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

NCOP Security and Justice

10 November 2008
Chairperson: Kgoshi L Mokoena (ANC, Limpopo)
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Meeting Summary

The South African Police Service (SAPS) and Department of Justice briefed the Committee on the South African Police Service Amendment Bill (SAPS Bill) and National Prosecuting Authority Amendment Bill (NPA Bill). A presentation on the SAPS Bill explained each of the clauses. The NPA Bill was tabled with the amendments marked, and it was noted that this was fairly straightforward, with the main amendments relating to the transitional provisions, which were now included in both Bills and which had to be read together.

At the start of the discussion session, a DA Member noted that his party and “millions” of voters knew that the decision to disband the Directorate of Special Operations (DSO) had been taken at Polokwane, and was a political decision aimed at dealing with the pending cases against Jackie Selebi and Jacob Zuma. The Chairperson took issue with this, noting that these Bills had emanated from Cabinet and stressing that this Committee would not be rubber stamping anything but would be giving proper consideration to all issues. The question was asked how many people had been opposed to the principle and how many supportive of it, in the public submissions. Other questions by Members addressed the findings of the Khampepe Commission, the continuation of investigations already started, including the case against Jackie Selebi, how many of the top officials of the DSO had left or had resigned, and whether there were sufficient checks and balances to ensure the effective functioning of the new Directorate for Priority Crime Investigation (DPCI or Unit), the reasons why Clause 3 still allowed for an investigating directorate to be established, and the situation with deployments, salaries that may be higher and how parity could be achieved. Members questioned whether the present intelligence gathering capacity was sufficient, questioned whether a complete re-vetting exercise should not be undertaken, and how this would be done, whether the judge to head the complaints mechanism should not be appointed by the Chief Justice, and how conflicts and duplications between this and other mechanisms would be avoided. The wording of the transitional provision in relation to the continuation of cases was questioned, and Members also queried the wording in relation to the meetings of the Ministerial Committee, how the situation of prosecutors being both player and referee was to be avoided, and how intelligence was to be gathered. Members also questioned whether stronger wording might not be needed in relation to Parliament requiring the Head of the DPCI to report to it.

During the afternoon session, Members continued to debate the Bill. A DA Member again voiced the view that the decision to dissolve the DSO was based on political decisions, but delegates from both the SAPS and the DSO argued against these objections, and the matter was not pursued further. The recruitment and selection of personnel for the new Directorate for Priority Crime Investigation (DPCI), received considerable attention. Members stressed the importance of vetting procedures and security screening to help establish a new, clean unit, and posed questions about mechanisms that would be in place. Questions were also asked about the secondment, the resignations from the DSO to date and the likely vacancies, and general recruitment strategy. The financial implications of the relocation of resources from the DSO to the DPCI and budget capacity was interrogated. In addition, the question of Parliamentary and Ministerial oversight of the DPCI received considerable attention, and the same applied to mechanisms and procedures intended to deal with complaints against the DPCI. There was also much discussion around security clearances and standards of integrity. There was also questioning of the status of investigations, particularly those that were at an advanced stage or were particularly complex.

Meeting report

South African Police Service Amendment Bill (SAPS Bill) and National Prosecuting Authority Amendment Bill (NPA Bill): Briefings
The Chairperson noted that the Committee had set aside time for meetings on every day in the week to finalise the Bill, but that the Committee would sit until it was satisfied that it had sufficient information and debate on the matter. This Committee had been part of the public hearings in provinces, and had been present during the public hearings held by the National Assembly. This Committee would reserve rights to clarify any issues with stakeholders, but would not necessarily hold full public hearings in addition to those already held in the provinces.

Mr J Le Roux (DA, Eastern Cape) noted that the meeting had started very late, and that there were only two members present. He noted that "all in South Africa know that this is a done deal and this is a charade" but he still thought that this was appropriate for an apology to be tendered to the presenters.

The Chairperson challenged Mr le Roux's comment on the "done deal", pointing out that the NCOP had not in the past rubber-stamped some very important Bills, including the Regulation of Interception of Communications Bill and the Child Justice Bill. This Committee would give due consideration to all matters.

Dr Philip Jacobs, Assistant Commissioner, South African Police Service, proposed that since this Committee had been part of the initial briefings, the presenters should commence with the presentation on the Bill as it stood at the moment, with a focus on the contents. He said that some provisions from the original SAPS Bill were transferred to the NPA Bill.

He noted that editorial amendments and spelling errors had been corrected, and a reprint of the Bill was before the Committee.

Clause 1 amended Section 5 of the South African Police Service Act (the principal Act), and he noted that a new subclause (d) had been inserted to refer to members of the Directorate for Priority Crime Investigation (DPCI).

Clause 2 amended Section 16, which provided for organised crime, crime that required national prevention or investigation or crime requiring specialised skills for its prevention or investigation. This section set out the mandate and type of cases that the DPCI would consider, and was aligned to the National Prosecuting Authority Act (the principal NPA Act). Subclause (2) had been deleted and replaced, and he read out the new subclause (see attached presentation for details). An explanation of the words "organised fashion" was then inserted as a new Subsection 16(2A). A schedule of offences, added to those of Section 16(2) of the principal Act, was also inserted as a new Section 16(2)(iA). This integrated the offences that had appeared in the original Bill. The full schedule was set out on Slide 9.

Clause 3 inserted a new Chapter 6A. The new Section 16A firstly provided for definitions of "Directorate", National priority offence" and "operational Committee”. The new Section 16B provided for the application of the Chapter, and the underlying principles to ensure that the Directorate implemented a multi-disciplinary approach and integrated methodology, had the necessary independence and was equipped with appropriate human and financial resources, as well as being staffed through transfer, appointment and secondment. The new Section 16C set out the staffing of the Directorate, which would have a Deputy National Commissioner as the Head, appointed by the Minister, in concurrence with Cabinet, and others appointed by the National Commissioner on the recommendation of the Head, including an adequate number of legal officers, and persons seconded from other Government departments or institutions.

The proposed new Section 17D set out the functions of the DPCI, which were essentially to prevent, combat and investigate national priority offences selected by the Head of the Directorate, but subject to policy guidelines issued by the Ministerial Committee, or offences referred to it by the National Commissioner, again subject to guidelines and extension of existing investigations by the Head in the interests of justice, or the public interest, including offences suspected to be connected with the subject of the investigation.

Section 17E set out the screening and integrity measures. Comm Jacobs said that this would be done in terms of the National Strategic Intelligence Act (NSIA), and existing valid and required level security clearances would be recognised. Financial interests of members and their immediate family members must be disclosed periodically. Further integrity testing, including entrapment, polygraph testing and tests for drugs and alcohol were to be allowed.

The National Assembly had been strong in its view about the method by which the DPCI must function. This was set out in the proposed Section 17F. The National Commissioner could request secondment of personnel when required. The Directorate was to be assisted by seconded personnel from the Financial Intelligence Centre (FIC), Department of Home Affairs (DHA) and South African Revenue Service (SARS). The National Directorate of Public Prosecutions (NDPP) was to ensure that a dedicated component of prosecutors was available to assist and cooperate with investigators. The Crime Intelligence Division of SAPS would also assist. The National Commissioner may request that seconded personnel retain their powers from the seconding Department.

The proposed Section 17G provided that remuneration, allowances and other conditions of service were to be regulated by Section 24 of the SAPS Act.

The proposed new Section 17I provided for a Ministerial Committee, to include the Ministers of Safety and Security, Finance, Home Affairs, Justice, and Intelligence. This was to decide the policy guidelines for the functioning of the Directorate, case selection by the Head, referral of cases by the National Commissioner and procedures for interdepartmental cooperation and assistance. The Committee was to meet as regularly as necessary.

The proposed new Section 17J was a new addition to what had been in the original Bill. An Operational Committee was established to review, monitor and facilitate support and assistance of government departments and institutions, and secondments from them to DPCI. It was assigned with functions by, and had to report to the Ministerial Committee. It was to consist of the National Commissioner, the Head of the Directorate and the NDPP, and the Directors General of the Departments of Finance, Justice, Home Affairs, the Heads of the National Intelligence Agency (NIA) the Financial Intelligence Centre (FIC), the Commissioner of SARS and other persons as may be requested. The National Commissioner would be the Chairperson.

The proposed Section 17K dealt with Parliamentary oversight. Parliament was to effectively oversee the functioning of the DPCI and Committees, and the National Commissioner was to report, in his Annual Report, on the DPCI. The Head of the Directorate must also report if requested by Parliament to do so. The Minister was to submit policy guidelines on selection and referral of cases for approval to Parliament. The Minister was further to submit a report within three years to Parliament on the legislative amendments that may be required to improve the functioning of the DPCI.

The proposed new Section 17L was another new section, and this set out a complaints mechanism. Persons feeling aggrieved by specific investigations, and with evidence of unlawful infringement of their rights, as well as members of DPCI who may have complaints about improper influence or interference regarding the conduct of investigations, could lodge a complaint with a retired judge, appointed by the Minister, who would be the head of the mechanism. The powers of the judge were over and above those of the Independent Complaints Directorate (ICD). There was a specific provision that provided that this section could not be used for a "fishing expedition" or to delay or stop investigations. The retired judge would not be competent to investigate intelligence matters, as these were already dealt with the Inspector General of Intelligence.

Clause 4 dealt with amendment of Section 24 of the principal Act, which in turn dealt with regulations. This new clause expanded the power of the Minister to make regulations also in respect of matters that were covered by this Bill.

There were a number of transitional arrangements, which must be read together with those of the NPA Bill. From the "fixed date" to be determined by the President, all powers and functions formerly performed by the Directorate of Special Operations (DSO or Scorpions) must be performed by the DPCI. The investigations of the DSO would then be conducted as if this Act had been in force all the time. The remuneration of DSO members who had been transferred, which might be more favourable than the Section 24 remuneration, would remain in force, but for future personnel there would be parity.

Clause 7 related to the selection of personnel, by a selection panel, including representatives of the NDPP, the former special investigators of the DSO, members of SAPS from the Organised Crime and Commercial Crime components and other members of the service. The criteria were set out, and the selection would be subject to the SAPS Act and the Public Service Act.

Clause 8 set out that there should be joint audit teams in respect of personnel, budget, finances, information management and equipment of the DSO. The National Commissioner and the National Director of Public Prosecutions must report on a quarterly basis on progress made.

Clause 9 said that the Bill must come into operation on a date determined by the President by proclamation in the gazette.

NPA Bill: Briefing by Department of Justice (DOJ)
Mr Johan de Lange, Principal State Law Adviser, Department of Justice, took the Committee through the document, setting out all the changes that had been made. He read through the various changes, page by page (see attached document).

On page 10, he referred to Clause 3, which dealt with the possibility of investigating directorates being set up. Although this was not anticipated for the moment, it had been decided that this provision, which dated back to the NPA Act as it had read prior to the setting up of the DSO, should stand, so that a proclamation could be issued in future, if necessary. Such a proclamation would be done on the recommendation of the Ministers of Justice and the Cabinet Member responsible for policing, and the National Director.  It was not foreseen that this was likely, but it was necessary to have these investigating directorate provisions, because this was directly linked to Chapter 5 of the NPA Act, which contained the Section 28 powers that were needed when a Director of Public Prosecutions was needed to investigate.

Changes were made to Chapter 3A, Section 23(2), which were consequential amendments.

Mr de Lange highlighted the new clauses that gave effect to the principle of cooperation.

He pointed out that there were more consequential amendments dealing with budgets and separate offices. He noted that all the regulations pertaining to the DSO were being made by the Minister of Justice and there would be no need for the existence of these provisions any longer.

In respect of the transitional arrangements, he pointed out that there were still some provisions in the NPA Act relating to the former Office for Serious Economic Offences (OSEO).

The major difference between the Bill as introduced and the version approved lay in Chapter 7, dealing with the transitional provisions. 

Mr de Lange noted that the NPA Bill essentially was intended to bring the NPA Act into line with the relocation of the DSO, but it now also dealt with transitional arrangements. The Bill as introduced did not contain the transitional arrangements, which were all contained in the SAPS Bill. The drafters had thought it would be more prudent to deal with all together under one Bill, but this potentially became a challenge at the implementation stage. Therefore it was decided that the matters dealing with NPA responsibilities should be dealt with in the NPA Bill, and the SAPS transitional matters should be dealt with by the SAPS Bill. The two sets of transitional provisions must be read together.

He noted that the first two subsections of Section 43A of the principal Act were being repealed. The new subsection (1) was a definitions clause. There was also a fixed date provision - to be determined by the President " by proclamation" This was not to be confused with the date of commencement of the Act. The fixed date determined when matters would start to happen.

The proposed new subsection 42A(2) said that prior to the date any person employed by the DSO must inform the Director if they consented to be transferred. Only those who did consent would be transferred. He read through the provisions, relating to transfer and employment.  He pointed out that many of the provisions were mirroring conditions in the Labour Relations Act. He indicated that a severance package was provided for in respect of those who did not transfer, and it was linked to the Public Service Act. Any disputes were to be referred to the Labour Court for determination.

He indicated that any investigations pending before the fixed date must be transferred to the DPCI, with a mechanism to ensure that the investigations were not prejudiced, and this mechanism was to be determined by the Minister of Justice, in consultation with the Minister of Safety and Security and the NDPP and the National Commissioner. Any liability incurred by the DSO with effect from the fixed date would be transferred to the Cabinet members responsible for police. Further provisions were included in respect of those who were to investigate the matters.

Mr de Lange referred members to the Bill itself for the text of Clause 15, noting that this dealt with the short title and amendment, and also came into operation on a date to be determined by the President by proclamation in the Gazette.

Mr Le Roux wished to put forward the position of the DA. He noted that the DA and “millions of voters” knew that a decision was taken at Polokwane, allegedly because of the cases against Jackie Selebi, and Jacob Zuma, and the tension that the actions of the Scorpions had caused to government. He said that the general election would prove the point, as the public would be given the opportunity, by their vote, to voice their feelings.

The Chairperson noted that the ANC fully supported the two Bills, although he felt that some changes could be made for improvement. He did not think that the two Bills were aimed at protecting Members of the ruling party – and this had been explained several times. These Bills had emanated from Cabinet, and it was Cabinet’s view that the purpose was to assist in improving the way in which crime was being dealt with in the country. He disputed the DA's statements and hoped that the matter would be laid to rest.

The DA believed that the DSO must stay where it was currently. If that was impossible, then there should be a separate unit that was autonomous and separately funded to carry out the “wonderful work” the Scorpions had been doing up till now.

Comm Jacobs pointed out that the Khampepe Commission had said that the DSO could remain where it was. However, there were a number of issues that needed correction. These included the lack of coordinated relationships between DSO, SAPS and Intelligence, lack of ICD oversight, no compliance with vetting procedures and liaisons with DOS and foreign investigations, and alleged leaks to the media. Further problems were defined as the fact that the DSO had established crime intelligence gathering outside its mandate, there was disjunction in political accountability and oversight, and the DSO had functioned completely separately from the Minister of Safety and Security. In the discussions in the joint Committees it was conceded that there were issues needing to be addressed. Some of the recommendations of the Khampepe Commission were not possible to implement – such as that the President should use Section 97 to transfer the responsibility of the Minister of Justice to the Minister of Safety and Security, as in law there were no such powers that could be transferred. Keeping the DSO within the structure of the National Prosecuting Authority (NPA) would not correct the fact that the Minister of Safety and Security, who was to ensure that crime was investigated and combated, did not have command over the DSO. Implementing the Khampepe Commission recommendations as they stood would still have meant dual responsibility, and the Minister of Intelligence would also have some responsibilities. There was a disjuncture in political accountability, and this Bill attempted to address that problem. The Minister responsible for SAPS would be responsible for the DPCI and there would be an integrated function to ensure that DPCI addressed priority crimes in terms of a scientifically determined process.

Mr le Roux asked why the DSO should not be allowed to continue the investigations already commenced.

Comm Jacobs said that the Bills provided a good solution, in that the Ministers of Justice and Safety and Security, together with the National Commissioner and the NPA, would ensure that all cases transferred were done in a structured way that was accountable.

Mr le Roux asked who would conduct the case against Jackie Selebi.

Comm Jacobs responded that the investigations in the Jackie Selebi case were already well under way. The mechanism provided for must ensure that investigations must continue as they were supposed to.

Mr le Roux asked how many of the top officials of the DSO had decided to leave or had already left.

Mr Willie Hofmeyr, Deputy National Director of Public Prosecutions, NPA, responded that Mr Leonard McCarthy had left, as well as one Senior Manager and two Heads of Regional DSO divisions. The impression was gained that the reasons for leaving related to the uncertainty of the future of the unit, although this was not the exact reason given.

Mr N Mack (ANC, Western Cape) noted that he would like to avoid party differences. He noted that there were many public hearings, which had been well attended, and he wished to query how the "millions" quoted by Mr le Roux who were allegedly opposed to the dissolution of the Scorpions could be quantified, as nobody had been prohibited from attending the public hearings and speaking. There were many concerns raised in a constructive way during those hearings. The NCOP could not say this was a "done deal". The NCOP had never been a rubber stamp. He himself, as an ANC member, had many queries that he wished to have satisfied.

Mr Mack asked whether, during the transition and after it, there were sufficient checks and balances to check up on the new investigating unit. He was happy that Parliament was to be involved, but questioned whether the “request” for the DPCI to appear actually amounted to an ability on the part of Parliament to force them to attend.

Comm Jacobs responded that some of the mechanisms, such as the Ministerial Committee, was subject to checks from Cabinet level and the Operational Committee would take matters to an operational level. The National Commissioner must include a report on the DPCI in his Annual Report. The Head of the DPCI (also referred to as the Unit) could be called to Parliament, and this was similar to the current situation where other officials had been asked to come to Parliament and give explanations.

Mr de Lange noted that it was difficult for the Department of Justice to "comment" as requested by the Members. One of the issues highlighted by Judge Khampepe reflected strongly on the failure of the inter-Ministerial Committee and Parliament to exercise the necessary oversight. The Department felt that the checks and balances essentially were the product of the oversight exercised by Parliament. There was provision for the inter-Ministerial Committee and it would be up to Parliament to determine how to exercise those functions. He noted that since many of the investigations were in the public eye, it would be difficult for the new Directorate to hide anything. Oversight would come to the fore if there were suspicions that anything was not being done.

Mr Mack noted that much time and energy had been spent on the Bill. He questioned Clause 3, amending Section 7, where it was stated that an investigating directorate could be established if the need arose. He asked if there were guidelines, in what circumstances this directorate was likely to be established, if it would be established when the situation became "out of hand" and what "out of hand” meant. He hoped it would not be akin to the State of Emergency declarations, which were done without apparently sufficient or cogent reasons.

Comm Jacobs said that SAPS had also questioned this clause. SAPS would interpret this to be essentially a transitional provision, as investigative capacity was to be transferred from NPA to SAPS. Within three years the Minister would have to report back to Parliament on any changes that might be needed on the legislation, and this was probably one of the issues that would be raised.

Mr de Lange added that the NPA Act allowed for establishment of the NPA in 1998, and this included provision for investigating directorates. At the time the OSEO had existed, and it was then converted to an investigating directorate of the DSO. The NPA Act then made provision for the establishment of extra investigating directorates, and one was so established. In 2000 the DSO was introduced, and the two directorates then existing became part of the DSO. Following deliberations of Parliament at the time that DSO was established, it was decided to retain this provision in the NPA Act, notwithstanding the establishment of DSO. When the policy decision was taken to disband the DSO, the clock was effectively turned back to the position as it had existed in 2000. However, the policy was also that no other provisions relating to the NPA or other investigating directorates must be repealed. The drafters could not simply repeal the whole of Chapter 5, for this was based on the existence of an investigating directorate. He agreed with Comm Jacobs that there must be a review after three years, and the investigating directorate provision would be looked at again at that time. With regard to the guidelines, he pointed out that the current law left the decisions to the NDPP, the President, and the Minister of Justice. If any new investigating directorate was to be established it would have to be done by way of proclamation and that would have to include the mandate. He could not offhand think of a likely situation, but suggested that perhaps cyber crime, a very specialised field, whilst not having a high enough priority profile to draw the DPCI into full-blown investigations, might nonetheless justify the establishment of an investigating directorate.

Commissioner Jacobs then added that the fact that the power to appoint lay with the President did not mean that such a directorate would need to be set up before the powers of Section 28 could be brought into play.

Mr Mack noted that an employee of the DSO could indicate that he or she wished to be deployed to another department, not necessarily SAPS. He noted that employees transferred would continue to earn at their present levels. He asked when and how parity would be achieved. He also asked how this would affect officers who wished to be deployed to another department, and what was meant by parity, namely whether other salaries would be brought up, or whether this one salary would come down, and where the budgets would come from.

Comm Jacobs said that in the lower ranks the SAPS members did sometimes receive higher amounts than DSO personnel. In the higher ranks, especially at management service level, there tended to be parity of pay, if not quite of ranks.

Mr Hofmeyr noted that a selection competency assessment process would be carried out, so that people would be placed appropriately. He confirmed that the disparities were not so dramatic and tended to arise by reason of the fact that the NPA’s salary bands were broader, and more similar to the Occupation Specific Dispensation (OSD) that government was currently introducing.

The Chairperson noted that some of the people who might have left SAPS for the DSO some time ago could find themselves in the situation where, on their reincorporation into the DSO, they were senior to their former supervisors or enjoyed larger salaries. This could create tension in the new Unit. 

Comm Jacobs said that there were a number of criteria laid down when people were incorporated into SAPS. Salary alone would not determine a person' position in the directorate. The placement would be according to criteria.  It was not possible to reduce salaries, but how the person would be deployed within the new directorate would be subject to the competency testing.

Mr Hofmeyr also explained that in fact very few SAPS members had actually joined DSO – as most were transferred across to assist rather than becoming full time members of the DSO.

Mr Mack referred to page 7 of the SAPS Bill presentation, and asked how "distinguishing characteristics" were defined in the new Section 16(2A), as he feared that without proper checks this could give rise to victimisation.

This question was not answered.

Mr Mack noted that the DPCI's function would include "prevention". He said that intelligence services must be up to standard, but regrettably at present he did not think that there were sufficient intelligence services in SAPS, and he asked if something would be done to strengthen this. He felt that this was a major challenge, especially when it came to people outside the country using South Africa as a springboard for organised crime.

Comm Jacobs noted that one of the issues raised in the Khampepe Commission was how intelligence was dealt with in the DSO. This Bill said that the Intelligence Division would provide intelligence, notwithstanding the powers of Intelligence that SAPS normally had. The NSIA provided that SAPS had the functions of gathering and use of crime intelligence, which was widely defined. There would be some functions that would be regarded as intelligence. However, there had recently been a reshuffling of crime intelligence to make it a national division. The organised crime threat process analysis was set up to identify priority crimes and organised crime projects, carried forward into the Organised Crime Initiative, which was prosecution-guided, and where 87 prosecutors had been designated. Many initiatives were ongoing on intelligence. There must be linkage and interaction between different intelligence structures. Once again, this was not mentioned in the Bill. SAPS intelligence was part of the coordination of the whole strategic intelligence, which had not been the case with the DSO. Mr Mack had used the word “springboard" and the SAPS and Intelligence Services, through Interpol, were aware that many people were seeking refuge in South Africa.

Mr Mack felt that there were some contradictions in the proposed new Section 17E, in relation to temporary security clearances, and re-vetting. They seemed to suggest that existing clearances would mean that people should not be re-vetted, and he questioned this approach, believing that everyone should be vetted before coming across to the new Unit.

The Chairperson also thought that vetting was necessary. He noted that there were some bad elements in the DSO, as pointed out by Judge Khampepe. He felt that the new DPCI (Unit) must not be painted with the same brush.

Comm Jacobs said that Section 2(a) of the NSIA dealt with security clearances in all intelligence structures and there were uniform regulations, made by the Ministers of Safety and Security, Defence and Intelligence, which related to the way in which the security clearances were done. Some required polygraphs, or other tests. This was uniform across all intelligence structures. The institution providing a clearance would issue that clearance for five years, but it would be limited to certain information and would be valid as long as the person remained competent. However, it could be revoked at any time, if there was information showing that the certified person had become a security risk. That was why this Bill made provision for random integrity testing and periodic testing. The Head of the DPCI could shorten the usual five year period.

Comm Jacobs said that some DSO members might have received clearance from NIA. Some SAPS members were in possession of security clearances from the Crime Intelligence Division, which equally were valid for five years. If a person was being selected for appointment to the DPCI, and had a security clearance by one of the intelligence structures, that would be recognised, unless there was information to suggest that this person posed a security risk, in which case the institution granting the clearance would be asked to withdraw it.

Comm Jacobs conceded that a temporary clearance was recognised at the moment. Obtaining the clearances took some time, so the temporary clearance could be issued while the final vetting was ongoing, but was only granted for three months at a time, and only when there had been an application already submitted for the re-vetting. A person with a temporary clearance would not be given a final appointment until the vetting was also finalised.

Mr Hofmeyr added that part of what had been proposed was ongoing integrity measures, so that if there were “bad apples” in the DPCI they would be dealt with, but he stressed that there must be proper evidence before a security clearance would be revoked. Even within the vetting procedure there were appeal procedures, so there was a proper and formal process.

Mr F van der Merwe (DA, Free State) believed that the Scorpions should stay where they were, as they did a good job. He was worried about the retired judge being appointed by the Minister, and would have preferred this judge to be appointed by the Chief Justice.

Comm Jacobs noted that the appointment was by the Minister of Safety and Security, but that this must be in consultation with the Minister of Justice and the Chief Justice.

Mr de Lange said that technically there were no “retired” judges - but this had been defined to mean a judge who had been discharged from active service. It had been the recommendation of his Department that the Chief Justice must be involved in the process.

Mr van der Merwe asked it was possible to give an indication how many people in the public hearings had commented that they were in support of the Scorpions staying where they were, and how many had been opposed to this.

Comm Jacobs noted that the Portfolio and Select Committees, in their joint meetings, had discussed this but he had not kept a note of this. However, he recalled that there was an exposition of the outcome of the hearings, to which Members could probably refer.

The Chairperson spoke to the transitional arrangements, asking whether the legislators had the right to direct prosecutors to continue with or stop doing cases, or whether this should not be the function of the courts. He was worried about this clause, and did not believe that it should remain in the new Act even after the cases had been dealt with

Mr de Lange said that, as far as pending investigations were concerned, the transitional provisions were not a direction to the authorities as to how to conduct the proceedings. They were rather aimed at closing technical loopholes, and to ensure that a person being prosecuted could not turn around and say that he had been charged under an Act that had been repealed and that this would nullify the case. 

The Chairperson thought it was too vague to say that the Ministerial Committee must meet "regularly".

Comm Jacobs said that the original Bill had stipulated a time, but the Portfolio Committee had decided to reformulate this. It was a policy matter, although the way in which the Ministerial Committee was structured was that the Cluster Committee could possibly be used, or one of the other existing structures, if the President decided not to appoint a completely separate committee. This would enable the functions simply to be slotted into the activities of existing Committees.

Mr de Lange noted that this provision was not contained in the Department of Justice’s Bill, so he could not really comment, but he did note that this had been the subject of much deliberation at the Portfolio Committee, who had finally decided that Parliament should not be overly prescriptive as to how the Executive must manage this matter. However, Parliament would be very sensitive in its monitoring as to whether the Committee was meeting and how it was working.

The Chairperson commented that the National Conventional Arms Control Committee (NCACC) had been set up under a very casual arrangement, and that this was not as effective as it could have been, allegedly causing major contracts to be lost because of its inefficiency.

The Chairperson asked how it could be ensured that the Operational Committee and the ICD, Public Protector, South African Human Rights Commission and other entities would not clash or cross over in their functions. He was not sure what the Bill was trying to achieve. He asked why an aggrieved person could not make a decision to follow another route for complaints.

Com Jacobs noted that the mandate of the ICD was quite wide, but related to misconduct by police members, including corruption. The mandate of the retired Judge heading the complaints mechanism set up by this Bill would be to investigate the impact of a specific investigation on a specific person, or the allegations of a member of the DPCI who might complain of interference with the operation of his investigations, or to investigate allegations around a certain investigation at the request of the Head of the DPCI. If complaints more properly fell within the domain of any Chapter 9 institution, or the ICD, the judge would be able to refer them to the correct institution. The fact that this mechanism had been created did not affect the rights of any person to go to any other institution, including the Inspector General of Intelligence, but there was unlikely to be a clash since the most appropriate institution would be likely to handle the final investigation. The judge would have to report to the Minister and Parliament as to how he or she was dealing with a matter.

Mr de Lange agreed that the judge would not be removing any mandates from the existing institutions. There may be an overlap, but not a limitation.

The Chairperson asked how the issue of prosecutors being "referee and "player" was addressed.

Mr Hofmeyr noted that the prosecutors and investigators would have the same lines of command. Investigators would be subject to the professional oversight of SAPS and the prosecutors would be subject to the NPA line of command. There would be cases where prosecutors and investigators worked closely together but it was accepted that prosecutors should not become a witness or have to testify in the same matter in which they were prosecuting. The issue of strengthening the legal capacity had been discussed, and there had been consideration given to whether prosecutors should perhaps become legal advisers rather than prosecutors, but these were practical day to day workings. The Bills did clearly separate out the roles and make them part of separate institutions, subject to their own accountability.

The Chairperson questioned the gathering of intelligence. There had been some comment on this in the past. The Khampepe Commission had also commented on this and he asked how this was being controlled, and what steps had been introduced by the Bills to address the problems.

Comm Jacobs noted that SAPS had a Crime Intelligence gathering mandate, and that the Crime Intelligence Division would provide intelligence support. There was provision in the NSIA to request the NIA to assist, but whenever the assistance of NIA was required, Crime Intelligence could assist also. The main intelligence support would come from he Crime Intelligence Division, and the Inspector General for Intelligence had competency over intelligence in crime, reporting to the Joint Standing Committee on Intelligence. There was also provision in the Criminal Procedure Act for cover through the Directorate of Public Prosecutions.

The Chairperson picked up on a question asked earlier by Mr Mack, and noted that the Head of the Directorate was expected to report "on request" to Parliament, as opposed to other entities who were to report annually.

Comm Jacobs noted that the Bill was structured to give more oversight. The Head of the DPCI must report to the National Commissioner, who must include a report on the DPCI in his Annual Report to Parliament. This provision for a direct report by the Head of the Directorate was a direct approach – that could be called for as often as Parliament desired. If Parliament wanted more information it was likely that the National Commissioner would be asked to accompany the Head of the DPCI.

Mr Mack reiterated that the word "request" was used. He asked what would happen if the head refused to come.

Comm Jacobs said that the normal subpoena powers of Parliament would apply.

Mr Mack asked why this was not specified.

Comm Jacobs said that the powers of Parliament could not be regulated through this Bill, which did not take away any power that Parliament already had. If Parliament’s request was not acceded to, it could subpoena the person.

Adv John Welch, Prosecutor, NPA, noted that the accounting officer was the National Commissioner of Police who was obliged to submit a report annually. However, the Head of the Unit, who would be a Deputy Commissioner, would be asked to address Parliament on specific issues or activities. Parliament still retained its inherent right to summon a person to appear and that person must oblige.

The Chairperson asked if this could not be phrased differently. He cited the recent example where the Director General of Home Affairs and the regional directors had declined to appear before the Portfolio Committee on Home Affairs, and had to be summonsed. He would like to avoid such a situation.

Adv Welch noted that he would look into how this could be done. Terms such as "when requested, shall..." could possibly be used.

Comm Jacobs said that he would not like to write procedures for Parliament into this Bill, as those procedures appeared elsewhere. He heard the concerns, but wished to express some caution on the legal principles.

Ms Ntombi Mnyekiso, Senior State Law Adviser, Office of the Chief State Law Adviser, agreed with Comm Jacobs and agreed that the obligation was already clear enough. She also thought it was unwise to try to insert a Parliamentary Rule into the Bill.

The Chairperson maintained that he would like to return to this point.  

At the start of the afternoon session, Mr Mack referred to some earlier comments made by Mr J Le Roux (DA, Eastern Cape) which he had found disconcerting. He stressed that his response should not be viewed as adversarial, seeing that a good working relationship existed between them. He took issue with the suggestion by Mr le Roux earlier that these Bills had emanated directly from decisions made at Polokwane. He noted that there had been long discussions at Stellenbosch and Mafikeng as well. The Minister of Safety and Security had been criticised severely for high crime rates, but the fact remained that he had no oversight over the Scorpions. With the Directorate for Priority Crime Investigation (DPCI), the situation would be different. The Minister would have real authority over the new unit. He emphasised that it was the duty of Parliament to substantiate the policies set out by the Constitution. As a Member of Parliament and of the ruling party, he saw it as his duty to serve those who had voted him in, by creating good legislation.

The Chairperson congratulated Mr Mack and other Members on containing their frustrations in the presence of the media that morning, and keeping calm. He then called for proposals to improve the new Bill.

Mr Mack referred to the envisaged security screening and integrity measures for appointment to the new Directorate. He deemed it crucial that the vetting procedures be upgraded. The DPCI had to be a new, clean unit, and there had to be new vetting procedures, to have a start from the clean state with the right people. There was reference to secondment by the National Commissioner. He asked, however, how secondments would be evaluated. He questioned whether, when the Director General wished to second people, he would do this on the basis of his personal preference.  He enquired about recruitment strategy, and whether it would be possible to second persons from outside.

Comm Jacobs responded that transitional measures would be established. A panel would be appointed, and the Head of the Unit would lead the selection process. He said that the new Section 17C to be inserted by the SAPS Bill was aimed at the future. It provided for “head-hunting”, to recruit from the DSO and the SAPS, of suitable people. With regard to seconded members, he pointed out that the new Section 17E provided for security screening. There would be no appointment without stringent security screening. This implied that some persons would have to be subjected to re-vetting.

Mr Mack referred to a statement made in relation to the Memorandum on the Objects, in the briefing document, that financial implications arising from the relocation of resources to the DPCI would be accommodated within the Departmental budget. There had been a comment that this would not have a negative effect on service delivery. He insisted that it could not be so forthrightly assumed. He questioned whether budgets indeed would be sufficient. He pointed out that the new Unit would require considerable resources.

Comm Jacobs replied that in terms of budgeting and resourcing, the situation was not new, as the SAPS already performed the types of functions being envisaged. The only real additional costs involved were related to the transfer of personnel. DSO members were employed in the provinces, and this was catered for by provincial structures. He suggested that possibly not too many personnel would have to be transferred, and that therefore the budgets should be sufficient. During the remainder of the financial year a clearer picture would emerge of the likely costs.

Mr Mack asked about confidentiality, and whether disciplinary action would be taken against those who leaked sensitive information to the media. He referred to situations in the SAPS where members had been shown inclined to protect each other. He questioned whether, for instance, a person wishing to report on irregularities to the ICD, would be able to count on protection.

Comm Jacobs replied that the problem of media leaks should be addressed by vetting. He noted that with sensitive crimes, a suspect should not know in advance of a charge being laid that he was being investigated; this should only be revealed to him when he was formally charged. As regards whistle blowers, he pointed out that a member of the DSO or of the public would be able to approach the retired Judge who was to head up the Complaints mechanism. In addition, the Head of the Directorate could ask a judge to investigate allegations of misconduct in the unit.

Mr Mack noted that there was a provision in the Bill that Parliament could request the DPCI or its Head to appear, and he wondered if this would provide adequate oversight. He commented that Parliament needed oversight, so that things would be out in the open. When an Executive authority became too sensitive to share information, then democracy was compromised.

Comm Jacobs advised that Parliament would have the authority to decide how often the Unit would appear before it, and to enforce the obligation to appear. Wide discretion was granted to Parliament.

Mr Le Roux acknowledged that the Scorpions had made mistakes, like the leaking of information, for instance. Yet he remained convinced that the DSO could have been modified in a less radical manner. He thought that the problematic issues had already been sorted out. As he saw it, the decision to disband the Scorpions had been made on political grounds.

Comm Jacobs responded that the problem of Ministerial responsibility could not be solved in any other way. There were mechanisms in the new Bill that Ministers could resort to, when dealing with priority offenses. There would be a strengthened national capacity to address high echelon crime. However, the matters in the provinces also needed to be addressed. There had to be an ability to deal with an overflow of cases. The DPCI would have offices in the provinces. Scientific methods would be employed to establish which crimes occurred consistently, and therefore had to receive priority attention. For instance, in the non-coastal provinces, there had been an outcry against crimes like ATM bombings and rape. In the case of the former, it was suspected that there might be involvement of organised crime syndicates. National investigative capacity would be strengthened, without weakening the provinces.

Adv Nhlanhla Ngidi, Divisional Head, Directorate of Special Operations, expressed his agreement with Comm Jacobs concerning the fate of the Scorpions. The case for dissolution had been put, and things had moved beyond that, to implementation. The political issues had been dealt with in submissions to the Portfolio Committee.

He returned to the issue of vetting. He said that top secret clearance would be required for members of the new Unit. Standards would be high. Candidates would need unblemished track records. Vetting would be renewed every five years. The Unit would be built around deserving people and selection criteria would be very strict.

Comm Jacobs added that vetting was all about integrity. The Minister of Intelligence had to determine the manner and scope of mechanisms employed. Procedures were laid down in the Intelligence Act. The process could not be abused. The Joint Standing Committee on Intelligence had to be trusted to do their work properly.

He added that Interpol was the international agency that could be consulted. There were provisions via the National Intelligence Coordinating Committee (NICOC) to co-opt crime intelligence personnel.

The Chairperson referred to the proposed appointment of a retired judge to investigate complaints against the DPCI. The proposed new Section 17L mentioned that the retired judge would not be considered competent to investigate intelligence matters. He asked what criteria would be used to determine what that implied.

Comm Jacobs answered that the appointment of a retired judge was part of an oversight regime worked out up to the level of parliament. Intelligence matters were those where surveillance was involved.

The Chairperson enquired about the statement that Parliament would effectively oversee the functioning of the DPCI and Committees, and asked what exactly was meant by that.

Comm Jacobs replied that the word “effectively” had been inserted on advice of the Portfolio Committees. It reflected a strong instruction issuing from Parliament. The Bill stated that the Ministerial Committee had to meet regularly, and had to take an active and continuous interest in the Directorate.

Mr Ngidi pointed out that the NPA Act had established a Committee to oversee special operations. However, in three years that Committee had never met. The Portfolio Committees were charged with looking at oversight by people who had political responsibility. Parliament had to be reminded of this duty. He indicated that the former Committee was an example of a mechanism that had not worked.

The Chairperson drew attention to the provision in the revised NPA Bill that any member of the prosecuting authority who was employed in the Directorate of Special Operations before the dissolution date, could continue to be employed in the Office of the National Director. He questioned if this would not constitute undue interference and meddling with the administration of the Courts.

Mr de Lange, Principal State Law Advisor, Department of Justice, answered that the Bill was seeking to include a mechanism for transference. There were cases handled by the DSO, where teams of investigators had conducted investigations for up to five years, and these could not simply be dropped nor would it be feasible for a new Unit to have to commence the investigations all over again. The proposal that some cases should still continue to be investigated by the DSO had not been accepted. An interim structure to deal with such cases was therefore necessary.

The Chairperson asked if there was a danger that some cases were going to collapse.

Mr de Lange responded that there was a real risk, but to avert this the transitional provisions had been drafted, and he referred in particular to the proposed new Section 43A(7).

The Chairperson asked that the Committee must meet on the following day to deal with specific issues. There would be a round of questions, and then formal discussion.  He asked Mr de Lange and the other members to speak further to the new Section 43A.

The meeting was adjourned.

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