Scorpions Closure: National Prosecuting Authority & South African Police Service Amendment Bills: continuation of deliberations

Meeting report

The Chairperson noted that the programme had reflected that the Minister of Safety and Security would be addressing the Committee this morning, but in fact that was incorrect; he would be addressing the Committee on the following day at 10:00.

South African Police Service Amendment Bill (SAPS Bill) and National Prosecuting Authority Amendment Bill (NPA Bill): Continuation of deliberations
The Chairperson asked Members if they had further questions arising from the previous day’s discussions.

Dr F van Heerden (FF+, Free State) apologised for his absence the previous day, as he had been notified of the meeting too late for him to attend.

Mr D Worth (DA, Free State) also apologised for his inability to attend, saying that he too had been notified of the meeting very late. He noted that he was in possession of a letter from the Director of the Centre for Constitutional Rights, Adv Paul Hoffman, who asked if it would be possible to give input on the Bills under discussion.

The Chairperson noted that he too had received that letter, and his office was presently checking whether the content of Adv Hoffman’s submission was any different to the written and oral submissions made during the National Assembly’s public hearings. If there were differences, the Committee may wish to call Adv Hoffman on Friday. He noted that the Institute for Democracy in South Africa (IDASA) had also requested a similar slot, but they too had made a submission to the Portfolio Committee and were therefore to be considered similarly. The fact that they had previously made a submission would not automatically preclude them from being called; if the Committee thought it was necessary, would add anything new, or could assist the Committee in making a better decision, it could call for the submission.

Mr N Mack (ANC, Western Cape) said that on the previous day he had made a proposal for changes to the clauses concerning Parliamentary oversight, and he asked for a report back.

The Chairperson also said that comment was required on the concerns expressed the previous day around vetting.

Dr Philip Jacobs, Assistant Commissioner, South African Police Service, noted that the proposal for Parliamentary oversight was in fact already addressed in the SAPS and NPA Bills. The Minister was accountable to Parliament. In addition the Head of the Directorate for Priority Crime Investigation (DPCI or the Unit) could be asked by Parliament to address Parliament on the activities of the Unit. He did not believe that the insertion of any other clause requiring Parliamentary oversight would take the matter any further since this was already addressed in a number of other ways.

The Chairperson asked for a report on the separate Crime Intelligence functions by different entities, and he asked how the separation would be achieved, how it would assist the Committee and whether all the gaps could be closed to ensure that it the functions were properly contained without overlaps or loopholes. 

Comm Jacobs said that the main concern with the DSO was that it had set up intelligence capacity that was not mandated specifically in line with the intelligence legislation. This was addressed in the SAPS Bill, by way of the multi-disciplinary provisions. These noted that, without derogating from the functions of the South African Police Service (SAPS) in terms of gathering and use of crime intelligence, the new Directorate would be supported by the Crime Intelligence Division of SAPS. The Organised Crime and Commercial Crime units currently functioned this way. The definition of Crime Intelligence in the National Strategic Intelligence Act (NSIA) was quite wide. A police official collecting information in order to prevent a crime or prepare a case docket was, strictly speaking, already performing an intelligence function. However, intelligence support envisaged the use of special agents to infiltrate criminal organisations, or to do interception, monitoring and intelligence surveillance. A police officer might have to pay an unregistered informant for information. The classic intelligence support, in terms of undercover operations, would come from the Crime Intelligence Division (CID). The interaction within the National Intelligence Coordinating Committee (NICOC) was happening, and they were subject to oversight, unlike the DSO, which was the major reason for the latter’s problems. The fact that CID was part of the intelligence structures solved many of the problems that had existed in the past.

The Chairperson asked who would be appointing the Head of the Unit. He also asked for clarity on the rank of this person, saying that there had been some concerns that the Head might be subjected to undue pressures from those higher in the hierarchy.

Comm Jacobs noted that the Bill in its initial form had said that the Head of the DPCI would be a Divisional Commissioner, appointed by the National Commissioner. The Portfolio Committees had however felt that this person should be on a higher level than a Divisional Commissioner. The eventual decision by those Committees was that the Head must be a Deputy National Commissioner, and would in fact be the only Deputy National Commissioner in charge of an operational unit. The Head would be appointed by the Minister, in concurrence with Cabinet, and this followed the precedent throughout the civil service for appointment of all Directors General and Deputy Directors General. Provincial Commissioners were also in practice appointed by the Minister, in concurrence with Cabinet, under the Department of Public Service and Administration (DPSA) instructions.

The Chairperson noted that the National Commissioner would make the decision on what cases were to be taken. He asked what the interaction would be between the National Commissioner and the National Director of Public Prosecutions (NDPP).

Comm Jacobs responded that there were difference scenarios for selection of cases. Firstly, the Head of the Unit could select the cases, subject to guidelines. Secondly, the National Commissioner could refer cases to the Unit, subject to the guidelines of the Ministerial Committee. Thirdly, if the DPCI itself, during the course of investigations into a matter, found other inter-connected issues, then the Head of the DPCI could also decide to take these issues on board to investigate them in tandem with the first investigation. It was important that the guidelines from the Ministerial Committee might contain some processes, similar to those followed by the Organised Crime and Commercial Crime components, for instance, using the threat analysis, and identifying cases where the multi-disciplinary approach would be the most appropriate.

Comm Jacobs pointed out that the NDPP would be part of the Operational Committee. This person would also make input on coordination and other issues. At a lower level there would be interaction between prosecutors and investigators. Already 87 prosecutors had been designated and had been functioning for some time. It would be incorrect to assume that the National Commissioner must simply instruct. If there was information that a crime had been committed, an officer in SAPS could not put a stop to an investigation, as this would amount to defeating the ends of justice. The guidelines from the Ministerial Committee must also be submitted to Parliament for approval.

Mr Z Ntuli (ANC, Kwazulu Natal) asked whether the dedicated prosecutors were the same as the designated prosecutors.

Comm Jacobs responded that this was covered in Section 17F (4), which made provision for a "dedicated component". This linked up to the question around the relationship between prosecutors, investigators and legal assistants. Section 17(4) already reflected the prosecutor-guided investigation project. The prosecutors were made available to assist at an early stage with the processes of search and seizure, undercover operations and so forth. The SAPS Bill also contained a specific provision, in relation to the establishment of the Directorate, that the DPCI must include "an adequate number of legal officials appointed to the Directorate". These legal officials would not necessarily take the place of prosecutors. At the moment there was close cooperation. The Bill envisaged more legal officials in-house with SAPS and would respect the interaction between investigators and prosecutors. There had not been a problem with prosecutors and investigators working together. However, there had been concerns that if a prosecutor became too closely involved with the investigation, he could lose objectivity and become too focused on getting a conviction, at the expense of observing proper measures. The Bill also provided that the prosecutors and investigators would not be employees in the same organisation. There would be greater objectivity.

Adv John Welch, Prosecutor, National Prosecuting Authority (NPA), added that the current process spoke of "designation" because in the DSO legislation there were people designated to a particular project. That would not be the position in future, as the persons employed in the DPCI would be police officials. The prosecutors who formed a dedicated prosecuting component under the new Section 17F(4) must be placed at the disposal of the new DPCI to assist it in addressing particular crimes, as reflected by the words "is available to assist and cooperate". Although these people were currently designated to a particular team, this would not necessarily apply in future; the position would be similar to what had been in place prior to the DSO being formed.

The Chairperson noted that some DSO members were concerned that they had never undergone police training, and he asked what would be done in their case, apart from the screening process.

Comm Jacobs agreed that these officials had expressed this concern, around the lack of basic training. However, since 1995, the SAPS had brought in a number of experts and developed a lateral entry programme, which was a short course, giving an introduction to the police service and its ethics and procedures. Certain criteria were set out and he pointed out that the NPA would also be involved in the selection committee.

The Chairperson noted that there would be regular integrity checks on all officials and he asked how that would be done.

Comm Jacobs noted that the random testing recommendation had come from the NPA. There were similar provisions in New South Wales, which were complementary to the vetting process.  There were certain rules in terms of enticement and similar issues, and the tests would have to remain within those boundaries. If the integrity testing was done to test whether a person might commit an offence, there would be recommendations sought from the DPP, and the Minister must also make regulations. Queensland had an entirely separate Act dealing with police officers performing high-risk operations. These international models could be used as a basis for developing the necessary regulations. Due regard must be paid to the dignity of the person involved. The vetting was aimed at ensuring that the integrity of all members was above reproach.

Mr Mack referred to the new Section 17F, asking how the investigators and prosecutors would work together to ensure a successful conviction. He asked what would stop the investigators attaching computers or other records without having the correct warrants, as this had been a problem in the past.

Mr Mack also commented that there had previously been problems around delays that led to justice not being achieved.

Adv Welch agreed that indeed "justice delayed is justice denied". The Deputy Minister's review of the Criminal Justice System would address these issues, in a more holistic way. Everyone involved at every stage of the justice proceedings must contribute to expediting the cases, and it was necessary to ensure that the provisions of Bills did not contribute to delay. If the cooperation between the DPCI and the prosecuting authority was working well then there should not be delays.

Mr Worth asked what would happen to the cases being transferred, and whether any were likely to fall through the cracks.

Comm Jacobs noted that the NPA Bill stated that on the fixed date all the cases of the DSO would be transferred to the DPCI. It was not a simple transfer. The Ministers of Justice and Safety and Security must develop guidelines in consultation with the NDPP and the National Commissioner, and these would set out exactly how the transfer would take place, to ensure that nothing was falling through the cracks. This controlled process would determine how the cases would be dealt with.

Mr Worth asked how many DSO members had resigned to date.

Mr Willie Hofmeyr, Deputy National Director of Public Prosecutions, National Prosecuting Authority, said that 59 had resigned in this calendar year, mostly in the first half of the year. When the new management of the DSO came in, the tide of resignations had been stemmed to some degree.

Mr Mack asked how many staff were likely to be prepared to move to SAPS. He also asked how many of the existing SAPS staff would be prepared to join this new Unit, and if there was any indication how many people outside might be willing to fill the gaps of the 59 members who had left.

Mr Hofmeyr said that there was a joint task team of the NPA, DSO and SAPS to build confidence of the members. The Bill and the labour laws required consent of the employees before they could be transferred. He was confident that the majority of the DSO members would be willing to move to the DPCI. However, he conceded that there had been some distrust in the past. Although he did not have a detailed breakdown, some of those who had left had been administrative and support staff; he would estimate that about 40 to 45 had been investigators, seen against the total of about 300 investigators in the DSO. The new Unit would not consist only of former-DSO staff plus the vacancies, but would also include people from SAPS and Organised Crime. SAPS itself was likely to have a selection process. He hoped that there would be people wanting to join the new Unit. There were also concerted efforts to retain the skills that were currently in the DSO.

Comm Jacobs noted that the proposed model on which these Bills were based had been sent to the provinces for comment, and SAPS had indicated its overwhelming support. He confirmed that many SAPS staff would be keen to join the DPCI.

Mr Ntuli asked if some of the experts might have resigned because they were not prepared to be vetted.

Mr Hofmeyr said that he was not aware of this reason being advanced specifically, although some may have left because they did not want to be part of SAPS. Many of those who had left had moved to other State institutions. There was a more positive spirit now in the DSO than there had been six or eight months ago, when there was more uncertainty.

Mr van der Merwe believed that there was still dissatisfaction in the DSO and he was concerned that the best staff might be lost through resignations.

Comm Jacobs noted that the Khampepe Commission Report had included a comment that there was resistance by the DSO to relocating to the SAPS. This had been indicative of a lack of shared objectives, no matter where the institutions were based. He had the impression that many investigators and prosecutors simply wanted to have certainty. SAPS had emphasised that there would be work, that SAPS needed the expertise and had encouraged members of the DSO to join SAPS.

Mr Ntuli asked who would decide whether to continue with a case against an individual who was arrested.

Comm Jacobs responded that the NPA was the only institution that could decide whether to institute a prosecution following an arrest. That situation would remain.

Mr Hofmeyr noted that of course the police had to have reasonable grounds to make an arrest and normally the DPP in the provinces would make the decision whether to prosecute a particular case.

Mr Mack pointed out that in the past the DSO had regarded itself as a “demi-God” answerable only to itself. This was being addressed by bringing it under SAPS. He asked for assurance that the new Unit would not attempt to rise above other SAPS colleagues before the three year review could be carried out. He noted that there had been a perception that the DSO would hand-pick which cases it wished to take, based upon whether these could be successfully prosecuted, to boost their success rate.

Comm Jacobs responded that Section 16 of the SAPS Act, which would form the basis of this new Unit, gave clear guidelines on what type of cases should be investigated. These included cases across provincial and national level, cases where the Provincial Commissioner requested investigation, and the guidelines of the Ministerial Committee would also apply. Section 16 had been in existence since 1995 and had never previously given rise to a “tug of war” as any investigator having a case removed to another body would generally accept that this was done in the national interest.
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Dr van Heerden commented that there had been a need for a greater distancing of prosecutor and investigator. He cited an example of a motor accident, following which one driver was charged with negligent driving, but that charge had been withdrawn. Two years later the charge was reinstated. The attorney for the accused was dismayed to find that the statements at the time of the original accident (which he had photocopied) had by then been replaced with new and different statements. He commented that the investigating officer should himself have been charged with obstructing the course of justice, but this had not been done.

Mr Hofmeyr commented that if this was a recent case, it should be reported to the authorities. He noted that the prosecutor had a duty to give all relevant information to the defence attorney.

Comm Jacobs said that the most important point was that the prosecutor would not be part of the command line within a unit. He would assist and advise, but would not instruct the investigator. If there was a prosecution witness who deviated from his written statements as contained in the docket, then the Prosecutor should discredit that witness. SAPS could not move without the advice and assistance of prosecutors, but the necessary distance was now being created.

Mr A Moseki (ANC, North West) referred to the new Section 17B(b)(ii) that made reference to the Unit needing the "necessary independence" to perform its functions. Independence had been a challenge in the past. He asked how the bringing of the DSO within SAPS could be reconciled with the concept of independence.

Comm Jacobs noted that the independence referred to operational independence, not independence in the sense that the new Unit must have nothing to do with SAPS or any other institution. The Bill did give some operational flexibility to the Head of the Unit, and he or she was to be appointed by the Minister, and would be in direct command or control of an operational unit. 

Mr Hofmeyr noted that South Africa’s signature to various international conventions carried the requirement that investigating agencies in South Africa must have a measure of independence, to ensure that corruption was properly investigated. However, he agreed that this was not absolute independence, but operational independence.

The Chairperson explained that the DSO had previously followed a "troika" approach of prosecutors, investigators and intelligence. He asked if the new unit would follow the same approach. He conceded that, although he had not been happy with DSO’s overall attitude, it had been effective in some cases. He asked if analysts would be included in the new unit.

Comm Jacobs said that the Bill went past the troika approach, to a multi-disciplinary approach. Apart from the cooperation between investigators and prosecutors there was also provision that expertise could be sourced from, for example, Financial Intelligence Centre, Department of Home Affairs and others to investigate organised crime.

The Chairperson sought clarity that there would be no political bias in pursuing cases. He asked this question in the light of the Judge Nicholson judgment.

Mr Hofmeyr noted that the SAPS had their own code of ethics to ensure that people did their work without fear or favour and that they would not bow to pressure. That was what was meant by operational independence. There had been some discussion by the Portfolio Committees as to what would be the situation if allegations of political interference were made, and that was part of the reason why the provisions for the complaints mechanism headed by a retired judge were inserted into the Bill.

Comm Jacobs added that in addition to the Code of Conduct and Ethics, Section 46 of the SAPS Act dealt with political activities of Members, stating that no member of SAPS could further or prejudice any party political interest. If there was political interference, an official of the DPCI would be able to lodge a complaint with the judge. There would also be oversight by the Ministerial Committee and involvement of a number of departments. The guidelines would determine the selection of cases. All these factors taken together should ensure that any possible issues of bias could be addressed.

Mr Hofmeyr noted that Judge Nicholson’s judgement was subject to an appeal. He said that the point was made in the National Assembly that whether or not the findings were upheld on appeal, perceptions were important and it was vital to have a credible mechanism to investigate the issues and allegations, and to take appropriate action.  Certain kinds of cases would attract certain perceptions.

Mr Worth noted that Mr Hofmeyr had recently reported that 79% of the Asset Forfeiture Unit (AFU) income came from 30% of the cases handled by DSO. He asked if this was likely to continue.

Mr Hofmeyr responded that this was a matter of getting the new Unit to work and be properly capacitated. He had confidence that this could be done. In the past year, due to the uncertainty, which caused some drop in focus, some of the percentages had dropped, but he thought that the new DPCI could produce the same results as the DSO had done. 

Comm Jacobs said that so far there had been good cooperation between SAPS and the AFU. A number of officers from AFU were assisting the Organised Crime and Commercial Crime components. The amounts involved related very much to the kind of cases. SAPS also had a focus on asset forfeiture, and this was growing. Some of the investigative units played a part in the initial forfeiting process.

Dr van Heerden questioned whether the multi-disciplinary approach was always effective, citing the example of a prosecutor who felt that bail was appropriate, but where the Court had instead given more weight to the views of the official from Department of Home Affairs who had opposed bail. He felt that this was affecting the independence of the prosecutor, and that this kind of situation was taking a multi disciplinary approach too far.

Comm Jacobs said that this was a slightly different situation from the ongoing investigations, and he said that if there were questions about the availability of the accused for trial or validity of identification papers the Department of Home Affairs may have a valid point. Bail had other dynamics from the normal investigative processes.

Mr Hofmeyr said that the "independence' of a prosecutor was not to be seen as an abstract term. Multi-disciplinary investigations required consideration of all views, so that an independent judgment could then be made, according to what was correct in law and a most reasonable consideration of each viewpoint.

The Chairperson requested clarity on the transitional arrangements, and how far these had progressed.

Mr Hofmeyr said that a joint team of NPA and SAPS had been meeting since the beginning of October, and a number of sub-teams were set up to deal with such issues as human resources, information technology, finance and budgeting, distribution of cases and transfer and interceptions and monitoring, use of informants and agents and how these would be transferred. These various teams had been doing good work and were generally on track.

Mr J Nelson, Director, SAPS, added that there had been comprehensive information provided, a paper audit, and the team was proceeding to the physical verification and compilation of relevant documents for signing off as required by the Public Finance Management Act (PFMA).

Mr Hofmeyr said that where the NPA was midway through litigation, the process must be continued. The officials dealing with finance had found amicable solutions to the issues.

Comm Jacobs noted that the regulations around integrity testing were not required by the fixed date, as those related only to the DPCI and not to SAPS. SAPS was, however, busy with developing draft regulations and would deal with these fully once the Bill had been adopted by Parliament.

Mr Ntuli asked whether the Asset Forfeiture Unit would also move to SAPS.

Mr Hofmeyr responded that there was still some discussion on this. The bulk of the AFU staff were advocates undertaking legal work. The Prevention of Organised Crime Act allowed the NDPP to apply for asset forfeiture. Most staff were likely to stay in the NPA. There were about fifteen financial analysts who helped to do asset tracing and asset profiling, and there were ongoing discussions as to what would be most appropriate for them.

Mr Mack referred to the proposed new Section 17L. He asked if the retired judge should not also report to Parliament on his or her findings.

Comm Jacobs noted that the proposed Section 17L(9) did provide for an annual report to Parliament on the performance of the functions. As discussed the previous day, Parliament could also invite or summon anyone to appear.

Mr Mack asked again if he could have the assurance, to pass on to his constituents, that the new Unit would not fall into the same trap of putting itself into “demi-God status” and what was in place to ensure that this would not happen.

Comm Jacobs said that the new Unit must distinguish itself by means of its successes. The Committees had criticised SAPS for not giving enough prominence to its own successes. More must be done to make the public aware of what had been achieved by the Commercial Crime and Organised crime components. He noted that when the new unit was formed, all members would be members of SAPS, and it was not in anyone’s interests that negative competitiveness or poor rapport should be allowed. There would have to be integrated methods of working.

Mr Mack noted that there were many positive aspects, and asked what more could be done by Members of Parliament to identify problems and to assist, as everyone wanted the new Unit to be a success.

Comm Jacobs said that a role had been created for Parliament through the joint audit and implementation teams. Even before the fixed date was determined, those teams would be established. There had already been meetings and this would be an ongoing process. He pointed out that the Bill made provision for quarterly reports on the implementation of the Act. If there were problems then the Parliamentary mechanism had already been created to deal with them.

Mr Mack said that he was still concerned about the measures to ensure confidentiality of information. Although vetting could go some way to addressing this, the fact remained that in the past, information had been leaked. He asked whether information could be more strictly monitored, if perhaps only one spokesperson could be used, and what measures could be introduced to control information.

Comm Jacobs said that the SAPS Act already had a provision that any police officer publishing information to the detriment of SAPS would be committing an offence. There were pertinent instructions within SAPS on dealing with the media, and there were recognised liaison officers. Additional national instructions may be needed to deal with the context of the new DPCI. The Protection of Information Act, read with Section 71 of the SAPS Act, and the Corruption Act (relating to money received for information) did cover the position.

Mr Mack said that he really wanted to hear how information was being managed to stop the leakages.

The Chairperson asked what would be done if a person whose skills were desperately needed in the new Unit refused to move across because they did not agree with the rigorous screening and vetting processes.

Comm Jacobs said that any person in the civil service exposed to sensitive information needed to be vetted. It was impossible for SAPS or the DPCI to force a person to move over, although the Bill had tried to encourage secondment.

The Chairperson enquired if there would be any harm in including a provision that the existing security clearances should not be automatically recognised but that everyone be required to be re-vetted.

Mr Hofmeyr reiterated that there was a proper process associated with vetting. If there was any suspicion about a particular person then it was possible to do a re-vetting. The enhanced integrity measures could also deal with this. However, if the existing vettings were not recognised, and the 200 current vetting certificates were to be withdrawn, this would lead to severe practical problems, as nobody could continue with the investigations. He thought that the law had sufficient safeguards to deal with the "bad apples", and this had been extensively debated at Portfolio Committee level. 

Comm Jacobs added that this would affect not only the DSO but also SAPS members, many of whom still had current clearances. Removing these clearances without any process or reasonable suspicion of changed circumstances would be incorrect and would imply that there was something incorrect about the recognised intelligence structures that had carried out the clearances under set rules.

The Chairperson noted that he would be raising further questions around the disclosure of financial interests by family members on the following day.

Constitution Fourteenth Amendment Bill (the Bill) (Floor Crossing) : Deferral of discussion
The Chairperson noted that the final mandates had been received from six provinces. None had been received from Northern Cape, Western Cape and Gauteng. The Chairperson had discussed issues with Mr Labuschagne and both were of the view that it was impossible to proceed without those mandates, as this was a Constitutional matter. There were other logistical problems with some mandates. The suggestion was made that discussion and debate be deferred until the next day.

Mr Mack noted that he had been in discussion with the Western Cape legislature. The mandate had been dealt with by the Committee. However, Western Cape had been in recess for three weeks, and was trying to get the mandate signed by the Speaker by the end of the day. He supported the deferral of discussions to the next day to enable him to get his mandate.

Mr van der Merwe said he had tried to find out what was happening in Northern Cape.

All Members concurred that the finalisation of this matter be postponed until the next day.

The meeting was adjourned.