A critical analysis of crime investigative system within the South African criminal justice system: a comparative study

With the establishment of the Directorate of Special Operations (Scorpions), the Asset Forfeiture Unit (AFU), the Special Investigating Unit (SIU) and the Departmental Investigating Unit (DIU), questions were asked as to whether this is a creation of new units of the Police Service. These questions were exaggerated by the fact that the media uses the term "Scorpions" whenever the Scorpions, the AFU, SIU and the DIU perform their functions. South African legislation that governs organised crime does not demarcate activities to be dealt with by the SAPS, AFU, DIU, Scorpions and the SIU. The Constitution of South Africa lays down the objects of the police, but it is silent about the objectives of the Scorpions, AFU, SIU, DIU and other investigative institutions except that it only mentions the creation of a single National Prosecuting Authority (NPA). A literature study was used as the basis for this study. In addition, unstructured interviews and observation were used to gather evidence from the relevant stakeholders. An analysis of the SAPS Detective Service, the Special Investigating Unit (SIU), the Scorpions, the Departmental Investigating Unit (DIU) of the Department of Correctional Services and the Asset Forfeiture Unit (AFU), was done in order to establish the overlapping of functions. Indeed, overlapping was discovered between the Scorpions and the SAPS Detective Service, the AFU and the SIU, as well as between the SAPS and the DIU. In order to make a proper finding, an analysis was done of anti-corruption agencies in Botswana, Nigeria, Malawi and Hong Kong. The findings indicate that the better way of fighting corruption, fraud, economic and financial crimes, is through the establishment of a single agency that will work independently from the police, with a proper jurisdiction.D.Litt. et Phil.(Police Science)Criminology and Security Scienc

A PROPOSED MODEL FOR THE APPOINTMENT AND DISMISSAL OF THE NATIONAL COMMISSIONER OF THE SOUTH AFRICAN POLICE SERVICE: A COMPARATIVE STUDY

When South Africa’s first democratically elected president was inaugurated on 10 May 1994, South Africans were anxious to see who would be leading the police service. Nelson Mandela followed his heart without bowing to political pressure and appointed seasoned police official Commissioner George Fivaz. Although the Interim Constitution Act 200 of 1993 was silent on the powers of the President to appoint the national commissioners, this appointment was made in terms of section 214(1) of that Act. At the time George Fivaz’s term expired, Mandela was also bowing out of the political limelight. When Thabo Mbeki assumed the presidency in 1999, he appointed Jackie Selebi, a former Umkhonto we Sizwe (MK) cadre, who came from the Department of Foreign Affairs without any policing experience. This appointment was made in terms of section 207 of the Constitution of the Republic of South Africa, read with section 7(1)(a) of the South African Police Service Act 68 of 1995. Section 8(1) of the South African Police Service Act stipulates that ‘if the National Commissioner has lost the confidence of the Cabinet, the President may establish a board of inquiry to inquire into the circumstances that led to the loss of confidence, compile a report and make recommendations.’ After serving his first term, reports of Selebi’s involvement in the criminal underworld began to emerge. As a result of these reports, the then Directorate of Special Operations (the Scorpions) investigated Selebi’s involvement in corrupt activities. In 2007, Selebi was charged inter alia with two counts of corruption; in 2010, he was found guilty of corruption and sentenced to 15 years’ imprisonment. Surprisingly, on 2 August 2009, President Jacob Zuma appointed General Bheki Cele, who also came from an MK background without any policing experience, as the third National Police Commissioner. Within a year, reports of Cele’s involvement in illegal lease deals began to emerge and the office of the Public Protector was called in to investigate the allegations. As a result of its findings of improper conduct and maladministration, he was suspended in 2011 and a commission of inquiry was established in terms of section 8(1) of the South African Police Service Act 68 of 1995 to find out whether the Commissioner was fit to hold office. General Cele was fired for maladministration and corruption and was replaced by General Riah Phiyega, who also did not have any policingexperience. A few months after her taking office, the Marikana incident occurred and all the blame for it has been directed at the National Commissioner, although the commission has not yet finalised its mandate. In view of the above-mentioned incidents, it is clear that there is a problem with the way in which the National Commissioner is appointed. This article seeks to unravel the powers of the president in appointing the National Police Commissioner and discuss the cases of the two former incumbents who bowed out of office in disgrace without completing their terms of office. It also includes a comparative study with countries such as Kenya, Northern Ireland, Uganda, Canada and selected countries from the Caribbean islands. As a way forward, a new model for appointing and dismissing the National Commissioner for South Africa is proposed

Countering corruption in South Africa: The rise and fall of the Scorpions and Hawks

In 1999 a new directorate of the National Prosecuting Authority was launched to ‘complement and, in some respects, supplement the efforts of existing law enforcement agencies in fighting national priority crimes’.Over the following seven years the Directorate of Special Operations, nicknamed the ‘Scorpions’, gained public favour; however, they were accused of, amongst other things, exceeding their jurisdiction by performing functions that fell outside their mandate. During the African National Congress conference of 2007, delegates took a decision that the Scorpions should be disbanded. In 2008, Parliament passed the South African Police Service Amendment Bill that replaced the Scorpions with the Directorate for Priority Crime Investigation, located within the South African Police Service. In 2010 this move was challenged in Hugh Glenister v President of the Republic of South Africa & Others [CCT 48/10]. The key question in this case was whether the national legislation that created the Directorate for Priority Crime Investigation, known as the Hawks (DPCI), and disbanded the Scorpions, was  constitutionally valid. In March 2011 the Constitutional Court ruled that the legislation establishing the Hawks was unconstitutional and ‘invalid to the extent that it fails to secure an adequate degree of independence for the Directorate for Priority Crime Investigation.’ The Court gave the government 18 months to rectify the situation. This article provides an overview of the decisions that led to the formation and closure of the Scorpions, and the formation of the Hawks

Single public service versus single police service : a case for South African police service

Uppermost on government’s agenda for the ongoing social and economic upliftment and transformation of our society is improvement in the delivery of basic and other services to the people of South Africa. Currently service delivery is hampered by weaknesses in numerous areas, including amongst others, national frameworks and policies that do not extend to local government in the areas of service delivery and public administration and management and marked differences in remuneration, conditions of service and local government which make mobility and transfer of functions difficult

The Functioning of Ombudsman (Public Protector) in South Africa: Redress and Checks and Balances?

<p>The fi rst South African Ombudsman appointed in 1979 in terms of the Advocate-General Act 118 of 1979, as amended by Advocate-General Amendment Act 55 of 1983, was known as the Advocate-General. The need for this of fi ce was apparent after the facts about the Information Scandal had come to light. The of fi ce of the Advocate-General could be compared to that of the Special Prosecutor of the United States, which was also instituted in similar fashion in the wake of the Watergate scandal. The primary reason for the creation of the of fi ce of the Advocate-General was to maintain honest public administration and orderly government. This of fi ce was replaced by the Ombudsman in 1983 after amending the Advocate General Act by the Ombudsman Act of 1983. Then in 1994 the Constitution Act 108 of 1996 repealed the Interim Constitution Act 200 of 1993 and paved the way for the promulgation of the Public Protector Act 23 of 1994 which made provision for the establishment of the of fi ce and the governing principles of the Public Protector. In view of the above brief explanation, this article seeks to unravel evolution of the Ombudsman in South Africa, the challenges affecting the functioning of the Public Protector including the “independence” of the of fi ce as well as the duplication of functions with other agencies. One case study will be used, namely, the controversial “Arms Deal Joint Investigation” as well a comparative study will be done with the Parliamentary Ombudsman of Sweden.</p

AN ANALYSIS OF THE GAPS IN THE NEWLY ESTABLISHED SOUTH AFRICAN MILITARY OMBUD

The South African Department of Defence and Military Veterans can be commended for having taken a bold step in an endeavour to establish an independent entity capable of conducting oversight of its military through the introduction of the Military Ombud Act. However, said Act seems not to adequately address pertinent issues experienced by the defence sector. These issues include who may submit a complaint, the independence of the Military Ombud (MO) and its accountability structure. Unless the Bill deals with these issues, we are likely to see dispossession of the public protector’s investigation powers and the establishment of a mere toothless tiger. Under the current format of the Bill, the MO is likely to become the Minister’s mouthpiece. It would deepen and marginalise military complainants’ hope of finding a remedy in an independent structure capable of challenging some of the questionable military acts or omissions that have no substance while not achieving the exercise, enjoyment and fulfilment of military complainants’ human rights in accordance with the 1996 Constitution of the Republic of South Africa.</p

Countering corruption in South Africa: The rise and fall of the Scorpions and Hawks

In 1999 a new directorate of the National Prosecuting Authority was launched to ‘complement and, in some respects, supplement the efforts of existing law enforcement agencies in fighting national priority crimes’.1 Over the following seven years the Directorate of Special Operations, nicknamed the ‘Scorpions’, gained public favour; however, they were accused of, amongst other things, exceeding their jurisdiction by performing functions that fell outside their mandate. During the African National Congress conference of 2007, delegates took a decision that the Scorpions should be disbanded. In 2008, Parliament passed the South African Police Service Amendment Bill that replaced the Scorpions with the Directorate for Priority Crime Investigation, located within the South African Police Service. In 2010 this move was challenged in Hugh Glenister v President of the Republic of South Africa &amp; Others [CCT 48/10]. The key question in this case was whether the national legislation that created the Directorate for Priority Crime Investigation, known as the Hawks (DPCI), and disbanded the Scorpions, was constitutionally valid. In March 2011 the Constitutional Court ruled that the legislation establishing the Hawks was unconstitutional and ‘invalid to the extent that it fails to secure an adequate degree of independence for the Directorate for Priority Crime Investigation.’ The Court gave the government 18 months to rectify the situation. This article provides an overview of the decisions that led to the formation and closure of the Scorpions, and the formation of the Hawks