SUBMISSIONS TO THE PORTFOLIO COMMITTEE ON JUSTICE AND CONSTITUTIONAL DEVELOPMENT AND THE PORTFOLIO COMMITTEE ON SAFETY AND SECURITY in relation to Overview of the Proposed New Integrated Criminal Justice System National Prosecuting Authority Amendment

1
SUBMISSIONS TO THE PORTFOLIO COMMITTEE ON JUSTICE
AND CONSTITUTIONAL DEVELOPMENT AND THE PORTFOLIO
COMMITTEE ON SAFETY AND SECURITYin relation
toOverview of the Proposed New Integrated
Criminal Justice SystemNational Prosecuting
Authority Amendment Bill B23-2008 South
African Police Service Amendment Bill B30-2008

• 6 August 2008
• These submissions are to be read with the written
  submissions made by
• The Helen Suzman Foundation, dated 28 July 2008
• Submitted by THE HELEN SUZMAN FOUNDATION
• Submission prepared by WEBBER WENTZEL
• Speakers Mr Peter Leon and Ms Raenette Taljaard

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The context

• Crime strikes at the very core of the fabric of
  our society. It undermines some of the
  fundamental human rights enshrined in our Bill
  of Rights. It violates the right to life, the
  right to freedom and security, the right to
  property and the right to dignity to mention a
  few. It undermines the rule of law, a
  foundational value of our constitutional
  democracy. What is more, those who commit
  crimes violate their constitutional duties and
  responsibilities as citizens of this country.
  The State has a constitutional duty to eliminate
  crime. This obligation flows generally from its
  obligation to 'respect, protect, promote and
  fulfil the rights in the Bill of Rights'.
• Per Ngcobo J in Minister of Home Affairs v
  National Institute for Crime Prevention and the
  Reintegration of Offenders (Nicro) 2005 (3) SA
  280 (CC), para 144

3
The proposed legislation is fundamentally flawed
the chronology

• 1999 / 2001 factual and legal establishment of
  the Directorate of Special Operations (the
  DSO), as a specialised agency focused on
  combating organised crime
• 2005 President Thabo Mbeki appoints a
  commission of inquiry headed by Judge SV Khampepe
  (the Khampepe Commission), to report on the
  location and mandate of the DSO
• February 2006 the Khampepe Commission delivers
  its report (the Report) to the President,
  recommending inter alia that the DSO is retained
  within the National Prosecuting Authority (the
  NPA)
• Early 2006 the Cabinet refers the Report to the
  National Security Council
• June 2006 the National Security Council
  approves the Reports recommendations and the
  Cabinet endorses the Report (the Report, however,
  is not released to the public until 5 May 2008)

4
The proposed legislation is fundamentally flawed
the chronology

• June 2007 the ANCs National Policy Conference
  recommends that the DSO be dissolved and that
  legislation giving effect to this be rushed
  through Parliament
• December 2007 the ANCs 52nd National
  Conference adopts the Policy Conferences
  recommendations (the Polokwane resolution) and
  instructs the government to carry out the
  dissolution of the DSO
• January 2008 the ANCs newly elected National
  Executive Committee (the NEC) decides that the
  government should move to disband the DSO by June
  2008
• 8 February 2008 President Mbekis State of the
  Nation Address alludes to an impending
  restructuring of the NPA and intelligence
  services
• 11 February 2008 the Minister of Safety and
  Security, Mr Charles Nqakula, states that the DSO
  will be dissolved and its work absorbed into
  the Organised Crime Unit of the South African
  Police Service (SAPS)

5
The proposed legislation is fundamentally flawed
the chronology

• March 2008 Hugh Glenister launches an
  application in the High Court, raising
  fundamental constitutional breaches by the
  National Executive in initiating and pursuing
  legislation to disband the DSO
• 30 April 2008 the government states that
  legislation to give effect to the decision to
  relocate the DSO from the NPA to the SAPS
  has been approved by Cabinet
• 22 May 2008 the National Prosecuting Authority
  Amendment Bill B23-2008 (the NPA Amendment
  Bill) is published
• 4 June 2008 the South African Police Service
  Amendment Bill B30-2008 (the SAPS Amendment
  Bill) is published
• Late June 2008 the Portfolio Committees call
  for interested parties to make written
  submissions on the NPA Amendment Bill and the
  SAPS Amendment Bill (the Bills) by 28 July
  2008. The Committees advertisements, for the
  first time, allude to a document entitled the
  Overview of the Proposed New Integrated Criminal
  Justice System (the Overview)

6
The proposed legislation is fundamentally flawed
the chronology

• 28 July 2008 the Portfolio Committees receive
  substantial number of written submissions
• 30 July 2008 the Chairperson of the Portfolio
  Committee on Safety and Security states that the
  decision to dissolve the DSO has been taken by
  the ANC. As such, the DSO would be dissolved and
  that the only issue to be broached in public
  hearings is the detail of the provisions of the
  Bills
• 5 August 2008 the document entitled The Review
  of the South African Criminal Justice System
  (the Supplementary Document) is presented to
  the Committees by the Deputy Justice Minister
• 5 to 8 August 2008 public hearings on the Bills

7
Successes of the DSO

• The DSO has been extremely effective in combating
  organised crime, with an average conviction rate
  between 80 and 90 (see the NPA Annual Reports
  and the DSOs Annual Report to the Portfolio
  Committee on Justice and Constitutional
  Development)
• A necessary condition for the DSOs
  accomplishments is its prosecution-led and
  intelligence-driven investigative approach (the
  troika principle)
• Its independent and impartial approach is nowhere
  more vividly demonstrated than in its pursuit of
  key government officers and probing
  investigations into government dealings,
  including the Travelgate Scandal, the Arms
  Deal, the successful prosecution of Schabir
  Shaik, the pending prosecutions of Jacob Zuma and
  Jackie Selebi

8
ANC members investigated by the DSO
BathabileDlamini
SchabirShaik
RuthBhengu
JacobZuma
NyamiBooi
TonyYengeni
DSO INVESTIGATIONS
ThabaMufamadi
JackieSelebi
NosiviweMapisa-Nqakula
MbuleloGoniwe
NdleleniDuma
NgoakoRamatlhodi
9
Ulterior purposes and motives

• The inescapable conclusion, from all the
  circumstances, is that the government is simply
  giving effect to a dictate of the Polokwane
  Conference and the ANCs NEC, made with a view to
  shielding key ANC members from effective
  investigation and prosecution
• The dubious rationale advanced by the ANC
  National Policy Conference, that the existence of
  the DSO cannot be justified in light of the
  constitutional imperative for a single police
  service, has been conclusively dismissed by the
  Khampepe Commission and Constitutional Court
  dicta (Minister of Defence v Potsane 2002 (1) SA
  1 (CC))

10
Financial implications of the Bills

• Government has substantially misrepresented and
  inadequately addressed the financial implications
  of the Bills
• Failure to comply with rule 243(1)(c)(iii) of the
  National Assembly Rules, as the cost implications
  of both the dissolution of the DSO and the
  creation of the DPCI are not adequately addressed
• In the absence of this vital information, the
  Committees are not in a position to fulfil their
  constitutional duties

11
Denial of participatory democracy

• It is apparent that the government intends to
  dissolve the Directorate of Special Operations
  (DSO) regardless of any submissions, as
  evidenced by the statements made at a press
  conference on 30 July 2008 by the Chairperson of
  the Portfolio Committee on Safety and Security.
  These statements have subsequently been
  supplemented by the Chairs of the Committees on 5
  August 2008, as well as in a closed meeting with
  the HSF, the ISS and the IDASA.
• The lawfulness of the legislative process is
  vitiated by the truncated time periods allowed
  for
• the Committees to consider submissions and
• interested and affected parties to make verbal
  presentations

12
Denial of participatory democracy

• The uncertainties surrounding the origins, status
  and substance of the Overview deny the public a
  proper opportunity to comment on the drastic
  changes proposed by government
• The belatedly published Supplementary Document
  does not attempt to address or contextualise the
  Bills, but instead focuses on the seven
  transformative changes
• The Bills will not achieve the Supplementary
  Documents stated objectives which are inter alia
  a criminal justice system which is focussed
  sic, co-ordinated and well-managed, at every
  level
• The effects of the Bills undermine the statements
  in the Supplementary Document

13
Relevant issues before the Constitutional Court
need to be resolved

• It is improper to proceed with the parliamentary
  process before the application by Hugh Glenister
  is decided by the Constitutional Court
• The Glenister application raises fundamental
  issues of constitutional principle, related
  directly to the initiation and pursuit of the
  proposed legislation, including the lawfulness,
  reasonableness, proportionality and procedural
  fairness of the conduct of the National Executive

14
The stated objects of the Bills

• The Memorandum on the Objects of the SAPS
  Amendment Bill refers to the need to address
  organised crime in a more comprehensive fashion
  and suggests that the Bills seek the "relocation
  of the DSO to the SAPS"
• The Overview advocates a "holistic" and
  "integrated" approach in the criminal justice
  system to address crime. It states that "one
  of the main weaknesses indentified sic was a
  lack of coordination between the different
  players in the system, namely the SAPS, NPA
  and the relevant Government Departments"

15
Dissonance between the stated objects and the
substance of the Bills

• No proper criminal justice system review has been
  proffered by the government
• The Bills do not give effect to the wide ranging
  recommendations of the Khampepe Commission (inter
  alia that the Ministerial Co-ordinating Committee
  (the MCC) should function more efficiently and
  a sub-committee of officials to support and
  advise the MCC should be established) and merely
  compound the weaknesses identified by the
  Khampepe Commission (for example, the inferior
  provisions relating to inter-departmental
  co-ordination contained in the proposed section
  16A(16) in clause 3 of the SAPS Amendment Bill)
• Despite the claim that the troika principle will
  be retained, the Bills clearly result in the
  destruction of the key feature of that principle
• The disaggregation of the prosecutorial,
  investigative and intelligence dimensions of
  crime prevention does not reflect a holistic
  approach and can only lead to dissonance and lack
  of co-ordination
• The Bills do not contain any provisions dealing
  with the relationships and functions of the new
  DPCI staff

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The effect of the Bills

• The Bills disestablish and do not merely relocate
  a highly successful and widely acclaimed
  organised crime-fighting unit
• The NPA Amendment Bill and the proposed section
  16A(2) in clause 3 of the SAPS Amendment Bill
• The Bills concentrate power in the hands of the
  National Commissioner of the SAPS
• Proposed sections 16A(2), (4) and (15) in clause
  3 of the SAPS Amendment Bill
• The mandate of the new Directorate for Priority
  Crime Investigation (the DPCI) is overbroad and
  results in loss of focus on organised crime
• Proposed sections 16A(1), (2)(e) and (3) in
  clause 3 of the SAPS Amendment Bill

17
The effect of the Bills

• The prosecution-led and intelligence-driven
  investigative approach will be lost
• The NPA Amendment Bill and the proposed section
  16A(2)(b) in clause 3 of the SAPS Amendment Bill
• Co-operation and integration will be diminished
• Proposed sections 16A(2) and (16) in clause 3 of
  the SAPS Amendment Bill
• Powers of search and seizure will be weakened
• Clause 4(2)(a) of the SAPS Amendment Bill

18
The effect of the Bills

• Contrary to the findings of the Khampepe
  Commission in relation to the inadequacy of the
  security vetting provisions, the National
  security vetting provisions are identical to
  those in the NPA Act
• Proposed sections 16A(6)-(13) in clause 3 of the
  SAPS Amendment Bill

19
Fundamental infringements of substantive
constitutional principles

• Government conduct and the Bills constitute a
  serious breach of the rule of law
• legislation initiated for improper purposes
• legislation drafted on the basis of unlawful
  dictates and the failure to exercise the
  constitutional power independently
• Government conduct and the Bills are irrational
• the legislation is not rationally connected to
  its stated objects
• the legislation is not rationally related to a
  legitimate government purpose
• the legislation is not rationally related to the
  recommendations of the Khampepe Commission (in
  particular, the key recommendation that the DSO
  should be retained in the NPA)

20
Fundamental infringements of substantive
constitutional principles

• Government conduct and the Bills violate
  constitutional rights
• the proposed legislation unjustifiably infringes
  the rights to life, human dignity, freedom and
  security of the person, and property
• Government conduct and the Bills breach the
  states positive constitutional duties
• the proposed legislation violates the states
  duty to take positive measures to respect,
  protect, promote and fulfil the rights in the
  Bill of Rights (section 7(2) of the
  Constitution)

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Fundamental infringements of substantive
constitutional principles

• Government conduct and the Bills infringe other
  constitutional imperatives
• "national security must reflect the resolve of
  all South Africans, as individuals and as a
  nation, to live as equals, to live in peace and
  harmony, to be free from fear and want and to
  seek a better life" (section 198(a) of the
  Constitution)
• all spheres of government must "preserve the
  peace of the Republic" and "secure the
  well-being of the people of the Republic"
  (section 41(1)(a) and (b) of the Constitution)
• all spheres of government and all organs of state
  within each sphere must exercise their powers
  and perform their functions in a manner that does
  not encroach on the geographical, functional or
  institutional integrity of government in another
  sphere (section 41(1)(g) of the Constitution)

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Conclusions

• The disbanding of the DSO would amount to serious
  and unjustified violations of the rule of law and
  the Constitution and breach the states
  constitutional obligations
• The Bills suffer from incurable constitutional
  deficiencies and should not be approved by the
  Committees

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Respect constitutionalism President Mandela

• In the circumstances, it is apt to reflect on
  the sage words of one of the fathers of our
  democracy, made on the occasion of the ANCs
  official celebration of his 90th birthday
• Celebrate our tradition of open debate,
  criticism, discussion and respect for democracy.
  We fought hard and sacrificed much for this
  democracy. Protect, defend, consolidate and
  advance democracy - within the organisation and
  in national life. Let us give the lead in
  demonstrating our respect for the institutions
  of our democracy - both in our actions and
  words.
• Nelson Mandela in a speech made on 2 August 2008
  in Pretoria