Attorney-General: Bisho - Adv LJ Langeveld
OFFICE OF THE ATTORNEY-GENERAL: BISHO
NATIONAL PROSECUTING AUTHORITY BILL YOUR LETTER DATED 25 OCTOBER 1996 REFERS
Due to time constraints I have been unable to make an in-depth and analytical study of the draft Bill.
My commentary on the draft Bill must be seen against my sincere belief that it is of the utmost importance that the prosecuting service must be delinked from the civil service as a matter of urgency. In my view this process should not be delayed by the more controversial parts of the draft Bill and the discussions thereon.
THE NATIONAL PROSECUTING AUTHORITY
In order to enable the National Director to carry out his functions and to exercise his powers, it is essential that provision be made for the appointment of legally qualified persons on his staff.
Clause 3(5) of the Bill is not only controversial but will have far-reaching consequences. In my submission this section is ill-advised and will inevitably lead to such representatives being regarded as "spies". The appointment of such representatives will interfere or at least perceive to interfere with the independence of the Directors. A further shortcoming is the fact that these representatives need not be legally qualified.
OFFICES OF THE DIRECTORS
State Advocates are generally horrified by the idea that they will be titled prosecutors. It is my view that the professional staff in a Director's office should at least maintain their status and that they should rather be referred to as advocates. The present distinction between state advocates and prosecutors should remain - it is obvious that they fulfil a different function. I fear that the further lowering of the status of state advocates will lead to even more resignations, and it is common cause that the prosecuting service can ill-afford to loose experienced and dedicated state advocates. The following clauses will have to be amended to make specific provision for advocates: 1 (definition); 4(2); 5. (2) (b) ; and 7(1) (f)-(k)
POWERS, DUTIES AND FUNCTIONS OF DIRECTORS AND DEPUTY DIRECTORS
It is suggested that provision be made for advocates (i.e. professional members of the Director's staff) to perform civil work as well.
A serious problem in my area of jurisdiction is that instructions given to members of the police amount to no more than requests to comply therewith, as I have no real authority over the police. I would accordingly suggest that provision be made for Directors to have the power to issue instructions to the police, which instructions the police will then have to comply with. Clause 11(2)(c) could be amended accordingly. The solution to this problem may lie in providing for a number investigators to be part of the Directors offices.
REMUNERATION AND CONDITIONS OF SERVICE
It is submitted that no sound reason exists for. the differentiation in the process of determining the remuneration of the various members of the prosecuting authority. It is submitted that provision for the remuneration of deputy directors, advocates and prosecutors should be included under clause 14. 1n my submission there can be no justification for "consultation with the Public Service Commission" as is required by clause I5.(1) in determining the remuneration of deputy directors, advocates and prosecutors. Their remuneration should be determined by parliament.
It is further suggested that specific provision be made for participation in a motor vehicle finance scheme or the payment of a motor vehicle allowance (such a scheme or allowance should include persons who currently hold the rank of senior state advocate)
It is also suggested that the administrative staff should be delinked from the civil service, as was done in the case of the Auditor-General. In my view public interest requires the offices of the Directors and prosecutors to be independent in all respects.
ADV. L J LANGEVELD