Minister’s briefing on crime issues; Constitution 14th Amendment Bill: adoption; Confirmation of suspension of magistrates; SAPS & NPA Amendment Bills: further deliberations

Meeting report

Address by the Minister of Safety and Security
Hon Nathi Mthethwa, Minister of Safety and Security, said that his portfolio was both challenging and exciting, as Government had decided to tackle the issue of crime head-on. The Minister said that in most countries housebreakings had been a common crime, but within the South African context these had a violent element that resulted in South Africa being branded as a violent country.

The Minister noted that greater emphasis had to be placed on strengthening crime intelligence through advanced technology and other resources to effectively address the issue of organised crime. He particularly mentioned the inability of the intelligence agencies to detect the lead-up to the recent xenophobic attacks and said that the South African Police Service (SAPS) had to be given the ammunition to break the backbone of organised crime as it had become increasingly advanced and trans-national.

The Minister further noted that greater emphasis had to be placed on combating crime, rather then focusing only on crime prevention, as this former approach had been found wanting in some respects. The various specialist crime task forces had to be capacitated to properly conduct their work. The rise in the number of cash-in-transit heists had placed a greater obligation on the SAPS to strengthen its task forces to take on the merciless killers responsible for these crimes. Many South Africans had questioned Government’s inability to tackle this issue, but recent developments had shown that cash in transit heists were on the decrease, and the emphasis seemed rather to have shifted to the bombing of bank ATM machines.

The Minister added that partnerships against crime had to be strengthened and that he was glad to announce the launch of a new partnership between the SAPS and the security industry in Honeydew, as they had been very visible in communities overall. He said that the SAPS was aware of the fact that many of the people working in the security industry might not be suitable for this type of work and that these matters would be addressed. The Minister concluded that it was now a time that the SAPS had to fight fire with fire.

Dissolution of Scorpions: South African Police Services Amendment Bill (SAPS Bill): Further deliberations
The Chairperson noted that the Committee had received general briefings on the Bill and that he would like the Departments now to take the Committee through the clauses of the SAPS Bill in more detail.

Clause 1
Assistant Commissioner Philip Jacobs, Director: Legal Services, SAPS, said that it had been noted that Clause 1 made no mention of the fact that the Directorate for Priority Crime Investigation (DPCI or the new Unit) would be part of the SAPS.

Clause 1(b) had thus been inserted to specify that the DPCI would be part of the SAPS.

Clause 2
Comm Jacobs said that Clause 2(a) had been substituted, to place it in line with the National Prosecuting Authority (NPA) Act, as this piece of legislation provided the “blue print” for the crimes that had to be investigated on a national level.

He said that the distinguishing characteristics of Clause 2(a) referred to the offence that had been committed, rather than the person, and that this had been included to broaden Section 16 of the SAPS Act, so as to prevent unnecessary litigation around the mandate of the Act. It effectively now increased the number of the original matters listed in the Act.

He added that the Schedules contained in the original Act had been integrated into the SAPS Bill, hence the insertion of Clause 2(iA). He said that the overlaps between the NPA Act and the SAPS Act had thus been taken out.

The Chairperson asked what had been meant by “unlawful conduct”.

Comm Jacobs replied that “unlawful conduct” referred to a scenario where the same methods had been used, guided by the same methodology.  He said that this had not been a closed definition, as it included several other definitions that may not have been specifically mentioned.

The Chairperson asked what harm it would do if “unlawful conduct” had to be omitted from the SAPS Bill.

Comm Jacobs said that all of the investigations by the Directorate of Special Operations (DSO or Scorpions) would now be transferred to the new DPCI. This provision had been included for continuity. It would give guidance as to what had to be dealt with.

Clause 3
Comm Jacobs noted that this clause inserted a number of new sections, after Section 17 of the existing SAPS Act.

He noted that a new Section 17A had been inserted.

In relation to the new Section 17B, Comm Jacobs said that the National Assembly Portfolio Committees on Justice and Constitutional Development and on Safety and Security, when they had sat jointly, had said that they wanted the preamble of the SAPS Bill to reflect why there had been a need for the establishment of the DPCI. However, this was not done in this way; instead the new Section 17B reflected the National Assembly (NA) Committees’ proposals on how the new Directorate should function.

The proposed new Section 17C had been inserted to cater for the transitional provisions for the future, including the selection of members to be employed by the new Directorate. This had been the same as with the appointments of Director-Generals to the civil service. He noted that the factors listed were required under the Public Service Act, and great emphasis had been placed on the new directorate having its own legal unit that could address the issues that pertained to the new Directorate.

The Chairperson asked whether any arrangements had been made in terms of legal officers in the SAPS.

Comm Jacobs said that various legal posts had been created to assist and work with the new Directorate. However, some of these numbers had been taken up in provincial structures. The new DPCI would get its own legal unit.

Mr Willie Hofmeyr, Deputy National Director of Public Prosecutions, National Prosecuting Authority (NPA), said that the proposed new Section 17E contained the justification for the measures contained in the law, and that no members of the new directorate would be beyond reproach. He said that the situation where NPA members faced corruption charges tarnished the image of the entire NPA.

Mr B Mkhaliphi (ANC, Mpumalanga) asked whether sufficient mechanisms had been included in the new Section 17E (5).
 
Comm Jacobs replied that all security clearances had been subjected to timeframes, and that the intention had been to provide the Head of the DPCI with the power to determine a shorter timeframe for clearances if appropriate. He said that the only time when such a decision would normally be taken by the Head would be in instances where information had arisen that warranted another security clearance.

Mr J van der Merwe (DA, Northern Cape) asked whether the word “may” in Clause 17L(8)(a) should not be substituted with “must”, which imposed more obligations. He also proposed that the word “shall’’ in the same sub-clause be substituted with ‘’must’’.

Comm Jacobs said that none of the complaints directed to the office of the retired judge, who would be heading the complaints mechanism, would go via the office of the Minister. The judge would be an independent entity with his office having its own investigation powers. He said that there had to be evidence of possible abuse before action could be taken, and, should the complaint not be pursued, there also had to be a valid reason for this.

He added that the wording came from the SAPS Act that dealt with complaints, and that the threshold would be “reasonable grounds: that warranted an investigation.

Comm Jacobs then explained that the new Section 17L (8)(a) had been an empowering provision and that the onus would be on the Directorate to use their discretion. He said that in legislative drafting ”must” and “shall” had the same meaning, and that the word “shall”
had been used for consistency throughout the Bill. It was possible that if this had been a completely new Bill then the word “must” would have been used.

The Chairperson said that the action described in this new Section was not to be seen as obligatory, and that the measures could only be used when a scenario presented itself that warranted such an action.

Mr D Worth (DA, Free State) asked which government department would be responsible for the resources and personnel that would comprise the Judge’s office and staff, and where this office would be situated.

Comm Jacobs said that the Department of Safety and Security would assume responsibility, and that the head office would be based in Pretoria.

Magistrates Commission: Briefing on the requested suspension of Magistrates XRI Masimini and Ms A Bacharam
Mr J Meijer, Commissioner, Magistrates Commission, briefed the Committee on the Magistrate’s Commission intention to relieve Magistrate Masimini of his duties, and to uphold the provisional suspension of Magistrate A Bucharam.

He explained that Magistrate X Masimini had initially been suspended from office after he had been convicted on a charge of assault in 2006. He had been sentenced to R3 000 fine or a period of six months imprisonment.

Mr Meijer then briefed the Committee on the circumstances around the recommendation to suspend Magistrate A Bucharam. She had been provisionally suspended after it had been discovered that she had failed to pay a traffic fine, had been summoned to appear on a charge, and had asked one of her clerks to sign the summons. On the day of the hearing, Magistrate Bucharam presided over her own case, and had then struck this case from the Roll.

Discussion
Mr F van Heerden (FF+, Free State) said that Magistrate Masimini had been an embarrassment to the legal profession and he recommended that he must be removed from office.

Mr N Mack (ANC, Western Cape) agreed that Magistrate Masimini had become notorious and he supported the decision by the Commission.

Mr Z Ntuli (ANC, Kwazulu Natal) said that the Committee had missed an opportunity to engage with the Magistrates when it visited the Eastern Cape. However, he supported the decision by the Commission.

The Chairperson asked what the Minister of Justice had to say about the latest developments surrounding Magistrate Masimini.

Mr Meijer said that the Minister of Justice had supported the recommendation and expressed the wish that Parliament would ratify the recommendations.

Mr M Mzizi (IFP,Gauteng) noted that Magistrate Bucharam had held a very high office, governed by certain procedures, which needed to be upheld, and of which she was aware. He expressed the view that the suspension should be upheld as she was not fit to hold this office.

Mr D Worth (DA, Free State) said that he agreed with the provisional suspension, but asked for clarity on whether the request from the Commission had been to uphold the suspension.

Mr A Moseki (ANC, North West) said that he was particularly concerned with the amount of time the investigation had taken, as the letter of intent had been served in April. He said that if the Committee endorsed the suspension then it had to stipulate that the investigation had to be concluded as soon as possible, as the public could view this as being an act of non-compliance from the side of Parliament.

Mr Meijer said that the procedural requirements for a suspension stipulated that a magistrate first had to be suspended provisionally, pending the outcome of an investigation into the fitness of the magistrate to continue to hold the office of Magistrate.

He added that an investigation had to commence within 60 days of the suspension. This had taken place in this matter. The criminal case against Magistrate Bucharam was set down for hearing on 20 November.

Kgoshi Mokoena requested the Commission to conclude its investigation speedily.

Mr Meijer said that the Magistrates’ Commission would do its best to conclude the matter speedily. It had been waiting on the outcome of the criminal case before a final decision could be made.

Members agreed unanimously to uphold the provisional suspension.
 
Constitutional Fourteenth Amendment Bill: Mandates from provinces
The Chairperson asked the delegates to read out their mandates in respect of the Constitution Fourteenth Amendment Bill. 

He noted that the North West, Limpopo, Kwazulu-Natal, Eastern Cape, Western Cape, Mpumalanga and the Free State mandates were all in support of the Bill.

The Gauteng and the Northern Cape Provincial Legislatures had failed to send their final mandates and could thus not vote.

The Motion of Desirability and the Committee Report were read out.

Members accepted the Motion and resolved to adopt the Bill and the Report. .

The meeting was adjourned.