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23 October 2008

Madame speaker
Honourable Ministers and Deputy Ministers
Honourable Members
Comrades and Friends

The Directorate for Special Operations (DSO), commonly known as the Scorpions, was established following the announcement by the former President, on 25 June 1999, that "a special and adequately staffed and equipped investigation unit will be established urgently to deal with all national priority crimes, including police corruption." The Unit was first established as part of the Investigating Directorate on Organised Crime, pending the passing of legislation to formalise the DSO.

The process leading up to that legislation in 2000 involved many meetings between Justice and Safety and Security. The critical issues were what matters were to be investigated by the Unit and the manner in which the Unit would be seized of those matters. The underlying problems were firstly a duplication of functions especially with regard the lodging of charges the unit was after all not a charge office. Secondly, there was the issue of who was to perform the crime intelligence functions for the unit.

The Directorate of Special Operations Bill that was introduced in 2000, was aimed at the establishment of the DSO as a separate entity, under the guidance of the National Director of Public Prosecution (NDDP). However, during the parliamentary process the bill was changed and became an amendment to the National Prosecuting Authority Act, and the DSO was established as an Investigating Directorate (of the NPA) in the office of the NDPP. The difficult issues that characterised the establishment of the DSO remained and fuelled the tension between the South African Police Services (SAPS) and the DSO.

Accusations were levelled that, in some instances, the DSO would take over advanced investigations of the SAPS and claim the credit for resultant successful operations, as well as that the DSO were "cherry-picking," that is, swooping on high-profile cases that would boost the public image of the DSO.

Although initially these tensions were largely issues of turf, the allegations of political inspired DSO investigations only emerged later. This conspired to intensify the tensions leading to the appointment, in 2005, of the Khampepe Commission of into the location and functioning of the DSO.

Although the commission did not recommend the relocation of the DSO, it did recommend that the special investigators attached to the DSO should fall under the political responsibility of the Minister for Safety and Security, and that mechanisms be established to better coordinate the functions of the DSO with those of other agencies. And in respect of the vexed issue of crime intelligence, the Commission found that the DSO had, as a matter of fact, engaged in crime intelligence when this was neither legislatively or constitutionally permissible. It was for this reason that the commission recommended that the DSO be subject to the Inspector General of Intelligence.

But that recommendation did not resolve the constitutional bar on the establishment of intelligence services (only the President may establish an intelligence service) and since the crime intelligence function of SAPS is established in terms of the Constitution itself, the relocation of the unit into SAPS would resolve this ongoing problem.

Honourable members, It is perhaps necessary to reflect more comprehensively on the former president's announcement that led to the establishment of the DSO. The thrust of that announcement was the establishment of the DSO as part of a number of measures to improve the quality, the conditions of service and public status of policemen and policewoman so that they can be seen, correctly as the front line guarantors of the fundamental rights to liberty, life, safety and security. The establishment of the DSO was seen as one of a number of measures to achieve these objectives. And I quote "To enable our law enforcement agencies to translate this into reality, I am privileged to announce that a special and adequately staffed and equipped investigation unit will be established urgently to deal with all national priority crimes, including police corruption."

The focus was to improve the South African Police Service (SAPS). With the benefit of hindsight, the likelihood of achieving those objectives was more likely to be achieved by integrating the investigative capacity of the DSO into the SAPS by means of an elite and specialised Unit, aided by the continued guidance and assistance of (dedicated) members of the NPA, thus perpetuating the successful "troika" principle of prosecution assisted investigations informed by comprehensive crime-intelligence. This is in fact what the two bills under discussion are seeking to achieve.

The structuring of this troika of functions within SAPS is nothing new. There are 87 dedicated prosecutors in the NPA that assist the SAPS in the investigating complex commercial crimes. Informed by its own intelligence, investigated by its own investigators and assisted by dedicated prosecutors from the NPA, the SAPS Commercial Crime Unit functions along the lines that we expect the new Directorate will function.

Madame speaker, although there has been criticism that the ANC and its representatives in the House are just implementing party policy, I want to point out the Constitutional Court in a unanimous ruling yesterday in the Glenister matter stated: (and I quote from the judgement of the Chief Justice) "In my view, there is nothing wrong, in our multi-party democracy, with Cabinet seeking to give effect to the policy of the ruling party. Quite clearly in so doing Cabinet must observe its constitutional obligations and may not breach the Constitution"

I believe that Cabinet and Parliament have observed their constitutional obligations. My colleague the Minister of Safety and Security has outlined the consultation and public participation process and the different models considered by the joint portfolio committees. I just wish to add that if anyone has any doubt as to seriousness of the engagement on the committee and with the public submissions, one need only look at the original Bills and the Bills that are before you today to see the impact of that engagement.

Honourable members, the bills were developed with the object of retaining as far as possible, the specialised skills and methodology developed and employed by the DSO, as well as drawing from the most highly skilled and experienced detectives in the SAPS Organised and Commercial Crimes branches. The intention is to establish a service, which we think for many reasons ought to be located in SAPS, but will continue the work of the DSO in respect of the prevention and investigation of serious organised crime and priority offences.

The new unit will retain a multi-disciplinary approach and employ an integrated methodology involving co-operation with, and support, of all government departments and institutions. It will be appropriately staffed and selected on the basis of proven competence and integrity.

In this regard, it is necessary to state that it is our sincere hope that the special investigators in the DSO will seek to join the new unit. In order to retain that investigative capacity (as well as meeting our constitutional obligation of fair labour practices) we have given investigators a choice (rather than automatically transferring them as we could have under the Labour Relations Act) to transfer to SAPS or to take up an offer of a reasonable alternative post or position in NPA (but not as an investigator) or in the public service or state institutions such as SARS for example.

The refusal to accept a reasonable alternative post amounts to an election to leave the public service. And this is why the severance terms will be those set out by the Minister of Public Service and Administration for Employee Initiated severance packages. We have endeavoured to ensure that the core principles of the constitutional right to fair labour practices have been applied in this legislation, namely: consent to transfer, retention of their service and conditions of employment, a reasonable alternative post and an equitable severance package for those who choose to no longer remain in public service.

In the Business Day editorial today, an opinion is expressed that although the investigators will be guaranteed their conditions of service, they will not be guaranteed equal positions. Let me tell Business Day that the right to fair labour practices in the Labour Relations Act protects all workers, including special investigators, from unfair demotion.

But more importantly, let me address the members of the DSO, that quite apart from this government's legal and constitutional obligations, the intention is to encourage you to move
to SAPS, as the Minister of Safety and Security has said and that will not be done by not transferring you to posts of similar status and expertise.

Honourable members,
I also wish to address the concern that the investigations will be prejudiced by the transfer and that once these files have been transferred that they will not be pursued or that the investigators that have worked on these investigations for years will suddenly be removed. In order to meet that concern the Bill mandates me to establish mechanisms to ensure an orderly and effective transfer of the investigations. I will do this in consultation with the Minister of Safety and Security and of course after consultation with the NDPP and the Commissioner.

Each investigation or category of investigations will be dealt with. The fear that the investigations will not be properly pursued fails to take into account the SAPS Code of Conduct which requires SAPS to uphold the Constitution and the law, to act with integrity to render an effective service, to act against corruption and to bring perpetrators to justice and that a breach o the Code constitutes a disciplinary offence or, if aimed at defeating the ends of justice, criminal offence. There is also a new complaints mechanism under a retired judge to address any failure to pursue an investigation or any conduct to undermine an investigation.

Finally, I wish to praise the chairpersons and members of the Portfolio Committee on Justice and Constitutional Development and on Safety and Security for the extraordinary thorough and dedicated manner in which they dealt with these bills.

I thank you.

Issued by: Department of Justice and Constitutional Development
23 October 2008
Source: Department of Justice and Constitutional Development (http://www.doj.gov.za)