CHIEF STATE LAW ADVISER
Constitutionality Of The Directorate Of Special Operations Bill:Establishment Of Special Specialised Unit To Gather Intelligence And To Ensure That Investigations And Prosecutions Of Specified Offences Is Carried Out In The Best Possible Way.
October 16 2000

I have been asked to consider the constitutionality of the Directorate of Special Operations Bill [B39 - 2000]. Concerns about the Bill's constitutionality have been expressed in relation to various provisions of the Constitution. I have been asked to comment on those provisions.

As the matter is to be dealt with by your Committee as a matter of urgency. I have prepared my comments hurriedly. I shall, nevertheless, be pleased to elaborate on any aspect hereof.

INTRODUCTION.
According to clause 2, the Objects of the Bill, "the purpose of the Bill is to establish a specialised institution, called the Directorate of Special Operations, which will gather intelligence relating to specified offences and ensure that the investigation and prosecution of such offences is done in the best possible manner".

It is apparent from the Bill, itself, that the Directorate will fall under the authority of the National Director of Public Prosecutions (NDPP), who is given extensive powers to issue directives and give guidance in respect of the Directorate and various other matters.

The allocation of these powers to and the establishment of the Directorate itself need to be considered in the light of the Constitution.

The matters which give rise to concern are the provisions relating to the gathering of intelligence and the investigation of offences. In order to determine whether they fall foul of the Constitution,

RELEVANT CONSTITUTIONAL PROVISIONS.
1. THE PROSECUTING AUTHORITY.

According to section 179 of the Constitution:

'(I) There is a single national prosecuting authority in the Republic, structured in terms of an Act of Parliament, and consisting of-

(a) a National Director of Public Prosecutions, who is the head of the prosecuting
authority and is appointed by the President as head of the national executive; and
(b) Directors of Public Prosecutions and prosecutors as determined by an Act of
Parliament.

(2) The prosecuting authority has the power to institute criminal proceedings on behalf of the state, and to carry out any necessary functions incidental to instituting criminal proceedings.

(3) National legislation must ensure that the Directors of Public Prosecutions

(a) are appropriately qualified and
(b) are responsible for prosecutions in specific jurisdictions, subject to subsection(5).

(4) National legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice.

(5) The National Director of Public prosecutions -

(a) must determine, with the concurrence of the Cabinet member responsible for the administration of justice, and after consulting the Directors of Public Prosecution, prosecution policy which must be observed in the prosecution process.'
(b) must issue policy directives which must be observed in the prosecution process; (c) may intervene in the prosecution process when policy directives are not complied with; and
(d) may review a decision to prosecute or not to prosecute, after consulting the relevant Director of Public Prosecutions and after taking representations within a period specified by the National Director of Public Prosecutions, from the following:

(i) the accused person.
(ii) the complainant.
(iii) any other person or party whom the National Director considers to be relevant.

(6) The Cabinet member responsible for the administration of justice must exercise final responsibility over the prosecuting authority.

(7) All other matters concerning the prosecuting authority must be determined by national legislation.

The National Prosecuting Authority Act, Act No.32 of l998 was enacted in accordance with section 1 79. No provision is made in that Act for the creation of special investigating units as contemplated by the Bill.

2. THE SECURITY SERVICES.
Chapter 11 deals with the Security Services. In terms of section 199(1), the security services of the Republic consist of a single defence force, a single police service and any intelligence services established in terms of the Constitution.

3. THE POLICE SERVICE.
In terms of section 205(3) of the Constitution, the objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and to secure the inhabitants of the Republic and their property, and to uphold and enforce the law.

4. THE INTELLIGENCE SERVICE.
Section 209(1 )is of some significance as it states that "any intelligence service. other than any intelligence division of the defence force or police service, may only be established by the President, as head of the national executive, and only in terms of national legislation."

From this it is apparent that there can be many intelligence services. They can be attached to the police, the defence force, operate on its own or under any other authority. Such a service must be established by the President. This is of relevance to any discussion on the constitutionality of the above bill.

AN ANALYSIS OF THE BILL.
Section 3 establishes a Directorate of Special operations which comprises the NDPP and other persons. It also provides for the President to establish, on the recommendation of a Ministerial Co-ordinating Committee(Committee), a Crime Intelligence Division. As indicated above, the Constitution does not prevent the creation of intelligence units, other than those specifically mentioned in the Constitution.

Section 4 details the functions of the Directorate which are to gather, keep and analyse crime intelligence relating to matters being investigated by the Directorate; to combat and investigate specified offences and to prepare and adduce evidence of prosecution of specified offences.

The NDPP has a special role which is to determine procedures for the referral to the Directorate of investigations into any offence falling within a category determined by the Minister in accordance with stipulated procedures and any other case which the NDPP and the National Commissioner of Police (Commissioner) decide must be dealt with by the Directorate..

It should be noted that the Directorate enjoys wide powers to investigate offences and to collect intelligence relating to offences and to conduct enquiries. For the purpose of this opinion, it is not necessary to deal with these issues in any detail. The Bill also contains extensive labour related provisions which are also not necessary to comment on herein.

DISCUSSION.
In order to determine whether or not the Bill is constitutional, we have to consider all the relevant constitutional provisions and relevant legislation as well.

In S v Makwanyane', the Constitutional Court held that:
"Our Courts have held that it is permissible in interpreting a statute to have regard to the purpose and background of the legislation in question.

"Certainly no less important than the oft repeated statement that the words and expressions used in a statute must be interpreted according to their ordinary meaning is the statement that they must be interpreted in the light of their context. But it may be useful to stress two points in relation to the application of the principle. The first is that "the context", as here used. is not limited to the language of the rest of the statute regarded as throwing light of a dictionary kind on the part to be interpreted. Often of more importance is the matter of the statute. its apparent scope and purpose, and. within limits, its backgrotind."²

The Court also stated that

"We are concerned with the interpretation of the Constitution, and not the interpretation of ordinary legislation. A constitution is not ordinary legislation. It is the source of executive and legislative authority. it determines how the country is to be governed and how legislation is to be enacted. It defines the powers of the different organs of state, including Parliament, the executive, and the Courts as well as the fundamental rights every person which must be respected in exercising such powers.'

A number of points need to be made in relations to the NDPP. In the first place the Constitutional Court rejected arguments that the provisions of the Constitution which relate to the prosecuting authority are unconstitutional because they contravene the doctrine of the separation of powers between the Legislature, Executive and Judiciary³. The court also mentioned that the Constitution provides a guarantee in respect of the NDPP's independence. It should be noted that the independence relates to the prosecuting authority's power to institute criminal proceedings on behalf of the State, and to carry out any necessary functions incidental to instituting criminal proceedings in accordance with section 179(2).

Another question which must be considered is whether there is a difference of principle between the interpretation of the Constitution as a whole and the interpretation of the Bill of Rights in particular. This is of some significance because the Bill of Rights contains statements of lofty statements and ideals, while other sections of the Constitution are technical instruction as to how government must be run. In the case of Kalla & Another v The Master & Others⁴, the Court stated that:

"Obviously when one seeks to interpret the fundamental rights clauses .... which set out broad principles, this has to be done in the spirit of the Constitution. But surely not when one has to determine whether Bloemfontein is the seat of the Appellate Division as provided for ins 106(2)?"

The judge in that matter suggested that in relation to technical matters one should try to ascertain what the intention of legislature is.

The Constitutional Court has already indicated that when Interpreting a specific provision of the Constitution, that provision must not be looked at in isolation, but in its context. which includes the history and background to the adoption of the constitution, other provisions of the constitution itself and. in particular, the provisions of the Chapter of which it is part (my emphasis).⁵ The court made these remarks in relation to a discussion on fundamental rights in the case of S v Zuma and two others.⁶

On the basis of the approach of the Constitutional Court to the interpreting of the Constitution. it would be appropriate to look at relevant sections thereof.

Section 199 (1) and (2) provide, amongst other things that the security services consist of single defence force and a single police force and any intelligence services and that the defence force is the only military force in the Republic. Section 1 9Q (3) permits the establishment of other armed organisations in terms of national legislation only.

Section 205 describes how the police force is to be structured, the content of national legislation and stipulates that its objects, amongst other things, are to combat and investigate crime.

Section 209 grants the President the power to establish any intelligence service.

It is noteworthy that the Constitution, in relation to the various arms of the Security Services, viz., the Defence Force, the Police and Intelligence, stipulates that other than the security services established in terms of the Constitution, armed organisations or services may be established only in terms of national legislation". This suggests to me that there is nothing in the Constitution to prevent the establishment of a Directorate of Special Operations or to prevent the President from establishing a Crime Intelligence Division for that Unit.

The only real objection to the establishment of such units, albeit a non-constitutional objection, is that their creation may create confusion, blur lines of accountability and result in inefficiency. These tire not matters which I feel I need to comment on, except to say that the Bill appears to take those considerations into account.

In the case of S V Botha , the Court stated that modern society was so specialised that no police force could by itself investigate and prevent all crime. It is this philosophy which appears to underpin the provisions of section 205 which does not prohibit the creation of other investigating bodies.

In Park Ross and another v Director for Serious Economic Offences. the powers of the Director for Serious Economic Offences in respect of enquiries, search and seizure and the preservation of secrecy and of documents were dealt with. In respect of the powers of search and seizure., the court ruled those powers to be unconstitutional and ordered Parliament to remedy the defects. I do not deem it necessary to comment any further on this matter. The powers of search and seizure of the Directorate for Serious Economic Offences were also held to be constitutional in the Hyundai case.⁹

The constitutional considerations in respect of the powers of the Directorate appear to have been fully taken into account and I do not deem it necessary to comment on those.

Conclusion
For the reasons mentioned herein, I am of the view that neither the Bill nor the proposed amendments to the National Prosecuting Authority Act, Act No.32 of 1998 (which I have considered as well) are unconstitutional.

I specifically wish to mention that the Constitution does not state that only the police service may investigate crime and that no prohibition is placed on limited investigation powers for the National Prosecuting Authority.

Yours sincerely
ENVER DANIELS
CHIEF STATE LAW ADVISER.