National Prosecuting Authority Amendment Act

1. Section 1 of the National P r o s e c u t i ng Authority Act, 1998 (hereafter referred to as the principal A c t ), is a m e n d e d— (a) (b) by the deletion of the definition of "Directorate by the substitution for the definition of "head of an Investigating of the following definition: of Special Operations"; Directorate" 'head of an Investigating " Director referred to in section 7(3)(b)[,as t he c a se m ay b e ] . ": Directorate' referred to in section 7(3)(a), or] an Investigating m e a ns [the Deputy National Director (c) (b) (d) (e) the substitution by following definition: for the definition of "Investigating Director'' of the 'Investigating " (a) m e a ns a Director of Public P r o s e c u t i o ns appointed under section Director' — 1 3 ( l ) [ ( a A) or](b)[— (i) to t he Directorate of Special Operations; (ii)] as the head of an Investigating Directorate or established in t e r ms of section 7 ( 1) [ ( 1 A ), as the c a se m ay b e ]; and of Special referred to in section 13( 1). designated by the National Operations] in C h a p t er 5. i n c l u d es [the h e ad of the Directorate Director any Director to conduct an investigation in t e r ms of section 28 in r e s p o n se to a request in t e r ms of section 17D(3) of the South African Police Service Act. 1995 (Act N o. 68 of 1995). by for Priority C r i me I n v e s t i g a t i o n ; "; by the deletion of the definition of "special by the substitution for the definition of "specified definition: and of the following the Directorate the H e ad of investigator"; offence" Act No. 56, 2008 NATIONAL PROSECUTING AUTHORITY AMENDMENT ACT, 2008 'specified offence' m e a ns any matter which in the opinion of the head " the range of matters as of an Investigating or a ny p r o c l a m a t i on issued in c o n t e m p l a t ed in [section l(l)(a)(aa) t e r ms of section 7(l)(a)(bb) or ( 1 A )] section 7( 1). and any reference to the c o m m i s s i on of a specified offence has a c o r r e s p o n d i ng m e a n i n g ; ". falls within Directorate A m e n d m e nt of section 5 of Act 32 of 1998, as a m e n d ed by section 3 of A ct 61 of 2 0 00

2. Section 5 of the principal Act is a m e n d ed by the deletion in subsection (2) of paragraph (dA). S u b s t i t u t i on of s e c t i on 7 of A ct 32 of 1998, as s u b s t i t u t ed by s e c t i on 4 of A ct 61 of 2 0 00

3. T he following section is substituted for section 7 of the principal Act: "Investigating D i r e c t o r a t es 7. (1) [(a) T h e re is h e r e by e s t a b l i s h ed in the Office of the National Director an Investigating D i r e c t o r a t e, to be k n o wn as t he D i r e c t o r a te of Special O p e r a t i o n s, w i th t he a im t o— (i) investigate, and to carry o ut any f u n c t i o ns incidental to investiga­ tions; (ii) gather, k e ep a nd analyse i n f o r m a t i o n; a nd (iii) w h e re a p p r o p r i a t e, institute c r i m i n al p r o c e e d i n gs a nd c a r ry out any n e c e s s a ry functions incidental to instituting c r i m i n al p r o c e e d­ ings, relating t o— (aa) offences or any c r i m i n al or unlawful activities c o m m i t t ed in an o r g a n i s ed fashion; or (bb) such o t h er offences or categories of offences as d e t e r m i n ed by the President by p r o c l a m a t i on in the Gazette. (b) F or the p u r p o se of s u b p a r a g r a ph f a s h i o n' i n c l u d es the p l a n n e d, o n g o i n g, c o n t i n u o us or r e p e a t ed p a r t i c i p a t i o n, i n v o l v e m e nt or e n g a g e m e nt in at least t wo i n c i d e n ts of c r i m i n al or unlawful c o n d u ct i n t e n t s, results, a c c o m p l i c e s, v i c t i ms or m e t h o ds of c o m m i s s i o n, or o t h e r w i se are related by d i s t i n g u i s h i ng c h a r a c t e r i s t i c s. t he s a me or similar ' o r g a n i s ed that h as (aa), ( 1 A )] T he President may, by p r o c l a m a t i on in the Gazette, establish [not m o re t h an t wo a d d i t i o n a l] one or more Investigating Directorates in the Office of the National Director, in respect of [ m a t t e rs not c o n t e m p l a t ed in s u b s e c t i on (l)(aa) or (bb)] such offences or criminal or unlawful activities as set out in the proclamation. (2) Any proclamation issued in t e r ms of this s e c t i o n— (a) shall be issued on the r e c o m m e n d a t i on of the Minister, m e m b er responsible for policing and the National Director, the Cabinet (b) may at any time be a m e n d ed or rescinded by the President on the the Cabinet m e m b er r e s p o n s i b le for r e c o m m e n d a t i on of the Minister, policing and the National Director, and (c) must be submitted to Parliament before publication in the Gazette. (a) (b) of Special Operations, assigned by the N a t i o n al D i r e c t o r; a nd (3) T he head o i l- the Directorate Director, a ny o t h e r] an Investigating Directorate, shall be an Director, Directorate Investigating directions of the National Investigating and shall perform the p o w e r s, duties and functions of the and c o n c e r n ed Director. shall be a Deputy the control subject National to Act No. 56, 2008 NATIONAL PROSECUTING AUTHORITY AMENDMENT ACT. 2008 (4) (a) T he head of an Investigating Directorate shall be assisted in the exercise of his or her p o w e rs and the p e r f o r m a n ce of his or her functions b y- (i) [in t he case of— (aa) of Special Operations, the Directorate a nd o ne or m o re Deputy Directors; ing Directors any o t h er I n v e s t i g a t i ng D i r e c t o r a t e ,] one or m o re Deputy Directors; o ne or m o re Investigat­ a nd (bb) (ii) [(HA) prosecutors; the c a se of t he Directorate in investigators;] of Special Operations, special (iii) officers of any D e p a r t m e nt of State seconded to the service of the in terms of the laws g o v e r n i ng the public Directorate Investigating service; (iv) persons (v) (i) (ii) in the service of any public or other b o dy w ho are by a r r a n g e m e nt with the body c o n c e r n ed seconded to the service of the Investigating Directorate; any other person w h o se services are obtained by the head of Investigating Directorate, and the their and the persons referred to in s u b p a r a g r a p hs (i) to (v) shall perform p o w e r s, duties and functions subject to the control and direction of the head of the Investigating c o n c e r n e d. Directorate to (a)— in writing (b) For the purposes of s u b p a r a g r a p hs (iv) and (v) of p a r a g r a ph requested by to do so, shall the head from Investigating time, after furnish of an time Directorate, any person or b o dy Directorate consultation with the head of an Investigating him or her with a list of the n a m es of p e r s o n s, in the e m p l oy or u n d er the control of that person or body, w ho are fit and available to assist the head of that Investigating subparagraph (iv) or (v), as the case m ay be; and such a person or body shall, at the request of, and after consultation with, the head of the Investigating Directorate person or persons mentioned in the list c o n c e r n ed so to assist the head of the Investigating c o n c e r n e d, d e s i g n a te a as c o n t e m p l a t ed Directorate.". in the said Directorate A m e n d m e nt of section 13 of A ct 32 of 1998, as a m e n d ed by s e c t i on 6 of A ct 61 of 2 0 00

4. Section 13 of the principal A ct is a m e n d ed by the deletion in subsection (1) of p a r a g r a ph (aA). Repeal of C h a p t er 3A of A ct 32 of 1998

5. C h a p t er 3A of the principal Act is repealed. A m e n d m e nt of section 23 of Act 32 of 1998, as a m e n d ed by s e c t i on 9 of A ct 61 of 2 0 00

6. Section 23 of the principal Act is a m e n d ed by the deletion of subsection (2). A m e n d m e nt of s e c t i on 26 of Act 32 of 1998, as s u b s t i t u t ed by section 10 of A ct 61 of 2 0 00

7. Section 26 of the principal Act is a m e n d ed by the substitulion for subsection (2) of the following subsection: " ( 2) N o t h i ng in this C h a p t er or [section 7 ( 1 ), or a ny p r o c l a m a t i on issued in t e r ms of] section 7. d e r o g a t es from any p o w er or duty which relates the prevention, c o m b a t i ng or investigation of any offences and w h i ch is b e s t o w ed upon the South African Police Service in t e r ms of any l a w . ". to Act No. 56, 2008 NATIONAL PROSECUTING AUTHORITY AMENDMENT ACT. 2008 A m e n d m e nt of s e c t i on 28 of A ct 32 of 1998, as substituted by s e c t i on 12(a) of A ct 61 of 2 0 00

8. Section 28 of the principal Act is a m e n d ed by the substitution for p a r a g r a ph (a) of subsection (2) of the following paragraph: Director may, "(a) T he Investigating if he or she decides to c o n d u ct an investigation, investigation at any time prior to or during the c o n d u c t i ng of the designate any person referred to in section 7(4)(a) or, in the case of an investigation requested by the H e ad of the Directorate for Priority C r i me Investigation in t e r ms of section 17D(3) of the South African Police Service Act. 1995 (Act N o. 68 of authority or a m e m b er of that D i r e c t o r a t e, to 1995). any m e m b er of the prosecuting c o n d u ct the investigation, or any part thereof, on his or her behalf and to report to him or her.". Repeal of s e c t i o ns 30 a nd 31 of A ct 32 of 1998

9. Sections 30 and 31 of the principal A ct are repealed. A m e n d m e nt of section 36 of Act 32 of 1 9 9 8, as a m e n d ed by section 15 of A ct 61 of 2 0 00

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 subsection: " ( 3) [ S u b j e ct to s u b s e c t i on ( 3 A ), t h e] T he D i r e c t o r - G e n e r a l: Justice shall, subject to the Public Finance M a n a g e m e nt Act, 1999 (Act No. 1 of 1 9 9 9 )— ' (a) be charged with the responsibility of a c c o u n t i ng for State m o n i es received or paid out for or on account of the prosecuting authority; and c a u se the necessary accounting and other related r e c o r ds to be k e p t . "; (b) (b) (c) by the deletion of subsection ( 3 A ); by the substitution for subsection (4) of the following subsection: " ( 4) T he records referred to in subsection (3)(b) [and (3A)(b)] shall be audited by the A u d i t o r - G e n e r a l . "; and (d) by the substitution for subsection (5) of the following subsection: the r e c o m m e n d a t i on of " ( 5) T he Director-General: Justice [or, in respect of a m a t t er d e a lt w i th by the D i r e c t o r a te of Special O p e r a t i o n s, the C h i ef E x e c u t i ve Officer,] may, on the c o n c u r r e n ce of the Minister of F i n a n c e, order that the e x p e n s es or any part of the e x p e n s es incurred by any person in the course of or in c o n n e c t i on with an investigation c o n t e m p l a t ed in section 28 (1) be paid from State funds to that p e r s o n . ". the National and with Director A m e n d m e nt of section 40 of A ct 32 of 1 9 9 8, as s u b s t i t u t ed by section 17 of A ct 61 of 2 0 00

11. Section 40 of the principal A ct is a m e n d e d— (a) by the substitution for the words p r e c e d i ng paragraph (a) of subsection (1) of the following w o r d s: " T he Minister m a y [, subject to s u b s e c t i on (2),] m a ke regulations p r e s c r i b i n g — "; and (b) by the deletion of subsection (2). A m e n d m e nt of section 43 of A ct 32 of 1998

12. Section 43 of the principal Act is a m e n d ed by the deletion of s u b s e c t i on (7). Act No. 56, 2008 NATIONAL PROSECUTING AUTHORITY AMENDMENT ACT. 2008 S u b s t i t u t i on of section 4 3A of A ct 32 of 1998

13. T he following section is substituted for section 4 3A of the principal Act: "Transitional a r r a n g e m e n ts relating to D i r e c t o r a te of Special O p e r a­ tions 4 3 A. (1) In this s e c t i o n— (a) any w o rd or expression in respect of which a specific m e a n i ng has been assigned by the South African Police Service Act, 1995 (Act N o. 68 of 1995). has the s a me m e a n i n g; and (b) 'fixed d a t e' m e a ns a date p r o c l a m a t i o n. to be d e t e r m i n ed by the P r e s i d e nt by (2) Prior to a date d e t e r m i n ed by the National Director, the Directorate e m p l o y ed by National Director w h e t h er they consenl African Police Service. of Special Operations m u st to be transferred any person the inform to the South (3) As from the fixed d a t e— (a) (b) any person, w ho i m m e d i a t e ly before the fixed date held the office of is and w ho has c o n s e n t ed special transferred to the South African Police Service and b e c o m es a m e m b er of the South African Police Service; and investigator transfer, the to such a d m i n i s t r a t i ve and support personnel e m p l o y ed by the Director­ ate of Special Operations Director South African Police Service. as m ay be agreed upon b e t w e en the National to the and the National C o m m i s s i o n e r, may be transferred (4) (a) An e m p l o y ee c o n t e m p l a t ed in subsection (3) m ay be transferred to the South African Police Service only with his or her c o n s e n t. (b) T he r e m u n e r a t i on and other terms and c o n d i t i o ns of e m p l o y m e nt of e m p l o y e es transferred in terms of subsection (3) m ay not be less favourable than those that applied i m m e d i a t e ly before their transfer. (c) T he transfer c o n t e m p l a t ed in subsection (3) d o es not interrupt the e m p l o y e e s' continuity of e m p l o y m e nt and the e m p l o y e es r e m a in entitled to all rights and benefits, including pension benefits and privileges to which they were entitled to i m m e d i a t e ly before transfer. (5) (a) An e m p l o y ee referred to in subsection (3) w ho does not consent to be transferred to the South African Police Service must, prior to the date thereof in writing. referred to in subsection (2), notify the National Director (b) In respect of such an e m p l o y e e, the National Director m a y— (i) after consultation with and to a the Minister the Cabinet m e m b e rs responsible for the public service and for finance, offer to transfer the in any e m p l o y ee g o v e r n m e nt d e p a r t m e nt or state in a c c o r d a n ce with subsection {4)(b) and (c) and section 14 of the Public S e r v i ce Act, 1994 (Proclamation N o. 103 of 1994), shall, unless the context indicates o t h e r w i s e, apply to such a transfer; or reasonable alternative post or position institution (ii) after consultation with the Minister, offer to transfer the e m p l o y ee to a authority. in a c c o r d a n ce with r e a s o n a b le alternative post or position in the prosecuting other subsection (4)(b) and than any post of special investigator, (c). (c) If the e m p l o y ee d o es not accept the offer m a de in paragraph (b) within automatically the e m p l o y e e 's e m p l o y m e nt 30 d a ys of it being m a d e, terminates on the fixed date. (d) An e m p l o y ee w h o se e m p l o y m e nt is terminated in t e r ms of p a r a g r a ph in for the Minister the C a b i n et m e m b e rs for the public service and to a s e v e r a n ce p a c k a ge d e t e r m i n ed by is entitled (c) consultation with finance. (e) T he s e v e r a n ce p a c k a ge provided for in p a r a g r a ph (d) m ay not be less favourable than the s e v e r a n ce p a c k a ge provided for in the D e t e r m i n a t i on on the Introduction of an Employee-Initiated S e v e r a n ce P a c k a ge for the Public Service d e t e r m i n ed in terms section 3 of the Public S e r v i ce A c t. 1994. Act No. 56, 2008 NATIONAL PROSECUTING AUTHORITY AMENDMENT ACT, 2008 (f) A ny dispute arising from this section in so far as e m p l o y e es are c o n c e r n ed must be referred to the L a b o ur Court for determination. the interpretation or application of the e m p l o y er (6) A ny decisions m a d e, directions issued and any p r o c e e d i n gs instituted by in respect of an e m p l o y ee referred to in subsection (3). r e m a i ns a p p l i c a b le to him or her and must be i m p l e m e n t ed or finalised as if the National P r o s e c u t i ng A u t h o r i ty A m e n d m e nt Act, 2 0 0 8, has not been passed. i m m e d i a t e ly before the fixed date of Special Operations (7) A ny m e m b er of the prosecuting authority w ho w as e m p l o y ed in the i m m e d i a t e ly before the fixed date, shall Directorate and shall c o n t i n ue to be e m p l o y ed in the Office of the National Director, exercise, carry out and perform his or her p o w e r s, duties and functions as conferred, i m p o s ed or assigned to him or her by the National Director and subject to the control and directions of the National Director or a p e r s on authorised thereto by the National Director. (8) T he National Prosecuting Authority A m e n d m e nt Act. 2 0 0 8, does not of before the fixed date, including any functions incidental the validity of any investigation p e r f o r m ed by the Directorate affect Special Operations to such investigations or the institution of any c r i m i n al p r o c e e d i n g s. (9) (a) Investigations by the Directorate of Special Operations that are p e n d i ng i m m e d i a t e ly before the fixed date must, on that date, be transferred to and c o n t i n u ed by the Directorate for Priority C r i me Investigation in a c c o r d a n ce with a m e c h a n i sm to ensure that the investigations are not prejudiced by the transfer. (b) T he Minister, after consultation with the National Director sioner, must determine the m e c h a n i sm referred to in p a r a g r a ph in consultation with the Cabinet m e m b er for police and a nd the National C o m m i s­ (a). authority, as a result of any investigation (10) As from the fixed date any liability incurred by the Directorate of by that D i r e c t o r a t e, shall Special Operations pass to the prosecuting in consultation with the C a b i n et m e m b er for police, in a specific instance d e t e r m i n es o t h e r w i s e. that has been instituted u n d er section 28 by the Directorate and all steps taken as a result of such an in investigation, c o n s e q u e n ce of the application of section 17D(3) of the S o u th African Police Service Act. 1995. for Special Operations, shall be d e e m ed (11) (a) A ny investigation unless the Minister to h a ve b e en instituted or taken (b) T he Head of the Directorate for Priority C r i me Investigation may, at any lime after the fixed date, w i t h d r aw such a request. (c) T he National Director must designate a Director in respect of e a ch referred to in p a r a g r a ph (a), w ho must assist the Directorate of investigation Priority C r i me Investigation in carrying out such an investigation. ". A m e n d m e nt of P r e a m b le to A ct 32 of 1998, as s u b s t i t u t ed by s e c t i on 1 of A ct 61 of 2 0 00

14. T he P r e a m b le to the principal Act is a m e n d ed by the deletion of the ninth, tenth and eleventh p a r a g r a p h s. S h o rt title a nd c o m m e n c e m e nt

15. This Act is called the National Prosecuting Authority A m e n d m e nt Act. 2 0 0 8, and c o m es into operation on a date d e t e r m i n ed by the President by p r o c l a m a t i on in the Gazette.