The Committee continued its deliberations on the Independent Police Investigative Directorate Bill (the Bill) and reviewed the proposed changes suggested on the previous day. The drafting team had compiled these into a 'combined document'. In addition to this, the Independent Complaints Directorate (ICD) then produced a one-page document, containing three additional proposals. It proposed that a new subclause (9) should be inserted into Clause 6, to state that the Executive Director of the ICD may refer certain criminal investigations to any relevant Commissioners of the South African Police Services (SAPS), in line with the provision that was currently in the ICD Act.
Secondly, it was proposed that an indemnity clause be introduced as Clause 5. Thirdly, it was proposed that new Clauses 24(1) and (2) be inserted, to provide an explicit provision for conferring of police powers and the issue of an ID document to authorised IPID officials.
Members were concerned that the additional proposals introduced changes that they had not agreed to. Members disagreed strongly with the proposed Clause 6, stating that the wording was contradictory to the intention of the Bill, which was to prevent the abuse of police power and to address concerns about SAPS investigating its own members. Members also felt that the wording of the new Clause 5 should be taken directly from the SAPS Act. Members thought that Clause 24(1) was unnecessary, as this was already covered elsewhere in the Bill. Although the issue of certificates or identity cards was an operational matter, there was no harm in including it.
The Committee then continued to deliberate on the clauses contained in the combined document. Members asked that Clause 4 be specifically headed to reflect that it dealt with the objects of the Act, and also felt that subclause (b) should be taken out, as it was irrelevant. Members thought it might be useful, although it was not necessary, to rewrite the Preamble, to reflect the Constitutional principles more clearly. Members then considered Clause 27(1), dealing with matters to be investigated. Matters that “must” be investigated included any deaths in custody, deaths as a result of police action, shootings by police (a discharge of a firearm by any police officer that caused an injury to any person, whether that police officer was on duty or off duty), rape, and any complaints of torture and assault. This also now also included corruption matters within the police. Matters that “may” be investigated were systemic corruption involving the police, and any investigation in respect of the discharge of a firearm that caused an injury to a person, taking into account all the relevant facts regarding the incidents. Members said that these were new issues, which did not reflect what the Committee had earlier agreed, discussed whether a shooting that did not result in injury would be covered, what would happen if a person who was injured was unable to lodge a complaint, and whether any discharge of a firearm, whether occurring on or off duty, should be covered. They also noted that a shooting with a non-State firearm would fall into a different category. Members generally agreed that the wording was too broad, and there were contradictions as to what “may” and “must” be investigated. Concerns were expressed about the discretion implied by the phrases "taking into account" and "all the relevant facts". Members were not happy with the new subclause (3) and thought it should be dropped. They discussed the inclusion of sexual assaults, said that the words “a person in custody” should be used. The drafters were asked to give thought to, and come up with a redraft that reflected the Committee’s views on the on and off-duty issue, use of an official firearm, what criminal actions must be investigated by SAPS, the discussions around rape and systemic corruption. Members noted that Clauses 28 and 29 dealt with disciplinary matters and the period for investigation was now dropped to 30 days, which SAPS had confirmed was workable. Members noted that the reference to “public” entities could be deleted. Members asked that the referencing in Clauses 30(3) and (4) be corrected, and discussed what would happen if a person obstructed an investigation. The Chairperson said that the drafters must check whether all that had to be regulated was covered. Members asked that security clearances in Clause 32 must be looked at again. Schedule 2 would also need to be tidied up, to reflect amendments and to ensure that the monitoring of domestic violence was correctly allocated, and there was consistency between the Police Secretariat Bill and the IPID
Independent Police Investigative Directorate Bill [B15-10]: Continuation of deliberations The Committee continued with its clause-by-clause deliberations on the Independent Police Investigative Directorate Bill [B15-10] (the Bill). The Chairperson asked that Mr Francois Beukman, Executive Director, Independent Complaints Directorate (ICD) should present the proposed amendments and any additional proposals. Mr Beukman stated that delivery of the substantial document on the proposed amendments was delayed, but he would give context to the three additional proposals which had been submitted for consideration by the Committee.
Additional Proposals contained in the one-page document
Clause 6: addition of subclause (9)
Mr Beukman explained that in the current Chapter 10 of the Independent Complaints Directorate Act (the ICD Act), the Executive Director of the ICD "may" refer certain criminal investigations to any relevant Commissioners of the South African Police (SAPS). This power was not currently stated in this Bill. In terms of the new core functions of Clause 27, there might be cases reported to the new Independent Police Investigative Directorate (IPID) that would be more appropriately investigated by the Hawks, including issues of widespread corruption, syndicates and similar matters. From a practical point of view it would be prudent to include that provision from Chapter 10 of the ICD Act, and add it to the responsibilities of the Executive Director of IPID. He proposed therefore that an additional subclause (9) be added to Clause 6, stating "The Executive Director may, where appropriate, refer criminal investigations to any relevant Commissioner of the South African Police Service."
Insertion of new Clause 5
Mr Beukman pointed out that currently there was no indemnity clause in the Bill for staff members acting in their official capacity. He therefore suggested that an indemnity clause be inserted, reading: "No staff member of the Directorate shall be held liable in respect any act performed in the execution of his/her official duties."
Clauses 24: insertion of subclauses (1) and (2)
Mr Beukman noted that currently there was no clear provision in the Bill for conferring of policing powers, and it was felt that it should be stated. He therefore proposed that an additional sub clause 24(1) be inserted, to read: " The Minister shall authorise the identified members of the Directorate to exercise the powers and functions conferred or assigned to any member of SAPS in terms of the Criminal Procedure Act,1977, (Act No. 51of 1997) as amended, and any other law". A new subclause 24(2) should also be inserted, to read: "The Executive Director shall issue a document in the prescribed form, which shall serve as proof to certify that such a member of the Directorate has been duly authorised to exercise the powers and perform the duties as contemplated in Section 24(1)."
The technical motivation for the additions was that currently all the investigators with policing powers had Identity Documents (IDs) to show in the execution of their duties, such as the arrest of members of the SAPS, and seizing of documents that required the necessary identification.
Ms D Kohler-Barnard (DA) found the insertion into Clause 6 confusing. She was concerned by the proposal that the ICD "may" ask the SAPS to investigate itself, pointing out that she had thought this was the role of the ICD, who had investigators who investigated criminal matters. This proposal seemed to contradict what was being done by the Bill.
Mr M George (COPE) was perturbed at the alteration made to the Committee's original input and said that Clause 6 had far reaching implications for what the Committee had been doing. He agreed that this proposal seemed to run counter to what the Bill was trying to do. If there was any compelling reason to refer any criminal investigation to SAPS, he would prefer this to be specified and not to be stated in general terms. He did not approve of giving IPID the discretion to decide which cases to refer to SAPS. He added that laws were tightened because of the human element and personal connections between members of SAPS and the IPID could influence what would be investigated.
The Chairperson said she was not necessarily in agreement with what was being proposed, but she wanted to draw the attention of the Members to the type of matters that the Directorate "must' investigate. These were set out, and included any deaths in police custody, deaths as a result of police actions, any incident of shooting, rape by a police officer (whether that officer was on or off duty), rape of any person while in police custody, any complaint of torture and assault, and any other matter referred to the Executive Director. She stated that the question was whether any other matter of a criminal nature was not included in this list.
Mr G Schneemann (ANC) wanted clarity on the new Clause 5 and Clauses 24(1) and (2), saying that they seemed no different from what was already in existence. With regard to Clause 24(1) and (2), the existing Clause 24(2) spoke about bestowing powers on police officials, such as were provided for in the Criminal Procedure Act,1977. The current proposal detailed those powers, but he wanted to know why this was being suggested. In regard to Clause 5, he found the "Indemnity' very wide. The use of the phrase "any act" implied that even a criminal act could be indemnified. He asked for comment from the State Law Advisors on that point.
Ms A van Wyk (ANC) also wanted clarity on Clause 6. Whilst she understood that it was necessary, she was concerned that the wording was too wide.
Ms van Wyk pointed out that the Committee had agreed that it wanted to limit the scope of the IPID in this Bill, precisely to focus its attention on the investigations that were most serious. Important points to be discussed included the referral of complainants to the correct channels, and the fact that complainants could be scared. She wanted to know at what point it was anticipated that the referral to SAPS would be made; whether this would be after the investigation was started, after the IPID realised that the matter was too large for IPID to investigate, or at the start, when it became apparent that the matter did not fall within IPID’s scope. She understood why Mr George had felt uncomfortable as the wording proposed did not give any indication of what specific cases would be given to the SAPS. She also had a problem with the wording " any relevant Commissioner", asking whether this meant any “Station Commissioner”. She wanted to know who would determine who “the relevant Commissioner” was. She questioned whether the Committee should then not work on a formal way of routing the cases that came to the attention of the IPID to SAPS, and pointed out that in fact any South African could already refer a case to the SAPS. She reiterated the need that the wording must be clearer and more explicit.
Ms van Wyk also agreed with Mr Schneemann that what was suggested in the proposals for Clauses 24(1) and (2) had been covered, that the Committee had discussed this in depth, and there seemed no reason for the proposed changes.
Ms van Wyk also questioned why new wording had been proposed for Clause 5, and why the SAPS Act provisions were simply not copied across, as there should not be a difference in the indemnity wording.
Rev K Meshoe (ACDP) stated he could not understand the need for Clause 6. He questioned why criminal acts would be handed back to SAPS to investigate, when there was proof that SAPS had a poor record of investigating its own officials. He asked when something would be deemed “appropriate”. He also reiterated Ms van Wyk’s question on who would be deemed the "relevant" Commissioner, whether it would be the Station Commissioner, who could investigate a crime against a member of the public, or its members, or whether it was referring to a Provincial Commissioner or the National Commissioner.
Mr G Lekgetho (ANC) agreed that the proposals must be worded far more clearly, as they were too wide and sweeping.
Ms Kohler-Barnard asked whether the proposed addition to Clause 6 did not contradict what the Committee had decided upon during earlier deliberations. The Committee had said that any criminal act must immediately be handed to the National Prosecuting Authority (NPA), yet the proposals now suggested that any criminal act would be handed to SAPS, who might choose not to hand it to the NPA, as had happened in the past.
Ms Carin Booyse, Deputy State Law Advisor, Office of the Chief State Law Advisor, referred Members to Clause 6(9) of the combined document. This stated that the Executive Director may investigate "...any offence allegedly committed by any member of the South African Police Service or Municipal Police Service, and may, where appropriate, refer such investigation to the National or Provincial Commissioner concerned." This answered the question as to who would be the relevant commissioner. This identified Provincial Commissioners and the National Commissioner, and not Station Commanders, as the persons to whom the cases must be handled, and demonstrated that these cases would be treated seriously. It included not only criminal matters, but other complaints. She explained that it was broader than the list referred to by the Chairperson. She said there were reasons to include this proposal in the Bill, and the Secretary of Police could expand on this. However, it was ultimately up to the Committee to decide on this point.
The Chairperson expressed her dissatisfaction around the confusion caused by the separate documents which had been produced by the State Law Advisors (SLA), the ICD and the Police Secretariat. An earlier resolution by the Committee had tasked them to work together to produce one document, containing all amendments that the Committee had proposed. At this stage the Committee could not set aside this Bill and start with another.
Ms Booyse apologised for the confusion and said the SLA, the Police Secretariat and the ICD had together prepared the combined document containing their proposals, and incorporating issues raised by the Committee. The additional proposals were now contained in the one page document.
The Chairperson asked for comment on the Members’ concerns that certain proposals were not already covered.
Ms Booyse said that an overlap had come about in the additional proposals. The indemnity clause and policing powers were something that the drafters had wanted to bring to the attention of the Committee.
Ms van Wyk wanted clarity on the proposals in Clause 6(9). The one-page document and the combined document appeared to be stating different things. The additional proposal referred to "criminal" cases and "any relevant Commissioner", whereas the combined document referred to “complaint” and “offence”. The latter was based on what the Committee had already considered. The additional proposal was something completely new and was over and above what had already been discussed. It did not help when the Committee was referred to something that spoke to different issues.
Mr George said that Clause 6(9) in the combined document had been agreed to by the Committee. However, he did have a problem with the additional proposal on criminal investigations.
Ms Jenny Irish-Qhobosheane, Secretary of Police, responded to the concerns about the two different documents. She said that there was agreement on the proposals, and ICD had considered how they should be worded, which resulted in these proposals. She agreed that the wording was broad, but this was due to the fact that specific instances were being detailed. She said that, for instance, a police officer could be investigated for a shooting, but during the investigations it might come out that this was connected to organised crime, or cash in transit heists also involving non- police officers. The shooting would be continued to be investigated by IPID, but the Hawks would then have to investigate the organised crime syndicate aspects. The IPID would not have the capacity to do that sort of investigation itself, so had to be given the authority to refer it to the Hawks. Mr Beukman had been asked to draft something to cover this. In respect of the indemnity clauses, the intention was to use the same wording as the SAPS Act.
The Chairperson highlighted the reality of what was happening on the ground. In Newcastle, KwaZulu Natal, earlier in the year, three policemen were killed by a gang of 10, and two of the gang had been policemen.
Ms van Wyk said while she understood the reasons behind what was being proposed, it was necessary to re-word this, as the wording currently suggested that IPID was absconding from its duty. To her understanding, if IPID identified, during the course of an investigation, that a SAPS member was involved in another instance of crime, that instance should be referred to the SAPS channels, as they fell outside the ambit of IPID. However, this must be carefully worded. IPID could also be corruptible and it was not desirable that they should be able to refer the matter to a Commissioner whom they knew would not investigate.
The Chairperson gave an example of a woman who was arrested, and was not raped, but was touched inappropriately by the SAPS officials. She wanted to know how that would be processed.
Ms Kohler-Barnard said she agreed with most of the points raised by Ms van Wyk. The Committee Members must keep reminding themselves of the long term implications of the Bill. She highlighted that for every investigation, a report was written immediately, and a copy remained for investigation by SAPS, whether this related to rape or murder, and was not abandoned. The ICD currently did its own investigations. She agreed with the principle that if IPID came across cases that were not within their ambit, they should refer them on, but stated that since it was already obliged to do so, she did not see the need to state this in the Bill. The wording "where appropriate" was so broad that it gave IPID carte blanche to deal with cases as they wished, at any stage.
The Chairperson confirmed that there was a need to rewrite this proposals, taking into account all the issues raised by the Members. She could not see SAPS investigating themselves. She understood that a murder by a SAPS member would be referred to the IPID for investigation and to the NPA for prosecution. If SAPS was also to investigate, the matter would reach the NPA from two points.
Mr Beukman said this had been a useful discussion. He agreed that the wording of Clause 6(9) as it appeared in the combined document was more suitable.
The Chairperson asked if he was saying that Clause 6(9) of that document covered what he had proposed. She pointed out that Members had indicated that this was different from his proposal, and said that this should be re-written, taking into account what had been debated.
Mr Beukman clarified that the practical application of the Act was of vital importance. He referred to the current investigation by the Hawks on procurement. Initially, the ICD had been involved but had referred it to the Hawks because of the complexity and magnitude of the case and the specialised skills required to investigate it. The motivation for his proposal was to make it possible for IPID to refer on similar matters.
Mr Beukman conceded that Mr Schneeman’s suggestion on Clause 5 was correct and that “any act” should read “any lawful act”.
Mr Beukman said that he accepted that Clauses 24(1) and (2) should follow the wording of the SAPS Act.
Rev Meshoe asked why the wording should not be taken across exactly as it appeared in the SAPS Act.
Ms van Wyk stated that Mr Beukman seemed to be confused. The Committee had suggested that the definition from the SAPS Act in respect of indemnity should be taken across for Clause 5. The Committee had thought that the new Clauses 24(1) and (2) were covered already.
Ms Irish-Qhobosheane said that the amendment that the drafters had discussed appeared in Chapter 6, Clause 22(7), which stated " An investigator is given policing powers contemplated in Section 24(2) within three months after his or her appointment." The drafters’ recommendation was that the words " by the Minister of Police" should be added, so that it was clear that it was the Minister alone who granted the policing powers. The drafters had also suggested that the indemnity clause as it appeared in the SAPS Act should be used.
Ms Kohler-Barnard said that the addition of "by the Minister of Police" at the end of the phrase implied that the appointment was made by the Minister of Police, when in fact the Minister granted policing powers. This should read: " policing powers, as contemplated in Section 24(2), by the Minister of Police, within three months after his or her appointment."
Ms Irish-Qhobosheane clarified that there had been no disagreement amongst the drafters. However, the ICD had drafted these proposals, and it was only today that the rest of the drafting team had seen them.
Ms van Wyk reiterated that Members felt that the proposed Clauses 24(1) and (2), as they appeared on the one page document, were not necessary. Members were also suggesting that the proposed Clause 5 should be scrapped, that the wording for this should be taken over from the SAPS Act, and that the reference to “any act” should be amended to “any lawful act”.
Ms Kohler-Barnard referred to the proposal for Clause 24(2) in the one page document, concerning authorisation. She wanted to know if this was covered elsewhere in the Bill, or if this should not be added as Clause 22(8).
The drafters confirmed that it was not included elsewhere.
Ms Kohler Barnard then suggested that since there was a responsibility to issue such certificates, this should be included, as a new (8) in Chapter 6. This should state that police powers had been granted from the date specified.
The Chairperson asked whether Ms Kohler Barnard was referring to Clause 24(1) which stated that "The minister shall authorise the identified members of the directorate to exercise the powers and functions conferred or assigned to any member of SAPS in terms of the Criminal Procedure Act,1977."
Ms Kohler-Barnard said that was covered. She had been referring to Clause 24(2).
The Chairperson read out the relevant Clause 24(2), which stated: " The Executive Director shall issue a document in the prescribed form, which shall serve as proof to certify that such a member of the Directorate has been duly authorised to exercise the powers and perform the duties as contemplated in Section 24(1)."
Ms Kohler- Barnard agreed, and said she was suggesting that this be added as Clause 22(8) into the Bill.
Mr Schneemann asked whether it might not be preferable to instead leave the amendment proposed as Clause 22(7), with addition of the words “by the Minister of Police”. He asked what would happen when those powers were granted by the Minister of Police, and whether the person concerned would be issued with a card or letter.
Mr M Sesoko, Provincial Head (North-West), Independent Complaints Directorate, stated that in practice that policing powers would be applied for by the Executive Director, who would submit names to the Minister, who would then issue policing powers. The Executive Director would issue certificates, similar to appointment cards, which stated that the holder of the certificate had been granted policing powers.
Ms Irish-Qhobosheane stated that this could be put in the Bill, but it was an operational matter for the Police Secretariat. All staff members of the Police Secretariat were now issued with photo-identity cards, which stated what they were allowed to do. Police Secretariat members would carry these cards, not a security certificate, when visiting a police station. When they went to a police station they would not be carrying their security certificates but this card.
Ms D Schafer (DA) felt this should be included in the Bill, because if it was seen as operational it could make this into a discretionary matter.
Mr George agreed with the Police Secretariat that this was an operational matter.
The Chairperson re-read subclause 24(2). Although this may be an operational matter there was no harm in legislating for it.
The Chairperson then summarised that Clause 6 should be rewritten in line with the Members’ proposals. Clause 5, on indemnity, should use the same wording as the SAPS Act provisions on indemnity. Clause 24(1) proposals were already covered. Clause 24 (2) was an operational matter, and could be inserted, if the ICD wished. This concluded the discussions on the one-page document.
Combined document: deliberations
The Chairperson then asked that the meeting move to the combined document.
Ms Irish-Qhobosheane said that there was an outstanding matter on the Domestic Violence Act.
The Chairperson stated that this was contained in the combined document.
Mr Beukman then proceeded to present the combined document.
New Clause 4
Mr Beukman referred to the new Clause 4 " Objects", saying that this reflected the amendments proposed by the Members for inclusion under Chapter 1.
The objects of the Directorate were as follows:
”(a) conduct independent and impartial investigations of identified criminal offences allegedly committed by members of the South African Police Service and Municipal Police Services;
(b) ensure that criminal offences committed by members of the South African Police Service and Municipal Police Services are timeously reported;
(c) that recommendations by the Directorate are properly implemented thereby enhancing accountability; and
(d) enhance accountability and transparency by the South African Police Service and the Municipal Police Service in accordance with the principles of the Constitution."
Ms Van Wyk said she was still uncomfortable with the wording, especially Clause 4(b), which spoke about ensuring that criminal offences by members of SAPS were timeously reported. She asked how this was to be “ensured”. She also thought that the Constitutional requirements should be used as the basis for the drafting. She noted confusion between when to report and when to investigate.
Other Members also expressed confusion about what the 'objects' were referring to.
Ms Kohler-Barnard said that "objects" referred to objects of IPID. However, the Bill was instructing SAPS to report immediately, and not IPID. She agreed that (b) should be taken out, as it was irrelevant.
Ms van Wyk asked the SLAs to elucidate on what the 'objects' of the bill should be referring to.
The Chairperson asked the question whether the Bill was attempting to set out the objects of the Directorate, as appeared in the combined document, or the objects of the Bill.
Ms Schafer said she had a fundamental question about compliance with the Constitution’s Section 206(6). Firstly, this only referred to complaints by a Provincial Executive. Secondly, the independent directorate had to investigate any alleged misconduct of or offence by a member of the police service. She asked whether this Bill was compliant with those requirements.
Ms Booyse explained the objects of the Bill were to capture what the Bill intended to do, and what its aims and objects were not of IPID, but of the Bill. The preamble could enhance the impartiality and independence aspects. Although there was already one, it could be strengthened to reflect the Constitutional principles and values more explicitly. The objects clause must state what the legislation aimed to do.
The Chairperson clarified that the heading of this clause should not be "Objects of the Directorate" but “Objects of the Act” and asked that this be corrected.
Rev Meshoe asked if the SLA were not involved when a bill was drafted. He had thought that everything in the Bill must be in line with its purpose, and could not understand why different things were being raised now.
Ms Schafer wanted an answer to her question on the constitutionality of the Bill.
The Chairperson reiterated the issue of constitutionality raised by Ms Schafer.
Ms Irish-Qhobosheane said that it was stated, under the functions of IPID, that an MEC could refer any matters, and that captured that aspect.
Ms Schafer pointed out that “any alleged misconduct” was also included, and it seemed misconduct in general seemed to be deliberately excluded from the Bill.
Ms van Wyk did not agree that misconduct was excluded, pointing out that there was a whole section dealing with disciplinary action. She wanted to know why, at this stage, there was a question being raised whether the Bill was constitutional.
The Chairperson expressed her own misgivings about the Bill. Certain clauses had to be rewritten and other outstanding matters had to be attended to. There were other matters not in the list, which the proposed IPID sought to address.
Ms Schafer then apologised for raising this point, saying that she had now studied Clause 6(9) in the combined document, and saw that this was covered.
The Chairperson said that her question had been useful, as it had caused Members to think more carefully, and not take matters for granted.
The Chairperson reiterated that the heading of this clause must be rewritten as “Objects of the Act”. It should be possible for a person, without reading through the whole Act, to isolate what the Act sought to achieve.
The Chairperson asked Members if the preamble should be revisited, as suggested by Ms Booyse.
Ms Booyse said it was not necessary, but could be done to ensure compliance with the Constitution and to reflect its values and principles
Mr Beukman referred to the next new clause, headed "Type of matters to be investigated". Listed under Clause 27(1) were matters that "must" be investigated by the Directorate. These included any deaths in custody, deaths as a result of police action, shootings by police (a discharge of a firearm by any police officer that caused an injury to any person, whether that police officer was on duty or off duty), rape, and any complaints of torture and assault.
In respect of corruption matters within the police, the wording had now been changed from “may” to “must” be investigated. An investigation could be initiated by the Executive Director, or started after a receipt of a complaint from a member of the public, or referred to the Directorate by the Minister, a MEC or the Secretary of Police.
Matters that the IPID “may” investigate related to systemic corruption involving the police, and the Executive Director “may” also initiate any investigation in respect of the discharge of a firearm that caused an injury to a person, taking into account all the relevant facts regarding the incidents.
Ms van Wyk stated that these were new issues, and did not reflect what the Committee had earlier agreed. The Committee had used the word “complainant”. The Committee had also not stipulated that there had to be an injury, as now indicated in Clause 27(1)(c). She cited an example in the Western Cape Metro during the xenophobic attacks two years ago, where children had been fired at by the Metro Police. Since those children had not been hurt, this matter would not, according to the wording now suggested, be investigated, although clearly there was a need to do so. She said that discretionary powers were also being granted, and the Committee had not agreed to that. She wanted to know whether IPID would be investigating all shootings (for instance where police officers were drunk) whether the police officers were off duty or on duty as it contradicted what was being said that they could refer certain cases back to the police. She said that the wording used was very wide and the issues needed further discussion.
Ms Schafer said that the wording "any discharge of a fiream" was too wide. If a shooting did not cause an injury, then she questioned what other criteria would be used. She cautioned that this could be open to abuse, with complainants making false claims.
Mr Schneemann agreed with Ms van Wyk’s points. He disagreed with Ms Schafer and thought that if police discharged their firearms, then this should be investigated. He cited the example of police shooting at peoples vehicle tyres, which he felt should be investigated if a complaint had been lodged. He did not think that investigations should be restricted to cases involving injury.
The Chairperson raised the implications of shootings with a State firearm, and when they were done, whether the policeman was off duty or on duty.
Ms Schafer suggested that the shootings should be investigated if the police claimed to be purporting to act in their official capacity. With reference to Mr Schneemann's earlier point and her claim that the system could be abused she made a reference to 'comrades' who would make such a complaint.
Mr Schneemann asked the Chairperson, on a point of order, to ask Ms Schafer to withdraw the remarks as they seemed to be insinuating something.
Ms Schafer said that no insinuations were intended, but she would withdraw the last comment.
Mr George agreed with Ms van Wyk that the wording was too broad. He suggested that the reference to "injury" should be removed. He thought that IPID could not cope with investigating all complaints unless it was a huge institution. He reiterated that the aim of the Bill was to make the police accountable. Whilst any shooting by the police had to be investigated, he felt that this should not extend to ordinary crimes.
Ms van Wyk said that technically there were contradictions under what "may" or "must" be investigated in the new clause. Clause 27(1)(c) stated that the Directorate "must" investigate " any discharge of a firearm by any police officer that caused an injury. However, Clause 27(3) stated that the Executive Director “may” initiate any investigation in respect of the discharge of a firearm that caused an injury to a person, taking into account all the relevant facts regarding the incident. Clause 27(3) did not state that the discharge of the firearm was done by the police. This implied that anything could be investigated. She was also concerned about the discretionary powers being implied in Clause 27(3) by use of the phrases "taking into account" and "all the relevant facts"
Ms Irish-Qhobosheane said she did not want to comment about the off duty or on duty issue. Instead, she would focus on the complainant, saying that it was possible that someone might have been injured and could not lay a complaint. Strictly speaking, if the person injured could not lay the complaint, then no complaint would be lodged, and she did not think that such exclusion was the intention of the Committee. If the word “injury” was not suitable, then another word could be found. Members should also look at what would be the case where there was no injury, as well as the issue of off duty and on duty misdemeanours.
An ICD official noted that the ICD, in respect of Clause 27(1), had looked at what happened in practice, when police officials were involved in police shootings, perhaps amounting to blatant attempted murder, but which could be covered up by their SAPS colleagues. It was necessary for there to be discretion to make an assessment after the complaint was received, in order to decide who should investigate.
Mr George asked why one subclause was referring to “must” and the other to “may”.
Ms van Wyk said the contradictions had not been clarified. The Committee had an in-principle decision to use “must” when stipulating what should be investigated. The abuse of an official State firearm was another issue. She thought that all police shootings should be treated as one issue, and there should not be discretionary powers.
The Chairperson said that the issue of off duty shootings was a reality and the Bill should include both off- and on-duty shootings. The issue of injury and the complainant were relevant as well.
Ms Irish-Qhobosheane suggested that in Clause 27(3) the discretionary portion was not necessary as it could be accommodated under the "must". When the IPID made its preliminary investigations, the complaint could be dropped if it decided that there was no evidence of unlawful activity.
Ms van Wyk suggested that the new subclause (3) should be dropped and the meeting should focus on one clause
The Chairperson said she did not know where (3) came from, as it was not discussed.
Ms Irish-Qhobosheane suggested that sexual assault be included under subclause (f) with "any complaint of torture and assault" so that this clause would then add the wording: " including sexual assault". This would cover the issues raised earlier by the Chairperson.
Ms van Wyk disagreed. This might imply that IPID would investigate all instances, including those arising amongst colleagues, which should be handled through the internal disciplinary process. She found it too broad. She suggested that perhaps wording referring to “a detainee” might be included.
Ms Schafer pointed out that this would not cover people held for questioning.
The Chairperson suggested that the words “in custody” would cover the issues.
Ms van Wyk agreed, saying that this then would cover also vagrants picked up and removed from the street. She suggested that the additional wording proposed for (f) should read : “including sexual assault while in custody".
Mr Schneemann said that it was necessary to consider wording that would also cover the issue of one SAPS member being shot by another.
Ms Schafer said that sexual assault was different, as it did not only happen in custody, but could happen for instance, when premises were raided. The wording had to be specific.
Mr M Dlamini, National Spokesman, Independent Complaints Directorate, said that the largest number of complaints related to common assault and attempted murder. There were about 25 complaints of rape each year. The issues of offences committed on-duty and off-duty, and deaths as a result of police action, were problematic.
The Chairperson stated that the Members expected the officials to make positive suggestions and guide the Committee. She listed all the categories that had been considered, and focussed on the issue of alleged offences committed off-duty or on-duty and the implications of the use of an official firearm.
The Chairperson then asked that the Committee consider the sexual assault issues.
Ms van Wyk wanted to know whether assault included sexual assault, and if it had to be specified.
Mr Theo Hercules, Principal State Law Advisor, Office of the Chief State Law Advisor, stated that sexual assault was not included under normal assault and that there were different categories of sexual assault, as set out in the Sexual Offences Act. Sexual assault was a very broad term, and he asked whether the Committee could give guidelines on what should be prioritised for investigation by the Executive Director.
Ms Schafer raised the issue of death as a result of police action and felt that the Bill should specify whether this was committed by off-duty or on-duty police.
Ms van Wyk agreed with Mr Hercules that the Committee should prioritise. She said there was a philosophical and political difference in the Committee. Some Members felt that the police had the capacity to police themselves. Whilst the shortcomings could not be corrected through this legislation, the Police Act was also on its way to the Committee. Other Members believed that the police were not capable of investigating themselves. The political differences had to be set aside to find some middle ground. The question was what IPID had to investigate in order to have a lasting impact on human rights and how the police operated in the country.
Ms van Wyk suggested that the wording “must” should apply to the discharge of a firearm by a police officer that caused an injury, or where there was a complainant or an injury to any person, whether that police officer was on-or off-duty. This should include the use of an official firearm. It must be specified what the police had to do – for instance around the 24 hours reporting, and the necessity for the Station Commissioner or whoever else was on duty to inform the IPID immediately. She said that her wording might not be entirely correct but this suggestion was made to take the process forward.
Ms Kohler-Barnard cautioned that the clause should specifically state “with an official weapon”. If another weapon was used it would change everything.
Ms van Wyk said Ms Kohler-Barnard was correct. If the shooting with another weapon resulted in death, it would be a clear case of murder, and should be investigated by SAPS. She stated that it was possible to include something in the Bill requiring the IPID to monitor such cases. Basically, the IPID Bill was intending that a person who abused his or her official power as a police officer would be investigated.
The Chairperson cited an example of three policeman who had been killed in an incident that also involved other policemen implicated in crime. Such instances would be investigated by SAPS. They resulted from purely criminal acts.
Ms Schafer stated that the discussion was now moving in circles. There was no purpose in countering arguments by classifying them as political issues. She questioned why on-duty and off-duty should be treated differently, and the difficulties of classifying rape, and why this should be differentiated from how murder was handled.
Ms van Wyk responded that there was a specific reason why rape had been included, because it had been found that SAPS did not investigate complaints of rape properly if there were police officials involved. She said the Committee had to be careful to avoid creating a police service outside the police service. The central issue was the abuse of power. She suggested that if Ms Schafer wanted to remove rape by off-duty police officers, she should then put this as a formal proposal.
The Chairperson raised the issue of deaths as a result of police action. She said that it had been decided that any death had to be investigated by the IPID which then had to pronounce themselves on it.
The Chairperson then consolidated the suggestions which had to be reworked and incorporated into the proposals. She looked at the implications of the terms on and off duty when investigating police officials. The discharging of a firearm had to be qualified by whether it was an official firearm. She also addressed what constituted a criminal action that had to be investigated by the SAPS and not by the IPID. She reviewed the discussions on rape and sexual assault and mentioned other issues such as systemic corruption.
Mr George was concerned about the fact that if the clause restricted investigations of shooting to those that involved an official firearm, then SAPS would investigate police who used private firearms. He expressed his reservations about this as he thought the Bill was there to prevent the police investigating themselves.
The Chairperson said that there was also the issue of whether the discharge of the firearm caused death, and not merely injury, as contained in the clause.
Mr G Lekgetho (ANC) said a policeman remained a policeman, whether on or off duty. He found it strange to hear comments that the police could not investigate themselves.
Ms Schafer raised the issue of on and off duty, noting that this was not specified consistently through subclauses (b) to (d).
Mr Sesoko said that the present legislation did not contain any specific references as to whether a policeman was on duty or off duty. However, the ICD interpreted the position in a similar way to Mr Lekgetho, believing that all instances should be investigated. The monthly reconciliation of statistics between the ICD and the SAPS was problematic, because of the differing interpretations of on and off duty. It would simply perpetuate the problems if this term was included in some clauses but not in others. If nothing was said about on or off duty, then on-duty incidents only would be investigated. Whatever was decided upon, it must be used consistently.
Mr T Leholo, ICD Provincial Head, Western Cape, endorsed what Mr Sesoko had said. He added that it was important to distinguish between offences committed on and off duty, for research and intervention purposes, and to better the compilation of statistics.
Mr Schneemann said that Members did not agree on the issues, and suggested that discussions on this be suspended for a while, so that the Committee could continue to discuss other issues.
Ms Kohler-Barnard asked whether the State Law Advisors could not tighten up the loose ends and rework the document.
Ms Booyse said that the SLAs had noted all the issues raised, and would do a re-draft.
The Chairperson confirmed that the drafters would produce something for Friday. The main issues were around clauses 27(1)(c) and (f), and consideration would need to be given to the points about on and off-duty, as raised by the ICD and Members.
Clauses 28 and 29
Mr Beukman then introduced the amendments to Chapter 7 "Reporting obligations and cooperation by Members of the South African Police Service and Municipal Police Service". This appeared in the combined document, under clauses 28(1) and (2). Disciplinary recommendations were dealt with under Clause 29. Mr Beukman noted that the original period of 90 days had been brought down to 30 days for instituting disciplinary actions.
Ms Kohler- Barnard wanted to know what happened if the procedures in the disciplinary recommendations were not followed.
Mr Beukman replied that this was covered under the penalties clause.
The Chairperson wanted to know how the period of 30 days for the initiating of disciplinary proceedings was decided upon.
Ms Irish-Quobosheane said she had contacted SAPS Human Resources, who confirmed that this could definitely be done in 30 days.
Remainder of document
Mr Beukman briefly touched on the amendments in the rest of the document.
Ms Van Wyk wanted to know what would happen if a public entity did not adhere to the legislation.
Mr Hercules said that the issue had come up in discussion, and the SLAs were of the view that no reference should be made to “public” entities, as this was not appropriate. Private entities were governed by the Companies and Closed Corporations Act, which covered personal liability and responsibility for actions taken on behalf of a company.
Ms Kohler-Barnard stated that if a private enterprise failed there were still consequences, and she asked what was differentiating public and private entities.
Mr Hercules said there were checks and balances in place for public entities and organs of states and sanctions that would be followed.
Ms van Wyk asked what would happen if the word "public” in relation to “entity" was taken out.
Mr Beukman said this could be substituted by a reference to an "organ of state"
Ms van Wyk noted that the SLAs had said this was not appropriate. She wanted to know what the practical solution was proposed to be.
Ms Schafer agreed with Ms van Wyk that this point had to be covered.
Mr Hercules stated that it was not possible to legislate for organs of State to be criminally liable. There was other legislation covering how disputes would be handled, such as the Intergovernmental Relations Act and the Constitutional guidelines on co-operative governance. There were also procedures to be followed in civil claims instituted against the State.
Ms van Wyk said that Clause 32 provided for the obligation to co-operate. There were other mechanisms and laws in place to ensure compliance.
The Chairperson said that Members could then agree with the deletion of "public"
Mr Beukman then dealt with Clause 30(3) and (4) which dealt with non-compliance and failure to make disclosure.
Ms Schafer noted that the referencing was incorrect .
Mr Hercules apologised for the problems with the cross-referencing. He said that he wished to add "withdrawal from the case" to the" failure of disclosure", as the one flowed from the other.
Ms Kohler-Barnard asked why the drafters had restricted the sentence to "not exceeding two years". She questioned whether it should not read “at least”.
Ms Van Wyk said that a charge of obstructing a criminal case would also apply if there were attempts to hinder IPID investigations.
Ms Kohler-Barnard asked what would happen if a person had obstructed an investigation deliberately, and was charged with defeating the ends of justice. Only SAPS could investigate such matters. She wondered if that would be re-investigated.
Ms Irish-Quobosheane said that the two year sentence was an add on, and a person could be charged with conspiracy and defeating the ends of justice. The clause providing for regulations indicated that the Executive Director would provide regulations on investigations to be conducted by the ICD, flowing from Clause 25.
Ms Van Wyk asked if everything that had to be regulated upon was covered. She made specific reference to the reporting between provincial and national offices and the forum. She said there were still outstanding matters which had to be tightened up.
Mr Beukman said that the Bill had to be looked at in its totality, to see if anything had been left out.
Mr Beukman moved on to Clause 32, which dealt with security clearances, and stated that these would remain valid until such time as they were reissued in terms of the new Act.
Ms Schafer said that Members had said these could continue, but subject to the same provisions as before.
Ms van Wyk said that Members had felt that the security clearances should be in line with the State Security Act.
Mr Beukman said the drafters would look into the matter again.
Mr Schneemann said that nothing had been said about reissuing the security clearance.
Ms Irish-Qhobosheane said that this was a question of the correct wording. The SLAs would look at this again. The reissue of security clearances used to be every five years, but was now done every 10 years.
Ms Booyse said that the security clearance was not in terms of this Act. If people were transferred their security clearance remained valid until they had to be re-evaluated for security clearance again.
Mr Beukman moved to Schedule 2 and asked if the Secretary of Police wanted to address the matter.
Ms van Wyk said that some wording should now fall under amendments.
Ms Irish-Qhobosheane said that the SLAs should ensure that this happened. The drafters had looked at the Domestic Violence Act. All the functions of the ICD were monitoring functions, and they had no investigative functions allocated to them. The Police Secretariat Act should reflect the proposed changes
Ms van Wyk wanted clarity on this. The Committee did not want the IPID to be involved in Domestic Violence investigations. This had to be reflected in the amendments schedule, and the Committee wanted to see the proposed wording.
The Chairperson said the IPID bill would be amending the Domestic Violence Act and the Police Secretariat Bill would also need to be amended. The IPID would no longer be monitoring the application of the Domestic Violence Act. An amendment was needed.
Ms van Wyk said that the wording for all the amendments must be consistent, so the Committee would need to check it.
Ms Booyse said it was an amendment here, but this would be dealt with as a substantive issue under the Police Secretariat Act, as that body would now be performing a monitoring function.
Ms van Wyk said she was still not convinced that it would be dealt with.
Ms Irish-Qhobosheane said that there would be a workshop this weekend, after the public hearings. The drafters would give feedback to the Committee by the following week.
Ms Schafer asked whether it was intended that the ICD and Secretariat Bills would be passed together.
The Chairperson said that was not possible.
The Chairperson requested that all drafters attend to the issues raised, so that at the next meeting the Committee could get a new draft, incorporating all the changes which had been proposed.
The meeting was adjourned.
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