Attorney-General: Transkei - Adv C Nel
NATIONAL PROSECUTING AUTHORITY BILL.
1. THE PROBLEM
Neither section 29(1 )(a), nor 29(1 )(b) (nor, for that matter 29(3) provides for the status, under the new Act, or an Officer such as myself.
5.29(1 )(a) reads
"Anyone holding office as an attorney-general and who was appointed in the rank of attorney-general when this Act took effect, becomes a Director under this Act
"Anyone holding office as an acting attorney-general when this Act took effect, becomes an acting Director under this Act
"Any person who immediately before the commencement of this section was employed as a deputy attorney-general shall be deemed to have been appointed as a Deputy Director
It will be readily apparent that there 5 a hybrid situation, not covered by the Transitional arrangements of Section 29 what of an officer, such as myself, who was holding the office, constitutionally, of attorney-general, without having been "appointed in the rank" (Sic!)?
I was appointed in 1987 to the office of attorney-general. Transkei, in terms of the Transkeian Constitution, 1976.
My rank in South Africa when seconded to Transkei, was that of deputy attorney-general.
When the Constitution Acts determined that "every attorney-general holding office immediately before the commencement of this constitution in terms of a law shall continue to hold such office in accordance with such law"
- Interim Constitution, Section 241(4) - it continued a certain legal regime until the 1996 Constitution which, by virtue of Item 18(2) of SCHEDULE 6, provides that
"an attorney-general holding office when the new Constitution takes effect, continues to function in terms of the legislation applicable to that office, subject to item (1)".
Item (1) provides that section 108 of the previous Constitution continues in force until the new Act of Parliament creating the new prosecuting authority (envisaged by section 179 of the Final Constitution) takes effect.
We have had two BILLS drafted (the current being the second). The first draft BILL, in clause 25, provided that persons presently holding the office of attorney-general would, under the new Act, become Directors.
As a result of a proposal from a certain quarter, this, first, Draft has been amended to its present guise as couched in section 29(1)(a) (above). In other words a conjunctive proviso with exclusive effect was reintroduced which, it appears, does have the effect of disqualifying an officer such as myself from "becoming" a Director in terms of the "Transitional arrangement section.
The proposer had mooted that the first Draft Bill be so re-drafted so as to exclude attorneys-general of the TBVC states (except Bophuthatswana) from being Directors of Public Prosecutions as it would be "unfair" if they became "Attorney-General" ahead of their colleagues - they being Deputy-Attorney-General seconded as Attorneys-General of the TBVC states.
The proposer did not advert to the effect or impact of the two Constitution Acts on the situation but confined himself to the notion of fairness.
3.1. It is, however, my view that the Constitution Acts are germane and of pivotal import to the Bill and the Act in its ultimate appearance . One has first to defer to interpretation of these before general notions of fairness come into play.
It is my contention that the first Bill was on all fours with both the Interim Constitution, 1993 and the Constitution, 1996. It is evident from both enactments that the Constitution draughtsmen on both occasions rose above, purely, the departmental conceptions of which functionaries constituted attorneys-general. The watchword has been continuity. To now, suddenly, exclude certain incumbents from being translated to Directors of Public Prosecutions would run counter to and would be in conflict with what was contemplated clearly and unambiguously in the simple and direct terminology twice employed, after lengthy deliberation, in the above-quoted sections of both Constitutions and, likewise, by the draughtsman of the first Draft.
In fact, the same continuity of tenure of office is evident from the provisions of section 29 (q.v.).
A broad conspectus of the latest Draft demonstrates that inclusivity rather than exclusivity is the tenor of the Bill and the approach to the appointment of Directors and that a much more broadly-based deployment of Directors is envisaged: vide s.12 of the Bill.
The only discordant note, therefore, in the wider scheme of things appears to be the exclusive rider "and who was appointed in the rank of attorney-general" with which we are concerned here.
I also maintain that Item 18(2) above which provides that an attorney-general holding office shall continue to do so subject to Item 18(1) which, in turn, stipulates that the former Constitutional dispensation holds in place until the new Act comes into force, is a foreshadowing of the entrance of a new system in terms of which the prosecuting authority is being reshaped macroscopically. And that the fact that ITEM 18 (2) of Schedule 6 puts the Attorney-General's continued functioning "subject to item(1)" does not entail that existing status is suddenly demeaned in terms of the National Prosecuting Authorities Act in the sense that an Attorney-General holding office should revert to a Deputy-Attorney-General whilst in that office OR that there may now be enacted a differentiation in status between Attorneys-General holding office under the Constitution Acts.
The usage of the terminology "rank" is also, with respect to the drafter of the amended Bill, meaningless. "Attorney-General" is defined in terms of Section 1 of Act 92/1992 as the appointee to the "office" and not the "rank" of which there is no mention - "rank" appears to be a misnomer.
3.2. Quite apart from according the above sections their ordinary, grammatical interpretation and notwithstanding the contention that the National Prosecuting Authority Bill should be read in tandem with the Constitutions in their equal treatment of "attorneys-genera!"' there is the consideration of fairness to which I have alluded which spurred the amendment I am at odds with.
If one does explore into the concept of fairness, there immediately looms the specter of the "capitis deminuto" to the professional status of an officer like myself in the very office with which one has been associated for so long. The "prejudice" to counterparts in South Africa is, in all deference, overstated: I would be the only one of the TBVC Attorneys-General concerned herein - in other words the BILL must now be remedied or refined to exclude a solitary instance (myself) which is perceived to cause hardship to untold counterparts country-wide (which in itself constitutes bad lawmaking).
I will have been the Attorney-General of the Transkeian Division for four, five years in terms of the two Constitution Acts, prior thereto having been Attorney-General of the Republic of Transkei for a further seven years. Such a result has never been within the contemplation of the draughtsmen of both the interim and the final Constitution and of the BILL. Having derived benefit from "every" Attorney-General (section 241(4) of the Interim Constitution) and "an" Attorney-General holding office (Section 18(2) to Schedule 6 of the final Constitution) hitherto, without exception, there is nought in the said sections to suggest that every Attorney-General holding office shall not be treated equally henceforth as well.
This expectation is unassailably (and not only reasonably) construable from section 241(4), reinforced by section 18(2) of Schedule 6 - as the draftsman of the first BILL also clearly thought What was ensconced under the two Constitution Acts for four years should be honoured by the National Prosecuting Authority Act - if only in pursuit of fairness then.
Further as to fairness - it is not the case (as appears to be the implication) that one is stealing a march on one's colleagues - those who were my seniors in the Department in 1986 when the Transkeian post was about to fall vacant (which post was on offer also to them) exhibited not even a modicum of interest to assume the responsibility thereof and to endure the vicissitudes of life in Transkei.
Why, then, eleven years on and after four successive governments - one to boot a military regime - it should become "unfair" to others if the incumbent, throughout, should continue undisturbed in the status equivalent to Attorney-General and be remunerated appropriately, is elusive to one's grasp.
4.1. That the clause "and who was appointed in the rank of attorney-general" be expunged from section 29(1 )(a) of the BILL.
4.2 That the following wording be inserted after section 29(1)(a)
".......; provided that subsection (2) shall not apply to an attorney-general of a Division of the High Court within any of the former National States and who was appointed thereto upon secondment from the Republic and held such office as a seconded officer when the Interim Constitution, 1993, took effect and further that the remuneration, pension and pension benefits, leave gratuity and any other term and condition of service which applied to such person at the time this Act took effect shall continue in operation and to apply to him or her whilst serving in that Office which office he or she may continue to hold for a period not exceeding five years from the coming into operation of this Act or such further term as the President may determine after expiry of such period unless within such period of five years or such further term he or she is appointed as a Director by the President in terms of section 12(1) or unless he or she vacates such office whereupon the provisions of this Act applicable to Directors so appointed or Deputy Directors will become applicable to him or her."
This option would confirm at least my status and financial position without elevating me as regards pension-bearing salary to a level beyond the other Deputy-Attorneys-General.
Would be to strike the offending piece and let me become a fully-fledged Director with pensionable salary scale et al, but seeing that I have not had the same pension benefits built up over any previous length of time, I would crave that a stipulation be made that a period of seven years be determined for tenure of office from inception of the new Act.
The Act could read thus:
Sec 29(2) (a) ......................."..................; provided that an Attorney-General
serving in a Division of the High Court within the former National States who held such Office upon secondment from the former Republic when the Interim Constitution, 1993, took effect, may continue in office as Director for a period of seven years from the date this Act takes effect upon expiry of which term the provisions of subsection 13(2) shall become operative with regard to such officer.".
If, however, this House decides that the operative term should be on par with the Directors' term of office, I would crave that the fact that I never shared the same pensionable salary since date of appointment 1987 be accommodated in the new legislation. I suggest 29(2)(b) should be amended to read: " ; provided that, for the purpose of calculating the remuneration, pension and pension benefits, leave gratuity and any other term and condition of service applicable to an Attorney-General who became Director after having served in the National States upon secondment and so held such office at the time of the Interim Constitution, 1993 took effect, the date of appointment as Director shall be deemed to date of his or her appointment as Attorney-General in that Office.".
C D H O NEL SC
ATTORNEY-GENERAL: TRANSKEIAN DIVISION