Independent Complaints Directorate (ICD) Release of Annual Report for 2008/2009

Q:  A journalist asked if the officials could comment on the general trend of police behaviour, particularly in relation to the numbers of police in the force. The question also asked for an indication of the number of deaths in custody during the previous year, and whether this showed cause for concern.

A: Mr Beukman responded that broadly speaking, with respect to the three categories, the numbers were more or less the same as previous years. The cases investigated under the Domestic Violence Act (DVA) showed a slight downward trend, and this was probably because of under-reporting. One of the issues was accessibility.  It was interesting that in those provinces where ICD had established satellite offices it had experienced an increase in complaints.  However, there were rural areas where there were no ICD satellite offices. ICD would need to address that issue and see how it could work with other partners in the criminal justice system. This was not a one sided issue and there was a need to bring “all hands on deck” to see how the situation could be improved.

A: Mr Tshabalala added that he did not think that the trends showed that the police were behaving well. The first category of trends gave a breakdown of the circumstances in which deaths occurred, which was why it was important for ICD, as part of its investigation into deaths, to attend the post-mortem, giving an opportunity to establish the cause of death and determine whether the police had acted within the confines of the law. In the event that they had not done so, then ICD would take appropriate measures to have the particular officials prosecuted. He would therefore not say that the trends gave an indication that the police were behaving well. However, the two financial years of 2007 and 2008 did show a decline in the category of natural causes of death in police custody, although he could not say what the reason was for that decrease.

Q: A journalist asked the ICD to indicate, from the total of 723 recommendations made to the Director of Public Prosecutions, how many or what percentage ended in conviction of the SAPS member concerned, and how many had been followed through. The same journalist also noted that 1212 recommendations were made to SAPS, and asked what had happened to those recommendations, and how many or what percentage of the SAPS individuals had been disciplined.

Q: The same journalist asked what the main issues were in relation to the amendment of the legislation and whether this was just a question of correcting the wording relating to the interim Constitution, or if more substantive changes were required in relation to the ICD itself.

A: Mr Beukman responded that there was a need to distinguish between discretionary powers and obligations. As the current legislation was worded, the ICD made “recommendations” only to SAPS, and there was no legal duty on SAPS to comply with ICD’s recommendations or to report back. The statistics showed that in some cases there was no report-back. This was a lacuna in the current legislation. He believed that if the new structure were to be processed, then there would need to be improvements on this aspect. A change to the legislation would improve oversight, the ICD’s functioning and would also defining its role in relation to the SAPS and the Secretariat of Police.

However, he added that the expansion of this legislation would depend on the evaluation of the current structure and ICD’s performance. The Portfolio Committee and stakeholders would have to conduct public hearings on the matter. 

Q: A journalist assumed that the year numbers in relation to the cases indicated the years in which the cases were first reported. A number of these cases dated as far back as 2002, 2003 and 2004. The journalist asked for comment on the length of time that it would take to obtain a conviction or closure in these matters.

A: Mr Tshabalala responded that that the convictions that were highlighted currently dated back to 2002 and 2003. He said that the time taken for investigations to be completed could be anything from three months to six months or even a year, because these might, for instance, also involve referrals to forensic laboratories. There were several factors that could delay a matter before it was finalised. Another issue was the current backlog in the criminal justice system. The ICD cases did not receive any preferential treatment and had to go through the same channels.

Having said that, Mr Tshabalala added that the convictions shown did not emanate from the current financial year. He also highlighted that if the ICD made recommendations to the Directorate of Public Prosecutions (DPP), that did not mean that all recommendations would be followed through with a prosecution. The DPP was an independent institution which had its own way of dealing with matters, and if it felt, on the basis of what was provided, that it did not have sufficient evidence to continue with a prosecution, it would decline to prosecute, or refer matters back to the ICD for follow-ups to be made. Similarly, the ICD would make recommendations to SAPS, and it should take action. He referred to the figures for convictions for misconduct, which were listed as 90 for the past financial year, and said that these indicated that a number of the recommendations were being followed through.

Q: A journalist quoted figures contained in a reply from the Minister of Police, given at the beginning of the month, which were slightly different from those quoted today. The quotation read: “…out of the investigations there were about 600 cases being investigated and 28 were found guilty of murder, 33 of attempted murder , 30 of rape, 108 of theft”. The theft cases were the highest, and assault and damage to property ranked second in frequency. The journalist asked for comment on the R7.5 billion law suits that were being faced by SAPS at present.

A: Mr Beukman responded that ICD could not comment on any legal liability faced by SAPS, as that was a SAPS matter.

A: Mr Tshabalala responded that he would expect a difference in the figures, because the Minister had been quoting cases handled by SAPS itself. The police had the right and the mandate to investigate any criminal activity, whether or not it came from within SAPS’s own ranks, they had the power to do that. However, ICD would also handle matters, and it was those that ICD accounted for. The Minister had been speaking of cases investigated by SAPS in house. That was the reason for the difference.

Q: A journalist said that earlier a question had been asked about the final number of deaths from natural causes, as a 15% increase in deaths, whilst in police custody, seemed rather shocking. However, to get the absolute figure, it would be useful to have the number of deaths from natural causes, and the number of deaths from unnatural causes.

A: Mr Tshabalala responded that deaths in general whilst in police custody had increased by about 15%, but as the various categories showed, such as the deaths in police cells, there were deaths which, although taking place in police cells, were not attributed to the police. For example, a person might have been involved in vigilantism and been taken into custody after he had been severely assaulted. Although the assault by the mob might have led to the death, the fact that he died while in police custody would mean that the ICD must undertake an investigation. In such an instance, members of the police would not be held responsible for a person's death. Similarly there were also natural causes that could cause death. There could also be injuries sustained whilst in custody from fights between inmates. It was in the mandate of ICD to investigate and then make that independent finding.

Q: A journalist asked what “natural causes” would entail and asked why, if there were obvious illnesses or symptoms, a person would not be taken to a place where he or she could be cared for properly.

A: Mr Tshabalala responded that “natural causes” related to various forms of illness. However, there might be a situation where a person was arrested for a crime, yet nobody knew that person was sick, and the person might die in custody before the SAPS could access appropriate medical care. The post mortem would then reveal to the ICD what the actual causes had been. These were expressed as a percentage of all the deaths. In most cases such persons had a medical history of which the SAPS would have been unaware, and therefore unable to ensure that the person arrested received appropriate medication.

Q: The same journalist said that it seemed strange that a person could, virtually on his death bed, commit a crime and then die shortly afterwards. He asked whether the fact that a death from natural causes occurred meant that the person had been held in custody for a long time.

A: Mr Tshabalala responded that he could not say whether the police had a process, but usually where a person as awaiting trial he or she would be detained in a correctional facility. It was not possible for someone to be held for too long in a police holding cell. For lay persons who were not trained in the medical field it was difficult to say at what stage a person's illness was at a critical stage, or the extent of their illness. However, in the event that such a person complained of ill health, SAPS would have to ensure that this person received medical attention.

Q: The journalist asked another follow-up. There could be a case where, for example, a suspect arrested by the police was diabetic. That suspect could go into a diabetic coma, but simply be assumed, by SAPS, to be drunk, and then might die. The point was that on investigation the ICD might then discover that the person was diabetic, died because the diabetes was not attended to, and possibly through the negligence of the SAPS official. The question was  whether this would be reflected as a death by “natural causes” or whether it would be marked under another category.

A: Mr Beukman responded that this was speculative and it would depend on the results of the post-mortem.

Q A asked whether ICD had found that it had a lack of resources and that there was a back log of cases that led to frustration on the part of complainants.

A: Mr Beukman responded that there was an indication of the numbers on page 55 of the Annual Report.

He commented that the issue of resources was an important question. However, ICD would have to evaluate that scientifically, comparing its case load with that of other institutions, such as the National Prosecuting Authority, or the Public Protector, and then undertake a critical analysis whether there was really a shortage of resources, and then decide on a way forward. That would form part of the discussions that ICD was hoping to start with the Portfolio Committee and other role players. It would be very important to ensure that ICD had the capability to move forward, over the next five years, and in terms of the proposed new legislation. Critical shortages and the need for more funding had been highlighted in the Annual Report. However, at this stage the ICD would have to look at what National Treasury had prioritised, and the findings of the Auditor-General.

The briefing was adjourned.