Technical Committee had then met on Friday to refine and clean up the wording of the suggested changes. He was not sure why the opposition parties had not taken part in the Technical Committee on Thursday, but anyone who had been available could have attended. The changes were then effected and compiled into a draft on Saturday afternoon, whereupon it had been proof-read for typographical errors before a new draft had been produced this morning.

He noted that issues had been raised as to why the document had not been distributed, and pointed out that in effect this was the version that had been worked upon at the meeting on Thursday. The difficulty was that typographical and wording changes were still being made right up to this morning.

Dr T Delport (DA) commented on the suggestion that the opposition Members could have attended the Technical Committee. He submitted there was no duty on the opposition to assist the majority party to get its legislation in order. He submitted, with respect, that equally the majority party itself could never be expected to assist the opposition with regard to its amendments. If the majority party, with the whole team of its technical and legal advisers at its disposal, expected the opposition to come and give further assistance with the drafting of the Bill, then they were making a serious mistake. The opposition refused to take any blame with regard to the accusation that they had neglected their duty by failing to attend.

Co-Chairperson Ms M Sotyu (ANC) replied that there was no need for a response to what had been said by Dr Delport.

Mr Jeffery responded that the point he was trying to make was that the opportunity had been there for the opposition Members to attend if they wished. The Technical Committee was a full Committee, not just intended for the majority party and when the issue had been raised there had been nothing that had been said about this by the opposition.

Mr Jeffery pointed out to the Committee that copies of the South African Police Service (SAPS) Amendment Bill, version B30B, had been circulated. He would prefer not to highlight a number of small wording issues as Members went through the Bill, but to highlight the more substantial ones.

Long Title
Mr Jeffery noted that there had been some wording changes. He asked the Chairpersons to guide him as to whether he should refer to all of the points, and highlight every change, or simply the major changes. 

Ms Sotyu directed him to address only those issues that could be raised by the members as concerns.

Mr Jeffery indicated that there was nothing effectively in the Long Title that needed to be dealt with.

Clauses 1 and 2
Mr Jeffery noted that there was nothing specific to be dealt with under Clauses 1 and 2.

Clause 3
Mr Jeffery reminded the Committee of the issues that had arisen regarding the definition of ‘priority offences’. The aspects relating to serious organised crime, serious commercial crime and serious corruption had been moved from the definition of ‘priority offence’ to the section on the application of the Chapter.

In respect of the new Section 17C, which dealt with the issue of establishment and composition of the new unit of the Directorate for Priority Crime Investigation (Directorate or Unit), the main issue concerned the appointment. The Committee had been told that under the SAPS procedures the Head was appointed by the Minister or with the Minister’s involvement. The wording had thus been changed accordingly to reflect that the appointment was made by the Minister in concurrence with Cabinet.

There had been no changes to the new Section 17D.

Mr Jeffery said that the new Section 17E(8)(a) related to security and integrity measures, specifically, further integrity measures. The main issues had been about the security clearance, and about the further integrity measures that the Minister could prescribe for the taking of samples for drug and alcohol testing by a medical practitioner, and the confidentiality of the information obtained as a result of the tests.

Ms D Kohler-Barnard (DA) asked about the current security clearance held by DSO members. She asked if this would be the same clearance, or if their prior clearances would suffice.

Mr Jeffery responded that this was addressed in the new Section 17E(2)(b), which provided that a person could be appointed to the Unit if he or she had a security clearance on the required level that was still valid.

Commissioner Philip Jacobs. Head: Legal Services, SAPS added that the provisions of the new Section 17E(3) were also relevant. He provided the assurance that a clearance that was still valid would remain so in the consideration of an appointment to the new Unit

Co-Chairperson Mr Y Carrim (ANC) raised an issue pertaining to Section 17E(8)(b), asking whether the reference to a ‘registered nurse’ was used appropriately.

Commissioner Jacobs responded that this was similar to the wording used in the Criminal Procedure and Evidence Act.

Mr Jeffery introduced Professor Halton Cheadle, who was an Adviser to the Minister of Justice on issues of language and wording in legislation, and whom he asked to assist.

Ms Kohler-Barnard asked about the use of the word ‘may’ in the new Section 18E(8)(c) and submitted that she thought that mandatory wording should be used as the Minister surely ‘must’ prescribe measures to ensure the confidentiality of information obtained through integrity testing.

Mr Jeffery pointed out that it would be contradictory to use ‘must’ in the (8)(c) if the word ‘may” had been used under (8)(a). However, he took the point made by Ms Kohler-Barnard. He suggested that a possible solution might be to begin the section with the words “If the Minister prescribes measures”, so that later on the words  “The Minister must prescribe measures to ensure the confidentiality of information…” could be used.

Professor Cheadle agreed that it ought to be mandatory. This would be achieved by the use of the word ‘must’ as opposed to the word ‘may’. He suggested prefacing with the word ‘if’, and inserting ‘must’ in place of the word ‘may’ into (8)(a)

Mr S Swart (ACDP) asked a question on the pending security clearances. It seemed that these would now be completed by the NIA, despite the assurances that had been given to the Directorate of Special Operations (DSO) that this would not be the case.

Mr Willie Hofmeyr, Deputy National Director of Public Prosecutions, National Prosecuting Authority,  suggested that in respect of (8)(a), because the word ‘entrapment’ had now been included, it would be necessary to move the word ‘random’ in front of the word ‘entrapment’.

Members agreed to these amendments.

Mr Jeffery continued to discuss the new Section 17F, which provided for a multi-disciplinary approach.

Mr Swart pointed to sub clause (7)(a), which made provision for a person to be seconded with his powers, duties and functions endowed by any law governing the powers, duties and functions of their Department or institution. He asked if the wording for this was sufficient, or if there was any danger of unintended results arising from lack of clarity.

Commissioner Jacobs responded that the original draft of the section had made provision for normal secondment, and secondment with powers. Both options had been retained in the current version. If the powers were required they could be assigned, and if they were not then they could be taken away. 

Mr Jeffery pointed out that there could be a need for certain skills and experience, but not necessarily for the powers and functions of the seconding department. If the Commissioner did not specifically make the request then there would not be powers or functions, but if they were requested then the seconded officials would come in with their powers, functions and duties.

Mr Jeffery pointed out that in respect of the proposed Sections 17G and H there were no changes.

Adv C Johnson (ANC) raised the issue of the Ministerial Committee in the new Section 17 I(3).

Ms Kohler-Barnard submitted that one of the issues that had been raised and generally conceded was that the  previous Ministerial Committee never met. There was no suggestion or determination in this draft as to how this was to be dealt with, since the wording was still the same.

Mr Jeffery submitted that the drafting team had decided not to deal with the issue in the Bill. There would be a problem if the Committee was created but could not find the time to meet. The situation was that the President would designate a Ministerial Committee. In effect this meant that an existing Committee could be designated. This consideration had led to the decision not to be prescriptive, and it could be left to Parliament to play an oversight role.

Mr Carrim stated that the Committee’s Report should reflect in terms that the Ministerial Committee should meet regularly. He explained that not every feature of the model adopted by the majority party could be put in the Bill. Some of the issues would have to be addressed in the forthcoming overhaul of the SAPS Act. He also commented that this was an extremely strong provision that emphasised the need for oversight.

The Committee then moved to the deliberation of the new Section 17L, dealing with the complaints mechanism. Mr Jeffery explained the role of the retired judge, who would be appointed in order to investigate complaints by any member of the public who could provide evidence of a serious and unlawful infringement of his or her rights as a result of an investigation by the Directorate; or from any member of the Directorate who could provide evidence of any interference or improper influence, whether of a political or any other nature, that could have been exerted upon him or her with regard to the conduct of an investigation. The reason for requiring a retired judge was to ensure that this person had time to deal with such complaints exclusively and without any competing commitments.

Ms Kohler-Barnard and Mr Swart both asked questions as to how the judge would operate, where he or she would be located, and how the judge and the complaints mechanism could be accessed via the day to day running of the complaints mechanism. They were also concerned about how the judge would deal with a backlog if too many complaints had to be processed.

Mr Jeffery responded that it was unnecessary to include administrative issues in the legislation.

Adv Johnson submitted that the judge could appeal to Parliament in his or her Annual Report for any assistance regarding an overwhelming workload.

Clause 4: Amendment of Section 24, and clauses 5 to 8
The Committee examined the transitional provisions with regards to the transfer of powers, investigations, assets, budget and liabilities, as provided by Clauses 6, 7 and 8, and the amendment of Section 24 of the SAPS Act, as provided for in Clause 4.

Portfolio Committee Amendments to the National Prosecuting Authority (NPA) Amendment Bill: Deliberations
Professor Halton Cheadle presented the amendments on the transitional arrangements relating to labour issues, which he said should replace the originally-proposed wording for  the new clause that would substitute Section 43A of the National Prosecuting Authority Act (the principal Act)

Dr. Delport asked a question on sub clause (2), set out in the document entitled “Draft Labour Provisions”. This stated that a person employed by the DSO had to inform the National Director whether they consented to be transferred to the SAPS. He wanted to know what would happen if such an employee did not consent to being transferred to SAPS.

Professor Cheadle explained that there were two options available to employees of the DSO who did not consent to a transfer to SAPS. Firstly, they could be offered a transfer to a reasonable alternative post or position in any government department. Secondly, they could be offered a transfer to a reasonable alternative post or position in the prosecuting authority, other than any post of special investigator. He suggested to the Committee that instead of offering the employee a severance package should either of these two options not be accepted, then subclause (4) (b)(iii) should instead provide that the employment be terminated. He submitted that there was a provision for any labour disputes that might arise, and that this Bill should provide that the Labour Court decide on any disputes.

Ms Kohler-Barnard submitted there had been much disquiet regarding the continuity of employment, and the ability of former-DSO employees, who were to be transferred to the new Unit, to progress within the new institution. She submitted that sub clause 2(a) was far too open-ended as it did not state to where in the SAPS an employee of the DSO would be transferred. This could lead to the fear that they could be downgraded from their former positions to relatively inferior posts. There seemed to be no guarantee at all that they would be given at least an equivalent position, in line with their qualifications and professional experience.

Dr Delport asked what would happen if a person consented to being transferred, but then did not get a position that they wanted in SAPS.

Professor Cheadle responded that the draft provisions addressed this, in sub clauses 3(b) and (c). These stated that the remuneration and other terms and conditions of employment of employees transferred in terms of subsection (2) could not be less favourable than those that applied immediately before their transfer, and that the transfer contemplated in subsection (2) would not interrupt the employee’s continuity of employment. The employees remained entitled to all rights and benefits, including pension benefits and privileges, to which they were entitled immediately before the transfer.

Mr Swart commented that these provisions dealt with a highly technical part of the transitional phase.  He was concerned that the draft labour provisions were not adequately addressing concerns such as the status of current and ongoing recruitments of new investigators during the transitional period. It was important to deal with this as applicants would very likely be concerned about their prospects. He also asked if there were any mechanisms for skills retention, to avoid human resource leakages in the transitional period.

Commissioner Jacobs responded that there was a representative of the NPA on the selection panel who would assist in the process.

Mr Hofmeyr responded that the issue of the selection process had been discussed extensively, but that no agreement had been reached with SAPS. The ideal situation would be one where investigators knew beforehand exactly where they were to be transferred in the new Directorate.

The Committee then looked to the new Section 43A (7) and (8), which related to the effect of the Amendment Bill upon any investigations performed by the DSO before the date of coming into operation of the new Bill, as well as the pending investigations, which must be transferred to the new Unit.

Ms Kohler-Barnard (DA) expressed her concerns about the continuity of investigations. She asked if it was not possible to stipulate a time period for which the DSO could continue with certain investigations, especially with regard to cases of a sensitive nature.

Mr Jeffery responded that it would be difficult to do this in legislation, as it could result in open ended timeframes that gave no idea as to when these DSO investigations would stop.

Mr Carrim suggested that the Committee Report should highlight the fact that the transfer was not to be done in a way that hindered the prosecution of pending cases. The personnel should as far as possible be encouraged to remain and to continue as before.

Dr Delport commented that sensitive pending cases would end up being decided upon by politicians, because of the involvement of the Minister and a member of Cabinet responsible for Police in the determination of the procedure by which the DSO’s pending investigations would be transferred to the new Unit. He questioned the independence and impartiality of SAPS when it came to dealing with matters such as the case against its own National Commissioner.

Several ANC Members and a SAPS Commissioner responded that SAPS operated under a code of conduct and the Constitution, and were mandated to investigate any criminal matter. They felt that these remarks by the  opposition members were undermining the work of the police in combating crime.

Mr V Ndlovu (IFP) submitted that there should be no cracks in the system that would allow cases to fall away. He asked how a Minister could decide on a procedure if hypothetically speaking he or she was the subject of an investigation by the DSO

Mr Jeffery responded that there was no pending investigation against the Minister.

Ms Sotyu submitted that since SAPS had been capable of investigating allegations of rape against the former Vice-President, Mr Jacob Zuma, they could obviously investigate any matter.

Mr Carrim urged the Committee to continue with its deliberations. He accused the opposition of political posturing on the eve of the election.
 
The meeting was adjourned until 4:30 to allow for preparation of a final document containing all amendments, and to allow members time to prepare for voting and adoption on the amendments as well as the reports of the two Committees.

[Meeting reconvened]

Justice Portfolio Committee Report on the NPA Amendment Bill: adoption
Mr Carrim pointed out several amendments to the draft report including the issue of effective parliamentary oversight:

The Committee will ensure that it exercises effective oversight over the implementation of the transitional provisions and monitors the progress made in this regard.”

He said that while it was recognised that the implementations of the transition provisions in the Bill were the prerogative of the executive, there were aspects that had to be monitored by Parliament within existing parliamentary rules and norms. The two Committees would closely monitor the implementation of the relevant transitional provisions. He said that the Committee was clear that no person, whatever his or her station, was above the law, and the transfer of cases from the DSO had to be effected in a way that did not undermine the processing of cases that were legitimate:

“Pending investigations must be transferred to and continued by the new unit, in accordance with a mechanism determined by the Minister of Justice & Constitutional Development and Minister of Safety & Security.”

The Committee adopted the report as amended.

Safety and Security Portfolio Committee Report on SAPS Amendment Bill: adoption
Ms Sotyu presented her Committee’s report on the SAPS Amendment Bill which did not differ substantially from the Justice Committee’s report. The Committee adopted the report.

Voting on the SAPS and the NPA Amendment Bills
Mr Carrim asked the Committee to consider a procedure for the adoption of the amendments to the two Bills. He suggested that the Committee could vote on the Bill as amended in total instead of a clause by-clause consideration of the amendments.

Dr Delport (DA) formally requested that voting be deferred until the 14 November 2008 to allow his party the opportunity to apply its mind to the amendments proposed and consider any amendments.

Mr Carrim urged the Committee to continue with the finalisation of the Bills. He felt that the opposition was engaging in political posturing on the eve of the election. The Committee had deliberated on the legislation before it for lengthy periods and there was every need to finalise it. Admittedly, the legislation, particularly the SAPS Bill, had been badly drafted and there had been no doubt that it was an inelegant Bill because of its use of many outdated drafting techniques.  He pointed out that the Committee was in agreement about the policy issues and should not be bogged down over technical matters.

ANC members responded that voting deferment was needless in view of the progress achieved in finalising the legislation. They castigated the opposition for trying to use its parliamentary privileges to derail the legislative process.

Mr Ndlovu (IFP) lamented the over hasty approach in finalising the legislation and commented that this indicated the determination of the ruling party to pass the legislation ‘no matter what’.

Mr Carrim (ANC) asked for a vote in consideration of Dr Delport’s request. The opposition were outvoted by the majority party and the Committee resolved that voting should proceed.

The Committee adopted the SAPS Amendment Bill and the NPA Amendment Bill as amended after a motion of desirability and a vote in which the majority party outnumbered the opposition parties by a margin of 12 votes.


Meeting adjourned.

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