3 June 2008: Concerns About South Africa’s Proposed Directorate for Priority Crime Investigations

In May 2008 South Africa’s cabinet approved two Bills designed to dissolve the Directorate for Special Operations (DSO) - otherwise known as the Scorpions - and to replace it with a new Division within the South African Police Service (SAPS). The proposed division would be called the Directorate for Priority Crime Investigation (DPCI).

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The General Law Amendment Bill spells out details relating to the DPCI, while the National Prosecutions (NPA) Amendment Bill mainly serves to delete specific sections from the NPA Act of 1998 that provide for the existence and work of the DSO. While the Bills are yet to go through parliament, it is necessary to reflect on some practical areas - specifically of the General Law Amendment Bill – that might be the centre of much debate.

The purpose of the General Law Amendment Bill is to amend the South African Police Service Act of 1995 to provide for the establishment of a DPCI within the national police. The stated objective for establishing the DPCI is to ‘enhance the investigative capacity’ of the police in relation to ‘organised and serious crime’. These will include matters that require specialised knowledge or are of an international nature.

According to the Bill, the DPCI will consist of ‘selected’ members of the DSO, as well as ‘selected’ members from the police’s Organised Crime Unit and the Commercial Branch. To these can be added other ‘selected’ members who, on the basis of training, experience and expertise in the field of combating and investigating crimes that will be the focus of the DPCI, can be transferred to this division (or directorate). Furthermore, the Bill provides for the consideration of any other person, who passed a security check, for appointment to the DPCI.

Prosecutors who served with the DSO (immediately before this Bill becomes law) are expressly excluded from being appointed to the DPCI. However, members of the DSO who are involved in ‘intelligence’ work may be considered for deployment to the police’s Crime Intelligence Division.

Considering this, there are a number of practical issues that are either not adequately addressed in the Bill or require further clarification.

It is not stated in the Bill whether the envisaged DPCI would take over all current responsibilities of the Organised Crime Unit and the Commercial Branch. Unless expressly pointed out, there would be room for continued speculation as to the status of these two Units. Given that only ‘selected’ members from these units would join the DPCI, a question naturally arises: What would happen to the members not selected? If this question is left unattended, the likelihood of insecurity and confusion among members cannot be ruled out.

Furthermore, the critical issue of oversight does not seem to have been given sufficient attention in the Bill. Given the wide criticism levelled at the DSO in this regard, the gap in terms of accountability is worrying. The question is: who would investigate the investigator? With both the SAPS and the DSO having investigative and law enforcement powers, they, in spite of their poor relations, acted as a counterbalance to the abuse of power or the inherent room to protect ‘one of their own’. Once the Bill is passed into law, it will become a case of “all eggs in the same basket” and that seems ominous. The weaknesses that currently bedevil the Independent Complaints Directorate (ICD) are also a cause for concern.

While the Crime Intelligence Division seems poised to provide intelligence and analytical support to the DPCI, the silence of the Bill in this regard is striking. There is also no provision for the development of regulations in this regard. Related to this is the role of the Legal Services Division. While this Division might be able to provide legal assistance, this would be something completely different from the guidance and support that a dedicated prosecutor would do in the context of the DSO. This raises serious questions about the effectiveness of the DPCI, given the abandonment of the prosecution-led approach.

Finally, the all-powerful position that the Bill creates for the National Commissioner of SAPS should be a matter of concern. In terms of the Bill, he would have the authority to ‘hire-and-fire’ members of the DPCI and, as overall commander of the police, would be in a position to influence the outcome of almost all DPCI investigations. Considering our recent past, it would appear prudent for legislation to guard against concentrating such enormous powers in one office; that of the National Commissioner!

Johan Burger, Senior Researcher, Crime, Justice and Politics Programme, ISS Tshwane (Pretoria)