National Prosecuting Authority Amendment Act

Link to law: http://www.gov.za/documents/national-prosecuting-authority-amendment-act
Published: 2000-12-11

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National Prosecuting Authority Amendment Act [No. 61 of 2000]
REPUBLIC OF SOUTH AFRICA
GOVERNMENT GAZETTE. . . . . . . . . . . . ,.. - L, ,.
.,
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STAATSKOERANT
VAN DIE REP(JBLIEK VAN SUID-AFRIKA
Registered at the Post O@ce as a Newspaper As ‘n Nuushlad by die Poskantoor Geregistreer
VOL. 426 CAPE TOWN, 11 DECEMBER 2000
KAAPSTAD, 11 DESEMBER 2000 No. 21878
THE PRESIDENCY I
DIE PRESIDENSIE ——— I ——.—
No. 1352. 11 December 2000 No. 1352. 11 Desemt?m 2000
It is hereby notified that the. President has assented to the Hierby word bekend gemaak dat die President S) goed- following Act which is hereby published for general kuring geheg het mn d i e onderstaande Wet wa[ hierby kr information--- fi!gemene inligting gepublise.er word:—
No. 61 of 2000: Niltional Prosecuting Authority Amendment No, 61 van 2000: Wysigingswet Op die Nasiona]e Vervo!gings- Act, 2000. g~sag, 2000.
\(). 21s7s cio\ERx\l Es”l G,4Z[;T’11,, II Dfr[;hlr3[iR20(l(l ———
,i,v S(). 61.2()()0 N,\-rl[)N,-\I. 12 ROSE(-L’l-lNC;, -4[’”l”HORl’r}” /\hlI-;N[)P,lt.\Tl-,A C’T. 2000
GENERAL EXPI,AN.~TORY NOTE:
[ 1 Wrords in bold type in square brackc[h itlciica~t; omissio{lsfr{)in existing enactments.
Words underlined with a solid line indicate inse~lions in existing enactments.
——
(Etl.
Substitution of section 7 of Act 32 of 1998
4. The following section is hereby substituted for section 7 of the principal Act:
“Investigating Directorates
7. (1) (a) There is hereby established in the Ofice of the National 15 Director an Investigating Dire~orate, to be known as the Directorate of Special Operations, with the aim to— (i) investigate, and to carry out any functions incidental to investigations;
(ii) gather, keep and analyse information; and (iii) where appropriate, institute criminal proceedings and carry out any 20
necessary functions incidental to instituting criminal proceedings, relating to- (aa) offences or any criminal or unlawful activities committed in an
organised fashion; or (bb) such other offences or categories of offences as determined by ~he 25
President by proclamation in the Gazette. (b) For the purpose of subparagraph (au), ‘organised fashion’ includes
the planned, ongoing, continuous or repeated participation, involvement or engagement in at least two incidents of criminal or unlawful conduct that has the same or similar intents, results, accomplices, victims or methods of 30 commission, or otherwise are related by distinguishing characteristics. ~ The President may, by proclamation in the Gazette, establish not
more than [three] two additional Investigating Directorates in the Ojice of the National Direcror, in respect of [specific offences or specified categories of offences] matters not contemplated in subsection (1 )(aa) or 35 @J.
(2) Any proclamation issued in terms of this section— (a) shall be issued on the recommendation of the Minister and the 1
National Direcro~ (b) may at any time be amended or rescinded by the President on the 40
recommendation of the Minister and the National Directoq and (c) must be submitted to Parliament before publication in the Gazette.
(3) The head of— (a) the Directora~ of Special Operations, shall be a Deputv National
Director, assigned by the National Director; and 45 ~ [an] any other Investigating Directorate, shall be an Investigating
Direc?or,
Ac t h. 61, 2000 hT.4T10Y \i. I’R(~Sl\’[’llY[, ,.\(:THORl”ll’ .A,\!l; lYU31EXT ,A(”’J’. 2!)()(1
Jnd shall perform [be pouers, duties and functions of the [Director-ate] lnlesfigofin,q Diwcrorutc concerned subject (o [he control and directions of—.— the Ncirionol Director.
(4) (a) [An Investigating Director] The head of an jn~esfiga~i}]g Direcfor~re shall be assisted in the exercise of his or her powers and the performance of his or her functions by— (i) in the case of—
(aa) the Directorate of Speciai Operations, one or more Investigating Director.~ and one or more Dcpuh Directors; and
[M)) any other Investigating Directorate, one or more Depurl Direc- rors[, to perform, subject to the control and directions of the Investigating Director, any functions of the Investigating Director];
(ii) prosecutors; (iiA) in the case of the Directorate of Special Operations, special
in vesfigators; (iii) officers of any Department of State seconded to the service of the
In~’es[iga[ing Directorate in terms of the laws governing the public service;
(iv) persons in the service of any public or other body wbo 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 [Investigating Director for the purposes of a particular inquiry] head of th~ 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 bead of tbe Investigating Directorate concerned.
(b) For the purposes of subparagraphs (iv) and (v) of paragraph (a)— (i)
(ii)
any person or body requested by the [Investigating Director] head of an lnvestigatin,g Directorate in writing to do so, shall from time to time, after consultation with tbe [Investigating Director] kead of an ~nvestigaring 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 [Investigating Director] head of that Investi~ating Directorate as contemplated in the said subparagraph (iv) or (v), as the case may be; and such a person or body shall, at the request of [the Invesh”gating Director], and after consultation with, the [Investigating Director] head of the Investigating Directorate concerned, designate a person or persons mentioned in the list concerned so to assist the [Investigating Director] head of the Investi~ating Directorate.”.
Amendment of section 11 of Act 32 of 1998
5. Section 11 of the principal Act is hereby amended by the substitution for subsection (1) of the following subsection:
“(1 ) The President may, after consultation with the Minisfer and the Narionul Director, appoint not more than [three] four persons, as Deputy National Directors of Public Prosecutions.”.
Amendment of section 13 of Act 32 of 1998
6. Section 13 of the principal Act is hereby amended— (a) by the insertion after paragraph (a) of subsection (1) of the following
paragraph: “(aA) may appoint one or more Directors of Public Prosecutions to the
Directorate of Special operations;”; and (b) by the substitution for paragraph (b) of subsection ( 1 ) of the following
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55 paragraph: “(b) shall, in respect of [each] ~ [investigating Directorate established in
terms of section 7(1 A), appoint a Director of Public Prosecutions as the head of such an [nvesrigating Directorate; and”.
I O No. 2187S G()’I’ERNMENT GAZETTE. 1 I DECEMBER 2000 - — - — — — — — . - — - - - — - . — — - — — - — - - -—-.————-——— ———
Act NO. 6J, mxJ NATION.4L PROs EC UT!Nc; ~uv{owry ,4 NIENDMENT ACT. 2000
Amendment of section 15 of Act 32 of 1998
7. Section 15 of the principal Act is hereby amended by the substitution for subsection (1) of the following subsection:
“(1 ) The Minister may, subject to the laws governing the public service and section 16(4) and after consultation with the Nationul Director- (a) in respect of an Office referred to in section 6(1 ), appoint a Deputy Director of
Public Prosecutions as the head of such office; [and] (b) in respect of each office for which a Director has been appointed, appoint
Deputy Directors of Public Prosecutions@ (c) in respect of the O#ice of the National Director app oint one or more Deputy
Directors of Public Prosecutions to exercise certain powers, carry out certain duties and perform certain functions conferred or imposed on or assigned to him or her by the National Director.”.
Insertion of Chapter 3A in Act 32 of 1998
8. The following Chapter is hereby inserted in the principal Act:
“CHAPTER 3A
Appointment, remuneration and conditions of service of special investigators
Appointment of special investigators
19A. (1) The National Director may, on the recommendation of the head of the Directorate of Special Operations, appoint any fit and proper person as a special investigator of that Directorate.
(2) The National Direcror must, in the prescribed form, issue an identity document under his or her signature to each person so appointed, which shall serve as proof that such person is a special investigator.
Security screening of special investigators
19B. (1) Subject to subsection (2), no person may be appointed as a special investigator unless— (a) information with respect to that person has been gathered in a security
screening investigation by the National Intelligence Agency estab- lished by section 3 of the Intelligence Services Act, 1994 (Act No. 38 of 1994); and
(b) the National Director, after evaluating the gathered information, is satisfied that such person may be appointed as a special investigator without the possibility that such person might be a security risk or that he or she might act in any way prejudicial to the objectives of the Directorate of Special Operations.
(2) If the National Director is so satisfied, he or she shall issue a certificate with respect to such person in which it is certified that such person has successfully undergone a security clearance.
(3) Any special investigator may from time to time, or at such regular intervals as the National Director may determine, be subjected to a further security screening as contemplated in subsection (1)(a).
(4) The National Direcfor may withdraw a certificate referred to in subsection (2) if he or she obtains infomlation which, after evaluation by him or her, causes him or her to believe that the person in question could be a security risk or could possibly act in any manner prejudicial to the objectives of the Directorate of Special Operations.
(5) If the certificate referred to in subsection (2) is withdrawn, the special investigator concerned shall be unfit to continue to hold such office and the
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12 so. 2!s7s GO\ ’ERh’MENT GAZETTE. I I DECENIBER 2000”
Act N(). 61, 2000 NATIONAL PRO> f~(’LTIN(; .l [71 HLORITY .AA4ENDMENT AC 1-.2000
Nariona/ Dirccfor m[]s( d ischarge h im or her from the Direcfora[e qf I Special Operations.
Remune~ation and conditions of service of special investigators
19C. (1) The remuneration, allowances and other service benefits of special investigators are determined by the Minister, in consultation with 5 the National Director and with the concurrence of the Minister of Finance.
(2) [fan ofliccr or employee in the public service is appointed as a special investigator. the period of his or her service as a special investigator shall be calculated as part of and continuous with his or her employment in the public serlice, for purposes of leave, pension and any other condition of 10 service. The provisions of any pension law applicable to him or her or, in the event of his or her death, to his or her dependants which are not inconsistent with this section, shall, with the necessary changes, continue so to apply.
(3) No special in~’estigutor may strike or induce or conspire with any 15 other member of the Directorate of Special operations to strike.
(4) The services of the Directorate of Special Operations shall, for the purposes of the application of Chapter IV of the Labour Relations Act, 1995 (Act No. 66 of 1995), be deemed to have been designated as an essential service in terms of section 71 of that Act. 20 (5) All other conditions of service of special investigators are as
prescribed in terms of this Act.”.
Amendment of section 23 of Act 32 of 1998
9. Section 23 of the principal Act is hereby amended by the addition of the following subsection, the existing section becoming subsection (1): 25
“(2) In addition to any powers, d~ties or functions referred to in subsection ( 1), the head of the Directorate of Special Operations may exercise the powers and must perform the duties and functions referred to in sections 7 and 19A(1), and Chapter 5 .“.
Substitution of section 26 of Act 32 of 1998 30
10. The following section is hereby substituted for section 26 of the principal Act:
“Application
26. (1) This Chapter only relates to Investigating Directorates. (2) Nothing in this Chapter or section 7(1), or any proclamation issued in I
terms of section 7, derogates from any power or du~y which relates to the 35 prevention, combating or investigation of any offences and which is bestowed upon the South African Police Service in terms of any law.”.
Substitution of section 27 of Act 32 of 1998
11. The following section is hereby substituted for section 27 of the principal Act:
“Reporting of matters to Investigating Director 40
27. If any person has reasonable grounds to suspect that a specified o~ence has been or is being committed or that an attempt has been or is being made to commit such an offence, he or she may [lay the matter in--- que;tion before] report the matter in question to the [Investigating Director] head of an Investigating Directorate by means of an affidavit or 45 affirmed declaration specifying— (a) the nature of the suspicion; (b) the grounds on which the suspicion is based; and (c) all other relevant information known to the declarant. ”.
14 No. 21878 CiO\’F,RNMENT GAZETTE, II Dr33n4r3m200cI — — — — . - — — — — . . — — — — _ . — — . . _ . . _ _— — _ _ _
Act No. 61.2000 NATIONIL PRC)SECLV 1)4{, AL~THORITY AMENDMENT ACT. ‘2000”
Amendment of section 28 of Act 32 of 1998
12. Section 28 of the principal Act. is hereby ~mended— (u) by the substitution for subsections (1) to (6) of the following subsections:
“(1 ) (a) If the lmwsrigaring Director has reason to suspect that a specl’jied offence has been or is being committed or that an attempt has been or is being made to commit such an offence, he or she may [hold an inquiry] conduct an investigation on the matter in question, whether or not it has been [laid before] reported t~ him or her in terms of section 27.
(b) If the National Director refers a matter in relation to the alleged commission or attempted commission of a spect$ed o~errce to the Inve.stigar- ing Director, the [rrvesrigatirrg Director shall [hold an inquiry] conduct an investigation, or a preparatory investigation as referred to in subsection ( 13),— on that matter.
(c) If the investigating Director, at any time during the [holding of an inquiry] conducting of an investigation on a matter refereed to in paragraph (a) or (b), considers it desirable to do so in the interest of the administration of justice or in the public interest, he or she may extend the [inquiry] investigation so as to include any offence, whether or not it is a specijed offence, which he or she suspects to be connected with the subject of the [inquiry] investigation.
(d) If the Investigating Director, at any time during the conducting of an investigation, is of the opinion that evidence has been disclosed of the commission of an offence which is not being investigated by the Investigating Directorate concerned, he or she must without delay inform the National Commissioner of the South African Police Service of the particulars of such matter.
(2) (a) The Investigating Director may, if he or she decides to [hold an inquiry] conduct an investigation, at any time prior to or during the [holding of the inquiry] conducting of the investigation designate any person referred to in section 7(4)@ to conduct the [inquiry] investigation, or any pti thereof, on his or her behalf and to report to him or her.
(b) A person so designated shall for the purpose of the [inquiry] investigation concerned have the same powers as those which the Investigat- ing Director has in terms of this section and section 29 of this Act, and the instructions issued by the Treasury under section 39 of the Exchequer Act, 1975 (Act No. 66 of 1975), in respect of commissions of inquiry shall apply with the necessary changes in respect of such a person.
(3) All proceedings [at an inquiry] contemplated in subsections (6U and (9) shall take place in camera.
(4) The procedure to be followed in conducting an [inquiry] investigation shall be determined by the Investigating Direcror at his or her discretion, having regard to the circumstances of each case.
(5) The proceedings [and evidence at an inquiry] contemplated in subsections (6), (8) and (9) shall be recorded in such manner as the Investigating Director may deem fit.
(6) For the purposes of an [inquiry] investigation- (a)
(b)
the Invesr/gating Director may summon any person who is believed to be able to furnish any information on the subject of the [inquiry] investigation or to have in his or her possession or under his or her control any book, document or other object relating to that subject, to appear before the Invesrigaring Direcfor at a time and place specified in the summons, to be questioned or to produce that book, document or other object; the lnvesrigaring Director or a person designated by him or her may question that pelson, under oath or affirmation administered by the Investigating Direcror, and examine or retain for further examination or for safe custody such a book, document or other object: Provided that any person from whom a book or document has been taken under this section ~, as long as it is in the possession of the Invesrigarin,g Direcror, at his.—— or her request be allowed, at his or her own expense and under the_-— _ supervision of the Investigating D~recror, to make copies thereof or to take extracts therefrom at an~sonable time,”;——--—_— ——
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! (1 No. 21878 (; O\ ’ERNT,MENT G.AZETTE. I I DECEMBER 2000 _—— - — __________ . . . . . . ._ -
Act No. ($1. 2000 NATION Il. ?ROSECL’TING AUTHORITY At,lENDAIENT ,AC-r. 2000”
(~) by [he deleticm of wtwcticm (11 J and (12): and
(c) by the substitution for subseclidn (14) of’ the following subsection: “(J 4) The provisions of subsections (2) to (10). inclusive. and of sections
27 and ’29 shall. with the necessary changes, apply to a preparatory [examination] investigation refemd to in subsection (13’).”.
Amendment of section 29 of Act 32 of 1998
13. Section 29 of the principal Act is hereby amended— (a)
(b)
(c)
by (he substitution for subsection (1) of the following subsection: “(1 ) The [nvestigafing Direcfor or any person authorised thereto by him or
her in writing may, subject to this section, for the purposes of an [inquiry] investigation at any reasonable time and without prior notice or with such ~otice as he or she may deem appropriate, enter any premises on or in which anything connected with that [inquiry] inves~igafion is or is suspected to be, and may— (a)
(b)
(c)
(d)
inspect and search those premises, and there make such enquiries as he or she may deem necessary; examine any object found on or in the premises which has a bearing or might have a bearing on the [inquiry] investigation in question, and request from the owner or person in charge of the premises or from any person in whose possession or charge that object is, information regarding that object; make copies of or take extracts from any book or document found on or in the premises which has a bearing or might have a bearing on the [inquiry] investigation in question, and request from any person suspected of having the necessary information, an explanation of any entry therein; seize, against the issue of a receiDt. anvthin~ on or in the premises which has a b&ring or might have a b&rin~ on tie [inquiry] investigutio~ in question, or if he or she wishes to retain it for further examination or for safe custody: Provided that any person from whom a book or document has been taken under this section may, as long as it is in the possession of the Investigarirrg Director, at his or her request be allowed, at his or her own expense and under the supervision of the Investigating Director, to make copies thereof or to take extracts therefrom at any reasonable time.”;
by the substitution for subsection (5) of the following subsection: “(5) A warrant contemplated in subsection (4) may only be issued if it
appears to the magistrate, regional magistrate or judge from information on oath or affirmation, stating— (a) the nature of the [inquiry] investigation in terms of section 28; (b) [the suspicion which gave rise to the inquiry] that there exists a
reasonable suspicion that an offence, which might be a specified ofence, has been or is bein,g committed, or that an attempt was or had been made to commit such an offence; and
(c) the need, in regard to the [inquiry] investigation, for a search and seizure in terms of this section,
that there are reasonable grounds for believing that anything referred to in subsection ( 1 ) is on or in such premises or suspected to be on or in such premises.”; and by the substitution for subsection (11) of the following subsection:
“(1 1) If during the execution of a warrant or the conducting of a search in terms of this section, a person claims that any item found on or in the premises concerned. contains privileged information and for that reason refuses the inspection or removal of such item. the person executing the warrant or conducting the search shall, if he or she is of the opinion that the item contains information which is relevant to the [inquiry] investigation and that such information is necessary for the [inquiry] investigation, request the registrar. .— of the High Court which has jurisdiction or his or her delegate, to seize and remove that item for safe custody until a court of law has made a ruling on the question whether the information concerned is privileged or not.”.
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lx No. 21878 GO\’F.KNk(ENrGKZETrE. II DECEMBER 20(’)0 —.—.— .—— - . — - — — — - . ..___. _ _ _ _ _ _ _ ———
Act NO. 61, 2000 NAT’IC)N.4L PROSEC’UT:NG A(rTHORIT’Y AMENDMENT ACT, 2000
Substitution of sections 30 and 31 of .Act 32 of 1998
14. The following sections are hereby substitllted for sections 30 and 31 of the principal Act:
“Powers and functions of special investigators
30. (1) A special investi~gtor may, subiect to the control and direction 01 the head of the Directorate of Special Operations, exercise such powers anc must perform such duties as are conferred or imposed upon him or her by or under this Acf or any other iaw and must obey all lawful directions whict he or she may from time to time receive from a person having the authority to give such directions.
(2) A special investigator has the powers as provided for in the Criminal Procedure Act, 1977 (Act No. 51 of 1977), which are bestowed upon a peace officer or a police official, relating t~ (a) the investigation of offences; (b) the ascertainment of bodily features of an accused person; (c) the entry and search of premises; (d) the seizure and disposal of articles; (e) arrests; (f) the execution of warrants; and (g) the attendance of an accused person in court.
(3) (a) The Minisrer may, in consultation with the Minister for Safety and Security, from time to time by notice in the Gazette bestow any power— (i) which is conferred under any other law upon any specified person or
category of persons; and (ii) which relates to the prevention, investigation or combating of any
offence or other criminal or unlawful activity, upon special investigators.
(b) Any notice referred to in paragraph (a)— (i) may from time to time be amended or rescinded by the Minister
in consultation with the Minister for Safety and Security; and (ii) must be submitted to Parliament before publication in the
Gazette.
Ministerial Coordinating Committee
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31. (1) There is hereby established a committee, to be known as the Ministerial Coordinating Committee (hereinafter referred to as the Com- 35 mittee), which may determine— (a) policy guidelines in respect of the functioning of the Directorate of
Special Operations; (b) procedures to coordinate the activities of the Directorate of Special
Operations and other relevant government institutions, including 40 procedures for— (i) the communication and transfer of information regarding matters
falIing within the operational scope of the Directorate of Special Operations and such institutions: and
(ii) the transfer of investigations to or from the Directorate of Special 45 Operations and such institutions; and
(c) where necessary— (i) the responsibility of the Directorate of Special Operations in
respect of specific matters; and (ii) the further procedures to be followed for the referral or the 50
assigning of any investigation to the Directorate of Special Operations.
(2) The Committee comprises— (a) the Cabinet members responsible for-—
(i) the administration of justice, who is the chairperson thereofi 55 (Ii) correctional services;
2(I NO. 21878 GO\’ERNME)JT G}\ ZEITE. 11 DECEMBER 2000 —
Act No. 61.2000 NATIONAL PROSEC’CKHNG AUTHORITY ,AMENDhlENT .4 CT. 2000”
(iii) defence; (iv) intelligence ser~rices: and (v) safety and security; and
(b) any other Cabinet member designated from time to time by the President.
(3) The Committee may conduct its business and proceedings at its meetings as it deems fit.”.
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Amendment of section 36 of Act 32 of 1998
15. Section 36 of the principal Act is hereby amended by the substitution for subsections (3) and (4) of the following subsections: 10
“(3) Subject to subsection (3A), the Director-General: Justice shall, subject to the [Exchequer Act, 1975 (Act No. 66 of 1975)] Public Finance Management Act, 1999 (Act No. 1 of 1999)— (a) be charged with the responsibility of accounting for State monies received or
paid out for or on account of the prosecuting authority; and 15 (b) cause the necessay accounting and other related record= be kept.
(3A) (a) The Minister must appoint a fit and proper person as the Chief Executive Officer of the Directorate of Special Operations.
(b) The Chief Executive Officer is the accounting officer of the Directorate of Special Operations and shall, subject to the Public Finance Management Act, 1999 20 (Act No. 1 of 1999)— (i) account for money received or paid out for or on behalf of the administration
and functioning of the Directorate of Special Operations; and I (ii) cause the necessary accounting and other related records to be kept.
(4) The records referred to itt subsection (3)(b) and (3A)(b) shall be audited by 25 the Auditor-General.
(5) The Director-General: Justice or, in respect of a matter dealt with by the Directorate of Special Operations, the Chief Executive Officer, may, on the 1 fecdmmendation of the National Director and with the concurrence of the Minister of Finance, order that the expenses or any part of the expenses incurred by any person in the course of or in connection with an investigation contemplated in section 28( 1 ) be paid from State funds to that person.”.
Amendment of section 38 of Act 32 of 1998
16. Section 38 of the principal Act is hereby amended by the addition of the following subsections:
“(3) Where the engagement of a person contemplated in subsection (1) will no! result in financial implications for the State— (a) the National Director; or (b) a Deputy National Director or a Director, in consultation with the Natiottai
Director, may, on behalf of the State, engage, under an agreement in writing, such person to perfo~ the services contemplated in subsection (1) without consulting the Minister as contemplated in that subsection.
(4) For purposes of this section, ‘services’ include the conducting of a prosecution under the control and direction of the National Director, a Deputy National Director or a Director, as the case may be.”.
Substitution of section 40 of Act 32 of 1998
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17. The following section is hereby substituted for section 40 of the principal Act:
:: No. 21878 GOVERNMENT GAZETTE, 1 ! DECEMBF,R 2(loo
Ad No. 61, 2000 NATIONAL PROSEC’:ITING ALH’HOFUTY ANIF;NDMENT ACT. 2000
“Regulations
40. (1) The Minisrer may, subject to subsection (2), make re~ulations prescribing— (a) matters required or permitted by this .Acf to be prescribed; (b) the steps to be taken to ensure compliance with the code of conduct
referred to in section 22(6); or (c) matters necesswy or convenient to be prescribed for carrying out or
giving effect to this Act. (2) The Minisler- may, in consultation with the National Director, make
regulations regarding the Directorate of Special Operations, prescribing— (a)
(b)
(c)
(d)
(e)
w
(g)
(h)
(i)
0)
(k)
(1)
(n) (0)
(P)
(9)
the employment, training, promo[ion, posting, transfer, leave of absence, resignation, discharge, retirement, dismissal, suspension or reduction in rank or grade of special investigators and the personnel management of those special invesrigarors in general; the standards of physical and mental fitness and the medical examination of special investigators, and the medical, dental and hospital treatment of such special investigators and their families; the provision of medical, dental and hospital treatment of special investigators who have retired on pension and their families, and of the families of special investigators who have died; the numerical establishment of the Directorate of Special Operations, the conditions of service of the special investigators thereof, the salaries, salary scales, wages and allowances of special investigators and the systems relating to the administration and determination thereof and the various structures, grades, ranks and designations in the Directorate of Special Operations; the establishment and maintenance of training institutions or centres for special investigators, and the instruction, training, discipline and control of such special investigators at such institutions or centres; all matters relating to misconduct and discipline in the Directorate oj Special Operations; the deductions to be made from the salaries, wages or allowances of special investigators; procedures to be followed in respect of cases of alleged or presumed medical unfitness; procedures to be followed in respect of cases of alleged or presumed inefficiency; the recovery from a special investigator of any deficiency, loss, damage or expense which he or she has unlawfully caused to the State; the control of funds collected or received by special investigators for the benefit of special investigators or former special investigators, or their dependants; the general management and maintenance of the Directorate oj Special Operations; the regulation of labour relations and the creation of accompanying structures; a code of conduct to be adhered to by special investigators; the establishment of procedures regarding the presentation, consider- ation and adjudication of grievances of special investigators; the establishment and functioning of a structure to which any person may report any complaint or any alleged improper conduct on the part of a special investigator of the Directorate of Special Operatiotls; any matter required or permitted in terms of this Act to be prescribed; or
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:4 No. 21878 GOVF,KN.MENT GAZETTE. I I DECEMBER 2000 .—_ —— - — — — . . _ _ — — — _ _ _ _ _ _ _ _ _
Act No. 61.2000 NATIONAL PROS EC L’T1;XG A: ITI1OR1TY AN1.H+Dhl E\’T ACT. 2000
(r) generally. all matters which we necessary or expedient to prescribe in order to promote [he rff~cient functioning of the Direc[omfe q~,Special Operations.
(3) Any regulation made in terms of this section— (a) which may result in the expenditure of State monies shall be made in
consulydtion with the Minister of Finance; (b) may provide that a contravention thereof shall be an offence; and (c) must ‘be submitted to Parliament before publication in the Gazette.”..
Insertion of section 4tlA in Act 32 of 1998
18. The following section is hereby inserted in the principal Act:
“Unauthorised access to or modification of computer material
!!X&lllWithout dero atin~— (a) ‘access to a computer’ includes access by whatever means to any
(b
program or data- contained in the random access memory of ~ computer or stored by any computer on any storage medium, whether such storage medium is physically attached to the computer or not, where such storage medium belongs to or is under the control of the prosecuting authori~; ‘contents of any computer’ includes the physical components of any computer as well as any program or data contained in the random access memory of a computer or stored by any computer on any storage medium, whether such storage medium is physically attached to the computer or not, where such storage medium belongs to or is under the control of the prosecuting authori~;
(c) ‘modification’ includes both a modification of a temporary or permanent nature; and
(d) ‘unauthorised access’ includes access by a person who is authorised to use the computer but is not authorised to gain access to a certain program or to certain data held in such computer or is unauthorised, at the time when the access is gained, to gain access to such computer, program or data.
(2) Any person is guilty of an offence if he or she wilfully-– (a) gains, or allows or causes any other person to gain, unauthorised
access to any computer which belongs to or is under the control of the prosecuting authority or to any program or data held in such a computer, or in a computer to which only certain or all members of the prosecuting authority have access in their capacity as members; or
(b) causes a computer which belongs to or is under the control of the prosecuting authority or to which only certain or all members of the prosecuting authoriry have access in their capacity as members, to perform a function while such person is not authorised to cause such computer to perform such function; or
(c) performs any act which causes an unauthorised modification of the contents of any computer which belong: to or is under the control of the prosecuting autkori~ or to which only certain or all members of the prosecuting authori~ have access in their capacity as members with the intention to- (i) impair the operation of any computer or of any program in any
computer or of the operating system of any computer or the reliability of data held in such computer; or
(ii) prevent or hinder access to any program or data held in any computer.
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26 No, 21878 (; OVERi$MF;NT GAZETTE. II DECEMBER 2MXI —— ——..—.— — — - . - . — — _ . . — — _ . . — _ _ _ _ _ _ _ _ _ _ _ _
Act No. 61.2000 NATION.AL PROSK’UTJNG AUTHORITY AMENDMENT ACT, 20WJ
(3) Any act or event for which proof is required for a conviction of an ‘ offence in terms of this section and which was committed or took place outside the Republic is deemed to have been committed or to have taken place in the Republic if–- (a) the accused was in the Republic at the time when he or she performed 5
the act or any part thereof, or (b) the computer, by means of which the act was done, or which was
affected in a manner contemplated in subsection (2) by the act, was in the Republic at the time when the accused performed the act or any part thereofi or 10
(c) the accused was a South African citizen or domiciled in the Republic at the time of the commission of the offence. ”.
Substitution of section 41 of Act 32 of 1998
19. The following section is hereby substituted for section 41 of the principal Act:
“Offences and penalties
41. (1) Any person who contravenes the provisions of section 32(l)(b) shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding [two] 10 years or to both such fine. and such imprisonment.
(2) Any person convicted of an offence referred to in section 28(10) ~ 29( 12) [or 30(2)] shall be liable to a fine or to imprisonment for a period not exceeding [fivel 15 years or to both such tine and such imprisonment.
(3) Any pe —rson who is convicted of an offence in terms of a regulation made under section 40, shall be liable to a fine or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment,
(4) Any person who is convicted of an offence referred to in section 40A(2), shall be liable to a fine or to imprisonment for a period not exceeding 25 years or to both such fine and such imprisonment.
(5) Any person who, in connection with any activity carried on by him or her, in a fraudulent manner takes, assumes, uses or publishes any name, description, title or symbol indicating or conveying or purporting to indicate or convey or which is calculated or is likely to lead other persons to believe or to infer that such activity is carried on under or by virtue of the provisions of this Act or under the patronage of the prosecuting authority, or is in any manner associated or connected with the prosecuting authori~, shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 25 years or to both such fine and such imprisonment.
(6) Notwithstanding any other law, no person shall without the permission of the National Director or a person authorised in writing by the National Director disclose to any other person— (a) any information which came to his or her knowledge in the
performance of his or her functions in terms of this Act or any other law;
(b) the contents of any book or document or any other item in the possession of the prosecuting authority; or
(c) the record of any evidence given at an investigation as contemplated in section 28(l),
except— (i) for the purpose of performing his or her functions in terms of this Ac~
or any other law; or (ii) when required to do so by order of a court of law.
(7) Any person who contravenes subsection (6) shall be gui~ty of an
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.,f- ,. No, 2187s CT) VERNMENT GAZETTE. I i DE(;EMBLR 2000
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Act No. 61, 2(KKI F! ATlt)N.\L F’ROSEL”i.’TING \UTHORITY AMENDMENT ACT, 2000
offence and liable on conviction to a fine or to imprisonment for a period / not exceeding 15 vears or to both such fine and such imprisonment.”.— . _ — _ . _ . — _ _ _ _ _ _ —
Insertion of section 43A in Act 32 of 1998
20. The following section 1s hereby inserted in the principal Act:
“Transitional arrangement relating to Investigating Directorates 5
43A. (1) Any In)estigatmg Directorate (in this section referred to as a former Investigating Directorate) which had been established prior to the
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amendment of section 7 by the National Prosecuting Authority Amendment Act, 2000, shall, as from the date of the commencement of that Act, cease to exist as a separate Investigating Directorate and become part of the Direc~orate of Special Operations.
(2) Any proclamation which had been issued under section 7 in respect of a former Investigating Directorate, prior to the amendment of section 7 by the National Prosecuting Authority Amendment Act, 2000, shall, as from the date of the commencement of that Act, be deemed to have been issued under section 7(1 ) in respect of the Directorate of Special Operations.
(3) Subject to the provisions of this Act, the Ir,vestiguting Director and staff of any former Investigating Directorate shall remain in office and continue their functions under this Act in the Directorate of Special Operations.
(4) As from the date of the commencement of the National Prosecuting Authority Amendment Act, 2000, all pending matters pertaining to any former Investigating Directorate shall be dealt with as if that Act had at all times been in force.”.
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Insertion of index in Act 32 of 1998 25
21. The following index is hereby inserted in the principal Act after the enactment clause:
“CHAPTER 1
Introductory provisions
1. Definitions
CHAPTER 2
Structure and composition of single national prosecuting authority
2. Single national prosecuting authority 3. Structure of prosecuting authority 4. Composition of prosecuting authority 5. Office of National Director of Public Prosecutions 6. Offices of prosecuting authority at seats of High Courts 7. Investigating Directorates
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CHAPTER 3
Appointment, remuneration and conditions of service of members of the 40 Prosecuting Authority
8. Prosecuting authority to be representative 9. Qualifications for appointment as National Director, Deputy National Director
or Director 10. Appointment of National Director 45 11. Appointment of Deputy National Directors 12. Term of office of National Director and Deputy National Directors 13. Appointment of Directors and ActinS Directors
30 No. 21878 GC)VERN}.IENT GA.?XTTE. ! I !lECl+tBF.R 2(Y)(J — — . — - . — .
Act No. 61, 2000 NATIONAL PROSECUTING AI ITHORITI’ AifE~~OMENT ACE 2000
14. Term of office of Direc!or 15. Appointment of Deputy Directors 16. .4ppointment of prosecutors 17. Conditions of service of National Director, Deputy National Directors and
Directors 5 18. Remuneration of Deputy Directors and prosecutors 19. Conditions of service of Deputy Directors and prosecutors, except remunera-
tion
CHAPTER 3A
Appointment, remuneration and conditions of service of special investigators 10
19A. Appointment of special investigators 19B. Security screening of special investigators 19C. Remuneration and conditions of service of special investigators
CHAPTER 4
Powers, duties and functions of members of the Prosecuting Authority 15
20. Power to institute and conduct criminal proceedings 21. Prosecution policy and issuing of policy directives 22. Powers, duties and functions of National Director 23. Powers, duties and functions of Deputy National Directors 24. Powers, duties and functions of Directors and Deputy Directors 25. Powers, duties and functions of prosecutors
CHAPTER 5
Powers, duties and functions relating to Investigating Directorates
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26. 27. 28. 29. 30. 31.
32. 33. 34. 35. 36. 37. 38. 39. 40. 40A, 41. 42.
43. 43A. 44.
Application Reporting of matters to Investigating Director 25 Investigations by Investigating Director Entering upon premises by Investigating Director Powers and functions of special investigators Ministerial Coordinating Committee
CHAPTER 6 30
General provisions
Impartiality of, and oath or affirmation by members of prosecuting authority Minister’s final responsibility over prosecuting authority Reports by Directors Accountability to Parliament 35 Expenditure of prosecuting authority Administrative staff Engagement of persons to perform services in specific cases Disclosure of interest and non-performance of other paid work Regulations Unauthorised access to or modification of computer material Offences and penalties Limitation of liability
CHAPTER 7
Transitional arrangements
Transitional ?rrangemerits Transitional arrangement relating to Investigating Directorates Amendment or repeal of laws
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Ac( No. 61, 2000” NAT1ONAL i’KOSE!21.JTING ,~.~ IHOR!T’}’ \MENl>kl ENT ACT. 2000”
‘$5. Interpretdticm c~f cert:iin references in ]:iws 46. Short title and cmmmcncement
Schedul+Laws amended or repealed by section 44”’.
.4mendment of section 1 of Act 127 of 1992, as amended by section 32 of Act 38 of 1994, section 1 of Act 77 of 1995 and section 13 of Act 34 of 1998 5
22. Section 1 of the Interception and Monitoring Prohibition Act, 19!)2. is hereby amended—
(a) by the insertion after the definition of “Agency” of the following definition: “ ‘Directorate’ means the Directorate of Special Operations referred to in—.— section 1 of the National Prosecuting Authority Ac~1998 (Act No. 32 of 10 1998);”; and
(b) by the addition to the definition of “serious offence” of the following paragraph: “~c&ed offence as defined in section 1 of the National prosecuting
Authority Act, 1998 (Act No. 32 of 1998);”. 15
Amendment of section 3 of Act 127 of 1992, as amended by section 32 of Act 38 of 1994, section 4 of Act 18 of 1996 and section 15 of Act 34 of 1998
23. Section 3 of the Interception and Monitoring Prohibition Act, 1992, is hereby amended by the addition in subsection (2) of the following paragraph:
“(d) for the purposes of the matters referred to in subsection (1)(b) or 20 subsection (4), be made by the head of the Directorate, or by an— — . . Investigating Director authorised in writing by the head of the
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Directorate to make such an application.”.
Amendment of section 4 of Act 127 of 1992, as amended by section 32 of Act 38 of 1994, section 4 of Act 18 of 1996 and section 16 of Act 34 of 1998 25
24. Section 4 of the Interception and Monitoring Prohibition Act, 1992, is hereby amended—
(a) by the substitution for subsection (1) of the following subsection: “(l) If a direction has been issued in terms of section 3, any member of the
Force as defined in section 1 of the South African Police Service Act, 1995 30 (Act No. 68 of 1995), or a member, excluding a member of a visiting force, as defined in section 1 of the Defence Act, 1957 (Act No. 44 of 1957), a member of the Directorate or a member of the Agency or the Service may execute that direction, provided that the member concerned has been authorized by the officer or member who made the application in terms of section 3(2) to 35 execute that direction or to assist with the execution of the direction concerned.”; and
(b) by the addition to paragraph (b) of subsection (2) of the following subparagraph: “(iv) the head of the Directorate or an Investigating Director of the 40
Directorate,”.
Amendment of section 5 of Act 127 of 1992, as amended by section 32 of Act 38 of 1994, section 4 of Act 18 of 1996 and section 17 of Act 34 of 1998
25. Section 5 of the Interception and Monitoring Prohibition Act, 1992, is hereby amended by the substitution for subsection (2) of the following subsection: 45
“(2) If a person, body or organization has made a facility, device or telecommunications line available for the purposes mentioned in subsection(1)(b), the remuneration agreed upon by the person or organization and the NTationai Commissioner of the South African Police Service, the Chief of the South African National Defence Force~e head of the Directorate, or the Director-General of the 50 Agency or the Service, as the case may be, shall be paid to that person, body or
organization.”.
34 No. 2[878 GOVERNMENT GAZEI-l%. I I DECEMBER 2000 ——— . . — — — — - — — — . - — - — — — . . — — — _ — _ _ — _ . — _ _ _ _
Act No. 61, 2000 NATIONA!- PROSECIJTING AUTF1OR1TY AMENDMENT ACT. 2000
Short title and commencement
26. This is the National Prosecutirtg Authority Amendment Act, 2000, and comes into operation on a date fixed by the President by proclamation in the Gazette.