Substitution of section 43A of Act 32 of 1998

13. The following section is substituted for section 43A of the principal Act:

"Transitional arrangements relating to Directorate of Special Operations

43A. (1 ) In this section-

, (a) any word or expression in respect of which a specific meaning has been assigned by the South African Police Service Act. 1995 (Act No. 68 of 1995). has the same meaning; and

(b). 'fixed date' means a date to be determined by the President.

(2) Prior to a date determined by the National Director, any person employed by the Directorate of Special Operations must inform the National Director whether they consent to be transferred to the South African Police Service.

(3) As from the fixed date-

(a) any person. who immediately before the fixed date holds the office of Special Investigator and who has consented to the transfer. is transferred to the South African Police Service and becomes a member of the South African Police Service: and

(b). such administrative and support personnel employed by the Directorate of Special Operations as may be agreed upon between the National Director and the National Commissioner. may be transferred to the South African Police Service.

(4). (a). An employee contemplated in subsection (3) may be transferred to the South African Police Service only with his or her consent.

(b) The remuneration and other terms and conditions of employment of employees transferred in terms of subsection (3) may not be less favourable than those that applied immediately before their transfer.

(c) The transfer contemplated in subsection (3) does not interrupt the employees' continuity of employment and the employees remain entitled to all rights and benefits. including pension benefits and privileges to which they were entitled to immediately before transfer.

(5). (a). An employee referred to in subsection (3) who does not consent to be transferred to the South African Police Service must, prior to the date referred to in subsection (I), notify the National Director thereof in writing

(b) In respect of such an employee. the National Director may- 

(i) after consultation with the Minister and the Cabinet members responsible for the public service and for finance, offer to transfer the employee to a reasonable alternative post or position in any government department or state institution in accordance with subsection (3)(b) and (c) and section 14 of the Public Service Act. 1994 (Proclamation No. 103 of 1994) shall. unless the context indicates otherwise. apply to such a transfer:

(ii) after consultation with the Minister. offer to transfer the employee to a reasonable alternative post or position in the prosecuting authority. other than any post of special investigator. in accordance with subsection (3)(b) and (c).

(c) If the employee does not accept the offer made in paragraph within 30 days of it being made. the employee's employment automatically terminates on the fixed date.

(d) An employee whose employment is terminated in terms of paragraph (c) is entitled to a severance package provided determined by the Minister in consultation with the Cabinet members for the public service and for finance.

(e) The severance package provided for in paragraph (d) may not be less favourable than the severance package provided for in the Determination on the Introduction of an Employee-Initiated Severance Package for the Public Service determined in terms section 3 of the Public Service Act. 1994 (Proclamation No. 103 of 1994).

(f). Any dispute arising from the interpretation or application of this section in so far as employees are concerned must be referred to the Labour Court for determination.

(6) Any decisions made. directions issued and any proceedings instituted by the employer immediately before the fixed date in respect of an employee referred to in subsection 2 remains applicable to him or her and must be implemented or finalised as if the National Prosecuting Authority Amendment Act. 2008. has not been passed.

(7) Any member of the prosecuting authority who was employed in the Directorate of Special Operations immediately before the fixed date shall continue to be employed in the Office of the National Director, and shall exercise, carry out and perform his or her powers, duties and functions as conferred. imposed or assigned to him or her by the National Director and subject to the control and directions of the National Director or a person authorised thereto by the National Director.

(8) The National Prosecuting Authority Amendment Act. 2008. does not affect the validity of any investigation performed by the Directorate of Special Operations before the fixed date including any functions incidental to such investigations or the institution of any criminal proceedings.

(9). (a). Investigations by the Directorate of Special Operations that are pending immediately before the fixed date must, on that date, be transferred to and continued by the Directorate for Priority Crime Investigation in accordance with a mechanism to ensure that the investigations are not prejudiced by the transfer.

(b) The Minister. in consultation with the Cabinet member and after consultation with the National Director and the National Commissioner. must determine the mechanism referred in paragraph (a).

(10) As from the fixed date any liability incurred by the Directorate of Special Operations as a result of an investigation b that Directorate, shall pass to the prosecuting authority, unless the Minister in consultation with the Cabinet member for police. in a specific instance determines otherwise.

(11). (a) Any investigation that has been instituted under section 28 by the Directorate for Special Operations, and all steps taken as a result of such an investigation, shall be deemed to have been instituted or taken in consequence of the application of section 17D (3) of the South African Police Service Act, 1995, but the Head of the Directorate for Priority Crime Investigation may, at any time after the fixed date, withdraw a request to pursue such an investigation.

(b) The National Director must designate a Director in respect of each investigation referred to in paragraph (a), who must assist the Directorate of Priority Crime Investigation in carrying out such an investigation." .