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 - PowerPoint PPT Presentation

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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

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Title: 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

2
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

16
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)

21
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)

22
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

23
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
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