In the morning session, the Parliamentary Research Unit, the Institute for Security Studies and the Association for the Prevention of Torture briefed the Committee on their views about the two Bills. The intended role to be played by the Secretariat with regard to the handling and monitoring of Independent Police Investigative Directorate (IPID) recommendations needed clarification. There were concerns that provinces would have inadequate budgets to fund the activities of the provincial secretariats. The process of intervention into the affairs of a provincial secretariat under the Minister’s orders was explored, with suggestions that such intervention needed to be clearly defined. The agency’s shift of emphasis from receiving complaints to carrying intensive investigative work could be in conflict with what the Constitution intended in section 206(6). Committee members disagreed about the strength of the argument that the name change and shift of emphasis of the IPID was likely to raise constitutional problems. The diminished role of Parliament in the affairs of IPID, especially the appointment of the Executive Director was criticised. A view was put forward that the public should be allowed to play a role in the appointment and the Minister needed to consult extensively with Parliament before making the appointment. Others did not support the view that the role played by the Minister should be replaced by Parliament as Parliament did not have the capacity and enough resources to implement IPID recommendations.
There was a suggestion that the reporting of cases to IPID for investigation needed to be made mandatory in cases such as death, rape and torture by on or off duty police officers. At present, the wording in the Bill did not make it obligatory to report such cases to IPID. Torture was singled out as a murky concept as South Africa did not yet have legislation that criminalised torture. Some submissions and Members were concerned about the lack of a torture definition in the Bill, saying it would pose challenges when dealing with complaints against the police. The state law advisor disagreed saying that though at present there was no definition of torture, one could use several International Law instruments or even the dictionary definition to prosecute torture.
In the afternoon, the Committee received submissions on the Bills from the Civil Society Prison Reform Institute (CSPRI) and Mr Matevhu Matidze. Several amendments were proposed.
The Committee discussed CSPRI suggestion that the new body to replace the Independent Complaints Directorate should be able to provide research into violations of human rights. Also discussed were CSPRI’s comments on the Executive Director’s authority to delegate certain powers, the concept of torture being undefined and referring matters to the National Director of Public Prosecutions (NDPP). The Committee asked why Mr Matidze had recommended that the Community Policing Forums should migrate from the South African Police Service to the Secretariat. Members also discussed the impartiality and independence of the Independent Police Investigative Directorate.
In response to the submissions, the Independent Complaints Directorate (ICD) commented that it was important for the concept of torture to be properly defined. However, the Committee had to progress with the Bills that they were currently processing. They suggested that the current international definition for torture could be included in the Bills in the interim while the Justice Portfolio Committee focused on defining the concept of torture in its deliberations on the upcoming Combating of Torture Bill. The ICD also agreed with the CSPRI submission that all police officers had to be compelled to report all death, rape and torture cases that were related to police actions. Failure to do so should result in sanctions.
The Secretariat responded that the Committee had to be careful about the definition for torture, as the Justice Portfolio Committee would be involved with the Combating of Torture Bill that would also look at the concept. The Committee needed to liaise around this before certain provisions were put into the legislation. There had been a two-year debate on the definition of torture. The Committee could not solve the problem merely by having an interim definition. A better approach was to engage with the Department of Justice and Constitutional Development to get a better idea of how the concept should be defined.
The State Law Advisercommented that if the concept of torture was not specifically defined in the Bills, it would be given the ordinary dictionary meaning. If the term was defined now, the term could later be seen as too narrow or too broad compared to that of the Justice Portfolio Committee’s definition in the Combating of Torture Bill and it would have to be amended.
Parliamentary Research Unit submission
On the Civilian Secretariat for Police Service Bill, Mr Mpumelelo Mpisi mentioned that the Bill had certain clauses which were problematic to him. He mentioned clause 5(1)(a) as an example, saying the Bill did not make clear to whom the Secretariat made its recommendations, and what outcome was to be expected of those recommendations. The clause on compliance with the Domestic Violence Act, clause 5(1)(d), only spoke of the need to “monitor and evaluate” compliance but was silent as to the sanctions or penalties to be imposed by the Secretariat in cases of non-compliance with the Act. Further queries were raised about the anatomy of the Bill. It was unclear from where the budget of the Secretariat came. It was also not clear if provincial Secretariats and MECs used the advice function in the same way as the national Secretariat and Minister of Police. It was noted that clause 14(2)(a)(ii) stated that one of the functions of the provincial Secretariat was to “evaluate and investigate” police conduct in the province. This prompted the question as to whether the Secretariat had been given the competence to investigate matters and even if it had, what sort of investigations would those be.
On the Independent Police Investigative Directorate Bill, Mr Mpisi had reservations about the name change of the Independent Complaints Directorate to IPID and whether the shift of emphasis from receiving complaints to being an investigative-oriented body was in line with section 206(6) of the Constitution. Section 208 of the Constitution provided for only the establishment of a police civilian secretariat not as a complaints-handling organ of state. Instead it specifically provided that the directorate should receive complaints against the police, which the new Bill sought to do away with. He pointed out that under the new Bill, the role performed by Parliament in the appointment of the Executive Director seemed to be diminished and the vetting of the Executive Director was not mentioned at all in the Bill. The two Bills needed to be synchronised to ensure that they were clear in terms of who was responsible for what and to avoid any possible duplication of roles between the Secretariat and the police. For the purposes of strengthening the Bill, a few areas needed to be tightened such as compelling police officials to report all deaths, rape and torture while in police custody to IPID immediately, with sanctions for any failure to do so. Full support and cooperation to IPID from policing agencies needed to be guaranteed. ‘Torture’ needed to be given a definition. IPID needed to be allowed to prioritise cases referred to the National Prosecuting Authority (NPA). Lastly, Mr Mpisi suggested that the process whereby the Minister appointed the head of the directorate was not ideal, and in order to ensure unfettered independence, the agency needed to be accountable to Parliament and not to the Minister.
Ms A Van Wyk (ANC) pointed out that section 206 of the Constitution needed to be read as a whole and in its context. There was a danger that confusion was being created due to the reading of the section in isolation from its context and only focussing on section 206(6).
Mr G Schneemann (ANC) asked the researcher if he had looked at how other countries had dealt with having bodies such as the Secretariat and the IPID. Perhaps the research could have added more meat in as far as its reservations on the appointment and vetting of the Executive Director. On the IPID budget, the ICD Executive Director had mentioned that the organisation would have its own stand-alone, separate budget and not, as suggested in the researcher’s submission, that the IPID budget would still be under the control of SAPS.
Mr Mpisi conceded that he may have missed the point raised on the budget and that he was willing to look into models of other countries to compare how bodies that had oversight over the police force were managed.
Ms Van Wyk asked for clarity about vetting of the Executive Director which had been raised by Mr Mpisi. It was interesting to note that there was a provision ensuring the vetting of other IPID investigators but no such provision for the vetting of the Executive Director.
Ms Irish-Qhobosheane, Head of Police Secretariat, replied that even though the Bill was silent about the vetting of the Executive Director, such silence had no effect because in terms of the vetting laws of the country, every government official with a rank at the level of Deputy Director General had to be vetted. There was no chance that the level of the ICD Executive Director could be below that of the DDG.
Mr Schneemann disagreed with Mr Mpisi on his proposition that the agency should be accountable to Parliament and not to the Minister. The current provision in the Bill was that the agency (IPID) was accountable to both the Minister and to Parliament.
Rev Meshoe (ACDP) expressed his reservation about the title of Chapter Six of the Independent Police Investigative Directorate Bill. The title of heading seemed too long but at the same time it did not capture everything which was contained in it.
Mr M George (COPE) said while he understood the concerns surrounding the diminished role of Parliament in the affairs of the IPID, he did not fully support the view that the role played by the Minister should be replaced by Parliament. Parliament did not have the capacity and enough resources to implement recommendations which may come from the IPID.
Mr George felt the new structural arrangement provided for in the Bill was of concern especially where it suggested a name change and a focus on investigations instead of receiving complaints. The Constitution made it clear under section 206 that an independent body responsible for receiving complaints should be created. The fact that IPID would no longer be focused on receiving complaints meant the Constitution needed to be amended.
Mr Lekgetho asked what would be the situation if a complaint with characteristics of torture was brought to the attention of the ICD before the finalisation of the Combating of Torture Bill which was still being prepared by the Department of Justice. Would the lack of a definition for torture not hamper the investigation of the case?
Mr Theo Hercules, State Law Adviser, replied that if a case involving torture emerged before the finalisation of the Combating of Torture Bill, the dictionary definition of the word would suffice for the purposes of defining what torture was.
The Chairperson asked the Secretariat or ICD officials to explain what the situation was at present, when for instance a person was wrongfully shot and wounded by the police. Did the police investigate this just like it would do with any criminal case or it was the ICD which immediately took over the investigations?
Ms Irish-Qhobosheane, Head of Police Secretariat, replied that the ICD would step into the picture and conduct the investigation and upon the conclusion of the investigation, it would decide whether to make a recommendation to the National Prosecuting Authority (NPA) for instituting criminal charges or it might submit recommendations to the Provincial Commissioners for disciplinary proceedings.
Mr Beukman added that the current problem was that there was no legal obligation for the police to report any such incidents to the ICD for investigation and as a result, unless reported by the complainant, some cases could be swept under carpet to avoid ICD investigation. It would have helped if there was a provision in the Bill to the effect that in certain instances, the police were obliged to report to the ICD. Cases involving shooting by police, whether for good or bad reasons, needed to be reported to the ICD for an investigation to be carried out. And such duty to report should be carried out within a specified period of time (sanctions for deviations specified) to avoid compromising the investigation.
Mr George asked if there were any mechanisms to ensure that either the NPA or the Provincial Commissioners acted on such recommendations. The answer to that question was important because it was at that point where the perception was that the ICD was toothless. If the ICD could investigate the matter and made recommendations which could easily be ignored, then the allegation that it was a “toothless dog” was credible.
Mr Beukman replied that matters referred to the NPA for further action largely depended on the Director of Public Prosecutions (DPP) making up his or her mind that there was a prima facie, winnable case in court before deciding to prosecute. Such was his or her prerogative and no other person could influence the DPP to press charges if he or she did not feel there was a winnable case. As far as the recommendations to the provincial commissioners, there were no measures to monitor what action(s) were taken and the Committee could effect a provision which made it mandatory for the provincial commissioners to report back to the ICD on what actions it took on a matter which was referred to it.
Ms Van Wyk asked what would then be situation once the Bills were enacted into law.
Mr Beukman replied that as far as criminal matters were concerned, they would continue to be handed over to the NPA but other recommendations would be directly passed to the Minister of Police, with a copy of the recommendations given to the Police Secretariat.
The Chairperson remarked that she had thought the envisaged situation was that the recommendations to the Minister from the IPID would go to the Minister via the Police Secretariat.
Mr G Lekgetho was still not convinced that the issue of recommendations, even to the Minister had been adequately addressed. The fact that a person could decide to take or reject a recommendation made the ICD toothless and such could even prevent justice from being served.
Rev Meshoe asked from where the provincial budgets for running provincial Secretariats would come from.
Mr Mpisi replied that from his reading of the Bill, everything seemed to suggest that the budget would come from the very same provinces where those would be set up.
Mr George said he was worried about the provision that the Secretariat could receive donations for running its operations “from any other source”. Did that mean they could receive money anywhere, even from Al Qaeda?
Association for the Prevention of Torture (APT) submission
Ms Amanda Dissel, researcher for APT, said her organisation had a keen interest in the Bills, particularly clause 25(1)(a) of IPID which gave the directorate a mandate to investigate any complaint of torture referred to it by a station commissioner, magistrate, judge, legal representative or the complainant in the case where the complainant was unrepresented. South Africa was party to various international instruments which prohibited torture and other cruel, inhumane or degrading treatment or punishment. The Constitution also expressly prohibited torture and various forms of inhuman or degrading treatment. At present, the dilemma was that South Africa did not have a criminal offence of torture. However, since 2005, South Africa had been working on legislation to fulfill its obligations under international law, particularly the United Nations Convention Against Torture (UNCAT) which was ratified by South Africa in 1998. One of the challenges faced was with the definition of torture. Such lack of clarity with regard to definition was said to have a potential to create loopholes for impunity.
Ms Dissel identified challenges with the language used in the Bill. Clause 6(4) was said to be in need of strong and directive language to the effect that the Executive Director did not have any discretionary powers when it came to referring matters to the NPA when findings were made that torture had been committed. It was suggested that a clause should be inserted under clause 22(2) which dealt with qualifications of the Executive Director that, in addition to other requirements, he or she should have experience in human rights. There was a suggestion for IPID to regularly provide training to its investigators, particularly on matters of torture so that they could have expertise in investigating such conduct and that Community Policing Forums should have the opportunity to visit police detention cells to check whether the cells were not hidden centres of torture.
The Chairperson thanked the presenter and said she wished one day the Committee could invite Ms Dissel to one of its oversight visits in order to completely dispel the perception that she had of the Committee’s lack of independence when examining conditions in police cells.
Ms D Schafer (DA) said it was clear that since the Combating of Torture Bill still had to be finalised, the issue of definition could play a huge role in stifling progress when dealing with matters of torture. Could it not be possible for the drafters of the Bill to come up with a universally acceptable definition of torture, at least for the time being. Such would be repealed if it differed from the one contained in the Combating of Torture Bill once it came into force.
Ms Van Wyk voiced her support for this suggestion.
Ms Dissel agreed with the suggestion to have, at the very least, a temporary provision to define torture. One of the problems with torture was that it was a murky concept. Although most torture was committed through commission, omission on the part of an individual or legal entity could amount to torture through for example imputing the actions of a person to the state for its failure to prevent such torture.
Mr Makhubela (COPE) also agreed that torture needed to be defined and be crafted in the same tone as assault was defined in South African law.
Mr Hercules assured the members that there were enough provisions available to define torture. The Constitution, under section 12 spoke of the right not to be tortured in any way and not to be treated or punished in a cruel, inhumane or degrading way. Torture was also defined under international law and there was nothing that could stop judges from interpreting what the Constitution intended or from borrowing the definition of torture under International Law or even using the dictionary definition of the word.
Mr Schneemann remarked that torture, even under International Law, was a very difficult crime to prove. What would happen in terms of compensation where a person had the psychological effects of torture but the crime itself could not be proved in court?
Ms Dissel suggested that there were ways in which torture was dealt with in International Law and if such precedent was to be followed, many cases could be easily solved and compensation given. Compensation for torture victims was not entirely dependent on successfully proving that a person was indeed tortured.
Mr George welcomed the suggestion about the need to provide extra training for investigators so they would be better able to detect torture. It needed to be borne in mind that such initiatives would need huge financial backing and such training should not only be provided to IPID investigators. SAPS investigators would need extra training for them to be able to professionally investigate crime and gather evidence without resorting to torture tactics. Part of the reason that police used torture was that the investigators were poorly trained to investigate and gather evidence, hence the use of torture to extract information from the victims.
Institute for Security Studies (ISS) submission
Mr Gareth Newham, Programme Head: Crime and Justice Programme, applauded the development of the Bills as an important step in the right direction for police oversight in South Africa. The organisation believed there were certain areas in the IPID Bill in particular which needed to be re-looked at in order to strengthen the legislation. The appointment of the Executive Director needed to be tightened to guarantee it was independent by providing for a more vigorous consultative process between the Minister and the Portfolio Committee, a process which would be open for public submissions with respect to shortlisted candidates. On the reporting of cases, Mr Newham said they would have liked to have seen a provision which compelled the police to report cases for investigation not only to the IPID but also to the National Secretary of Police. There was evidence from research findings that the implementation of recommendations of the ICD by the police was very poor. The use of language on matters to be investigated needed to be straightforward such as: IPID must investigate all deaths in police custody, any rape by a police officer whether on or off duty and any complaint of torture referred by a person specified in the legislation. In addition, the Bill should contain the timeframe for the reporting of such cases deemed serious and a sanction for failure to comply. The need to define the term ‘torture’ was also stressed.
The Chairperson said the ISS presentation was very good in that not only did it critique the Bill but it also gave suggestions and recommendations where appropriate. Members were encouraged to ask only questions of clarity as there would be time at a later stage of the process to ask questions digging deeper into the Bill.
Ms Van Wyk praised the submission, saying it had very useful recommendations which would definitely be taken into consideration by the Committee.
Mr Makhubela wondered if the point raised that IPID should assess a variety of organisational policies, processes and systems, and at the very least management practices, was perhaps a responsibility of the Secretariat rather than being done by the IPID
Mr Schneemann agreed with Ms Van Wyk, saying the submission had given clarity and recommendations to some of the complex questions which the Committee had grappled with for a long time.
The Chairperson thanked everyone who had made submissions, saying it was clear from the submissions and comments that public hearings of this nature were very useful in highlighting the strengths and weaknesses of the legislation being developed to ensure that the country had progressive laws in place.
Civil Society Pension Reform Institute Submission
Mr Lukas Muntingh, Project Coordinator: Civil Society Prison Reform Initiative (CSPRI), informed the Committee that South Africa did not have the crime of torture defined in the statutes. The sooner South Africa complied with its obligation mentioned under Article 4 of the UN Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), to criminalise torture in domestic law, the better it would be for the effectiveness of the Independent Police Investigative Directorate (IPID).
Independent Police Investigative Directorate (IPID) Bill: Proposed Amendments
Independence and Impartiality
Clause 3 of the Bill stated that the IPID functioned independently of the South African Police Service (SAPS). The independence of investigative institutions lies at the heart of their legitimacy and effectiveness. It was with good reason that the UNCAT required that investigations be done by impartial authorities. The notions of independence and impartiality were linked, as the lack of independence was commonly seen as an indication of partiality.
Clause 5 of the Bill dealt with the appointment of the Executive Director. The process by which this person was appointed was not set out in the Bill. The CSPRI proposed that the appointment process needed to be set out in the legislation and that the final selection be made through a panel consisting of Members of Parliament, the proposed Civil Secretariat for Police Service and other selected stakeholders.
A Duty to Investigate and Criminal Prosecutions Following Investigation
The UNCAT placed a duty on all states to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. Clause 25(1)(e) required that the IPID had to investigate “any complaint of torture which was referred by a Station Commissioner, Magistrate, Judge, Legal representative, or the complainant in the case where the complainant was unrepresented”. The CSPRI proposed that the clause be amended to say that the Directorate had to investigate “any matter wherever there was reasonable ground to believe that an act of torture or other ill treatment has been committed”. It was noted that the crime of torture was omitted from clause 25(2).
Clause 6(4) mandated the Executive Director to refer matters to the National Prosecuting Authority (NPA) for criminal prosecution. The provision had the potential to severely limit the extent to which perpetrators of torture may be held accountable. If it was the duty of the IPID to investigate allegations of torture against the police, then it was compelled to submit its findings to the NPA for prosecution as required by the UNCAT.
Clause 8(d) required the national office of the IPID to “gather, keep and analyse information in relation to its investigations”. The wording of the clause created a risk that the information collected would only provide a partial picture of the situation. By providing more detail to clause 8(d), a better understanding stood to be gained about the crime of torture in South Africa and it would promote transparency. It was proposed that the clause be amended to read that the functions of the national office were to “gather, keep and analyse information in relation to, at minimum, complaints lodged, investigations initiated, investigations conducted, investigations completed, disciplinary actions against police officials, prosecutions, convictions, sentences imposed, recommendations made and action taken by SAPS, and support and redress rendered to victims and their families”.
It was also proposed that clause 8 be amended with an addition (clause 8(m)) to say that the functions of the national office were to “conduct research in to the systemic causes of human rights violations, including the crime of torture, perpetrated by police officials and make recommendations to the Secretariat and the Minister regarding the prevention of such violations”.
The monitoring mechanism proposed in clause 9 was a step in the right direction but it was limited to the extent that it required the IPID to report to the Secretariat on the “finalisation of cases” and could be interpreted to mean that there was only a need to report on finalised cases. Moreover, the composition of the Secretariat did not allow for direct public scrutiny. Independent persons had to have direct and unfettered insight into investigations being conducted by the IPID. It was proposed that the requirements for the sustained public scrutiny of investigations could be met by the creation of a standing sub-committee of the Consultative Forum with the explicit purpose to oversee and monitor investigations. Also, the sub-committee would consist of the Executive Director and no less than five employees of national human rights institutions.
Clause 7(2) described the functional units of the IPID and clause 22(2) set out the requirements for investigators. In both instances, no mention was made of the crucial role that forensic medicine played in investigating allegations of torture. It was proposed that clause 7(2) be amended to include a forensic capacity within the National Office.
Civilian Secretariat for Police Service (CSPS) Bill: Proposed Amendments
Objects of the Secretariat
CSPRI welcomed the inclusion of the objective in clause 4(b) to ensure the country's engagement with relevant international obligations.
Functions of the Secretariat
It was proposed that the clause 5(1)(d) be amended to read “monitor and evaluate compliance with the Domestic Violence Act, 1998 (Act No. 116 of 1998) and the treatment and conditions of detention of vulnerable persons, such as but not restricted to women, children, undocumented foreigners, mentally ill and physically disabled persons, and persons addicted to and/or under the influence of alcohol and/or drugs”.
It was proposed that clause 5(2)(b)(iii) be amended to read that the Secretariat must, for the purpose of subsection (1), establish competencies and capabilities in its operations in order to “keep under systemic review policies, interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, or detention by the South African Police Service, with a view to preventing any cases of torture and other ill treatment”.
A Visiting Mechanism
It was clear that the SAPS were responsible for the treatment and conditions of detention of detainees in its care, and that included preventing and reacting to inter-detainee violence and victimisation. Presently, there was no independent body of persons in the country that visited police cells with the purpose to inspect and report on treatment and conditions of detention. The Independent Complaints Directorate (ICD) did not have the mandate nor the capacity to do this.
It was proposed that the Bill be amended to provide for a visiting mechanism in respect of police stations and police holding facilities. Clause 8(a) and (b) already provided the Secretariat with the power to visit and enter any building or premises of the police service. It was proposed that this power be extended to provide for a fully-fledged independent visiting mechanism. Furthermore, the powers of the visiting mechanism had to be delegated to the provincial secretaries.
Mr Matevhu Emanuel Matidze's Submission on Civilian Secretariat for Police Service Bill
Appointment of the Secretary
Mr Matidze addressed Clause 6(1) of the Bill. This provision could be in contravention of the Public Service Act (PSA), which gave powers for the appointment of National Heads of Department as the prerogative of the President.
In terms of clause 6(2), section 12(2)(c) of the PSA provided that the Head of Department had to be appointed for a period of five years, which was renewable to a maximum of five years at a time. The provision that limits the number of times that the contract of the Secretary was renewable would thus be inconsistent with this provision.
Regarding clause 6(4), the provision may create a problem for the government in the future. Given the nature of the work that the Secretariat was supposed to perform, it might be considered strategic at some time in the future to get someone who has working experience of the SAPS.
Clause 11(2) stated that a person may not be acting Secretary for a period longer than ninety days at a time. In terms of the laws governing the Public Service, there was no limit on the period for someone in an acting position.
Appointment of Heads of Provincial Secretariats
Mr Matidze stated that clause 15(1) was in contravention of section 3A of the PSA with regard to the appointment of Heads of Departments and state agencies in the province.
Intervention by Secretariat plus Intervention by Secretariat on Instruction by Minister
Mr Matidze was not sure about the extent to which clause 23 and clause 24 were in line with the spirit of the Constitution as well as the PSA with regard to a national department intervening on matters of provincial administration.
Ms D Schafer (DA) addressed the CSPRI submission. She stated that the whole point of amending the ICD legislation was to narrow down its mandate so it could focus on investigations. The CSPRI suggested that they investigate systemic problems. She wondered how the ICD would be able to conduct research into violations of human rights. This seemed to be a job for another entity such as the Secretariat.
Mr Muntingh replied that the point was for the ICD to use the information it had at its disposal for its investigations. It should also make recommendations to the Ministry and the Secretariat based on this information. It was important for entities that did these types of investigations, such as the ICD, to look at current trends and systemic failures. This was important to prevent torture and ill treatment.
The Chairperson noted that the CSPRI raised an issue about the role of the Executive Director and spoke about the Executive Director having the authority to delegate certain powers. She asked for clarity.
Mr Muntingh answered that the issue raised in the submission about the delegation of powers was aimed specifically at cases that were supposed to be referred to the NPA. He suggested that either oversight had to be provided at the Executive Director level in terms of what had to be referred to the NPA, or the authority had to be divulged and included in the powers that could be delegated to provincial level. Having this authority centralised at the top of the Directorate was going to cause problems in terms of the processing of cases.
Mr G Lekgetho (ANC) noted that CSPRI spoke of independent bodies having access to the IPID’s information. He asked what type of independent bodies the CSPRI was referring to and how these bodies would be controlled, as they would be privy to sensitive information.
Mr Muntingh explained that the issue was public scrutiny over investigations. It was a requirement in national law to have transparency in investigations. It had to be structured in a manner that did not compromise investigations or sensitive information. The CSPRI thought that it was important to have public scrutiny during investigations. There should not be questions about how investigations were being conducted.
Ms A van Wyk (ANC) stated that the CSPRI’s reference to torture was very broad. They also spoke of redress and rehabilitation. She asked if the CSPRI really believed that this was where those issues should be addressed. The capacity and the make-up of the Department currently did not make provision for this. The Justice Portfolio Committee would be dealing with legislation very soon that would address these issues. CSPRI recommended an amendment to Clause 8(d) of the IPID Bill. She did not think there was any harm in broadening the functions of the national office in terms of the type of information that they needed to keep in relation to investigations. She argued that the support for redress did not belong in that clause. In terms of referring issues to the National Director of Public Prosecutors (NDPP) through the Executive Director of IPID, this was an administrative issue. It was not a question of whether the Executive Director had the power to say whether or not it would go to the NDPP.
Mr Muntingh addressed the question on redress saying it was important for the Directorate to track cases that were being investigated. Ultimately, according to the country's obligations and the conventions against torture, information had to be supplied to the Committee Against Torture (CAT) and for other purposes, such as to see whether justice was served in cases of torture. He did not think that it fell in to the Directorate's mandate; however, the mandate had to address victim redress and rehabilitation.
Mr Muntingh said that he did not think there was a clear answer on the definition of torture. The Committee could adopt a definition and put it in the legislation. But, in two years time when new legislation comes, the definition would have to be altered again. It was a tricky situation. However, the definition of torture was central to the functioning of the Directorate. The best thing was to take a chance on adopting a definition for torture and seeing what the other legislation came up with over the years. An absence of a definition was worse than having an interim definition.
Mr H Chauke (ANC) said Mr Matidze seemed to suggest that the Community Policing Forums (CPFs) should migrate from the South African Police Service (SAPS) to the Secretariat. He asked why he had recommended this.
Mr Matidze replied that he was unable to give the Committee the status quo of the CPFs as they currently were. The CSPs Bill said that it was the responsibility of the provinces to promote good CPFs. The SAPS Act also spoke about the establishment of CPFs in police stations at provincial level. It was the responsibility of the national and provincial commissioners. Unfortunately, the responsibility was usually left to other police officers in the stations. The role of the Secretariat in the CPFs had been very minimal.
The Chairperson noted that the CSPRI spoke of independence and impartiality regarding the IPID. She could not understand what they meant by this and asked for elaboration. She noted that Mr Matidze had said that it was wrong for the Secretariat to have his/her position renewed. She asked what the CSPRI’s view was regarding this position.
Mr Muntingh replied that he was speaking about the importance of investigative directorates to have the qualities of independence and impartiality. He asked the Committee to note that the appointment of the Executive Director by the Minister of Police was not set out in the IPID Bill. This was problematic because of the importance of the Executive Director in guiding the IPID and because of the independence and impartiality of the IPID. The appointment process had to be set out in the legislation and the final selection had to be made by a panel comprising of Members of the Parliament, the proposed Civil Secretariat for Police Service and other selected stakeholders.
The Chairperson asked that the ICD and the Secretariat comment on the submissions that had been made.
Mr Francois Beukman, Executive Director: ICD, commented that it would be great if the concept of torture was properly defined. However, the Committee was busy with the IPID and CSPS Bills and they had to make progress with these. He suggested that the current international definition for torture could be included in the Bills. He stated that many submissions had stated that the purpose of the IPID Bill was not clear. The Bill focused on investigating criminals. The CSPRI suggestion about the appointment of the Executive Director was very helpful. It would be considered. The ICD also agreed that all police officers had to be compelled to report all death, rape and torture cases that were related to police actions. Failure to do so should result in sanctions. He noted that an issue that was not raised in the submissions was the question of the necessary support needed from policing agencies in IPID investigations. This was an important issue, as the roles of the various agencies had to be spelled out. The ICD agreed that systemic problems were the domain of the Secretariat. However, the concept of systemic corruption had to be defined in legislation. There were other entities that were very well placed that could also deal with systemic corruption.
Ms Jennifer Irish-Qhobosheane, Head of Police Secretariat, added that the Committee had to be careful about the definition for torture, as the Justice Portfolio Committee would be involved with the Combating of Torture Bill that would also look at this concept. The Committee needed to liaise around this definition before certain things were put into the legislation. There had been a two-year debate on the definition of torture. The Committee could not just solve the problem by having an interim definition. A better approach was to engage with the Department of Justice and Constitutional Development to get a better idea of how the concept should be defined. She also addressed the concept of systemic corruption, stating that it might be important to define the concept of investigations to differentiate between police investigations, criminal investigations and corruption investigations. In terms of the CPF, this was something that had to be considered quite seriously. The Minister's intention was that the CPF would move into the Secretariat. The Secretariat preferred that the National Secretary be given a renewable term instead of a permanent term of office. It was important that the National Secretary and the Provincial Heads of the Secretariat did not become “bigger” than their institutions. This had to be avoided. The appointment of the Secretary for two terms was being checked by the Public Service Commission.
Mr Lekgetho stated that the issue of torture had to be resolved. Mr Matidze had said that there were critical functions of the Secretariat that were in the White Paper but were not included in the Act. He asked the Secretariat to comment on this.
On the definition of torture, Ms Irish-Qhobosheane stated that one of the things that the Committee could do while they were waiting for the legislation from the Justice Portfolio Committee that would address the definition of torture, was to put in guidelines around the concept rather than define it in the Bills.
Ms Irish-Qhobosheane wanted to make it clear that the White Paper had never expired; it would be amended. The Secretariat needed to be clear on this.
Ms van Wyk asked the State Law Adviser what the effect would be if the Committee did not define the concept of torture in the Bills.
The State Law Adviser replied that if the concept of torture was not specifically defined in the Bills, it would be given the ordinary dictionary meaning. If the term was defined before the ‘combating torture' legislation was finalised, the term could be seen as too narrow or too broad and would have to be amended.
The Chairperson thanked everyone that had participated in the discussions and made submissions on the Bills. The submissions broadened and enhanced the Committee's understanding of the Bill and provided solutions to some of the problems that had been raised previously.
The meeting was adjourned.
- Independent police Investigative Directorate Bill: Submission by the Association for the Prévention of Torture
- Strengthening the Civilian Oversight of the police Bills: Submission by the Institute for Security
- Parliamentary Research Unit submission on on Secretariat Bill [B16-2010]
- Parliamentary Research Unit submission on IPID BILL [15 – 2010]
- Mr Matevhu Emanuel Matidze submission
- University of South Africa submission
- Civilian Secretariat for Police submission
- South African No Torture Consortium (SANToC) submission
- Centre for the Study of Violence and Reconciliation submission
- Civil Society Prison Reform Initiative (CSPRI) submission
- Association for the Prevention of Torture (APT) submission
- African Policing Civilian Oversight Forum (APCOF) submission
- We don't have attendance info for this committee meeting
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