Submission by the National Prosecuting Authority on Legislation Dealing with the Disbandment of Scorpions

1. PORTFOLIO COMMITTEES ON JUSTICE AND CONSTITUTIONAL DEVELOPMENT, SAFETY AND SECURITY AND SELECT COMMITTEE ON SECURITY AND CONSTITUTIONAL AFFAIRS PUBLIC HEARINGS ON THE LEGISLATION DEALING WITH THE DISBANDMENT OF SCORPIONS SUBMISSIONS BY THE NATIONAL PROSECUTING AUTHORITY 5 AUGUST 2008

2. NPA / DSO APPROACH • NPA welcomes this opportunity to engage with Parliament • We approach this process in a positive spirit and with confidence • NPA would like to make clear that we want to make the process work – not just for our staff but also for law enforcement and the interests of our country • NPA wants to contribute to discussion and share our experience of trying to fight crime effectively – not just in DSO but NPA as whole • But whatever is decided finally, NPA or DSO will try to implement it • Of course there are very concerned staff who have received little information – it is a tribute to their discipline that there has been little public outcry • Some of them are coming to speak to Parliament and we do not believe we can prohibit them from doing so • But we believe that they are doing so in a spirit of genuine concern.

3. TRANSITION • NDPP has appointed a small team from NPA and DSO to manage the transition. • Have been visiting the various offices to assure staff and listen to their concerns • Assured them that this will be constructive process • That parliament will address issues properly and thoughtfully • Try to motivate to stay – have turned around some resignations – even got some back • But it is important that there be real engagement with staff on some of the issues we deal with later

4. POLICY CONSIDERATIONS • Make the criminal justice system more effective and credible • Build on the integrated and multi-disciplinary method of work that has been developed in the DSO, SAPS/NPA collaborations in organised and commercial crime • Be more effective in the fight against organised crime than the DSO • Add significant new powers to Directorate that will make it more effective in the fight against crime – e.g. SOCA in UK added a range of further powers, such as tax, customs, home affairs, asset recovery and FIC related powers

5. POLICY CONSIDERATIONS • Bring together the DSO and key units in SAPS and other bodies to form a body with significantly larger capacity • Ensure effective and institutionalised cooperation between the relevant law enforcement agencies and stakeholders (SAPS NPA NIA SARS FIC Customs) • Ensure that the weaknesses in the present DSO and other models are dealt with effectively • Have a management model that represents the range of professions in the new Directorate and can deal with the challenges of combining staff from different organisations.

6. POLICY CONSIDERATIONS • Ensure a mandate and process which will be legally and constitutionally sound • Cater effectively for labour relations and transitional issues in a way that is immune to legal challenges that may be brought which may delay the process significantly • Ensure that the institutional and human capacity built up in the DSO is not lost • Important to ensure that there is no consequential damage to major organised crime and corporate corruption cases currently being investigatedor prosecuted

7. NEED FOR PROPER CRIME ANALYSIS • Vital that new proposal be based on a proper policy development process • Analysis and understanding of nature of problems in CJS • Understand and agree on what the new policy is required to achieve before a new proposal is designed • Firstly, require proper threat analysis of the crime situation, especially the threat posed by 3 crimes in DSO mandate, namely: • serious organised crime and serious and complicated economic crime and corruption • See Annexure B

8. POLICY BASED ON PROPER ANALYSIS • Secondly, an analysis of what has been effective in combating the 3 crimes, and weaknesses in present DSO and CJS • NPA has a draft analysis of lessons learnt from the NPA and DSO experience – submission based in Annexure C • However, analysis needs to be broader and include perspective of other role players in law enforcement • Vital that understanding be developed and agreed upon, before start the process of designing improved policy and strategies • So can validate against the analysis

9. GOVERNMENT GUIDELINES • Some criteria were set out by President - Annexure D • NPA made some input into consultation process in government • But there was inadequate time for proper discussion • We respect that Parliament has its own process and we are hopeful that there will be proper time to discuss the Bills • We are making this input as NPA rather than as DSO because we want to share with you the experience of the whole NPA in fighting crime

10. PRINCIPLES THAT ARE IMPORTANT IN THE DESIGN OF THE NEW DIRECTORATE

11. 1) ENABLING AN INTEGRATED METHODOLOGY • Need to understand DSO’s integrated methodology and its origins – not unique in world • Start with Office for Serious Economic Offences (OSEO) 1992 • Based on international models, esp Serious Fraud Office in UK and Commonwealth, to deal more effectively with complex economic crime • OSEO became part of NPA as Investigating Directorate: SEO (1998) • Given success OSEO, NPA Act also provided for further IDs and 3 were created for Organised Crime (IDOCs)

12. 1) INTEGRATED METHODOLOGY (CONT) • IDOCs for urban terrorism in WCP and political violence in KZN very successful – including collaboration with intelligence • Integrated methodology formalised in the DSO in 2000. • It was strengthened and refined to improve the professional competence with which more serious and complex commercial, corporate and financial cases were investigated and prosecuted • Also improvement in professional performance. • Similar to FBI, SFO, SOCA in the UK, etc

13. 1) Importance of integrated methodology (cont) Value of prosecutors working closely with investigators & intelligence ops from very early: • In most serious cases, criminal trial has become a trial of investigation rather than of accused • Close cooperation is vital to ensure legality of all stages of investigation, e.g.: intelligence ops, application and execution of undercover ops and of warrants, interviews of witnesses, use of powers to question under oath, etc. • Important to ensure that challenges to the legality of the investigation can be litigated effectively when required

14. 1) IMPORTANCE OF INTEGRATED METHODOLOGY (CONT) • Guiding investigation so that evidence gathering is focussed on the eventual charges, i.e. prevent time wasted by collecting irrelevant evidence, prevent delays caused by not collecting correct evidence • Earlier and better decisions on who to use as state witnesses • Prosecutors can take much speedier prosecution decisions when they already understand case and agree with evidence collected Else, there are often delays (sometimes of years) while prosecutor studies a very complex docket, and then requests further investigation

15. 1) IMPORTANCE OF INTEGRATED METHODOLOGY (CONT) • Another vital success factor in the fight against organised crime is an effective and integrated approach between investigations and intelligence, especially crime intelligence • Lack of clarity regarding the boundaries between pure intelligence and crime intelligence may be seen a weakness in the DSO and it is vital that this area should be clarified in the new Directorate • Both Con Court and Supreme Court of Appeal have so far held that there is no legal problem with prosecutors working hands-on with investigators – should not destroy model without proper discussion

16. 2) INTEGRATED MANAGEMENT AND MULTI-DISCIPLINARY TEAMS • To build a body with effective integrated multi-disciplinary investigations, it is vital that different components must have real say in strategy, management and day-to-day operations • Else, 1 component tend to dominate to detriment of others • Each professional stream needs structured and clear lines of professional accountability, and responsibility for developing and increasing the level of professional skill of members • Important in resolving inevitable disagreements that arise when different professionals work together and their expertise may not be understood by others • For effective coordination with other bodies, it is also important to have counterparts at senior level within each professional stream

17. 3) FOCUSED MANDATE • The NPA believes that it is important for the success of new Directorate that its mandate must be focussed • On cases where there is need for integrated methodology • It must not be swamped with work that can be dealt in other ways, including less intensive working together as in the case of the SCCU • It is proposed that the mandate should include: • serious organised crime • serious and complicated economic crime and • serious and complicated corruption

18. 4) COMPACT BODY WITH FOCUSED TOP MANAGEMENT • Benefit of focused and compact unit is that entire top management focus on core business with short lines of command • Enables more flexible, quick response to changes in crime trends • It also enables quicker and more effective response to many complex issues that arise, esp. in litigation • In any large police or investigative body, main focus of management will (and should) be on the most pressing issues facing the country, e.g. crime prevention, dealing with serious violent crime, etc • Where management is faced with immediate priorities, longer-term initiatives required to deal effectively with complex crime, do not receive the priority attention that they deserve, because the results are longer term

19. 5) ATTRACTING QUALITY GRADUATES AND SKILLED PROFESSIONALS • Need long-term approach to build professional and skilled investigative and other capacity to make a real difference • For a body that can attract highly skilled professionals, require: • specially designed career-paths • with competitive salaries and performance rewards • that can adapt relatively quickly to changing circumstances • an attractive and professional corporate image • Such a body is also vital to increase pool of skilled investigators (especially to improve employment equity) by attracting high-level graduates and developing a focused, fast-track training program • Such measures are likely to fail in large government bodies as they tend to cause much labour relations issues amongst other staff

20. 6–8) INTEGRITY, COMPETENCE, CONDITIONS OF SERVICE 6) Ensuring a high level of integrity • Any high-level specialised unit will face attempts to corrupt it, and staff need to have complete confidence in each other • Stringent and ongoing integrity vetting is vital to ensure that it is clean when created, and remains so • It is vital that it has own tough internal integrity capacity 7) Vetting for competence: • To ensure that it is constituted as a high-level, skilled organisation, an agreed method of competence assessments is needed if it takes over many staff from other bodies 8) Conditions of service: • To avoid legal challenges, and internal disputes, all staff employed by it should enjoy the same conditions of service

21. 9-10) CORPORATE SUPPORT AND INDEPENDENCE 9) Effective corporate support • Effective corporate support and proper resourcing is a vital enabler for excellent performance • Investigators often spend much of their time resolving logistical and administrative issues that can be dealt with by support staff • This is easier to achieve in a small, relatively coherent body 10) Independence • Given the sensitivity of some investigations that may be conducted, it is important that there is a significant measure of independence from other parts of law enforcement • And an appropriate and active oversight body to ensure that allegations of interference or manipulation are dealt with effectively

22. 11) EFFECTIVE OVERSIGHT AND COOPERATION MEASURES • NPA proposes a Ministerial Coordinating Committee • And a Board with mainly government stakeholders • To define the parameters for new Directorate and ensure role purification and that it stays with its mandate • Play a key role in promoting cooperation between the different entities that need to cooperate – including NPA, NIA, SARS, FIC, Customs, etc • Exercise oversight over the investigations and day-to-day business of new Directorate • To ensure a measure of independence

23. “SECONDARY” PRINCIPLES • It is important to retain the expertise built up over the past decade • Measures are required to prevent damage to existing cases • This would involve some mechanism to keep together the teams of prosecutors and lawyers that have worked on cases

24. DETAILED COMMENTS ON BILLSANNEXURE A

25. INTEGRATED METHODOLOGY • Proposals on how to ensure a better preservation of an integrated approach (Annex A: par 5, 6) • To provide for prosecutors to assist investigators with investigations • Also for officials from NIA, SARS, Customs, FIC, FSB, etc • To provide for crime intelligence gathering by all intelligence services and information sharing between them • To amend NPA Act to provide for mechanism to work with new Directorate on a national level and provide support and assistance nationally

26. CLARIFYING THE USE OF DSO POWERS • Section 16B provides for conducting of investigations and preparatory investigations by the Head of new Directorate - based on the provisions of s28 of the NPA Act (A: par 7-9) • Scheme of DSO is that investigators have little power except in relation to a small number of investigations. • Does not fit in easily with SAPS where all investigators have wide powers in relation to any crime • May unnecessarily restrict powers of investigators in new Directorate in some areas • But also do not contain safeguards in NPA Act where it matters – e.g. in questioning under oath

27. QUESTIONING UNDER OATH • Innovation from UK legislation in early 1990s • Vital for effective economic crime investigations as need to exclude many innocent explanations • Loss of this power will be disastrous for a several cases that of massive corporate corruption, or impacted significantly on ordinary people • NPA has not been opposed to such powers being available for use by SAPS – but it can be done within the existing framework of the NPA Act and subject to safeguards as discussed in par 8

28. QUESTIONING UNDER OATH (CONT) • At present can only be exercised only by Directors of Public Prosecutions –senior legal officials, appointed by President • In Shaik matter, Con Court recognised the importance of these powers, but expressed reservations about ensuring that there are adequate safeguards • Bills at present weaken rather than strengthen the safeguards and this must be seriously considered to ensure the constitutionality of these powers

29. QUESTIONING UNDER OATH (CONT) • Current phrasing is ineffective in solving problem (A: par 10) • But also render powers ineffective (A: par 10) • There are also some provisions that are appear to be unnecessary (A: par 11)

30. LABOUR LAW ISSUES • Vital that process is not delayed by legal challenges which will also make it more difficult to retain staff • Have to ensure that process is done properly in terms of the law • Advice that this is a major restructuring and may be seen as a constructive dismissal if not handled properly • In any event, law requires proper and detailed consultation with affected staff (A: par 19-22) • Parliament must consider how this is to be dealt with • Else process may be delayed later which is not in the interest of anyone

31. SPECIFIC LABOUR RELATED ISSUES • Many joined DSO with for specific career path and to benefit from transfer of skills between professions (par 23) • Bill preserves “salary grades”, but unclear if there is still pay progression for performance • Need to ensure future career pathing – can still apply for promotion • Only real solution is to decide up-front that all will be on same salaries • Else will lead to labour disputes and tensions

32. SPECIFIC LABOUR RELATED ISSUES • Should contain more detail about packages – and will have to be negotiated (A par 23) • Should allow staff to take it later – up to 12 months after integration – else many will leave before they have seen whether it can work • Consider other options to encourage to stay in state • Wide discretion for National Commissioner to transfer staff need to be better describe

33. ADDITIONAL POINTS • Mandate in s16 does not refer sufficiently to economic crime and corruption (A: par 12.3) • But also too wide in relation to organised crime • Secondments not viable long term solution (par 24 of main submission) • DSO budget will need to be divided properly (A: par 13) • Section 24 of NPA Act to ensure normal interaction between NPA and SAPS (A: par 14) • Clear powers may be needed for a statutory body

34. OTHER ISSUES (CONT) • Certain ranks and components mentioned in SAPS Bill are not defined in statute • Position of AFU and other staff appointed as investigators but who do not perform investigative functions (A: par 17)

35. ADDITIONAL DEPUTY NDPPS • The amendment has nothing to do with the relocation of the DSO, does not fit into the objectives of the Bill, and no motivation is given for this proposal (A: par 18) • Parliament specifically limited DNDPPs to 3 in order to prevent the establishment of a top-heavy structure • Increased to 4 to accommodate Head of the DSO as a DNDPP • NPA at present has a transformation process to look at exactly such issues – thus the proposal is premature • Bear in mind that DNDPP and DPP are appointed until age 65 • Increased trend to request release earlier which pose real problems

36. CONCLUSION • We wish to thank the Committees allowing us this opportunity • We would like to continue to engage with the Committees as much as possible because the issues raised in the Bills are ones that are vitally important, and we have to ensure that we find solutions that are in the interests of our country • Finally, while we have raised a number of difficult issues, we have done so because to discuss these issues and find workable solution that strengthen the fight against crime • We stress our commitment to implement whatever decision is made and to make sure that it works