Report of the Ad Hoc Committee on Special Report of Public Protector, dated 23 June 2004:
The Ad Hoc Committee on Special Report of Public Protector reports as follows:
1. Introduction On 28 May 2004 the Public Protector submitted a report to Parliament in terms of section 182(1)(b) of the Constitution, and section 8(2)(b) of the Public Protector Act, 1994. The Committee was appointed by resolution of the House on 3 June 2004 in terms of NA Rule 214.
2. Terms of reference To consider and report on the Special Report of the Public Protector on an investigation of a complaint by Deputy President, Mr Jacob Zuma against the National Director of Public Prosecutions and the Prosecuting Authority, and to report to the House by 25 June 2004.
3. Approach (a) In considering the Report, the Committee strove to ensure that the integrity of Parliament is upheld;
(b) The Committee agreed on the importance of upholding the integrity of the two constitutional institutions, that of the Public Protector and the Prosecuting Authority;
(c) The Report was discussed as presented, and no additional evidence outside the report was considered.
4. Findings After considering the key findings contained in the Report (listed below) the Committee’s position is as follows:
24.1 The Prosecuting Authority is accountable to Parliament in respect of the exercising of its powers and the performance of its functions and duties;
Finding accepted.
24.2 The Prosecuting Authority is also accountable to Parliament for its decisions regarding the institution of prosecutions;
Finding accepted.
24.3 The Minister and the National Director were constitutionally obliged to cooperate with the Public Protector in the investigation of the complaints of the Deputy President;
Finding accepted.
24.4 The reluctance and failure by the Minister and the National Director to cooperate with the Public Protector in the investigation was improper and unconstitutional. It resulted in the Public
Protector having to conclude the investigation without the benefit of proper responses by those implicated by the complaints of the Deputy President;
Finding noted. 24.5 The press statement made by the National Director on 23 August 2003 that there is a prima facie case of corruption against the Deputy President but that he would not be prosecuted, unjusti- fiably infringed upon Mr Zuma’s constitutional right to human dignity and caused him to be improperly prejudiced;
Finding accepted.
(The DA, IFP and UDM do not agree with the Committee’s acceptance of this finding).
24.6 The press statement (referred to in finding 24.5 above) was
unfair and improper;
Finding accepted.
(The DA, IFP and ID do not agree with the Committee’s acceptance of this finding).
24.7 The Deputy President had probably not been informed by the Minister and the National Director of the criminal investigation against him shortly after it commenced, as was publicly claimed by the National Director;
Finding noted.
24.8 As the Minister was replaced in the Cabinet after the 2004 elections, it would serve no purpose to make any recommendations to Parliament in regard to his improper failure to cooperate with the Public Protector.
Finding noted.
24.9 The provisions of section 31 of the NPA Act that established a Ministerial Coordinating Committee have not been implemented.
Finding accepted.
24.10 The steps taken by the President to attend to the remarks made by the Hefer Commission in regard to the leaking of confidential information by the Prosecuting Authority should be
commended. The recommendations made by the investigators and the instructions given by the President in this regard, are supported.
Finding accepted.
5. Public Protector’s Recommendations ‘‘In terms of the provisions of section 182(1)(c) of the Constitution and section 6(4)(c)(ii) of the Public Protector Act, it is recommended that Parliament take urgent steps to:
25.1 Ensure that the National Director and the Prosecuting Authority are held accountable, by virtue of the provisions of sections 41(1) and 181(3) of the Constitution and section 35 of the
National Prosecuting Authority Act, 1998, for:
25.1.1 Failing to cooperate with the Public Protector in the investigation of the complaint of the Deputy President;
25.1.2 Infringing upon the Deputy President’s constitutional right to human dignity and thereby causing him to be improperly prejudiced; and
25.1.3 Acting in an unfair and improper manner in regard to the Deputy President. 25.2 Ensure that the Ministerial Coordinating Committee contemplated by section 31 of the National Prosecuting Authority Act, 1998: 25.2.1 Convenes as a matter of urgency; and
25.2.2 Determines policy guidelines in respect of the functioning of the Directorate of Special Operations that would prevent a recurrence of the improprieties referred to in this report.’’
6. Recommendations After due consideration of the Public Protector’s recommendations, the Committee recommends that the House:
(a) Calls on all organs of state to recommit themselves to uphold and promote the principles of co-operative government as well as the rights enshrined in the Bill of Rights;
(b) Expresses its disapproval of the public statement made by the National Director of Public Prosecutions on 23 August 2003 which infringed the Deputy President’s constitutional right to
human dignity, thereby causing him to be prejudiced (the DA and IFP do not agree with this recommendation);
(c) Calls on the Prosecuting Authority to observe the Prosecution Policy, comply with the Code of Conduct for Members of the National Prosecuting Authority, and adhere to the United Nations Guidelines on the Role of Prosecutors, in compliance with sections 21 and 22 of the National Prosecuting Authority Act, 1998;
(d) Calls on the Minister of Justice and Constitutional Development to ensure that the provisions of section 31 of the National Prosecuting Authority Act, 1998, providing for the establishment
of a Ministerial Coordinating Committee, are implemented without delay, and to report to the National Assembly within 60 days of this resolution;
(e) Calls on the Minister of Justice and Constitutional Development to convene a meeting between the National Director of Public Prosecutions and the Public Protector to resolve any differences that might exist between them, and to ensure the development of effective measures which enhance co-operative relations between the Prosecuting Authority and the Public Protector, and report to the National Assembly within 60 days of this resolution;
(f) Calls upon the Minister of Provincial and Local Government to introduce, without delay, the legislation referred to in section 41(2) of the Constitution to establish or provide for structures
and institutions to promote and facilitate intergovernmental relations and provide for appropriate mechanisms to facilitate settlement of intergovernmental disputes, and to report to the National Assembly; (g) Calls on the Minister of Justice and Constitutional Development to take immediate steps aimed at establishing an effective system of information security within the Prosecuting Authority, and to report to the National Assembly within 60 days of this resolution; and
(h) Recommits itself to exercise effective and pro-active oversight over organs of state that are accountable to it.