ATC240306: Report of the Select Committee on Security and Justice on the National Prosecuting Authority Amendment Bill [B 29B-2023] (National Assembly – S75), dated 6 March 2024

COMMENTS ON THE NATIONAL PROSECUTING AUTHORITY AMENDMENT BILL, 2023 (BILL)

SELECT COMMITTEE ON SECURITY AND JUSTICE

DOJ&CD RESPONSES

1. AfriForum

2. Council for the Advancement of South African Constitution (CASAC)

3. Transnet

4. Helen Suzman Foundation

SPECIFIC COMMENTS ON BILL

PROVISION

COMMENTS

DOJ PROPOSAL/COMMENTS

Clause 1

Amendment of the Preamble

None

Clause 2

Amendment to Section 1: definitions

None

Clause 3

Amendment of section 5:

Office of National Director of Public Prosecutions

None

Clause 4

Substitution of section 7:

Investigating Directorates

CASAC

1. Section 7(1A)(a) must be amended to expressly include any matters referred to the NPA by the Special Investigating Unit following an investigation in terms of the Special Investigating Units and Special Tribunals Act, 1996.

1. The Memorandum on the objects of the NPA Amendment Bill does not explain why section 7(1B) is necessary or why the Department of Justice has chosen to retain this discretionary power for the President, or why any matters contemplated in that provision cannot be dealt with by other divisions of the NPA. This power should remain the sole preserve of Parliament and the President should not be granted a discretionary power to circumvent Parliament’s processes.
2. Section 7(1B) should thus be deleted. This will necessitate the consequential deletion of section 7(2) of the principal Act. However, if Parliament retains section 7(1B), then section 7(2)(c) of the NPA Act must be amended to make any draft proclamation subject to approval by the National Assembly before its publication in the Gazette.

1. The Department does not agree with the proposal. The proposed mandate of the IDAC is primarily to investigate and prosecute corruption, whereas the matters arising from SIU investigations and its mandate may not be corruption related, but includes maladministration. The matters referred by the SIU to the NPA fall squarely within the mandate of the National Prosecutions Service of the NPA. It is intended that the IDAC’s mandate be limited to corruption matters as set out in the Bill, to give priority to these matters and focus its resources accordingly. Making the IDAC responsible for all SIU matters may divert the resources of the IDAC from corruption and related matters. Clause 7(1A)(a)(ii) caters for the NDPP to refer serious, high-profile or complex corruption, commercial or financial crime cases to the IDAC. Should matters arising from the SIU investigations require a referral to the IDAC, the

NDPP is empowered to do so.

1. The power of the President to establish ad hoc investigating directorates is an important empowering provision to cater for instances requiring investigation and prosecution of specific matters or types or categories of matters that require immediate but short term intervention. Proclamations issued in this regard must be referred to Parliament in terms of the current provisions of the Act, thereby retaining Parliamentary oversight over the issuing of a proclamation.

1. The Department disagrees with the proposal as the current provisions cater for sufficient oversight by Parliament and empowers the Executive to make decisions in matters of a serious nature where  urgent action is required.

Clause 5

Amendment of section 13:

Appointment of Directors and Acting Directors

None

Clause 6

Insertion of Chapter 3B

Appointment, remuneration and conditions of service of investigators

Transnet

Supports the objectives of the Bill. The nature, scope and complexity of commercial and financial crimes require not only relevant and specialised experience and skill, but also formal tertiary education. The financial and commercial acumen in an investigator is crucial in the establishment of relevant evidence, including access and use of information available to trace and investigate crime.

It is recommended that minimum qualifications for investigators of IDAC be a relevant tertiary education.

CASAC

Section 19E(1) makes appointment as an investigator subject to obtaining a security clearance certificate from the State Security Agency - this provision is too broad and gives too much power to the SSA. This provision should be amended to provide that SSA may not unreasonably withhold a security clearance certificate and that SSA should provide reasons to the NDPP for any delay to issue a certificate within 60 days of a request.

Transnet

The comment is noted, however the Department does not agree that a tertiary qualification be a requirement for appointment. This may limit or preclude the recruitment of investigators who have built up extensive skills and knowledge through experience who are from, for example the SAPS or the DPCI, but who do not possess a tertiary qualification but may have built up the necessary skills and experience to make an invaluable contribution if appointed as a ID investigator.  A similar provision is in the IPID Act in relation to IPID investigators (sec 22(2).  This provision requires a minimum of a Grade 12 certificate to be appointed as an IPID investigator

CASAC

The Department disagrees with the proposal. Vetting is a mandate of SSA. Administrative or operational issues that can be resolved through engagements between the heads of institutions, as per sound intergovernmental relations practice.   

Clause 7

Amendment of section 22

Powers, duties and functions of National Director

None

Clause 8

Insertion of section 22A:

Complaints mechanisms and accountability

None

Clause 9

Insertion of section 29A:

Powers and functions of investigators

None

Clause 10

Insertion of section 43C:

Transitional arrangements

None

Clause 11

Laws amended (Amendment to the Schedule to the Act)

None

Clause 12

Amendment of Index

None

Clause 13

Short title and commencement

None

GENERAL COMMENTS ON BILL

COMMENT

DOJ PROPOSAL/COMMENTS

AFRIFORUM

1. The NPAB, in its current form, does not proffer substantive solutions to the myriad of challenges crippling the National Prosecuting Authority (hereafter “the NPA”). It falls short of implementing meaningful reforms necessary to overhaul the existing issues within the NPA.

2. The NPAB neglects the critical aspect of parliamentary oversight of the NPA, allowing it to remain predominantly within the political influence and control of the national executive – a situation that raises severe concerns about the independence and impartiality of the NPA.

3. The NPAB does not cater to the existing inefficiencies within the broader justice system, notably the operational inadequacies of the South African Police Service (SAPS), the congestion in our courtrooms and the overpopulated correctional centres that do not serve as a deterrent to criminals. This erodes public trust in the NPA.

4. Moreover, the current form of the NPAB fails to affirmatively institutionalise the autonomy and independence of the NPA from undue external influences. Without explicit provisions to shield the NPA from political pressures and interferences, the institution remains susceptible to manipulations, conflicts of interest, and biases that jeopardise its credibility and undermine the pursuit of unbiased justice, as was rampant during the years of prominent state capture.

5.  One of the profound shortcomings of the NPAB is its conspicuous neglect of reinforcing parliamentary oversight over the NPA, which is a legislative requirement.

6. Inefficient justice system: challenges in SAPS; court backlogs; overcrowding in correctional centre. Holistic reforms are required.

1.to 4. The comments are noted.

The intention of these amendments to establish the IDAC as a permanent entity in the NPA, and not render the investigating directorate responsible for the investigation and prosecution of corruption, susceptible to disbandment by way of proclamation. The establishment of the IDAC is a significant step in creating a permanent structure within the NPA to drive prosecution-led investigation into corruption and to prosecute these offences. Any amendment to the legislation, if passed by Parliament, can then only be amended by Parliament. This is significant as the current ID is established by way of Presidential proclamation.

The NPA accounts to Parliament in respect of its Annual Performance, and when required to do so by both the Portfolio Committee and SCOPA.

The role of Parliament is provided for in sections12 (removal of office); 14 (term of office of the NDPP and DPP);18 (remuneration);21 (prosecution policy);35 (accountability of Parliament) and 40 (regulations).

A broader review of the legislation pertaining to the NPA will be conducted in the new administration.  The National Assembly has requested that such a Bill be tabled before the end of January 2025.

CASAC

1. The Bill is a welcome step that guarantees the permanence of the Investigating Directorate (‘ID’), though it stops short of granting the NPA full institutional independence.
2. Section 36(3) NPA Act designates the Director-General of Justice as the Accounting Officer of the NPA and vests in him or her essential budgetary functions over the NPA. This is inimical to the NPA’s full financial and operational independence from the executive. The NPA Act should be amended to designate the NDPP as the NPA’s Accounting Officer.
3. The NPA’s budget should be defrayed from Parliament and not  through the Department of Justice’s Budget Vote in order to ensure that the NPA’s budgetary needs are addressed in accordance with its operational demands – should be treated as an independent institution as envisaged in section 179 of the Constitution.

1.to 3. The comments are noted.

The sourcing of the budget for the NPA through the Department of Justice is in line with the current constitutional framework in section 179(6) which places the exercise of final responsibility on the Cabinet member responsible for the administration of justice. Section 36(3) of the Act provides that the Department of Justice must, in consultation with the National Director, prepare the necessary estimate of revenue and expenditure of the prosecuting authority. The Act requires that the National Director must agree with the estimate of revenue and budget. These decisions cannot be unilaterally exercised. The Act therefore ensures that the budget provided will meet the needs of the prosecuting authority.

A broader review of the legislation pertaining to the NPA including aspects relating to its operational and financial independence will be conducted and a draft bill will be submitted to Parliament by the end of January 2025.

Helen Suzman Foundation

1. Broader Reform of the NPA is required in so far as appointment and removal of the NDPP, DNDPPs and DPPs is concerned. It is essential that the process for their appointment be designed to reduce the risk of undue political influence; and to give the public confidence that the most suitable candidates are chosen.
2. Giving Parliament, Cabinet and the President a critical role in appointing the NDPP, DNDPPs and DPPs reduces the risk that one center of political power holds sway over the NPA’s top leadership – without exempting the appointment process from political oversight altogether.
3. While giving the Committee and the Minister a critical role in appointing the NDPP may require amending section 179(1)(a) of the Constitution, this does not prevent the President from involving them as a matter of practice in appointing the NDPP – and the process for appointing DNDPPs and DPPs can be altered by amending the National Prosecuting Act No. 32 of 1998 (“NPA Act”); and
4. In McBride v Minister of Police, the Constitutional Court declared unconstitutional powers of suspension exercised unilaterally by the Minister of Police in respect of the Police Investigative Directorate’s (“IPID”) Executive Director. This was because section 206(6) of the Constitution expressly requires that IPID be independent. The same role should be given to the Portfolio Committee on Justice and Correctional Services before the President is able to suspend the NDPP, DNDPPs and DPPs – and to the National Assembly as a whole, before he can remove them.
5. To prevent a situation similar to the disbanding of the Scorpions,  the Bill should be amended to protect the Directorate from a bare Parliamentary majority by requiring that its dissolution should garner a two-thirds majority.

1.to 5. The comments are noted and were considered by the Portfolio Committee.

The intention of these amendments to establish the IDAC as a permanent entity in the NPA, and not susceptible to disbandment by way of proclamation.

A broader review of the legislation pertaining to the NPA will be conducted in the new administration to cater for a full review of NPA Act, in conjunction with provisions in the Constitution.

At para 5.2.19 of the President’s Response submitted to Parliament in Oct 2022 in respect of the recommendations of the State Capture Commission, the following undertaking was made by the President:

“to address concerns with respect to the independence of the NPA, legislative amendments will be introduced to introduce greater transparency and consultation in the process for the selection and appointment of the NDPP, drawing on the process adopted for the selection of the current NDPP.  Work will be undertaken to clarify the Ministers “final responsibility”over the NPA as set out in sec 33 of the NPA Act and settling aspects related to the NPA’s financial and administrative independence.”