SA No. 24 June 2008 CRIME QUARTERLY

The case for dissolving the Scorpions 3 The Scorpions and the politics of justice 11 The effect of dissolving the Directorate of Special Operations and the Specialised Commercial Crime Units 17 Challenges to incorporation of the DSO into the SAPS 23 The Independent Complaints Directorate 29 A summary of the Khampepe Commission of Inquiry 35 CONTENTS SA Crime Quarterly No. 24 • June 2008

WHERE HAVE ALL THE DEMOCRATS GONE? The case for dissolving the Scorpions Moe Shaik ...... 3

WITHOUT FEAR OR FAVOUR The Scorpions and the politics of justice David Bruce ...... 11

PUTTING PAID TO THE UNTOUCHABLES? The effect of dissolving the Directorate of Special Operations and the Specialised Commercial Crime Units Gail Wannenburg ...... 17

THE SCORPIONS LOSE THEIR STING Challenges to incorporation of the DSO into the SAPS Anthony Minnaar ...... 23

A WATCHDOG WITHOUT TEETH? The Independent Complaints Directorate Johan Burger & Cyril Adonis ...... 29

INVESTIGATING THE INVESTIGATORS A summary of the Khampepe Commission of Inquiry Andrew Kanyegirire ...... 35

This publication is funded by Hanns Seidel Stiftung EDITORIAL

Dear Readers

The wisdom of the ANC’s decision to dissolve the Directorate of Special Operations (more commonly known as the Scorpions) has been the subject of intense debate in the South African media since December 2007. Opposition parties have voiced their outrage, while NGOs, academics and ‘experts’ have held countless discussions and seminars to consider the motivations and implications of the move. The debate seemed to reach fever pitch when two Bills were brought before parliament in May 2008 that would pave the way for the closure of the unit and the apparent incorporation of its work and staff in the South African Police Service. We felt it was time for SACQ to weigh in on the matter and to provide another forum for the debate.

This edition of the Crime Quarterly thus focuses almost exclusively on the matter of the Scorpions. Unlike most other editions of the journal we have made space for several opinion pieces. Moe Shaik, formerly Deputy Intelligence Coordinator of the National Intelligence Coordinating Committee presents the ANC’s reasons for seeking the disbanding of the Scorpions, including that the Scorpions have ‘entrenched a system of patronage’ through targeted and politically motivated prosecutions, and have collected intelligence without having to be accountable to the same oversight bodies as other branches of the security forces. David Bruce counters this argument, presenting a case that dissolving the unit will create the space for more political meddling in affairs of justice, rather than reducing it. Gail Wannenburg and Anthony Minnaar draw on their experiences, providing reasons why the investigative style of the Scorpions was successful, and pointing out what will be lost when the SAPS takes sole responsibility for investigating crimes committed by organised criminals. For posterity we have also included a summary of the Khampepe report prepared by the ISS’s Andrew Kanyegirire.

We end this edition with a report by Johan Burger and Cyril Adonis on the findings of research into the constraints faced by the ICD - a timely contribution that adds to concern about the effectiveness of police oversight, particularly in the light of the dissolution of the Scorpions.

Chandré Gould (Editor)

SA CRIME QUARTERLY No 24 • JUNE 2008 1

WHERE HAVE ALL THE DEMOCRATS GONE? The case for dissolving the Scorpions

Moe Shaik1 [email protected]

Those who lament the imminent dissolution of the Scorpions are blinded to the shortcomings of the unit and fail to see the role they have played in entrenching patronage. Not only have they fallen short of delivering justice, they have been given the freedom to act as intelligence gatherers without the responsibility of having to account to oversight structures. This is a shortcoming of the legislation that created the unit, but has irreparably tarnished the unit’s reputation. Locating a new investigative unit in the SAPS is the best solution to overcome these problems and avoid them in the future.

outh Africa has spent the past decade in an direct violation of the constitutional imperative that environment of patronage. The politics of they exercise their power impartially. Important patronage became a defining characteristic of court judgements and the various Commissions of S 3 both public and private spheres of power. Those Inquiry into the affairs of the DSO attest to this. For with power, either public or private, unashamedly example, the Hefer Commission of Inquiry – distributed their patronage to those that they established to look into allegations that former believed were either ‘in’ or ‘out’ of favour. national Director of Public Prosecutions, Bulelani Ngcuka was a former apartheid spy – stated in its The alliance of the powerful2 - government, banks final report in relation to allegations made in the and the corporate elites - excelled in the exercise of press about Mac Maharaj and his wife that their power. Their actions had the effect of creating In a country such as ours where human targeted favour or prejudice and in so doing they dignity is a basic constitutional value and either ‘made’ or ‘broke’ those who were the subject every person is presumed to be innocent of their patronage or scorn. In this environment, the until he or she is found guilty, this is wholly abuse of power took root, fostering the use of unacceptable. Section 41(6)(a) of the democratic means to produce undemocratic Prosecuting Act was not enacted for nothing outcomes. and as long as someone in the National Director’s office keeps flouting the Tarnished: the NPA and the DSO prohibition against the disclosure of The National Prosecuting Authority (NPA) and the information, one cannot be assured that the Directorate of Special Operations (DSO) cannot Prosecuting Authority is being used for the escape the charge that they too were instrumental in purpose for which it is intended… matters the distribution of this patronage. They did so in do not appear to be what they should be in

SA CRIME QUARTERLY No 24 • JUNE 2008 3 Mr Ngcuka’s office as far as the observance of the Stellenbosch National Conference held in of section 41(6)(a) is concerned... (Hefer 2002. The disquiet grew as the abuse of power 2004: para 79-79) continued without any corrective action on the part of the Executive. With time this unhappiness In addition the Public Protector (Special Report of worked its way through the branches of the ANC the Public Protector on an investigation of a and eventually found formal expression in the call complaint by Deputy President J Zuma against the for the disbandment and relocation of the DSO at NDPP and the NPA 2004) found amongst other the policy conference that predated the ANC’s 52nd important constitutional issues, that the statement National Conference decision to disband the DSO. made by the National Director on the 23 August 2003 unjustifiably infringed Mr Zuma’s Much has been said about the ANC’s decision and constitutional rights to human dignity and caused the subsequent effort of government to implement him to be improperly prejudiced. The statement legislative amendments to disband and relocate the was found to be improper and unfair. He found DSO into the SAPS. At the centre of this effort is the further that Mr Zuma was not properly informed desire of ordinary members of the ANC to address about the criminal investigation against him. The the abuses that have been associated with the Public Protector recommended that Parliament take actions of the NPA and the DSO. This is what urgent steps to ensure that the National Director should happen in an evolving democracy such as and the NPA are held accountable, in terms of the ours. It may be argued that this effort is a knee-jerk law, for these violations. He also recommended reaction to the abuses of power of the DSO, but a that Parliament should convene as a matter of necessary one nonetheless. urgency to determine policy guidelines in respect of the functioning of the DSO that would prevent a Those opposed to this decision say that it was taken recurrence of these violations. In response to this to protect powerful ANC politicians from current the Executive intervened to prevent Parliament from and future investigations by the DSO. They also dealing with this important report. In the end, argue that to keep the ANC from exercising Parliament watered down its enquiry to the effect unbridled power, the DSO must be left alone. that no action was taken against either the National Strangely, they remain silent on the exercise of Director or the NPA. Those who criticised this unbridled power by the DSO in the pursuit of behaviour and style of work of the DSO were patronage. The abuses of the DSO cannot be ridiculed and marginalised.4 explained away as collateral damage in the ‘just’ fight against ‘evil’. Over time, as the DSO continued to conduct its activities in the same way, the abuse of power, and The DSO was formed as an organ of government to the politically motivated nature of this abuse and combat organised crime. To that end the Executive patronage, became increasingly clear. So too did enacted the founding legislation of the DSO that the conflicts between the DSO and the SAPS, as combined the power of prosecution, investigation these two national structures pursued similar goals. and information gathering. However, with the value It is in this context that the decision was made to of hindsight it needs to be acknowledged that the implement the constitutional imperative to establish legislation did not pay proper attention to the a single national police service within a criminal democratic checks and balances required by our justice dispensation that provides for the clear Constitution. separation of investigative, prosecutorial and intelligence powers. Justice Brandeis, in a dissenting US court judgement wrote, in 1928: The ordinary membership of the ANC became Crime is contagious. If the government becomes aware of this situation many years ago. Traces of a law-breaker, it breeds contempt for law; it disquiet, albeit in a generic form, alluding to this invites every man to become a law unto himself; misalignment can already be seen in the resolutions it invites anarchy. To declare that in the

4 SHAIK SA CRIME QUARTERLY No 24 • JUNE 2008 administration of the criminal law the end as a separate service, is subject to all the restraint justifies the means – to declare that the provisions of the Constitution that govern the government may commit crimes in order to country’s other security services. secure the convictions of a private criminal- would bring terrible retribution. Against that In a democracy such as ours, it would be difficult pernicious doctrine this court should resolutely to argue that the powerful DSO should be free of set its face. these restraints. On this, the Khampepe Report is at best ambiguous. As regards Judge Khampepe’s In the matter of the abuse of power and the use of findings of the abuse of power by the DSO, she state organs as an instrument of patronage, all should have been more courageous and categorical democrats must resolutely set their face. The in her recommendations. All authority that the challenge is to identify and remedy these abuses Executive accrues to itself in the exercise of when and where they occur. governance must be restrained and checked.

Those who oppose the disbandment and relocation The Constitution and the security services of the DSO offer in support of their argument the Judge Johann Kriegler noted that Chapter 11 of the interpretation of the judgement handed down by Constitution, which establishes and governs the Judge Kriegler in the Constitutional Court (CC) country’s security services, clearly prescribes that matter between the Minister of Defence and there be ‘a healthy blend of democratic aspiration Potsane (Constitutional Court judgment. Minister of and practical safeguards’ against any abuses of the Defence vs. Potsane. CCT 14/2001). In this matter, security services. He argued that this chapter the Constitutional Court reversed a High Court provides appropriate measures to deal with any decision and upheld the constitutionality of military misdirection of any of these services. prosecutions as introduced by the Military Discipline Supplementary Measures Act (MDSMA). Given the history and the role of the security services in apartheid South Africa, this was how it The CC found that a separate and independent had to be. The particular chapter was written to military prosecution system as provided for by the provide the constitutional basis for ushering in a MDSMA was not prohibited by the existence of a new era for the security services. The drafters of the single, civilian national prosecuting authority as constitution sought to construct a democratic provided for in section 179 (1) of the Constitution. framework for the establishment, structuring, The CC reasoned that a single, national prosecuting legislative sanction, accountability, political control, authority, in the context of ‘many’ such authorities and parliamentary control of the security services. that existed in the apartheid era, served to consolidate into one national prosecuting authority The drafters intended to make all of the security the various offices of attorneys-general that existed services subject to national legislation, to the rule of before. The court in explaining its decision wrote law, to the authority and oversight of parliament, that ‘single authority’ does not intend to mean and to the command, control and oversight of the ‘exclusive’ or ’only’ but simply serves to denote the executive. It was intended that the security services singular ’one’. be subject to a strict and enforceable code of conduct ensuring that their activities are non- Accordingly it is argued that the concurrent partisan in respect of political parties; to jurisdiction of policing functions by the DSO as a coordination, judicial scrutiny and monitoring in separate service from the South African Police respect of interception and monitoring intelligence Service is not in conflict with Section 199(1) of the activities; and to civilian monitoring of security Constitution. Judge Khampepe, in her services activities by an Inspector General Commission’s report, also argues this position. appointed by parliament. These important Following on from this finding, the Khampepe democratic safeguards were not enacted for Inquiry should have determined whether the DSO, nothing. They were enacted in order to prevent the

SA CRIME QUARTERLY No 24 • JUNE 2008 SHAIK 5 abuse of power by our security services, and in the incidental to instituting criminal proceedings’, and event of such abuse, sanction was to occur. for it to do so ’without fear, favour or prejudice’. The latter is the basis on which the NPA and the Defining the DSO DSO argue that they have a constitutional right to Central to the problems of the DSO is the difficulty prosecutorial independence, free from the control of defining its nature. What exactly is the DSO? Is and direction of the Executive. This matter is the DSO part of South Africa’s ‘security services’, as amongst the current deliberations of the Ginwala defined by the constitution? Should the DSO be Commission, appointed by the President to enquiry characterised as a ‘police service’, an ’intelligence into the conduct of the National Director of Public service’ or an ’armed organisation or service’? Is the Prosecutions. DSO the intelligence division of the national prosecuting authority established by national With favour and prejudice legislation? However, the issue that lingers in all of these commissions is what happens when the DSO or the Or is the DSO a hybrid of all of the above? And, if NPA perform their functions with favour and so, is it subject to the ‘healthy blend of democratic prejudice (partiality) in the exercise of their power. aspirations and practical safeguards’ to which the Under the doctrine of prosecutorial independence Constitutional Court referred? If not, why not? The the DSO can claim freedom from executive control Khampepe Commission argues that the DSO is and sanction in all that they do, even when they are neither a police service nor an intelligence service knowingly abusing their powers. Evidence (legal and describes the DSO as a law enforcement counsel submissions on behalf of the NDPP) within agency. This is a useful description and would the Ginwala Commission confirms the readiness of suggest that as such the DSO is part of South the NPA and the DSO to evoke this claim when its Africa’s security services. suits them to do so. At the same time, the failure or refusal of the NPA and DSO to evoke this claim in The NPA Act combines the powerful functions of all cases devalues it. prosecutorial, investigative and information gathering all in one entity. Unfortunately it does so Prosecutorial independence cannot mean the free from the constitutional checks and balances freedom to act unlawfully, nor the exercise of that are the bulwarks against the misuse of any of investigative and prosecutorial power in a partisan these combined and powerful activities. In this manner in the pursuit of political patronage. regard the founding legislation of the DSO fails the Neither can the workings of a democracy be left to stipulations of the Constitution. the assurance that the NPA and DSO are staffed with ‘good’ people that can do no wrong. It is Judge Khampepe found that the DSO established an simply not reasonable to expect that the DSO will intelligence gathering capacity beyond the be prosecuted by the NPA, or that the NPA will be ‘information’ gathering mandate provided for it in investigated by the DSO for unlawful activities. It law. These intelligence gathering activities of the has not happened and will simply not happen. The DSO ought to have been subject to the provisions compilation of the Special Browse Report by the contained in Section 210 of the Constitution, which DSO is a case in point. The NPA did not prosecute provides for the oversight of such activities. The the DSO for its illegal activity. In fact, the NPA current NPA Act circumvents these constitutional became part of the DSO’s cover-up. requirements and allows for the DSO intelligence gathering activity to be free from any democratic As a result of the shortcomings of the NPA Act the oversight. DSO has managed, during the decade of its existence, to resist every attempt to subject its The Constitution entrusts the NPA with ‘the power activities to the requirements of Chapter 11 of the to institute criminal proceedings on behalf of the Constitution. It has done so to its detriment, in a state and to carry out any necessary functions short-sighted approach to cling on to its unchecked

6 SHAIK SA CRIME QUARTERLY No 24 • JUNE 2008 power. The reality is that such shortcomings can be of the judiciary to scrutinise the exercise of readily exploited for political purposes by an prosecutorial power and to ensure that it has been Executive willing to do so. lawfully exercised. Legislation must never be used to limit judicial scrutiny and certainly not in the The NPA Act does not define the mandate of the name of democracy. DSO as organised crime, as the term is commonly understood, but as ‘offences or any criminal or Over the years we have witnessed the leakage of unlawful activities committed in an organised information from the DSO to influence the public fashion’. Organised fashion in turn is defined to mindset – smear campaigns, off-the-record ‘include the planned, ongoing, continuous or briefings, reports of misuse of funding, abuse of repeated participation, involvement or engagement authority, the unauthorised disclosure of in at least two incidents of criminal or unlawful information, acts of corruption by members of the conduct that have the same or similar intents, NPA, selective investigation and prosecutions, results, accomplices, victims or methods of attempts by the DSO’s senior management to commission, or otherwise are related by influence political parties, and skewed plea-bargain distinguishing characteristics’. arrangements (Mrwebi 2008).

This extremely vague and wide mandate can be Some of these violations have been the subject of used to bring the full weight of the NPA to bear on the various abovementioned Commissions of almost any crime. In the absence of any checks and Inquiry into the workings of the DSO. These balances, this wide mandate, in concert with the commissions have all been scathing in their even wider powers given by the NPA Act to the criticism of the NPA and DSO, yet nothing has head of the DSO, can be easily abused and, been done to date to correct this pernicious unfortunately, has been – as findings of the Public doctrine of the abuse of power. Such abuses of Protector and the Khampepe Commission of Inquiry power should not go unprosecuted, left as a have shown. festering sore that infects only the victims of this abuse. But then, who prosecutes the National Judge Khampepe in her Report argues that this wide Director of Public Prosecutions and the head of the mandate is prudent and that ‘an overly prescriptive DSO for the abuse of power? legal mandate would render itself open to constant jurisdictional and other legal technical attacks and On another front, the DSO has been rather frustrate the objective for which the DSO was successful in the media spin game. The impression established’. With all due respect to the learned has been created that South Africa’s democracy is Judge, this is exactly what should happen in a under the real threat of rampant corruption and democracy, especially when the NPA and DSO organised criminality. Indeed, these are serious wield such enormous unchecked power. It is the crimes that plague our society. We are justified to basis for the institution of an independent judiciary. feel aggrieved about these crimes. However, as a society based on the rule of law we must not in our Again, Judge Kriegler’s wisdom is insightful: ‘The haste give in to the temptation to suspend the NDPP is part of the executive branch of requirements of the law to which we are all bound government, not the judiciary, which is the – and none more so than the DSO. recognised protector of the private individual against the abuse of power… [it is]one of the Much is said in praise of the successes of the DSO, purposes of judicial independence under the and indeed it may have a high rate of successful doctrine of separation of powers and an important selective prosecutions. But the question must be bulwark against abuse of power by the executive asked whether an independent assessment has been that independent judges are “well-placed to curb conducted to measure the DSO’s success against its possible abuse of prosecutorial power”’ overall stated objectives. What has been the true (Constitutional Court case CCT 14/01). It is the task impact of the DSO’s work on organised crime?

SA CRIME QUARTERLY No 24 • JUNE 2008 SHAIK 7 Unlike the SAPS, the NPA’s stated policy is to of its functions. Further, it must be a part of a co- prosecute only those cases that it believes it has a operative criminal justice system paying due reasonable chance of winning in a court of law. In attention to the jurisdictional authority of other law this context, the success rate of the DSO is enforcement agencies. It is interesting to note that exaggerated. The head of the DSO was recently in the USA, the FBI is the ‘only’ national law forced to concede this point in public.5 enforcement agency. The rest of the policing services are decentralised. And the FBI is a law We hear much of the high-profile cases involving enforcement agency, not the national prosecuting ANC political figures, but are told nothing of the authority. cases the DSO chooses not to investigate. We see no publicised take-downs of drug barons, bosses of The relocation of the DSO into the police should violent criminal syndicates, CEOs of companies not be seen as an end in itself, but rather as a step involved in price fixing, or senior bankers involved in a new direction. The final direction will be in organised off-shore tax-evasion banking scams. informed by a honest debate about the desired There is no independent review of those cases that future shape and structure of South Africa’s criminal the NPA loses or botches up, like the reported justice system. The sooner we have this debate, the Saambou case, and it offers no explanation for better. these failures. Such blatant inconsistencies cannot go unchecked, protected and explained away References Brandeis, J 1928. Olmstead vs. US, 277 U.S. 438, 468 within the doctrine of ‘prosecutorial independence’. Uniform adherence to policy in all cases will Constitution of the Republic of South Africa, 1996 (Act ensure consistent outcomes. 108 of 1996)

Report of the Hefer Commission of Inquiry into allegations Conclusion of spying against the National Director of Public Clearly, all is not well within the SAPS and its Prosecutions, Mr BT Ngcuka. Final Report dated 07 public service delivery record leaves much to be January 2004. Available at http://www.info.gov.za/ desired. The prevalence of violent crime in our otherdocs/2004/hefer/index.html. [accessed on 5 June society can no longer be denied and it affects all of 2007] us. The poor performance of the SAPS must be Khampepe Commission of Inquiry into the Mandate and located within the broader challenge, which is the Location of the Directorate of Special Operations (“The efficacy of the public service as a whole. No effort DSO”). Final Report. February 2006. Available at must be spared in improving the performance and http://www.pmg.org.za/files/docs/080505Khampempe report.pdf efficiency of the police service at all levels. There is no simple answer to the problems we face in Kriegler, J 2001. Constitutional Court judgment. Minister of policing, and the DSO cannot be the substitute for Defence vs. Potsane. CCT 14/2001 good policing. There is no doubt that we need to Mrwebi, L 2008. Affidavit, High Court of South Africa have the important debate about the future structure KwaZulu-Natal (TPD) of our criminal justice system, inclusive but not limited to policing. This debate should pay National Prosecuting Authority Act 1998 (Act 32 of 1998) particular attention to the kind of society we seek to Endnotes build in South Africa and to the real threats that we 1 Moe Shaik was a former Deputy Intelligence face in society. Coordinator of the National Intelligence Coordinating Committee but writes in his personal capacity. Within this debate, a case can be made for the 2 John Perkin introduces the term ‘Corporatocracy’ to establishment of a well-resourced law enforcement describe the alliance of the powerful in his book, Confessions of an Economic Hit Man. Penguin. 2004. agency akin to the USA’s FBI. However, such an 3 Judge Khampepe’s Commission of Inquiry Report into agency must be established with a clear mandate the mandate and location of the directorate of Special subject to the rule of law, the requirements of our Operations. Final report February 2006. Para 21.2, constitution, and to civilian review in the conduct 21.4, Page 64.

8 SHAIK SA CRIME QUARTERLY No 24 • JUNE 2008 ‘The DSO in its afore-stated conduct does not seem to have acted properly and lawfully in exercising its powers and has failed to construe those powers in the light and spirit, purport and objects of the Bill of Rights.’ ‘The improper media sensation associated with the investigation and/or arrest of some individuals resulting from leaks in the DSO may open a practice that is inconsistent with the right to a fair trial guaranteed under section 35 of the Constitution.’ 4 (a) Note the various amendments to the terms of reference of the Hefer Commission. The nett effect of these amendments was that the Hefer Commission had to first determine whether Mr. Ngcuka had in fact been an agent of the pre-1994 security services, and, in the event of a positive finding, whether, because he had been such an agent, he had misused the prosecuting authority. It was clear, therefore, that the new terms of reference were phrased in such a way that in the event of a negative finding on the first question, the second more important question dealing with the abuse of power would fall away. Why these amendments were made, was never explained. A possible explanation is offered by Mark Gevisser in his book Thabo Mbeki, the Dream Deferred, page 401:.’it humiliated Maharaj and Shaik..’ (b) Following the Public Protector’s report, both Ngcuka and Minister Maduna publicly attacked the integrity of the findings. See Sunday Times, 30 May 2004: Ngcuka hits back at Public Protector. 5 Submission of the head of DSO to parliamentary JSCI as reported in the media, February 2008.

SA CRIME QUARTERLY No 24 • JUNE 2008 SHAIK 9

WITHOUT FEAR OR FAVOUR The Scorpions and the politics of justice

David Bruce Centre for the Study of Violence and Reconciliation [email protected]

In May 2008 legislation was tabled in Parliament providing for the dissolution of the Directorate of Special Operations (known as the ‘Scorpions’), an investigative unit based in the National Prosecuting Authority. The draft legislation provides that Scorpions members will selectively be incorporated into a new investigative unit located within the SAPS. These developments followed a resolution passed at the African National Congress National Conference in Polokwane in December 2007, calling for the unit to be disbanded. Since December the ANC has been forced to defend its decision in the face of widespread support for the Scorpions. One of the accusations made by the ANC was that the Scorpions were involved in politically motivated targeting of ANC members. This article examines the issue of political manipulation of criminal investigations and argues that doing away with the Scorpions will in fact increase the potential for such manipulation thereby undermining the principle of equality before the law.

he origins of current initiatives to do away Accordingly we have decided not to with the Scorpions go back several years. In prosecute the deputy president (Mail and T2001 the National Prosecuting Authority Guardian online 2003). (NPA) approved an investigation into allegations of corruption in the awarding of arms deal contracts. Political commentator, Aubrey Matshiqi has argued In October 2002 they announced that this probe that this statement by Ngcuka ‘has in some ways would be extended to include allegations of bribery overshadowed every action taken in relation to against Jacob Zuma, then South Africa’s deputy Zuma by the NPA since that point.’ Until June president. 2005, when Zuma was himself brought to court on charges of corruption after being dismissed from his On the 23rd of August 2003 Bulelani Ngcuka, head post as deputy president, ‘it fuelled suspicions that of the NPA, told a press conference that the NPA the NPA wished to tarnish Zuma’s name without had chosen to prosecute Jacob Zuma’s financial prosecuting him’ (Matshiqi 2007:10). advisor Schabir Shaik, but We have concluded that, while there is a It was Ngcuka himself who became the first prima facie case of corruption against the casualty of the statement. In September 2003 a deputy president, our prospects of success prominent newspaper published allegations that are not strong enough. That means that we Ngcuka had spied for the apartheid government. are not sure if we have a winnable case. These allegations were dismissed by the Hefer

SA CRIME QUARTERLY No 24 • JUNE 2008 11 Commission, which was appointed to investigate But while the outcry following the Shaik judgment them. But following a finding by the Public Protector included attacks on the judiciary as a whole, the that Ngcuka’s August statement was ‘unfair and key targets of suspicion remained the NPA and the improper’, it seemed that Ngcuka felt that his Scorpions. It was widely believed that they were position had become untenable. He resigned in July acting as instruments of Thabo Mbeki and singling 2004. out Zuma to be discredited and then prosecuted, while a number of other ANC leaders, who had also It is necessary to understand the political backdrop been implicated in the arms deal, were ignored. to these events. This primarily relates to the emergence of a constituency amongst members of In retrospect it has emerged that the decision not to the ANC and its tripartite alliance partners, the prosecute Zuma was probably made with the Congress of South African Trade Unions (COSATU) approval of President Thabo Mbeki (Feinstein and the South African Communist Party (SACP), 2007:230). Ironically, it therefore appears that Zuma which wanted to ensure that Jacob Zuma would was being protected from prosecution – as was become South Africa’s next president. Since Zuma allegedly the case with other beneficiaries of the had been appointed as Thabo Mbeki’s deputy arms deal within the ANC. president in 1999, he was in some ways his natural successor – but this particular constituency in fact But however the decision was taken, some form of regarded Zuma as a preferable alternative to Mbeki. public explanation as to why Shaik, but not Zuma, On a formal level this was primarily because Zuma was being prosecuted, would have been needed was seen to be more amenable to the ‘left’ orientated from Ncguka. Therefore it would have been agenda that they wanted to pursue. However, there necessary for Ncguka to address the public as he were other factors that contributed to support for did on 23 August 2003. Zuma, notably his less remote personal and political style. Whether Ncguka’s statement was intended to discredit Zuma (as has consistently been alleged by The intensifying rivalry between these two ‘camps’ Zuma’s supporters), or whether the trial of Schabir within the ANC has overshadowed South African Shaik was intended as a means of implicating Zuma politics in recent years. At its December 2007 ‘in absentia’ will perhaps never be clear.1 However, conference, where delegates voted for the dissolution these are the key, and most credible, allegations of of the Scorpions, the ‘Zuma camp’ became the ‘political manipulation’ of the criminal justice dominant force in the ANC, appointing Jacob Zuma system that have been made by the Zuma camp. as ANC president. Hostility towards the Scorpions Allegations of political manipulation Already in April 2005, prior to the conviction of There were therefore already strong suspicions that Schabir Shaik, Mbeki appointed the Khampepe the Ngcuka statement had been part of a deliberate Commission in response to pressure from within the agenda to prevent Zuma from becoming president by ANC to ‘relocate’ the Scorpions into the SAPS. Once the time of Schabir Shaik’s conviction in June 2005. Shaik was convicted, and Jacob Zuma charged with Shaik’s conviction in turn was followed by a chorus corruption, political mobilisation in support of of allegations that Zuma was the target of a political Zuma strengthened, and animosity against the conspiracy and that agencies of the criminal justice Scorpions escalated. In essence the hostility against system were being used against him. For instance, the Scorpions from the ANC is a product of the shortly after the Shaik judgment, COSATU issued a mobilisation in support of Zuma and represents an statement saying: effort to protect Zuma’s candidacy for president. The events of the past weeks confirm a long held view by COSATU that the trial of Schabir It does indeed appear that Mbeki wanted to retain Shaik was nothing but a political trial of the the Scorpions. His appointment of the Khampepe Deputy President in absentia. (COSATU 2005) Commission can be seen as a way of trying to

12 BRUCE SA CRIME QUARTERLY No 24 • JUNE 2008 defend them. The destruction of the Scorpions is Scorpions by the ANC reflect the belief that the thus also a key symbolic vehicle for confirming the Scorpions were being used to target ANC members. dominance of the ‘Zuma camp’ over the ‘Mbeki camp’ within both the ANC and government. ANC executive member Siphiwe Nyanda said that (Though it has taken on this meaning within the the Scorpions were ‘used to pursue a political ANC, it should nevertheless be emphasised that agenda and to target certain people in the ANC to calls to retain the Scorpions do not necessarily the benefit of sectarian and foreign interests’ (Basson indicate support of or opposition to either of the 2008). ANC Secretary-General Gwede Mantashe is ‘camps’ within the ANC.) quoted as having referred to the Scorpions as a ‘political unit’ that had been ‘infiltrated by apartheid But Zuma was not the only ANC leader investigated ‘security branch’ members who were ‘targeting by the Scorpions in relation to the arms deal. In erstwhile enemies’ – the ANC (Omarjee 2008). 2006 former ANC Chief Whip, Tony Yengeni, a respected and popular ANC leader, who like Zuma, Countering this the acting head of the National had played a prominent role in the struggle against Prosecuting Authority, Mokotedi Mpshe, has said apartheid, was imprisoned after being convicted in that ‘most, if not all, the members of the Scorpions 2003 on a charge of having defrauded parliament have joined with good and honourable intentions, during the arms deal. to serve in the best interests of the country’ (Maughan 2008). On another occasion Mpshe said In addition a number of ANC members of emphatically that there was no truth to these claims, parliament and others, who were implicated in pointing out that none of these claims had been what came to be known as the Travelgate saga, verified (Hartley 2008). Although former apartheid were also subject to a Scorpions investigation. In agents do form part of the rank and file of the 2006 evidence also started coming to light that Scorpions it does not follow that they have been the appeared to indicate that the SAPS National guiding force behind the unit. Commissioner, Jackie Selebi, had received bribes from alleged drug lord Glenn Agliotti. Agliotti was The Scorpions have been under the authority of also alleged to have channelled funds to Selebi officials appointed by the ANC government. from murdered mining magnate Brett Kebble. The Included among its founding core members are fact that Selebi himself had been a prominent investigators involved in bringing apartheid era member of the ANC and that Kebble had been a security force members such as Eugene de Kock to major benefactor of various ANC members and justice. If it is true that the Scorpions have applied a structures, was interpreted by some as evidence that certain zeal in investigating allegations against ANC the Scorpions were targeting the ANC. members this may be seen simply as reflecting a dedication to the organisation’s mission to uphold It became convenient for the ANC, once the ‘Zuma the law without fear or favour. This is consistent camp’ had become dominant at Polokwane, to use with a concern to protect the integrity of the South these cases to convince itself that the Scorpions had African state as governed by the Constitution and been ‘targeting’ the ANC. It was also a convenient does not imply an apartheid era inspired hostility way for the ANC to avoid confronting corruption towards the ANC. Rather than having any within its own ranks. Rather than engaging in a credibility, the allegation that the Scorpions are process of self-reflection and self-criticism acting as ‘apartheid agents’ can better be (something which is said to be one of the strengths understood as fitting in with the ANC’s need to of the ANC) the party chose to blame the Scorpions demonise the unit in order to mobilise public for the fact that several of its members had been opinion against them.2 implicated in corruption. The only credible allegations (though they have not Allegations of political bias against the Scorpions been proved) that the Scorpions have been used as Several of the allegations made against the a political instrument, concern the claim that the

SA CRIME QUARTERLY No 24 • JUNE 2008 BRUCE 13 ‘shield’ of impunity that was provided to ANC the National Commissioner will be able to veto members in relation to the arms deal was deliberately investigations that do not meet with his approval. lifted in order to counter the political threat posed by Jacob Zuma to Thabo Mbeki. It should be The presence of the Scorpions has also served as a emphasised that this is essentially an allegation that means to ensure the legal accountability of senior the National Director of Public Prosecutions used his SAPS officials. Due to general problems of capacity, authority over the Scorpions to ensure that certain the Independent Complaints Directorate (ICD) is people were protected from justice, but that a not able to carry out the type of sophisticated decision was made to remove this protection in the investigation that led to the charges against Selebi case of Schabir Shaik. This is not an allegation that (see the article by Burger and Adonis in this issue of Shaik was wrongfully convicted. Considering that his SACQ). Where it investigates cases successfully conviction has been confirmed successively on these are generally cases of a much more appeal there cannot be reasonable doubt about his straightforward and ‘routine’ nature. Without the guilt. Scorpions there will be no investigative body outside of the SAPS that can subject higher-level The impression that state authority has been used to officials of the SAPS to substantive investigation. shield favoured individuals was reinforced in 2007 by And the fact that the Scorpions could be subject to the events surrounding the suspension of Ncguka’s investigation by the SAPS meant that they too were successor, Vusi Pikoli, after he apparently refused to not above legal scrutiny. submit to pressure to prevent him from instituting charges against SAPS National Commissioner Selebi. If the legislation is passed and all investigative The matter is the subject of the Ginwala Commission bodies fall under his authority, the SAPS National of Inquiry. Commissioner will be above the law. This means that anyone that he wishes to protect, or who is in a If there is evidence of the criminal justice system position to pressure or influence him, will also be being manipulated in this way it should provide the shielded from justice. Centralising all investigative basis for action to ensure that no one is deliberately power in the SAPS therefore undermines South protected from the course of justice by those in Africa’s potential to uphold the principle of equality positions of power. But dissolving the Scorpions will before the law, which is a key principle of the do nothing to reduce this risk. Constitution. In addition, the monopoly of investigative power within the SAPS may also The ability to ensure that all people in South Africa provide senior SAPS members with the power to can be held legally accountable will be significantly manipulate politicians and the political process, reduced without a diversity of agencies with the thus undermining democracy. Not only will they capacity to investigate organised crime and be above the law, but they will be in a position of corruption of their own initiative.3 Dissolving the power over those in political authority. Scorpions will concentrate all crime investigation powers under the SAPS National Commissioner. Conclusion Since the appointment of Jackie Selebi it has been One of the issues that has been of concern in South accepted that the National Commissioner may be a Africa for several years has been the South African political appointment of the ANC-led government government’s handling of investigations into the and thus highly susceptible to political influence. The arms deal, and in particular that people associated new General Laws Amendment Bill, which provides with irregularities in the deal have been protected for the incorporation of the Scorpions into the SAPS, from justice (Feinstein 2007). expressly provides that the National Commissioner will have the authority to decide which investigations The concerns of the ‘Zuma camp’ are however are dealt with by the envisaged priority crimes quite distinct from this. Rather than arguing that investigation unit (see the proposed South African proper investigations have not been allowed to take Police Service Act section 16A(12)). This means that their course, they have focused on the idea that,

14 BRUCE SA CRIME QUARTERLY No 24 • JUNE 2008 while some people were apparently protected from Feinstein, A 2007. After the Party. Johannesburg: Jonathan investigation and prosecution, Shaik, and following Ball. him, Zuma, were not. Rather than endorsing the General Law Amendment Draft Bill. (Government Gazette calls for proper investigations to be conducted they No. 31016 9 May 2008) Available at have instead mobilised around the idea that Zuma http://www.pmg.org.za/files/bills/080513draftgenerallaw. is a ‘political target’, and have recently extended pdf [accessed 15 May 2008]. this into allegations that the Scorpions were involved in generally targeting the ANC. Political Hartley, W 2008. ‘No truth’ in claims about elite unit. Business Day, 22 May, p 3. pressure of this kind from leaders of South Africa’s governing party is likely to reinforce the situation Khampepe Commission of Inquiry into the Mandate and where powerful individuals are selectively Location of the Directorate of Special Operations (“The protected from justice. This is a problem that DSO”). Final Report. February 2006. Available at undermines the rule of law and the principle of http://www.pmg.org.za/files/docs/080505Khampempe report.pdf [accessed 16 May 2008]. equality before the law, the principle that criminal justice agencies should operate without fear or Sapa 2003. Ngcuka spoke in ‘riddles’ about Zuma. Mail & favour to those in positions of authority. Guardian online 26 August. Available at http://www.mg.co.za/articledirect.aspx?articleid=27596&a But if it is true that investigative mechanisms have rea=%2fbreaking_news%2fbreaking_news__national%2f [accessed 15 May 2008]. been subject to political manipulation, the key problem has then not been that Shaik, Zuma and Matshiqi, A 2007. Undamaged Reputations? Implications others have been subjects of investigation, but that for the South African criminal justice system of the high-level political officials obstructed other allegations against and prosecution of Jacob Zuma. investigations that should have gone ahead. Unless Johannesburg: Centre for the Study of Violence and political leaders and others take a firm stand against Reconciliation. Available at http://www.csvr.org.za/docs/ crime/undamagedreputations.pdf [accessed 16 May this type of practice it is likely to continue and 2008]. intensify. If the ANC indeed wishes to prevent this type of abuse it should motivate government to Maughan, K 2008. Scorpions fight back. Sunday adopt and enforce guidelines regulating the Independent, 18 May, p 1. relationship between senior political officials and Omarjee, H 2008. DA, Scorpions ‘hate ANC’ – Mantashe. the leadership of investigative and prosecutorial Business Day, 16 April. agencies, in order to discourage and prevent this type of political interference.4 Endnotes 1 It may be assumed that if the NPA had chosen to The dissolution of the Scorpions, and concentration prosecute Zuma along with Shaik this would not have been any more satisfactory to Zuma’s supporters. of all investigative powers under the SAPS, will 2 It is possible that there is a more direct psychological itself do nothing to reduce the risk of this type of dimension to the ANC tendency to demonise the abuse. In fact it is likely to accentuate the problem. Scorpions. Being subjected to investigation by the This is not least because it sends out a powerful Scorpions may re-evoke the past traumas of being signal to investigative personnel that the ANC will targeted by the security police for some ANC members. 3 The distinction is important. The Special Investigating punish agencies that dare to subject its senior Unit which falls under the department of justice and is members to investigation. responsible for the investigation of corruption only enters into investigations when it is authorised to do so References by the State President. Basson, A 2008. Zuma case influenced decision. Mail & 4 Examples of legislation of this kind, regulating the Guardian, 11 April, p 2. relationship between government ministers and the police commissioner, may be found in some Australian Congress of South African Trade Unions 2005. Press states. statement on Schabir Shaik judgement. Available at http://www.cosatu.org.za/press/2005/june/press1.htm [accessed 16 May 2008].

SA CRIME QUARTERLY No 24 • JUNE 2008 BRUCE 15

PUTTING PAID TO THE UNTOUCHABLES?1 The effects of dissolving the Directorate of Special Operations and the Specialised Commercial Crime Units

Gail Wannenburg2 [email protected]

When law enforcement agencies arrest abalone poachers on the Western Coast of South Africa, they may not be aware that the drying and processing of the delicacy takes place in Gauteng and that the buyers are organised crime networks in China. It will not be evident that the criminals use the profits (at about R1 400 per kilogram) to buy drugs for the local Southern African market. The syndicate or loose network of crime groups may have a distribution chain of dispensable individuals of different nationalities encompassing several countries, specialising in particular aspects of the trade and dealing in a wide variety of illegal goods. Indeed, the arrest of the poachers is unlikely to reveal that the profits are being used to barter for drugs and that a large number of illegal and apparently legal companies are being used to transfer money across the globe. Catching these kinds of transnational, cross-border, multi-ethnic and flexible criminal groups is difficult unless law enforcement agencies have a multi-faceted strategy, use the skills of a wide range of personnel and have the time and resources to investigate and prosecute them effectively. Traditional law enforcement is geared towards arresting the criminal ‘runners’ rather than the ‘kingpins’. The DSO and the SCCU acquired a reputation as the ‘untouchables’ – units that are admired, revered and feared – and it seems unlikely that their replacement will enjoy the same success and reputation.

n February 2008 the Minister of Safety and similar to that of the British Home Secretary) is Security, Charles Nqakula, announced a envisaged to achieve greater strategic and Iturnaround strategy for the criminal justice operational unity in the fight against crime. system after an internal review showed that there Ironically, the Directorate of Specialised Operations was little planning, poor implementation, and (the ‘Scorpions’) and the Specialised Commercial inadequate skills in the departments responsible for Crime Units (SCCU), which have pioneered the criminal justice, and little coordination between concept of integrated project-based investigations them. A realignment of these departments under the using the skills of co-located prosecutors, leadership of a ‘political champion’ (a position investigators and analysts and other support

SA CRIME QUARTERLY No 24 • JUNE 2008 17 personnel, are facing closure.3 The proposed new to disrupt the activities of crime groups and to unit in the South African Police Service, which will effectively investigate and prosecute them. The replace these structures, may not employ the same benefit of having multiple agencies is that they approach or methodology. This may jeopardise provide checks and balances on the activities of the South Africa’s battle against those ‘untouchables’ other units in an environment where criminal groups involved in serious and complex organised and may attempt to penetrate these institutions to evade financial crime and corruption. detection. Yet they are able to cooperate effectively in pursuit of the common goal of prosecuting Organised crime and corruption in South Africa offenders and seizing their assets. Transnational organised crime and corruption may be among the defining domestic and foreign policy DSO/SCCU models of investigation and prosecution challenges of this century. The financial power of In South Africa, specialist units such as the DSO and organised crime groups poses a serious threat to the SCCU were established because it became clear that South African economy and its financial system traditional forms of investigation and prosecution because they undercut the prices of legitimate were not working in complex organised and businesses and undermine the integrity of financial financial crime and corruption cases where institutions. Furthermore, corrupt elected officials convictions are difficult to obtain. weaken democratic institutions and deprive the government of revenue that could be used to The DSO has a mandate to investigate serious and provide citizens with basic needs. Financial crime complex organised and financial crimes and and corruption, the International Monetary Fund corruption. The mandate is wide in recognition of estimates, may strip the economy of 0.5-1 per cent the fact that these forms of crime evolve rapidly, the of economic growth per annum. In 2007, 72 per criminal groups are highly adaptive to risk and cent of South African business had fallen victim to defence lawyers may use technical jurisdiction economic crime. Of these 38 per cent reported issues to delay prosecutions. The model harnesses corruption and bribery (Price Waterhouse Cooper the skills of prosecutors, analysts and investigators 2007). South African companies lost between one along with key support personnel. Aside from the and four per cent of their sales revenue owing to strategy analysis team within the DSO, which violent and other types of crime and the costs of generates annual threat assessments, much emphasis security (African Private Sector Group World Bank is placed on the production of tactical information 2006). and products. These would include, for example, detailed profiles of syndicates and their members, The international and regional community of states cell phone calls and financial dealings. has taken unprecedented steps to create legal frameworks and institutional mechanisms to combat Using this information, investigators and forensic organised and financial crime and corruption, and experts are able to gather statements and hard to monitor and seize illegal profits. South Africa is a evidence that can be used to convict criminals. signatory to these protocols on organised crime, From the outset of the case, prosecutors are able to corruption and related matters and has enacted provide guidance on the prosecution strategy and legislation to counter these forms of crime. It has the type of information that will be necessary to built several institutions, based on international best successfully prosecute on a range of charges. These practice, and at significant cost tasked them with people are located together and work in project implementing the legislation. These include the teams. The personnel are drawn from all racial and SAPS Organised Crime Unit, the DSO, the ethnic groups, genders and ages and have a diverse Specialised Commercial Crime Units, the Special range of graduate qualifications and skills, which Investigation Unit, the Financial Intelligence Centre enhances their ability to conduct criminal and the Asset Forfeiture Unit, to name a few. These investigations. Recruitment is based on merit and agencies form part of a multi-faceted strategy to equity requirements and any person who meets the make the regulatory environment less welcoming, criteria may apply. The organisational culture is

18 WANNENBURG SA CRIME QUARTERLY No 24 • JUNE 2008 generally one of innovation, cooperation and this has become part of the culture learning. • The proximity of police and prosecutors makes it quicker to investigate cases properly and The SCCU uses the same model as the DSO but collective efforts are a recipe for success does not employ analysts. The latter functions are witnessed by the high conviction rates attained performed by prosecutors. However, the SCCU has • Plea bargaining works very effectively in the dedicated on-site courts, which are serviced by the DSO and SCCU model co-located police and prosecutors. These courts • Criminals and experienced defence lawyers are consequently sit much longer hours and are more met with equivalent skills effective than the average court. • The magistrates receive better quality cases when the SCCU members appear before them The DSO and the SCCU have been among the first • There are fewer logistical problems and it is less agencies to convict auditors and financial directors time consuming when the personnel are co- for false reporting and asset stripping, and to located prosecute criminals for racketeering, corruption and • The presence of analysts, police and prosecutors money laundering. By 2007, the SCCU had and magistrates provides a check on the abuse finalised 1 400 complex financial crime cases and of power e.g. corruption had an average conviction rate in excess of 94 per cent. The DSO had finalised 1 500 cases, obtained Transferring the DSO and the SCCU to the police 1 600 arrests and had an average conviction rate of In May 2008, the General Law Amendment Bill of between 80-90 per cent. In addition, DSO 2008 was introduced into parliament. It transfers investigations led to the seizure of R5 billion in the functions and powers of the DSO to the South contraband and, with the AFU, the civil forfeiture of African Police Service (SAPS). Detractors of the R1,5 billion, making it one of the major contributors DSO argue that the composition of the unit harms to the Criminal Asset Recovery Account. prosecutorial integrity and that its activities have breached the constitutional rights of the accused. Benefits of these models Furthermore, it stands accused of conducting illegal The major benefits of the DSO and SCCU model for intelligence operations and using unvetted private criminal justice integration are outlined below: security agencies and personnel. The National • The early involvement of prosecutors means that Prosecuting Authority has denied all of these claims cases with no prospect of success, owing to lack and has outlined its case in affidavits before court. of evidence or technical problems, are closed at The main issues of contention, however, appear to an earlier stage be the location of the DSO and its proactive • Cases are properly prepared and prosecuted investigative mandate. • Specialisation improves training and confidence among analysts, police and prosecutors The Bill locates the new Directorate for Priority • Prosecutors can assist the police and they have Crime Investigation (DPCI) squarely under the ownership and accountability for cases (few control of the National Commissioner of Police, prosecutors will deal with one case through its which means that it will not have the functional life cycle in other courts) independence the DSO has enjoyed. It will rely on • Prosecutors have time for case preparation and referrals from the National Commissioner of Police, consultations with victims (unlike in other units) who in turn has to be informed by the provincial and develop relationships with clients, which in commissioners that an organised crime syndicate is turn improves information suspected to be operating in the province. The • As organised and commercial crime and layers of bureaucracy that must be transversed to corruption cases are complex and often unique start an investigation are cumbersome and will in their characteristics, senior advocates and the hinder decisive action against criminal groups, who private sector (particularly the forensic usually have the resources and sophistication to investigators) mentor younger prosecutors and counter law enforcement activity.

SA CRIME QUARTERLY No 24 • JUNE 2008 WANNENBURG 19 The legislative mandate of the DPCI has some and delivering tactical products for investigation. specific clauses dealing with types of crimes to be On projects, analysts obtain crime information, and investigated and ‘omnibus clauses’ which attempt to through sophisticated analysis software provide capture all forms of possible criminal activity within profiles of criminal groups and investigation leads, its mandate. The mandate of the proposed DPCI has and make the information accessible for those been diluted because it will not be able to involved in the trial. In the well-known Najwa proactively investigate cases as has been the case in Petersen murder trial, police used analysts from the DSO. The specific clauses suggest that the outside the service to conduct detailed cell phone mandate of the DPCI will be founded on an billings, which showed that Petersen had arguably outdated definition of organised crime telephoned the alleged killers before the murder. In because it largely confines its investigations to the DSO, on site analysts provide investigators with traditional forms of the crime and those activities ongoing support in understanding how the criminal conducted by ‘mafia-style’ structured organised network operates and the details of the financial crime groups. The nature of organised crime is transactions it carries out. evolving and traditionally structured organised crime groups are relatively rare in South Africa. Now Some prosecutors may be seconded to the DPCI but criminals (like some multi-national companies) will be confined to playing an investigative outsource and privatise many of their essential function, while their colleagues in the National activities. Owing to the nature of organised and Prosecution Service (NPS) will be requested to financial crime and its symbiotic relationship with prosecute the cases. If DSO prosecutors choose to corruption, combating strategies should include a go to the SAPS, there may be less capacity within proactive attempt to anticipate, prevent and disrupt the NPS to prosecute organised and financial crime criminal networks before they can commit or repeat and corruption. If the prosecutor is only involved in their crime. the case after the investigation is concluded, s/he will not be familiar with the complexities of the The wide powers to investigate enjoyed by the DSO case and may not succeed in court against highly will be transferred to the National Commissioner of skilled defence lawyers. Police and the DPCI functionaries. As the ‘omnibus’ clauses mandating the DPCI are broad and vague, it Drawing on the experience of the DSO, an is likely that criminals will contest the organisation that combines such a diversity of constitutionality of the powers afforded to it, persons and skills may take some time to develop delaying criminal trials. into a seamless and effective team, to learn how to initiate, to develop project-based investigations and At the time of writing, it appears that the main to hone people skills. This will also be a challenge intention is to transfer the DSO and commercial in the police environment where extensive crime investigators to the DPCI. The other nine restructuring has often stripped specialised units of functional groups within the DSO, such as analysts, institutional memory, optimal numbers and will form part of Crime Intelligence or other sufficiently skilled people. divisions. The transfer will disrupt the existing co- located structures of both the DSO and the SCCU, In addition DSO personnel earn more than police which can currently draw on a far wider range of officers. Thus, those DSO staff members going into skills complementary to the investigation of crime. other SAPS divisions may face poor future prospects The DPCI will have to rely on ad hoc intelligence because they will be given personal pay notches. and analysis assistance from the Criminal They could experience career stagnation until Intelligence Group within the SAPS, who have a police officers doing the same work catch up to broader intelligence-gathering mandate. their salary levels. Similarly, the Police and Prisons Officials Union has voiced its concern that its In the DSO, for example, crime analysts play a vital members be treated equally to those moving to the role in developing the strategy of the organisation SAPS from other state departments.

20 WANNENBURG SA CRIME QUARTERLY No 24 • JUNE 2008 Many of the DSO members will have relatively national intelligence model protocol, which is high ranks in the police. The SAPS seldom has large applicable to other intelligence agencies in the UK. numbers of similar ranked officials deployed in one The Serious Fraud Office has been incorporated unit and the prospect of being transferred to other into SOCA and there are officials from relevant units is high. High-ranking officers in the SAPS agencies, like Customs and Excise and Revenue seldom carry investigation dockets. Many DSO Services, seconded to it. members are passionate about investigation and would prefer not to work in a largely managerial or In South Africa, a unit modelled on SOCA with administrative capacity. In addition, at present there personnel transferred or seconded from the is no clear career path for detectives. These issues intelligence agencies, the Receiver of Revenue and are of concern to many DSO members who may Customs and Excise, the DSO and the SAPS consider finding alternative employment. The stated Organised Crime Unit would provide a formidable intention of strengthening the fight against armoury in combating serious and complex organised and financial crime and corruption may organised crime. Board members could be drawn thus be thwarted. from government and civil society to ensure that there is sufficient oversight of the new body. Conclusion Investigators could have a dual reporting line to the At the time of writing, businessman Hugh Glenister Board and the Minister of Safety and Security. The approached the High Court to interdict the new ‘political champion’ and coordinating and government from introducing legislation dissolving management structure envisaged for the criminal the Scorpions. The High Court rejected the justice system could play a role in managing the application on the grounds that it does not have daily interface between the proposed unit and the jurisdiction to intervene in political processes. criminal justice agencies. However, it has given Glenister and opposition parties leave to appeal to the Constitutional Court. References Public sentiment is divided on the issue of whether African Private Sector Group World Bank, South Africa 2006. An Assessment of the Investment Climate. Available the fight against crime will be improved with the at www.worldbank.org [accessed 19 May 2008] closure of the DSO. The matter may take much longer to resolve than anticipated. However, if the Price Waterhouse Cooper 2007. Economic Crime: People, political will to fight organised and financial crime Culture and Controls, Fourth Biannual Global Economic and corruption exists, there may be a need to Crime Survey, South Africa. Available at www.pwc.com/ crimesurvey [accessed 19 May 2008] consider alternative models that will improve on both the DSO, the SCCU and SAPS initiatives and Endnotes take into account the Khampepe recommendations 1 The ‘untouchables’ refer to the courageous and with regards to the DSO. incorruptible law enforcement agents who prosecuted Mafi Don Al Capone during the prohibition era in the A ‘third way’ model that might be considered is that United States. 2 Gail writes in her personal capacity. She is a member of of the Serious Organised Crime Agency in the the DSO and has been a consultant for the South United Kingdom. SOCA is a non-departmental African Institute for International Affairs project on public body that reports to an independent board. organised crime. The Board is appointed by the Home Secretary and 3 The SAPS Commercial Branch working in the SCCU it ensures that the agency discharges its statutory reports to the police but is co-located with the prosecutors from the National Prosecuting Service. mandate and the priorities set by government. The agency has four directorates, namely intelligence, enforcement, intervention and corporate services. The agency combines the skills of co-located intelligence collectors, analysts, investigators and prosecutors and support personnel. Intelligence collectors in SOCA are compelled to adhere to a

SA CRIME QUARTERLY No 24 • JUNE 2008 WANNENBURG 21

THE SCORPIONS LOSE THEIR STING Challenges to incorporation of the DSO into the SAPS1

Anthony Minnaar University of South Africa (UNISA) [email protected]

While it would appear that the motivations to incorporate the Directorate of Special Operations (DSO) or Scorpions into a new South African Police Service directorate are largely politically driven, there are a number of practical obstacles standing in the way of a ‘smooth’ incorporation. Foremost among these is the manner of operations of the Scorpions, the way that they investigate certain crimes by means of prosecution-led teams, and their more effective use of intelligence-driven crime information. This is diametrically opposed to the SAPS investigation modus operandi, which is largely reactive. Furthermore, many of the Scorpions investigators, representing as they do a vast pool of built up experience and expertise, do not want to serve in the SAPS under the latter’s investigating regime. Other sticking points would be the fact that they are paid infinitely better than SAPS detectives, are better funded and resourced, have a far lighter case load (and one shared in a team) – all in direct contrast to members of the SAPS.

hile it would appear that the decision to • The use of teams of multi-disciplinary incorporate or subsume the Directorate investigators, prosecutors and intelligence Wof Special Operations (or Scorpions), analysts into the South African Police Service (SAPS) is a fait • The reliance on the collection of crime accompli, the process of incorporation will not be information/intelligence straightforward. This is largely because the decision • The type of specialist training members receive to disband the Scorpions is politically motivated, • The specialised focus of the investigations and rather than motivated by practical concerns around their selection on the basis of being ‘high the functionality of the unit. profile’, combined with the probability of obtaining successful convictions There are a number of practical obstacles to the • The types of crime focused upon disbandment of the unit. These obstacles relate fundamentally to the fact that the methods used by Additional issues that complicate incorporation are the Scorpions to undertake investigations cannot the sense of elitism (esprit de corps) that was built easily be incorporated into the police. These up around the unit; that the DSO investigators were include: used to lower case loads (than SAPS detectives); • The use of a ‘preparatory investigation’ or and the fact that they have been better paid and enquiry better resourced than units of the SAPS. They have

SA CRIME QUARTERLY No 24 • JUNE 2008 23 also enjoyed a great deal more independence than economic crime, and corruption in the police, the SAPS,2 reporting directly, as they do, to the criminal justice system and security forces. This was Director of Public Prosecutions (via the DSO important later when the the Anti-Corruption Unit of Director) who in turn is accountable directly to the the SAPS was disbanded in 2003. President (although, again this is nominally supposed to be through the Minister of Justice). The Amendment to the Act specifically tasked the Only then do they report to Parliament via the DSO to undertake investigations and to ‘carry out Parliamentary Portfolio Committee for Justice. any functions incidental to investigations’. Furthermore, it was tasked to ‘gather, keep and Background and legislative context analyse information’ (NPAA Act 2000: s7(1a(i-iii)(aa- In 1998 Parliament legislated for the establishment bb)). This Act also replaced ‘enquiry’ throughout the of a National Prosecuting Authority (NPA) with a Act with the word ‘investigation’ and for the first Director of National Prosecutions to replace the old time used the word ‘Special Investigator’. The Attorneys General’s offices nationally and amended Act also refers to the DSO acting on the provincially. At the same time this legislation – the existence of ‘reasonable suspicion’ that an offence National Prosecuting Authority Act (No 32 of 1998) had been committed or was being contemplated – made provision for the President to establish and planned (NPAA Act 2000: s13(b)(b)). ‘Investigating Directorates’ (not more than three were to be allowed) to reside in the Office of the Accordingly the initiation of ‘preparatory National Director of Public Prosecutions (National investigations’ was strongly premised on the Prosecuting Authority Act, 1998: s7(1a)). collection of information and crime intelligence, as well as on information submitted to them. The This Act allowed investigating directors to DSO’s use of crime information/intelligence-driven investigate any matter relating to an offence or a investigation and prosecution as a modus operandi suspected offence by means of an ‘enquiry’ or a so- was innovative and more advanced than the SAPS’ called ‘preparatory investigation’ (NPA Act 1998: more recent intelligence-led policing.3 The amended s28(1)). Such an inquiry was allowed to be held in Act set up a Ministerial Co-ordinating Committee to camera (NPA Act 1998: s28(3)). Moreover, an co-ordinate operations (intended to be applicable to investigating director in such an enquiry all agencies within the Criminal Justice System) as (preparatory investigation) could call any person to well as to oversee communication and the transfer give evidence, obtain any document, seize any of relevant information to the DSO (NPAA Act 2000: computer (as evidence), and enter and search any s31). In addition, the Committee was tasked to premises (with reference to the applicable sections ensure that DSO investigators adhered to a ‘Code of for warrants and searches in the Criminal Procedure Conduct for Special Investigators’ (NPAA Act 2000: Act) in connection with the alleged offence or s41(2)(n)). This was the first time a specific code for suspected commissioning of any specified offence investigators had been developed and implemented. (NPA Act 1998: s28(6&7); s29(1&2)). On the basis of such an enquiry a full-blown criminal This pointed to the fact that a ‘new’ kind of investigation could be launched by the NPA. investigation process was underway, that specifically emphasised the use of information/intelligence in Although the forerunner of the DSO – the directing investigations. A further innovation was the Investigative Directorate for Organised Crime fact that the unit operated on a team basis. Teams (IDOC) – was set up on 1 September 1999, the were headed by prosecutors and included special DSO was formally established by means of the investigators and intelligence gatherers and analysts, National Prosecuting Authority Amendment Act No who all worked together to ensure that such a 61 of 2000. This Act specified that because of its focused investigation yielded enough evidence for ‘limited investigative capacity’ it needed to conviction. This was loosely modelled on the concentrate on investigating organised crime, investigative methods of the USA Federal Bureau of violent crimes, political violence, terrorism, serious Investigation (FBI).

24 MINNAAR SA CRIME QUARTERLY No 24 • JUNE 2008 DSO vs SAPS methods of investigation investigation teams are able to become specialists. This way of operating is fundamentally different to This is because individual teams tend to the way SAPS detectives investigate a crime. Police concentrate on one type of crime. Since they deal detectives respond to a crime being committed with considerably fewer cases than SAPS (reactive), possibly need to secure a crime scene, detectives, they are also able to spend more time collect evidence, open a docket, make further and concentrated attention on single cases. On investigations and then hand over such docket of the other hand, it has been estimated that each evidence to the Prosecution Services for evaluation. docket-carrying SAPS detective has on average 70 The Prosecution Services decide whether the case dockets on hand (IHRCJS 2001: 7).4 Such a heavy should proceed to court for a possible prosecution caseload also tends to mean that detectives take and eventual conviction. In most cases the first time shortcuts or simply mark dockets as ‘undetected’, a prosecutor has contact with the individual or ‘witness/es cannot be traced/found’, or detective or has insight into the case evidence is ‘insufficient evidence available’ – all in an effort to when s/he is presented with a completed case. reduce their caseloads. So while DSO investigators Experience has shown that this often leads to have become specialists, SAPS detectives have dockets being rejected by prosecutors or cases being become merely generalists, particularly since the struck off the roll even before they come to court, amalgamation of the specialist units into three core simply because they are under- or ill-prepared by focus groups. the overworked and overburdened SAPS detectives, or because the evidence has been poorly or All things considered, the DSO has a much better inadequately collected and the investigation has, in chance of a high success rate for convictions than many cases, been substandard and/or rushed. the SAPS, although one should bear in mind that the Scorpions select cases on the basis of success In contrast, placing a prosecutor at the head of the probabilities. This is shown for instance by the DSO investigative teams means that cases are results of the 2002/3 recording year where out of developed under the continuous guidance of a 167 finalised investigations and 117 finalised prosecutor, from the initiation of a ‘preparatory prosecutions the DSO obtained 104 convictions investigation’ to conviction. In this way the chance (Redpath 2004: 51). of case evidence being incorrectly collected is drastically reduced. In addition, the insights and A recipe for friction conclusions of a multi-disciplinary group are The public perception that the DSO is more considered. This reduces the probability that successful than the SAPS has led to friction and evidence or possible leads for further investigation envy between the DSO investigators and the SAPS will be overlooked, as may be the case if there is a detectives. The better success rate has been single detective leading an investigation. assisted by the fact that the DSO is able to resource its far smaller number of investigators The Scorpions have the additional advantage of infinitely better than their SAPS counterparts. The sufficient funding to contract and pay for the high success rate and the perception that DSO services of specialist consultants, as well as to make investigators are a ‘cut above’ meant that as they use of outside forensic auditors. This is necessary became more successful, their morale grew – due to the complicated nature of the types of crimes again in contrast to the low morale evident among being investigated. They are also able to follow many members of the SAPS, which is often leads internationally, with all the cost implications manifested in poor service delivery at police thereof. In short, the Scorpions are far better stations. resourced and funded than their SAPS counterparts could ever hope to be. These perceptions of envy and resentment have been confirmed in a number of field research There are other differences between DSO and SAPS projects undertaken by the author over the last few investigations. The DSO prosecution-led years, dealing inter alia with police service

SA CRIME QUARTERLY No 24 • JUNE 2008 MINNAAR 25 delivery, use of force by police, community policing detective units to replace the multiplicity of and the transformation of SAPS. specialised units again led to SAPS detectives becoming investigators of a whole range of crimes SAPS resentment towards the DSO has also been instead of concentrating on a few selected crimes greatly fanned by the fact that investigators in the and building expertise in those specific crime DSO are much better paid than their SAPS fields.8 counterparts. Even more galling to SAPS detectives is the fact that many of their number left the police It is therefore no wonder that the Scorpions, with for the more lucrative posts in the DSO. These their approach, appear to perform so much ‘better’ former SAPS detectives were invariably those with than the SAPS detectives. Even though the many years of experience and built-up expertise. As Scorpions are accused of being selective (‘cherry the SAPS Detectives Division was left with a smaller picking’) in the (high profile) cases that they took pool of detectives, this started a vicious cycle of on, and that their decisions to prosecute are often training new recruits, then overloading them with based on the likelihood of obtaining a successful dockets so they had no time to give concentrated conviction, there is no doubt that the Scorpions are focus to a more manageable number of dockets, overall extremely effective in their investigations. nor to build up specialist expertise. More importantly, because the DSO combines a In fact as early as 1994, only about 26 per cent of criminal law and criminal procedure approach with detectives had been on a formal investigation a civil law perspective it is more effective at training course, while only 13 per cent of detectives addressing corruption than is the SAPS. In practical had over six years experience (White Paper 1998: terms this means that the Scorpions’ teams 13). So within this situation the loss of experienced incorporate the principles of asset recovery, detectives to the DSO had a double impact. In the following the proceeds of crime and implementing context of high crime levels and overloaded forfeiture and restitution within their overall detectives it was virtually impossible to implement investigation approach. To this end the Scorpions meaningful training programmes, as SAPS work closely on joint operations with the other two detectives had no time to go on lengthy training NPA Investigative Directorates, namely the Asset courses. Forfeiture Unit (AFU) and the Special Investigations Unit (SIU), both of which were tasked, inter alia, to The skills differences were further compounded look at all forms of high-level (i.e. large-scale) when DSO investigators received specialised corrupt practices, particularly in government investigation training from both the FBI5 and the departments. London Metropolitan Police.6 While this was happening the SAPS began amalgamating their One of the unfortunate misconceptions in the specialised detective units.7 debate about the DSO has been caused by lumping together the activities, investigations, cases and Although the specialised units were not without eventual joint prosecutions of the three Investigative problems, the amalgamation meant that the overall Directorates of the NPA, namely the DSO, the SIU specialised investigative capacity of the SAPS was and the AFU. While they have often undertaken reduced and the ‘surplus’ detectives (i.e. those who joint operations, these have usually been reported were not taken up in the three specialist as being solely the work of the Scorpions. While the investigation units that were established) were units support or complement each other’s work and reassigned back to police stations under the direct investigations, they remain independent of one management of a police station commissioner. This another and work on different cases. The SIU and once again diluted their specialised crime focus, AFU often become involved in the later stages of forcing them to try and deal with station case DSO-led investigations. Closing down the DSO will backlogs of all crime dockets. Furthermore, the break down this investigative ‘troika’ and is likely to creation of large but fewer multi-disciplinary compromise their overall effectiveness.

26 MINNAAR SA CRIME QUARTERLY No 24 • JUNE 2008 Some concluding remarks aim to screen, weed out and get rid of all those The differences between the SAPS and the DSO perceived to be politically incompatible with present very real obstacles. The Government’s new government’s ‘fight against crime’. To this end General Law Amendment Bill9 makes no mention of government members have made wild statements whether the ‘investigative approach’ developed by about the Scorpions being populated largely by the Scorpions will be retained in the proposed new former ‘apartheid spies’. Facing this attitude, not SAPS Directorate for Priority Crime Investigation only towards their investigation approach, but also (DPCI). Furthermore, in the new Bill the implied to their professionalism and loyalty to the emphasis has been solely on ‘fighting organised government, many Scorpions investigators have crime’. No mention is made of other crime focuses, come away with the feeling that the SAPS does not notably corruption. really want to employ any of them in the new DPCI, nor does it want to make use of their Members of the Scorpions have been leaving the specialist investigation skills, or implement (for unit in droves since its disbandment and absorption continuity) any form of prosecution-led (restructuring) was first mooted. This represents a investigations. It has also been stated publicly that huge loss of specialist investigative skills and the DPCI will not be allowed to pick only cases expertise that the new DPCI would have to replace, that it wants to investigate but has to investigate all or train up new recruits. cases of high-impact organised crime. Such a result makes a further mockery of the stated intent of the While the Minister of Safety and Security has Bill that the DPCI will be a ‘specialist investigation publicly proclaimed that the DPCI will continue to unit’. investigate all current cases of the Scorpions, the DSO investigators have voiced concerns that they It is then not surprising that it is being asked would not be investigated with the same vigour or whether any of the existing members of the in the same manner as the Scorpions did. A further Scorpions will ever willingly accept employment obstacle to their incorporation has been their fears with and incorporation into the new DPCI. Simply that they will be required to fit into the same old put, it is doubtful whether the SAPS will have the police culture and manner of conducting capacity (without incorporating all the Scorpions investigations as has become standard in the SAPS investigators into the new unit) to continue with, let (reactive, overloaded, overworked and rushed, alone improve on, the case successes of the DSO, without access to supporting colleagues or outside and whether the fight against corruption will be a specialists, nor continual consultation with a focus of the new DPCI. Finally, whether the DPCI prosecutor). will ever become the mooted ‘super-unit’, as intended, remains to be seen. Questions have also been raised whether the new DPCI would be resourced and funded at the same References Anon 2001. Submission on SAPS complement & training level as the Scorpions’. And does the SAPS have the to the Parliamentary Portfolio Committee on Safety & necessary infrastructure, resources and funding to Security. Institute for Human Rights and Criminal Justice handle sophisticated organised crime cases? Studies. 10 October. Cape Town: Parliament.

Other practical concerns that have been raised deal Department of Safety & Security 1998. White Paper on Safety and Security: In service of Safety – 1999-2004. with such aspects as the higher remuneration (Also available at www.gov.za) received by the Scorpions and whether they would still be paid on the same level. General Law Amendment Draft Bill. (Government Gazette no. 31016 9 May 2008) Available at http://www.pmg.org. Another stated intent contained in the Bill is that all za/files/bills/080513draftgenerallaw.pdf [accessed 15 May 2008]. new members will be selected by the National Police Commissioner. This is understood by Khampepe Commission of Inquiry into the Mandate and Scorpions members to be a thinly veiled political Location of the Directorate of Special Operations (“The

SA CRIME QUARTERLY No 24 • JUNE 2008 MINNAAR 27 DSO”). Final Report. February 2006. Available at opposition to its use in the SAPS, being largely based http://www.thepresidency.gov.za/main.asp?include=docs/r on the use of modus operandi and perpetrator eports/khampepe/index.html profiling crime information as well as the recent implementation (only at selected police stations) of Minnaar, A 1998. The use of informers by the SAPS to spatial (GIS) crime analysis as an adjunct to reported combat organised crime, syndicate operations and gang crime statistics. See Zinn (2008) for a more detailed activities. Paper presented to the Technikon SA: World analysis of intelligence-led policing). Conference – Modern Criminal Investigation, Organized 4 The internationally accepted (Interpol) docket Crime and Human Rights. Sun City, South Africa. 22 caseload norm is an average of 23 dockets per September. detective. 5 A number of selected investigators were even trained Minnaar, A 2008 (forthcoming). Transforming policing in a at the FBI Academy at Quantico, Virginia (near high crime transitional democracy: The South African Washington). experience. In E Plywaczewski (ed), Current Problems of 6 Others received different training (in intelligence the Penal Law and Criminology. Warsaw: Temida 2 gathering and analysis for instance) at the Bramshill Training Centre north of London in the UK. Montesh, M 2008. A critical analysis of crime investigative 7 Before the restructuring of the Detective Service began system within the South African criminal justice system: A in 2000, there were 534 specialized units in the comparative study. DLitt et Phil. University of South Africa Detective Service, which led not only to fragmentation of investigations but to the non-sharing of information National Prosecuting Authority Act 1998 (Act No. 32 of or any close co-operation in investigating similar 1998) cases. 8 See Minnaar (2008 forthcoming). National Prosecuting Authority Amendment Act 2000 (Act 9 This amends the South African Police Service Act. A No. 61 of 2000) second Bill, which repeals the Scorpions provisions in the National Prosecuting Authority Act, has not yet Prevention of Organised Crime Act 1998 (Act No. 121 of been tabled in Parliament, although it was also 1998) approved by the cabinet at the same time (end of April 2008). Redpath, J 2002. Leaner and meaner: Restructuring the detective service. ISS Monograph No. 73. Pretoria: Institute for Security Studies.

Redpath, J 2004. The Scorpions: Analysing the Directorate of Special Operations. ISS Monograph No. 96. Pretoria: Institute for Security Studies.

South African Police Service (SAPS) Act 1995 (Act No. 68 of 1995)

Zinn. R 2008. Incarcerated perpetrators of house robbery as a source of crime intelligence. DLitt et Phil. University of South Africa

Endnotes 1 I would like to acknowledge and thank my colleagues, Prof. Johan Prinsloo and Dr Rudolph Zinn, for their insightful comments and the informal discussions I had with both regarding the content of this article. 2 For instance they have steadfastly resisted being told to close or abandon any cases (unlike certain instances where National Commissioner Selebi has allegedly done so) on non-legal or non-investigation grounds by not brooking any interference in the whole process. 3 This has been more sporadic than formally implemented in the SAPS, and there has been

28 MINNAAR SA CRIME QUARTERLY No 24 • JUNE 2008 A WATCHDOG WITHOUT TEETH? The Independent Complaints Directorate

Johan Burger Institute for Security Studies [email protected]

Cyril Adonis Centre for the Study of Violence and Reconciliation [email protected]

The Independent Complaints Directorate (ICD) was established in 1997 to promote proper police conduct and to ensure a transformed police service in line with the spirit and purport of the Constitution of the Republic of South Africa. Concerns within the ICD that the police very often do not comply with their recommendations led to a joint ICD/ISS research project to investigate these concerns. The study eventually concludes that the ICD is relatively successful in cases of death in police custody or as a result of police action, but with regards to police misconduct and recommendations for disciplinary action, it is largely ignored by the police.

he Independent Complaints Directorate (ICD) manner. The researchers accordingly formulated is an independent institution established in the following objectives for this project: Tterms of section 53 of the South African • To develop a clear understanding of the Police Service Act 1995 (Act No 68 of 1995). In an relationship between the ICD and the police effort to ensure that those police officers that do not • To examine the processes and procedures used uphold the rule of law are held accountable for their by the ICD to present its recommendations actions, the ICD makes recommendations as to how relating to disciplinary or administrative action, these officers should be dealt with, both as well as recommendations pertaining to departmentally and criminally. criminal matters dealt with by the Directorate of Public Prosecutions When members of the ICD approached the Institute • To establish the general level of compliance by for Security Studies (ISS) during 2006 they were the police with recommendations by the ICD particularly concerned that resource shortages, • To evaluate the impact of recommendations by deficiencies within its legal mandate and procedural the ICD guidelines, as well as poor ICD/police relations in • To identify possible reasons for non-compliance some areas were having a negative impact on the • To make recommendations that would address ICD’s ability to achieve its constitutional objective. areas of non-compliance This objective is to ensure that complaints in respect of offences and misconduct by members of the The rest of this article will take a look at methods police are investigated in an effective and efficient used in the study, the legislative mandate of the

SA CRIME QUARTERLY No 24 • JUNE 2008 29 ICD, the findings and recommendations of the • To investigate any death in custody or as a study and, finally, important lessons from result of police action international experience. • To investigate any matter referred to it by the Minister or the relevant member of the Executive Methodology Council The researchers adopted a combination of • To make recommendations to the relevant quantitative and qualitative research methods for police commissioner this study. The quantitative component of the study consisted of an analysis of 573 case dockets Probably the biggest weakness in the legislation is of substantiated and closed cases in all nine the absence of a legal obligation to compel the provinces. These are for complaints lodged with police to comply with the recommendations of the the ICD since its inception in 1997. The research ICD in terms of disciplinary action against members team focused only on CLASS I (death in police accused of misconduct. In contrast, the Domestic custody or as a result of police action), CLASS III Violence Act, 1998 (Act No 116 of 1998), section 18 (criminal offences committed by members of the (4), extends the mandate of the ICD to police police), and CLASS IV cases (less serious misconduct in relation to the latter Act and, unless misconduct committed by members of the police). otherwise directed by the ICD, the police must institute disciplinary proceedings against any The qualitative component of the study consisted member who failed to comply with an obligation primarily of structured interviews with the ICD referred to in this Act. provincial heads and SAPS provincial commissioners (or senior officials delegated by Findings and recommendations of the study them). In total, eight ICD provincial heads and For purposes of clarity and conciseness the findings five SAPS provincial commissioners constituted of this study are discussed under sub-headings in line the qualitative sample for the study. In addition to with the research objectives. the structured interviews, the researchers conducted limited research to determine lessons Relationship between the ICD and the police learnt from international experience such as The relationship between the ICD and police provided by the report of the Commonwealth management in the provinces is generally good, Human Rights Initiative (CHRI) in 2005. although the same can not be said about middle and lower level staff in the two organisations. There is Legislative mandate of the ICD evidence of poor personal relationships in some The legislative origin of the ICD can be traced areas, mutual distrust, perceptions of an attitude of back to section 222 of the Interim Constitution of superiority by the police vis-à-vis the ICD, and a the Republic of South Africa, 1993 (Act No 200 of perceived reluctance by some police managers to act 1993) and section 206 (6) of the 1996 against members, notwithstanding ICD Constitution of the Republic of South Africa. As a recommendations. The ICD appears to distrust the consequence of the provision in the interim police to the extent that only about 30 per cent of Constitution, section 53 of the South African the cases that are reported to it, are referred to the Police Service Act, 1995 provides for the police for investigation or further investigation. These establishment of an Independent Complaints include cases of misconduct. It would probably have Directorate and its functions. In order to achieve made more sense, especially in view of the growing this objective the Directorate is given, among numbers of the police and the resource limitations of others, the following powers (section 53 (2) the ICD, to refer more investigations to the police, (a)–(c): closely monitored by the ICD. • To investigate any complaint of misconduct or offence against any member of the police (or In addition to these factors relations between the ICD to refer such an investigation to the police and and the police are also negatively influenced by the to monitor that investigation) following conditions:

30 BURGER AND ADONIS SA CRIME QUARTERLY No 24 • JUNE 2008 • Based on some of the views expressed during police members and the fact that the ICD the structured interviews, it would seem that the investigates, on average, just over 5 000 cases per independence and credibility of the ICD is year. In addition, the effectiveness of investigators is compromised by its location within the marred by insufficient resources such as vehicles. A Department of Safety and Security, and the fact work-study report done by the Department of that it has to report to the Minister who is also Public Service and Administration (DPSA) in 1997 the Minister responsible for the police (viz. allocated 535 posts to the ICD, including 339 posts conflict of interest). The concern here is that the for investigators. By 2007, ten years later, the ICD’s Minister, in his endeavours to protect the image staff complement stands at 247, less than half the of the police, might not always be objective recommended number. Some progress has been when he is required to take decisions on made with the setting up of two satellite offices in recommendations by the ICD that may KwaZulu-Natal and the Eastern Cape, but even with negatively reflect on the police. these offices, the ICD simply does not have enough • The lack of legal authority for the ICD to resources to carry out its mandate effectively. compel the police to report back on whether or not the ICD recommendations were The level of police compliance implemented, or to provide documented The level of police compliance with ICD reasons for non-implementation. recommendations relating to Class I cases (deaths • The general practice by the police not to in police custody or as a result of police action) respond to written communication from the ICD appears to be relatively high. This is probably the or to respond irregularly. result of the legal obligation that the police have to • The absence of a prescribed coordinating inform the ICD of deaths in these instances. mechanism between the ICD and the police, Furthermore, these deaths are matters for the courts which leaves liaison between the two and the police have virtually no influence on the organisations to personal arrangements. outcome of these cases. • The ICD is frustrated by the police practice of waiting for the conclusion of a criminal trial However, Class IV cases (misconduct) seem to have against an accused member before they the highest frequency of non-compliance. Even in consider the possibility of departmental steps cases where the police do comply with ICD against that member. It is also not always certain recommendations to take departmental action, a who in the police is responsible for such disciplinary panel consisting exclusively of police decisions or for implementing ICD officials decides the guilt or innocence of the recommendations. accused. This raises serious questions about the objectivity of these hearings. Processes and procedures used by the ICD A number of shortcomings were found in the way Out of the 573 cases studied, 331 were referred by that dockets were kept at most of the provincial the ICD to the police for specific action. The offices of the ICD. In most of the dockets there was majority of these (187) were referred to the police incomplete or missing information, and many case for investigations or for further investigations files were closed without any indication of the monitored by the ICD. In 131 referred cases outcome of criminal or disciplinary proceedings. specific recommendations were made in terms of Part of the reason for this is that the criteria used for departmental steps (disciplinary action). In some the closing of substantiated cases is not always cases a single referral was for both criminal and clear and it appears that there is no uniform way in departmental prosecutions. The remaining cases which this is done in the provinces. were either referred to the Director of Public Prosecutions (DPP) or, in spite of being closed as ICD resources substantiated, were closed by the ICD because The ICD is severely understaffed, especially when there were no real prospects of a successful considering the rapidly increasing numbers of prosecution.

SA CRIME QUARTERLY No 24 • JUNE 2008 BURGER AND ADONIS 31 In the process of communicating with the police Lessons learnt from international experience relating to the 331 referrals, the ICD wrote 761 With the disparate range of civilian oversight letters and received only 439 in reply (i.e. mechanisms that exist for police agencies across the approximately 58 per cent). In 143 cases (referrals) world, it is a challenge to find best practices that there were no written replies from the police. On can be regarded as universally acceptable. In the top of all the difficulties the police inaction creates United States, for example, there is an ongoing for the ICD, it also makes it impossible for ICD staff debate as to whether, and to what extent, the to conclusively close their files in the affected discretion of police chiefs in relation to disciplinary cases. Based on this data it can only be concluded action against police officials should be subject to that the police largely ignore the ICD. This is an civilian oversight (Stone & Bobb 2002:1). However, untenable situation and makes a farce of the some good examples of civilian oversight are oversight function of the ICD. provided in the Commonwealth Human Rights Initiative (CHRI) report ‘Police Accountability: Too Possible reasons for non-compliance important to neglect, too urgent to delay’ (2005). There are a number of possible reasons for the non-compliance by the police. The primary reason According to the CHRI Report (2005:62-63) some seems to be in the wording of section 53 of the countries (e.g. Bangladesh, Swaziland and South African Police Service Act (1995), and in Mozambique) have no independent civilian particular the absence of an obligation to report to oversight structures, and in others (e.g. Malaysia the ICD in terms of referrals (particularly and Maldives) single structures exist. Countries such recommendations). In this regard the wording of as South Africa have more than one, viz. the section 18 of the Domestic Violence Act, 1998, Human Rights Commission (HRC) and the serves as an example of how the police can be Independent Complaints Directorate (ICD), although obligated to comply with recommendations. the HRC will invariably refer all complaints against Compliance does not mean that the the police to the ICD. In the Commonwealth thirty- recommendation should be acted upon in the same six countries have ombudsmen, twenty have human way as a directive, but that the police should at rights institutions and only a few have dedicated least report the outcome of their actions to the ICD. police complaints agencies. Whereas ombudsmen Should they decide to either take no action or to and human rights institutions have broader take alternative action, they should be compelled mandates that may include oversight of the police, to inform the ICD both of the steps they have police complaints institutions are dedicated to taken, as well as the reasons for their decision. investigating, reviewing and monitoring police- Other possible reasons have to do with the related complaints. absence of a prescribed coordinating mechanism and other forms of formal interaction between the According to the CHRI, ‘[e]xperience shows that ICD and the police, e.g. formally appointed liaison even independent oversight agencies with sufficient officials. Formal contact and coordination should resources and strong investigative powers have also help to solve many of the problems that relate proven ineffective if the police and government to distrust between members of the ICD and the routinely ignore their recommendations’ (CHRI police. Report 2005:67). In conclusion, the CHRI Report (2005:64) provides the following summary of the Impact of ICD recommendations minimum requirements for successful oversight For reasons discussed above it is difficult to assess bodies: the impact of the ICD in terms of its • Independence: should be independent of the recommendations to the police. When there is only executive and the police and empowered to a 58 per cent response to the ICD’s letters relating report directly to parliament. to specific referrals, and when another 143 referrals • Sufficient powers: should have the authority to elicit no response at all from the police, it would independently investigate complaints and issue appear that the impact is relatively low. findings. This requires concomitant powers to

32 BURGER AND ADONIS SA CRIME QUARTERLY No 24 • JUNE 2008 conduct hearings, subpoena documents and • The Minister for Safety and Security (or compel the presence of witnesses including the parliamentary committee/alternative Minister) police. It should also be able to identify should consider the issuing of regulations in organisational problems in the police and terms of the above Act (or new Act) to regulate suggest systemic reforms. cooperation and coordination between the ICD • Adequate resources: should have sufficient funds and the police. The regulations can provide, to investigate at least the more serious inter alia, for coordinating structures at complaints referred to it. Skilled human provincial (and national) level; the appointment resources to investigate and otherwise deal with of liaison officials within both the ICD and the complaints should also be available. police; and additional guidelines to fill • Power to follow up on recommendations: procedural gaps in the Act. should be empowered to report its findings and • Provision should be made, either in the Act or in recommendations to the public, and to follow the regulations, for regular ICD inspections at up on actions taken by the police chief in police offices to determine the outcome and response to its recommendations. It should also impact of ICD recommendations. In this regard be able to draw Parliament’s attention to a form of cooperation with the police’s internal instances where police take no action. inspectorate should also be considered. • Care should be taken not to make ICD From the research findings listed previously, it is recommendations obligatory, but to ensure that obvious that civilian oversight of the police in South the police provide acceptable reasons for non- Africa falls visibly short of the above guidelines. compliance or alternative action if recommendations from the ICD are not Recommendations implemented. Implementing the following recommendations • ICD policy should set out the conditions and would, in our view, allow the ICD to perform its circumstances for both taking over investigations constitutional mandate effectively: from the police, and referring investigations to • For purposes of independence and credibility the police. This should include monitoring and the ICD should report directly to parliament (a reporting on such investigations. This may special parliamentary committee or, relieve the ICD’s case load. alternatively, the Portfolio Committee for Safety • The ICD should provide for in-service training at and Security). Alternatively, the ICD should police stations that should include how report to a minister who is not also the minister information is shared about the purpose, responsible for the police. structure and functioning of the ICD. In • If the above recommendation is accepted, a addition, the ICD should be involved in the separate ‘Act of Parliament’ should be development of training curricula for the police developed for the ICD. Such an Act should and the provision of relevant formal training at address the deficiencies in the ICD’s mandate, police training colleges. especially the absence of an obligation on the police to report back to the ICD in terms of Conclusion recommendations by the latter. It should also It can be concluded from this study that the ICD is provide for a ‘reasoned response’ from the not completely toothless – consider, for instance, police in cases where recommendations are not the legal obligation on the police to report Class I implemented or where alternative steps are incidents to the ICD, and the referral of criminal taken. offences by the ICD to the Director of Public • If the above recommendations by the ICD to the Prosecutions for further action. However, if it is to police on action to be taken are not accepted, perform its constitutional mandate effectively it Section 53 of the South African Police Service certainly needs more and sharper teeth, especially Act (1995), should be amended to address the with regard to disciplinary action against offending deficiencies raised above. police officials.

SA CRIME QUARTERLY No 24 • JUNE 2008 BURGER AND ADONIS 33 References CHRI Report 2005. Police Accountability: Too important to neglect, too urgent to delay. Commonwealth Human Rights Initiative (CHRI). Available from www.humanrights initiative.org/publication [accessed on 20 June 2007].

Constitution of the Republic of South Africa, 1996 (Act 108 of 1996).

Interim Constitution of the Republic of South Africa, 1993 (Act 200 of 1993).

IPCC Annual Report 2005-2006. Annual Report and Summary of Accounts of the Independent Police Complaints Commission (IPCC) for England and Wales. Available from www.ipcc.gov.uk [accessed on 21 June 2007].

IPCC Corporate Plan 2005-2008. Corporate Plan of the Independent Police Complaints Commission (IPCC) for England and Wales. Available from www.ipcc.gov.uk [accessed on 21 June 2007].

South African Police Service Act, 1995 (Act 68 of 1995).

Stone, C & Bobb, M 2002. Civilian oversight of the police in democratic societies. Paper delivered at the Global Meeting on Civilian Oversight of Police, Los Angeles. May 5-8.

34 BURGER AND ADONIS SA CRIME QUARTERLY No 24 • JUNE 2008 INVESTIGATING THE INVESTIGATORS A summary of the Khampepe Commission of Inquiry

Andrew Kanyegirire Institute for Security Studies [email protected]

The Directorate of Special Operations (DSO) was set up in 1999 as a specialised unit of the National Prosecuting Authority with the dual responsibility of investigating and prosecuting national priority crimes, the main focus being high-level corruption and organised crime. Despite its successes, by 2005 critics were raising questions about its mandate and the strained relationship between the DSO and the South African Police Service (SAPS). Consequently, President Mbeki appointed Judge Sisi Khampepe to head a Commission of Inquiry into the mandate and location of the DSO. This article is a summary of some of the key issues raised in the Khampepe Report.

he Directorate of Special Operations (DSO) DSO and the South African Police Service (SAPS). was established in 1999 with the specific To avoid further political and legal rows concerning Tresponsibility to investigate and prosecute the DSO, President Mbeki appointed Judge Sisi cases of organised crime and corruption. The DSO, Khampepe on 1 April 2005 to head a Commission also known as the Scorpions, was located in the of Inquiry to ‘inquire into, make findings, report on National Prosecuting Authority (NPA) to allow for and make recommendations’ regarding the mandate prosecutor-led investigations. Within no time the and location of the DSO. Scorpions were involved in a number of high-level investigations involving the political and economic In June 2006 President Mbeki and his Cabinet elite of South Africa. The perceived success of their adopted the recommendations of the Khampepe investigations, particularly against high-ranking Commission, but the report was only made public public officials, brought them a measure of public almost two years later, in May 2008, soon after support. However, repeated media leaks about their Cabinet had endorsed draft laws to dissolve the investigations and allegations of abuse of power in Scorpions and have them integrated into the SAPS. the exercise of search warrants (particularly in the These Bills reflected the ANC’s decision to Jacob Zuma case), led to criticism from politicians dismantle the Scorpions, as was agreed by the party who felt that the Scorpions were being used to at its 2007 Polokwane Conference. influence the outcome of the power struggle between President Thabo Mbeki and Zuma in the ANC. The concerns of the Commission The Khampepe Commission of Inquiry was In 2005 the legality of the Scorpions’ mandate was established to respond to concerns and questions called into question and problems were raised about relating to the role and functioning of the DSO that the apparently strained relationship between the had been raised by the public, components of the

SA CRIME QUARTERLY No 24 • JUNE 2008 35 criminal justice system and from the intelligence The Commission was tasked with the responsibility community. As outlined in the Khampepe of obtaining clarification on the location, mandate Commission Report, these concerns related to: and operation of the DSO vis-à-vis other relevant government departments or institutions (Khampepe (a) the perceived institutional nightmare of the DSO 2006: 6-7). mandate to: (i) investigate and to carry out any Selected extracts function incidental thereto; It is against this background that the Khampepe (ii) gather, keep and analyse report presents an overview, findings and information; and recommendations on eleven key issues. These are: (iii) institute criminal proceedings, 1. The rationale for the establishment of the DSO relating to offences or unlawful activities 2. The legislative mandate of the DSO committed in an organised fashion… 3. Systems for management and control of the DSO (b) the jurisprudential soundness of housing the 4. Systems for communication of the DSO investigative and prosecutorial capacities of the 5. Oversight and accountability in respect of DSO in one structure under the authority of the intelligence and related operations of the DSO National Director of Public Prosecution (NDPP), 6. Constitutional and legislative mandates of the with the minister for justice and constitutional SAPS development exercising final political 7. Systems for co-ordination and co-operation responsibility over the DSO. between the SAPS, intelligence agencies and the (c) the overlapping mandates of the DSO and the DSO SAPS with regard to the investigation of 8. The effectiveness and efficiency of co-ordination national priority crimes, including organised of intelligence: DSO/SAPS/NIA crime and the duplication of resources resulting 9. The efficacy of co-ordinating systems that exist there-from. between the intelligence agencies (d) the existence within the DSO of an information 10. Training or further training on policing or [intelligence] gathering capacity that functions investigating methods outside the legislative framework of the 11 The impact of locating investigators and designated intelligence structures, the prosecutors within the National Prosecuting uncertainty and the exclusion of the DSO from Authority the Intelligence oversight Act, 40 of 1994, thereby making its intelligence activities not As will be highlighted in the summaries that follow, subject to the oversight functions of the one of the key themes that cuts across the report Inspector General of Intelligence and the joint concerns the presence, or not, of links between the standing committee on intelligence. work of the DSO and SAPS in the fight against (e) lack of coordination and cooperation between crime. The article will focus on selected aspects of the DSO on the one part, the SAPS and the the report that best explain the position of the designated intelligence structures, such as the Commission with regard to the location, mandate NIA and the SASS on the other. and operation of the DSO. (f) the location of the DSO within the National Prosecuting Authority and consequently under The rationale for the establishment of the DSO the Department of Justice, which was argued to The Khampepe Commission report highlights four be in conflict with the provisions of the principal reasons behind the establishment of the Constitution. The amalgamation of both law DSO. These are the perceived incapacity of the enforcement (policing) as well as justice SAPS to investigate high-level priority crimes, the (prosecuting) elements in the DSO were need to develop a multi-disciplinary approach in the exacerbated due to the competition over fight against corruption, the need to establish an jurisdictional territory and the concurrence of entity that would be able to attract and retain highly mandates. skilled personnel, and lastly, the perceived

36 KANYEGIRIRE SA CRIME QUARTERLY No 24 • JUNE 2008 illegitimacy of the SAPS for historical and political management of tensions that may arise from a reasons. After careful consideration of the shared mandate is a challenge. information, evidence and arguments concerning the establishment of the DSO, the report concludes by However, the report does raise concerns about the arguing that the rationale for the establishment of the conduct of the DSO. Based on evidence and DSO is as valid today as it was at conception arguments made before the Commission, the report (Khampepe 2006:24). reveals that the implementation of the legal mandate of the DSO was not entirely satisfactory. In The legislative mandate of the DSO particular, the leaking of information to the media Section 12 of the report examines the legislative was identified as a problem. The report notes that mandate of the DSO. The findings clarify and when the subject matter of DSO investigations is provide justifications for the DSO’s legal mandate to published it can lead to the prejudice of the persons investigate and prosecute serious crimes within the under investigation. Besides indicating an abuse of parameters of a single entity. Sub-section 12.1 states: power by the DSO, this may also point to a possible The argument that the legal mandate of the violation of the rights and freedoms protected under DSO to investigate and prosecute serious the Bill of Rights (Khampepe 2006:11). Here the organised crime is unconstitutional within the Commission found that the DSO tended to go meaning of section 199(1) of the Constitution beyond its ‘information’ gathering mandate to is without merit. It is clear from the reading include intelligence gathering (also see section 24 of the constitutional judgment in the Minister below). of Defence v Potsane 2002 (1) SA 1 (CC), at p.14, para 26 that the meaning of ‘single’ ... In an attempt to come to terms with some of the conveys no more than the fact that various scathing criticisms that have been levelled against police forces that used to form part of the the DSO, section 15 (Findings in relation to the ‘independent’ homelands ... would be evaluation of the implementation of the legislative amalgamated into one single police force. mandate of the DSO) suggests that this might be The word ‘single’ does not therefore connote because the DSO is better resourced than the SAPS ‘exclusive’ (Khampepe 2006:38). and also has the ‘unfair’ advantage of being able to select cases for its investigations. The Commission The report highlights the fact that the legislature believed that this gave rise to a competitive intentionally drafted the legal mandate of the DSO environment and caused conflict and tensions to be wide and argues that this was prudent. This is between the DSO and the SAPS. based on the fact that organised crime syndicates are not only pervasive, but that they are also are highly The Commission critically questioned the role of the sophisticated and command huge financial resources Ministerial Co-ordinating Committee (MCC) which that enable them to mount heavyweight legal was intended (in the NPA Act) to address a number defences with a view to resisting prosecutions and/or of issues relating to the functioning of the DSO. convictions. (Khampepe 2006:39). Khampepe argues Sub-section 15.1 points out that the MCC did not that an overly prescriptive legal mandate would properly discharge its responsibility under the Act have led to constant judicial attacks and would have and that it therefore also failed to avert or mitigate frustrated the DSO’s ability to fulfill its mandate. some of the problems between the SAPS and the DSO. Sub-section 15.3 states that the resistance by The report goes on to insist that ‘there is nothing both DSO investigators and prosecutors to relocate impermissible in law to draft the legal mandate of to the SAPS was suggestive of a lack of shared the DSO to be as broad as it appears in the NPA Act’ objective amongst officials of the law enforcement (Khampepe 2006:40). In addition, the report argues agencies to perform their functions in fighting crime, that there is nothing unconstitutional in the DSO irrespective of where a particular institution is sharing the mandate to tackle organised crime with located. This compares poorly to other countries the SAPS, but acknowledges that the proper where various entities that fight organised crime

SA CRIME QUARTERLY No 24 • JUNE 2008 KANYEGIRIRE 37 share legal mandates and strategies to tackle certain It is in this regard that section 25 crimes. (‘Recommendations in relation to the oversight and accountability of the intelligence operations of the DSO systems for communication DSO’) goes on to: In section 22 (‘Recommendations in relation to the • Insist on the harmonisation of the ‘political systems for communication of the DSO’) the oversight over the activities of the DSO’ Commission argued that ‘it cannot be • Remind us of the ‘inherent need for all law overemphasised that the DSO as a law enforcement enforcement agencies to have a joint purpose in agency and an organ of state is constitutionally addressing all law enforcement responsibilities... bound to act within the law. It is enjoined by the The tensions that bedevil the relationship of the Bill of Rights to respect the rights of every person, DSO and the SAPS are incompatible with the including those who may fall within its target (sting) constitutional responsibilities of these of investigation or prosecution’ (Khampepe institutions. It is critical that these institutions 2006:61). The key issue to bear in mind here is that answer positively to the constitutional mandate the Scorpions needed to discharge their for co-operative governance required of all responsibilities within the parameters of the organs of state’ Constitution and with due regard to the Bill of • Call upon the President to exercise ‘the power Rights. conferred on him in terms of section 97(b) of the Constitution to transfer the power or function Oversight and accountability in respect of the entrusted to the Minister for Justice and intelligence and related operations of the DSO Constitutional Development by the NPA Act to Issues concerning the oversight and accountability the Minister of Safety and Security thereby in respect of the intelligence and related operations vesting political authority over the law of the DSO are for the most part dealt with in enforcement component of the DSO in the Sections 23 to 25. The Commission found that, Minister of Safety and Security’. although the DSO is mandated to gather, keep and • Caution that ’the DSO should act within the analyse information as is conferred upon it in terms parameters of its legislative mandate and not of section 7(1) (a) (ii) of the NPA Act, the bulk of the impinge on the territory constitutionally assigned evidence before the Commission as well as the on- to other entities’ site visits to the DSO tended to show that the DSO • Call for ’greater co-operation and inter- had established intelligence gathering capabilities. dependence as well as enhanced skills and The report states that ‘this goes beyond the ambit of expertise between and among the law its information-gathering mandate set out in section enforcement agencies’ 7 of the NPA Act’ (Khampepe 2006:66-67) and • Call for a legislative overhaul of the disjunction would be in conflict with the Constitution. in political accountability over the DSO. Again the emphasis is that the President can rectify it The report deals with the disjunction in political in terms of section 97(b) of the constitution. accountability for the work of the DSO between the (Khampepe 2006:71-73) Minister for Justice and Constitutional Development and the Minister of Safety and Security (Khampepe Systems for co-ordination and co-operation 2006: 61-73). It noted that although the Minister for between SAPS, intelligence agencies and the DSO Justice and Constitutional Development exercises Sections 30–31 of the report deal with the findings final responsibility over the work of the NPA, she and recommendations concerning the systems for does not have practical, effective political oversight co-ordination and operation between the SAPS, in respect of the law enforcement work of the DSO. intelligence agencies and the DSO. Here it becomes The Minister of Safety and Security exercises final evident that there were no systems of co-ordination responsibility for law enforcement, yet he does not and co-operation between the DSO and the SAPS. have political responsibility in respect of the The report recommends that the DSO should form investigative work of the DSO. part of the family of law enforcement structures and

38 KANYEGIRIRE SA CRIME QUARTERLY No 24 • JUNE 2008 share expertise and information for an overall for specific purposes with various elements within it effective crime combating strategy. reporting to their respective authorities. The report also provides the examples of England and Wales, Training or further training on policing or where the Serious Organised Crime Agency is a investigating methods multi-disciplinary structure yet does not fall under The Commission’s concerns over the absence of the Crown Prosecution Service. cooperation and co-ordination between the DSO and SAPS find further expression in sections 39 and Although the report notes concerns that the 40 that deal with issues of training. In accordance inclusion of prosecutors in the DSO investigating with proponents of the view that the DSO has been teams could compromise their independence it far better resourced than the SAPS, the report argues nevertheless argues that the various disciplines that the Commercial Organised Crime Unit of the within the DSO should remain under a single SAPS, which has related responsibilities, should be command structure. This is based on the view that furnished with the same equipment, resources and the structure of the DSO enhances closer co- legal powers in order to emulate the successes of operation among the various disciplines, as the the DSO. The report goes on to state that, given prosecutors and the investigators benefit from one the lack of effective cooperation between and another’s expertise, thereby making cross- coordination of the activities of the DSO and the pollination an effective strategy in combating crime SAPS, it is inescapable that there may be and returning higher conviction ratios. duplication in the resources both institutions channel towards training. The recommendation Location of the DSO here is that ‘the DSO and the SAPS streamline the With regard to the specific location of the DSO, training of their personnel to achieve greater section 45 of the Report lists those entities or efficiencies’ (Khampepe 2006:92). relevant individuals that either supported or opposed the current location of the DSO. Those in Location of investigators and prosecutors within favour included: the NPA • The Minister for Intelligence Services As previously indicated in this summary of the • The Inspector General of Intelligence Khampepe Commission Report, it is evident that • National Intelligence Coordinating Committee one of the contentious issues that has characterised (NICOC) the debate on the Scorpions includes the location of • The Institute of Security Studies investigators and prosecutors within the NPA. • The Foundation for Human Rights Opponents of this – including the SAPS – have • Prof. Kader Asmal argued that it is unsound to locate investigators and • Ms Fatima Chohan prosecutors under one roof. The logical conclusion • The DSO to this would be that prosecutors should remain Those in the opposing camp who called for the within the prosecuting authority and the law translocation of the DSO to the SAPS included the enforcement officers redeployed back to the SAPS SAPS and the National Intelligence Agency (NIA). (Khampepe 2006:93). The argument apparently hinged on the assumption that the presence of The recommendations in section 47 regarding the prosecutors and investigators under one roof could question of the location of the DSO argue that ‘the compromise the activities of the prosecutors. rationale for locating the DSO under the NDPP and the Minister for Justice and Constitutional Despite this, the report draws attention to the use of Development in 2002 still pertains’ (Khampepe multi-disciplinary structures, that is, having 2006:103-104). This was based both on the prosecutors, intelligence operatives or analysts as existence of other investigative directorates well as investigators in a team, in foreign (Independent Directorate: Serious Economic jurisdictions. In countries such as the USA, multi- Offences and Independent Directorate: Organised disciplinary structures (‘Strike Forces’) are created Crime) under the NPA and because DSO

SA CRIME QUARTERLY No 24 • JUNE 2008 KANYEGIRIRE 39 investigations were to be prosecution-led, thus it recommendations. Parliament will have to give could only be located within the prosecuting effect to these recommendations and harmonise authority, which constitutionally is authorised to their implementation with existing legal institute prosecutions. provisions of the relevant pieces of legislations and government policies. However, the report draws attention to the fact that (sub-section 47.3) the SAPS and the DSO still did • The threat that organised crime presents to the not appreciate the legal imperative for co-operation. democratic institutions and economic integrity The Commission called for decisive executive of the country poses a formidable challenge that action to compel a realignment of attitudes by these will continually require creative and determined institutions. One of these actions would be to strategies to address. These strategies will transfer political oversight and responsibility over to include, by definition, enhanced co-operation the law enforcement component of the DSO to the among the various law enforcement structures Minister of Safety and Security. Still the Commission whose primary constitutional responsibility it is insisted that the DSO should continue to be located to secure the country and its people. within the NPA. References Conclusion Blandy, F 2005. Khampepe: Leadership must walk the The Report of the Khampepe Commission of Inquiry same walk. Mail and Guardian Online 13 October. Available at http://www.mg.co.za/articlePage.aspx?article into the mandate of the Directorate of Special id=253635&area=/breaking_news/breaking_news__ Operations concludes with the following key four national/ [accessed 21 May 2008]. points, contained in sections 53, 54, 55 and 56 respectively (Khampepe 2006:112): Khampepe Commission of Inquiry into the Mandate and Location of the Directorate of Special Operations (“The • The inexorable quest for an effective and DSO”). Final Report. February 2006. Available at http://www.info.gov.za/view/DownloadFileAction?id= efficient strategy to tackle organised crime must 80441 [accessed 12 May 2008]. run like a golden thread through the whole tapestry of the law enforcement/prosecutorial Mail and Guardian 2001. Yengeni summoned to explain and intelligence structures. The attainment and assets. Mail and Guardian Online 20 April. Available at maintenance of that efficacy is dependent on http://www.armsdeal-vpo.co.za/articles00/explain_ assets.html [accessed 21 May 2008]. the law enforcement/prosecutorial structures

cooperating and coordinating their activities wa ka Ngobeni, W 2004. Ngcuka under new fire. Mail closely with one another as well as with the and Guardian Online 21 May. Available at requisite statutory intelligence structures. http://www.armsdeal-vpo.co.za/articles06/new_fire.html [accessed 21 May 2008]. • The imperfections in the inter-relationship of the Xundu, X and wa ka Ngobeni, W 2005. Scorpions a law enforcement structures including the security risk. Sunday Times Online 9 October. Available at relationship of the DSO with such structures http://www.armsdeal-vpo.co.za/articles08/ giving rise to the establishment of the security_risk.html [accessed 21 May 2008]. Commission derive largely to operational matters. It is necessary therefore to create – on an ongoing basis – a review mechanism to manage the constant challenges that may arise in the execution of the work of these structures.

• The report deals with various aspects that would require the Legislature’s consideration to give effect to these recommendations and to harmonise the implementation of these

40 KANYEGIRIRE SA CRIME QUARTERLY No 24 • JUNE 2008 © Institute for Security Studies, 2008

Cover photograph By Simon Mathebula/PictureNET Africa All the president’s men: Presidency director- general Frank Chikane, head of the Presidency’s crime portfolio, Loyiso Jafta, and Government Communications CEO James Maseko after a media briefing on the outcome of the Khampepe Commission on the future of the Scorpions.

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