National Prosecuting Authority Amendment Act

Link to law: http://www.gov.za/documents/national-prosecuting-authority-amendment-act-0
Published: 2009-01-30

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National Prosecuting Authority Amendment Act


Government Gazette
REPUBLIC OF SOUTH AFRICA

Vol. 523 Cape Town 30 January 2009 No. 31856
THE PRESIDENCY No. 83 30 January 2009
It is hereby notified that the President has assented to the following Act, which is hereby published for general information:–
No. 56 of 2008: National Prosecuting Authority Amendment Act, 2008.

ACT To a m e n d the Nat ional Prosecut ing Authori ty Act , 1998, so as to repeal the provis ions relating to the Directorate of Special Operat ions ; a n d to provide for matters connected therewith.
P A R L I A M E N T of the Republic of South Africa enacts as fo l lows:—
A m e n d m e n t of section 1 of Act 32 of 1998, as a m e n d e d by section 2 of Act 61 of 2 0 0 0
1. Section 1 of the National Prosecut ing Authority Act, 1998 (hereafter referred to as the principal Act) , is a m e n d e d —
(a) by the deletion of the definition of "Directorate of Special Operations"; (b) by the substitution for the definition of "head of an Investigating Directorate"
of the following definition: " 'head of an Investigating Directorate' means [the Deputy National Director referred to in section 7(3)(a), or] an Investigating Director referred to in section 7(3)(b)[,as the case may b e ] . " :
(c) by the substi tution for the definition of "Investigating Director'' of the following definition:
" 'Investigating Director' — (a) means a Director of Public Prosecut ions appointed under section
13( l ) [ (aA) or](b)[— (i) to the Directorate of Special Operations; or
(ii)] as the head of an Investigating Directorate established in terms of section 7(1 ) [ (1A) ,
as the case may be]; and (b) in Chapter 5. includes [the head of the Directorate of Special Operations]
any Director referred to in section 13( 1). designated by the National Director to conduct an investigation in te rms of section 28 in response to a request in terms of section 17D(3) of the South African Police Service Act . 1995 (Act No . 68 of 1995). by the Head of the Directorate for Priority Cr ime Inves t iga t ion;" ;
(d) by the deletion of the definition of "special investigator"; and (e) by the substitution for the definition of "specified offence" of the fol lowing
definition:
Act No. 56, 2008 NATIONAL PROSECUTING AUTHORITY AMENDMENT ACT, 2008
" 'specified offence' means any matter which in the opinion of the head of an Investigating Directorate falls within the range of matters as contemplated in [section l(l)(a)(aa) or any proc lamat ion issued in terms of section 7(l)(a)(bb) or (1A)] section 7( 1). and any reference to the commiss ion of a specified offence has a cor responding m e a n i n g ; " .
A m e n d m e n t of section 5 of Act 32 of 1998, as a m e n d e d by section 3 of Act 61 of 2 0 0 0
2. Section 5 of the principal Act is amended by the delet ion in subsection (2) of paragraph (dA).
Subst i tut ion of sect ion 7 of Act 3 2 of 1998, as subst i tuted by sect ion 4 of Act 61 of 2000
3 . The following section is substituted for section 7 of the principal Act:
"Investigating Directorates
7. (1) [(a) There is hereby establ ished in the Office of the National Director a n Investigating Directorate , to be k n o w n as the Directorate of Special Operat ions , with the a im t o — (i) investigate, and to carry out any funct ions incidental to investiga­
t ions; (ii) gather, keep and analyse informat ion; a n d
(iii) where appropriate , institute cr iminal proceedings and carry out any necessary functions incidental to instituting cr iminal proceed­ ings,
relating t o — (aa) offences or any criminal or unlawful activit ies commit t ed in an
organised fashion; or (bb) such other offences or categories of offences as de termined by the
President by proclamat ion in the Gazette. (b) For the purpose of subparagraph (aa), 'organised fashion'
includes the p lanned , ongoing , cont inuous or repeated part ic ipat ion, involvement or engagement in at least two incidents of cr iminal or unlawful conduct that has the same or s imilar intents , results , accompl ices , v ict ims or m e t h o d s of commiss ion , or otherwise are related by dist inguishing characterist ics .
(1A)] The President may, by proclamat ion in the Gazette, establish [not more than two addit ional] one or more Invest igat ing Directorates in the Office of the National Director, in respect of [matters not contemplated in subsect ion (l)(aa) or (bb)] such offences or criminal or unlawful activities as set out in the proclamation.
(2) Any proclamation issued in terms of this sec t ion— (a) shall be issued on the recommenda t ion of the Minister, the Cabinet
member responsible for policing and the National Director, (b) may at any time be amended or rescinded by the President on the
recommendat ion of the Minister, the Cabinet m e m b e r responsible for policing and the National Director, and
(c) must be submitted to Parl iament before publication in the Gazette. (3) The head o i l -
(a) the Directorate of Special Operations, shall be a Deputy National Director, assigned by the National Director; and
(b) any other] an Investigating Directorate, shall be an Investigating Director, and shall perform the powers , duties and functions of the Investigating Directorate concerned subject to the control and directions of the National Director.
Act No. 56, 2008 NATIONAL PROSECUTING AUTHORITY AMENDMENT ACT. 2008
(4) (a) The head of an Investigating Directorate shall be assisted in the exercise of his or her powers and the performance of his or her functions b y - (i) [in the case of—
(aa) the Directorate of Special Operations, one or m o r e Investigat­ ing Directors and one or more Deputy Directors; and
(bb) any other Invest igat ing Directorate , ] one or more Deputy Directors;
(ii) prosecutors; [(HA) in the case of the Directorate of Special Operations, special
investigators;] (iii) officers of any Depar tment of State seconded to the service of the
Investigating Directorate in terms of the laws govern ing the public service;
(iv) persons in the service of any public or other body w h o are by arrangement with the body concerned seconded to the service of the Investigating Directorate; and
(v) any other person whose services are obtained by the head of the Investigating Directorate,
and the persons referred to in subparagraphs (i) to (v) shall perform their powers , duties and functions subject to the control and direction of the head of the Investigating Directorate concerned.
(b) For the purposes of subparagraphs (iv) and (v) of paragraph (a)— (i) any person or body requested by the head of an Investigating
Directorate in writing to do so, shall from time to t ime, after consultat ion with the head of an Investigating Directorate, furnish him or her with a list of the names of persons, in the employ or under the control of that person or body, who are fit and available to assist the head of that Investigating Directorate as contempla ted in the said subparagraph (iv) or (v), as the case may be; and
(ii) such a person or body shall, at the request of, and after consul tat ion with, the head of the Investigating Directorate concerned , des ignate a person or persons ment ioned in the list concerned so to assist the head of the Investigating Directorate.".
A m e n d m e n t of section 13 of Act 32 of 1998, as a m e n d e d by sect ion 6 of Ac t 61 of 2000
4. Section 13 of the principal Act is amended by the delet ion in subsect ion (1) of paragraph (aA).
Repeal of Chapter 3A of Act 32 of 1998
5. Chapter 3A of the principal Act is repealed.
A m e n d m e n t of section 23 of Act 32 of 1998, as amended by sect ion 9 of Act 61 of 2000
6. Section 23 of the principal Act is amended by the deletion of subsection (2).
A m e n d m e n t of sect ion 26 of Act 32 of 1998, as subst i tuted by section 10 of Act 61 of 2000
7. Section 26 of the principal Act is amended by the substitulion for subsect ion (2) of the fol lowing subsection:
" (2 ) Nothing in this Chapter or [section 7(1) , or any proc lamat ion issued in terms of] section 7. derogates from any power or duty which relates to the prevent ion, combat ing or investigation of any offences and which is bes towed upon the South African Police Service in terms of any law." .
Act No. 56, 2008 NATIONAL PROSECUTING AUTHORITY AMENDMENT ACT. 2008
A m e n d m e n t of sect ion 28 of Act 32 of 1998, as substituted by sect ion 12(a) of Act 61 of 2000
8. Section 28 of the principal Act is amended by the substitution for paragraph (a) of subsection (2) of the following paragraph:
"(a) The Investigating Director may, if he or she decides to conduct an investigation, at any time prior to or during the conduct ing of the investigation designate any person referred to in section 7(4)(a) or, in the case of an invest igat ion requested by the Head of the Directorate for Priority Cr ime Investigation in terms of section 17D(3) of the South African Police Service Act. 1995 (Act N o . 68 of 1995). any m e m b e r of the prosecuting authority or a member of that Directorate , to conduct the investigation, or any part thereof, on his or her behalf and to report to him or her ." .
Repeal of sect ions 30 and 31 of Act 32 of 1998
9. Sections 30 and 31 of the principal Act are repealed.
A m e n d m e n t of section 36 of Act 3 2 of 1998, as a m e n d e d by section 15 of Ac t 61 of 2000
10. Section 36 of the principal Act is a m e n d e d — (a) by the substitution for subsection (3) of the following subsect ion:
" (3) [Subject to subsect ion (3A) , the] The Director-General : Just ice shall, subject to the Public Finance Managemen t Act, 1999 (Act No. 1 of 1999)— ' (a) be charged with the responsibil i ty of account ing for State monies
received or paid out for or on account of the prosecuting authority; and
(b) cause the necessary account ing and other related records to be kep t . " ;
(b) by the deletion of subsection (3A); (c) by the substitution for subsection (4) of the following subsection:
" (4) The records referred to in subsection (3)(b) [and (3A)(b)] shall be audited by the Audi tor -Genera l . " ; and
(d) by the substitution for subsection (5) of the following subsection: " (5 ) The Director-General : Justice [or, in respect o f a mat ter deal t with
by the Directorate of Special Operat ions , the Chief Execut ive Officer,] may, on the recommenda t ion of the National Director and with the concurrence of the Minis ter of Finance, order that the expenses or any part of the expenses incurred by any person in the course of or in connect ion with an investigation contemplated in section 28 (1) be paid from State funds to that person ." .
A m e n d m e n t of section 40 of Act 32 of 1998, as subst i tuted by section 17 of Ac t 61 of 2000
11. Section 4 0 of the principal Act is a m e n d e d — (a) by the substitution for the words preceding paragraph (a) of subsection (1) of
the following words: "The Minister may[ , subject to subsect ion (2),] make regulat ions
p r e sc r i b ing—"; and (b) by the deletion of subsection (2).
A m e n d m e n t of section 43 of Act 32 of 1998
12. Section 4 3 of the principal Act is amended by the deletion of subsect ion (7).
Act No. 56, 2008 NATIONAL PROSECUTING AUTHORITY AMENDMENT ACT. 2008
Subst i tut ion of section 43A of Act 3 2 of 1998
13. The following section is substituted for section 43A of the principal Act:
"Transitional arrangements relating to Directorate of Special O p e r a ­ tions
43A. (1) In this sec t ion— (a) any word or expression in respect of which a specific mean ing has
been assigned by the South African Police Service Act, 1995 (Act N o . 68 of 1995). has the same meaning; and
(b) 'fixed da te ' means a date to be determined by the Pres ident by proclamat ion.
(2) Prior to a date determined by the National Director, any person employed by the Directorate of Special Operations must inform the National Director whether they consenl to be transferred to the South African Police Service.
(3) As from the fixed d a t e — (a) any person, w h o immediate ly before the fixed date held the office of
special investigator and who has consented to the transfer, is transferred to the South African Police Service and becomes a m e m b e r of the South African Police Service; and
(b) such adminis t ra t ive and support personnel employed by the Director­ ate of Special Operations as may be agreed upon between the National Director and the National Commiss ioner , may be transferred to the South African Police Service.
(4) (a) An employee contemplated in subsection (3) may be transferred to the South African Police Service only with his or her consent .
(b) The remunerat ion and other terms and condi t ions of emp loymen t of employees transferred in terms of subsect ion (3) may not be less favourable than those that applied immediate ly before their transfer.
(c) The transfer contemplated in subsection (3) does not interrupt the employees ' continuity of employment and the employees remain entitled to all r ights and benefits, including pension benefits and privi leges to which they were entitled to immediate ly before transfer.
(5) (a) An employee referred to in subsection (3) w h o does not consent to be transferred to the South African Police Service must, prior to the date referred to in subsection (2), notify the National Director thereof in writ ing.
(b) In respect of such an employee , the National Director m a y — (i) after consultat ion with the Minister and the Cabinet m e m b e r s
responsible for the public service and for finance, offer to transfer the employee to a reasonable alternative post or posit ion in any government depar tment or state institution in accordance with subsection {4)(b) and (c) and section 14 of the Public Service Act, 1994 (Proclamation No . 103 of 1994), shall, unless the context indicates otherwise , apply to such a transfer; or
(ii) after consultat ion with the Minister, offer to transfer the employee to a reasonable alternative post or posit ion in the prosecuting authority. other than any post of special investigator, in accordance with subsection (4)(b) and (c).
(c) If the employee does not accept the offer made in paragraph (b) within 30 days of it being made , the employee ' s employment automatical ly terminates on the fixed date.
(d) An employee whose employment is terminated in terms of paragraph (c) is entitled to a severance package determined by the Minister in consultat ion with the Cabinet members for the public service and for finance.
(e) The severance package provided for in paragraph (d) may not be less favourable than the severance package provided for in the Determinat ion on the Introduction of an Employee-Ini t ia ted Severance Package for the Public Service determined in terms section 3 of the Public Service Act . 1994.
Act No. 56, 2008 NATIONAL PROSECUTING AUTHORITY AMENDMENT ACT, 2008
(f) A n y dispute arising from the interpretation or application of this section in so far as employees are concerned must be referred to the Labour Court for determinat ion.
(6) Any decis ions made , direct ions issued and any proceedings instituted by the employer immediate ly before the fixed date in respect of an employee referred to in subsection (3). remains appl icable to him or her and must be implemented or finalised as if the National Prosecut ing Authori ty A m e n d m e n t Act, 2008, has not been passed.
(7) Any m e m b e r of the prosecuting authority w h o was employed in the Directorate of Special Operations immediate ly before the fixed date, shall cont inue to be employed in the Office of the National Director, and shall exercise, carry out and perform his or her powers , dut ies and functions as conferred, imposed or assigned to him or her by the National Director and subject to the control and direct ions of the National Director or a person authorised thereto by the National Director.
(8) The National Prosecut ing Authori ty A m e n d m e n t Act . 2008 , does not affect the validity of any investigation performed by the Directorate of Special Operations before the fixed date, including any functions incidental to such investigations or the institution of any cr iminal proceedings .
(9) (a) Investigations by the Directorate of Special Operations that are pending immediate ly before the fixed date must, on that date, be transferred to and cont inued by the Directorate for Priority Cr ime Investigation in accordance with a mechan ism to ensure that the investigations are not prejudiced by the transfer.
(b) The Minister, in consultation with the Cabinet m e m b e r for police and after consultat ion with the National Director and the National C o m m i s ­ sioner, must determine the mechanism referred to in paragraph (a).
(10) As from the fixed date any liability incurred by the Directorate of Special Operations as a result of any investigation by that Directorate , shall pass to the prosecuting authority, unless the Minister in consul ta t ion with the Cabinet m e m b e r for police, in a specific instance de termines otherwise .
(11) (a) Any investigation that has been instituted under section 28 by the Directorate for Special Operations, and all steps taken as a result of such an investigation, shall be deemed to have been insti tuted or taken in consequence of the application of section 17D(3) of the South African Police Service Act . 1995.
(b) The Head of the Directorate for Priority Cr ime Invest igat ion may, at any l ime after the fixed date, wi thdraw such a request .
(c) The National Director must designate a Director in respect of each investigation referred to in paragraph (a), who must assist the Directorate of Priority Cr ime Investigation in carrying out such an investigation. ".
A m e n d m e n t of P r e a m b l e to Act 32 of 1998, as subst i tuted by sect ion 1 of Act 61 of 2000
14. The Preamble to the principal Act is amended by the delet ion of the ninth, tenth and eleventh paragraphs .
Short title and c o m m e n c e m e n t
15. This Act is called the National Prosecuting Authori ty A m e n d m e n t Act . 2008 , and comes into operat ion on a date determined by the President by proclamat ion in the Gazette.