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CONSOLIDATED COMMITTEE PROPOSALS 
FOR 10 MAY 2012 FOLLOWING DISCUSSIONS OF 8 MAY 2012.

REPUBLIC OF SOUTH AFRICA

SOUTH AFRICAN POLICE
SERVICE AMENDMENT BILL
EXPOSITION ON SOUTH AFRICAN POLICE SERVICE ACT, 1995 
(ACT NO. 68 OF 1995)

(As proposed by the Portfolio Committee on Police)..............
(The English text is the offıcial text of the Bill)

(MINISTER OF POLICE)

[B 7—2012] ISBN 978-1-77037-936-7

GENERAL EXPLANATORY NOTE:
[ ] Words in bold type in square brackets indicate omissions from existing enactments.
________Words underlined with a solid line indicate insertions in existing enactments.

BILL

To amend the South African Police Service Act, 1995, in order to align the provisions relating to the Directorate for Priority Crime Investigation with a judgment of the Constitutional Court; to amend those provisions in order to ensure that the Directorate has the necessary operational independence to fulfil its mandate without undue interference; and to provide for matters connected therewith.

Discussed on 2012/05/03:
BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:— 
Amendment of section 6 of Act 68 of 1995
1.	Section 6 of the South African Police Service Act, 1995 (Act No. 68 of 1995) (hereinafter referred to as the principal Act), is hereby amended by the substitution for subsections (1) and (2) of the following subsections, respectively:

‘‘(1) There shall be a National Commissioner of the Service who shall be appointed in accordance with section [216(2)(a)] 207(1) of the Constitution of the Republic of South Africa, 1996.
(2) There shall be a Provincial Commissioner of the Service for each province who shall be appointed by the National Commissioner subject to section [218(1)(b)] 207(3) of the Constitution of the Republic of South Africa, 1996.’’.

Amendment of section 11 of Act 68 of 1995
2. Section 11 of the principal Act is hereby amended—
(a) by the substitution for subsection (1) of the following subsection:

11  National Commissioner
 (1) The National Commissioner [may exercise the powers and shall perform the duties and functions necessary to give effect to section 218(1) of the Constitution] shall exercise control over and manage the police service in accordance with section 207(2) of the Constitution of the Republic of South Africa, 1996.’’; and
(b) by the substitution in subsection (2) for the words preceding paragraph (a) of the following words:

 (2)	‘‘Without derogating from the generality of subsection (1), and subject to chapter 6A of this Act, the National Commissioner shall have the powers, duties and functions [referred to in] [that subsection] to give effect to section 205(3)  of the Constitution of the Republic of South Africa, 1996, shall include the power, duty and function to [National Commissioner shall]—“.

Proposal by drafters to avoid conflict between the powers of the National Commissioner and the Head of the Directorate.

Revisit in relation to section 218 of Interim Constitution and section 11 powers.

(a)	develop a plan before the end of each financial year, setting out the priorities and objectives of policing for the following financial year;
(b)	determine the fixed establishment of the Service and the number and grading of posts;
(c)	determine the distribution of the numerical strength of the Service after consultation with the board;
(d)	organise or reorganise the Service at national level into various components, units or groups;
(e)	establish and maintain training institutions or centres for the training of students and other members;
(f)	establish and maintain bureaus, depots, quarters, workshops or any other institution of any nature whatsoever, which may be expedient for the general management, control and maintenance of the Service; and
(g)	perform any legal act or act in any legal capacity on behalf of the Service.
Amendment of section 16 of Act 68 of 1995, as amended by section 2 of Act 57 of 2008

3. Section 16 of the principal Act is hereby amended—

(1)	Circumstances amounting to criminal conduct or an endeavour thereto, as set out in subsection (2), shall be regarded as organised crime, crime which requires national prevention or investigation, or crime which requires specialised skills in the prevention and investigation thereof.

(2) Circumstances contemplated in subsection (1) comprise criminal conduct or endeavour thereto-
	(a)	by a person, group of persons or syndicate acting in-
	  	(i)	an organised fashion; or
(ii)	a manner which could result in substantial financial gain for the person, group of persons or syndicate involved.
(b)(i)	by a person or persons in positions of trust and making use of specialised or exclusive knowledge;
(ii)	in respect of the revenue or expenditure of the national government; or
		(iii)	in respect of the national economy or the integrity of currencies;
(c)	which takes on such proportions or is of such a nature that the prevention or investigation  thereof at national level would be in the national interest;
	(d)	in respect of unwrought precious metals or unpolished diamonds;
(e)	in respect of the hunting, importation, exportation, possession, buying and selling of endangered species or any products thereof as may be prescribed;
(f)	in more than one province or outside the borders of the Republic by the same perpetrator or perpetrators, and in respect of which the prevention or investigation at national level would be in the national interest;
(g)	in respect of which the prevention or investigation requires the application of specialised skills and where expedience requires that it be prevented or investigated at national level;

(a) by the substitution in subsection (2) for paragraph (h) of the following paragraph:

‘‘(h)	 which a Provincial Commissioner requests the [National Commissioner] Head of the Directorate for Priority Crime Investigation, referred to in section 17C(2), to prevent or investigate by employing expertise and making resources available at national level and to which request the [National Commissioner] Head of the Directorate for Priority Crime Investigation accedes in accordance with the approved policy guidelines;’’;

(i)	in respect of which the investigation in the Republic by the Service is requested by an international police agency or the police of a foreign country;

(iA)	in respect of the commission of any alleged offence mentioned in the Schedule; or

(j)	in respect of which the prevention or investigation by members under the command of a Provincial Commissioner will detrimentally affect or hamper the prevention or investigation of circumstances referred to in paragraphs (a) to (iA).

(2A) For the purpose of subparagraph (a) (i), 'organised fashion' includes the planned, ongoing, continuous or repeated participation, involvement or engagement in at least two incidents of criminal or unlawful conduct that has the same or similar intents, results, accomplices, victims or methods of commission, or otherwise are related by distinguishing characteristics.

(b) by the substitution for subsection (3) of the following subsection:

‘‘(3) In the event of a dispute between the [National Commissioner] Head of the Directorate for Priority Crime Investigation and a Provincial Commissioner regarding the question whether criminal conduct or endeavour thereto should be regarded as organised crime, crime which requires national prevention or investigation or crime which requires specialised skills in the investigation and prevention thereof, the determination by the [National Commissioner] Head of the Directorate for Priority Crime Investigation in accordance with the approved policy guidelines, shall prevail.’’

Proposal that subsection (4) be reconsidered (was not previously included in the Bill).

 [(4) (a) Notwithstanding the provisions of subsections (1), (2) and (3), the Provincial Commissioner shall be responsible for the prevention and investigation of all crimes or alleged crimes committed in the province concerned.]

(c)	by the addition of the following subsection:

(5)	All members of the Service shall cooperate with one another in accordance with the principles provided for in Chapter 3 of the Constitution of the Republic of South Africa 1996.

Catch-all in respect of all sections

Chapter 3 Cooperative provision  

(c) by the substitution in subsection (4) for paragraphs (b) and (c) for the following paragraphs, respectively:

‘‘(b) Where an investigation of a crime or alleged crime reveals that the circumstances referred to in subsection (2) are present, the Provincial Commissioner shall report the matter to the [National Commissioner] Head of the Directorate for Priority Crime Investigation as soon as possible.
(c) The [National Commissioner] Head of the Directorate for Priority Crime Investigation may, [in] after consultation with the Provincial Commissioner concerned, notwithstanding the presence of the circumstances referred to in subsection (2), direct that the investigation or any part thereof, be conducted by the Provincial Commissioner.’’.

CHAPTER 6A
DIRECTORATE FOR PRIORITY CRIME INVESTIGATION (ss 17A-17L)

17A  Definitions
In this Chapter, unless the context otherwise indicates-
'Directorate' means the Directorate for Priority Crime Investigation, established by section 17C; 
'Ministerial Committee' means the Committee referred to in section 17I (1);
'national priority offence' means organised crime, crime that requires national prevention or investigation, or crime which requires specialised skills in the prevention and investigation thereof, as referred to in section 16 (1); and
'Operational Committee' means the Operational Committee established by section 17J.

 #Insertion of new section 17AA
Heading!!!!!

The provisions of Chapter 6A in respect of the mandate of the Directorate apply to the exclusion of any section within this Act. 

Amendment of section 17B of Act 68 of 1995, as inserted by section 3 of Act 57 of 2008

4. Section 17B of the principal Act is hereby amended by the substitution for paragraph (a) of the following paragraph:

17B  Application of Chapter
In the application of this Chapter the following should be recognised and taken into account:
“(a) 	The need to establish a Directorate [as a Division of] in the Service to prevent, combat and investigate national priority offences, in particular serious organised crime, serious commercial crime and serious corruption.’’.
	(b)	The need to ensure that the Directorate-
	  (i)	implements, where appropriate, a multi-disciplinary approach and an 
integrated methodology  involving the co-operation of all relevant Government departments and institutions;
	 (ii)	has the necessary independence to perform its functions;
(iii)	is equipped with the appropriate human and financial resources 
to perform its functions;
(iv)	is staffed through the transfer, appointment, or secondment of personnel whose integrity is beyond reproach.

Substitution of section 17C of Act 68 of 1995, as inserted by section 3 of Act 57 of 2008

5. The following section is hereby substituted for section 17C of the principal Act:
‘‘Establishment and composition of Directorate for Priority Crime Investigation
17C. (1) The Directorate for Priority Crime Investigation is hereby established as a [Division of] Directorate in the Service.
(1A) The Directorate comprises—
(a) the Office of the Head of the Directorate at national level; and
(b) the Office of the Provincial Directorate in each province.
(2) The Directorate [comprises] consists of—
(a) the Head of the Directorate[,] at national level, who shall manage and direct the Directorate and who shall be a Deputy National Commissioner appointed by the Minister in concurrence with Cabinet;
(aA) the Deputy Head of the Directorate at national level;
(aB) the Provincial Heads of the Directorate;
(b) other persons appointed by the [National Commissioner on the recommendation of the] Head of the Directorate at national and provincial level on the basis of the required level of experience,
training, skills, competence [or] and knowledge;
(c) an adequate number of legal officers appointed to the Directorate;
[and]
(d) officials from any Government department or institution, seconded to
the Directorate in terms of laws governing the public service; and
(e) administrative staff appointed to the Directorate.
~~[~~(3) [The Minister shall report to Parliament on the appointment of
the Head of the Directorate.]’ The Head of the Directorate shall manage and control all members of the Directorate.”. 

Insertion of section 17CA in Act 68 of 1995

6. The following section is hereby inserted in the principal Act after section 17C:

‘‘Appointment, remuneration and conditions of service
17CA. (1) The Minister, with the concurrence of Cabinet, shall appoint a person who is─
(a)	a South African citizen; and 
(b)	 a fit and proper person, with due regard to his or her experience, conscientiousness and integrity, to be entrusted with the responsibilities of the office concerned, 
as Head of the Directorate for a non-renewable fixed term of [not exceeding] seven years.

The period had been discussed also on 4 May 2012, but without taking a final decision (proposals between 7 and 10 years).

(2) The Minister shall report to Parliament on the appointment of the
Head of the Directorate within 14 days of the appointment if Parliament is
then in session or, if Parliament is not then in session, within 14 days after
the commencement of its next ensuing session.
(3) The Head of the Directorate, with the concurrence of the Minister, shall appoint a person who is─
(a)	a South African citizen; and 
(b)	 who is a fit and proper person, with due regard to his or her experience, conscientiousness and integrity, to be entrusted with the responsibilities of the office concerned, 
 as a Deputy Head of the Directorate for a non-renewable fixed term of [not exceeding] seven years.
(4) The Head of the Directorate, with the concurrence of the Minister,
shall appoint a person who is─
(a)	 a South African citizen; and
(b)	a fit and proper person, with due regard to his or her experience, conscientiousness and integrity, to be entrusted with the responsibilities of the office concerned, 
as a Provincial Head of the Directorate for a non-renewable fixed term of [not exceeding] seven years.
(5) (a) The remuneration, allowances and other terms and conditions of
service and service benefits of the Head of the Directorate shall be
determined by the Minister with the concurrence of the Minister of Finance,
by notice in the Gazette.
(b) The remuneration, allowances and other terms and conditions of
service and service benefits of the Deputy Head and Provincial Heads of the
Directorate shall be determined by the Minister after consultation with the
Head of the Directorate and with the concurrence of the Minister of
Finance: Provided that—
(i) the salary of the Head shall not be less than the salary level of the
highest paid Deputy National Commissioner of the Service;
(ii) the salary of the Deputy Head shall not be less than 75 per cent of the
salary of the Head; and
(iii) the salary of a Provincial Head shall not be less than [65 per cent of the salary of the Head] the salary of the most senior Deputy Provincial Commissioner.
(6) The Minister must submit the remuneration scale payable to the
Head, Deputy Head and Provincial Heads to Parliament for approval, and
such remuneration scale may not be reduced except with the concurrence of
Parliament.
(7) The Deputy Head of the Directorate shall exercise such powers and
perform such functions as the Head of the Directorate in terms of this or any
other law may assign to him or her.
(8) A Provincial Head shall exercise such powers or perform such
functions as the Head of the Directorate in terms of this or any other law
may assign to him or her.
(9) (a) Whenever the Head of the Directorate is absent or unable to
perform his or her functions, the Minister may[, with the concurrence of the
Cabinet,] appoint the Deputy Head as the acting Head of the Directorate.
(b) Whenever the office of the Head of the Directorate is vacant, or the
Head is for any reason unable to take up the appointment contemplated in
subsection (1), the Minister may[, with the concurrence of Cabinet,] appoint
the Deputy Head as the acting Head of the Directorate.
(c) Whenever the Deputy Head is absent or unable to perform his or her
functions, the Head of the Directorate may, [in consultation with the
Minister,] appoint a suitably qualified and experienced person as the acting
Deputy Head of the Directorate.
(d) If both the Head and the Deputy Head of the Directorate are absent or
if both those offices are vacant, the Minister shall, [with the concurrence of
Cabinet,] appoint a suitably qualified and experienced person as the acting
Head of the Directorate.
(10) Subject to subsection (12), the Head, Deputy Head and Provincial
Heads of the Directorate shall vacate their offices on attaining the age of [60]
65 years.
(11) If the Head or Deputy Head of the Directorate attains the age of [60]
65 years after the first day of any month, he or she shall be deemed to have
attained that age on the first day of the next succeeding month.
(12) If the Minister is of the opinion that it is in the public interest to
retain the Head or Deputy Head of the Directorate in his or her office
beyond the age of [60] 65 years, and—
(a) the Head or Deputy Head of the Directorate wishes to continue to
serve in such office; and
(b) the mental and physical health of the person concerned enable him or
her so to continue, the Minister may from time to time, with the concurrence of Cabinet, direct that the Head or Deputy Head be so retained[, but not for a period  which exceeds, or periods which in the aggregate exceed, two years]: Provided that the term of office of the Head or Deputy Head of the Directorate shall not exceed seven years.

Consider to shift this subsection up.

(13) The Minister may make regulations in respect of the remuneration,
allowances and other conditions of service of other members of the
Directorate.
(14) The regulations referred to in subsection (13) shall be submitted to
Parliament for approval.
 (15)	 Any disciplinary action against a Deputy Head, Provincial Head, member or employee in the service of the Directorate shall be considered and finalised within the Directorate’s structures subject to the relevant prescripts. 
(16)	No Deputy Head of the Directorate, Provincial Head of the Directorate,  member  or administrative staff of the Directorate may	 be-
[(a)	 dismissed; 
(b)	retrenched; or
(b)	 transferred from the Directorate]

(a)	transferred;
(b)	dismissed,
from the Directorate,except after approval by the Head of the Directorate.

According to my notes

(17)	The National Commissioner may only in consultation with the Head of the Directorate involve members of the Directorate in national joint operations in consultation with the Head of the Directorate and in circumstances that would be of assistance to the Directorate in the execution of its mandate and functions in terms of this Act.
(18)	The Head of the Directorate shall not be involved in management functions of the Service, except as required in terms of Chapter 6A of this Act”. 

Provisional wording need further discussion and refinement: Proposal by Honourable member Ms A van Wyk.

Discussed on 4 May 2012

Amendment of section 17D of Act 68 of 1995, as inserted by section 3 of Act 57 of 2008

7. Section 17D of the principal Act is hereby amended—

 17D  Functions of Directorate
(1) The functions of the Directorate are to prevent, combat and investigate-

(a) by the substitution in subsection (1) for paragraph (a) of the following
paragraph:
‘‘(a) national priority offences, which in the opinion of the Head of the
Directorate need to be addressed by the Directorate, subject to any
policy guidelines issued by the [Ministerial Committee] Minister
and approved by Parliament; [and]’’;

 (b) by the insertion in subsection (1) of the following paragraph after paragraph (a):

‘‘{(aA) [in particular selected offences contemplated in Chapter 2 and section 34 of the Prevention and Combating of Corrupt Activities Act, 2004 (Act No. 12 of 2004), namely-

The State Law Adviser undertook to look at these provisions in order to improve drafting style.

(a)	section 3: the general offence of corruption;
(b)	section 4: offences in respect of corrupt activities relating to public officers;
(c)	section 5: offences in respect of corrupt activities relating to foreign public officials;
(d)	section 6: offences in respect of corrupt activities relating to agents;
(e)	section 7: offences in respect of corrupt activities relating to members of legislative authority;
(f)	section 8: offences in respect of corrupt activities relating to relating to judicial officers;
(g)	section 9: offences in respect of corruption relating to members of the prosecuting authority;
(h)	section 10: offences of receiving or offering of unauthorised gratification by or to party to an employment relationship;
(i)	section 11: offences in respect of corrupt activities relating to witnesses and evidential material during certain proceedings;
(j)	 section 12: offences in respect of corrupt activities relating to contracts;
(k)	 section 13: offences in respect of corrupt activities relating to procuring and withdrawal of tenders;
(l)	section 14: offences in respect of corrupt activities relating to auctions;
(m)	section 15: offences in respect of corrupt activities relating to sporting events;
(n)	section 16: offences in respect of corrupt activities relating to gambling games or games of chance;
(o)	section 17: offence relating to acquisition of private interest in contract, agreement or investment of public body
(p)	section 18: offences of unacceptable conduct relating to witnesses;
(q)	section 19: intentional interference with, hindering or obstruction of investigation of offence
(r)	section 20: accessory to or after corruption offence mentioned above;
(s)	section 21: attempt, conspiracy and inducing another person to commit offence mentioned above;
(t)	section 34: offences relating to the reporting of corrupt transactions]};’’

(aA)	including, but not limited to selected offences referred to in Chapter 2 and section 34 of the Prevention and Combating of Corrupt Activities Act, 2004 ( Act No. 12 of 2004) and; 

(c) by the substitution in subsection (1) for paragraph (b) of the following paragraph:

‘‘(b) any other offence or category of offences referred to it from time to time by the National Commissioner, subject to any policy guidelines issued by the [Ministerial Committee] Minister and approved by Parliament.’’; and	

(d) by the insertion of the following subsection after subsection (1):

‘‘(1A) The Head of the Directorate shall ensure that the Directorate	observes the policy guidelines referred to in subsection (1).’’.

(2)	If, during the course of an investigation by the Directorate, evidence of any other crime is detected and the Head of the Directorate considers it in the interests of justice, or in the public interest, he or she may extend the investigation so as to include any offence which he or she suspects to be connected with the subject of the investigation.

(3) The Head of the Directorate may, if he or she has reason to suspect that a national priority offence has been or is being committed, request the National Director of Public Prosecutions to designate a Director of Public Prosecutions to exercise the powers of section 28 of the National Prosecuting Authority Act, 1998 (Act 32 of 1998).

Insertion of sections 17DA and 17DB in Act 68 of 1995

8. The following sections are hereby inserted in the principal Act after section 17D:

‘‘[Loss of confidence in] Removal from office of Head of Directorate

17DA. (1) The Head of the Directorate shall not be suspended or removed from office except in accordance with the provisions of subsections (2), (3) and (4).
(2) (a) The Minister may provisionally suspend the Head of the Directorate from his or her office, pending an enquiry into his or her fitness to hold such office as the Minister deems fit and, subject to the provisions of this subsection, may thereupon remove him or her from office—
(i) 	for misconduct;
(ii) 	on account of continued ill-health;
(iii) 	on account of incapacity to carry out his or her duties of office efficiently; or
(iv)	 on account thereof that he or she is no longer a fit and proper person to hold the office concerned.
(b) 	The removal of the Head of the Directorate, the reason therefor and the representations of the Head of the Directorate, if any, shall be communicated in writing to Parliament within 14 days after such removal if Parliament is then in session or, if Parliament is not then in session, within 14 days after the commencement of its next ensuing session.
(c)	 The Head of the Directorate provisionally suspended from office shall  [receive, for the duration] during the period of such suspension [no salary or such salary as may be determined by the Minister], be entitled to any salary, allowance, privilege or benefit to which he or she is otherwise entitled, unless the Minister determines otherwise. 
(d)	An enquiry referred to in this subsection - 
(i)	shall perform its functions subject to the provisions of the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000), in particular to ensure procedurally fair administrative action; and
(ii)	must be led by a legal professional who had been in practise for at least ten years.
(e)	The Head of the Directorate shall be informed of any allegations against him or her and shall be granted an opportunity to make submissions to the enquiry upon being informed of such allegations.
(3) The Minister shall also remove the Head of the Directorate from office if an address from each of the respective Houses of Parliament in the same session, praying for such removal on any of the grounds referred to in subsection(2)(a), is presented to the Minister, subsequent to an enquiry referred to in subsection (2) into the fitness of the Head of the Directorate.

The State Law Advisers have developed a number of options in regard to the process pertaining to Parliament:
Proposals:

(3) (a) The Head of the Directorate may be removed from office on the ground of misconduct, incapacity or incompetence on a finding to that effect by a committee of the National Assembly; and
(b) the adoption by the Assembly of a resolution calling for that person’s removal from office.
(4) A resolution of the National Assembly concerning the removal from office of the Head of the Directorate must be adopted with a supporting vote of at least two thirds of the members of the assembly; 
(5) The Minister –
(a)	may suspend the Head of the Directorate from office at any time after the start of the proceedings of a committee of the National Assembly for the removal of that person; and
(b)	must remove the Head of the Directorate from office upon adoption by the Assembly of the resolution calling for the Head of the Directorate’s removal;

OR

(3)(a)  The National Assembly may, after due inquiry and by the adoption of a resolution, recommend the removal of the Head of the Directorate from office on account of any or all of the following:
	(i)	Misconduct; or
	(ii)	inability to perform the duties of his or her office efficiently;

(4)  The Minister —
	(a)	may suspend the Head of the Directorate from office at any time after the start of the proceedings of the National Assembly for the removal of that Head;
	(b)	must act in accordance with a recommendation contemplated in subsection (3) within 30 days;

(4) The Minister may allow the Head of the Directorate, at his or her
request, to vacate his or her office—
(a) 	on account of continued ill-health; or
(b)	 for any other reason which the Minister deems sufficient.
(5) The request in terms of subsection (4) shall be addressed to the Minister at least six calendar months prior to the date on which the Head of	the Directorate wishes to vacate his or her office, unless the Minister grants	a shorter period in a specific case.

The issue of six months extensively discussed. It is the same as in case of NPA and does allow for shorter period in exceptional circumstances.

Staff of Directorate

17DB. The Head of the Directorate must—
(a) 	determine the fixed establishment of the Directorate and the number
and grading of posts, after consultation with the Minister and the
Minister for the Public Service and Administration; and
(b) 	appoint the staff of the Directorate: Provided that where a member of
the Service is appointed to the Directorate, the Head must do so after
consultation with the National Commissioner.’’.

Amendment of section 17E of Act 68 of 1995, as inserted by section 3 of Act 57 of 2008

9. Section 17E of the principal Act is hereby amended—

 (a)	 by the substitution in subsection (2) for paragraphs (a) and (c) of the following paragraphs, respectively:

17E  Security screening and integrity measures
(1) Any person who is considered for appointment in, or secondment to, the Directorate, shall be subject to a security screening investigation in terms of and in accordance with section 2A of the National Strategic Intelligence Act, 1994 (Act 39 of 1994).
(2) No person may be appointed to the Directorate unless-
	‘‘(a) 	a security clearance has been issued to that person in terms of
section 2A(6) of the National Strategic Intelligence Act, 1994 (Act
No. 39 of 1994), by [the Head of the Crime Intelligence Division
of the Service] any Intelligence Structure referred to in that Act as
may from time to time be determined by the Minister;

(b)	a security clearance on the required level and which is still valid has been issued to the person in question in terms of section 2A (6) of the National Strategic Intelligence Act, 1994; or

(c)	     a temporary security clearance has been issued by [the Head of the 
Crime Intelligence Division of the Service] any Intelligence Structure referred to in the National Strategic Intelligence Act, 1994, determined by the Minister after the person had submitted an application to [the Head of the Crime Intelligence Division] such Intelligence Structure to have a security screening investigation conducted.’’; 

 (3) Any appointment on the basis of a temporary security clearance shall be subject to the finalisation of the security screening investigation and the issuing of a security clearance in terms of section 2A (6) of the National Strategic Intelligence Act, 1994.

(b)	 by the substitution for subsection (4) of the following subsection:

‘‘(4) Whenever the [Head of the Crime Intelligence Division of the Service] head of the Intelligence Structure referred to in subsection (2)(a) and (c) acting in terms of section 2A(6) of the National Strategic Intelligence Act, 1994, upon reasonable grounds, degrades, withdraws or refuses a security clearance, the National Commissioner may transfer such person from the Directorate, or if such person cannot be redeployed elsewhere in the Service, discharge him or her, subject to the provisions of section 34.’’; and

 (5) A member of the Directorate may from time to time, or at such regular intervals as the Head of the Directorate may determine, be subjected to a further security screening investigation.
(6) If, upon information at the disposal of the Head of the Directorate, he or she reasonably believes that the person concerned poses a security risk, he or she may require the member to undergo a further security screening investigation.
(7) (a) Any member of the Directorate must, in the prescribed manner and at the prescribed intervals, disclose his or her prescribed financial and other interests and those of his or her immediate family members.
(b) For the purpose of paragraph (a), 'immediate family member' refers to the spouse, civil partner or permanent life partner of that member, and includes dependent children of, and dependent family members living in the same household with that member.
(8) (a) The Minister may prescribe measures for integrity testing of members of the Directorate, which may include random entrapment, testing for the abuse of alcohol or drugs, or the use of the polygraph or similar instrument to ascertain, confirm or examine in a scientific manner the truthfulness of a statement made by a person.
(b) The necessary samples required for any test referred to in paragraph (a), may be taken, but any sample taken from the body of a member may only be taken by a registered medical practitioner or a registered nurse.
(c) The Minister shall prescribe measures to ensure the confidentiality of information obtained through integrity testing, if such measures are prescribed in terms of paragraph (a). 

(c) by the addition of the following subsections:

‘‘(9) (a) A member of the Directorate shall serve impartially and exercise his or her powers or perform his or her functions in good faith.
(b) Subject to the Constitution of the Republic of South Africa, 1996, and this Act, no organ of state and no member or employee of an organ of state nor any other person shall improperly interfere with, hinder or obstruct a member of the Directorate, in the exercise, carrying out or performance of its, his or her powers, duties and functions.
(10) The Head of the Directorate, the Deputy Head of the Directorate and any person seconded to or employed in the Directorate, must before commencing with their functions in terms of this Act, take an oath or make an affirmation, which shall be subscribed by them, in the form set out below:
‘I _______________________________________________________
(full name)
do hereby swear/solemnly affirm that I will in my capacity as Head of the Directorate/Deputy Head of the Directorate/member of the Directorate/ employee at the Directorate/being seconded to the Directorate uphold and protect the Constitution and the fundamental rights entrenched therein and enforce the Law of the Republic without fear, favour or prejudice and, as the circumstances of any particular case may require, in accordance with the Constitution and the Law. (In the case of an oath: So help me God.)’.

(10)	Without derogating from the provisions of section 67 of this Act, any person, including any member of the Service, who resists or  wilfully hinders or obstructs or unduly influence the Head, Deputy Head, Provincial Head or any member of the Directorate in the exercising of his or her functions shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding two years.”.

Substitution of section 17F of Act 68 of 1995, as inserted by section 3 of Act 57 of 2008

10. Section 17F of the principal Act is hereby amended—

17F  Multi-disciplinary approach

(1) Government departments or institutions shall, when required to do so, take reasonable steps to assist the Directorate in the achievement of its objectives.

(a)	by the substitution for subsection (2) of the following subsection:

‘‘(2) The [National Commissioner] Head of the Directorate [shall] may request the secondment of personnel from any other Government department or institution, whenever [the Head of the Directorate requests such secondment] he or she deems it necessary for the effective performance of the functions of the Directorate.’’;

 (3) The Directorate shall be assisted in the performance of its functions by personnel seconded by relevant Government departments or institutions, which may include personnel from the South African Revenue Service, the Financial Intelligence Centre and the Department of Home Affairs.
(4) The National Director of Public Prosecutions must ensure that a dedicated component of prosecutors is available to assist and co-operate with members of the Directorate in conducting its investigations.
(5) The Director-General of the Government department or Head of the relevant Government institution, referred to in subsection (2), shall upon request by the National Commissioner, identify suitable personnel to be seconded to the Directorate upon such terms and conditions as may be agreed upon between the National Commissioner and the Director-General of the department or Head of the Government institution concerned.
(6) Without derogating from the functions of the Service in respect of crime intelligence, as provided for in the National Strategic Intelligence Act, 1994 (Act 39 of 1994), the Directorate shall be supported by the Crime Intelligence Division of the Service to gather, correlate, evaluate, co-ordinate and use crime intelligence in the performance of its functions. 

(c) by the substitution for subsection (7) of the following subsection:

‘‘(7) (a) If the [National Commissioner] Head of the Directorate so requests, any person seconded in terms of subsection (3) shall retain the powers, duties and functions endowed by any law governing the powers, duties and functions of that department or institution, and that person may exercise such powers, duties and functions under the command of the Head of the Directorate or his or her delegate, but subject to such conditions as may be determined by the Head of the seconding Government department or institution.
(b)A person seconded under paragraph (a) shall in the performance of his or her functions act in terms of the laws applicable to the Government department or institution from which he or she is seconded, subject to such conditions as may be agreed upon by the [National Commissioner] Head of the Directorate and the Director-General of the Government Department or Head of the Government institution.’’.

17G  Conditions of service

The remuneration, allowances and other conditions of service of members of the Directorate shall be regulated in terms of section 24.

Substitution of section 17H of Act 68 of 1995, as inserted by section 3 of Act 57 of 2008

11. The following section is hereby substituted for section 17H of the principal Act:

‘‘Finances and financial accountability

17H. (1) The expenses incurred in connection with—
(a) the exercise of the powers, the carrying out of the duties and the
performance of the functions of the Directorate; and
(b) the remuneration and other conditions of service of members of the
Directorate,  shall be defrayed from monies appropriated by Parliament for this purpose to the departmental vote in terms of the Public Finance Management Act,
1999 (Act No.1 of 1999).
(2) In order to give effect to subsection (5), the Head of the Directorate must provide the National Commissioner with the necessary estimate of revenue and expenditure of the Directorate.   [National Commissioner must, [after] in consultation with the Head of the Directorate, prepare the necessary estimate of revenue and expenditure
of the Directorate.]
(2A)	Whenever the National Commissioner and the Head of the Directorate are unable to agree on the estimate of revenue and expenditure of the Directorate, the Minister must mediate between the parties.
(3) The National Commissioner, as the accounting officer of the Service,
shall, subject to the Public Finance Management Act, 1999, and subsection (2)—
(a) be charged with the responsibility of accounting for State monies
received or paid out for or on account of the Directorate;
(aA)	involve the Head of the Directorate in all consultations relating to the estimate of the budget of the Directorate including any consultations with the National Treasury relating to the budget of the Directorate;
(b) cause the necessary accounting and other records to be kept; and
(c) ensure that the annual report on the performance of the Directorate is
included as a distinct programme in the annual report of the Service.
(4) Monies appropriated by Parliament for this purpose—
(a) constitute earmarked funds on the departmental vote of the Service;
and
(b) must not be used by the Service for purposes other than those of the
Directorate.
(5)	The Head of the Directorate shall have control over the earmarked budget of the Directorate  at national and provincial level in respect of expenses of the Directorate [, both in respect of the national and provincial level].’’.

State Law Adviser requested to look at the wording with a view to improving.

Amendment of section 17I of Act 68 of 1995, as inserted by section 3 of Act 57 of 2008)

 17I  Coordination by Cabinet

(1) The President shall for purposes of subsections (2) and (3) designate a Ministerial Committee which shall include-
	(a)	at least the Ministers [for] of-
	  	(i)	[Safety and Security] Police;

Not discussed: Proposal from drafters.

	 	(ii)	Finance;
		(iii)	Home Affairs;
		(iv)	[Intelligence] State Security; and
	 	(v)	Justice; [as well as]
	(b)	any other Minister designated from time to time by the President.

12. Section 17I of the principal Act is hereby amended by the substitution for
subsections (2) and (3) of the following subsections, respectively:

‘‘(2) The Ministerial Committee may determine[—
(a) policy guidelines in respect of the functioning of the Directorate;
(b) policy guidelines for the selection of national priority offences by the
Head of the Directorate in terms of section 17D(1)(a);
(c) policy guidelines for the referral to the Directorate by the National
Commissioner of any offence or category of offences for investigation by
the Directorate in terms of section 17D(1)(b);
(d)] procedures to coordinate the activities of the Directorate and other relevant
Government departments or institutions. 
 
(3) (a) The Ministerial Committee [shall oversee the functioning of the
Directorate and] shall meet as regularly as necessary [, but not less than four times] and must annually report to Parliament on its activities.
(aA)	The Ministerial Committee shall at any time upon being requested to do so, submit to Parliament a report on its activities.
(b) The National Commissioner and the Head of the Directorate shall, upon
request of the Ministerial Committee, provide performance and implementation
reports to the Ministerial Committee.’’.
REVISED PROPOSED AMENDMENTS TO INTRODUCED BILL
FROM SECTION 17J FOR DISCUSSION ON 8 MAY 2012

Amendment of section 17J of Act 68 of 1995, as inserted by section 3 of Act 57 of 2008

13. Section 17J of the principal Act is hereby amended—

 17J  Operational Committee

(1) (a) There is hereby established a committee, to be known as the Operational Committee, which comprises-

(a) by the substitution in subsection (1)(a) for subparagraphs (i) and (ii) of the
following subparagraphs:

	  (i)	the [National Commissioner] Head of the Directorate, as chairperson;
	 (ii)	the Deputy Head of the Directorate, as deputy chairperson;

 (b) by the insertion in subsection (1)(a) of the following subparagraphs after subparagraph (ii):

‘‘(iiA) 	a Deputy National Commissioner of the South African Police Service designated by the National Commissioner;
(iiB)	 the Head of the Crime Intelligence Division of the South African Police Service;’’;

	(iii)	the National Director of Public Prosecutions;
(iv)	the Directors-General of Finance, Justice and Constitutional Development, the National Intelligence Agency and Home Affairs;
	 (v)	the Commissioner of the South African Revenue Service;
	(vi)	the Head of the Financial Intelligence Centre; and
	(vii)	such other persons as the Operational Committee may require from time to time, for the duration determined by the Operational Committee.

(c) by the substitution in subsection (1) for paragraph (b) of the following paragraph:

‘‘(b) 	An official at the [rank] level of at least [an Assistant Commissioner] a [Major General or] Chief Director may be designated on a permanent basis to represent any official mentioned above if he or she is not available: Provided that the official listed in paragraph (a) may also attend.’’;

(d) by the substitution in subsection (2) for paragraph (a) of the following paragraph:

(2) The Operational Committee shall-
‘‘(a)	 review, monitor and facilitate the support and assistance of the respective Government departments or institutions to the Directorate as well as secondments to the Directorate, and address problems which arise regarding such support and assistance; and’’; and

(e) by the deletion in subsection (2) of paragraphs (b) and (c).

[(b)	perform such functions as from time to time may be directed by the Ministerial Committee;]
(c)	report to the Ministerial Committee on interdepartmental assistance to and co-operation with the Directorate; and]

(d)	meet as regularly as required to fulfil its functions, but not less than four times annually.

Amendment of section 17K of Act 68 of 1995, as inserted by section 3 of Act 57 of 2008

14. Section 17K of the principal Act is hereby amended—

17K  Parliamentary oversight

(1) Parliament shall effectively oversee the functioning of the Directorate and the committees established in terms of this Chapter.

(a)	by the substitution for subsection (2) of the following subsection:

‘‘(2) The National Commissioner shall include in the annual report to Parliament in terms of section 40 [55](d) of the Public Finance Management Act, 1999 (Act No. 1 of 1999), a report in respect of the [activities] performance of the Directorate [as a programme] [of the Service] compiled by the Head as a separate programme.’’.

(aA)	the insertion of the following new subsections:

(1A)	The budget report to Parliament, referred to in subsection (2), must include a full breakdown of the earmarked budget of the Directorate.
~~(2A)~~	~~The report on the programme referred to in subsection (2) must include a full break-down of the ring-fenced budget of the Directorate.~~
~~(2B)~~	~~In considering the budget for the Department, Parliament must be provided with a full breakdown of the Directorate as a separate programme.~~
(2B)	The Head of the Directorate must make a presentation to Parliament on the budget of the Directorate.”.

(b)	by the deletion of subsection (3);

[(3) 	In addition to the annual report mentioned in subsection (2), the Head of the Directorate shall at any time when requested to do so by Parliament, submit  a report on the activities of the Directorate;]”

(c)	by the substitution for subsection (4) of the following subsection:

‘‘(4) The Minister shall—
(a) determine, with the concurrence of Parliament—
(i) 	policy guidelines for the selection of national priority offences
by the Head of the Directorate referred to in section 17D(1)(a);
(ii) 	policy guidelines for the referral to the Directorate by the National Commissioner of any offence or category of offences for investigation by the Directorate referred to in section	17D(1)(b);
(b) 	submit to Parliament any policy guidelines referred to in section [17I(2)(a), (b) and (c)] for [approval] concurrence.’’;

(d) 	by the deletion of subsections (5) and (6); and

[(5) Policy guidelines referred to in section 17I (2) (a), (b) and (c) submitted for approval to Parliament that are not approved within three months of submission shall be deemed to be approved.

(6) The Minister shall, not later than three years after the commencement of this section, submit a report to Parliament on whether any legislative amendments are required to improve the functioning of the Directorate.]

(d)	by the addition of the following subsections:

‘‘(7) The first policy guidelines issued under this Act shall be tabled in Parliament [as soon as possible, but] not later than six months after the appointment of the Head in terms of this Act.
(8) Any changes to the policy guidelines referred to in subsection (4) must be submitted to Parliament for consideration and approval for implementation.
(9) The Minister shall report to Parliament on the appointment of the Head of the Directorate.’’.

Amendment of section 17L of Act 68 of 1995, as inserted by section 3 of Act 57 of 2008

15. Section 17L of the principal Act is hereby amended by─

17L  Complaints mechanism

(1) (a) The Minister shall, after consultation with the Minister of Justice and the Chief Justice, appoint a retired judge in order to investigate complaints referred to in subsection (4).
(b) For purposes of paragraph (a) 'retired judge' shall mean a judge discharged from active service as referred to in the Judges' Remuneration and Conditions of Employment Act, 2001 (Act 47 of 2001).
(2) The performance of the functions provided for in respect of the retired judge does not derogate from the powers of the Independent Complaints Directorate referred to in section 50 to investigate complaints in respect of any member, including members in the Directorate for Priority Crime Investigation.
(3) The retired judge shall not investigate complaints about intelligence matters falling under the jurisdiction of the Inspector-General of Intelligence.
(4) The retired judge may receive complaints in the prescribed form and manner from-
(a)	any member of the public who can provide evidence of a serious and unlawful infringement of his or her rights caused by an investigation by the Directorate; or
(b)	any member of the Directorate who can provide evidence of any improper influence or interference, whether of a political or any other nature, exerted upon him or her regarding the conducting of an investigation.
(5) The retired judge may upon receipt of a complaint investigate such complaint or refer it to be dealt with by, amongst others, the Secretariat, the Independent Complaints Directorate, the National Commissioner, the Head of the Directorate, the relevant Provincial Commissioner, the National Director of Public Prosecutions, the Inspector-General of Intelligence, or any institution mentioned in chapter 9 of the Constitution of the Republic of South Africa, 1996.
(6) The retired judge shall report the outcome of any investigation undertaken by him or her or any referral to the Minister. 

(a)	 the substitution for subsection (7) for the following subsection: 

‘‘(7) The retired judge may request and obtain information from the National Director of Public Prosecutions in so far as it may be necessary for the judge to conduct an investigation[: Provided that the National Director of Public Prosecutions may on reasonable grounds refuse to accede to such request].’’.

(b)	the insertion of the following new subsection:

(7A) The retired judge may request information from any member of the South African Police Service for purposes of any investigation of the judge and the refusal to comply with such a request shall be a criminal offence for which a person, upon conviction may be sentenced to a fine or imprisonment or to both a fine and imprisonment of two years.”.

 (8) To the extent that it is reasonably necessary for the performance of the functions of the retired judge, he or she-
(a)	may obtain information and documents under the control of the Service;
(b)	may enter any building or premises under the control of the Service in order to obtain such information and documents; and
	(c)	shall be entitled to all reasonable assistance by a member.
(9) The judge shall annually report to Parliament on the performance of his or her functions.
(10) The Head of the Directorate may request the retired judge to investigate complaints or allegations relating to investigations by the Directorate or alleged interference with such investigations.
(11) Any person who makes a complaint in terms of this section shall not be entitled to use this section to establish whether there is an investigation against him or her, nor be entitled to any delay, interference or termination of such investigation on the basis that such complaint has been made.
(12) The Minister shall ensure that the retired judge has sufficient personnel and resources to fulfil his or her functions. 

(c)	the insertion of the following subsections:

(13) 	An annual operational budget must be prepared in consultation with the retired judge and provided for under the budget for the Secretariat.

(14)	Subsection (11) shall not be construed to inhibit the retired judge to investigate any matter which relates to an ongoing investigation.

(15)	The Secretary, in consultation with the retired judge, must develop and implement a plan to promote knowledge on the functions and role of the complaints mechanism both in respect of the public and members of the Directorate.

(16)	Any interference with the retired judge in the performance of his or her functions and duties shall be a criminal offence for which a person upon conviction may be sentenced to a fine or imprisonment of two years or to both such fine or imprisonment.”.

~~Insertion of section 17M in Act 68 of 1995~~
~~16. The following section is hereby inserted in the principal Act after section 17L:~~

~~‘‘Command and control of Directorate~~

~~[17M. Subject to the provisions of this Act, members of the Directorate are members of the South African Police Service with all the powers, duties and functions of other members of the South African Police Service.’’.]~~

Transitional arrangements

17. (1) The commencement of the South African Police Service Amendment Act,
2012 (in this section referred to as the Amendment Act), does not affect the validity of any investigation or prosecution conducted, pending or under investigation by the
Directorate on or before the commencement of this section.
(2) As from the date of commencement of this Amendment Act, the post of the Head
of the Directorate, Deputy Head of the Directorate and Provincial Head of the
Directorate must be filled in accordance with section 17CA of the Act as inserted by this Amendment Act, but the current incumbents of the respective posts will continue to hold office until the respective posts are filled in terms of section 17CA.
[(3) Subject to the Labour Relations Act, 1995 (Act No. 66 of 1995), the Head of the Directorate may evaluate any member for continued employment in the Directorate to ensure that the Directorate focuses on its mandate, and may redeploy a member to another post in the Service, by agreement with the National Commissioner and after consultation with the member involved.]
(3) As from the date of the commencement of this section, but subject to subsection[s] (2) [and (3)]—
(a) any person who immediately before that date held the office of a member of
the South African Police Service in the Directorate, remains in the
Directorate; and
(b) the administrative and support personnel in the employ of the Directorate
immediately before that date, remain in the employ of the Directorate.
(4) An employee [contemplated in subsection (3)] may be transferred to the Directorate only with his or her consent.
[(6) (a) An employee [referred to in subsection (3)] who does not consent to be
transferred to the Directorate must, within 30 days of the date of the commencement of the Amendment Act, notify the National Commissioner in writing.
(b) In respect of such an employee, the National Commissioner may offer to transfer the employee to a reasonable alternative post or position in the South African Police Service, subject to the Labour Relations Act, 1995.]
(5)	As from the date of commencement of this Amendment Act, the budget of the reiterd Judge shall vest within the Secretariat.	
 18A. 
Amendment of sections 27 and 28 of Act 68 of 1995
Sections 27 and 28 are hereby substituted for the following sections
27 Filling of posts 
(1) Subject to Chapter 6A and subsection (2), the filling of any post in the Service, whether by appointment, promotion or transfer, shall be done in accordance with section 212 (4) of the Constitution. 

28 Recruitment and appointment
(1) The National Commissioner shall determine a uniform recruitment procedure for the Service and the Head of the Directorate shall determine a uniform recruitment procedure for the directorate for Priority Crime Investigation. 
Preamble 

Amendment of Preamble of Act 68 of 1995

18. The Preamble to the principal Act is hereby amended—

(a) by the substitution for the words preceding paragraph (a) of the following
words:

‘‘WHEREAS [section 214 of] the Constitution of the Republic of South
Africa, [1993 (Act 200 of 1993)] 1996, requires national legislation to
provide for the establishment, powers and functions [and regulation] of
[a] the South African Police Service [which shall be structured at both
national and provincial levels and shall function under the direction
of the national government as well as the various provincial
governments] to function in accordance with national policing policy
and the directions of the Cabinet member responsible for policing;
[AND] WHEREAS there is a need to provide a police service
throughout the national territory to—’’; 
(a) ensure the safety and security of all persons and property in the national territory; 
(b) uphold and safeguard the fundamental rights of every person as guaranteed by Chapter 3 of the Constitution; 
(c) ensure co-operation between the Service and the communities it serves in the combating of crime; 
(d) reflect respect for victims of crime and an understanding of their needs; and 

(e) ensure effective civilian supervision over the Service;

 (b) by the insertion after paragraph (e) of the following:

‘‘AND WHEREAS there is a need to provide for a Directorate in the Service that is dedicated to the prevention, investigation and combating of national priority offences, in particular serious organised and transnational crime, serious commercial crime and serious corruption, and that enjoys adequate independence to enable it to perform its functions’’.

Repeal and amendment of laws

19. The laws mentioned in the Schedule are repealed or amended to the extent set out in the third column.

Short title and commencement
20. This Act shall be called the South African Police Service Amendment Act, 2012, and comes into operation on a date determined by the President by proclamation in the Gazette.

SCHEDULE
LAWS AMENDED OR REPEALED
(Section 19)

Act No. and Year | Title | Total extent of amendment or repeal

1996

The Constitution of the Republic of South Africa

1.	Repeal of item 1(c) of Annexure D of Schedule 6 to the Constitution.
2.	The amendment of Item 24 of Schedule 6 of the Constitution, by the amendment of section 218(h) of Act 200 of 1993:
3.	(h) subject to Chapter 6A of the South African Police Service Act, 1995 (Act No. 68 of 1995), the recruitment, appointment, promotion and transfer of all members of the Service;”.

Act No 12 of 2004

Prevention and Combating of Corrupt Activities Act

2. Section 34 of the Prevention and Combating
of Corrupt Activities Act, 2004 is hereby amended—
(a) by the substitution for subsection (1) of
the following subsection:
‘‘(1) Any person who holds a position
of authority and who knows or ought
reasonably to have known or suspected
that any other person has committed—
(a) an offence under Part 1, 2, 3 or 4, or
section 20 or 21 (in so far as it relates
to the aforementioned offences)
of Chapter 2; or
(b) the offence of theft, fraud, extortion, forgery or uttering a forged document,
involving an amount of R100 000 or more, must report such knowledge or suspicion or cause such knowledge or suspicion to be reported to [any] the police official in the Directorate for Priority Crime Investigation referred to in section 17C of the South African Police Service Act, 1995.’’; and
(b) by the substitution for paragraphs (a) and (b) of subsection (3) of the following paragraphs:
‘‘(a)  Upon receipt of a report referred to in subsection (1), the police official
concerned must take down the report
in the manner directed by the
[National Commissioner] Head of
the Directorate for Priority Crime
Investigation, appointed in terms of
section 17C(2)(a) of the South African
Police Service Act, 1995, and
forthwith provide the person who
made the report with an acknowledgment
of receipt of such report.
(b)	 The [National Commissioner] Head of the Directorate for Priority Crime Investigation, must within three months of the commencement of this Act publish the directions contemplated in paragraph (a) in the Gazette, during which period any existing notice issued in terms of the Act shall remain in force.’’.

Schedule 
(Section 16 (2) (iA)) 
[Schedule inserted by s. 5 of Act 57 of 2008.] 
1 High treason; 
2 any offence referred to in paragraph (a) of the definition of 'specified offence' of the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004 (Act 33 of 2004); 
3 sedition; 
4 any offence referred to in Schedule 1 to the Implementation of the Rome Statute of the International Criminal Court Act, 2002 (Act 27 of 2002); 
5 any offence referred to in Chapters 2, 3 and 4 of the Prevention of Organised Crime Act, 1998 (Act 121 of 1998); 
6 any offence referred to in section 13 (f) of the Drugs and Drug Trafficking Act, 1992 (Act 140 of 1992); 
7 any offence referred to in the Non-Proliferation of Weapons of Mass Destruction Act, 1993 (Act 87 of 1993); 
8 any offence relating to the dealing in or smuggling of ammunition, firearms, explosives or armament and the unlawful possession of such firearms, explosives or armament; 
9 any offence contemplated in Chapter 2 and section 34 of the Prevention and Combating of Corrupt Activities Act, 2004 (Act 12 of 2004); 
10 any offence referred to in the Regulation of Foreign Military Assistance Act, 1998 (Act 15 of 1998), or the Prohibition of Mercenary Activities and the Regulation of Certain Activities in Country of Armed Conflict Act, 2006 (Act 27 of 2006); 
11 any offence referred to in the National Conventional Arms Control Act, 2002 (Act 41 of 2002); 
12 any offence the punishment wherefor may be imprisonment for life. 

MEMORANDUM ON THE OBJECTS OF THE SOUTH AFRICAN
POLICE SERVICE AMENDMENT BILL, 2012
1. BACKGROUND
On 17 March 2011, the Constitutional Court in Glenister v the President of the RSA and Others 2011 (7) BCLR 651 (CC) (Glenister case) declared chapter 6A of the South African Police Service Act, 1995 (Act No. 68 of 1995) (the Act), which deals with the Directorate for Priority Crime Investigation to be inconsistent with the Constitution of the Republic of South Africa, 1996, and invalid to the extent that it fails to secure an adequate degree of independence for the Directorate for Priority Crime Investigation (DPCI). The Constitutional Court suspended the declaration of invalidity for a period of 18 months to afford Parliament the opportunity to remedy the defect.

The Constitutional Court in its judgment indicated that the creation of ‘‘a separate crime fighting unit within the South African Police Service was not in itself unconstitutional’’. The Court posed two questions to be determined: namely whether or not the Constitution requires the State to establish and maintain an independent body to combat corruption and organised crime and whether or not the DPCI meets the requirement of independence. The Court concluded that the Constitution indeed imposes an obligation on the State to establish and maintain an independent body to combat corruption and organised crime. The Court also considered a number of international conventions regarding the independence of the corruption fighting units and held that ‘‘the obligations are clear and unequivocal in that they impose on the Republic a duty to create an anti corruption unit that has the necessary independence’’.

The Court considered and discussed in detail the legislative provisions that
establish the DPCI under the following aspects:
•	whether the DPCI has the operational and structural attributes required for an adequately independent anti-corruption unit;
•     security of tenure and remuneration; and
•     the accountability and oversight by the Ministerial Committee.

2. Objects of Bill

The Bill seeks to give effect to the Constitutional Court’s judgment and its order in the Glenister case to wit to amend the South African Police Service Act in order to align the provisions relating to the Directorate for Priority Crime Investigation with the judgment in the Glenister case.

The provisions of the Bill can be summarised as follows:
Ad Clauses 1 and 2
2.1. Clause 1 of the Bill amends section 6 of the Act and seeks to align the provisions in the Act which provide for the appointment of the National Commissioner and Provincial Commissioners to sections 207(1) and 207(3) of the Constitution of the Republic of South Africa, 1996.
2.2. Clause 2 of the Bill seeks to amend section 11 of the Act in order to align the functions of the National Commissioner with section 207(2) of the Constitution.
Ad Clause 3
2.3. Clause 3 of the Bill seeks to amend section 16 of the Act by providing for:
• 	the Head of the Directorate to decide which matters will be investigated
on a provincial or national level, in accordance with the approved policy
guidelines.
•	the determination of the Head of the Directorate made in accordance with approved policy guidelines, to prevail in the event of a dispute between the Head of the Directorate and a Provincial Commissioner regarding the question whether criminal conduct should be regarded as organised crime, crime which requires national prevention or investigation or crime which requires specialised skills in the investigation and prevention thereof.
Ad Clause 4
2.4. Clause 4 of the Bill seeks to provide for the amendment of section 17B of the Act by providing for the establishment of a Directorate in the South African Police Service to prevent, combat and investigate national priority offences, in particular serious organised crime, serious commercial crime and serious corruption.
Ad Clause 5
2.5. Clause 5 of the Bill seeks to amend section 17C of the Act by providing for the composition and establishment of the Directorate.
Ad Clause 6
2.6. Clause 6 of the Bill inserts section 17CA after section 17C of the Act and provides for the appointment, remuneration and conditions of service of the Head of the Directorate, the Deputy Head of the Directorate, the Provincial Heads of the Directorate and the employees of the Directorate.
Ad Clause 7
2.7. Clause 7 of the Bill seeks to amend section 17D of the Act by providing that the functions of the Directorate are to prevent, combat and investigate national priority offences and in particular selected offences contemplated in Chapter 2 and section 34 of the Prevention and Combating of Corrupt Activities Act, 2004 (Act No. 12 of 2004), which in the opinion of the Head of the Directorate need to be addressed by the Directorate, subject to any policy guidelines issued by the Minister and approved by Parliament. Clause 7 of the Bill also provides that the Head of the Directorate must ensure that the Directorate observes the policy guidelines referred to in section 17D.
Ad Clause 8
2.8. Clause 8 of the Bill inserts sections 17DA and 17DB in the Act and provides
that:
•  where there is [loss of confidence in] misconduct, continued ill-health, incapacity to carry out his or her duties of office efficiently or on account that he or she is no longer a fit and proper person to hold the office concerned, as [look at wording Annelize] the Head of the Directorate, he or she may not be suspended or removed by the Minister from office unless certain procedures [prescribed in the Act] are followed.
• the Minister may provisionally suspend the Head of the Directorate from his or her office, pending an enquiry into his or her fitness to hold such office as the Minister deems fit on the grounds provided for in the provision.
• the reason for the removal of the Head of the Directorate from office and representations by the Head of the Directorate shall be referred to Parliament in accordance with the procedure provided for in the Bill.
• the Minister may allow the Head of the Directorate at his or her request to vacate the office based on the grounds stipulated in Clause 8 of the Bill.

•	the Head of the Directorate must determine the fixed establishment of the Directorate and the number and grading of posts, after consultation with the Minister and the Minister for the Public Service and Administration.
•   the Head of the Directorate must also appoint the staff of the Directorate,	and if a member of the South African Police Service is appointed to the Directorate, the Head must do so after consultation with the National Commissioner of the Service.
Ad Clause 9
2.9. Clause 9 provides for:
• 	matters relating to the security clearance of members of the Directorate
by an Intelligence Structure referred to in the National Strategic Intelligence Act, 1994 (Act No. 39 of 1994).
• 	a requirement to take an oath or affirmation by the Head of the Directorate,	the Deputy Head of the Directorate or any person seconded to or employed in the Directorate.
Ad Clause 10
2.10. Clause 10 of the Bill seeks to amend section 17F of the Act and provides that the Head of the Directorate may request the secondment of personnel from any other Government department or institution, whenever he or she deems it necessary for the effective performance of the functions of the Directorate. The Director-General of the Government department or Head of the relevant Government institution shall, upon request by the Head of the Directorate, identify suitable personnel to be seconded to the Directorate upon such terms and conditions as may be agreed upon between the Head of the Directorate and the Director-General of the Government department or Head of the Government institution concerned. The person seconded shall in the performance of his or her functions act in terms of the laws applicable to the Government department or institution from which he or she is seconded.
Ad Clause 11
2.11. Clause 11 of the Bill provides that:
• 	the National Commissioner after consultation with the Head of the
Directorate shall prepare the necessary estimate of revenue and expenditure of the Directorate.
• 	the National Commissioner as the accounting officer in respect of the Police Service, including the Directorate, is charged with the responsibility	of accounting for State monies received or paid out for or on account of the Directorate.
• 	monies appropriated by Parliament for the Directorate shall constitute
earmarked funds on the departmental vote of the Service and may not
be used for purposes other than that of the Directorate.
Ad Clause 12
2.12. Clause 12 of the Bill provides for the amendment of section 17I and provides that the Ministerial Committee may determine procedures to coordinate the activities of the Directorate and other relevant Government departments or institutions. The National Commissioner and the Head of the Directorate shall, upon request of the Ministerial Committee, provide performance and implementation reports to the Ministerial Committee.

Ad Clause 13
2.13. Clause 13 of the Bill provides for the amendment of section 17J of the Act, in order to provide that the Head of the Directorate will chair the Operational Committee, that the Deputy Head of the Directorate shall be the Deputy Chairperson and to provide for representation by the Crime Intelligence Division of the Service as well as a Deputy National Commissioner of the Service.
Ad Clause 14
2.14. Clause 14 of the Bill seeks to amend section 17K of the Act by providing
that:
• 	the National Commissioner shall include in the annual report to Parliament in terms of section 55(d) of the Public Finance Management Act,	1999 (Act No. 1 of 1999), a report in respect of the performance of the	Directorate as a programme of the Service.
• 	the Minister shall determine, with the concurrence of Parliament, policy
guidelines for the selection of national priority offences by the Head of
the Directorate referred to in section 17D(1)(a) of the Act and policy
guidelines for the referral to the Directorate by the National Commissioner of any offence or category of offences for investigation by the Directorate referred to in section 17D(1)(b) of the Act.
• 	the Minister shall report the appointment of the Head of Directorate to
Parliament.
Ad Clause 15
2.15. Clause 15 of the Bill seeks to amend section 17L of the Act by providing that
the retired judge may request and obtain information from the National Director of Public Prosecutions in so far as it may be necessary for the judge to conduct an investigation.
Ad Clause 16
2.16. Clause 16 of the Bill seeks to insert section 17M in the Act in order to provide that members of the Directorate are members of the South African Police Service and, subject to the provisions of the Act, have the same powers, duties and functions as other members.
Ad Clause 17
2.17. Clause 17 of the Bill seeks to provide for transitional arrangements.
Ad Clause 18
2.18. Clause 18 of the Bill seeks to amend the preamble.
Ad Clause 19
2.19. Clause 19 provides for the repeal or amendment of laws.
3. DEPARTMENTS/BODIES/PERSONS CONSULTED
The Bill was drafted by a Task Team consisting of officials of the Secretariat of Police and both the South African Police Service and the Department of Justice and Constitutional Development. The Department of Justice and Constitutional Development, the Director-General of State Security and the Department of Public Service and Administration were consulted in the drafting of the Bill.
4. FINANCIAL IMPLICATIONS FOR STATE
The Bill provides for the continuation of the Directorate for Priority Crime Investigation. Provision must be made for the expansion of certain activities of the Directorate, such as the higher status of the Head and the institution of the Deputy Head. In effect the financial burden should be viewed against the constitutional objective of ensuring the required measure of independence of the Directorate.
5. PARLIAMENTARY PROCEDURE
5.1 The State Law Advisers are of the opinion that this Bill should be dealt with in terms of the procedure established by section 75 of the Constitution of the Republic of South Africa, 1996, since it contains no provision to which the procedure set out in section 74 or 76 of the Constitution applies.
5.2 The State Law Advisers are of the opinion that it is not necessary to refer this Bill to the National House of Traditional Leaders in terms of section 18(1)(a) of the Traditional Leadership and Governance Framework Act, 2003 (Act No. 41 of 2003), since it does not contain provisions pertaining to customary law or customs of traditional communities.