Attorney-General: Transvaal - Adv JA d'Oliviera
MEMORANDUM ON NATIONAL PROSECUTING AUTHORITY BILL
This Memorandum contains comment and/or submissions on grammatical, technical and more substantive matters. For the sake of convenience, the order of clauses in the Bill will be followed.
(1) Subclause (3)
It appears grammatically more correct to re-arrange the word order:
"The National Director shall, with the concurrence of the Minister and after consulting the Directors, determine prosecution policy..."
(2) Subclause (4)
Is "final responsibility for" not better than "over"?
Cf. also the Preamble
(1) Line 1
It is more correct to state that
"The prosecuting authority comprises the following members -
(Alt: "is comprised of...)
(2) Subclause (c)
As OSEO may include persons who arc not necessarily legally qualified (e.g. accountants; police officers), is it not advisable to re-consider the formulation or, alternatively, add a proviso limiting the provisions to State Advocates/Prosecutors who are appointed to OSEO?
(1) Subclause (b)
This should be amended by the insertion of "and conducting'" after the words "to instituting".
Instituting and conducting arc differentiated functions.
(2) Subclause (c)
This should be deleted as surplusage. Under the interpretation of statutes, the power to do includes the power not to do and the power to stop doing.
(1) Subclause (1)(b)
The word "discontinuing" (in the last line) is unnecessary.
Cf. the submission re Clause 4(c), supra.
(2) Subclause (1)(c)
The phrase "in respect of any prosecution" is too narrow. For example, assistance or the prevention of interference is required in both the pre- and post-prosecution phases.
There would seem to be two options:
(i) "in respect of any decision to prosecute or prosecution";
(ii) "... with the prosecuting authority in the exercise or performance of its powers and duties".
The second option is, in my view, the better one.
(3) Subclause (2) (a)
Concerning the text of the oath/affirmation, it appears that Deputy Directors have been overlooked. The lacuna must be rectified.
This clause is greatly welcomed. The NDPP could not function without a proper office infrastructure.
The words "of a" have erroneously been omitted (i.e. after the word "Director").
(2) Subclause (2)
The inclusion of the phrase, "persons contemplated in section 25(1)" (in the second line) should be reconsidered.
Clause 25(1) contemplates an ad hoc arrangement (i.e. a contract for specific services). Persons so contracted do not form part of the establishment of an office. It is therefore incorrect to state that "(a)n Office... shall consist of (such persons)".
If regard be had to persons to whom delegations may be issued under Clause 16, it is clear that they will not be part of the office establishment. Such persons are only pro hac vice "in" an office.
The contract (under clause 25(2)) and the delegation (under clause 16) provide ample scope for providing for control and for eventualities such as reporting for duty, etc.
Chapter 4 deals with the National Director ("NDPP"). Here more substantive comment is warranted.
(1) Appointment - Subclause (I)
(a) Although it is constitutionally prescribed that the NDPP be appointed by the President, there nowhere exists any provision pertaining to the procedure of appointment.
(b) The United Nations' Guidelines on the Role of Prosecutors (which are acknowledged by and incorporated into the Bill, per clause 10 (1)(j)) provide in Section 2(a) that States are to ensure that
"Selection criteria for prosecutors embody safeguards against appointments based on partiality or prejudice ...(etc)".
(c) The s7 guidelines therefore presuppose the existence of selection criteria which, coincidentally, coincide with the principle of transparency and with the international recognition of the functional independence of prosecuting authorities.
(d) Under clause 2(2) of the Bill, the NDPP is "also a Director or a prosecutor". His/her modus of selection therefore needs to be set out.
(e) Quite apart from the matter of qualifications (as to which, see infra), it wiII accord with the dignity, independence and high responsibility of the office within the judicial arm of the State, that the Judicial Services Commission be entrusted with the making of recommendations to the President. Such step can only enhance the acceptability of the incumbent.
(f) It is therefore recommended that consideration be given to setting out the procedure for appointment.
(2) Appropriately Qualified - Subclause 1
(a) Whilst it is welcomed that there is some reference to being qualified, the question is posed why the formulation pertaining to Directors was not adopted here.
(b) Surely the Head of the Prosecuting Authority should, at the very least, have the same qualifications and experience as the Directors whom he/she will lead and oversee?
(c) The term "appropriately qualified" is rather vague. Would a degree in Business or Public Administration preceded by a few law subjects be "appropriate"?
(d) The UN Guidelines stress that "it is essential to ensure that prosecutors possess the professional qualifications required for the accomplishment (sic) of their functions".
(Preamble, 6th par - underlining supplied. See also Sections 1 and 20 (b)
(e) It is submitted that Clause 8(1) be replaced by a provision containing an explicit reference to the objective requirements spelt out in Clause 12(2).
Subclauses (I), (2) and (3)
Concerning term appointments, it is understood from evidence given to the TRC in its Johannesburg hearing on the legal system, that Amnesty International is against such appointments. Many event, what provision is made for the pension rights of the NDPP?
(1) Subclause (1)(a)(iii)
Experience has shown that the Minister has sought to be advised on matters wider than simply the "criminal law".
Included in a wide array of, matters are those pertaining to procedure, personnel, court management, international legal co-operation, relationships with police and the like.
It is submitted that the subparagraph should read
"(iii) advise the Minister on all matters relating to the administration of criminal justice".
(2) Subclause 1(k)
As the clause seeks to provide the framework of a report, it would seem that "which includes a report...", should read "which shall include a report".
(3) Subclause (l)
In view of Clause 24 providing in clew terms of administrative staff the subclause is unnecessary and should be deleted.CLAUSE 11Subclause (3) (a)
It is not clear what is intended by "institute an action". Is it to include a civil action, or motion proceedings?
Is the intention not simply that the NDPP is empowered to institute a prosecution and/or institute proceedings ancillary thereto?
It is suggested that the subclause and the words introducing it, be better formulated.
(1) Subclause (1)
As to term-appointments, see par 8, supra.
(2) Subclause (3)
(a) The reference to the incorporation of only selective sub-provisions of Clause 9, renders the position of Directors very vulnerable and creates room for their removal otherwise than on the grounds referred to in Clause 9(6)(a)(i) (iii).
(b) Compared to the NDPP, the DPP's are in a bad position. Subclause (5) of Clause 9 applies to the former, whilst that subclause is specifically omitted from incorporation into Clause 13(3).
(c) Provision must also be made that the Directors "shall not be suspended or removed from office except in accordance with the provisions of subsections (2).
(6), (7) and (8)"
[cf Clause 9]
(d) Furthermore, the specific omission of the incorporation of subclause (6)(b), (c) and (d) of Clause 9, i.e. omitting the supervision and decision of Parliament, is a retrograde step. Under Act 92 of 1992 the present Attorneys-General can only be removed from office with the concurrence of Parliament. This is an important facet in the perceptions of the community pertaining to the independence of its prosecuting authorities.
(e) It is therefore submitted that the provisions pertaining to the NDPP in this matter be applicable mutatis mutandis to the DPP's.
(a) The appointment provision relating to Deputy Directors should be made to approximate more to a portion of the provision under Section 2(2) of Act 92 of 1992.
(b) I am aware that subclause (7) of Clause 15 (re : powers, duties and functions) does to some extent meet the need I perceive.
(c) However, it is important for efficient management that the line of authority be more clearly spelt out. At present this is adequately done by the said Section 2(2) which provides
"...appoint... as deputy attorneys-general, who may, subject to the control and directions of the attorney-general concerned, do anything which may lawfully be done by the attorney-general"
(d) If a similar phrasing is added to clause 14(1), viz
"... appoint one or more persons as Deputy Director who may subject to the control and directors of the Director concerned do anything which may lawfully be done by the Director"
it will cause clause 15 to be greatly simplified. It is, accordingly, so recommended.
(1) Subclause (1) Subclause (6) (re: appeals) is out of place. The reference to its subject matter belongs to subclause (1) together with (1)(b) and (c).
Cf. the juxtaposition of subsections (3) and (2) of s5 in Act No 92 of 1992
(2) Subclause (1)(b)
As the compilation of an annual report is a major, time-consuming exercise, it is submitted that there should be only one (1) such report.
The plural "reports" should be altered to "report".
(3) Subclause (1)(c)(ii)(bb)
The words "carries on" should be replaced with conducts to accord with the usage of the Bill.
The words "for offences" should be deleted as surplusage. (A prosecution can only be conducted "for offences"!).
(4) Subclause (3)
In the third line, the reference to particular "cases" is too narrow, as the directions guidelines may relate to procedure(s). It is advisable to keep the subject open.
It is therefore suggest that the reference to be "particular matters".
(5) Subclause 4
(a) The statutory obligation to furnish the NDPP with a copy of each and every direction or guideline contemplated under Clause 2(c) will not work in practice. If it is considered how many differing instructions can be given, the NDPP wilI land up with volumes of paperwork. This is too bureaucratic.
(b) As the NDPP will probably have his/her eye on certain specific matters, it is mote realistic to leave it to him/her as to what he requires from a DPP.
(c) It is submitted that subclause (4) either be deleted, or changed to ex abundanti empower the NDPP to call for any copies if so desired.
(6) Subclause 6
See subparagraph (1), supra.
(7) Subclause 7
See subparagraph 14, supra.
CLAUSE 16 (1) Subclause (1) (6)
(a) There are omissions here. Firstly, to whom may the Director issue a delegation? Secondly, is that person not the representative of the Director in the lower court(s)?
(b) The present s 6(b) of Act No 92 of 1992 refers to "any officer of the State". That was presumably the intention. The said s 6(b) also refers to that person "who shall, as the representative of the attorney-general and subject to his control and directions, institute and conduct on behalf of the state any prosecution in criminal proceedings in such lower court".
(c) It appears that the lacunae will be remedied by changing the subclause to read:
"(b) delegate to any officer of the state, subject to subsection (2) and the control and directions of the Director concerned and as his/her representative, the authority to -
(2) Subclause 1(b)(ii)
The words "as a prosecutor" are unnecessary, the more so if the above suggestion is adopted.
(3) Subclause 1(c) (i)
The same (as in subparagraph (2)) applies to the words "as a prosecutor" here.
(4) Subclause (2)
(a) I do not believe that the verb to make is linguistically correct. One delegates persons, or issues (gives) a delegation to a person. It is suggest that, in this respect, lines 1, 2 and 3 be altered.
(b) A second aspect is the laudable desire not to have a person who is not appropriately qualified to act as a prosecutor. Indeed, it represents the ideal situation.
(c) However, I believe that a sober consideration of the position on the ground is called for. If one believes that delays should be obviated (cf. the notion of speedy trials), and if one averts to the actual staffing problems which will be with us for some time yet, the delegation merely to postpone eases will not avail.
(d) A number of scenarios arise. For example, what about (urgent) bail matters? How is the position in single-prosecutor offices to be managed when the prosecutor falls ill, dies or resigns, or his/her delegation is suspended because of a criminal investigation against him/her? An inordinate waiting-time is experienced before Justice Head Office manages to fill the post. Relief staff is also limited.
(e) There is very often a clerk with a smattering of experience who can keep the rolls ticking over and deal with simpler cases.
(f) Consideration should be given to a clause that reads:
"A delegation in terms of subsection (1)(b) shall only be given to a person who is appropriately qualified to be appointed as a prosecutor: Provided that, where an appropriately qualified person is not available, a Director may delegate a suitable to perform certain or all of the functions of a prosecutor in accordance with any guidelines or directions given by the National Director".
CLAUSE 21 Subclause (1)
Is the word "for" not preferable to "over" (in the second line)?
CLAUSE 22 Subclause (2) (a)
In accordance with the existing principle of accountability to Parliament, it should be required that the NDPP submit his annual report to Parliament, through the Minister of Justice.
This further accords with the fact that Parliament is in the picture in terms of subclause (2)(b).
CLAUSE 29 As the Attorneys-General are awaiting the reaction of the Minister to a letter he requested of them, the following remarks (except in relation to subclause (l)(a)) should not be construed as my full and final comment.
(1) Subclause (I) (a)
(a) The word "rank" in the second line could lead to persons who are not Attorneys-General under Act No 92 of 1992, being elevated to the position of a Director.
For example : The Attorney-General of Umtata is a Deputy Attorney-General on secondment as an Attorney-General. The Attorney-General of Mmabatho, although holding an appointment under the erstwhile Bophuthatswana legislation, is of the equivalent rank of a Deputy Director-General in the Public Service.
(b) The reference in the third line to "section 2(c)" is incorrect. There is no clause 2(c).
(2) Tenure, Benefits, etc
Quite apart from the debate on the advisability of flu re-appointments (cf.par 8, above), questions arise as to whether the consequences of term appointments, in respect of both present and future incumbents, have been adequately addressed in the Bill. Further questions arise with the respect to the provisions that do appear.
(i) Subclause 2(a)
The last phrase of this subclause, viz "as fixed by section 13", in effect amounts to retrospective legislation truncating the existing rights of incumbents.
(ii) Prior to Act No 92 of 1992, Attorneys-General were subject to the Public Service Act of the time and bad at least a justifiable expectation service to age 65. The said Act incorporated that, adding provisions for removal from office on certain wounds.
(iii) Except for the retrospective provision envisaged, the unexpired portion of the term of service will be between now and age 65.
(iv) In no other case of public officers has a term been retrospectively truncated. The question arises why specifically the Attorneys-General have been singled out for such drastic treatment. (As a matter of course, a law introducing term appointments would make the term run from the date of commencement of the Act in question. This is in accordance with basic common law recognition of rights).
(v) The result of the envisaged provision is precisely to bring about the detriment which subclause (6) seeks to avoid.
(vi) It is appreciated that our new democratic government obviously requires room for manoeuvre. As stated in a previous public hearing, neither I nor my colleagues cling to positions. If the government wishes, understandably, to replace the present incumbents, it must know how to go about that whilst recognising rights and justifiable expectations.
(vii) In accordance with Section 6 of the UN Guidelines, it is submitted that the Bill should include appropriate provisions.
(viii) Averting to the position of future incumbents, it appears that regard must be had to the fact that professional careers will be interrupted and/or affected by the system of term appointments and that candidates will now have to know exactly what their position will be. They will not be able to assume that they will be re-appointed; nor can they bargain on a retirement package.
(ix) As appointments from outside the ranks of the Deputy Attorneys-General will be possible, it is to be expected that an outsider will want to weigh the financial implications of entering public service for a term.
This necessitates spelling out the pension benefits in the legislation.
(x) Practical realities such as the phenomenon that Justice usually waits until a position is vacated before taking steps to make the next appointment, and the delays experienced in this regard, make it advisable that provision should be made for some carry-over period (say 6 months) after the term has expired.
(xi) A carry-over period also seems advisable in the case of the present incumbents who may come to the end of their term just before or just after the Bill comes into law (i.e. if clause 29(2)(a) were to remain unaltered).
In the light of the critical position regarding the remuneration of prosecutors (salaries have been called a national disgrace) the uncertainty regarding career prospects and the consequent very low morale, it is urged that the finalisation of the Bill be accelerated as a matter of the highest priority.