Private Member's Proposed Legislation: SA Police Service Amendment Bill to enforce ICD recommendations

Meeting report

Briefing on proposed amendments to the South African Police Services Act
Ms Diane Kohler-Barnard (DA) briefed the Committee on the background to and suggested amendments to the South African Police Services Act (Act no. 68 of 1995) (“the SAPS Act”).  Notice of the proposed Amendment Bill was submitted to the office of the Speaker of Parliament on 25^th June 2009.

The amendments to the SAPS Act were motivated by the ever-increasing amounts set aside by the South African Police Services (SAPS) for lawsuits brought against the Police Services.  The provision in the current budget amounted to R7.6 billion.  The oversight conducted over the SAPS required strengthening.  The purpose of the proposed amendments to Section 53 of the SAPS Act was to strengthen the Independent Complaints Directorate (ICD).  The amendments would place a greater onus on SAPS to implement the recommendations of the ICD related to the conduct of members of SAPS.

Members of SAPS were public servants but were granted extraordinary powers to arrest and use force.  Special measures had to be in place to ensure that the members of SAPS were held fully accountable for their actions.

The ICD was established in 1997 and operated independently of the SAPS.  The ICD was mandated to ensure and promote proper police conduct.  The ICD investigated five classes of complaints concerning instances of criminality, brutality and general misconduct of members of SAPS and the municipal police services.  The ICD issued reports on the cases investigated and made recommendations to SAPS and the Director of Public Prosecutions on the action to be taken against the police officers concerned.

During a recent briefing to Parliament, the ICD reported an increase in the number of complaints received.  The number of complaints increased from 5830 in the previous year to 6119.  In the same period, the number of deaths in police custody increased from 792 to 912.  The ICD had made 573 recommendations, of which 333 were complied with by SAPS (i.e. 58%).  During 2008, the ICD investigated 11187 cases.  The failure of SAPS to act on the recommendations of the ICD constituted a serious operational challenge, undermined the integrity of SAPS and exacerbated the situation as the case load continued to increase at an average rate of 16% per annum.

Ms Kohler-Barnard reported that the ICD had not had a full complement of staff since the date of inception and was severely under-resourced.  Nevertheless, the problem was with the implementation of the recommendations made by the ICD rather than the investigation and reporting processes.  The proposed amendments to Section 53 of the SAPS Act would make it mandatory for SAPS to implement the ICD recommendations.  Provision was made for SAPS to lodge an appeal if the recommendations were considered to be unreasonable.

The proposed amendments to the SAPS Act were suggestions from the sponsor and were open for further discussion.  The issue had been discussed at length with the Portfolio Committee on Police and with the Minister of Police.  All parties concerned agreed the necessity to “give the ICD more teeth”.  Amendments to the Criminal Procedure Act were currently under discussion and a simultaneous amendment to the SAPS Act would be required.

Ms Kohler-Barnard summarised the proposed amendments to Section 53 of the SAPS Act.  The desired result of the amendments was to enhance the enforcement power of the ICD and to increase the responsibility and accountability of members of the police services.

Discussion
The Chairperson asked what the financial implications of the proposed amendments would be.

Ms Kohler-Barnard replied that an amount of R19 million was spent in a single year on the payment of salaries for suspended SAPS members.  The cases brought against the members concerned were not finalised and the persons were neither dismissed nor reinstated for several years.  The proposed amendments would ensure that cases were dealt with within s specified timeframe and result in the saving of millions of Rands.  SAPS would be required to decide on the action to be taken against members found guilty of transgressions, including arrest for criminal acts committed.  She said that the public felt that members of SAPS found guilty of criminal acts were treated far too leniently, including the practice of transferring transgressors to other provinces.  The proposed amendments would address the issue of the small number of police officers bringing the SAPS into disrepute by their criminal behaviour.

Mr A Ainslie (ANC) suggested that the representative of SAPS present at the meeting was given the opportunity to comment on the proposed amendments before the matter was discussed further by the Committee.

The Chairperson advised that Members of the Committee was given the opportunity to obtain clarity on the proposed amendments before SAPS was asked to comment.  He requested further details concerning the financial implications of the amended legislation.

Ms Kohler-Barnard confirmed that the creation of a one-person appeals section would have financial implications but the costs involved would be a fraction of the costs incurred by the continued payment of salaries for SAPS members who should have been dismissed.

Ms J Irish-Qhobosheane (Secretary of Police) represented the Minister of Police at the meeting.  She reported that the Minister had been concerned with the issue of strengthening the ICD for some time and made specific reference to the matter in his recent budget speech.  Proposed legislation had been drafted for tabling during the first Parliamentary session of 2010.  The consultation process on the draft legislation was scheduled to take place in the next four to six weeks.  The new legislation dealing with the ICD would require the simultaneous amendment to the SAPS Act.  The aim of the new legislation was to capacitate and strengthen the ICD and the concerns and weaknesses identified by the Portfolio Committee on Police would be addressed.

Ms Irish-Qhobosheane explained that the amount of R7.5 billion referred to in recent media reports was the contingency liability required in terms of the Public Finance Management Act (PFMA).  The actual amount paid out for legal fees and lawsuits against the SAPS during the previous financial year amounted to R56 million.

Ms J Sosibo (ANC) asked for confirmation that the legislation was in the pipeline.

Mr W Doman (DA) asked if the issue concerning the implementation of recommendations made by the ICD would be covered by the new legislation.

Ms Irish-Qhobosheane confirmed that the implementation of recommendations made by the ICD and the enforcement powers of the ICD were included in the proposed legislation.

Ms A van Wyk (ANC) represented the Portfolio Committee on Police at the meeting.  She asked if the 2005 Committee Report had been taken into consideration in the drafting of the new legislation.

Ms Irish-Qhobosheane confirmed that all the criticisms concerning the IDC that were raised by Parliament had been addressed in the new legislation.

The Chairperson requested confirmation that all the issues raised by the Parliamentary Portfolio Committees had been addressed.

Ms Irish-Qhobosheane replied in the affirmative.

Mr Doman asked when the proposed legislation would be brought before Parliament.

Ms Irish-Qhobosheane advised that the Chairperson of the Portfolio Committee on Police had been advised that the Department of Police was ready to start the consultation process on the Bill.  The deadline for the current session of Parliament had been missed and the new legislation would therefore be tabled during the first session of the next year.

The Chairperson asked if the drafting of the new legislation would be completed in the next four to six weeks.

Ms Irish-Qhobosheane replied in the affirmative.

Mr Ainslie was satisfied that the proposed new legislation would deal with the issues concerning the ICD in a more extensive manner than the Private Members’ Legislative Proposal under discussion.  He suggested that Members first confirmed that other legislation obviating a Private Members’ Legislative Proposal was not in the pipeline.

Ms Kohler-Barnard was pleased that the current secretariat was attending to the issue.  She said that the matter had been under discussion by the Parliamentary Portfolio Committees for a number of years but had not enjoyed a high priority.  The necessary legislative changes had been delayed over a lengthy period of time.

Ms Van Wyk advised that the Portfolio Committee on Police welcomed the proposed new legislation on the ICD and the removal of the ICD from the SAPS Act.  She said that the Minister of Police had indicated his willingness to empower the ICD by upgrading the position of the head of the ICD to the level of Deputy Director-General from the previous level of Chief Director.  She suggested that the secretariat was allowed the opportunity to finalise the proposed legislation.  The Portfolio Committee supported the fight against crime in a legal manner and the empowerment of the IDC to enhance respect for the police service.

The Chairperson acknowledged the reasons behind the Private Members’ Legislative Proposals concerning the SAPS Act and noted the proposed new legislation dealing with the IDC.  He thanked Ms Kohler-Barnard, the Secretary of Police and the representative from the Portfolio Committee on Police for their input.  Member of the Committee would refer the matter to their respective Party Caucuses and the matter would be finalised during the next meeting of the Committee.

Adoption of minutes and Committee’s five-year plan
The Chairperson proposed the adoption of the minutes of the Committee’s meeting held on 5 September 2009.  Ms Sosibo tabled the motion for the adoption of the minutes and the motion was seconded by Ms Nyanda.

The Chairperson advised that the Committee’s five-year plan would be discussed at a later date.

The meeting was adjourned.