Long title
To amend the South African Police Service Act, 1995, in order to-
-
enhance the capacity of the South African Police Service to prevent,
combat and investigate national priority crimes and other crimes, by
establishing a separate Division in the South African Police Service,
the Directorate for Priority Crime Investigation;
-
provide for the transfer of powers, investigations, assets, budget and
liabilities of the Directorate of Special Operations, established in
terms of the National Prosecuting Authority Act, 1998, to the South
African Police Service;
- provide for the appointment of the Head of the Directorate for Priority Crime Investigation;
-
ensure a multi-disciplinary and integrated approach in the prevention,
combating and investigation of the above crimes by providing for the
secondment of personnel from other Government departments or
institutions to the Directorate for Priority Crime Investigation;
-
provide for the security screening of and integrity measures for
personnel of the Directorate for Priority Crime Investigation;
-
provide for the designation by the President of a Ministerial Committee
to oversee the functioning of the Directorate for Priority Crime
Investigation;
-
provide for the establishment of an Operational Committee comprising
senior officials to facilitate, review, monitor and improve
inter-departmental co-operation;
- provide for Parliamentary oversight in respect of the activities of the Directorate for Priority Crime Investigation;
-
provide for the establishment of a mechanism to deal with complaints of
a serious nature pertaining to the Directorate for Priority Crime
Investigation;
- provide for transitional arrangements, including the selection of personnel, to implement the Act; and
- provide for matters connected thereto.
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[Act 2008_057_000 Long title unamended wef 2009/02/20]
1. Amendment of section 5 of Act 68 of 1995
Section 5 of the South African Police Service Act, 1995 (hereinafter referred to as the principal Act), is hereby amended-
(a) by the substitution in subsection (2) for paragraphs (b) and (c) of the following paragraphs:
"(b) members appointed in terms of section 28(2) of this Act; [ and ]
(c) persons who become members of the Reserve under section 48(2) of this Act [ ; and ] "; and
(b) by the addition in subsection (2) of the following paragraph:
" [ (d) members appointed to the Directorate for Priority Crime Investigation established by section 17C ] .".
__________
[Act 2008_057_001 unamended wef 2009/02/20]
2. Amendment of section 16 of Act 68 of 1995
Section 16 of the principal Act is hereby amended-
(a) by the substitution in subsection (2) for paragraph (a) of the following paragraph:
" [ (a) by a person, group of persons or syndicate acting in-
(i) an organised fashion; or
(ii)
a manner which could result in substantial financial gain for the
person, group of persons or syndicate involved. ] ";
(b) by the deletion in subsection (2) of the word "and" at the end of paragraph (i):
(c) by the insertion in subsection (2) of the following paragraph after paragraph (i):
" [ (iA) in respect of the commission of any alleged offence mentioned in the Schedule; or ] ";
(d) by the substitution in subsection (2) for paragraph (j) of the following paragraph:
"(j)
in respect of which the prevention or investigation by members under
the command of a Provincial Commissioner will detrimentally
affect or hamper the prevention or investigation of circumstances
referred to in paragraphs (a) to [ (i) ] [ (iA) ] ."; and
(e) by the insertion after subsection (2) of the following subsection:
" [ (2A) For the purpose of subparagraph (a)(i), 'organised fashion'
includes the planned, ongoing, continuous or repeated
participation, involvement or engagement in at least two
incidents of criminal or unlawful conduct that has the same or similar
intents, results, accomplices, victims or methods of commission, or
otherwise are related by distinguishing characteristics. ] ".
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[Act 2008_057_002 unamended wef 2009/02/20]
3. Insertion of Chapter 6A in Act 68 of 1995
The following Chapter is hereby inserted in the principal Act after Chapter 6:
"CHAPTER 6A
DIRECTORATE FOR PRIORITY CRIME INVESTIGATION
Definitions
[ 17A. In this Chapter, unless the context otherwise indicates-
'Directorate' means the Directorate for Priority Crime Investigation, established by section 17C;
'Ministerial Committee' means the Committee referred to in section 17I (1);
'national
priority offence' means organised crime, crime that requires
national prevention or investigation, or crime which requires
specialised skills in the prevention and investigation thereof, as
referred to in section 16(1); and
'Operational Committee' means the Operational Committee established by section 17J. ]
Application of Chapter
[ 17B. In the application of this Chapter the following should be recognised and taken into account:
(a)
The need to establish a Directorate as a Division of the Service to
prevent, combat and investigate national priority offences, in
particular serious organised crime, serious commercial crime and
serious corruption.
(b) The need to ensure that the Directorate-
(i)
implements, where appropriate, a multi-disciplinary approach and an
integrated methodology involving the co-operation of all relevant
Government departments and institutions;
(ii) has the necessary independence to perform its functions;
(iii) is equipped with the appropriate human and financial resources to perform its functions;
(iv) is staffed through the transfer, appointment, or secondment of personnel whose integrity is beyond reproach. ]
Establishment and composition of Directorate
[ 17C. (1) The Directorate for Priority Crime Investigation is hereby established as a Division of the Service.
(2) The Directorate comprises-
(a)
the Head of the Directorate, who shall be a Deputy National
Commissioner appointed by the Minister in concurrence with Cabinet;
(b)
persons appointed by the National Commissioner on the recommendation of
the Head of the Directorate on the basis of the required level of
experience, training, skills, competence or knowledge;
(c) an adequate number of legal officers appointed to the Directorate; and
(d)
officials from any Government department or institution, seconded to
the Directorate in terms of laws governing the public service.
(3) The Minister shall report to Parliament on the appointment of the Head of the Directorate. ]
Functions of Directorate
[ 17D. (1) The functions of the Directorate are to prevent, combat and investigate-
(a)
national priority offences, which in the opinion of the Head of the
Directorate need to be addressed by the Directorate, subject to any
policy guidelines issued by the Ministerial Committee; and
(b)
any other offence or category of offences referred to it from time to
time by the National Commissioner, subject to any policy guidelines
issued by the Ministerial Committee.
(2)
If, during the course of an investigation by the Directorate, evidence
of any other crime is detected and the Head of the Directorate
considers it in the interests of justice, or in the public interest, he
or she may extend the investigation so as to include any offence which
he or she suspects to be connected with the subject of the
investigation.
(3)
The Head of the Directorate may, if he or she has reason to suspect
that a national priority offence has been or is being committed,
request the National Director of Public Prosecutions to designate a
Director of Public Prosecutions to exercise the powers of section 28 of
the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998). ]
Security screening and integrity measures
[
17E. (1) Any person who is considered for appointment in, or secondment
to, the Directorate, shall be subject to a security screening
investigation in terms of and in accordance with section 2A of the
National Strategic Intelligence Act, 1994 (Act No. 39 of 1994).
(2) No person may be appointed to the Directorate unless-
(a)
a security clearance has been issued to that person in terms of section
2A(6) of the National Strategic Intelligence Act, 1994, by the Head of
the Crime Intelligence Division of the Service;
(b)
a security clearance on the required level and which is still valid has
been issued to the person in question in terms of section 2A(6) of the
National Strategic Intelligence Act, 1994; or
(c)
a temporary security clearance has been issued by the Head of the Crime
Intelligence Division of the Service after the person had submitted an
application to the Head of the Crime Intelligence Division to have a
security screening investigation conducted.
(3)
Any appointment on the basis of a temporary security clearance shall be
subject to the finalisation of the security screening investigation and
the issuing of a security clearance in terms of section 2A(6) of the
National Strategic Intelligence Act, 1994.
(4)
Whenever the Head of the Crime Intelligence Division of the Service in
terms of section 2A(6) of the National Strategic Intelligence Act,
1994, upon reasonable grounds, degrades, withdraws or refuses a
security clearance, the National Commissioner may transfer such person
from the Directorate, or if such person cannot be redeployed elsewhere
in the Service, discharge him or her, subject to the provisions of
section 34.
(5)
A member of the Directorate may from time to time, or at such regular
intervals as the Head of the Directorate may determine, be subjected to
a further security screening investigation.
(6)
If, upon information at the disposal of the Head of the Directorate, he
or she reasonably believes that the person concerned poses a security
risk, he or she may require the member to undergo a further security
screening investigation.
(7)
(a)
Any member of the Directorate must, in the prescribed manner and at the
prescribed intervals, disclose his or her prescribed financial and
other interests and those of his or her immediate family members.
(b)
For the purpose of paragraph (a), 'immediate family member' refers to
the spouse, civil partner or permanent life partner of that member, and
includes dependent children of, and dependent family members living in
the same household with that member.
(8)
(a)
The Minister may prescribe measures for integrity testing of members of
the Directorate, which may include random entrapment, testing for the
abuse of alcohol or drugs, or the use of the polygraph or similar
instrument to ascertain, confirm or examine in a scientific manner the
truthfulness of a statement made by a person.
(b)
The necessary samples required for any test referred to in paragraph
(a), may be taken, but any sample taken from the body of a member may
only be taken by a registered medical practitioner or a registered
nurse.
(c)
The Minister shall prescribe measures to ensure the confidentiality of
information obtained through integrity testing, if such measures are
prescribed in terms of paragraph (a). ]
Multi-disciplinary approach
[
17F. (1) Government departments or institutions shall, when required to
do so, take reasonable steps to assist the Directorate in the
achievement of its objectives.
(2)
The National Commissioner shall request the secondment of personnel
from any other Government department or institution, whenever the Head
of the Directorate requests such secondment.
(3)
The Directorate shall be assisted in the performance of its functions
by personnel seconded by relevant Government departments or
institutions, which may include personnel from the South African
Revenue Service, the Financial Intelligence Centre and the Department
of Home Affairs.
(4)
The National Director of Public Prosecutions must ensure that a
dedicated component of prosecutors is available to assist and
co-operate with members of the Directorate in conducting its
investigations.
(5)
The Director-General of the Government department or Head of the
relevant Government institution, referred to in subsection (2), shall
upon request by the National Commissioner, identify suitable personnel
to be seconded to the Directorate upon such terms and conditions as may
be agreed upon between the National Commissioner and the
Director-General of the department or Head of the Government
institution concerned.
(6)
Without derogating from the functions of the Service in respect of
crime intelligence, as provided for in the National Strategic
Intelligence Act, 1994 (Act No. 39 of 1994), the Directorate shall be
supported by the Crime Intelligence Division of the Service to gather,
correlate, evaluate, co-ordinate and use crime intelligence in
the performance of its functions.
(7)
(a)
If the National Commissioner so requests, any person seconded in terms
of subsection (3) shall retain the powers, duties and functions endowed
by any law governing the powers, duties and functions of that
department or institution, and that person may exercise such powers,
duties and functions under the command of the Head of the
Directorate or his or her delegate, but subject to such conditions as
may be determined by the Head of the seconding Government department or
institution.
(b)
A person seconded under paragraph (a) shall in the performance of his
or her functions act in terms of the laws applicable to the
Government department or institution from which he or she is
seconded, subject to such conditions as may be agreed upon by the
National Commissioner and the Director-General of the Government
Department or Head of the Government institution. ]
Conditions of service
[
17G. The remuneration, allowances and other conditions of service of
members of the Directorate shall be regulated in terms of section 24. ]
Finances and financial accountability
[
17H. (1) Expenditure in connection with the administration and
functioning of the Directorate must be paid from monies appropriated
by Parliament for this purpose to the departmental vote in terms
of the Public Finance Management Act, 1999 (Act No. 1 of 1999).
(2) The National Commissioner is the accounting officer for the monies referred to subsection (1). ]
Coordination by Cabinet
[ 17I. (1) The President shall for purposes of subsections (2) and (3) designate a Ministerial Committee which shall include-
(a) at least the Ministers for-
(i) Safety and Security;
(ii) Finance;
(iii) Home Affairs;
(iv) Intelligence; and
(v) Justice; as well as
(b) any other Minister designated from time to time by the President.
(2) The Ministerial Committee may determine-
(a) policy guidelines in respect of the functioning of the Directorate;
(b)
policy guidelines for the selection of national priority offences by
the Head of the Directorate in terms of section 17D(1)(a);
(c)
policy guidelines for the referral to the Directorate by the National
Commissioner of any offence or category of offences for investigation
by the Directorate in terms of section 17D(1)(b);
(d) procedures to coordinate the activities of the Directorate and other relevant Government departments or institutions.
(3)
(a)
The Ministerial Committee shall oversee the functioning of the
Directorate and shall meet as regularly as necessary, but not less that
four times annually.
(b)
The National Commissioner and the Head of the Directorate shall, upon
request of the Ministerial Committee, provide performance and
implementation reports to the Ministerial Committee. ]
Operational Committee
[ 17J. (1)
(a) There is hereby established a committee, to be known as the Operational Committee, which comprises-
(i) the National Commissioner, as chairperson;
(ii) the Head of the Directorate, as deputy chairperson;
(iii) the National Director of Public Prosecutions;
(iv)
the Directors-General of Finance, Justice and Constitutional
Development, the National Intelligence Agency and Home Affairs;
(v) the Commissioner of the South African Revenue Service;
(vi) the Head of the Financial Intelligence Centre; and
(vii)
such other persons as the Operational Committee may require from time
to time, for the duration determined by the Operational Committee.
(b)
An official at the rank of at least an Assistant Commissioner or Chief
Director may be designated on a permanent basis to represent any
official mentioned above if he or she is not available: Provided that
the official listed in paragraph (a) may also attend.
(2) The Operational Committee shall-
(a)
review, monitor and facilitate the support and assistance of the
respective Government departments or institutions to the Directorate as
well as secondments to the Directorate, and address problems which
arise regarding such support and assistance;
(b) perform such functions as from time to time may be directed by the Ministerial Committee;
(c) report to the Ministerial Committee on interdepartmental assistance to and co-operation with the Directorate; and
(d) meet as regularly as required to fulfill its functions, but not less than four times annually. ]
Parliamentary oversight
[
17K. (1) Parliament shall effectively oversee the functioning of the
Directorate and the committees established in terms of this Chapter.
(2)
The National Commissioner shall include in the annual report to
Parliament in terms of section 55(d) of the Public Finance Management
Act, 1999 (Act No. 1 of 1999), a report in respect of the activities of
the Directorate.
(3)
In addition to the annual report mentioned in subsection (2), the Head
of the Directorate shall at any time when requested to do so by
Parliament, submit a report on the activities of the Directorate.
(4) The Minister shall submit to Parliament any policy guidelines referred to in section 17l(2)(a), (b) and (c) for approval.
(5)
Policy guidelines referred to in section 17l(2)(a), (b) and (c)
submitted for approval to Parliament that are not approved within three
months of submission shall be deemed to be approved.
(6)
The Minister shall, not later than three years after the commencement
of this section, submit a report to Parliament on whether any
legislative amendments are required to improve the functioning of the
Directorate. ]
Complaints mechanism
[ 17L. (1)
(a)
The Minister shall, after consultation with the Minister of Justice and
the Chief Justice, appoint a retired judge in order to investigate
complaints referred to in subsection (4).
(b)
For purposes of paragraph (a) 'retired judge' shall mean a judge
discharged from active service as referred to in the Judges'
Remuneration and Conditions of Employment Act, 2001 (Act No. 47 of
2001).
(2)
The performance of the functions provided for in respect of the retired
judge does not derogate from the powers of the Independent Complaints
Directorate referred to in section 50 to investigate complaints in
respect of any member, including members in the Directorate for
Priority Crime Investigation.
(3)
The retired judge shall not investigate complaints about intelligence
matters falling under the jurisdiction of the Inspector-General of
Intelligence.
(4) The retired judge may receive complaints in the prescribed form and manner from-
(a)
any member of the public who can provide evidence of a serious and
unlawful infringement of his or her rights caused by an investigation
by the Directorate; or
(b)
any member of the Directorate who can provide evidence of any improper
influence or interference, whether of a political or any other nature,
exerted upon him or her regarding the conducting of an investigation.
(5)
The retired judge may upon receipt of a complaint investigate such
complaint or refer it to be dealt with by, amongst others, the
Secretariat, the Independent Complaints Directorate, the National
Commissioner, the Head of the Directorate, the relevant Provincial
Commissioner, the National Director of Public Prosecutions, the
Inspector-General of Intelligence, or any institution mentioned in
chapter 9 of the Constitution of the Republic of South Africa, 1996.
(6) The retired judge shall report the outcome of any investigation undertaken by him or her or any referral to the Minister.
(7)
The retired judge may request and obtain information from the National
Director of Public Prosecutions in so far as it may be necessary for
the judge to conduct an investigation: Provided that the National
Director of Public Prosecutions may on reasonable grounds refuse to
accede to such request.
(8) To the extent that it is reasonably necessary for the performance of the functions of the retired judge, he or she-
(a) may obtain information and documents under the control of the Service;
(b) may enter any building or premises under the control of the Service in order to obtain such information and documents; and
(c) shall be entitled to all reasonable assistance by a member.
(9) The judge shall annually report to Parliament on the performance of his or her functions.
(10)
The Head of the Directorate may request the retired judge to
investigate complaints or allegations relating to investigations by the
Directorate or alleged interference with such investigations.
(11)
Any person who makes a complaint in terms of this section shall not be
entitled to use this section to establish whether there is an
investigation against him or her, nor be entitled to any delay,
interference or termination of such investigation on the basis that
such complaint has been made.
(12)
The Minister shall ensure that the retired judge has sufficient
personnel and resources to fulfill his or her functions. ] ".
__________
[Act 2008_057_003 unamended wef 2009/02/20]
4. Amendment of section 24 of Act 68 of 1995
Section 24 of the principal Act is hereby amended by the insertion in
subsection (1) after subparagraph (ee) of the following subparagraph:
"
( [ eeA) the following issues which are related to the Directorate for
Priority Crime Investigation established in terms of section 17C:
(i) The manner and intervals for disclosure of financial and other interests as required in terms of section 17E(7)(a);
(ii)
the measures for integrity testing of members of the Directorate for
Priority Crime Investigation as contemplated in section 17E(8)(a);
(iii) the measures to ensure the confidentiality of information obtained as contemplated in section 17E(8)(c);
(iv) the form and manner in which complaints referred to in section 17L(4) must be made to the retired judge; ] ".
__________
[Act 2008_057_004 unamended wef 2009/02/20]
5. Insertion of Schedule in Act 68 of 1995
The following Schedule is hereby inserted into the principal Act after section 73:
"Schedule
(Section 16(2)(iA))
[ 1 High treason:
2
any offence referred to in paragraph (a) of the definition of
'specified offence' of the Protection of Constitutional Democracy
against Terrorist and Related Activities Act, 2004 (Act No. 33 of 2004);
3 sedition;
4
any offence referred to in Schedule 1 to the Implementation of the Rome
Statute of the International Criminal Court Act, 2002 (Act No. 27
of 2002);
5 any offence referred to in Chapters 2, 3 and 4 of the Prevention of Organised Crime Act, 1998 (Act No. 121 of 1998);
6 any offence referred to in section 13(f) of the Drugs and Drug Trafficking Act, 1992 (Act No. 140 of 1992);
7 any offence referred to in the Non-Proliferation of Weapons of Mass Destruction Act, 1993 (Act No. 87 of 1993);
8
any offence relating to the dealing in or smuggling of ammunition,
firearms, explosives or armament and the unlawful possession of such
firearms, explosives or armament;
9
any offence contemplated in Chapter 2 and section 34 of the Prevention
and Combating of Corrupt Activities Act, 2004 (Act No. 12 of 2004);
10
any offence referred to in the Regulation of Foreign Military
Assistance Act, 1998 (Act No. 15 of 1998), or the Prohibition of
Mercenary Activities and the Regulation of Certain Activities in
Country of Armed Conflict Act, 2006 (Act No. 27 of 2006);
11 any offence referred to in the National Conventional Arms Control Act, 2002 (Act No. 41 of 2002);
12 any offence the punishment wherefor may be imprisonment for life. ] ".
__________
[Act 2008_057_005 unamended wef 2009/02/20]
6. Transfer of powers, investigations, assets, budget and liabilities
(1) In this section-
(a)
any word or expression in respect of which a specific meaning has been
assigned by the South African Police Service Act, 1995 (Act No. 68 of
1995), has the same meaning;
(b)
any word or expression in respect of which a specific meaning has been
assigned by the National Prosecuting Authority Act, 1998 (Act No. 32 of
1998), has the same meaning; and
(c) "fixed date" means a date to be determined by the President by proclamation in the Gazette.
(2) As from the fixed date-
(a)
all powers exercised and functions performed by special investigators
immediately before the fixed date, shall be exercised and performed by
the Directorate for Priority Crime Investigation;
(b)
investigations of the Directorate of Special Operations shall be dealt
with as if this Act had at all times been in force;
(c)
the allocated budget and assets and liabilities of the Directorate of
Special Operations as agreed upon between the accounting officers of
the South African Police Service and the Directorate of Special
Operations, respectively, must be transferred to the South African
Police Service in accordance with section 42 of the Public
Finance Management Act, 1999 (Act No. 1 of 1999).
(3)
The Registrar of Deeds must make the necessary entries and endorsements
for the transfer of any property in terms of this section.
(4) For the purposes of the Income Tax Act, 1962 (Act No. 58 of 1962),
no change of employer must be regarded as having taken place when
the special investigators and administrative and support personnel
transferred in terms of section 43A(2)(a) and (b) of the National
Prosecuting Authority Act, 1998 take up employment at the South African
Police Service.
(5) For so long as the remuneration, allowances and other conditions of
service of those transferred to the South African Police Service
under section 43A(3) of the National Prosecuting Authority Act, 1998,
are more favourable than those determined under section 17G of this
Act, section 43A(4) of the National Prosecuting Authority Act, 1998,
prevails.
(6) This Act does not affect the validity of any investigation or
prosecution conducted, pending, or under investigation by the
Directorate of Special Operations on or before the fixed date.
__________
[Act 2008_057_006 unamended wef 2009/02/20]
7. Selection of personnel
(1) The National Commissioner shall appoint a selection panel which
shall include a representative of the National Prosecuting Authority to
select for appointment in the Directorate from the following
persons:
(a)
Former special investigators of the Directorate of Special Operations,
contemplated in section 7(4)(a)(iiA) of the National Prosecuting
Authority Act, 1998 (Act No. 32 of 1998), transferred to the South
African Police Service in terms of section 43A(2)(a) of the National
Prosecuting Authority Act, 1998;
(b)
members who, immediately before the commencement of the South African
Police Service Amendment Act, 2008, served in the Organised Crime
Component of the Service;
(c)
members who, immediately before the commencement of the South
African Police Service Amendment Act, 2008, served in the
Commercial Crime Component of the Service;
(d) any other member of the Service; and
(e)
any administrative and support personnel employed at the fixed date by
the Directorate of Special Operations and the South African Police
Service.
(2)
The Head of the Directorate for Priority Crime Investigation shall
advise the National Commissioner on the selection criteria to be
applied in the selection process.
(3) Criteria shall be determined with reference, amongst others, to experience, training, skills, competence or knowledge.
(4) The selection and appointment of members in the Directorate for
Priority Crime Investigation shall be subject to the South African
Police Service Act, 1995 or the Public Service Act, 1994, whichever is
applicable.
__________
[Act 2008_057_007 unamended wef 2009/02/20]
8. Joint audit and implementation teams
(1) The National Director of Public Prosecutions and the National
Commissioner shall nominate senior officials of the Directorate
of Special Operations and senior officials of the South African Police
Service respectively to perform joint audits in respect of personnel,
budgets, finances, information management and equipment of the
Directorate of Special Operations in order to implement this Act.
(2) The officials referred to in subsection (1) shall facilitate the implementation of this Act as soon as possible.
(3) The National Director of Public Prosecutions and the National
Commissioner shall report to Parliament on a quarterly basis on the
progress made with the implementation of the Act.
__________
[Act 2008_057_008 unamended wef 2009/02/20]
9. Short title and commencement
This Act is called the South African Police Service Amendment Act,
2008, and comes into operation on a date determined by the President by
proclamation in the Gazette.
__________
[Act 2008_057_009 unamended wef 2009/02/20]
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