Attorney-General: Witwatersrand - Adv A de Vries
NATIONAL PROSECUTING AUTHORITY BILL
1.1 The bulk of the prosecuting authority is found to be the prosecutors in the lower courts. They are responsible for administering and conducting 90 % of all criminal prosecutions in our courts. I find the Bill as presented singularly vague in addressing their position. Attorneys-General, especially under the new dispensation, are transients as persons; the prosecutors are the future of not only the Prosecuting Authority, but of the Criminal Justice System as administered by the courts.
1.2 On the 25th of July 1997 the prosecutors of the Witwatersrand Local Division staged a legal march through the streets of Johannesburg and handed a petition to me on the steps of the High Court. This was under the auspices of the National Union of Prosecutors of South Africa, but was representative of all the prosecutors in the Division. I hand this in as an annexure to this memorandum.
1.3 Whilst not commenting on the grievances regarding remuneration, the memorandum does reflect some of the problematical situations experienced by lower court prosecutors. These problems I have already dealt with in my presentation to Theme Committee 5 of the Constitutional Assembly and are a matter of public record. Of greater moment is the prosecutors statement on page 3 paragraph 3 concerning their attitude toward the Bill, i.e. :-
"The only manner to ensure such salaries is to promulgate the 'National Prosecuting Authority Bill', to delink the Prosecutorial Component from the Civil Service and to pay the Prosecutors a salary re-establishing parity with the magistrates."
In paragraph C2 on page 4 I am petitioned :
"To officially and publicly express your support for the Promulgation of the 'National Prosecuting Authority Bill' and the delinkage of the Prosecutorial Component from the Public Service."
1.4 I have always supported the concept of the National Prosecuting Authority and delinkage from the Department of Justice. I reiterate this, but would like to go even further. We now have an opportunity to save a crumbling and decaying system and breathe new life into an effective structure to assist in the fight against crime. The promulgation of this Act, and the putting into place of the structures, cannot be delayed any longer, as long as the structures are principally correct. If the wrong structures are erected we will not save our CJS. I cannot find words strong enough to express the urgency with which the Act must be viewed; I must beseech you to accord this Act the highest priority. The demoralisation among prosecutors of all cultures is progressing daily. They must be assured of a future in which their professionality will be entrenched.
2.1 The main focus should be that professional prosecutors should decide on the conditions of service, remuneration, professional growth and future of prosecutors. Assistance may be obtained from other sources, but the final responsibility should be with a professional prosecutor who will obviously advise the Minister of Justice.
2.2 This draft of the Bill is already a vast improvement on the previous draft. Section 15(2)(d) now specifies that the Director (and not the magistrate) is responsible for the day-to-day management of the prosecutors. Section 20 provides that conditions of service of a Deputy Director or a prosecutor shall be determined in terms of the provisions of the Public Service Act; this is in contra-distinction to section 24 which provides that administrative staff shall be appointed or employed under (sic) the Public Service Act. Whilst section 20 is in certain respects an improvement on the previous section, in itself it creates new uncertainties and real problems.
2.3 The nett result is that prosecutors remain public servants except insofar as determining remuneration is concerned. The NDPP and the DPP are appointed by the President as set out in this Act; the Deputy Directors and prosecutors are, according to section 3 (d) and 3(e), appointed under this Act. The question then arises : where are the provisions for appointing prosecutors, and the answer is not to be found in this Bill.
2.4 With reference to section 20, therefore, it seems clear that they are appointed in terms of the Public Service Act, and especially Chapter IV thereof. Section 9 of the Public Service Act reads as follows :
"9(1) Without derogating from the functions of the Commission in terms of this Act, the appointment of any person or the promotion or transfer of any officer or employee in the employ of a national department or provincial administration shall be made by the relevant executing authority or by an officer or officers to whom such authority has delegated his or her power of appointment, promotion and transfer."
The status quo remains; the Department of Justice appoints, promotes and transfers prosecutors as it may deem fit.
2.5 This is not what is needed at this stage and is not a lifeline for a dying institution. At least in the Attorney-General Act the Department is made legally responsible for providing such staff and employees as are required for the proper performance of an Attorney-General's functions (section 7); even that proviso is absent in this Bill.
2.6 This is clearly the result of a compromise and, as with all compromises, satisfies no one. It is certainly not what the prosecutors envisaged or relied upon. They remain Public Servants with all the negative connotations and implications attached to their professionality (or lack thereof). This is an untenable situation and can only aggravate the existing situation. The Department then again appoints a person in the position of prosecutor and the DPP is obliged to issue him with a delegation. The issue of a delegation is a professional discretion which reflects the professional capabilities of the delegatee, and should not be an automatic rubber-stamping. What would the situation now be should the DPP decide to withdraw his delegation for professional misconduct which does not necessarily reflect his Public Service abilities - is he automatically fired or must there first be inquiries, or what is the situation? (The whole issue of delegation is in any event misunderstood by the drafters of this Bill and requires a full analysis). The DPP is therefore responsible for the day-to-day management of prosecutors who have been appointed without his concurrence, and in whose promotions and/or transfers he has no say, and for whom he is obliged to issue a delegation. With this amorphous mass under his control he is responsible for all prosecutions within his area of jurisdiction.
2/7 What is needed at this stage is that the National Director should have the authority to appoint, transfer and promote prosecutors, an authority to be exercised in consultation with the Director.
2.8 This Bill then alters very few principles from the status quo, with reference to prosecutors. In the main the Bill provides for :-
1 The appointment and functions of the NDPP
2 The appointment and functions of the DPP
3 Administrative control of prosecutors by the DPP
4 Remuneration of prosecutors separate from Public Service salary structure Immeasurable complication of a relatively simple issue!
3.1 It is impossible to enact provisions to cover each and every possibility or problem that may arise or can be envisaged. An Act to govern such an important structure as the Prosecuting Authority should therefore only enact correct principles in direct and clear language in order to promote certainty and be short and simple (KISS). A perusal of this Bill leads to the inevitable conclusion that it is mainly concerned with the nuts and bolts of prosecutions and is purporting to provide for imponderables, thereby leading to prolixity and uncertainty. Many of the provisions lead to questions as to what exactly is envisaged and it is possible to object to any specific interpretation.
3.2 There are numerous examples of short and simple principles to be found in previous enactments. Except for the provisions regarding the NDPP and the change in nomenclature this Act should be a logical progression from the Criminal Procedure Acts of the past and present, and the Attorney-General Act. It is not necessary to re-invent the wheel. There are also precedents to be found in other recent Acts where the major principles under discussion have already been enacted.
3.3 In this regard I would refer to the South African Revenue Service Act, No 34 of 1997, as a fine example of the KISS principle and comes as a breath of fresh air after wrestling with this Bill. A copy of the relevant sections is attached. I draw particular attention to certain sections, such as:
"2. Establishment - The South African Revenue Service is hereby established as an organ of state within the public administration, but as an institution outside the public service."
"5. Powers - (1) SARS may do all that is necessary or expedient to perform its functions properly, including to -
(a) determine its own staff establishment, appoint its own employees and determine their terms and conditions of employment in accordance with section 18;
(b) bargain collectively with the recognised trade unions representing SARS employees;
(c) obtain the services of any person, including any state department, functionary and institution, to perform any specific act or function."
(2) When exercising its powers SARS must comply with any conditions imposed by the Minister in a directive issued under section 4(3)."
"18. Terms and conditions of employment - (1) SARS employees are employed subject to terms and conditions of employment determined by SARS -
(a) after collective bargaining between SARS and the recognised trade unions; and
(b) with the approval of the Minister."
There seems no compelling reason why such provisions could not serve as broad guidelines for the proper construction of the Prosecution Authority as an organ of state within the public administration but outside the public service. Further powers and duties could be described in broad terms, such as delegations, remuneration etc, with powers to regulate, and with interim provisions.
4.1 In regard to the Prosecuting Authority Bill there are a number of provisions which are cause for concern. Some of the concerns require cosmetic changes, others are matters of principle that require closer scrutiny.
4.2 Cosmetic changes include the indiscriminate and interchangeable use of "State" and "Republic" such as inter alia
Section 4 : "On behalf of the State" and again "on behalf of the Republic"
10(1)(b) : Prosecute in the name of the State
15(1)(a) : On behalf of the State
15(1)(b) : In the name of the Republic
This problem is addressed in section 2 of the Criminal Procedure Act, but casts a poor reflection on the quality of the Act addressing the Prosecuting Authority.
There are various other language difficulties including the reference to a second term for which the NDPP and DPP is appointed - cf. section 9(1) and 9(2) and section 13(1) and 13(2). It is clearly intended to refer to "not exceeding 7 years", but it does not specifically so state. Subsection (2) in each case should read "one additional term not exceeding seven years".
4.3 Section 15(2)(c) read with (3) is wrong in principle, is not the same as the old and accepted procedure which is now legislated, and may lead to practical difficulties, especially in Gauteng. The Provincial Commissioner of South African Police Services is appointed under his own Act with his own powers and duties. He is already subject to directives of the National Commissioner. In principle the prosecution and investigative arm of the South African Police Services must remain entirely separate so as not to taint the prosecution with allegations of bias. Directives issued by a DPP may possibly conflict with policy directives of the National Commissioner. The prosecution is only marginally involved in law enforcement, that is policing actions to prevent the commission of a crime, and direct involvement could be in direct conflict with his main function which is the prosecution of a crime after South African Police Services has arrested the perpetrator.
Furthermore section 15(2)(c)(ii)(aa) refers to "any other person who conducts investigations in relation to offences, which would include traffic authorities, private investigators, investigators at financial institutions, Reserve Bank, South African Revenue Service, Nature Conservation, and Customs and Excise.
In Gauteng there is provision for two DPP's. However, Gauteng only has one Provincial Commissioner. It is conceivable that in future conflicting directives could be issued in Gauteng. Requests of this nature from an Attorney-General have in the past always been done after discussions and have always served as guidelines. Such enactments are unnecessary and contrary to existing good relationships. In my opinion it will rarely have any practical application.
4.4 The powers of Deputy Directors give rise to grave concern. Section 15(7)(a) and (b) gives a Deputy Director all the powers, duties and functions of a Director, except that of delegation unless the DPP is absent; the exercise thereof is deemed to have been performed by the Director. Presumably this would not also refer to the Director's responsibility as head of his office. In practical terms this means that a person appointed by the Minister until retirement has the same powers, duties and functions as a person appointed by the President for a fixed term, and that the actions of that person are deemed to be the actions of the person appointed by the President. This does not seem logical.
It may be said that the situation is rectified by the provision that he acts "subject to any directions of a Director", but this does not alter the illogical situation. As envisaged, a Deputy has these powers, duties and functions, and directions detract therefrom. This was already an illogical situation in the Attorney-General Act but is now framed in much stronger terms. Section 2(2) stated simply that a "deputy Attorney-General may, subject to the control and directions of the Attorney-General concerned, do anything which may lawfully be done by the Attorney-General". The provision for "control" has now been deleted for an unknown reason and gives rise for concern regarding discipline.
In principal all authority should stem from the DPP, subject to policy directives of the NDPP, towards any other appointed by the Minister to assist those appointed by the President, and they should be subject to his authority and delegation. This is a more logical progression of command.
4.5 Section 16 deals with delegations to prosecutors and occasions some concern.
4.5.1 Section 16(1)(a) deals with what is now termed "state advocates" at the office of the DPP. Each one now has the authority to institute prosecutions which traditionally he has never had. A junior prosecutor with such a delegation may therefore institute a prosecution costing the state millions, without question, unless such power is curbed. In cases to be tried in the High Court the prosecution should, as now, only be instituted by the Director or his Deputies. In cases to be tried in the lower courts the Senior Public Prosecutor or control prosecutor should be instructed, in the name of the DPP, to institute a prosecution. Any other provision would be detrimental to authority and the chain of command. The prosecution instituted in the name of the DPP carries more weight than that instituted by a junior prosecutor on his staff, even though the DPP may not be aware thereof. Furthermore if all prosecutors have the same authority to institute prosecutions, the present system of the senior checking the junior's decision will no longer be feasible. Section 16(1)(a)(i) should therefore be deleted.
4.5.2 Section 16(1)(b) refers to delegations to prosecutors in the lower courts. The only cause for concern foreseen is the insertion of the word "or" after subsection (i). As it reads now a DPP can either delegate a prosecutor to institute a prosecution or to conduct a prosecution - the two are not the same - but not both. In larger offices this is possible but there are many smaller offices with only one prosecutor. If he may not institute a prosecution, what is there to conduct? If he may only institute the prosecution, who will conduct? The word "or" should be deleted and it should be one sentence and provision.
4.5.3 Section 17 should be deleted in its entirety as being so detrimental to proper control as to be farcical. The relevant DPP is the only person to delegate a prosecutor and is therefore the only authority; he ultimately bears the responsibility. All instructions regarding functions, powers etc. should come via him or her, and the NDPP and any other Director has no authority. The poor prosecutor now has to bear in mind not only the laws of the Republic and the instructions of the relevant DPP, but must also follow instructions from the NDPP and any roving Director. This would be an untenable situation and cannot be allowed to happen.
5 The Bill is, as framed at present, ponderous and may occasion practical difficulties. It appears to grow in length and complexity with each draft. A solution to the difficulties and bearing in mind the speed with which it must be done, would be that the NDPP be appointed as soon as possible as provided for in the Constitution and that the NDPP and present Attorneys-General, together with such persons as the Minister or others wish to appoint, draft an Act to the satisfaction of the Prosecution to suit the requirements of the politicians.
DATED AT JOHANNESBURG THIS 13th DAY OF FEBRUARY 1998
A P DE VRIES SC
WITWATERSRAND LOCAL DIVISION