Hon Deputy Speaker, hon Deputy President, hon Minister, and members of the House, section 199(1) of the Constitution states that, and I quote:
The security services of the Republic consist of a single defence force, a single police service and any intelligence services established in terms of the Constitution.
Section 199(4) states that, and I quote again:
The security services must be structured and regulated by national legislation.
Section 199(6) states that, and I quote yet again:
No member of any security service may obey a manifestly illegal order.
Section 199(7) states that, and I quote further:
Neither the security services, nor any of their members, may, in the performance of their functions - a) prejudice a political party interest that is legitimate in terms of the Constitution; or
b) further, in a partisan manner, any interest of a political party.
The above speaks to the independence and impartiality that we require from our security services, including the police. Section 205(3) states that, and I quote:
The objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.
Hon members, you may well ask why I am starting with these extracts from our Constitution. Hon Deputy Speaker and hon members, the reason is that throughout the process of the consideration of this Bill we were subjected to some of the crudest interpretations of our Constitution, as we have seen repeated here in the debate today. I therefore thought that it would be a good point of departure for this debate to remind ourselves of what it is that the Constitution requires from a democratic police service in a democratic South Africa.
If we accept the Constitution as the supreme the law of a democratic South Africa, and this side of the House certainly does, then I think we can all agree that the Constitution places the primary obligation to fight all forms of crime, including that of corruption, at the door of the SA Police Service, SAPS. So, while we address the issues raised by the Constitutional Court, we have as legislators the added responsibility to draft legislation that will provide for the best possible directorate within the SAPS to fight corruption, priority crimes and organised crimes. Hon Deputy Speaker, that is exactly what we, from the side of the ANC, have committed ourselves to doing.
Today false allegations were made by members from certain quarters that the ANC had arrived with preconceived ideas and had therefore not considered submissions made during the public participation process. Nothing can be further from the truth! I do not know how one can argue that at least 53 substantial amendments to the introduced Bill is not applying your mind!
At night, when the committee had finished the public participation hearings or deliberations on the Bill, the ANC study group remained behind. We then summarised and debated amongst ourselves the issues that had been raised, and started working on possible ways of addressing the concerns through introducing amendments to the Bill. That is why, on the first day that the committee started to deliberate on the Bill, the ANC was already in a position to propose amendment after amendment after amendment. Following further debate with some political parties on the committee, we amended some of our own proposed amendments in order to find common ground and agreement!
Now I don't know about you, hon Deputy Speaker, hon Minister and members of the House, but I humbly submit that to any reasonable citizen there can be no other perception than that a serious consideration of the public submissions took place, and that serious deliberations thereon by the ANC and, indeed, most parties represented on the committee took place. If some parties, through their lack of participation, their preoccupation with other topical issues of the day, and their prefixed and predetermined mind- set and agenda, have neutralised themselves in the process, then they surely cannot blame those that took the task at hand seriously and took it forward.
The chairperson spoke about the appointments of the heads, and I am not going to repeat that. We took to heart the concerns that were raised in the public participation process regarding the lack of criteria in the Bill on the type of head that we would like to see appointed. We have included such criteria.
We went further. We said, and that is where Parliament's participation in the appointment process comes in, that as part of the regulations the Minister must bring to Parliament for its concurrence the regulations on the process of appointment - concurrence, not notification. So Parliament and the Minister would have to agree on the "how" of the appointment process. If at any point this Minister or any future Minister wanted to change that process, they would have to come back to Parliament with the amended process and Parliament would again have to concur with the proposed amendments.
That brings us to the removal of the head of the directorate. Clause 17DA of the Bill determines that the national head of the directorate can only be suspended from office pending an inquiry into his or her fitness - on the grounds of misconduct, continued ill health, incapacity to carry out the duties of office efficiently, or no longer being a fit or proper person to hold office.
The decision to remove the head must be communicated to Parliament. The Minister, after consultation with the Minister of Justice and Constitutional Development and the Chief Justice, must appoint a judge or retired judge to lead the inquiry. The national head shall be informed of any allegations and shall be allowed to make submissions to the inquiry. This was not in the Bill before.
Furthermore, the Bill now also makes provision for the National Assembly to remove the national head of the directorate. The same criteria as for the removal of the national head by the Minister apply. One may well ask why it was necessary to include a provision for the National Assembly to remove the national head. This was done to further enhance independence and to protect the directorate against interference.
Parliament may feel that the head is not doing a proper job and when a Minister is not acting against such a person, Parliament, through the National Assembly, can then start a process of removal. The National Assembly will establish a committee to look into the matter. The report of such a committee will be tabled in Parliament and, with two-thirds support by members of the National Assembly, the head of the directorate will then be removed.
The security of tenure of the staff was addressed, and through that we also further strengthened the structural independence of the directorate. It will be the national head that will determine the fixed establishment and the grading of posts in the directorate. It is also the national head that will appoint the staff of the directorate. The national head of the directorate must develop a recruitment policy for the directorate. Any disciplinary matters that involve any member of the directorate must be done within the confines of the directorate.
No member of the directorate may be transferred or dismissed from the directorate without the consent of the national head of the directorate. The national head, deputy national head and provincial heads are not allowed to get involved in any management activities of the SAPS other than those associated with the directorate. The staff of the directorate cannot be deployed in national joint operations unless the head determines that such operations will be of assistance to the directorate in the execution of its functions and mandate.
Clause 17D of the amending Bill determines that the Minister must table policy guidelines for approval by Parliament. This was such a big issue. The determination of policy is the prerogative of the executive. The execution of those policies is the responsibility of a department. That is democracy, and that is the democratic dispensation that we are in. For enhanced transparency, these guidelines will be brought to Parliament for approval. We will not just take note of them but will actually have to apply our minds to the matter.
For some, as we heard earlier, the reference to "selected offences" in Chapter 2 and in section 34 of the Prevention and Combating of Corrupt Activities Act, Act 12 of 2004, is an issue. It simply lists a whole lot of offences, some of which are cases of fraud and corruption that can and should be investigated by ordinary detectives. The Directorate for Priority Crime Investigation will deal with the top slice of crimes committed.
The head will determine which crimes are to be investigated, guided by the policy guidelines. The Bill makes provision that when there is a difference of opinion between the national head and the national commissioner or a provincial commissioner on whether a case falls within the mandate and scope of the directorate, the position of the national head of the directorate will prevail.
All members of the directorate will be expected to undergo security clearance. Members of the directorate are expected to do their work impartially and independently. Members will be expected to take an oath, in which they undertake to conduct their work in accordance with the Constitution - which underlines their independence - and the law.
It will also be a criminal offence for any person to interfere with the work of the directorate, including anyone from the South African Police Service, SAPS. Such a person is liable, upon conviction, to a fine or imprisonment for a period not exceeding two years.
The head of the directorate will now directly request secondments from other departments, and this will no longer occur through the national commissioner, thus enhancing its structural and organisational independence, Mr Groenewald.
Furthermore, the Bill obliges the head of Crime Intelligence to make available to the directorate dedicated intelligence capacity for a specific case. The directorate will thus not be allowed to form its own intelligence capacity, but will receive intelligence support from the existing intelligent structures within the SAPS.
The role of the ministerial committee is now simply to co-ordinate the relevant government departments. They will meet as often as is required, and are no longer obliged to meet at least four times a year. The ministerial committee is expected to report to Parliament on its activities as part of the annual report of the directorate. If they have not met during a particular year, they will simply report that they did not meet, as there was no need. The ministerial committee will also have to report to Parliament upon request. This brings oversight over the executive, as determined in the Constitution and as required by the Constitutional Court's ruling, into the Bill.
The co-ordinating committee will now be chaired by the national head of the directorate and the deputy head will be the deputy chairperson. It was previously chaired by the national commissioner. The national commissioner will no longer sit on this committee. The committee will review, monitor and facilitate the support of the respective government departments or institutions to the director. It will also look at secondments and address problems that might arise regarding such support and assistance.
One of the most contentious issues during deliberations was the financial independence or dependence of the directorate. In the end, the committee decided to provide for dedicated and exclusive funds for the directorate, the so-called ring-fenced funds.
The head of the directorate shall prepare and provide the national commissioner with the budget from the directorate. The national commissioner shall then include it in the SAPS budget. Clause 17H(3) determines that if there is a dispute between the national head and national commissioner regarding the budget, the Minister will mediate.
The Bill further makes provision that the national head must be part of all deliberations on the directorate's budget, including National Treasury. The national head will thus put his or her own case in negotiations for budget allocations. The national head will also make his or her own submissions to Parliament during the budget process. The annual report to Parliament must include, as a distinct programme, the report on the performance of the directorate.
All monies appropriated by Parliament for the directorate must be seen as specifically and exclusively appropriated for that purpose, or what is popularly referred to as a "ring-fenced budget". They cannot be used for any other purpose. The head will control the funds of the directorate; this, we believe, is adequate financial independence.
A separate budget would have meant that the directorate staff would have had to be increased by at least a further 1 900 people dedicated to administration only, thereby shifting the focus from their primary task.
Provisions regarding the appointment of a retired judge to deal with complaints by the directorate or its members, and also by members of the public, have been improved. The judges' operational budget will now reside with the Civilian Secretariat for Police and will also be a ring-fenced budget. The secretary, in consultation with the retired judge, shall develop an awareness programme regarding the work of the judge amongst the public and members of the directorate, including the role and functions of the complaint mechanism.
Refusal to assist the retired judge with his work, or interference with the work of the judge, is a criminal offence, punishable by a fine or imprisonment or both. It is interesting to note that the judge, in the period since enactment, has received only three complaints. Now, you have some who complain about that, instead of celebrating the low number of complaints, which speaks to the fact that the directorate has been able to do its work without interference or hindrance.
Hon Deputy Speaker, Minister, Deputy President and members, two issues were quite significant in the debate on where this directorate should be placed. One was the decision to selectively ignore what was happening internationally and the findings of the United Nations Convention against Corruption, UNCAC, and the Organisation for Economic Co-operation and Development, OECD. The majority of signatories to the UNCAC have based their anticorruption units within existing law enforcement agencies. International bodies warn against creating new bodies that will become bureaucratic in nature, and get bogged down by administration, thereby diverting limited resources. They point to a strong link between organised crime and corruption, hon Kohler-Barnard, and warn against overburdening corruption bodies, saying that they should not investigate cases of petty corruption. Therefore, best practice in anticorruption bodies is that they should investigate selective rather than all offences. I would argue that these were ignored because it did not support a certain agenda.
The second issue was the argument for the establishment of a Chapter 9 institution. Here we were told to adhere to a Constitutional Court judgment by changing the Constitution! It boggles the mind. I think it is also important to remind ourselves that a Chapter 9 institution does not in itself guarantee success. It is often dependent on the incumbent.
Hon Speaker, we in the ANC believe that we have not only adhered to the Constitutional Court ruling, but that we have established the best possible directorate with adequate independence, which will be able to fulfil its mandate without fear or favour, with determination and commitment, and in the service of our country and its people.
I must react to what the hon Groenewald said. I would like to ask the hon Groenewald whether he actually read the Bill that is before the House, because I am pretty sure he did not! From his speech you could hear that he had not done so. Hon Groenewald, we made at least 53 substantial changes to the introduced Bill, which is apart from word changes here and there. [Interjections.] That is the principle. You were not there, you did not participate, and you missed an opportunity. As you said, you missed an opportunity.
Then, to the hon Kohler-Barnard, may I explain to you the process of a Bill? I know that you are not in government. [Interjections.] The fact of the matter is that no Bill ever has more than one option. Options come in discussion papers - that is where options come in. Government makes policy. Even when you get to the point of a Green Paper, there are no longer options, hon Kohler-Barnard. So, I don't know where you get these "options" in a Bill from. Options were considered during the period when you complained that it took so long before the Bill was introduced. That was when they were looking at the options! That was when they were discussing them with the Treasury and the Department of Public Service and Administration. That was when the options came into play. [Interjections.]