Deputy Speaker, hon Deputy President, hon Ministers and Deputy Ministers, hon members, as we celebrate the life and struggle of Mrs Albertina Sisulu, let us also mourn the passing away of a comrade, a former member and a stalwart of the ANC, the late Billy Nair.
The passing away of Comrade Billy Nair who had embraced the values and the spirit of the Freedom Charter and the Constitution. His steadfast commitment to the values, rights, rule of law and our democracy, should indeed usher in a sense of hope and not a sense of madness.
The DSO, commonly known as the Scorpions, was established following an announcement by former President Thabo Mbeki 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 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 with those matters. The underlying problems were, firstly, a duplication of functions, especially with regard to the lodging of charges - the unit was after all not a charge office - and secondly, there was an issue of who was to perform the crime intelligence functions of 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 Prosecutions, NDPP. 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 offices of the NDPP.
The difficult issues that characterised the establishment of the DSO remained and fuelled the tension between the 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 the resultant successful operations, as well as that the DSO was cherry-picking - swooping on high-profile cases that would boost the public image of the DSO. Although these tensions were initially largely issues of turf, the allegations of politically inspired DSO investigations only emerged much later. This intensified the tensions, leading to the appointment of the Khampepe Commission, in 2005, 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 of Safety and Security, and that mechanisms should be established to better co-ordinate the functions of the DSO with those of other agencies. 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 nor 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. Since the crime intelligence function of the SAPS is established in terms of the Constitution itself, the relocation of the unit into the SAPS would resolve the ongoing problem.
Hon 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 that the establishment of the DSO was part of a number of measures to improve the quality, conditions of service and public status of policemen and policewomen "so that they can be seen correctly as the frontline guarantors of the fundamental rights of 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 a 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 SAPS. With the benefit of hindsight, achieving these 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 principles of prosecution-assisted investigations informed by comprehensive crime intelligence. This is in fact what these two Bills under discussion are seeking to achieve. The structuring of this troika of functions - prosecution, investigation and intelligence - within the SAPS is nothing new. There are 87 - I repeat, 87 - dedicated prosecutors in the NPA who assist the South African police in 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. Indeed, the collaboration between Safety and Security and the Minister for Justice and Constitutional Development has already begun. As you can see, they are seated together discussing this particular aspect.
Although there had been criticism that the ANC and its representatives in the House are just implementing party policy, I want to point out that the Constitutional Court, just yesterday, in a unanimous ruling in the Glenister matter, stated, and I quote from the judgment of Chief Justice Pius Langa:
In my view, there is nothing wrong in our multiparty 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.
My task and responsibility, and the usher of hope I wish to bring in, is that indeed I would apply the latter in the spirit of the Constitution and ensure that in what we do and in how we do it, we are consistent with its provisions. 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 the seriousness of the engagement on the committee and with the public submissions, one needs only look at the original Bills and the Bills that are before you today to see the impact of that engagement.
In that vein, may I thank the chairpersons of both the Portfolio Committee on Justice and Constitutional Development and the Portfolio Committee on Safety and Security, as well as the Select Committee on Safety and Security and the distinguished and very hardworking officials from the Departments of Justice and Safety and Security, as well as Prof Halton Cheadle for his assistance in terms of labour matters. I said portfolio committee members, and that certainly includes, in our democratic dispensation, the opposition members. We spent many, many hours with deliberations.
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 crime and commercial crime branches. This is where they came from. The intention is to establish a service which we think, for many reasons, ought to be located in the SAPS, but will continue to work in the spirit of the DSO in respect of the prevention and investigation of serious organised crime and priority offences.
The new unit will retain a multidisciplinary approach and employ an integrated methodology involving co-operation with and support of all government departments and institutions. It will be appropriately staffed with staff being 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 done under the Labour Relations Act, to the SAPS; or to take up an offer of a reasonable alternative post or position in the NPA, but not as an investigator in such an event; or to take a post in the Public Service or state institutions such as the SA Revenue Services, for example. Refusal to accept a reasonable alternative post amounts to an election to leave the Public Service. This is why the severance terms will be those set out by the Minister for the Public Service and Administration for employee- initiated severance packages. In other words, four choices are available to these investigators. We have endeavoured to ensure that the core principles of the Constitution in respect of fair labour practice have been applied in this legislation. That is my task and that is my responsibility, namely consent to transfer, retention of service and conditions of employment, a reasonable alternative post and an equitable severance package for those who choose to no longer remain in the 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 the Business Day that the right to fair labour practice 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 and say that, quite apart from this government's legal and constitutional obligations, the intention is to encourage you to move to the SAPS as the Minister of Safety and Security has already said and invited you to do. This will certainly not be done by transferring you to a post that is not of a similar status to your expertise.
I also wish to address the concern that investigations will be prejudiced by the transfer and that once files have been transferred, they will not be pursued or that investigators that have worked on these investigations for years will suddenly be removed. In order to meet this concern, the Bill mandates me to establish a mechanism 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 National Director of Public Prosecutions and the National Police Commissioner. Each investigation or category of investigations will be dealt with.
May I give you the assurance that where a matter is with the prosecution authority, ready for prosecution, it will not revert to investigation, unless more evidence is sought by the prosecution authority. The fear that investigations will not be properly pursued fails to take into account the SAPS' code of conduct, which requires the SAPS to do the following: uphold the Constitution and the law; act with integrity in rendering an effective service; act against corruption and bring perpetrators to justice; and that a breach of the code constitutes a disciplinary offence or, if aimed at defeating the ends of justice, a criminal offence. There is also a new complaints mechanism under a retired judge to address any failure to pursue any investigation or any conduct to undermine any investigation.
Finally, I again repeat my thanks for what I think was a very, very vibrant and interactive endeavour on the part of the portfolio committees. Yunus Carrim, John Jeffery and the other members of the portfolio committees and the select committee, indeed you spent a great deal of time. The assurance I leave you with is that with my colleague, the Minister of Safety and Security, we will establish a mechanism that is practical, transparent and accountable. After all, the last word is with Parliament. You have the responsibility to oversee and to monitor our performance and our actions. I thank you very much for your attention. [Applause.]