Summary of Public Submissions [B113-97]
The following parties commented on the Bill:
NPA1: Amnesty International
NPA2: Cape Bar Council
NPA3: Office for Serious Economic Offences
NPA4: Attorney-General: Eastern Cape
NPA5: Attorney-General: Mmabatho
NPA6: South Peninsula Municipality
NPA7: Attorney-General: Eastern Cape (Further comments)
NPA8: Attorney-General: Bisho
NPA9: Public Service Association of South Africa
NPA10: City Manager, Cape Town
NPA11: Competition Board
NPA12: Chief Justice
NPA13: Human Rights Commission
NPA14: Attorney-General: Transvaal
NPA15: Attorney-General: Eastern Cape (Additional further comments)
NPA16: Attorney-General: Witwatersrand Local Division
NPA17: Attorney-General: Transkei Division
NPA18: Translation of the Bill
NPA19: Human Rights Committee
NPA20: Amnesty International
NPA21: Council of South African Banks (COSAB)
NPA22: Society of State Advocates of South Africa
NPA23: Attorney-General: Western Cape
NPA24: Law Society of the Cape of Good Hope
CLAUSE- BY- CLAUSE SUMMARY OF COMMENTS
CLAUSE 2
NPA2:
CLAUSE 2(3):
Parliament should have a say in the determination of prosecution policy. The Bill should contain broad and basic guidelines regarding certain principles to which prosecution policy should adhere. Prosecution policy should not entirely be to the discretion of two people, however competent they may be. The policy should be devised with a view to address general and not specific or individual instances.
NPA12:
CLAUSE 2 (4).
The words "exercise final responsibility over" may read as implying the ministerial control which will be inimical to the proposed independence of the National Director. Although that wording appears in the Constitution, the opportunity presents itself to spell out in the Act that the responsibility referred to is one of the administrative functioning of the prosecuting authority and not responsibility in the sense of overseeing the National Director.
NPA14:
CLAUSE 2:
Subclause (3):
It appears grammatically more correct to re-arrange the word order:
"The National Director shall, with the concurrence of the Minister and after consulting the Directors determine prosecution policy"
Subclause (4):
Is "final responsibility for"" not better than "over".
NPA24:
CLAUSE 2(4):
It is suggested that "President and the Chief Justice" be substituted with "Minister in consultation with the President and the Chief Justice".
It is suggested that careful consideration be given to the implementation of section 179(4) of the Constitution. National legislation must ensure that the prosecuting authority exercises its function without fear, favour or prejudice and asks whether it is likely that this requirements will be met within the context of the proposed mechanisms for appointment.
CLAUSE 3
NPA3:
Clause 3(c) is too wide, in that it would include "outsiders" as well, e.g. police officials seconded to the Office for Serious Economic Offences in terms of section 3(4)(a)(ii) of Act 117 of 1991, and experts appointed in terms of section 3(4)(a)(iv) of the Act. It is therefore recommended that the words "an officer or a person appointed or designated under section 3(2), (3) and (4) of that Act", should be qualified by limiting it to "an officer or a person appointed or designated under section 3(2), (3) and (4)(a)(i) of that Act.".
NPA8:
CLAUSE 3(5): In order to enable the National Director to carry out his or her functions and to exercise his or her powers, it is essential that provision be made for the appointment of legally qualified persons on his or her staff.
NPA14:
Line 1, it is not more correct to state that:
"The prosecuting authority comprises the following members-"
CLAUSE 4
NPA14:
Clause 4 (b) should be amended by the insertion of "and conducting" after the words "to instituting".
Clause 4 (c): Under the interpretation of statutes, the power to do includes the power not to do and the power to stop doing. This should be deleted as surplusage.
NPA19:
According to clause 4 of the Bill, the power to institute and discontinue criminal proceedings rests with the National Director as head of the Prosecuting Authority. On daily basis, decisions will be made by the Directors and prosecutors. Only if a complaint is raised or if the case is particularly sensitive one, the National Director will intervene and make the decision. It is held that such discretion has been abused in the past and is open for abuse in the future. It is recommended that such discretion should be exercised with clear guidelines and with efficient mechanisms ensuring accountability to Parliament and public.
It is recommended that whenever a prosecutor, Director or the National Director declines to prosecute or withdraws a prosecution, substantive reasons should be furnished. Whenever the decision is made not to prosecute or withdraw a prosecution, full reasons for the decision should be communicated in writing to the accused person and the complainant in the case.
The complainant should be informed, in writing, of his or her right to appeal to the Director and ultimately to the National Director.
A system of judicial review of a National Director's decision should also be provided for.
CLAUSE 5
NPA2:
CLAUSE 5(1)(c): It is suggested that the words "in respect of any prosecution" be deleted from this subclause.
NPA14:
CLAUSE 5 (1) (b): The word "discontinuing" (in the last line) is unnecessary.
Subclause (1)(c): The phrase "in respect of any prosecution" is too narrow. Assistance or prevention of interference is required in both the pre- and post-prosecution phases. There seems to be two options:
Either -
(i) "in respect of any decision to prosecute or prosecution"; or
(ii) "... with the prosecuting authority in the exercise or performance of its powers and duties".
The second option is the better one.
Subclause (2) (a): The lacuna must be rectified because the text of the oath/affirmation, it appears that Deputy Directors have been overlooked.
CLAUSE 6
NPA3:
The proposed structure of a National Director with two or three Directors and one or more Deputy Directors, seems to be expensive and top heavy. Whereas the normal management structure is in the form of a pyramid, this proposed structure seems to be an inverted pyramid. One Director should be sufficient, with a number of Deputy Directors depending on the requirements of the office.
NPA14:
This clause is greatly welcomed as the National Director of Public Prosecutions could not function without a proper office infrastructure.
CLAUSE 7
NPA3:
The Office for Serious Economic Offences should for obvious reasons be excluded from
clause 7. This can be done by inserting the words "excluding the Office for Serious
Economic Offences" in brackets after the words "prosecuting authority" in clause
7(1)(a).
NPA14:
The words "of a" in the heading, after the word "Director" have been erroneously omitted.
Subclause (2): The inclusion of the phrase, "persons contemplated in section 5(1)" (in the second line) should be reconsidered.
Clause 25(1) contemplates an ad hoc arrangement (i.e. a contract for specific services). Persons so contracted do not form part of the establishment of an office. It is therefore incorrect to state that "(a)n Office... shall consist of .. . (such persons)".
If regard be heard to persons to whom delegations may be issued under Clause 16, it is clear that they will not be part of the office establishment. Such persons are only pro hac vice "in" an office.
The contract (under clause 25(2)) and the delegation (under clause 16) provide ample scope for providing for control and eventualities such as reporting for duty, etc.
CLAUSE 8
NPA2:
The Judicial Service Commission should play a meaningful role in the appointment of the National Director of Prosecutions. It is preferable that the appointment should take place with a process similar to the appointment of the Judges of the Constitutional Court. The fact that the Constitution merely stipulates that the National Director of Public Prosecutions is appointed by the President as Head of the Executive, does not preclude the Judicial Service Commission from being involved in the appointment procedure.
NPA3:
It is recommended that the acting National Director should, like the National Director, be "an appropriately qualified, fit and proper person", and a South African citizen, as required by subclauses (1) and (2). If this requirement is not included in clause 8(10), it means that by reason of the adage inclusio unius exciuslo alterius an appropriately qualified, unfit and improper foreigner may be appointed as acting National Director.
It is further recommended that, as in the case of the National Director, Directors should also be required to be South African citizens. Clause 12 (2) should therefore be supplemented by including what is stated in clause 8 (2).
NPA4:
There ought to be qualifications spelt out and the appointment procedure of the National Director of Prosecutions ought to be set out in the Bill.
NPA12:
Subclause (1) empowers the appointment of a person with no legal training or experience whatever. Again it is necessary that appointment is preceded by a transparent and fair sifting and evaluation of eligible candidates. It is suggested that the appointment be by the Judicial Service Commission or in accordance with procedures similar to it. Appropriate qualification must involve some objective criteria.
NPA14:
Subclause (1): Although it is constitutionally prescribed by the Constitution that the National Director of Public Prosecutions be appointed by the President, there is no provision pertaining to the procedure of appointment. It is recommended that consideration be given to, setting out the procedure for appointment.
Subclause (1): The term "appropriately qualified" is rather vague. The United Nations Guidelines stress that" it is essential to ensure that prosecutors posses the professional qualifications nrequired for the accomplishment (sc) of their functions".
It is submitted that Clause 8(1) be replaced by a provision containing an explicit reference to the objective requirements spelt out in clause 12(2).
NPA19:
The appointment of a National Director bears a critical relation to ensuring the independence of the office. Clause 8 of the Bill provides that the National Director shall be appointed in terms of section 179(1)(a) of the Constitution which specifies that the National Director is appointed by the President, as head of the national executive. Selection process involving three branches of government and public will go a long way to ensure that the office of the National Director is insulated against improper political pressure. This can be achieved by establishing a panel, consisting of government and civil society representatives, to make recommendations to the President, thereby ensuring that the appointment process is open and transparent.
It is recommended that the multi-sectoral panel be used which is politically independent and which represents a range of interests from civil society and the three branches of government.
The following composition is proposed:
-A person appointed by the Human Rights Committee
-The Public Protector or a person nominated by the Public Protector
-A person nominated by the Gender Commission
-A representative from the Ministry of Justice
-The President of the Constitutional Court
-The Chief Justice
-A member of Justice Portfolio Committee, nominated by the Committee.
The following options are listed:
OPTION 1:
(a) The President appoints the candidate recommended by the panel.
(b) The President appoints from a short list recommended by the panel.
(c) Panel recommends a short list of 3 to the Justice Portfolio Committee to the President.
(d) Panel recommends a short list of 5 to the Justice Portfolio Committee which subsequently recommends a short list of 3 to the President, who makes the final appointment.
OPTION 2:
The President appoints on the recommendation of the Prosecuting Authority Commission. The options (a) to (d) under option 1 could be used. The Bill could specify that the Commission have the same composition as the Judicial Service Commission.
OPTION 3:
The President appoints on the recommendation of the Judicial Service Commission. The same options under option 1(a) to (d) could be used.
OPTION 4:
The President appoints on the recommendation of the Justice Portfolio Committee. The Justice Portfolio Committee would be required to conduct a short-listing, interviewing and selection process.
OPTION 5:
The President appoints with advice and consent of the National Assembly. This would mean that the advice of the Portfolio Committee as conveyed to the National Assembly.
The following steps are suggested to be prescribed in the Bill:
There should be a well advertised call for nominations or applications from the public, giving at least two weeks for nominations to be submitted.
After nominations have been received, names should be published so that objections can be lodged.
The selection body should then short-list the nominations and interview candidates in public.
Deliberations after the interviews should also be held in public.
The selection body shall then submit its recommended short-list or candidate to the President who will make the final appointment.
It is recommended that the process outlined for the appointment of National Director should also apply to the appointment of Directors.
NPA22:
There is a contrast between clause 8(1), which goes no further than to require that the National Director be "appropriately" qualified, and clause 12(a), which require that directors in addition must have the right to appear in the High Court, and have at least 10 years experience in the application of law. This is glaring and unjustified contrast.
It can not be justified that the head of the prosecuting authority is permitted to be less well qualified than his subordinates.
The argument has been raised that the Constitution does not prescribe whom the President must appoint in term of section 179 of the Constitution, and further prescription of the National Director's qualifications in the Bill is somehow inappropriate. It is rather ironical that no one attempts to put the argument in principle that it is desirable to allow the President to appoint a National Director who is not appropriately legally qualified.
Section 179(1) of the Constitution is silent as to whom the President must appoint, and it merely prescribes who must make the appointment, namely the President. The present form of clause 8(1) is unconstitutional, in that it goes further than the Constitution in prescribing that the National Director be an "appropriately qualified, fit and proper person", and, in addition clause 8(2) provides that he be "a South African citizen".
For reasons above, it is proposed that clause 8 be amended by the deletion of clause 8(2) as it now appears, and substitute with the following:
"A person shall only be appointed as the National Director if he or she-
(a) has the right to appear in the High Court as contemplated in section 2 and 3(4) of the right of appearance in Courts Act, 1995 (Act No 62 of 1995);
(b) has been concerned with the application of law for a continuous period of at least 15 years after his or her admission to practice as an advocate or attorney;
(c) possesses such experience as, in the opinion of the President, renders him or her suitable for appointment as a national Director; and
(d) is a South African citizen.
CLAUSE 9
NPA1:
To help to protect the independence of the office, a term of appointment should be beyond the term of office of the President. There should be no provision for reappointment. This will avoid any perception of tailoring decisions to favour reappointment towards the end of the term.
CLAUSE 9(4): This subclause allows the President to extend the term of the National Director of Prosecutions up to two years beyond the age of retirement. As a safeguard there should be some specified criteria indicated as guidance to the President. It is not clear what purpose will be served by providing the President with the discretion, without any specified criteria, to determine the length of the initial appointment. This provision may have a negative impact on the operational independence of the office.
CLAUSE 9(6): The procedures and grounds for suspension should be consistent with Articles 21 and 22 of the United Nations Guidelines on the Role of Prosecutors and Section 179(4) of the Constitution. The use of "misconduct" in clause 9(6)(i) is likely to mean that the National Director of Prosecutions is failing to carry out statutory responsibilities in a responsible manner, and this should be defined specifically in the Bill. The only other ground for removal which is likely to be necessary is the inability to carry out statutory responsibilities due to mental or physical incapacity. The reference to the incapacity to carry out duties "efficiently" is either redundant with misconduct or unhelpfully vague and could allow for political manipulation.
Regarding the removal of the NDPP, there should be some reference to a hearing before Parliament, a Parliamentary Committee or Judicial Inquiry Commission to ensure natural justice and procedural fairness through such elements as standing, cross-examination, opportunity to lead evidence, and full reasons for the decision. An impeachment procedure in the Parliament should be sensitive to make public, however, and there may be need for some conditions on confidentiality even with respect to Parliament. Nevertheless, perhaps a list of such case-related reports could be tabled in Parliament.
CLAUSE 9(10): Interim arrangements could possibly be necessary for significant periods of time. It would seem wise, in the interests of operational independence of the office, for the Bill to provide for a Deputy National Director of Public Prosecutions. The Deputy should be appointed on the same basis and through the same process as recommended for the National Director of Public Prosecutions.
NPA3:
It is recommended that it should be specified in clause 9(2) and 13(2) that the reappointment of the National Director or a Director may only take place with his or her consent.
The provision that the National Director or Directors may receive no salary for the duration of their suspension (clause 9(6)(e) and 13(3)) seems to be potentially unfair. If it is found that no grounds exist(ed) for his or her removal from the office or even suspension, and he or she restored to his or her office, he or she should clearly be entitled to his or her salary. It is recommended that such provision be made.
Clause 9(5) should also, in view of the reference in it to subclause 8, contain a reference to vacation of office.
NPA4:
CLAUSE 9(9): This subsection does not address the problem which occur if the officer of the public service is appointed as National Director and the period of appointment (either first or renewed) expires before the normal public service retirement age. The following insertion is suggested after the words "do not apply" in the fourth line:
"....or if the term of office of such National Director has ended and is not renewed, he or she shall, as from the date on which he or she is appointed, or on which his or her term of office ends, as the case may be..."
By virtue of clause 13(3), this provision will cover the position of Directors and also fully deal with the position of present incumbents, as well as future incumbents who were previously in the public service, whose envisaged period of pensionable service is thus truncated.
NPA9:
That clause 9(2) be replaced by the following:
"2 (a) a National Director's term of office as contemplated in subsection (1) may be extended at the expiry thereof for a period or successive periods not exceeding seven years per period, as the President may approve.
(b) the President shall, in writing, inform the National Director at least three calendar months before the expiry of date of the term of the office, whether he or she proposes to retain the National Director's service for an extended term or not.
(c) if the National Director concerned is informed of such intention to retain him or her services for an extended term, he or she may, in writing inform the President within one calendar month from the date of communication, of his or her acceptance or not of such extended employment.
(d) if the National Director concerned informs the President of his or her acceptance of extended employment, his or her term of office shall be extended by further period as been agreed to with the President.
(e) if the term of office of the National Director is not extended by the President the National Director shall be deemed to have retired in terms of section 17(2)(b)of the Public Service Act, 1994.".
NPA12:
Subclause (6)(b) is not clear whether the representations referred to relate to matter of removal and suspension. If they relate only to the removal of the National Director, he would be entitled to make representations also as regards suspension.
NPA14:
Concerning term appointments, it is understood from the evidence given to the TRC in its Johannesburg hearings on the legal system, that Amnesty International is against such appointments. What provision is made for the pension rights of the National Director of Public Prosecutions?
NPA19:
Clause 9(1) of the Bill provides the President with discretion to determine the length of the term of office of the National Director upon the date of appointment, subject to a maximum of 7 years. The reason for giving the President this discretion is not clear, the provision impacts negatively on the independence- real and perceived- of the office. As it stands, it will allow the President to appoint the National Director for a one year term, in order to give government the option of dismissing him after a year, without having to go through the procedures set down in the legislation for dismissal. This is highly problematic and open for abuse. It is recommended that the time period be set in the Bill at 7 years.
Regarding clause 9(2), it is recommended that the term of office be non-renewable because in practical terms the National Director would be less inclined to institute politically unpopular prosecutions in order to gain favour with the excercutive in view of the expected renewal.
Clause 9(6):
The wording of the third ground which provides for the removal "on account of incapacity to carry out his or her duties of office efficiently" is of concern. It is submitted that lack of capacity to act efficiently is both too broad and narrow. It is narrow because incapacity to act efficiently is but one among any number of incapacities that might be pertinent to the question of removal. It is too broad because efficiency is a nebulous term and capacity for efficiency is even more nebulous.
This ground must be redrafted to read "on account of being incapable of performing the duties of his or her office."
Concerning the procedures for suspension and removal, it is recommended that any resolution or prayer by Parliament to remove the National Director should require a threshold majority of two thirds. The independence of the National Director could be threatened if he or she can be dismissed by a simple majority. It is furthermore recommended that a body be appointed to hold hearings on the suspension of a National Director. It may either be Justice Portfolio Committee or the Judicial Service Commission. The concerns and recommendations noted above under National Director are applicable also to the Director as well.
NPA23:
By making the National Director and Director of Public Prosecutions (clause 9(2)) eligible for a second term of office, at the discretion of the President, they will either become or perceived to be the lackeys of their political matters. As the term of office approaches its end, any decision taken will be perceived as dancing to the tune of the politics of the day, for re-appointment. It is suggested that the National Director and the Directors should have a single term of office and should not be eligible for reappointment.
Clauses 9(2) and 13(1) should be amended accordingly by deletion of the words "but not exceeding 7 years".
Clause 13(2) should be deleted altogether. It follows that clause 29(2), which deals with transitional arrangements of existing Attorneys-General, should be amended accordingly, giving the State President the discretion to retain the existing Attorneys-General for as long or short as he wishes. This will create the position where the National Director or Director should only be removed in the manner envisaged by the Bill. It effectively removes any political carrot which could undermine the perception of objectivity of the post.
CLAUSE 10
NPA1:
CLAUSE 10(2): It is helpful for the reasons of wider accountability of and public confidence in the National Director of Public Prosecutions that he or she be obliged to publish in the government Gazette "as soon as practicable" and to table in Parliament any prosecution policies and directives he or she may issue.
NPA3:
In order to foster close liaison and co-operation with Directors, and to prevent possible allegations of intervention by the National Director on political grounds, it is recommended that Clause 10(1)(b) should contain a requirement of prior consultation with the relevant Director, before the National Director brings the proceedings in the former's area of jurisdiction.
NPA12:
It is suggested that the word "in" in subclause (1)(b) be replaced by "before".
The need for concurrence with the Minister detracts from the proposed independence of the National Director. At most there should be consultation with the Minister.
NPA14:
CLAUSE 10 (1)(a)(iii): It is submitted that the subparagraph should read:
"(iii) advise the Minister on all matters relating to the administration of criminal justice"
Experience has shown that the Minister has sought to be advised on matters wider than simply the "criminal law". Included in the wider array of matters are those pertaining to procedure, personnel, court management, international legal co-operation, relationships with police etc.
Subclause (1)(k): "Which includes a report...", should read "which shall include a report".
Subclause (1)(l): The subclause is unnecessary and should be deleted as Clause 24 is providing in clear terms for administrative staff.
NPA19:
Clause 10(c) provides that the "National Director shall maintain close liaison with the Directors, the prosecutors, legal profession and legal institutions in order to.... promote co-operation in relation to the handling of complaints in respect of the prosecuting authority".
Clause 10(e) refers to the Minister's duty to prescribe a procedure for dealing with complaints about members of the prosecuting authority and administrative staff. The National Director, in consultation with the Directors is obliged to recommend a procedure to the Minister. It is recommended that the procedure prescribed should be accessible and open to all members of the public and the opportunity to present oral evidence should be provided for.
CLAUSE 11
NPA2:
CLAUSE 11(4): It is suggested that Parliament should lay down guidelines as to when and under what circumstances the exclusion of any Court's jurisdiction could be considered to be "in the interests of justice".
NPA3:
Clause 11(4) seems to be a general power and not limited to the subject-matter of the rest of clause 11. Whereas it seems advisable that the National Director should have the power to centralise prosecutions, it is not clear if he or she should be given such powers in respect of investigations, without even having to consult the South African Police Service.
NPA12:
The words "an action" in subclause (3)(a) are inappropriate and confusing as they imply civil proceedings, they be replaced by the words "criminal proceedings".
NPA14:
Subclause (3)(a): It is suggested that the subclause and the words introducing it, be better formulated. It is not clear what is intended by "institute an action", if whether it is to include a civil action, or motion proceedings.
CLAUSE 12
NPA1:
Clause 12 provides for the President to appoint a Director of Public Prosecutions in each of the nine provincial divisions of the High Court, the Witwatersrand Local Division of the High Court and potentially in respect of any other local division of the High Court. Since the Constitution is silent on this aspect, there should be nothing to prohibit the legislation including that the President, in making such appointments, should act on the recommendations of the Judicial Services Commission.
CLAUSE 12(1)(a) and 15: (referred to as Sections 9(1)(d) and 14 by the commentator)
Under clause 15(1)(d) the Provincial Directors have the authority to delegate to any person who has the right to appear in the High Court the authority to institute criminal proceedings, and to conduct on behalf of the State, as a prosecutor, any prosecution in criminal proceedings in any court within the jurisdiction of such Director. A person delegated as a prosecutor under this clause may also be assigned to the office of the National Director or of a Provincial Director. Where so assigned, the person may exercise any of the powers or carry out any of the functions attributed to the National Director of Public Prosecutions.
It is not clear what the role of extra Directors of Public Prosecutions would be. Perhaps the intention is to create additional resources to allow for the handling of matters of systemic concern, such as those relating to political violence, violence against women and children, organised crime and drug trafficking. As a symbolic matter, the use of Directors of Public Prosecutions for these ad hoc positions may add confusion or unnecessary aggravation to the Provincial Directors of Public Prosecutions. The use of the term "special prosecutors" may be preferable.
NPA2:
There is no good reason why the Judicial Service Commission should also not be involved in the appointment procedures pertaining to Directors. The principles of transparency, independence and impartiality require that the Judicial Service Commission should play a role in the appointment of Directors.
NPA3:
It is recommended that the acting National Director should, like the National Director, be "an appropriately qualified, fit and proper person", and a South African citizen, as required by subclauses (1) and (2). If this requirement is not included in clause 8(10), it means that by reason of the adage inclusio unius exclusio alterius an appropriately qualified, unfit and improper foreigner may be appointed as acting National Director.
It is further recommended that, as in the case of the National Director, Directors should also be required to be South African citizens. Clause 12 (2) should therefore be supplemented by including what is stated in clause 8 (2).
NPA4:
The phrase "two or three Directors" seems to indicate that the President may appoint
0, 2 or 3 Directors but not 1. It is suggested that it be altered to read "maximum of three
Directors".
NPA12:
The words "two or three" in subclause (1)(a) are insufficiently clear and they should be replaced by the words" not more than three".
The word "application" in subclause (2) is appropriate for the function of the court but the word "administration" would be more fitting.
NPA14A:
Clause 12 (4): Delete the words "but subject to the laws relating to the public service and".
NPA19:
In addition to the criteria for qualification as a Director, it is recommended that a fourth criterium be added; namely that "the appointees should neither hold a high party political office nor have high party political profiles. Or alternatively that they vacate such office upon appointment as a Director".
NPA24:
It is also suggested that the National Director should have at least the same form of academic qualifications as provided in clause 12(2) for Directors. It is recommended that safeguards be created to guarantee the independence of the office of the National Director.
CLAUSE 13
NPA3:
It is recommended that it should be specified in clause 9(2) and 13(2) that the reappointment of the National Director or a Director may only take place with his or her consent.
The provision that the National Director or Directors may receive no salary for the duration of their suspension (clause 9(6)(e) and 13(3)) seems to be potentially unfair. If it is found that no grounds exist(ed) for his or her removal from the office or even suspension, and he or she restored to his or her office, he or she should clearly be entitled to his or her salary. It is recommended that such provision be made.
NPA9:
That clause 13(2) be replaced by the following:
"Section 9(2) applies with the necessary changes mutatis mutandis to a Director whose term of office in terms of subsection (1) is about to expire".
NPA14:
Subclause (3): The reference to the incorporation of only selective sub-provisions of Clause 9, renders the position of Directors very vulnerable and creates room for their removal otherwise than the grounds referred to in Clause 9(6)(a)(i)-(iii). Compared to the National Director of Public Prosecutions , the Directors are in a bad position. Subclause (5) of Clause 9 applies to the National Director of Public Prosecutions, whilst that subclause is specifically omitted from the incorporation into Clause 13(3).
Provision must be made that the Directors "shall not be suspended or removed from the office except in accordance with the provisions of subsection (2), (6), (7) and (8)".
It is also submitted that the provisions pertaining to the National Director of Public Prosecutions regarding supervision and decision of Parliament should also be applicable ~ to the Director of Public Prosecutions.
NPA19:
Clause 13(3), specifies that section 9(6) (a) and (e) shall apply, not 9(6) (a) to (e), thus giving the President the power to suspend and/or remove a Director from office without the involvement of Parliament. It is recommended that the clause be re-drafted to read "9(6)(a) to (e)".
NPA23:
Clause 13(2) should be deleted altogether. It follows that clause 29(2), which deals with transitional arrangements of existing Attorneys-General, should be amended accordingly, giving the State President the discretion to retain the existing Attorneys-General for as long or short as he wishes. This will create the position where the National Director or Director should only be removed in the manner envisaged by the Bill. It effectively removes any political carrot which could undermine the perception of objectivity of the post.
The Constitution never contemplated or intended the Judicial Services Commission to be utilised for the appointment of the National Director or the Directors of Public Prosecutions. nIf the Judicial Services Commission were to appoint the National Director, then in terms of section 178(5) of the Constitution, this would lead to the legally absurd situation where the National Head of the Prosecuting Authority would be appointed by a smaller and less representative body (14 members) than a Judge of a provincial division (24 members).
It is submitted that, unless this Bill is amended as set above, it will not reflect the spirit and letter of the Constitution. The National Director and his Directors must be perceived to be impartial in their decision-making at any stage of their careers, and the President is the person who shall appoint them.
(See also NPA23's comments on clause 9.)
CLAUSE 14
NPA12:
It is suggested that a similar provision as regards 12(2)(b) be included in subclause (2), the period concerned being, say, at least 5 years.
NPA14:
Subclause (1):
The appointment provision relating to Deputy Directors should be made to approximate more to a portion of the provision under Section 2(2) of Act 92 of 1992.
It is important for efficient management that the line of authority be more clearly spelt out. At present this is adequately done by the said Section 2(2) which provides:
"...appoint... as deputy attorneys-general, who may, subject to the control and directions of the attorney-general concerned, do anything which may lawfully be done by the attorney-general".
If similar phrasing is added to clause 14(1), viz:
"...appoint one or more persons as Deputy Director who may, subject to the control and directions of the Director concerned, do anything which may lawfully be done by the Director".
NPA14A:
The insertion of the following new clause is proposed:
"Term of Office of Deputy Director
14A n(1) n A Deputy Director shall vacate his or her office on attaining the age of 65.
(2) The Minister may subject to the provisions of this section suspend or remove a Deputy Director from office-
(a) for misconduct:
(b) on account of continued ill-health; or
(c) on account of incapacity to carry out his or her duties of office efficiently.
(3) When the question of a possible removal from office arises, the National Director in conjunction with the Directors shall inquire into the matter and make recommendations to the Minister.
(4) Pending the finalisation of the enquiry envisaged in subsection (3), the Minister may suspend the Deputy Director concerned from office.
(5) The Minister shall communicate his or her decision on the removal from office of a Deputy Director to Parliament.
(6) The Minister may allow a Deputy Director, 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".
CLAUSE 15
NPA3:
The provision in clause 15(2)(c)(i) that Directors may give written directions or furnish guidelines to any other person who within his or her area of jurisdiction, conducts investigations in relation to offences, seems to be too wide.
Firstly, it is unacceptable and unnecessary that such Director should be able to give such directions to his or her equal, i.e. Director for the Office for Serious Economic Offences. It may also create conflict, as the National Director is also legally empowered to give to the Director of the Office for Serious Economic Offences such directions.
Secondly, directions may also be given to persons or institutions who derive powers to conduct investigations in relation to offences from statutes, e.g.:
1. The Public Protector who in terms of the Constitution has the power to investigate any nstate, public administration or government conduct alleged or suspected to be improper or may result in prejudice etc.; or
2. Commissions of enquiry
Thirdly, it means that the National Director will be able to give directions to private investigators who are either self-employed or employed by corporations, which does not seem to be necessary or practical.
The proviso in clause 15(9) should clearly only refer to subclause 1(a), (b), (c) and (d) and not (e) and (f). The Director of Office for Serious Economic Offences can clearly not be expected to consult with other Directors about the Office for Serious Economic Offences's specific investigations (except when necessary, and this does not require statutory regulation), about carrying out his or her functions etc. in terms of the Investigation of Serious Economic Offences Act.
NPA14:
Subclause (1): Subclause (6)(re: appeals) is out of place. The reference to its subject-matter belongs to subclause (1) together with (1)(b) and (c).
Subclause (1)(b): The compilation of an annual report is a major, time-consuming exercise, it is submitted that there should only be one report. The plural "reports" should be altered to "report".
Subclause (1)(c)(ii)(bb): The words "carries on" should be replaced with "conducts" to accord with the usage of the Bill.
The words "for offences" should be deleted (a prosecution can only be conducted for offences).
Subclause (3): In the third line, the reference to particular "cases" is too narrow, as the directions guidelines may relate to procedure(s). It is suggested that the reference to be "a particular matters"
Subclause (4): The statutory obligation to furnish the National Director of Public Prosecutions with a copy of each and every direction or guidance contemplated under Clause 2(c) will not work in practice. It is considered how many differing instructions can be given, the National Director will land up with volumes of paper work. This is too bureaucratic.
As the National Director of Public Prosecutions will probably have his or her eye on certain specific matters, it is more realistic to leave it to him/her as to what he requires from the Director for Public Prosecutions.
It is submitted that Subclause (4) either be deleted or changed to ex budanti empower the National Director to call for any copies if so desired.
NPA16:
Clause 15(2)(c) read with (3) is wrong in principle and may lead to practical difficulties especially in Gauteng. The Provincial Commissioner of South African Police Services is appointed under his own Act with his own powers and duties. He is already subject to directives of the National Commissioner. In principle, the prosecution and investigative arm of the South African Police Services must remain entirely separate so as not to taint the prosecution with the allegations of bias. Directives issued by the Director of Public Prosecutions may possibly conflict with policy directives of the National Commissioner. The prosecution is only marginally involved in law enforcement, that is policing actions of crime, and direct involvement could be a direct conflict with his main function which is the prosecution of a crime after the South African Police Services has arrested the perpetrator.
CLAUSE 15(7)(a) and (b) gives a Deputy Director all powers, duties and functions of a Director, except that of a delegation unless the Director is absent; the exercise thereof is deemed to have been performed by the Director. Presumably this would not reflect on the Director's responsibility as the head of office. In practical terms this means that a person appointed by the Minister until retirement has the same powers, duties and functions as a person appointed by the President for a fixed term, and that the actions of that person are deemed to be the actions of the person appointed by the President. This does not seem logical. It may be said that the situation is rectified by the provision that the acts "subject to any directions of a Director", but does not alter the illogical situation.
In principle, all authority should stem from the Director of Public Prosecutions, subject to policy directives of the National Director, towards any other appointment by the Minister to assist those appointed by the President, and they should be subject to his authority and delegation. This is a more logical progression of command.
CLAUSE 16
NPA6:
The proposed legislation, as it presently stands, does not seem to give the Director of Public Prosecutions the authority to appoint prosecutors or delegate authority to institute criminal prosecutions to municipal employees.
The following Subclause is suggested to be added to clause 16:
"(5) a Director referred to in section 12(1)(b) and (c) may, in respect of the area of jurisdiction for which he or she has been appointed, in writing delegate to any person in the employment of or designated by a local authority, subject to subsection (2) and the control and directions of the Director concerned, the authority to-
(i) institute criminal proceedings; or
(ii) conduct on behalf of the State, as a prosecutor, any person in criminal proceedings in any lower court within the area of jurisdiction of such
Director:
Provided that the provisions of Chapter 7 shall not apply to any such person whose conditions of service, remuneration and allowances are determined by the local authority concerned".
NPA14:
Subclause (1)(b): There are omissions here. Firstly, to whom may the Director issue a delegation? Secondly, is that person not the representative of the Director in the lower court(s)?
The present section 6(b) of Act No 92 of 1992 refers to "any officer of the State". That was presumably the intention. The said section 6(b) also refers to that person:
"Who shall, as the representative of the attorney-general and subject to his control and directions, institute and conduct on behalf of the state any prosecution in criminal proceedings in such a lower court".
It appears that the lacunae will be remedied by changing the subclause to read:
"(b) delegate to any officer of the State subject to subsection (2) and the control and directions of the Director concerned and as his or her representative, the authority to-"
Subclause (1)(b)(ii): The words "as a prosecutor" are unnecessary, if the above suggestion is adopted.
Subclause (1)(c)(i): The same applies to the words "prosecutor" here.
Subclause (2): The verb to make is not linguistically correct.
One delegates persons, or issues (gives) a delegation to a person.
It is suggested that, lines 1, 2 and 3 be altered in this respect
A second aspect is the laudable desire not to have a person who is not appropriately qualified to act as a prosecutor. A sober consideration of the position on the ground should be called for. Consideration should be given to a clause that reads:
"A delegation in terms of subsection (1)(b) shall only be given to a person who is appropriately qualified to be appointed a prosecutor: Provided that, where an appropriately qualified person is not available, a Director may delegate a suitable person to perform certain or all of the functions of a prosecutor in accordance with any guidelines or directions given by the National Director."
NPA16:
Clause 16 (1) (a) deals with what is now termed "state advocates" at the office of the Director of Public Prosecutions, who now have the authority to institute prosecutions which traditionally they never had. A junior prosecutor with such a delegation may therefore institute a prosecution costing the State millions, without question, unless such power is curbed. In cases to be tried in the High Court the prosecution should, as now, only be instituted by the Director or his Deputies. In cases to be tried in the lower courts, the Senior Public Prosecutor or control prosecutor should institute prosecutions in the name of the Director of Public Prosecutions. Any other provision would be detrimental to authority and the chain of command. If prosecutors have the same authority to institute prosecutions, the present system of the senior checking the junior's decision will no longer be feasible. Clause 16(1)(a)(i) should therefore be deleted.
Clause 16(1)(b) refers to delegations to prosecutors in lower courts. The only cause for concern foreseen is the insertion of the word "or" after subclause (i). As it reads now, a Director of Public Prosecutions can either delegate a prosecutor to institute a prosecution or to conduct a prosecution. In larger offices this is possible but there are many smaller offices with only one prosecutor. If he may not institute the prosecution, what is there to conduct? If he may only institute the prosecution, who will conduct? The word "or" should be deleted and it should be one sentence and provision.
CLAUSE 17
NPA16:
This clause should be deleted entirely as being so detrimental to proper control as to be farcical. The relevant Director of Public Prosecutions is the only person to delegate a prosecutor and is therefore the only authority; he ultimately bears the responsibility as all instructions regarding functions, powers etc. come via him or her. The National Director and any other Director has no authority. The poor prosecutor now has to bear in mind not only the laws of the Republic and the instructions of the relevant Director of Public Prosecutions, but must also follow instructions from the National Director of Public Prosecutions and any roving Director. This will be an untenable situation and cannot be allowed to happen.
The Bill is, as framed at present, ponderous and may occasion practical difficulties. A solution to the difficulties and bearing in mind the speed with which it must be done, would be that the National Director of Public Prosecutions be appointed as soon as possible as provided for in the Constitution and that the National Director of Public Prosecutions and the present Attorneys-General, together with such persons as the Minister or others wish to appoint, draft an Act to the satisfaction of the Prosecution to suit the requirements of the politicians.
CLAUSE 18
NPA7:
The Bill provides that the National Director or Director who is appointed from the ranks of public service continues to fall under the same pension laws as when he or she was in the public service. The problem is that those pension laws envisage a retirement age of 65, where as the National Director or Director whose term or terms of office has expired could be well be younger than 65. There will have to be a provision which will adequately deal with the pension laws together with the position of future applicants for those holding such positions who are within the public service.
The Bill is silent on pensions for new appointees of National Director or Director who come from outside public service. It is suggested that section 19(2) of the South African Revenue Service Act be used as a model for dealing with the pension of present and future incumbents of the posts of Director and National Director.
It is also suggested that the following subclause be added to clause 18, which deals with the conditions of service of the National Director and Directors:
"(4) The National Director and a Director are entitled to the pension and retirement benefits calculated on the same basis as those of a head of department in the public service".
If the National Director and Directors are to be treated similarly to the Commissioner for Inland Revenue, Directors-General and Police Commissioners for pension purposes, there should be an express provision to make it clear that the period already served by present incumbents in their present posts, shall count as service for the purpose of pension computation.
Because the maximum period of the initial term for which the President can appoint a Director is seven years, it would be appropriate for the period from a present incumbents' date of appointment in his or her present post to the date on which that term expires to be regarded as seven years, for the purpose of calculating service as a head of department.
It is suggested that the following subclause be added to Clause 18:
"(5) nFor the purpose of pension calculations the period for which the National Director or Director shall be considered to have held office as a head of department in the public service is the sum of the terms of his or her tenure of office as National Director or Director: Provided that an attorney-general who becomes a Director by virtue of section 29 (1) shall be deemed to have held office as a head of department in the public service for a period of seven years when his or her initial term, as determined by section 29 (2), expires.".
NPA9:
That clause 18 be supplemented by the following subclause:
"(4) the National Director and Director are entitled to pension provisioning and pension benefits determined and calculated under the circumstances, as if they were employed as Director-General in the Public Service".
CLAUSE 18 (1): The first sentence of this sub-clause be amended to read as follows:
"subject to the provisions of the Labour Relations Act, 1995 (Act no 66 of 1995) and sections 20 and 29 of this Act the allowances and of the National Director and Director shall be determined by the President: Provided n
NPA12:
In subclause (1), the word "less" should be replaced by the word "more" or it should be stated that the remuneration shall be the same as the Judge of Appeal.
Secondly it is anomalous and undesirable to equate the status of a prosecuting functionary, being but a representative of one of the parties to a criminal dispute, with that of the judicial functionary burdened with the final responsibility of deciding the dispute. That being so, the remuneration level of the National Director ought to be lower or, at least not more than that of a High Court Judge.
NPA14A:
The heading should read "Conditions of service of National Director, Director and Deputy Director".
Subclause 1 should be amended to read:
"The remuneration, allowances and other terms and conditions of service and service benefits of the National Director, a Director and a Deputy Director shall be determined by the President: Provided that:
(a) the remuneration of the National Director shall not be less than the remuneration of a judge of the Supreme Court of Appeal;
(b) the remuneration shall not be less than 80% of the remuneration of the National Director; and
(c) the remuneration of deputy Director shall not be less than 80% of the remuneration of a Director".
Subclause (2) would suit (and also render a portion of clause 19(6) unnecessary):
"The remuneration of the National Director, a Director and a Deputy Director shall not be reduced during their continuation in office".
Subclause (3) would be altered accordingly, the relevant portion to read as follows:
"If an officer or employee in the public service is appointed the National Director, a Director or Deputy Director, the period of his or her service as such National Director, Director or Deputy Director shall be reckoned..."
A new subclause (4) should be inserted so as to cater for different categories of Directors (which is contemplated in clause 19(2).
Subclause of clause 18 should provide:
"(4) Different categories of salaries and salary scales may be determined in respect of different categories of Deputy Directors".
NPA19:
Clause 18(1) of the Bill provides that "the remuneration, allowances and other terms and conditions of service benefits shall be determined by the President". The proviso states that the remuneration of the National Director shall not be less than that of a judge of the Supreme Court of Appeal while the remuneration of a Director shall not be less than 80% of the National Director's remuneration. Furthermore, the Bill expressly states that remuneration shall not be reduced during the National Director's continuation in office.
It is recommended that the variation of the salary and benefits during the National Director and Directors' terms of office should be prohibited. The word "variation" would include reductions and increases. Variation to keep pace with inflation, should be allowed.
NPA22:
The remuneration of the whole prosecuting authority should be linked. It should be enacted that a deputy director's remuneration shall not be less than 85% of a director's remuneration, and that the remuneration in respect of the lowest grade of each consecutive rank of a prosecutor after that of a deputy director shall not be less than 85% of a deputy director's and each subsequent rank's remuneration.
CLAUSE 19
NPA9:
(a) That the clause be reworded to read as follows:
"(1) Subject to the provisions of the Labour Relations Act, 1995 (Act 66 of 1995) the salary of Deputy Director and Prosecutors shall be determined by the Minister which may include different categories of salaries and salary scales.
(2) Subject to the provisions of the negotiated agreement the salary and the salary scale of a member of a prosecuting authority shall not be reduced without his or her consent.
(3) The salary and the salary scale of the member of the prosecuting authority shall up to including the 1998/99 financial year, not be less favourable than the salary and salary scale applicable to them had they been employed in terms of the repealed employment legislation applicable to them.".
NPA14A:
All references to "Deputy Director" should be deleted.
NPA22:
The exclusion of Public Service Commission in clause 19(1) is welcomed. The provision of clause 19(4) in terms of which the Minister issues a revised salary scale if circumstances so justify, is inadequate. In terms of this clause, the revision and adjustment of salaries and allowances of public servants and magistrates is merely a factor which the Minister must take into account in deciding whether to revise the prosecutors' salaries. Circumstances might be found which prompt the Minister not to exercise his discretion in favour of adjusting prosecutors' salaries to keep pace with magistrates and public servants. This weakness can be overcome by linking prosecutors' salaries to those of directors, which in turn are linked to the National Director and Appellate Judiciary. This will provide the legislative structure which will ensure that the crisis concerning prosecutors' remuneration does not occur. The present crisis has caused prosecutors and state advocates to resign in ever increasing numbers at least since 1996, with some offices losing more than 50% of their professional staff.
It is proposed that clause 19(1) be amended by adding the following:
"Provided that-
(a) the remuneration of a deputy director shall not be less than 85% of the remuneration of a director; and
(b) the remuneration in respect of the lowest grade of each consecutive rank of a prosecutor after that of deputy director shall not be less than 85% of the remuneration of a deputy director or each immediately higher consecutive rank, as the case may be".
CLAUSE 20
NPA9:
That clause 20 be amended to read as follows:
"To implement section 29 all members of the Prosecuting Authority shall be subject to the provisions applicable to them prior to the implementation date of this Act as contained in the legislation, regulations, codes, collective agreements or other prescripts until replaced by the provisions determined by the President in terms of section 18(1), or by the Minister in respect of a Deputy Director or Prosecutor, in terms of negotiated agreements in terms of the Labour Relations Act".
NPA14A:
All references to "Deputy Director" should be removed.
CLAUSE 21
NPA2:
Clause 21 seems to suggest that the National Director of Public Prosecutions will only be accountable to the Minister. It is advisable that the Bill should provide for a mechanism in order to make the National Director directly accountable to Parliament.
Clause 21 seems to suggest that the National Director of Public Prosecutions will only be accountable to the Minister. It is advisable that the Bill should provide for a mechanism in order to make the National Director directly accountable to Parliament.
NPA12:
The meaning and purpose of subclause (2) is obscure. Literally to co-ordinate means either to render equal or to place in proper relative positions. It is contrary to the scheme of the Act, that the functions of a Director should equate to those of the National Director, and if the latter is absent or incapacitated, there is a provision for the appointment of an Acting National Director. The National Director is to be truly independent, co-ordination, whatever it may be intended to mean, can be left to him or her. There is no need for this sub-clause.
NPA14:
Subclause (1): Is the word "for" in the second line not preferable to "over".
CLAUSE 22
NPA14:
Subclause (2)(a): In accordance with the principles of accountability to Parliament, it should be required that the National Director of Public Prosecutions submit his or her annual report to Parliament, through the Minister of Justice. This accords with the fact that Parliament is in the picture in terms of subclause (2)(b).
CLAUSE 25
NPA3:
The procedure whereby a Director will have to consult with the National Director and the Minister before outside appointments can be made, seems unnecessary cumbersome, and will cause much delay.
At present the Office for Serious Economic Offences appoints accountants with the mere concurrence of the Director-General: Justice, and if required, the State Tender Board. This type of procedure seems more logical and speedy: The Director-General can in any event approach the Minister if he deems it necessary in a particular instance. Clause 25(2) furthermore seems to disregard the tender procedure of the State Tender Board, in terms of which persons (e.g. accountants) are appointed in terms of tender submitted.
NPA14:
See comments under clause 7 above.
CLAUSE 29
NPA3:
There seems to be conflict between the English and Afrikaans texts of clause 29(2)(b). If the idea is to take into account only the period served in a particular office (kantoor), and not the office (amp) of attorney-general, it should be stated more clearly.
The reference to clause 2(c) in clause 29(1)(a), should apparently be a reference to clause 6(b).
There seems to be no provision as to what will happen to an Attorney-General once his or her period of office expires. It is submitted that specific provision be made in the Bill regarding what Directors are entitled to when they have to vacate their offices. This should not be left to negotiations, which may cause uncertainty and long delays.
Clause 29(1)(a) does not make provision for the present Director of the Office for Serious Economic Offences, as he or she cannot become "a Director under this Act at an Office contemplated in section 2(c) (sic) or 12(1)(a), (b) or (c), which office shall be determined by the President"; it is accordingly recommended that after the word "President" should be included the words "or at the Office for Serious Economic Offences" and that Subclause (b) be amended accordingly.
NPA4:
This clause does not provide for the situation of the present incumbents who may already exceeded the period of seven years, nor does it state that the existing incumbents shall be deemed to have been appointed for seven years. It should be noted that there is no fixed period of office for appointees, only a maximum period.
The following amendments are suggested to render the provisions workable:
Clause 29(2)(a): adding the following at the end:
"...provided that if that term has already expired when this Act takes effect, or shall expire within six months of the date when this Act takes effect, it shall be deemed to expire on the date six months after this Act takes effect".
Clause 29(2)(b): Adding the following at the end:
"... and the period of the term shall be deemed to be seven years".
NPA7:
The following addition to clause 29(2)(a) is suggested:
" ... provided that if that term has already expired when this Act takes effect, or shall expire within six months of the date when this Act takes effect, it shall be deemed to expire on a date six months after this Act takes effect.".
NPA9:
That clause 29(2) be replaced by the following clause:
An Attorney-General who becomes a Director in terms of subsection (1), shall continue in the office for a term of office, in accordance with section 13, as agreed between the President and such Attorney-General".
That clause 29(6) should read as follows:
"subject to the Constitution, this Act and without derogating from the generality and application of section 197(1)(a),(2)(a),(3) and 5 of the Labour Relations Act, all measures ...
shall continue in operation .... until repealed by this Act or negotiated agreement".
That the following subclause 7 be added to clause 29.
"(7) (a) That until the Minister of Justice and the employee organisation representing members of the prosecuting authority agree to request the President to designate the National Prosecuting Authority as a sector for the establishment of a bargaining council in terms of section 37(4) (a) of the Labour Relations Act, 1995 (Act No 66 of 1995) and until such designation has taken place and a bargaining council established, the prosecuting authority and the member's representative employee organisation shall, as transitional arrangement, continue to negotiate or consult in an interim bargaining forum. nThis will be regarded as being established with effect from the date of implementation of this Act, for which purpose the constitution of the bargaining council for the Department of Justice, with the necessary adjustments required by this arrangement, shall apply with force and effect to such interim bargaining forum as it is a bargaining council.
(b) The employee organisation parties to the forum are such organisations representing officials referred to in sub-section (a) above, that were parties to the Bargaining Council of Justice. The employee representative to the forum shall be appointed by the Director-General for Justice in consultation with the National Director.
(c) The employee organisation parties referred to in subsection (b) are being regarded as having been recognised by the prosecuting authority provided they are registered in terms of the Labour Relations Act.
(d) The procedure contained in the Constitution of the forum must be applied as if they were agreed to procedures for negotiations on all matters of mutual interest".
NPA14:
Subclause (1)(a): The word rank in the second line could lead to persons who are not Attorneys-General under Act No 92 of 1992, being elevated to the position of a Director.
The reference in the third line to "section 2(c)" is incorrect. There is no clause 2(c).
Subclause 2(a): The last phrase of this Subclause, viz "as fixed by section 13", in effect amounts to retrospective legislation truncating the existing rights of incumbents.
NPA15:
The additional requirement that persons have to hold the rank of the Attorney-General in order to become Directors seem to be intended to prevent persons currently holding office as an Attorney-General in the former TBVC territories, but who are still in the public service on lower scales and ranks, from becoming Directors by the back door, as it were. There is no rank of an Attorney-General after the commencement of the Attorney-General Act 92 of 1992.
When South Africa was reunified on 27 April 1994, the various laws in the various territories governing the appointment, powers, etc, of Attorneys-General continued to operate. The justice laws of the old RSA and TBVC territories was consolidated by the Justice Laws Rationalisation Act, 81 of 1996. The position of the Attorneys-Generals in the former TBVC territories was specifically excluded from the rationalisation process. As a result Attorney-General, Act 92 of 1992, does not apply to Attorneys-General of the TBVC areas.
It is suggested that the intention contained in clause 29(1)(a) of the Bill could be better expressed in the following form:
"29(1)(a) Anyone holding office as an attorney-general under the Attorney-General Act, 92 of 1992, when this Act took effect, becomes...".
Clause 29, either in its present form or modified as has been suggested, is silent on what happens to present TBVC attorneys-general when the new Act comes into operation. Those holding appointment as acting attorney-general (e.g. Former Ciskei and Venda) are covered by clause 29(1)(b): they continue in office as acting Directors.
The following alteration to section 29(1)(b) will take care of the position of the TBVC
attorneys-general:
"29(1)(b) Anyone holding office as an acting attorney-general, or as an attorney-general holding office otherwise than in terms of the Attorney-General Act, 92 of 1992, becomes an acting Director under this act..."
NPA17:
It is proposed that the words "and who was appointed in the rank of attorney-general" be expunged from clause 29(1)(a) of the Bill. The following wording be inserted after clause 29(1)(a):
" ... n; provided that subsection (2) shall not apply to an attorney-general of a Division of the High Court within any of the former National States and who was appointed thereto upon secondment from the Republic and held such office as seconded officer when the Interim Constitution, 1993, took effect and further that the remuneration, pension and pension benefits, leave gratuity and any other term and condition of service which applied to such person at the time when this Act took effect shall continue in operation and to apply to him or her whilst serving in that Office which office he or she may continue to hold for a period not exceeding five years from the coming into operation of this Act or such further term as the President may determine after the expiry of such period unless within such period of five years or such further term he or she is appointed as a Director by the President in terms of section 12(1) or unless he or she vacates such office whereupon the provisions of this Act applicable to Directors so appointed or Deputy Directors will become applicable to him or her."
This option will confirm at least his status and financial position without elevating him regarding pension-bearing salary to a level beyond the other Deputy Attorneys-General.
Option Two.
Would be to strike the offending piece and let him become a fully-fledged Director with pensionable salary scale et al, but seeing that he did not have the same pension benefits built up over any previous length of time, he would crave that a stipulation be made that a period of seven years be determined for tenure of office from inception of the new Act.
The Act could read thus:
Section 29(2)(a) n..." ... provided that an Attorney-General serving in a Division of the High Court within the former National States who held such Office upon secondment from the former Republic when the Interim Constitution, 1993, took effect, may continue in office as Director for a period of seven years from the date of this Act takes effect upon expiry of which term the provisions of subsection 13(2) shall become operative with regard to such officer.".
Option Three: If, however, the House decides that the operative term should be on par with the Directors' term of office, he would crave. that the fact that he never shared the same pensionable salary since the date of appointment in 1987 be accommodated in the new legislation. He suggests that clause 29(2)(b) should amended to read:
" ...; provided that, for the purpose of calculating the remuneration, pension and pension benefits, leave gratuity and any other term and condition of service applicable to an Attorney-General who became Director after having served in the National States upon secondment and so held such office at the time the interim Constitution, 1993, took effect, the date of appointment as Director shall be deemed to be the date of his or her appointment as Attorney-General in that office.".
GENERAL COMMENTS
NPA3
FURTHER MATTERS AFFECTING THE OFFICE FOR SERIOUS ECONOMIC OFFENCES.
The concept of including Office for Serious Economic Offences in the national prosecuting authority, is supported. The Investigation of Serious Economic Offences Act, 1991 was amended recently by the Judicial Matters Amendment Act, 104,1996, to give Office for Serious Economic Offences certain powers of prosecution, and should the Office for Serious Economic Offences' staff situation improve, it is logical that it should prosecute some of its own cases to prevent the delays caused by handling cases over the Attorney-General.
Likewise the amendment of the Investigation of Serious Economic Offences Act, to place the Director of Office for Serious Economic Offences under the National Director, is supported. Certain clauses in the Bill, however, create problems:
The position of Office for Serious Offences' professional staff is not entirely clear:
1. The Director of the Office for Serious Economic Offences is an Attorney-General, and becomes a Director for Public Prosecutions. New appointees are specifically appointed as Directors in terms of clause 12(1)(d).
2. The Deputy Attorneys-General of Office for Serious Economic Offences become Deputy Directors in terms of clause 29(3)(a), and the new Deputy Directors may be appointed as such in terms of clause 14.
3. The present (senior) State Advocates of Office for Serious Economic Offences will not become prosecutors like their counterparts in the offices of the Attorneys-General, as they have not been "delegated in terms of the Attorney-General Act, 1992, to institute criminal proceedings and to conduct any prosecution in criminal proceedings on behalf of the State as required by clause 29(3)(b).
4. New appointees will not necessarily come from the ranks of prosecutors, and in any event do not require to hold such delegations, and will therefore also qualify to be regarded as prosecutors in terms of clause 16. The only delegation the member of the Office for Serious Economic Offences will require, is one for a specific prosecution in terms of section 6A of Act 117 of 1991. Clause 16(4) does not solve the problem.
5. The other problem, is taking an oath before commencing duties.
6. A delegation in terms of the Attorney-General Act, is not a requirement in terms of the Investigation of Serious Economic Offences Act or in terms of the work done by Office for Serious Offences. The idea of including Office for Serious Economic Offences' advocates in the concept of prosecutors, an exception will have to be made as far as the delegation requirement is concerned.
Since the Investigation of Serious Economic Offences Act has to be amended in terms of the Bill, it is recommended that the following problem be addressed at the same time:
Section 5(1)(b) of the Investigation of Serious Economic Offences Act, as now stands and as will be read after the proposed amendment, allows the Director of Office for Serious Economic Offences no discretion when the Minister refers the matter to him or her: he or she then has to hold an enquiry
It is recommended that the Director be allowed to decide whether a preparatory investigation in terms of clause 5(13) should not be rather be held. Consequently it is proposed that the section should state that "the Director shall hold an inquiry or a preparatory investigation on that matter".
NPA5
The provision that an appointment can only be for a maximum period of fourteen years (two possible periods of maximum of seven years each) and the calculation of these periods, the date of appointment is retrospective to the initial date of appointment are of great concern.
The implication will be that if the Bill comes into operation, he will immediately be unable to remain in his post as he has already served the period of more than fourteen years as Attorney-General. He does not believe that this implication was ever envisaged or considered, as his "unique" situation was not really known to the Department.
NPA6
The municipality currently provides a municipal prosecutor who is suitably qualified with the approval of the Chief Magistrate and Attorney-General to Wynberg Magistrate's Court to assist in the prosecution of municipal matters which have arisen within the South Peninsula Municipality's jurisdiction. There are also arrangements being made to provide the same service in Simonstown. It would be advisable to provide clarity as to the position of municipal prosecutors in the Bill.
NPA8
His commentary on the draft Bill must be seen against his sincere belief that it is of the utmost importance that the prosecuting service must be delinked from the civil service as a matter of urgency.
In order to enable the National Director to carry out his functions and to exercise his powers, it is essential that provision be made for appointment of legally qualified persons on his staff.
State Advocates are generally horrified by the idea that they will be titled prosecutors. The professional staff in the Director's office should at least maintain their status and should rather be referred to as advocates.
It is suggested that provision be made that advocates perform civil matters as well. It is also suggested that provision be made for Directors to have the power to issue instructions to the police. The solution to this problem will be that, a number of investigations will be part of the Directors offices.
Regarding remuneration, there must be a provision for the remuneration of Deputy-Directors, Advocates and prosecutors and there can not be any justification for consulting the Public Service Commission as required by the Bill.
It is further suggested that provision be made for participation in a motor vehicle finance scheme or payment of a motor vehicle allowance.
It is also suggested that the administrative staff should be delinked from the civil service, as done in the case of Attorney-General. Public interest requires the offices of the Directors and prosecutors to be independent in all respects.
NPA10
The wording of the Bill is such that, it appears unlikely that a Director of Public Prosecutions would have authority to appoint prosecutors or delegate authority to institute or conduct criminal prosecutions to municipal employees in respect of municipal offences.
At present appropriately qualified employees of the municipality of the City of Cape Town are, with Attorney-General's approval, are providing prosecution services in three magisterial districts in respect of criminal proceedings relating to municipal affairs. This arrangement has the effect of alleviating the work load of State prosecutors and also enabling persons with specialised knowledge and training to deal with municipal prosecutions. It is therefore a benefit to both the State and the Municipality.
The authority of municipal prosecutors to deal with criminal prosecutions in lower courts has been challenged from time to time but could only be resolved by the issue of Bench appointment. Since section 5 of the Criminal Procedure Act has to be repealed, this will no longer be possible.
Clarity must be brought to the issue of the legality of the appointment of municipal prosecutors. It is submitted that the proposed Act should contain sufficient flexibility to permit the Director to appoint appropriately qualified municipal employees as prosecutors in lower courts in respect of criminal proceedings relating to municipal affairs, provided that he or she is satisfied as to the need of such appointment and the appropriateness of the qualifications of the person(s) so appointed. Clause 15 seems to imply that only State employees can be so appointed. Clause 21 clearly does not deal with the appointment of prosecutors.
It is suggested that the Municipality's representative be permitted to give oral evidence to the Committee so as to bring the matter pertinently to its attention.
NPA13
The Human Rights Commission welcomes the National Prosecuting Authority Bill because it is Constitutionally mandated to give effect to Section 179 of the Constitution.
In addition to that, the Bill presents a good and workable framework for the National Prosecution Authority.
The Commission commends the Bill for the following:
It demonstrates an attempt to unify prosecution policy, prioritize categories of crimes and set guidelines for their effective prosecution, thereby increasing levels of professionalism in the manner which justice is dispensed.
There is a commitment to the improvement of skills of members of the office, via training programs.
The Bill allows for a co-ordinate approach in the investigation of crime, by both the prosecuting agency and the police; this co-operation is important and necessary in the effective combatting of crime.
The Bill is an important step in raising confidence in the legitimacy and effectiveness of the criminal justice system.
The Commission has suggestions regarding the Bill, which fall broadly into these categories:
Accountability.
Under the existing law, Attorneys-General are accountable to nobody. Under the new Bill, internal lines of accountability within the National Prosecuting Authority are made clear: prosecutors to Deputy Directors to Directors to the National Director, and ultimately to the Minister of Justice, who has final responsibility for the authority.
In addition to this, there is public accountability through Parliament.
Annual report by the National Director must be submitted to the Minister and in addition to this, the National Director may submit a report to Parliament. The Commission request that consideration be given to:
1. The introduction of section providing for the compulsory tabling of reports from the National Prosecuting Authority in Parliament, either through the Minister of Justice, or directly.
2. The possibility of requiring the Minister of Justice to table the annual report of the National Director within a reasonable period of his or her receipt thereof could be considered.
The tabling of such reports will increase the public accountability of the authority.
Section 179 (5)(d) provides for the National Director to review decisions to prosecute or not to prosecute, having heard representations from the various parties. The discretion is powerful, as the National Director may overrule decisions which have been taken.
The Commission requests that consideration be given to the inclusion of a provision requiring the National Director to give written reasons for any decision taken in terms of the above section.
Independence.
The office must function free from political interference, and serve independently and effectively. A critical aspect of the independence of the authority is the appointment process for its National Director, and Directors. The Bill refers only to Section 179, which sets out that the President appoints the National Director. It is not clear how the President would decide on the appointment.
The Commission requests that consideration be given to:
1. The Bill setting out clearly on whose recommendation the President appoints the National Director, and Directors, in order to increase the transparency of the appointment process, and to prevent any possibility, suggestion or perception of political influence in the appointment.
2. The creation of a transparent selection procedure of nominees for appointment by the President, with provisions for the interviews or deliberations of whichever committee is charged with this function to be open to public.
The Bill makes provision for the removal of the National Director from office on the grounds of misconduct, ill health or incapacity, by the President with confirmation by Parliament, or by Parliament. The Commission requests that consideration be given to:
1. The inclusion of a section making provision for the National Director to have some form of hearing before Parliament, either through the existing Committee, or one especially created, before a decision to remove from him or her from office.
2. The provision of clarity on what the majority is required in Parliament for the removal of a National Director.
NPA14
Prior to Act 92 of 1992, Attorneys-General were subject to the Public Service Act of the time and had at least a justifiable expectation service to age 65. The Act incorporated that, adding provisions for removal from office on certain grounds.
Exception for retrospective provision envisaged, the unexpired portion of the term of office will be between now and age 65. In no other case of public officers has a term been retrospectively truncated. The question arises why specifically the Attorneys-General have been singled out for such drastic treatment.
If the government wishes to replace the present incumbents, it must know how to go about that whilst recognising rights and justifiable expectations.
In terms of the United Nations Guidelines, it is submitted that the Bill should include appropriate provisions.
Averting to the position of future incumbents, it appears that regard must be had to the fact that professional careers will be interrupted and/or affected by the system of term appointments and candidates will now have to know exactly what their position will be. They will not be able to assume that they will be re-appointed; nor can they bargain on a retirement package.
As appointments from outside the ranks of Deputy-Attorneys-General will be possible, it is to be expected that an outsider will want to weigh financial implications of entering public service for a term. This necessitates spelling out pension benefits in the legislation.
Practical realities such as the phenomenon that justice usually waits until a position is vacated before taking steps to make the next appointment, and delays experienced in this regard, make it advisable that provision should be made for some carry-over period (say 6 months) after the term has expired.
A carry over period also seems advisable in the case of the present incumbents who may come to the end of their term just before or just after the Bill comes into law.
In the light of the critical position regarding the remuneration of prosecutors (salaries have been called a national disgrace) the uncertainty regarding career prospects and the consequent very low morale, it is urged that the finalisation of the Bill be accelerated as a matter of highest priority.
NPA16
The Bill is vague in addressing the position of the bulk of prosecuting authority which is found to be the prosecutors in the lower courts who are responsible for administering and conducting 90% of all criminal prosecutions in our courts.
Attorneys-General under the new dispensation, are transients; the prosecutors are the future of not only the Prosecuting Authority, but the Criminal Justice System as administered by the courts.
The National Union of Prosecutors of South Africa staged a legal march on 25 of July 1997 on the streets of Johannesburg and handed a petition to him. Whilst commenting on the grievances regarding remuneration, of greater moment is the prosecutors statement concerning their attitude towards the Bill, i.e.:-
"The only manner to ensure such salaries is promulgate the 'National Prosecuting Authority Bill', to delink the Prosecutorial Component from the Civil Service and to pay the Prosecutors a salary re-establishing parity with the magistrates."
He was petitioned to officially and publicly express the support for the Promulgation of the National Prosecuting Authority Bill and the delinkage of the Prosecutorial Component from the Public Service. He always supported the concept of the National Prosecuting Authority and delinkage from the Department of Justice. The demoralisation among prosecutors of all cultures is progressing daily, they must be assured of a future in which their professionalism will be entrenched.
The main focus should be that professional prosecutors should decide on the conditions of service, remuneration, professional growth and future of prosecutors. Assistance can be obtained from other sources, but the final responsibility should be with the professional prosecutor who will obviously advice the Minister.
Clause 15(2)(d) now specifies that the Director (not the magistrate) is responsible for the day-to-day management of prosecutors. Clause 20 provides that conditions of service of a Deputy Director or a prosecutor shall be determined in terms of the provisions of the Public Service Act; this is in contra-distinction to Clause 24 which provides that the administrative staff shall be appointed or employed under (sic) the Public Service Act. Clause 20 is in certain respects an improvement on the previous section, in itself it creates new uncertainties and real problems. The nett result is that prosecutors remain public servants in so far as determining the remuneration is concerned. There are no provisions for the appointment in the Bill.
Section 20 of the Public Service Act reads as follows:
"9(1) Without derogating from the functions of the Commission in terms of this Act, the appointment of any person or the promotion or transfer of any officer or employee in the employ of the national department or provincial administration shall be made by the relevant executing authority or by an officer or officers to whom such authority has delegated his or her power of appointment, promotion and transfer."
With reference to the above section, it seems clear that prosecutors are appointed in terms of Public Service Act. The status quo remains; the Department of Justice appoints, promotes and transfers prosecutors as it may deem fit.
The above is not what prosecutors envisaged. They remain public servants with all the negative connotations and implications attached to their proffessionalism (or lack thereof). This is an untenable situation and can only aggravate the existing situation. The Department appoints a person in the position of a prosecutor and the Director of Public Prosecutions is obliged to issue him with a delegation. The issue of a delegation is a professional discretion which reflects the professional capabilities of the delegatee, and should not be automatic rubber stamping. What would be the situation if the Director of Public Prosecutions decide to withdraw the delegation for professional misconduct which does not necessarily reflect the Public Service abilities- is the delegatee fired or must there be first be inquiries, or what is the position?
The Director of Public Prosecutions is responsible for day- to-day management of the prosecutors who have been appointed without his concurrence, and in whose promotions and/or transfers he has no say, and whom he is obliged to issue a delegation. What is needed at this stage, is that the National Director should have the authority to appoint, transfer and promote prosecutors, an authority to be exercised in consultation with the Director.
An Act to govern such important structure such as the Prosecuting Authority should only enact correct principles in direct and clear language in order to promote certainty and be short and simple (KISS). Many of the provisions lead to questions as to what is exactly envisaged. It is possible to object to any specific interpretation. There are a numerous examples of short and simple principles and precedents to be found in previous enactments and recent Acts where major principles have already been enacted. South African Revenue Service Act, No 34 of 1997 is a fine example of KISS.
There is no compelling reason as to why the provisions of the abovementioned Act could not serve as broad guidelines for proper construction of the prosecuting Authority as an organ of State within public administration but outside the public service. Further powers and duties could be described in broad terms, such as delegations, remuneration etc, with powers to regulate, and with interim provisions.
In the Bill there are a number of provisions which are a cause for concern and some which require cosmetic changes, others are matters of principle that require close scrutiny.
Cosmetic changes include the indiscriminate and interchangeable use of "State" and "Republic" such as:
Clause 4: "On behalf of the State" and again "on behalf of the Republic"
10(1)(b): Prosecute in the name of the State
15(1)(a): On behalf of the State
15(1)(b): In the name of the Republic
This problem is addressed in Section 2 of the Criminal Procedure Act, but casts a poor reflection on the quality of the Act addressing the Prosecuting Authority.
There are various other language difficulties including the reference to a second term which the National Director of Public Prosecutions and the Director of Public Prosecutions is appointed- clause 9(1) and 9(2), clause 13(1) and 13(2). It is clearly intended to refer to "not exceeding 7 years", but it does not specifically state. Subclause(2) in each case should read "one additional term not exceeding seven years".
NPA17
Neither clause 29(1)(a), nor 29(1)(b) nor, for that matter 29(3) provides for the status, under the Bill, or an officer like himself. There is a hybrid situation, not covered by the transitional arrangements of Clause 29: what of an officer like himself, who was holding the office, constitutionally, of attorney-general, without having been appointed in the rank.
When seconded to Transkei, his rank in South Africa was that of deputy attorney-general. As a proposal from a certain quarter, the first draft Bill was re-drafted so as to exclude attorneys-general of the former TBVC states (except Bophuthatswana) from being Directors of Public Prosecutions as it would be "unfair" if they became "Attorney-General" ahead of their colleagues- they being Deputy Attorney-General seconded as Attorneys-General of the TBVC states. To now exclude certain incumbents from being translated to Directors of Public Prosecutions would run counter and would be in conflict with what was contemplated. The usage of the terminology "rank" is meaningless. Attorney-General as defined in terms of section 1 of Act 92 of 1992 as an appointee to the "office" and not to the "rank".