Inquiry
29 June 2006
President appointed the Khampepe Commission to inquire into the mandate and
location of the Directorate of Special Operations (DSO) and other matters
pertaining to the functioning of this institution. The commission has completed
its report after a process that entailed written and oral submissions from
various interested parties. Most of its hearings were held in public.
Findings of the commission
After considering the information, evidence and arguments placed before it
the commission found that the rationale for the establishment of the DSO
remained valid. It found the DSO to be unique and novel and this view was
shared by a number of governments across the world.
The commission asserted that the legal framework regulating the mandate and
location of the DSO was not in conflict with the Constitution. In this regard
it emphasised the there was no legal impediment in having a structure such as
the DSO within the prosecuting service as long as the independence of
prosecution was safeguarded.
The commission identified the weakness of co-ordinating systems between the
relevant institutions as a major challenge. According to the report this
situation undermined the optional functioning of the DSO. This was not helped
by the fact that the Ministerial Co-ordinating Committee (MCC) established in
terms of section 31 of the National Prosecuting Authority (NPA) did not
function properly and the manner in which cases were established for
investigation and prosecution by the DSO.
The commission found that the Minister of Justice and Constitutional
Development did not have practical and effective oversight responsibility in
respect of the law enforcement functions of the DSO.
The report draws attention to the fact that several officers of the DSO and
external service providers have not been subjected to security screening as is
required in law. The commission raised concern with the fact that the NPA Act
(section 19B) provides for a narrow category of DSO officials who have to be
subjected to screening.
The commission expressed concern with regard to the manner in which the DSO
publicised the subject matter some of its investigations.
According to the commission conduct of this nature could result in the
violation of the rights and freedoms protected under the Bill of Rights.
Owing to an absence of the requisite skills within its ranks, the commission
did not inquire into the rationalisation of resources and the need to minimise,
duplication between the relevant institutions.
Recommendations of the commission
Against the findings outlined above the commission recommended that the DSO
should be retained within the NPA. But in order to enhance oversight, the
commission recommended that the President should exercise the power conferred
on him by section 97(b) of the Constitution by conferring the political
oversight and responsibility for the law enforcement component of the DSO to
the Minister of Safety and Security.
In the above framework, prosecutors who work for the DSO would continue to
receive instructions and be accountable to the National Director of Public
Prosecutions (NDPP). The NDPP, in turn, would remain accountable to the
Minister of Justice and Constitutional Development as currently provided for in
the law.
Apart from recommending that the MCC should function properly, the
commission further recommended the establishment of a co-ordinating committee
of officials that would support and advise the MCC. According to the commission
this committee ought to have relevant individuals at the appropriate levels of
authority who are able to deal with operational issues.
The commission further recommended that the capacity of the relevant
entities within the South African Police Services (SAPS) should be enhanced,
for example, by investing them with the same legal powers of the DSO and
co-locating prosecutors with its investigators and analysts.
It was also recommended that the DSO should desist from making public
announcements on the subject matter of its investigations, where such
communication could undermine the fundamental rights of affected entities and
individuals.
The commission recommended that the NPA Act be amended in order to provide
for a wider category of DSO officials who should be vetted. In the meantime
officials of the DSO should be vetted, together with the relevant external
service providers.
It has also been recommended that the Independent Complaints Directorate
(ICD) should be empowered to investigate any infractions that may attend the
law enforcement functions of the DSO.
Decisions of the Cabinet
It should be recalled that the President had announced that he would refer
the report of the commission to the National Security Council (NSC) for advice.
The NSC considered the report and yesterday submitted recommendations to
Cabinet.
Cabinet endorsed the NSCs decision to accept in principle the
recommendations of the commission, including the matter of retaining the DSO
within the NPA and its law enforcement responsibilities shall be subject to
political oversight by the Minister of Safety and Security.
It charged the Directors-General (DGs) of the NSC, working with the
Department of Public Service and Administration (DPSA) to develop proposals
that will specifically enable the government to implement the above
recommendation. Where appropriate such proposals may include amending relevant
legislation.
Related to the above Cabinet reaffirmed the architecture and practice of the
DSO as originally conceptualised âthat the DSO deal with high level priority
crimes and that it should deal with cases referred to it by the police.â
Cabinet noted that DGs of the NSC were developing implementation plans with
regard to other matters that had been raised in the report of the
commission.
Considering that the rationalisation of resources was not inquired into by
the commission, Cabinet noted that a suitably qualified individual/s would be
engaged to address the proper rationalisation of resources.
Conclusion
The implementation of the recommendations of the commission should assist in
enhancing the integration of the work of the relevant departments against
organised crime.
The implementation of these recommendations will also significantly improve
oversight over the law enforcement functions of the DSO.
It is the firm resolve of Cabinet that all anti-crime agencies of the state
should redouble their efforts to make South Africa safer and more secure for
all its citizens. By working together and ensuring that they are without fear,
favour or prejudice, they will ensure that criminals meet their just
desserts.
The Ministers of the MCC, conscious of this resolve, will put in place
systems to ensure that they meet their mandate.
Issued by: Government Communications (GCIS)
29 June 2006
