EXECUTIVE SUMMARY
The aim of this report is to create a guideline and provide direction into the mandate and location of the Directorate of Special Operations ("DSO"). It is intended that this document, will provide a comprehensive analysis of the array of data and evidence presented before the Commission which provides a basis for the conclusions reached in respect of the mandate and location of the DSO.
The history of the establishment of the DSO stems from the need to curb rampant organised crime which was threatening the political and economic integrity of the country. Some corrupt elements in the police force which existed at the time. necessitated the creation of a de novo entity, designed with the specific intent to pursue the elusive elements of organised crime.
The founding of the DSO in terms of the NPA Act sought to confer limited investigative capacity on the DSO in relation to priority crimes, address the issue relating to the role and functioning of the DSO, provide mechanisms for coordination and cooperation of the activities of the DSO and other relevant government institutions and further provide the requisite infrastructure and resources to enable it to effectively tackle organised crime.
However, the subsequent transformation of the South African Police Force ("SAPS"), as well as the unheralded success of the DSO made conflict inevitable.
The commission of inquiry was established to respond to varied concerns and questions which have been raised across the Criminal justice system and within the Intelligence Community relating to the role and functioning of the DSO.
These concerns related, inter-alia, to:
• the perceived institutional nightmare of the DSO mandate to:
(i) investigate and to carry out any function incidental thereto,
(ii) gather, keep and analyse information: and
(iii) institute criminal proceedings. relating to offences or unlawful activities committed in an organised fashion, or such other offences as determined by the President by proclamation in the gazette.
• the jurisprudential soundness of housing the investigative and prosecutorial capacities of the DSO in one structure under the authority of the National Director of Public Prosecution . with the minister for justice and constitutional development exercising final political responsibility over the DSO.
• the overlapping mandates of the DS() and the SAPS with regard to the investigation of national priority crimes including organised crime and the duplication of resources resulting there-from.
• the existence within the DSO of an information [intelligence] gathering capacity that functions outside the legislative framework of the designated intelligence structures, the uncertainty and the exclusion of the DSO from the Intelligence oversight Act. 40 of 1994, thereby making its intelligence activities not subject to the oversight functions of the Inspector General of Intelligence and the joint standing committee on intelligence.
• lack of coordination and cooperation between the DSO on the one part. the SAIS and the designated intelligence structures. such as the IA and the SASS on the other.
• the location of the DSO within the National Prosecuting Authority and consequently tinder the Department of Justice was argued to be in conflict with the provisions of the Constitution. The amalgamation of both law enforcement (policing) as well as justice (prosecuting) elements in the DSO were exacerbated due to the competition over jurisdictional territory and the concurrence of mandates.
It was thus the Commission's express mandate to obtain clarity in respect of the location, mandate and operation of the DSO vis-à-vis other relevant government departments or institutions.
The Commission was presented with varying and conflicting evidence dependant entirely on the positional perspective of the source. Since the prosecution service was going to be an important element in the combat against organised crime, a decision was made to locate the DSO within the National Prosecuting Authority. The NPA Act was accordingly amended to create the DSO and to collapse in it various other directorates that were in place at the time.
The rationale for the establishment of the DSO, that is, to create a multi-disciplinary structure using the troika principle as a methodology to address organised crime was precipitated by intolerable levels of crime. I am satisfied that all relevant stakeholders were convinced that a new strategy was necessary to arrest the corrosive impact that organised crime was having on the socio-economic and legal structure of the country.
There was agreement across board that the law enforcement structures were at the time ineffectual to fully address the formidable challenges presented by organised crime. There was broad consensus that a new independent structure was necessary to launch a fresh and comprehensive answer to the challenges presented by organised crime.
Despite the indications that crime levels are dropping. it is my considered view that organised crime still presents a threat that needs to be addressed through an effective comprehensive strategy. The argument that the rationale no longer holds since the levels of crime are showing a decline is therefore devoid of merit. For this reason, it is my considered finding that the DSO still has a place in the government's law enforcement plan.
It is my recommendation that notwithstanding indications that organised crime is being addressed on a concerted basis, the rationale for the establishment of the DSO is as valid today as it was at conception.
With regard to the location of the DSO there were many who endorsed the SAPS argument in favour of locating the DSO within its ranks. This contention, was however, not supported by cogent constitutional or factual argument. The two pronged argument was based firstly on the fact that the DSO did police work. This, it was argued was inconsistent with the provisions of section 199(1) of the Constitution that provided for a single police force.
There was reference in this regard to section 205(3) of the Constitution as fortification for the constitutional argument. This section stipulates that the objects of the SAPS are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property. and to uphold the law.
The second argument was that the legal mandate of the DSO to investigate organised crime in terms of section 7(1) (a) (i) was in conflict with the constitutional and statutory mandate of the SAPS thereby creating what was referred to as an institutional nightmare.
After careful consideration of the evidence as well as the arguments submitted by various stakeholders, I am persuaded that no compelling argument has been made to point to the DSO's establishment as unconstitutional. For reasons that are in the body of the report, it is my considered conclusion that the location of the DSO within the NPA is constitutional and jurisprudentially sound.
Regarding the mandate per se, I accept that the legislature intentionally drafted the legal mandate of the DSO to be wide. In my view, this was prudent. An overly prescriptive legal mandate would render itself open to constant jurisdictional and other legal technical attacks and frustrate the objective for which the DSO was established.
The nature of tensions germane to mandates that overlap suggests that apart from a ministerial structure which would be useful to determine policy directions, it would still he important to establish a sub-committee with relevant individuals at the appropriate levels of authority who are able to deal with the day-to-day operational issues that are likely to arise and who would be empowered by the MCC with sufficient mandate to resolve those issues.
With regard to the evaluation of the implementation of the mandate of the DSO, the evidence tendered before the Commission raised a number of concerns relating to the manner in which the DSO discharged its mandate. The evidence pointed to numerous incidence of DSO conduct which went beyond the legislative mandate of the DSO or threatened to do so. In instances, the shared legal mandate with the SAPS gave rise to unfortunate competition over territory.
The unhappy relationship between the DSO and other law enforcement agencies was exacerbated by the malfunctioning of the Ministerial Coordinating Committee. This body did not do what section 31 of the NPA Act enjoined it to do. Under the previous Minister of Justice, it did not even convene, alternatively, there was no evidence that it convened. It is recommended that this committee he mandated to effectively perform its functions.
It is my considered opinion that the workings of the DSO would be enhanced by clarity in regard to the location of its political and financial accountability. Whilst I am satisfied that the rationale for locating the DSO under the NDPP and the Minister for Justice and Constitutional Development in 2002 was necessary and still pertains there is merit in considering a deconfliction mechanism proposed hereunder and elsewhere in the report. I am otherwise satisfied that there is nothing unconstitutional in the DSO sharing a mandate with the SAPS.
The Minister for Justice and Constitutional Development has identified the relationship between the DSO and that of the SAPS to have irretrievably broken down. The reasons for the breakdown are not as important as the appropriate solution to that problem
Under the present legal regime the Minister for Justice and Constitutional Development is not only responsible for the NPA but is politically responsible and held accountable for the work of the DSO including the latter's vital ‘policing' functions which overlaps with the political responsibility of the Minister of Safety and Security regarding organised crime.
It is recommended that the President exercise the power conferred on him in terms of section 97(b) of the constitution with a view to harmonising this problem. Section 97(b) provides that the President may transfer any power or function conferred upon a member of the Cabinet to another member.
With the exercise of this power the President may confer political responsibility over the law enforcement component of the DSO entrusted to the Minister for Justice and Constitutional Development by the NPA Act to the Minister of Safety and Security. No great alarm would arise concerning the independence of the prosecutors who work for the DSO. They would continue to receive instructions only from and be accountable only to the NDPP. I am fortified that this will ensure that the government's objective to provide effective and efficient law enforcement delivery is attained
The need for all law enforcement agencies to have a joint purpose in addressing all law enforcement responsibilities in the interest of the country and its people cannot be sufficiently emphasised. I have indicated in the body of the report that the tensions that bedevil the relationship of the DSO and the SAPS are incompatible with the constitutional responsibilities of these institutions. It is critical that these institutions answer positively to the constitutional mandate for co-operative governance required of all organs of state. It is also of vital importance that these institutions complement each other in addressing law enforcement challenges particularly those arising from organised crime. When joint credit results from every successful investigation and prosecution can be claimed by all law enforcement agencies the public confidence in the capacity of the government to address serious and violent crime will be much high.
The other concern raised in the evidence relate to the possible suggestions of abuse by the DSO in the manner in which it handles the media around the work that it does. Very early in its investigations, it publishes the subject matter of its investigations to the possible prejudice of the persons under investigation. This may also point to a possible violation of the rights and freedoms protected under the Bill of Rights.
The work of the DSO also points to a possible tendency to go beyond the "information" gathering mandate conferred upon it in terms of section 7(a) (ii) of the NPA Act. The evidence points to intelligence gathering. This would he in conflict with the Constitution. I make recommendations in the body of the report regarding this matter.
It is my considered conclusion that the way to address some of the concerns relating to the shared mandate as well as the tensions that exist between the DSO and SAPS would he to create a multi-disciplinary vetting structure, (MVS) whose responsibility would include management of the day to day operational activities of the DSO; review of the investigations of the DSO and the task to refer matters that must be handled by the DSO.
I have not been able to address the duplication of resources among the intelligence agencies and the DSO. There was evidence that there are areas of duplication of resources. It is my conclusion and recommendation that a proper audit be done by a requisite expert in order to optirnise the gains that can he made in this regard.
This is a transcription of the Executive Summary of the final report of the Commission of Inquiry, conducted by Honourable Justice Sisi Khampepe, into the mandate and location of the directorate of special operations (‘the DSO') submitted to President Thabo Mbeki on February 3 2006. There may be errors in the text not present in the original report - which can be accessed here [PDF].
