Society of State Advocates of South Africa

1. The Society presented comment on a previous draft of the bill to the Honourable the Minister of Justice in December 1996. It is most gratifying that several of our proposals for improving the draft have been included in the bill.

2. We particularly welcome the exclusion from clause 19(1) of any reference to the Public Service Commission as a necessary consultant for the determination of the salaries of deputy directors and prosecutors.

3. We also support the provision in clause 18(1)(a) which establishes that the National Director's remuneration may not be less than that of a judge of the Supreme Court of Appeal, in accordance with our previous suggestion, and clause 18(1)(b), which provides that a director's remuneration may not be less than 80% of the National Director's.

4. We nevertheless persist in pointing out that the rest of the prosecuting authority is excluded from the comfort of having its salary levels linked to the judiciary, on the one hand, and the National Director on the other hand. We continue to suggest that the remuneration of the whole of the prosecuting authority should be linked. It should be enacted that a deputy director's remuneration shall not be less than 85% of a director's remuneration, and that the remuneration in respect of the lowest grade of each consecutive rank of prosecutor after that of deputy director shall also not be less than 85% of a deputy director's and each subsequent rank's remuneration.

5. We submit in the light of the above that the provision in clause 19(4) in terms of which the Minister issues revised salary scales if circumstances so justify, is inadequate. In terms of this clause, the revision and adjustment of salaries and allowances of public servants and magistrates is merely a factor which the minister must take into account in deciding whether to revise prosecutors' salaries. Circumstances might be found which prompt the Minister not to exercise his discretion in favour of adjusting prosecutors' salaries to keep pace with magistrates and public servants. We suggest that this weakness can be overcome by linking prosecutors' salaries to directors', which in turn are linked to the National Director and the appellate judiciary.

6. We point out that the present salary crisis concerning the prosecution arose despite all parties concerned being agreed, at least from mid-1996, that prosecutors were being inadequately remunerated, and that some method of improving their salaries had to be found. Despite such universal agreement, the situation could not be addressed properly because of the inadequacy of the legislation concerning the prosecution and the structures in which the prosecution found itself. Such a situation must not be allowed to occur again. Our proposal to link prosecutors' salaries as set out above will provide the legislative structure which will ensure that such a crisis does not occur again. The present crisis has caused prosecutors and state advocates to resign in ever increasing numbers at least since 1996, with some offices losing more than 50% of their professional staff. The country cannot again afford the loss of such valuable experience and manpower.

7. We therefore propose that clause 19(1) be amended by the addition of the following proviso :

"Provided that -

(a) the remuneration of a deputy director shall not be less than 85% of the remuneration of a director; and

(b) the remuneration in respect of the lowest grade of each consecutive rank of prosecutor after that of deputy director shall not be less than 85% of the remuneration of a deputy director or each immediately higher consecutive rank, as the case may be."

8. Our submission that the National Director should be at least as appropriately qualified as the directors who are responsible to him, remains. The contrast between clause 8(1), which goes no further than to require that the National Director be "appropriately" qualified, and clause 12(2), which requires that directors in addition must have the right of appearance in the High Court, and have at least 10 years' experience in the application of the law, is a glaring and unjustified contrast. How can it be justified that the head of the prosecuting authority is permitted to be less well qualified than his subordinates are?

9. The argument has been raised that the Constitution does not prescribe whom the President must appoint in terms of section 179 of the Constitution, and that further prescription of the National Director's qualifications in the bill is therefore somehow inappropriate. It seems, rather ironically, that no one attempts to put up the argument in principle that it is desirable to allow the President to appoint a National Director who is not appropriately legally qualified. The only debate against including appropriate legal qualifications is therefore this rather odd constitutional point. The answer is surely that there is nothing unconstitutional in further prescribing the President's constitutional powers in national legislation. Section 179(1) of the Constitution is silent as to whom the president must appoint, and it merely prescribes who must make the appointment, namely the President. In terms of the so-called constitutional argument described above, the present form of clause 8(1) is unconstitutional, in that it goes further than the Constitution in prescribing that the National Director be an "appropriately qualified, fit and proper person", and, in addition in terms of clause 8(2), "a South African citizen."

10. For the reasons above we propose that clause 8 be amended by the deletion of clause 8(2) as it now appears, and by the substitution therefor of the following clause 8(2) :

"A person shall only be appointed as the National Director if he or she -

(a) has the right to appear in the High Court as contemplated in sections 2 and 3(4) of the Right of Appearance in Courts Act, 1995 (Act No 62 of 1995);

(b) has been concerned in the application of the law for a continuous period of at least 15 years after his or her admission to practise as an advocate or attorney;

(c) possesses such experience as, in the opinion of the President, renders him or her suitable for appointment as National Director; and

(d) is a South African citizen."

11. There is no provision in terms of the bill for the appointment of prosecutors. The directors are therefore left in terms of clause 16 of the bill to seek amongst persons appointed in terms of the Public Service Act for their delegated prosecutors, with no formal power to influence their appointment, or to decide upon their numbers. It is submitted that this must be rectified in order to avoid the critical shortages in personnel which have arisen under the present dispensation, which persists in terms of the bill. It is proposed that a clause 14A be inserted in the bill, which provides as follows :

"14A. (1) The National Director may, in respect of each area or office for which a Director has been appointed, in consultation with the Director concerned, appoint one or more persons as prosecutor.

(2) A person shall only be appointed as prosecutor if he or she is qualified in terms of section 16 to receive a delegation.

(3) If a vacancy occurs in the office of a prosecutor, the National Director shall, subject to subsection (2), as soon as possible, appoint another person to that office. "