Government Gazette
REPUBLIC OF SOUTH AFRICA
Vol. 523 Cape Town
30 January 2009
No. 31856
THE PRESIDENCY
No. 83
30 January 2009
It is hereby notified that the President has assented to the following Act, which is
hereby published for general information:–
No. 56 of 2008: National Prosecuting Authority Amendment Act, 2008.
AIDS HELPLINE: 0800-123-22 Prevention is the cure
ACT
To a m e n d the N a t i o n a l P r o s e c u t i n g A u t h o r i t y A c t , 1998, so as to repeal the
p r o v i s i o n s relating to t h e D i r e c t o r a t e of Special O p e r a t i o n s ; a n d to p r o v i d e for
matters connected therewith.
PARLIAMENT
of the Republic of S o u t h Africa e n a c t s as f o l l o w s : —
A m e n d m e n t of section 1 of A c t 3 2 of 1 9 9 8 , as a m e n d e d by section 2 of A c t 6 1 of 2 0 0 0
1. Section 1 of the National P r o s e c u t i n g Authority Act, 1998 (hereafter referred to as
the principal A c t ) , is a m e n d e d —
(a) by the deletion of the definition of "Directorate
of Special
Operations";
(b) by the substitution for the definition of "head of an Investigating
Directorate"
of the following definition:
" 'head of an Investigating
Directorate'
m e a n s [the Deputy
National
Director referred to in section 7(3)(a), or] an Investigating
Director
referred to in section 7(3)(b)[,as t h e c a s e m a y b e ] . " :
(c) b y the substitution for the definition of "Investigating
Director''
of the
following definition:
" 'Investigating
Director' —
(a) m e a n s a Director of Public P r o s e c u t i o n s appointed under section
13(l)[(aA)
or](b)[—
(i) t o t h e Directorate
of Special Operations;
or
(ii)] as the head of an Investigating
Directorate established in t e r m s
of section 7 ( 1 ) [ ( 1 A ) ,
as the c a s e m a y b e ] ; and
(b) in C h a p t e r 5. i n c l u d e s [the h e a d of the Directorate
of Special
Operations]
any Director referred to in section 13( 1). designated by the National
Director
to conduct an investigation in t e r m s of section 28 in r e s p o n s e to a request in
t e r m s of section 17D(3) of the South African Police Service Act. 1995 (Act
N o . 68 of 1995). by the H e a d of the Directorate for Priority C r i m e
Investigation;";
(d) by the deletion of the definition of "special investigator";
and
(e) by the substitution for the definition of "specified offence" of the following
definition:
Act No. 56, 2008
NATIONAL PROSECUTING AUTHORITY
AMENDMENT ACT, 2008
" 'specified offence' m e a n s any matter which in the opinion of the head
of an Investigating
Directorate
falls within the range of matters as
c o n t e m p l a t e d in [section l(l)(a)(aa)
o r a n y p r o c l a m a t i o n issued in
t e r m s of section 7(l)(a)(bb)
or ( 1 A ) ] section 7( 1). and any reference to
the c o m m i s s i o n of a specified offence has a c o r r e s p o n d i n g m e a n i n g ; " .
A m e n d m e n t of section 5 of Act 3 2 o f 1998, as a m e n d e d by section 3 of A c t 6 1 of 2 0 0 0
2. Section 5 of the principal Act is a m e n d e d by the deletion in subsection (2) of
paragraph (dA).
S u b s t i t u t i o n of s e c t i o n 7 of A c t 3 2 of 1998, a s s u b s t i t u t e d by s e c t i o n 4 of A c t 61 of
2000
3. T h e following section is substituted for section 7 of the principal Act:
"Investigating D i r e c t o r a t e s
7. (1) [(a) T h e r e is h e r e b y e s t a b l i s h e d in the Office of the
National
Director a n Investigating D i r e c t o r a t e , to be k n o w n as t h e D i r e c t o r a t e of
Special O p e r a t i o n s , w i t h t h e a i m t o —
(i) investigate, and to carry o u t any f u n c t i o n s incidental to investiga­
tions;
(ii) gather, k e e p a n d analyse i n f o r m a t i o n ; a n d
(iii) w h e r e a p p r o p r i a t e , institute c r i m i n a l p r o c e e d i n g s a n d c a r r y out
any n e c e s s a r y functions incidental to instituting c r i m i n a l p r o c e e d ­
ings,
relating t o —
(aa) offences o r any c r i m i n a l o r unlawful activities c o m m i t t e d in an
o r g a n i s e d fashion; or
(bb) such o t h e r offences o r categories of offences as d e t e r m i n e d by the
President b y p r o c l a m a t i o n in the Gazette.
(b) F o r the p u r p o s e of s u b p a r a g r a p h (aa), ' o r g a n i s e d f a s h i o n '
i n c l u d e s the p l a n n e d , o n g o i n g , c o n t i n u o u s or r e p e a t e d p a r t i c i p a t i o n ,
i n v o l v e m e n t o r e n g a g e m e n t in at least t w o i n c i d e n t s of c r i m i n a l o r
unlawful c o n d u c t that h a s t h e s a m e o r similar i n t e n t s , results,
a c c o m p l i c e s , v i c t i m s or m e t h o d s of c o m m i s s i o n , o r o t h e r w i s e are
related b y d i s t i n g u i s h i n g c h a r a c t e r i s t i c s .
( 1 A ) ] T h e President may, by p r o c l a m a t i o n in the Gazette, establish [not
m o r e t h a n t w o a d d i t i o n a l ] one or more Investigating Directorates in the
Office of the National Director, in respect of [ m a t t e r s not c o n t e m p l a t e d in
s u b s e c t i o n (l)(aa) o r (bb)] such offences or criminal or unlawful activities
as set out in the proclamation.
(2) Any proclamation issued in t e r m s of this s e c t i o n —
(a) shall be issued on the r e c o m m e n d a t i o n of the Minister, the Cabinet
m e m b e r responsible for policing and the National
Director,
(b) may at any time be a m e n d e d or rescinded by the President on the
r e c o m m e n d a t i o n of the Minister, the Cabinet m e m b e r r e s p o n s i b l e for
policing and the National Director, and
(c) must be submitted to Parliament before publication in the Gazette.
(3) T h e head o i l (a) the Directorate
of Special Operations,
shall be a Deputy
National
Director, assigned b y the N a t i o n a l D i r e c t o r ; a n d
(b) a n y o t h e r ] an Investigating Directorate, shall be an
Investigating
Director, and shall perform the p o w e r s , duties and functions of the
Investigating
Directorate
c o n c e r n e d subject to the control and
directions of the National
Director.
Act No. 56, 2008
NATIONAL PROSECUTING AUTHORITY
AMENDMENT ACT. 2008
(4) (a) T h e head of an Investigating
Directorate
shall be assisted in the
exercise of his or her p o w e r s and the p e r f o r m a n c e of his or her functions
by(i) [in t h e case of—
(aa) the Directorate of Special Operations,
one or more
Investigat­
ing Directors a n d o n e o r m o r e Deputy Directors;
and
(bb) any o t h e r I n v e s t i g a t i n g D i r e c t o r a t e , ] one or m o r e Deputy
Directors;
(ii)
prosecutors;
[(HA) in the c a s e of t h e Directorate
of Special
Operations,
special
investigators;]
(iii) officers of any D e p a r t m e n t of State seconded to the service of the
Investigating
Directorate
in terms of the laws g o v e r n i n g the public
service;
(iv) persons in the service of any public or other b o d y w h o are by
a r r a n g e m e n t with the body c o n c e r n e d seconded to the service of the
Investigating
Directorate;
and
(v) any other person w h o s e services are obtained by the head of the
Investigating
Directorate,
and the persons referred to in s u b p a r a g r a p h s (i) to (v) shall perform their
p o w e r s , duties and functions subject to the control and direction of the head
of the Investigating
Directorate
concerned.
(b) For the purposes of s u b p a r a g r a p h s (iv) and (v) of p a r a g r a p h (a)—
(i) any person or b o d y requested by the head of an
Investigating
Directorate
in writing to d o so, shall from time to time, after
consultation with the head of an Investigating
Directorate,
furnish
him or her with a list of the n a m e s of p e r s o n s , in the e m p l o y or u n d e r
the control of that person or body, w h o are fit and available to assist the
head of that Investigating
Directorate
as c o n t e m p l a t e d in the said
subparagraph (iv) or (v), as the case m a y be; and
(ii) such a person or body shall, at the request of, and after consultation
with, the head of the Investigating
Directorate c o n c e r n e d , d e s i g n a t e a
person or persons mentioned in the list c o n c e r n e d so to assist the head
of the Investigating
Directorate.".
A m e n d m e n t of section 13 o f A c t 3 2 of 1998, as a m e n d e d by s e c t i o n 6 of A c t 6 1 of
2000
4. Section 13 of the principal A c t is a m e n d e d by the deletion in subsection (1) of
p a r a g r a p h (aA).
Repeal of C h a p t e r 3 A of A c t 3 2 of 1998
5. C h a p t e r 3A of the principal Act is repealed.
A m e n d m e n t of section 23 of Act 3 2 of 1998, as a m e n d e d by s e c t i o n 9 of A c t 6 1 of
2000
6. Section 23 of the principal Act is a m e n d e d by the deletion of subsection (2).
A m e n d m e n t of s e c t i o n 26 of Act 3 2 of 1998, as s u b s t i t u t e d b y section 10 of A c t 61
of 2 0 0 0
7. Section 2 6 of the principal Act is a m e n d e d by the substitulion for subsection (2) of
the following subsection:
" ( 2 ) N o t h i n g in this C h a p t e r or [section 7 ( 1 ) , or a n y p r o c l a m a t i o n issued in
t e r m s of] section 7. d e r o g a t e s from any p o w e r or duty which relates to the
prevention, c o m b a t i n g or investigation of any offences and w h i c h is b e s t o w e d upon
the South African Police Service in t e r m s of any l a w . " .
Act No. 56, 2008
NATIONAL PROSECUTING AUTHORITY
AMENDMENT ACT. 2008
A m e n d m e n t of s e c t i o n 2 8 of A c t 3 2 of 1998, as substituted by s e c t i o n 12(a) o f A c t 6 1
of 2 0 0 0
8. Section 28 of the principal Act is a m e n d e d by the substitution for p a r a g r a p h (a) of
subsection (2) of the following paragraph:
"(a) T h e Investigating
Director
may, if he or she decides to c o n d u c t an
investigation,
at any time prior to or during the c o n d u c t i n g of the
investigation
designate any person referred to in section 7(4)(a) or, in the case of an investigation
requested by the H e a d of the Directorate for Priority C r i m e Investigation in t e r m s
of section 17D(3) of the South African Police Service Act. 1995 (Act N o . 68 of
1995). any m e m b e r of the prosecuting authority or a m e m b e r of that D i r e c t o r a t e , to
c o n d u c t the investigation,
or any part thereof, on his or her behalf and to report to
him or her.".
Repeal of s e c t i o n s 3 0 a n d 3 1 of A c t 3 2 o f 1998
9. Sections 3 0 and 31 of the principal A c t are repealed.
A m e n d m e n t of section 3 6 of Act 3 2 of 1 9 9 8 , as a m e n d e d by section 15 of A c t 6 1 of
2000
10. Section 36 of the principal Act is a m e n d e d —
(a) by the substitution for subsection (3) of the following subsection:
" ( 3 ) [ S u b j e c t to s u b s e c t i o n ( 3 A ) , t h e ] T h e D i r e c t o r - G e n e r a l : Justice
shall, subject to the Public Finance M a n a g e m e n t Act, 1999 (Act No. 1 of
1999)— '
(a) be charged with the responsibility of a c c o u n t i n g for State m o n i e s
received or paid out for or on account of the prosecuting
authority;
and
(b) c a u s e the necessary accounting and other related r e c o r d s t o be
kept.";
(b) by the deletion of subsection ( 3 A ) ;
(c) by the substitution for subsection (4) of the following subsection:
" ( 4 ) T h e records referred to in subsection (3)(b) [and (3A)(b)] shall be
audited by the A u d i t o r - G e n e r a l . " ; and
(d) by the substitution for subsection (5) of the following subsection:
" ( 5 ) T h e Director-General: Justice [or, in respect o f a m a t t e r d e a l t w i t h
by the D i r e c t o r a t e of Special O p e r a t i o n s , the C h i e f E x e c u t i v e Officer,]
may, on the r e c o m m e n d a t i o n of the National
Director
and with the
c o n c u r r e n c e of the Minister of F i n a n c e , order that the e x p e n s e s or any part of
the e x p e n s e s incurred by any person in the course of or in c o n n e c t i o n with an
investigation
c o n t e m p l a t e d in section 2 8 (1) be paid from State funds to that
person.".
A m e n d m e n t of section 4 0 of A c t 3 2 of 1 9 9 8 , as s u b s t i t u t e d by section 17 of A c t 6 1
of 2 0 0 0
11. Section 4 0 of the principal A c t is a m e n d e d —
(a) by the substitution for the words p r e c e d i n g paragraph (a) of subsection (1) of
the following w o r d s :
" T h e Minister m a y [ , subject to s u b s e c t i o n (2),] m a k e regulations
p r e s c r i b i n g — " ; and
(b) by the deletion of subsection (2).
A m e n d m e n t of section 4 3 of A c t 3 2 of 1998
12. Section 4 3 of the principal Act is a m e n d e d by the deletion of s u b s e c t i o n (7).
Act No. 56, 2008
NATIONAL PROSECUTING AUTHORITY
AMENDMENT ACT. 2008
S u b s t i t u t i o n of section 4 3 A of A c t 3 2 of 1998
13. T h e following section is substituted for section 4 3 A of the principal Act:
"Transitional a r r a n g e m e n t s relating to D i r e c t o r a t e of Special O p e r a ­
tions
4 3 A . (1) In this s e c t i o n —
(a)
any w o r d or expression in respect of which a specific m e a n i n g has
been assigned by the South African Police Service Act, 1995 (Act N o .
6 8 of 1995). has the s a m e m e a n i n g ; and
(b) 'fixed d a t e ' m e a n s a date to be d e t e r m i n e d by the P r e s i d e n t by
proclamation.
(2) Prior to a date d e t e r m i n e d by the National Director,
any person
e m p l o y e d by the Directorate
of Special
Operations
m u s t inform the
National Director w h e t h e r they consenl to be transferred to the South
African Police Service.
(a)
(b)
(3) A s from the fixed d a t e —
any person, w h o i m m e d i a t e l y before the fixed date held the office of
special
investigator
and w h o has c o n s e n t e d to the transfer, is
transferred to the South African Police Service and b e c o m e s a m e m b e r
of the South African Police Service; and
such a d m i n i s t r a t i v e and support personnel e m p l o y e d by the Director­
ate of Special Operations as m a y be agreed upon b e t w e e n the National
Director and the National C o m m i s s i o n e r , may be transferred to the
South African Police Service.
(4) (a) An e m p l o y e e c o n t e m p l a t e d in subsection (3) m a y be transferred to
the South African Police Service only with his or her c o n s e n t .
(b) T h e r e m u n e r a t i o n and other terms and c o n d i t i o n s of e m p l o y m e n t of
e m p l o y e e s transferred in terms of subsection (3) m a y not be less favourable
than those that applied i m m e d i a t e l y before their transfer.
(c) T h e transfer c o n t e m p l a t e d in subsection (3) d o e s not interrupt the
e m p l o y e e s ' continuity of e m p l o y m e n t and the e m p l o y e e s r e m a i n entitled to
all rights and benefits, including pension benefits and privileges to which
they were entitled to i m m e d i a t e l y before transfer.
(5) (a) A n e m p l o y e e referred to in subsection (3) w h o does not consent to
be transferred to the South African Police Service must, prior to the date
referred to in subsection (2), notify the National Director thereof in writing.
(b) In respect of such an e m p l o y e e , the National Director m a y —
(i) after consultation with the Minister
and the Cabinet m e m b e r s
responsible for the public service and for finance, offer to transfer the
e m p l o y e e to a reasonable alternative post or position in any
g o v e r n m e n t d e p a r t m e n t or state institution in a c c o r d a n c e with
subsection {4)(b) and (c) and section 14 of the Public S e r v i c e Act,
1994 (Proclamation N o . 103 of 1994), shall, unless the context
indicates o t h e r w i s e , apply to such a transfer; or
(ii) after consultation with the Minister, offer to transfer the e m p l o y e e to a
r e a s o n a b l e alternative post or position in the prosecuting
authority.
other than any post of special
investigator,
in a c c o r d a n c e with
subsection (4)(b) and (c).
(c) If the e m p l o y e e d o e s not accept the offer m a d e in paragraph (b) within
30 d a y s of it being m a d e , the e m p l o y e e ' s e m p l o y m e n t automatically
terminates on the fixed date.
(d) An e m p l o y e e w h o s e e m p l o y m e n t is terminated in t e r m s of p a r a g r a p h
(c) is entitled to a s e v e r a n c e p a c k a g e d e t e r m i n e d by the Minister
in
consultation with the C a b i n e t m e m b e r s for the public service and for
finance.
(e) T h e s e v e r a n c e p a c k a g e provided for in p a r a g r a p h (d) m a y not be less
favourable than the s e v e r a n c e p a c k a g e provided for in the D e t e r m i n a t i o n
on the Introduction of an Employee-Initiated S e v e r a n c e P a c k a g e for the
Public Service d e t e r m i n e d in terms section 3 of the Public S e r v i c e A c t .
1994.
Act No. 56, 2008
NATIONAL PROSECUTING AUTHORITY
AMENDMENT ACT, 2008
(f) A n y dispute arising from the interpretation or application of this
section in so far as e m p l o y e e s are c o n c e r n e d must be referred to the L a b o u r
Court for determination.
(6) A n y decisions m a d e , directions issued and any p r o c e e d i n g s instituted
by the e m p l o y e r i m m e d i a t e l y before the fixed date in respect of an
e m p l o y e e referred to in subsection (3). r e m a i n s a p p l i c a b l e to him or her and
must be i m p l e m e n t e d or finalised as if the National P r o s e c u t i n g A u t h o r i t y
A m e n d m e n t Act, 2 0 0 8 , has not been passed.
(7) A n y m e m b e r of the prosecuting
authority w h o w a s e m p l o y e d in the
Directorate
of Special Operations i m m e d i a t e l y before the fixed date, shall
c o n t i n u e to be e m p l o y e d in the Office of the National Director, and shall
exercise, carry out and perform his or her p o w e r s , duties and functions as
conferred, i m p o s e d or assigned to him or her by the National Director and
subject to the control and directions of the National Director or a p e r s o n
authorised thereto by the National
Director.
(8) T h e National Prosecuting Authority A m e n d m e n t Act. 2 0 0 8 , does not
affect the validity of any investigation
p e r f o r m e d by the Directorate
of
Special Operations before the fixed date, including any functions incidental
to such investigations
or the institution of any c r i m i n a l p r o c e e d i n g s .
(9) (a) Investigations
by the Directorate
of Special Operations
that are
p e n d i n g i m m e d i a t e l y before the fixed date must, on that date, be transferred
to and c o n t i n u e d by the Directorate for Priority C r i m e Investigation in
a c c o r d a n c e with a m e c h a n i s m to ensure that the investigations
are not
prejudiced by the transfer.
(b) T h e Minister, in consultation with the Cabinet m e m b e r for police and
after consultation with the National Director a n d the National C o m m i s ­
sioner, must determine the m e c h a n i s m referred to in p a r a g r a p h (a).
(10) A s from the fixed date any liability incurred by the Directorate
of
Special Operations as a result of any investigation
by that D i r e c t o r a t e , shall
pass to the prosecuting
authority, unless the Minister in consultation with
the C a b i n e t m e m b e r for police, in a specific instance d e t e r m i n e s o t h e r w i s e .
(11) (a) A n y investigation
that has been instituted u n d e r section 28 by the
Directorate for Special Operations, and all steps taken as a result of such an
investigation,
shall be d e e m e d to h a v e b e e n instituted or taken in
c o n s e q u e n c e of the application of section 17D(3) of the S o u t h African
Police Service Act. 1995.
(b) T h e Head of the Directorate for Priority C r i m e Investigation may, at
any lime after the fixed date, w i t h d r a w such a request.
(c) T h e National Director must designate a Director in respect of e a c h
investigation
referred to in p a r a g r a p h (a), w h o must assist the Directorate of
Priority C r i m e Investigation in carrying out such an investigation.
".
A m e n d m e n t o f P r e a m b l e to A c t 3 2 of 1998, a s s u b s t i t u t e d by s e c t i o n 1 of A c t 61 of
2000
14. T h e P r e a m b l e to the principal Act is a m e n d e d by the deletion of the ninth, tenth
and eleventh p a r a g r a p h s .
S h o r t title a n d c o m m e n c e m e n t
15. This Act is called the National Prosecuting Authority A m e n d m e n t Act. 2 0 0 8 , and
c o m e s into operation on a date d e t e r m i n e d by the President by p r o c l a m a t i o n in the
Gazette.