NPA amendment bill a ‘stopgap measure’, deputy justice minister tells MPs

Deputy justice minister John Jeffery says the criticised bill that will establish the Investigating Directorate Against Corruption (ID) as a permanent entity within the National Prosecuting Authority (NPA) is a “stopgap measure” pending a report by the National Anti-Corruption Advisory Council (Nacac).

Opposition parties have criticised the NPA Amendment Bill as not giving the ID sufficient independence outside the NPA, which means, they say, that it can easily be disestablished if the ruling party so wishes.

The existing ID was established by President Cyril Ramaphosa in 2019 by proclamation — and not as a permanent entity — for it to investigate and prosecute serious, high-profile and complex commercial and corruption cases and cases arising from the Zondo commission of inquiry into state capture.

Jeffery told parliament’s justice committee this means the ID could be disestablished by another proclamation. As the lack of permanence makes it more difficult to attract investigators, the ID has to rely on seconded investigators. The ID’s investigators and prosecutors have been seconded from the Hawks, the State Security Agency and the NPA.

The bill, Jeffery said, would give the ID greater investigative capacity.

He told MPs the Nacac’s work, which is long term, will include advising on strengthening the country’s anticorruption institutional arrangements including the possible establishment of an anticorruption commission as recommended by the Zondo commission of inquiry into state capture. He added that Nacac aims to produce a report next year.

“These are not issues that can be decided overnight. This bill is something that is urgently needed now. We want it passed as soon as possible so that the NPA is better equipped to fight corruption cases.” Further legislative changes could be made based on the Nacac report.

Addressed later

Commenting on opposition MP’s criticisms, Jeffery said: “We are not setting up a wonderful new institution. We are beefing up what is already there with the Investigating Directorate. This is a stopgap measure while the anticorruption council do their work. 

“I agree we need to have longer discussions but right now we need this bill. Having this bill is not going to stop those longer-term discussions once the council has reported.” The issue of whether the ID should be outside the NPA could be addressed later because it would take longer to devise the correct architecture.

DA MP Glynnis Breytenbach insists that for the ID to be fully independent it needs to be established as a chapter nine institution under the constitution, reporting to parliament and having its own separate budget. This would prevent it being dissolved if the ruling party does not like what it is doing as, she said, as happened with the Scorpions. A chapter nine institution can only be dissolved with a two-thirds majority in parliament.

“It is our view that this bill is ill-conceived,” Breytenbach said. “We need an institution that is housed outside the NPA, that is independent and that has security of tenure..”

ACDP MP Steve Swart shared Breytenbach’s concerns saying more time should have been spent on establishing an anticorruption commission outside the NPA.

Accountability Now director Paul Hoffman SC has described the bill as “execrable” as the ID’s independence would be entirely illusory since it could be easily closed down.

Justice department deputy director-general for legislative development and legal services Kalay Pillay noted in her presentation on the bill  that “at present the independence of the ID can be compromised since government departments or institutions can (and in fact have threatened to) recall reassigned employees from the ID”. The bill will give the ID the power to appoint its own investigators.

Ramaphosa appointed the Nacac members in August 2022 to advise government on how to strengthen the fight against fraud and corruption. It includes representatives from civil society, including business, labour and academia.

ensorl@businesslive.co.za