AD HOC COMITTEE ONPUBLIC PROTECTOR
22 June 2004
SPECIAL REPORT OF PUBLIC PROTECTORS
On 28 May 2004 the Public Protector submitted a report to Parliament in terms of section 182(1 )(b) of the Constitution, and section 8(2)(b) of the Public Protector Act, 1994. The Ad Hoc Committee on Special Report No. 26 by the Public Protector was appointed by a resolution of the House on 3 June 2004 in terms of NA Rule 214.
2.Terms of reference The committee first met on 9 June 2004 to consider and report on the Special Report by the Public Protector on an investigation of a complaint by Deputy President J Zuma against the National Director of Public Prosecutions and the National Prosecuting Authority, and to report to the
House by 25 June 2004.
3.Salient issues during discussions a) Receipt of a letter from the office of the National Director of Public Prosecutions, indicating availability should the Committed wish to engage the National Director, and a subsequent decision by the Committee against calling for either oral or written submissions. Souring of additional information was also ruled out, except where individuals felt it necessary to empower themselves;
b) A common understanding of what is meant by prima facie, when a matter is sub judice, and the implications of both;
c) How relevant or irrelevant the matter of difference of interpretation of legal concepts is to the functioning of the Committee in terms of its mandate;
d) The importance of upholding the integrity of the two offices, that of the Public Protector and of the National Director of Public Prosecutions.
4.Findings After considering and discussing the findings contained in the report, the
Committee's position was as follows:
24.1: The Prosecuting Authority is accountable to Parliament in respect of the exercising of its powers and the performance of its functions and duties; Finding accepted.
24.2: The Prosecuting Authority is also accountable to Parliament for its decisions regarding the institution of prosecutions; Finding accepted.
24.3: The Minister and the National Director were constitutionally obliged to cooperate with the Public Protector in the investigation of the complaints of the Deputy President; Finding accepted.
24.4: The reluctance and failure by the Minister and the National Director to cooperate with the Public Protector in the investigation was improper and unconstitutional It resulted in the Public Protector having to conclude the investigation without the benefit of proper responses b y those implicated by the complaints of the Deputy President; Finding noted without accepting or rejecting it. The Committee could not (establish whether information required by the Public Protector was withheld
out of malice or on a legal basis. Each office may have had its own view of the extent t6 which information should be shared.
24.5: The press statement made by the National Director on 23 August 2003, that there is a prima facie case of corruption against the Deputy President but that he would not be prosecuted, unjustifiably infringed upon Mr Zuma's constitutional right to human dignity and caused him to be improperly prejudiced; Finding accepted, with reservations from the ID, DA and IFP. 24.6: The press statement (referred to in paragraph 24.5 above) was unfair and improper; Finding accepted, reservations from DA.
24.7: The Deputy President had probably (emphasis added) not been informed by the Minister and the National Director of the criminal investigation against him shortly after it commenced, as was publicly claimed by the National Director; The Committee noted the finding but was unable to accept or reject it because of its probable status. Gathering information to confirm or reject this finding falls outside the mandate of the Committee.
24.8: As the Minister was replaced in the Cabinet after the 2004 elections, ft would serve no purpose to make any recommendations to Parliament in regard to his improper failure to co operate with the Public Protector Finding noted.
24.9: The provisions of section 31 of the NPA Act that established a Ministerial Coordinating Committee have not been implemented. Finding accepted.
24.10: The steps taken by the President to attend to the remarks made by the He fer Commission in regard to the leaking of confidential information by the Prosecuting Authority should be commended. The recommendations made by the investigators and the instructions given by the President in this regard, are supported. All parties noted the recommendations.
5.Public Protector's Recommendations In terms of the provisions of section 1 82(1)(c) of the Constitution and section
6(4) (c) (ii) of the Public Protector Act, it is recommended that Parliament take urgent steps to: 25.1Ensure that the National Director and the Prosecuting Authority are held accountable, by virtue of the provisions of sections 41(1) and 181(3) of the Constitution and section 35 of the National Prosecuting Authority Act 1998, for
25.1.1Failing to cooperate with the Public Protector in the investigation of the complaint of the Deputy President;
25.1.2 Infringing upon the Deputy President's constitutional right to human dignity and thereby causing him to be improperly prejudiced; and
25.1.3 Acting in an unfair and improper manner in regard to the Deputy President
25.2 Ensure that the Ministerial Coordinating Committee contemplated by section 31 of the National Prosecuting Authority Act, 1998:
25 2.1 Convenes as a matter of urgency; and
25 2.2 Determines policy guidelines in respect of the functioning of the Directorate of Special Operations that would prevent a recurrence of the improprieties referred td in this report.
6. Recommendations The Committee decided that it was essential not to limit itself to the recommendations of the Public Protector, but to formulate alternatives. It therefore recommends that the House:
a) Calls on all organs of state to respect and promote the principles of cooperative govem44ce and positive inter-governmental relations contained in the Constitution;
b) Expresses its disapproval of the public statement made by the National Director of Public Prosecutions on 23 August 2003 which infringed the Deputy President's constitutional right to human dignity, thereby causing him to be improperly prejudiced;
c) Calls on the National Director of Public Prosecutions and the Prosecuting Authority observe the Prosecution Policy and comply with the Code of Conduct for Members of the National Prosecuting Authority, in compliance with sections 21 and 22(6)(a), respectively, of the National Prosecuting Authority Act;
d) Calls on the Minister of Justice and Constitutional Development to ensure that the provisions of section 31 of the National Prosecuting Act, providing for the establishment of a Ministerial Coordinating Committee, are implemented without delay, and to report to the National Assembly [Suggest time frames/report periodically on progress].
e) Calls on the Minister of Justice and Constitutional Development to convene a meeting between the National Director of Public Prosecutions and the Public Protector to resolve any differences that might exist between the two institutions and to ensure the development of effective measures which will enhance cooperative relations between the two institutions [Suggest time frames/report periodically on Progress]
f) Calls upon the Minister of Provincial and Local Government to introduce, without delay, the legislation referred to in section 41(2) of the Constitution to establish or provide for structures and institutions to promote and facilitate intergovernmental relations and provide for appropriate mechanisms to facilitate intergovernmental disputes, and to report to the National Assembly [Suggest time frames/report periodically on progress)]
g) Calls on the Minist6r of Justice and Constitutional Development to take immediate steps aimed at establishing an effective system of information security within the Prosecuting Authority, and to report to the National Assembly [Suggest time frames/report periodically on progress).
h) Recommits itself to exercise effective and pro-active oversight over organs of state that are accountable to it.
i) Upon submission of a report by this Committee, regards this matter as finalised.