Independent Police Investigative Directorate Bill [B15-2010]: deliberations

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10 August 2010
Chairperson: Ms S Chikunga (ANC)
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Meeting Summary

The Committee deliberated on the Independent Police Investigative Directorate (IPID) Bill. They agreed that it was unnecessary to define the term “torture” and that reference to the Public Finance Management Act (PFMA) was unnecessary. It was also agreed that the Committee’s role in the appointment of the Executive Director of the Independent Police Investigative Directorate (IPID) should be stipulated in the bill. The level of the Executive Director was subject to debate and it was agreed that this issue would be flagged. Issues concerning existing labour legislation would not be included in the bill. The matter of whether the IPID should send all cases to the National Prosecuting Authority was debated, with the conclusion that only those showing criminal action should be sent. Another issue was the timeframe that it took to get National Intelligence Agency (NIA) security clearance.

Meeting report

The Chairperson, Ms L Chikunga (ANC), asked whether there was anything that needed to be discussed under Chapter One of the Independent Police Investigative Directorate (IPID) Bill (B15-2010).

Chapter 1, Section 1: Definitions
Mr M George (COPE) stated that in terms of definitions there was a call from the submissions to define “torture“. He asked what the committee felt about this.
(For the full report on background to this comment, refer to PMG Police Portfolio Committee August 6, 2010: “The African Policing Civilian Oversight Forum suggested that the definition of “torture” should be brought in line with the United Nations Convention Against Torture and the Combating of Torture Bill. Priority should be given to IPID building capacity to investigate rape professionally and effectively, but until it had that expertise, SAPS should continue to deal with these cases. This viewpoint was supported by other submissions.)

Ms D Kohler-Barnard (DA) replied that it was defined elsewhere and that neither rape nor other crimes were defined in the bill. She did not believe that they needed to single out “torture” for special definition.

Mr G Schneemann (ANC) agreed with Ms Kohler-Barnard and added that if they defined the term they would also be pre-empting the bill currently being dealt with by the Department of Justice & Constitutional Development (DOJ&CD).

Ms D Schafer (DA) said they would be getting feedback from the DOJ&CD on their bill. She said that other submissions showed that they should not define the term “torture” to prevent any conflict. However, “municipal police services” needed to be defined and that the definitions of “Secretary” and “Secretariat”  should be taken from the Constitution instead.

Chapter 1, Section 2: Establishment: clauses 1, 3
Ms A Van Wyk (ANC) agreed with the above on the issue of torture and the definitions of “Secretary” and “Secretariat”. She stated that in section 2 they should substitute section 2, clause (3) “the Public Finance Management Act applies to the Directorate” with what is under Chapter 7, section 28, clause(1)(a) “the Directorate is financed from money that is appropriated by Parliament”.

Ms Kohler-Barnard asked if she was suggesting Section 28, clause(1)(a) and 28, clause (1)(b) “donor funding received from any other source inside or outside the republic”.

Ms Van Wyk replied that she was only suggesting they replace Section 2, clause (3) with Section 28, clause (1)(a).

Mr George asked if PFMA applied indirectly so that it was unnecessary to have reference to it in the existing section 2, clause (3).

Ms Van Wyk replied that Mr George was correct so they could replace the existing section 2, clause(3).

Mr George agreed that it should be removed.

Mr Schneemann stated that the Chairperson was sick and that he would take over chairing the meeting.

Ms Kohler-Barnard said that the reference to the PFMA may be due to a drafting convention and that it should be included. 

Ms Desiree Swartz, Senior State Law Advisor, Office of the State Law Advisor, said that the addition of the PFMA section was due to a submission from National Treasury (NT) and that it was not necessary.

Mr Schneemann said that it was standard in legislation and that the Directorate was financed by money appropriated by Parliament. However, it could be removed and thus it was agreed that Ms Van Wyk’s suggestion would be followed.

Ms Van Wyk said that they should remove the phrase “accountability” from section 3 as it did not deal with accountability.

Chapter 2, Section 5: Appointment of Executive Director: clauses 1, 2, 3, 4
Ms Schafer said that on this section on the appointment of an executive director, section 5, clause (1) watered down the entire provision as the Committee was removed completely. Due to this they should go back to the old provision.

Mr G Lekgetho (ANC) agreed with Ms Schafer and said that the provision should state “in consultation with the portfolio committee”.

Mr George asked whether it should say “after consultation” or “in consultation”.

Mr Lekgetho replied that it should read “in consultation”.

Ms Kohler-Barnard asked whether the onus was on members to come up with the correct wording or whether it should be left to the State Law Advisor (SLA).

Ms van Wyk said that it was the onus of the SLA and the Executive.

Mr George said that the Police Secretariat said that the Directorate worked under The Minister of Police and thus it was not a completely independent institution like a Chapter Nine institution. He was worried that they were contradicting themselves.

Ms Van Wyk disagreed and stated that the independence referred to was independence from the South African Police Service (SAPS) and that by adding a parliamentary role; they strengthened the independence of the Directorate. She said that they should stick to the current wording in the South African Police Service Act (SAPSA) of 1995.

Ms Schafer stated that unlike the SAPSA there was no stipulation that the Executive Director (ED) of the IPID was “suitably qualified”.

Ms Jenny Irish-Qhobosheane, Secretary of Police, Ministry of Police, replied that due to level change to that of a Deputy Director-General (DDG) there were very strict levels of qualification according to the Public Service Act (PSA).

Ms Schafer stated that it should be put into the bill.

Ms Van Wyk said they could stipulate that the ED had to be at the level of DDG, but that she would be comfortable if they rather stipulated that the ED had to be at least at the level of DDG.

Ms Kohler-Barnard said that they needed to discuss the actual position of the person who ran the IPID as they might have an issue with ranking when compared to the SAPS.

Mr George added that the level of the ED was important, as he did not agree that the bill alone would give power. It was necessary to remember that the SAPS was a paramilitary structure and that rank played an important role. In a ranked structure, having to account to someone of a lesser rank was problematic as someone of a higher rank would not seriously consider being reprimanded by a junior. Therefore the rank of the ED was important and the ED should be at the same level as a Director-General (DG).

Ms Van Wyk said that they should be realistic and that the fact of the matter was that the IPID was independent of the SAPS. Thus it made no difference as to what rank the ED was all the IPID investigators had civilian ranks. Enforcement efficiency lay with the legislation and the incumbent. Mr George’s line of thinking would mean that every investigator would have to have the rank of Brigadier. The Committee was also against military ranks in the first place.

Rev K Meshoe (ACDP) said that he was satisfied with the term “of at least DDG”. He believed that rank was important as in the past the SAPS had undermined the Independent Complaints Directorate (ICD). The term Inspector-General was good, as it would allow respect to be imposed.

Mr Schneemann stated that they needed to be cautious as the IPID was not a police body and as such he did not know why they were bringing up the issue of rank. There were no ranks, but there were different grades. However, the point had also been raised as to whether the bill gave sufficient power to the IPID.

Ms Kohler-Barnard agreed that ranks had no place and did not support any military ranks whatsoever. She stated that whoever ran the IPID had to be at the level of DG as DDG did not hold the same status of office as DG.

Ms Schafer believed that there had been some status issues between the SAPS and the ICD, but added that if the IPID had the power to kick people out of the SAPS then respect would follow.

Ms Van Wyk was of the strong opinion that they should leave the post of ED at “at least the level of DDG”. She added that the level was not important, but rather the contents of the legislation. By insisting that only the level of DG would engender respect sent the wrong message. If the bill failed it would not be due to the level of the ED, but rather the substance.

Mr George agreed that the bill itself would give power, but disagreed with the notion that level of the ED played no role. Both of these things worked together and level or rank was not a small thing, it mattered.

Mr Lekgetho said that what was important was the power that would be given to the incumbent. He agreed that the level of DDG was sufficient.

Ms Irish-Qhobosheane stated that in her experience as Secretary of Police issues were not around rank, but always around what were operational issues and what were not. Issues were around definition of roles.

Mr Schneemann said that this was the crux of the matter.

Ms Kohler-Barnard accepted what Ms Irish-Qhobosheane said, but added that the role of the Secretariat of the Police was not to a large extent adversarial to the SAPS and that the ICD was actually ignored about 90 percent of the time.

Mr George said that members’ perceptions around rank were not entirely correct and that while they did not articulate it, soldiers had an attitude that civilians were inferior to them.

Ms Van Wyk said she was disappointed that they were at a point where they believed that the success of something depended on the rank of somebody. The issue should be parked for the moment, so that they could come back to it alter, as they were not coming to any agreement.

Mr Schneemann summarised that they had agreed on the role of parliament in relation to the appointment of the ED and that they would insert the phrase “suitably qualified individual”. The issue of the rank or level of the ED would be parked.

Mr George agreed and asked,with reference to section 5, clause (3)(b), why the ED was limited to two terms.

Ms Van Wyk said that they should leave that for the Secretary of Police and the ED of the ICD to answer, but that it may relate to independence.

Ms Kohler-Barnard said that they needed to go back to Section 5, clause (2) “ the Minister must as soon as practically possible informthe relevant parliamentary committee of the name of the successful candidate” and work on the wording.

Mr Schneemann said that he thought that they would take what was in section 5, clause (1) of the SAPSA and use that, with it replacing Section 5, clause (1) of the IPID Bill “ the Minister must, subject to the laws governing the public service, appoint the Executive Director”, and removing Section 5, clause (2) altogether.

Ms Kohler-Barnard replied that they should use section 6, clause (2) from the Civilian Secretariat for Police Service (CSPS) Bill (B16-2010) rather as it was clearer and use the definition of the five year terms of office from the SAPSA.

Mr George said that under section 5, clause (4) of the bill they needed to stipulate for how long the Minister could appoint an acting ED.

Ms Kohler-Barnard agreed and stated that there needed to be a time limit. In section 5, clause (5) they needed to define the terms “misconduct”, “ill health” and “inability to perform the duties of that office effectively”.

Ms Van Wyk stated that she did not have problem with section 5, clause (4)(a).

Ms Kohler-Barnard asked whether or not there was already a provision for an acting person in the labour legislation.

Mr P Groenewald (FF+) said that they should remove “absent” from section 5, clause (4)(a).

Rev Meshoe said that they should link “absent” to sickness.

Mr Theo Hercules, State Law Advisor, Office of the State Law Advisor, said that they could use section 11 of the CSPS bill and incorporate it into this section. The word “absent” meant not at the office for whatever reason.

Ms Kohler-Barnard said that if they determined only “illness”, then they would not allow for any other possibilities. Mr Hercules proposal was the best way forward.

Mr Groenewald agreed.

Mr Schneemann asked if the SLA would then come up with the appropriate wording.

Mr Francois Beukman, Executive Director, ICD, said that in terms of the PSA in the normal course of things, there were mechanisms for acting people to cover duty while the principle person was absent.

Mr George asked who determined “inability to perform the duties of that office effectively”.

Ms Kohler-Barnard stated that she had a problem with the terms “misconduct”, “ill health” and “inability to perform the duties of that office effectively”. These terms were totally subjective. She asked where Human Resources (HR) was situated in the organisation.

Ms Van Wyk replied that HR was within Corporate Services. She added that they did not need to go into detail on the terms mentioned. The Public Service Commission would be dealing with disciplinary matters, not HR.

Mr Hercules said that Ms Van Wyk was correct and that these issues were covered in the Public Service Commission Act (PSCA) and the Labour Relations Act (LRA).

Ms Kohler-Barnard replied that if this was the case then it was fine, but that it only dealt with three cases and that there might be others.

Ms Van Wyk supported Ms Kohler-Barnard and stated that if necessary they needed to elaborate.

Mr Hercules said they did not want to rewrite the governing labour legislation and that the grounds listed in the bill were for the Minister to remove someone from office with the labour legislation being applicable.

Ms Kohler-Barnard said that in the case of ill-health they could not say “removing” and should say “replacing”, as someone could not be fired for ill-health.

Mr Hercules replied that with regard to labour legislation, there were certain procedures prescribed and catered for. Medical grounds for removal were subject to labour legislation.

Rev Meshoe said that a safer word for removing someone with ill-health should be used if possible.

Mr George agreed with Mr Hercules and said that there was medical boarding and that appropriate acts dealt with this.

Mr Groenewald said the ED was a civil servant and removal from office was described in legislation. These were general fields which did not need to be elaborated on, as they were already enshrined in labour legislation.

Mr Lekgetho said that the PSA would be applied.

Members agreed.

Mr Schneemann asked whether it was necessary to put a reference to a Performance Management Contract (PMC) in the bill, as it was in existing legislation.

Mr George replied that it was already covered in other legislation.

Mr Hercules replied that it was covered under the PSA.

Chapter 2, Section 6: Responsibilities of Executive Director: clause 4
Ms Schafer stated that with reference to section 6, clause (4), the Human Rights Commission (HRC) said that it gave quasi-prosecutorial powers to the IPID and that these powers should be referred to the National Prosecuting Authority (NPA).

Ms Irish-Qhobosheane replied that the HRC had a good definition of “prima facie criminal case” and that they could use their definition.

Rev Meshoe suggested that the IPID did not become a thoroughfare and that if they used the concept of “prima facie evidence” then matters handed to the NPA would be of substance.

Mr George expressed worry that they were putting themselves into a corner and that they should rather say that once a case had been investigated it should be taken to the NPA, which would then decide on prosecution.

Ms Van Wyk said that they should be careful as once some cases were investigated they were closed and did not need to be sent to the NPA as there was no substance to them. They needed to change the word “may” to “must” in section 6, clause (4) and state that the ED must refer matters were they had a prima facie case to the NPA.

Mr Groenewald said that saying “prima facie” was incorrect and that they should say “criminal offence” rather.

Mr George said when he moved that they should not say “prima facie”, it related to instances where there was no evidence and that in these cases the NPA should not be bothered. Once a criminal case had been established it should be sent to the NPA. The issue of “prima facie” was the competency of the prosecutor.

Ms Kohler-Barnard said that there was general agreement that everything should not be forwarded to the NPA. However, despite the SLA potentially coming up with the correct way to phrase it, there was still the problem of non-criminal actions that still warranted disciplinary action by the SAPS and how the IPID would enforce this.

Ms M Molebatsi (ANC) said that she aligned herself with the HRC on their submission to use the term “prima facie”.

Mr George asked what channel of recourse people had after the ICD said that there was no case.

Ms Van Wyk said that there was no reference to the IPID having to refer back to the complainant and that this needed to be drafted in.

Mr Beukman said that standard operating procedures of the ICD mandated that the complainant be informed about the case. However, according to Chapter 10, the ED had the right to open any case if there were queries.

Ms Van Wyk replied that they should put it in the actual act and that it was not good enough to put it in the regulations. They should refer this responsibility to the IPID in the act and put the details in the regulations.

Mr Beukman said that currently if a complainant was unhappy they would go the Office of the Public Protector who would then investigate. However, he agreed that they should put this provision in the actual act.

Chapter 2, Section 7: Composition of national office:  clauses 1, 3
Ms Kohler-Barnard said that with regard to section 7, clause (3), the issue of security screening taking up to two years posed a problem.

Mr Groenewald raised the issue that section 7, clause (1) was a bit off a contradiction as it effectively said that the ED appoints himself, thus the wording needed to be changed.

Mr Schneemann said that this was agreed upon and referred back to section 7, clause (3).

Ms Van Wyk said that they could not have the SAPS doing security clearance and asked what they should do about the problem.  She asked the Executive Director what his experience with security vetting from NIA was like.

Mr George interjected that section 7, clause (3) needed to be there and that debate over the efficiency of NIA was not the responsibility of the committee.

Mr Schneemann agreed with Mr George, but that on the other hand it would still affect them and they could not pass a bill that was untenable.

Ms Kohler-Barnard stated that she did not say that they should delete Section 7, clause (3).

Mr Groenewald asked what level of clearance was needed.

Ms Van Wyk noted that appointments could occur while security clearance was pending.

Ms Irish-Qhobosheane stated that there were different clearance levels for different levels - secret and top-secret. However, in reality appointments were made with an initial clearance of secret while top-secret clearance was still pending.

Mr Beukman replied that currently NIA clearance was a challenge; one problem was the ICD was not a priority for the NIA. Investigators needed a clearance level of at least secret. However, they would have to look at practical ways to fast track the process.

Mr Groenewald said that pressure had to be put on NIA.

The meeting was adjourned.


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