Why is the National Prosecuting Authority (NPA) Act being amended, wondered removed Public Protector turned legislator Busisiwe Mkhwebane as the Portfolio Committee on Justice and Correctional Services continued its work on the bill that intends to establish a permanent structure to combat high-level corruption.

On 11 September, a two-thirds majority of the National Assembly voted to remove Mkhwebane as Public Protector following a protracted impeachment inquiry, which found her guilty of misconduct and incompetence.

Many of the charges against her were based on scathing court rulings, including that she misapplied the law, like when she ordered National Director of Public Prosecutions Shamila Batohi to investigate President Cyril Ramaphosa for money laundering.

After Batohi stressed to Mkhwebane that the Public Protector did not have the legal power to order the National Prosecuting Authority to investigate and report back to her with an "implementation plan" within 30 days, Mkhwebane wrote back, baselessly accusing Batohi of "colluding" with Ramaphosa's lawyers.

Last month, days after her term would have ended, Mkhwebane announced that she joined the Economic Freedom Fighters.

Within a week, she was sworn in as a member of the House that found her guilty of misconduct.

And now she serves on the Portfolio Committee on Justice and Correctional Services, where she is expected not only to exercise oversight over the office she was found incompetent to lead, but also Batohi and the NPA.

Furthermore, she is responsible for drafting key legislation, such as the NPA Amendment Bill.

This bill was keenly anticipated until its introduction in August.

Its genesis is Ramaphosa's announcement in October last year, as part of his implementation plan on the Zondo Commission's recommendations, that the Investigating Directorate (ID) would become a permanent structure called the Investigating Directorate against Corruption (IDAC).

On several occasions, Batohi stressed that this legislation is essential in the fight against high-level corruption.

The bill will amend the NPA Act to provide for the establishment of the IDAC and outline its powers and functions and to provide for the appointment of investigators.

Furthermore, the bill aims:

• To provide for the establishment of a mechanism to deal with serious complaints about persons appointed at or assigned to an investigating directorate.
• To provide for the powers and functions of investigators.
• To provide for transitional arrangements relating to the existing ID at the NPA to become part of what will be the newly established IDAC.

But when the committee continued its work on the bill on Tuesday morning, all of this appeared to be news to its newest member – Mkhwebane.

"The first question that I have is: Why this amendment? Uhm, what do we intend to achieve?" she asked.

"I'm asking this question, because is corruption not a crime which can be prosecuted like any other crime? Yes, it's a very specialised field, but do we have to go all the way and amend the National Prosecution (sic) Act to legislate on that?"

Responding to Mkhwebane, Deputy Justice Minister John Jeffery said the ID is already there, by presidential proclamation, so the bill is not creating anything new, but it is making it statutory to give it permanence so that it can't be removed with the stroke of a pen, as Democratic Alliance (DA) MP Glynnis Breytenbach likes to say. He said it also provides for the appointment of investigators, which the ID can't do at the moment.

Two weeks ago, the committee received submissions on the bill, with concerns about its independence a common thread.

The NPA also raised the issue of the proposed IDAC's independence in its presentation to the committee. The bill currently provides for the State Security Agency to vet the investigators appointed to IDAC.

In terms of the current provisions, if an investigator's security clearance is withdrawn, the NDPP must immediately discharge that investigator from office, and the NDPP does not have discretion as to whether to discharge. Furthermore, the affected investigator does not have the right to challenge on appeal before they are deemed unfit to hold office.

"The withdrawal of security clearance can be weaponised against an ID or IDAC investigator who may be working on a sensitive case," reads the NPA's presentation.

"The NPA submits that if an ID or IDAC investigator summarily becomes unfit to hold office and must accordingly immediately be discharged if his or her security clearance is withdrawn, this will undermine security of tenure and thus the independence of the NPA."

The NPA subsequently submitted that the NDPP should have discretion as to whether an IDAC investigator is unfit to hold office and must be discharged.

On Tuesday, the Department of Justice and Constitutional Development presented further changes to the bill to the committee, most of it technical in nature.

The Department of Justice and Constitutional Developments deputy director-general for legislative development, Kalay Pillay, said they had to "clean up" the clause dealing with the vetting, because during the public comment phase, it was raised that the original clause may not be in line with labour laws.

While the clause previously stated the NDPP must immediately discharge an investigator if the SSA withdraws their security clearance, the changed version now provides that the national director "may" discharge an investigator in consultation with the SSA after their security clearance is withdrawn.

This gives the NDPP more discretion.

The changed clause also provides for an appeal mechanism to the state security minister if an investigator's security clearance is withdrawn.

Breytenbach asked committee chairperson Bulelani Magwanishe if they could study the department's document with the changes and continue working on the bill in a week. She said the DA has "serious concerns" about some clauses, and theirs is a "sincere effort" to provide the NPA with what it needs, albeit temporarily, as the bill is a "sticking a plaster over a gaping wound type of thing".

African Christian Democratic Party MP Steve Swart and Mkhwebane also wanted more time.

Jeffery said Breytenbach claimed she wasn't being obstructionist, but there is only one substantial amendment.

"I'm not sure what is new," Jeffery said.

"We do require this bill urgently. We're hoping it can be passed by Parliament by the end of this year."

DA MP Werner Horn said they need more time, and the committee must resist the pressure of the executive.

"That can't be our consideration. We must give full effect to our processes," he said.

Breytenbach was not impressed by Jeffery's remarks.

"Let me just say this, the deputy minister doesn't determine the programme of this committee, as much as he tries. He is not the chair of this committee, as much as he often tries to chair this committee. I will not be told how to conduct a proper evaluation of legislation by the deputy minister, thank you very much.

"If I want to be obstructionist, you've seen nothing yet. We are trying to make a sincere effort to accommodate the urgent needs of the National Prosecuting Authority in this arena."  She said they are trying to legislate responsibly. 

Like Horn, she said it is a possibility that the government will regard the bill as the final legislation to address corruption, but it doesn't go far enough. 

"It is wholly insufficient, it is wholly inadequate, and it is wholly unsatisfactory. And no amount of panel beating will improve it," she added.

Breytenbach said it could only be a temporary solution.  

"I'll thank the deputy minister to stop trying [to] dictate to this committee, thank you, chair."

African National Congress (ANC) MP Qubidile Dyantyi, who chaired the Section 194 committee which found his now colleague Mkhwebane guilty of misconduct and incompetence, said he supported the request for an extra week to "try and enrich the document in front of us".

He said it wouldn't be a "train smash" if they decided not to "just put on oogklappe [blinkers] and we march on".  

ANC MP Nomathemba Maseko-Jele also supported a week's extension.

Jeffery said it is obviously the committee's decision, and he took exception to Breytenbach's "allegations and assertions" that he is trying to dictate to the committee.

"I object to the allegations that I am trying to take over the committee. I find that offensive," he said.

Magwanishe agreed to the extension – they will deal with the bill again next Friday – and asked members not to disparage the views of people who disagreed with them. He said Jeffery's view that an extension isn't necessary couldn't be construed as dictating to the committee.