Over the past several weeks the investigative journalists of amaBhungane have, through their reports on leaked Gupta emails, provided chaper and verse on how state and parastatal institutions have been plundered over the past several years. Equally shocking is the fact that despite the reams and reams of prima facie evidence of criminality there have been no police searches to collect further evidence, no arrests, and no prosecutions.
The one institution that once did have the capacity and independence to investigate and prosecute this kind of high-level criminality was the Directorate of Special Operations (“the Scorpions”). This unit was however disbanded in 2008 – following a resolution adopted at the ANC’s Polokwane conference in December 2007 – by legislation first introduced while Thabo Mbeki was still state president and finally adopted after Kgalema Motlanthe had replaced him. This was before Jacob Zuma was elected to office in 2009
For context below are the transcripts of speeches by two MPs during the debate on 23 October 2008 on the second reading of the National Prosecuting Authority Amendment Bill and the South African Police Service Amendment Bill, the two bills which finally did the Scorpions in. The first is by the DA MP Dianne Kohler Barnard, speaking against this legislation, and the second by ANC (and SACP) MP Yunus Carrim, speaking for it.
At the end is a list of all the MPs who voted for – and against – the dismantling of the Scorpions.
Speech By Dianne Kohler Barnard:
Ms D KOHLER-BARNARD: Madam Speaker, the Khampepe Commission under Judge Sisi Khampepe told Parliament to keep the DSO under the NPA. The Cabinet endorsed the report and its recommendations in June 2006. But when the reality of that ruling became apparent, the country learnt to its horror that when reality doesn’t suit the ANC, they think they can overrule a judge.
On 11 February this year, the then Minister chose to announce that he would be disbanding the Scorpions – something he had chosen not to tell the hundreds of staff of that unit. So, they heard on the news that their jobs were to be terminated. Terminated they will be, Minister, as they have to apply to see if the ANC thinks they are good enough to belong to the SAPS.
These are advocates, forensic auditors, specialist investigators – none of whom ever wished to be in the police service. After hearing the sneering tones used at the SAPS head office in Pretoria when the Scorpions were referred there, ably encouraged by the hon Maggie Sotyu, well, they just won’t go!
Law enforcement agencies all over the world are utterly delighted that these experts are on the market, and they will no doubt snap them up. The fact that the Director-General of Justice and Constitutional Development toured the country telling Scorpions members that they would be allowed no promotion within SAPS for the next five years has only fuelled their fears.
Of course the whole country heard the chairpersons of the Portfolio Committee on Justice and Constitutional Development and the Portfolio Committee on Safety and Security state at a press conference on 30 July, before this process had even begun, that the decision to disband the unit had already been taken; Parliament must implement Polokwane; and that the 98 000 signatures and the 7 978 written submissions we hand-delivered to them were irrelevant as they didn’t represent the “right constituency”. So, it’s obviously true that the R2 million spent to tour the country with the so-called “provincial hearings” was indeed just a means of electioneering on the taxpayer’s back.
You have, in the process, created and fabricated enmity, both towards the Scorpions and between the SAPS and the Scorpions, where none previously existed. They still are the most trusted and admired crime-fighting unit in South Africa. You even completely ignored the request that the 30 relevant staff working on 5 remaining cases be allowed to take those cases through to courts before the SAPS absorbed the Scorpions.
You also know that the committees have failed to comply with Rule 243(1)(c)(iii) of the National Assembly Rules as the cost implications of the dissolution of the DSO and the creation of the DPCI have not even begun to be addressed adequately.
No matter what you do, Travelgate can’t be erased, nor can the arms deal. No one can shield any South African citizen from investigation and prosecution. The six members of your National Executive Committee, NEC, convicted by the Scorpions know that.
The DSO – the Scorpions – is but one of the units under the auspices of the NPA, an authority that is instructed by our Constitution to exercise that authority without fear, favour or prejudice. Yet, how have we, as a country, thanked the highly qualified DSO men and women – people who have given nine years of their lives dedicating themselves to tackling some of the most complex criminal investigations imaginable, taking them to court and winning 94% of them – for this selfless dedication to ensuring that right wins over might?
Members of the ANC, as they began their election campaign during provincial hearings, came out en masse with the most preposterous, self-serving statements imaginable. I noted them carefully: “Our women are still being raped” – so, scrap the Scorpions; “our homes are still being broken into” – so, scrap the Scorpions; “there is child abuse and trouble at the taxi ranks” – so, scrap the Scorpions.
I also noted there was never a call to scrap the SAPS, which, of course, should have been dealing with these matters. Theatrical tones of disgust were used in describing the troika principle, with a prosecutor leading investigators – a system that resulted in successes in court despite the fact that exactly the same system is used, but a lot less effectively, by the SAPS. One ANC branch head even claimed that Scotland Yard ran the Scorpions!
The ANC still perpetuates the “single police force” determination argument – that’s you, Mr Minister, attempting, by repetition, to overrule both the Khampepe Commission and the Constitutional Court dicta – Minister of Defence vs Mpontshane 2002(1)SA 1 – which absolutely allow for different divisions to be established to protect this country.
As this country watches the “Malemaisation” of our politics, his followers stated, amongst other fabrications, that members of the Scorpions were apartheid-era criminals. Not true, there are MK members there! Willie Hofmeyr, who has served this country so well, even as an ANC MP, came to us and calmly and logically refuted every one of those claims and pointed out that the original difficulties that the DSO had had been sorted out three years ago.
The unit’s successes speak for themselves as they were the first in this country to convict financial directors of fraud, tackle major international corporate raiding, register money-laundering and racketeer convictions.
They made the Brett Kebble murder arrest, confiscated drugs to the value of R600 million, broke the platinum and abalone smuggler syndicates and ran Travelgate – many of you are intimately familiar with this. Yes, they jailed Schabir Shaik and Tony Yengeni, and, yes, they are the ones who investigated the Selebis, Agliottis and Zumas and the extraordinary Fidentia case.
Now, given these successes, the question has to be asked – before unleashing their dogs of war – as to why did the ANC not sit with them and ask questions?
One of the lessons the ANC as a liberation movement has never learnt as it attempted to transmogrify into a political party is something that perhaps the hon Johnny de Lange would apparently like us to do when our members are hacked almost to death by your members. They still want the opposition party to keep quiet, and that’s something we will never do.
We must leave this country with the checks and balances that will ensure that the next Selebi is investigated and that we have someone left to police our police. Let us hope that those of you leaving the ANC – the 50 of you, most of whom have apparently already left the House – will vote with us today against this absurd self-serving legislation. [Applause.]
Speech By Yunus Carrim In The Debate:
Mr Y I CARRIM: Madam Deputy Speaker, comrades, friends and Deputy President – congratulations on your appointment – beyond all the bluster and political posturing, let us be clear. The vast majority of us in the ANC are not triumphalist. We are not gloating about the dissolution of the Scorpions. This is in fact a sad occasion, for what was meant to be an elite, efficient and powerful organised crime-fighting unit – the pride of the nation – has become a source of division in the nation.
We will forever disagree on who is responsible for what in this saga and how we have come to this. But we have, and we cannot continue like this. We have to move on; we must. We have learnt our lessons, let us heed them.
Let us be clear. None of us in the ANC says the new organised crime-fighting model is perfect. But enough of us say this unit is workable. Give it a chance. Let it develop. This is work in progress. We have not been too prescriptive. We have provided the basic features of the new model. We can improve on it. It will have to be considered further in at least three contexts: the finalisation of the proposed new integrated criminal justice system; the pending overhaul of the South African Police Service Act as a whole; and a report from the Minister of Safety and Security to Parliament within three years on the performance of this new unit and the need for any legislative amendments. In any case, the nature, scope and methods of organised crime change constantly. So, obviously we will regularly have to review our organised crime-fighting unit and its methods.
It’s not as if we must stress that we came to this new model lightly. We didn’t just blindly and hurriedly implement the Polokwane resolution. Parliament is not some subcommittee of the ANC. [Interjections.]
Let’s agree to disagree. We refuse to abandon our legislative role. We had extensive public hearings. We spent some 190 hours on the Bill in formal meetings of the committee and the subcommittee and at least another 100 hours in informal exchanges with key stakeholders.
We unanimously, as my comrade co-chair Maggie Sotyu said, rejected the weak and limp South African Police Service Bill that the executive offered us, and we rewrote it to ensure a more effective and organised crime-fighting unit.
We tried to find three balances. Firstly, we tried to find a balance between providing a firm framework for the new unit and not being too prescriptive.
Secondly, we tried to balance the unit between being independent and being a part of the SAPS in a way that avoids replicating tensions between the DSO and the SAPS.
Thirdly, we tried to find a way of both recognizing the specialty of organised crime and ensuring that it is located as part of our fight against crime as a whole. These balances, we insist, are right for now, given the specific circumstances we are in. But what’s there to stop us from altering the balance, if we have to?
Again, based on the DSO experience, to avoid the new unit being political biased, we provided for an independent complaints mechanism for now. But, we can’t just focus on the new unit without considering the SAPS as a whole.
So, in our report we suggested to Parliament that the ICD be strengthened or a new mechanism be created to attend to all forms of complaints about the SAPS generally when the South African Police Service Act is overhauled.
In response to the many points I have made, an election is coming up. We understand that people have to grandstand politically, and I am doing that too. But there are limits to which you can do that. Let me start with the Khampepe Commission of Inquiry. A significant number of the opposition members recognised that the Khampepe Commission, in its substantial proposal, is not workable.
You have investigators answerable to the Minister of Safety and Security and prosecutors answerable to the NPA. We asked them in the committee to explain to us how that would work. There was a sullen, deafening silence. So, they themselves acknowledged that the Khampepe Commmission can’t always work.
Secondly, there is no obligation in any democracy anywhere in the world for a commission report – even by a judge – to be accepted necessarily by the executive or by Parliament. Democracies all over the world allow for that.
Thirdly, there are 10 substantial improvements on the Bill that we set out in section 6(6) of our report that was published on Tuesday morning in the ATC.
Fourthly, regarding the national commissioner, I do not understand why people are still looking at the old Bill. We made it very clear that the national commissioner will not appoint a divisional commissioner as the head of this unit who will be answerable to the national deputy commissioner, who will be answerable to the commissioner. No!
May I also add that it is not as if the head of this unit cannot initiate cases. This was in the old Bill. Please, we have gone far beyond this on day one. We now have a policy framework in which Parliament will play a role, after which the Minister, the national commissioner and the head of this unit will determine the framework to deal with cases. But at the end of the day, let us be absolutely clear that neither Maggie Sotyu nor I said 98 000 signatures don’t matter. This is on record, and it is being used by Mr Glenister.
So, ask him for the tape. We said they were of limited significance in processing a Bill because they blindly said “don’t dissolve the Scorpions”. None of those people read the Bill. What particular clause of the Bill could we actually draw on from their petition – a generic petition – to process the Bill? So, in this sense we said the signatures were of limited value, and we still stand by that. Let Judge Pius Langa and the Constitutional Court hear this, and I repeat: They were of limited value. But you see, at the end of the day it does not matter what Maggie Sotyu and I said. What matters is what happened. We are bound by the same Constitution that binds Judge Pius Langa, the Ministers and the President of this country.
What did we do? We had 7 200 people participating in hearings, and we had at least 190 hours in the committee – I will not cover that ground.
In respect of cases, Minister Surty has been very helpful and saved me time so that I can batter some of the opposition members. You have given a very good reply. You set it out, and it is in the Bill.
May I also add that it is astonishing that the DA, this market fundamentalist society, is pleading for the cause of the working class. Did they in fact support – I would like to know – the Labour Relations Act when it was put to this House? Since when are they supporters of the working class?
Now, let me stress too, that Prof Cheadle, who I understand drafted the Labour Relations Act and is currently the adviser of the Minister for Justice and Constitutional Development, came in at the last minute and ensured that we would not undermine the labour dispensation that we have.
The Minister of Safety and Security said this very afternoon that he would like as many as possible of these people who have the skills they have to come into the SAPS. He went on record, may I add, in the newspapers – Sunday Times and I think City Press – shortly after he was appointed to say that he would focus on crime in every form, not least of which would be organised crime and corruption.
May I also add, Koos van der Merwe, that you are very proud of the number of years … [Interjections.]
The SPEAKER: Hon Koos van der Merwe!
Mr Y I CARRIM: Hon Koos van der Merwe! But it raises the question of how honourable he is when I raise this point. He loves saying that he has been in Parliament for over 30 years. It is clear that he is unreconstructed. Once again it is the “rooi gevaar” – the SACP is behind the ANC!
I wish, hon Jeremy Cronin, that we were behind the ANC in the way they make out; that we were able to do the things we want to do; and that you or Blade Nzimande would be the President of this country. Remember that “swart gevaar” in the old era was very close to “rooi gevaar”! So, we must be very careful. [Applause.]
Dianne Kohler-Barnard says … [Interjections.] I won’t respond because I don’t have the time.
I want to stress this that prosecutors are involved, but they are in the NPA. They will work with investigators as necessary. Moreover, let me stress that the legal officers within the SAPS who are currently there are meant to be beefed up. They are meant to advise investigators to ensure that when they proceed with investigations, they are legally tenable and will not be challenged in court.
May I also say, before I am forced to end … I wish I had more time, Madam Deputy Speaker, because really there are so many misrepresentations here that I have another half an hour of notes to use and draw on.
But let me thank the department officials and Maggie Sotyu in particular for the co-operation we had. I think we don’t need two separate committees anymore, Chief Whip. Let us make them a single committee on safety and security, constitutional development and justice. We don’t have any turf issues.
May I also, on behalf of Pieter Groenewald, thank myself for giving him an extra two minutes.
Finally, let me say that we must be very clear. We are simply not going to allow our wonderful country to be handed over to organised criminals – absolutely not. [Applause.] You can bet your life on it, it is not going to happen. Do you know why? Mainly, you have to trust us. The main victims of organised crime, corruption and crime in general are the working class and the poor.
For once I am putting on my Marxist hat – I am a Marxist, unapologetically. I have been one since I was 16 years old. [Interjections.] I cannot allow organised crime. Who are the main beneficiaries of crime? It is mainly the bourgeoisie and the capitalist class. Of course they have their underlings. So, I cannot agree to this.
The SPEAKER: Order! Hon member, your time has expired.
Mr Y I CARRIM: There are six seconds left, but that is okay. Thank you. [Time expired.] [Applause.]
Mr M J ELLIS: Madam Speaker, the DA calls for a division.
The SPEAKER: Hon members, I don’t think I need to hear those kinds of voices that are saying “what about the amendments”. Let me refer the House to its own Rules – Rule 254(3). This Rule is very clear about when we entertain amendments. Nobody said we were going to stop that.
A division has been called. I just want to go back to the earlier problems we had in the House related to the voting machines. We will then take a break in order to allow the technical team of Parliament to look at what happened earlier on. So, instead of ringing the bells for 5 minutes, which was the initial intention, we will ring the bells for 20 minutes.
Question put: That the National Prosecuting Authority Amendment Bill be read a second time.
The SPEAKER: Order! We allowed a 20-minute break in order to attempt to fix the technical problems we have. Hon members, I wish to indicate that given the technical problems that occurred earlier on, we asked the technical team to look at the matter. But we have not yet fixed the problem that was there earlier on. We have some seats that are affected. We would like to say that when we reach the voting stage, those members who are not able to vote should come forward to cast their votes so that we don’t have any errors. [Interjections.]
It looks like we are going to have a long day. The main system is locked. It just locked itself.
Mrs D VAN DER WALT: Madam Speaker, we propose a secret ballot.
The SPEAKER: We managed to get our main system running, but the other members will then come forward so that we can record their votes.
Mr M J ELLIS: Madam Speaker, don’t you think it would be a good idea for them to go home – those people who can’t vote?
The SPEAKER: I think it would be a wonderful idea if you would go home now and allow us to do some work. [Interjections.]
Mr M J ELLIS: Thank you. I will do that.
The House divided:
AYES – 252: Abram, S; Ainslie, A R; Anthony, T G; Arendse, J D; Asiya, S E; Balfour, B M N; Baloyi, M R; Bapela, K O; Beukman, F; Bhengu, F; Bhengu, P; Bloem, D V; Bogopane-Zulu, H I; Bonhomme, T J; Booi, M S; Botha, N G W; Burgess, C V; Cachalia, I M; Carrim, Y I; Cele, M A; Chalmers, J; Chauke, H P; Chikunga, L S; Chohan, F I; Combrinck, J J; Cronin, J P; Cwele, S C; Dambuza, B N; Daniels, P; Davies, R H; De Lange, J H; Diale, L N; Dikgacwi, M M; Dithebe, S L; Dlali, D M; Dlamini-Zuma, N C; Doidge, G Q M; Du Toit, D C; Fazzie, M H; Fihla, N B; Frolick, C T; Fubbs, J L; Gabanakgosi, P S; Gaum, A H; Gcwabaza, N E; Gerber, P A; Gigaba, K M N; Godi, N T; Gogotya, N J; Gololo, C L; Gore, V C; Greyling, C H F; Gumede, D M; Gumede, M M; Hanekom, D A; Hangana, N E; Hendricks, L B; Hendrickse, P A C; Hogan, B A; Holomisa, S P; Huang, S; Jacobus, L; Jeffery, J H; Johnson, C B; Johnson, M; Kasienyane, O R; Kekana, C D; Khauoe, M K; Khoarai, L P; Khumalo, K K; Khumalo, K M; Khunou, N P; Komphela, B M; Koornhof, G W; Kota, Z A; Kotwal, Z; Landers, L T; Lekgetho, G; Lishivha, T E; Louw, J T; Louw, S K; Ludwabe, C I; Luthuli, A N; Maake, J J; Mabandla, B S; Mabe, L L; Mabena, D C; Mabudafhasi, T R; Madasa, Z L; Madella, A F; Madlala-Routledge, N C; Maduma, L D; Madumise, M M; Magau, K R; Magubane, N E; Magwanishe, G B; Mahlawe, N M; Mahomed, F; Mahote, S; Maine, M S; Maja, S J; Makasi, X C; Makgate, M W; Malahlela, M J; Maloney, L; Maluleka, H P; Maluleke, D K; Manana, M N S; Manuel, T A; Mapisa-Nqakula, N N; Martins, B A D; Maserumule, F T; Mashangoane, P R; Mashiane, L M; Mashigo, R J; Mashile, B L; Masutha, T M; Mathebe, P M; Mathibela, N F; Matsemela, M L; Matsepe-Casaburi, I F; Matsomela, M J J; Maunye, M M; Mayatula, S M; Mbete, B; Mbili, M E; Mdaka, N M; Mdladlana, M M S; Mgabadeli, H C; Mkhize, Z S; Mkongi, B M; Mlangeni, A; Mnguni, B A; Mnyandu, B J; Moatshe, M S; Modisenyane, L J; Mofokeng, T R; Mogale, O M; Mogase, I D; Mohlaloga, M R; Mokoena, A D; Mokoto, N R; Molefe, C T; Moloto, K A; Monareng, O E; Montsitsi, S D; Moonsamy, K; Morkel, C M; Morobi, D M; Morutoa, M R; Morwamoche, K W; Mosala, B G; Moss, L N; Moss, M I; Motubatse-Hounkpatin, S D; Mpahlwa, M B; Mthembu, B; Mthethwa, E N; Mtshali, E; Mzondeki, M J G; Nash, J H; Ndlazi, Z A; Ndzanga, R A; Nel, A C; Nene, M J; Nene, N M; Newhoudt-Druchen, W S; Ngaleka, E; Ngcengwane, N D; Ngcobo, E N N; Ngcobo, N W; Ngculu, L V J; Ngele, N J; Ngwenya, M L; Ngwenya, W; Nhlengethwa, D G; Njikelana, S J; Njobe, M A A; Nkuna, C; Nogumla, R Z; Nqakula, C; Ntuli, B M; Ntuli, M M; Ntuli, R S; Ntuli, S B; Nwamitwa-Shilubana, T L P; Nxumalo, M D; Nxumalo, S N; Nyambi, A J; Nyembe, K K M; Nzimande, L P M; Olifant, D A A; Oliphant, G G; Oosthuizen, G C; Padayachie, R L; Pandor, G N M; Pieterse, R D; Radebe, B A; Ramakaba-Lesiea, M M; Ramgobin, M; Ramodibe, D M; Ramotsamai, C P M; Rasmeni, S M; Reid, L R R; Rwexana, S P; Schippers, J; Schneemann, G D; Schoeman, E A; Seadimo, M D; Sefularo, M; Sekgobela, P S; Selau, J G; September, C C; Shabangu, S; Shiceka, S; Sibande, M P; Sibanyoni, J B; Sibhidla, N N; Siboza, S; Sisulu, L N; Sithole, D J; Sizani, S; Skhosana, W M; Smith, V G; Solo, B M; Sonto, M R; Sosibo, J E; Sotyu, M M; Surty, M E; Swanson-Jacobs, J; Thabethe, E; Thomson, B; Tinto, B; Tobias, T V; Tolo, L J; Tsenoli, S L; Tshabalala-Msimang, M E; Tshivhase, T J; Tshwete, P; Turok, B; Twala, N M; Vadi, I; Van den Heever, R P Z; Van der Merwe, S C; Van Schalkwyk, M C J; Van Wyk, A; Vundisa, S S; Wang, Y; Xolo, E T; Yengeni, L E; Zita, L; Zulu, B Z.
NOES – 63: Bekker, H J; Bhengu, M J; Bici, J; Blanché, J P I; Boinamo, G G; Botha, A; Botha, C-S; Camerer, S M; Cupido, H B; Davidson, I O; Delport, J T; Ditshetelo, P H K; Doman, W P; Dreyer, A M; Dudley, C; Ellis, M J; Farrow, S B; George, D T; Greyling, L W; Groenewald, P J; Holomisa, B H; Hoosen, M H; Jenner, I E; Joubert, L K; Julies, I F; Kalyan, S V; Kganyago, N M; King, R J; Kohler-Barnard, D; Labuschagne, L B; Lebenya, P; Lee, T D; Marais, S J F; Masango, S J; Minnie, K J; Morgan, G R; Mpontshane, A M; Nefolovhodwe, P J; Nel, A H; Nkabinde, N C; Opperman, S E; Rabie, P J; Rabinowitz, R; Roopnarain, U; Sayedali-Shah, M R; Seaton, S A; Selfe, J; Semple, J A; Sibuyana, M W; Sigcau, S N; Simmons, S; Singh, N; Smuts, M; Swart, M; Swart, P S; Swathe, M M; Trent, E W; Van der Merwe, J H; Van Der Walt, D; Van Dyk, S M; Waters, M; Weber, H; Zikalala, C N Z.
National Prosecuting Authority Amendment Bill accordingly read a second time.
Source: Hansard, 23 October 2008