Attorney-General: Eastern Cape - Adv LJ Roberts

ATTORNEY-GENERAL: EASTERN CAPE

COMMENT ON NATIONAL PROSECUTING AUTHORITY BILL, 1997

I have the following comment on this Bill:

1. There ought to be qualifications spelt out for the National Director: see the U.N. Guidelines on the Role of Prosecutors. Similarly, the appointment procedure ought to be set out in the Bill.

2. Ad section 9 (9)

This subsection leaves open the problem of what happens if an officer in the public service is appointed National Director, and the period of appointment (either first or renewed) expires before the normal public service retirement age, I suggest that following insertion after the words "do not apply" in the fourth line of the subsection (new parts underlined)

" ... or if the term of office of such National Director has ended and is not renewed, he or she shall, as from the date on which he or she is so appointed, or on which his or her term of office ends, as the case may be ... "

By virtue of section 13(3) , this provision will also cover the position of Directors. This provision should, in my view, fairly deal with the position of present incumbents, as well as future incumbents who were previously in the public service, whose originally envisaged period of pensionable service is thus truncated.

A similar approach is already in place for Directors- General and Commissioners of Police: see:

i) section 16(3) of the Public Service Act, 1994

ii) section 45(4) of the South African Police Service Act, 68 of 1995.

3. Ad section 12 (1) (a)

The phrase "two or three Directors" can cause problems. It seems to indicate that the President may appoint 0, 2 or 3 Directors, but not 1. I suggest that it be altered to read "a maximum of three Directors..."

4. ad section 29

This section in its present form leaves certain matters open which could result in anomalies and uncertainties. It does not provide for the situation of present incumbents who may already have served a period of seven years, nor does it state that the existing incumbents shall be deemed to have been appointed for seven years. It should be noted that there is no fixed period of office for appointees, only a maximum period. I suggest the following amendments to render the provisions workable:

i) Section 29(2) (a): adding the following at the end:


"... provided that if that term has already expired when this Act takes effect, or shall expire within six months of the date when this Act takes effect, it shall be deemed to expire on a date six months after this Act takes effect."

Note: There will be considerable uncertainty if incumbents' terms are terminated without sufficient time to arrange an orderly transition) -

ii) Section 29(2) (b) : adding the following at the end:

" ... and the period of the term shall be deemed to be seven years."

ADDITIONAL COMMENTS

1. This comment is confined to technical issues in section 29.

2. Section 29(1)(a) provides that incumbents holding office as attorney-general and who were appointed in the rank of attorney-general (my underlining) when the new Act becomes law, become directors. The additional requirement that such persons have to hold the rank of attorney-general in order to become directors seems to be intended to prevent persons currently holding office as attorney-general in the former TBVC territories, but who are still in the public service on lower scales and ranks, from becoming directors by the back door, as it were.

3. The problem with the present formulation is that, strictly speaking, there is no rank of attorney-general. There used to be a rank of attorney-general in the public service prior to the commencement of the Attorney-General Act, 92 of 1992, but from the commencement of that Act, RSA attorneys-general were no longer in the formal public service, and the rank of attorney-general in the public service then fell away.

4. When South Africa was reunified on 27 April 1994, the various laws in the various territories governing the appointment, powers, etc, of attorneys-general continued to operate, as did all the other laws of the territories forming the new South Africa. The Justice laws of the old RSA and TBVC territories were consolidated by the Justice Laws Rationalisation Act, 18 of 1996. This Act, for example, led to the application of the Criminal Procedure Act, 51 of 1977, of the old RSA throughout the new South Africa. The position of the attorneys-general of the former TBVC territories was specifically excluded from the rationalisation process: see section 9 of that Act.

5. I suggest that section 19(2) of the South African Revenue Service Act be used as the model for dealing with the position of present and future incumbents of posts of Director and National Director. The Commissioner for Inland Revenue is perhaps the most appropriate of these officials to use for purposes of comparison, as that post was previously within the main public service and has now, like that of attorneys-general, the National Director and Directors, been lifted out of it. I recommend that this be done by adding a subsection (4) to section 18, which deals with the conditions of service of the National Director and Directors:

"(4) The National Director and a Director are entitled to the pension and retirement benefits calculated on the same basis as those of a head of department in the public service."

6. If the National Director and Directors are to be treated similarly to the Commissioner for Inland Revenue, Directors-General and Police Commissioners for pension purposes, there should be an express provision to make it clear that the period already served by present incumbents in their present posts counts as service as a head of department in the public service for purposes of pension computation. Otherwise there may be uncertainty about the interpretation of Rule 14.2.3 of Schedule 1 to the Government Employees Pension Law, 1996, which deals with the computation of pensionable service. If the Bill intends converting present incumbents to fixed-period appointees, and backdating the commencement of such period, it is only fair that such backdating should also result in the backdated period being counted as service as a read of department.

FURTHER COMMENT ON THE NATIONAL PROSECUTING AUTHORITY BILL, 1997

1. This further comment is confined to two issues:

a) the proper provision of pensions for the National Director and Directors whose terms of office expire;

b) the position of present attorneys-general who will have served more than seven years in their present posts by the time the National Prosecuting Authority Bill, 1997, becomes law and is put into operation.

2. The Bill at present provides that a National Director or Director who is appointed from the ranks of the public service continues to fall under the same pension laws as when he or she was in the public service: see sections 18(3) and 29(6). The problem is that those pension laws envisage a retirement age of 65, whereas a National Director or Director whose term or terms of office has expired could well be younger than 65. There will have to be some provision to deal with this situation. This provision will have to deal adequately with the position of future applicants for such positions who are within the public service, who may otherwise be unwilling to face the prospect of early retirement, as well as present incumbents who find their employment prospects unilaterally truncated at a stage when it is too late for them to take remedial action. Present incumbents assumed duty on the basis of working until 65, and planned their futures accordingly, whereas they now face the prospect of premature unemployment after a period of seven years, the commencement of which is backdated by a number of years in all cases: see section 29(2).

3. The Bill is silent on pensions for new appointees as National Director or Director who come from outside the public service. Perhaps the intention is that pensions for such persons be part of the "...terms and conditions of service and service benefits..." which the President determines under section 18(1). In my view it would be undesirable to leave an important item such as pension benefits subject to this type of uncertainty. There is also the point that section 20 of the Government Employees Pension Law, 1998. does not permit the award of pension from the government pension fund on any basis or scale other than that provided for in that Law or an Act of Parliament.

4. In my view there are a number of relevant recent precedents for dealing with the pension position of persons who are appointed to top government positions for a fixed term.

See: - section 18(3) of the Public Service Act, 1994 (dealing with Directors- General);

- section 45(4) of the South African Police Service Act. 68 of 1995 (dealing with National and Provincial Police Commissioners);

- section 19(2) of the South African Revenue Service Act, 34 of 1997 (dealing with the Commissioner for Inland Revenue).

In each use the prospect of a shortened career is tempered by the addition of a further period of deemed service to the actual period served, according to a formula.

5. I suggest that section 19(2) of em South African Revenue Service Act be used as the model for dealing with the position of present and future incumbents of posts of Director and National Director. The Commissioner for Inland Revenue is perhaps the most appropriate of these officials to use for purposes of comparison, as that post was previously within the main public service and has now, like that of attorneys-general, the National -Director and Directors, been lifted out of it. I recommend that this be done by adding a subsection (4) to section 18, which deals with the conditions of service of the National Director and Directors:

"(4) The National Director and a Director are entitled to the pension and retirement benefits calculated on the same basis as those of a head of department in the public service."

6. It the National Director and Directors are to be treated similarly to the Commissioner for Inland Revenue. Directors-General and Police Commissioners for pension purposes, there should be an express provision to make it clear that the period already served by present incumbents in their present posts counts as service as a head of department in the public service for purposes of pension computation. Otherwise there may be uncertainty about the interpretation of Rule 14.2.3 of Schedule 1 to the Government Employees Pension Law, 1996 which deals with the computation of pensionable service. If the Bill intends converting present incumbents to fixed-period appointees, and backdating the commencement of such period, it is only fair that such backdating should also result in the backdated period being counted as service as a head of department.

Because the maximum period of the initial term for which the President can appoint a Director is seven years (see section 13(1)) it would be appropriate for the period from a present incumbent's date of appointment in his/ her present post to the date on which that term expires by virtue of motion 29(2) to be regarded as seven years, for the purpose of calculating service as a head of department.

I suggest adding to notion 18 the following as subsection (5):

"18(5) For the purposes of pension calculations the period for which the National Director or a Director shall be considered to have held office as a head of department in the public service is the sum of the terms of his or her tenure of office as National Director or Director: provided that an attorney-general who becomes a Director by virtue of section 29(1) shall be deemed to have held office as a head of department in the public service for a period of seven yearn when his or her initial term, as determined by section 29(2). Expires"

This wording also makes it clear that an appointee who is reappointed is considered to be in office for a continuous period from the start of the first period to the end of the second.

7. The other problem I seek to address is that of a present incumbent whose period of seven years from date of appointment in his or her present office will have expired by the time the Bill becomes law and is put into operation or will expire shortly thereafter. Depending on the correct interpretation of section 29(2)(b), and on when the eventual Act comes into operation, at least one of the present attorneys-general will have served more than seven years in his present office by that time.

There will be much uncertainty and confusion if such an incumbent automatically ceases to be in office without there being proper opportunity for the consideration of a possible reappointment, or the appointment of a successor, or even a decent period of notice so that he can wind up his affairs and provide for orderly transition. I suggest that six months would be adequate time for these matters to be properly managed. The following addition to action 29(2)(a) should suffice:

" ... provided that if that term has already expired when this Act takes effect, or shall expire within six months of the date when this Act takes effect, it shall be deemed to expire on a date six months after this Act takes effect."

8. Because a term of office under section 13 is not a rigid period, but has a maximum duration of seven years, it should also be made clear that, for the purposes of section 29(2), the period is regarded as seven years. I suggest the following addition to action 29(2)(b) to achieve this:

" ... and the period of the term shall be deemed to be seven years."

9. These proposals attempt to deal with the position of present incumbents who were appointed under the Attorney- General Act. 92 of 1992, as well as future appointees. They may not cover the position of the Attorney-General of the former Bophuthatawana, Adv. Johan Smit, who was appointed on a different basis. He has been advised to submit proposals for his own case should he so choose.