The Chairperson expressed the view that any call to strike made on members of the South African Police Service (SAPS) was unreasonable, and should be condemned.
The Committee continued to deliberate the Civilian Secretariat for Police Service Bill, in particular focusing on the amendments that had been made by the drafters following earlier suggestions by the Committee. The Secretariat for Police (the Secretariat) took Members through the changes made. Members questioned, in respect of Clause 5, whether mentally ill people would be covered, and asked who would be responsible for the police fora, agreeing, however, that this clause referred to policy. Clause 5(2)(c)(vi) must be reworded as it was too broad. The Committee noted that in respect of Chapter 3, it should be stated that the Secretary would be the accounting officer. Members questioned why the Minister, not the President, was to make the appointment of the Secretariat. Members asked about the time frames in Clause 11 and agreed that a time frame of one financial year would be inserted. Clause 16(1) had been amended by insertion of new clauses and the removal of the former subClauses (d) and (e). Members thought that the wording should be clearer, and must ensure that the Secretariat had sufficient enforcement powers, although Members agreed that the Secretariat was an oversight body. In respect of Clause 20, Members suggested the removal of Clause 20(1)(d) and a rewording of 20(1)(c), with similar wording in Clauses 20 and 21 about the invitations to discuss police services in the provinces, and that the Secretary of the fora must determine the agenda. Clause 23(1) was to be reworded. When considering Clause 24, Members asked for an assurance that this was in line with other legislation relating to cooperative government and intergovernmental relations, and suggested that the clause be reworded. Members also asked that Clause 27 should be reconsidered by the drafters, but agreed that the Bill could not prescribe how often the meetings should take place. Members asked that Clause 29 should be brought in line with the IPID Bill, and that Part 5 of this Bill should be aligned as far as possible. Members agreed that Parliament should have sight of, but not necessarily have to give prior approval to the regulations. Members thought that quarterly reports should give feedback on the provinces, until provincial secretariats were established. Members also agreed to discuss further whether it was reasonable to impose limitations on the appointment of Heads. The Secretariat would also draft a further clause that would impose obligations on SAPS members to furnish information, if the Secretariat requested any information.
Chairperson’s opening Remarks
The Chairperson felt it worrying that members of the SAPS were joining strikes. She stated that there was no reason to call them to strike, and should be condemned by South African residents, who should be protected by SAPS.
She then asked the Secretariat to go through the proposed amendments that the Committee had discussed during the previous meetings.
Civilian Secretariat for Police Service Bill [B16-2010]: Presentation of proposed amendments: Secretariat of Police
Ms Jenny Irish-Qhobosheane, Secretary of Police, Office of the Secretariat of Police, stated that the State Law Advisors and the Secretariat of Police (the Secretariat) had drafted these amendments together. Although the document was informal, it was intended to assist the Committee. She stressed that the necessary changes had been inserted in line with what had been discussed by the Committee in its previous meetings.
Objective of the Act & Clause 2
She stated that a new Clause had been inserted and the previous Clause 2 had been removed. She pointed out that a new objective of the Act that had also been inserted.
Ms A Van Wyk, (ANC), stated that there was a missing amendment that had not been inserted. She also stated that there were no advisory details.
Ms Irish-Qhobosheane stated that the amendment had not repeated what had been stated in the clause dealing with the Objectives of the Secretariat.
The Chairperson pointed out that the Committee would be interested to see whether the objectives would pose any problems to civilian oversight.
Ms Irish-Qhobosheane stated that in Clause 4 there had been a number change and a new paragraph had been inserted.
Ms Van Wyk pointed out that something was missing under Clause 4.
Ms Carin Booyse, Deputy Chief State Law Advisor, Office of the Chief State Law Advisor, responded that the clause was correct.
Ms Van Wyk stated that the issue should be clarified to avoid unnecessary confusion.
Mr M George, (COPE), pointed out that if the State Law Advisors and everyone else who had been consulting on it were happy, then perhaps the Committee should be satisfied. The proposed amendment now presented was better than what the Committee had suggested earlier. He hoped that the Bill could be finalised in this meeting.
The Chairperson concurred with Mr George.
Ms Irish-Qhobosheane stressed that the Secretariat had inserted a new paragraph in Clause 5, reading: “make recommendations to South African Police Service on disciplinary procedures and measures on non-compliance with the Domestic Violence Act, 1998”.
Mr George asked what the Secretariat meant by “recommendations for non compliance”. He asked whether this meant that the Bill had not complied with any other Act.
The Chairperson responded that the proposed amendment related only to the Domestic Violence Act.
Ms Van Wyk raised her concern about the difference in wording between the original and new Clause 5(1)(a). She asked which document was correct.
Ms Irish-Qhobosheane responded that it was the informal document that was correct.
Mentally ill patients
Ms D Kohler-Barnard (DA) raised an issue about mentally ill patients. She pointed out that this issue was not covered either in the current Independent Complaints Directorate (ICD) Act, nor the Independent Police Investigative Directorate Bill (IPID Bill ). She asked whether the issue was covered in this Bill.
Ms Irish-Qhobosheane drew the Committees’ attention to a point made by Mr George on the Child Justice Act.
Ms Van Wyk pointed out that this was never really the function of the ICD. She concurred with the Chairperson.
Ms Kohler-Barnard asked what covered the treatment of ill people.
The Chairperson pointed out that there were station commanders who managed the police stations. She stated that the issue raised by Ms Kohler-Barnard could also be covered under the Mental Health Act.
Ms Van Wyk asked that the Committee should be specifically told which document was being discussed.
Ms Irish-Qhobosheane stated that a new paragraph had been inserted in Clause 5(2)(c)(vii).
Ms Van Wyk suggested a correction to a word: she thought that the correct plural of “forum” should be reflected as “fora” and not “forums”.
Mr George asked who was going to be responsible for the police fora. If this was to be the Secretariat, then he asked for assurance that it would have the capacity and the resources.
The Chairperson responded that the Clause did not say that the fora must be established but it talked about the development of frameworks.
Ms Van Wyk added that this was more a question of policy than anything else.
Mr G Schneemann (ANC) concurred with Ms Van Wyk.
Mr George pointed out that he was satisfied with the responses.
Ms Irish-Qhobosheane stressed that the Secretariat had tried to be careful with the wording of the proposed amendments to avoid confusion.
Ms Van Wyk, referring to Clause 5(2)(c)(vi), stressed that she was worried about the type of challenges that were being raised. She stated that unless requests came via the Minister, Clause 5(2)(c)(vi) could be seen as interference in operational issues. She suggested that the right wording be inserted to clarify this.
The Chairperson agreed that Clause 5(2)(c)(vi) was too broad.
The drafters agreed to have another look at this.
Ms Irish-Qhobosheane stated that there had been a number change in Chapter 3.
Ms Van Wyk pointed out that in the previous meeting the Committee had agreed that it must be stated that the Secretary would be the accounting officer.
Ms Kohler-Barnard stated that she had picked up a comment from the public submissions around having the Minister, and not the President, appoint the Secretary. She asked whether there was any supporting evidence for the appointment.
Ms Irish-Qhobosheane responded that this was done because Ministers could appoint their own Deputy Director Generals.
Ms Irish-Qhobosheane highlighted the insertion of the phrase “within the competence of the Secretariat” in Clause 8.
The heading of Clause 9 had been changed to “Delegation of Powers and Assignment of Duties”.
In Clause 11, the previous subClause (2) had been omitted and the phrase “in case of a vacancy, the Minster must fill the vacancy within a reasonable period of time, which period must not exceed one year” had been inserted.
Ms Van Wyk raised an issue about the time frame.
Ms Irish-Qhobosheane stated that the amendment had not been made but such amendment would be inserted.
Mr G Schneemann concurred with Ms van Wyk that the Committee had agreed to a time frame of one financial year.
Mr G Lekgetho (ANC) raised an issue with regard to Clause 15(4). He asked what the present position was.
Ms Irish-Qhobosheane responded that there had been a discussion about the issue in the previous meeting. She stated that the provision had been inserted there in line with what the Committee had previously discussed.
Mr George noted that there was supposed to be some sort of provision for a transitional arrangement, so that Clause 15(4) would not affect any Head of the Secretariat who was currently a former member of the South African Police Service.
The Chairperson agreed with Mr George.
Ms Van Wyk responded that Mr George’s question was covered under Clause 31(3).
Ms Irish-Qhobosheane stated that under Clause 16(1), the previous subclauses (d) and (e) were omitted, and new subclauses had been inserted.
Ms Kohler-Barnard stated that it seemed as if there was not enough enforcement power given to the Secretariat did not have any teeth.
The Chairperson pointed out that the Minister had the duty in regard to the removal from office of the Provincial Secretary for the time being.
Mr George asked what the word “ensure” meant.
Ms Van Wyk stated that she was concerned with the proposed wording. The wording that the Committee had suggested in its previous meeting had been much clearer. In particular, the Committee had proposed the wording “monitor implementation” and not “ensure implementation”.
Ms Kohler-Barnard pointed out that there was no action step noted for the part of the Secretariat to monitor implementation of national policing policies and directives issued by the Minister.
Ms Irish-Qhobosheane responded that the Secretariat reported directly to the Minister, and would, in practice, take recommendations to the Minister, together with the recommendations on how to solve the problem.
Ms Kohler-Barnard stated that there was no clause in the Bill which specifically stated that any cause of action should be presented to the Minster.
Mr Lekgetho raised concerns about the functions of the Secretariat.
Ms Van Wyk stated that it was important that the Committee must be certain on that. She stated that the Secretariat was an oversight body that did not have any enforcement powers.
The Chairperson concurred with Ms Van Wyk.
Ms Irish-Qhobosheane suggested that Clause 20(1)(d) be removed because it was covered under Clause 20(1)(a).
Ms Van Wyk suggested a rewording of Clause 20(1)(c).
The Chairperson raised an issue with regard to who should be invited to a meeting convened by the Secretary. She stated that only Heads of Department should be invited.
Ms Van Wyk suggested that Clause 20(1)(d) be amended, to say that no one else could be invited to discuss performance of police service in the province.
Ms Irish-Qhobosheane concurred with the Chairperson, but felt that the Secretary should determine who should be invited. She suggested that a provision be added in Clause 21 about the invitation, similar to that in Clause 20.
Ms Van Wyk commented on Clause 20(2)(b).
The Chairperson asked who the “senior management staff” were.
Ms Irish-Qhobosheane responded that the senior management staff were the Head of monitoring and the Head of partnership.
Mr Lekgetho said that he had initially had some doubts about this but they were addressed.
Ms Van Wyk suggested that Clause 21 be amended to say that the Secretary would determine the agenda.
The Chairperson agreed that this was important for the issue at hand.
Ms Irish-Qhobosheane stressed that she was raising a point which could be raised when the Bill went before the National Council of Provinces, relating to the cost implications for the provinces.
The Chairperson asked what the difference was between Clauses 23(1) and 23(2).
Ms Irish-Qhobosheane responded that the Committee should reword Clause 23(1).
Ms Van Wyk stated that the role and acknowledgment of the Ministerial Executive Committee (MEC) was missing. She asked whether this clause was in line with other Acts that related to cooperative government and intergovernmental relations.
Ms Irish-Qhobosheane responded that the clause was in line with the Acts. She also suggested that Clause 24 be reworded.
Ms Kohler-Barnard stated that if Clause 24 was of such a sensitive nature, then the Minister should send the Secretary.
Ms Van Wyk suggested that Clause be reworded.
Ms Kohler-Barnard asked whether the Secretary needed the permission of the Minister to go into the provinces and do research.
The Chairperson agreed that Clause 24 should be reworded.
Ms Irish-Qhobosheane pointed out that it was explained, when the legislation was first introduced, that the Secretariat was required to establish legislation for the Ministerial Executive Committee (MEC).
Ms Van Wyk commented on Clause 27(1)(b), pointing out that this referred to a meeting where the Minister and the MECs would address reports.
The Chairperson raised a question whether Clause 26(c) related to the composition of the Committee, or whether the Members would be there by invitation.
Ms Irish-Qhobosheane responded that it could be both. The Secretariat could look again at this.
Ms Van Wyk asked whether what Ms Irish-Qhobosheane had said could not be included in the Bill.
Ms Kohler-Barnard asked whether it would be appropriate to suggest that the meeting between the Ministers and MinMEC should be convened at least twice a year.
Mr George responded that it was a meeting of the Executive, and the Committee could not prescribe how many times they must meet.
Ms Van Wyk suggested that Clause 29 be aligned with the IPID Bill.
The Chairperson was concerned with the wording in Clause 29(2).
Ms Kohler-Barnard agreed with the Chairperson that the word “monitor” would be preferable.
Ms Van Wyk suggested that the whole of the Part 5 of this Bill should be aligned with the IPID Bill.
Chapter 6 & Clause 30
Ms Irish-Qhobosheane read out Chapter 6.
Ms Kohler-Barnard was concerned with the title “Miscellaneous”. She suggested that this whole part should be brought in line with the IPID Bill.
Ms Van Wyk asked whether the Committee wanted to see the regulations, as she felt that it would be necessary.
Mr Schneemann concurred with Ms Van Wyk.
Ms Kohler-Barnard agreed that wherever possible and appropriate, this and the IPID Bills should be brought in line with each other.
Mr George disagreed, and thought that the Committee should not have the same approach as it had taken on the IPID Bill, because the two were completely different. There were serious limitations that the Committee faced. He agreed that the regulations should come before the Committee for noting, but not for scrutiny.
The Chairperson agreed that the regulations should come before the Committee for noting.
Ms Van Wyk suggested that the Committee should be updated until all the Provincial Secretaries had been established.
The Chairperson responded that the Committee would still be getting Annual Reports.
Ms Kohler-Barnard asked who would report back.
Mr George concurred with Ms Van Wyk that it was very important for the Committee to receive regular reports to monitor the situation, especially in the first few years.
Ms Van Wyk wanted a response for the State Law Advisors whether this issue could be put under “Transitional arrangements”.
Ms Irish-Qhobosheane responded that the Secretariat would do quarterly reports, and could include feedback on the provinces in these quarterly reports, thus obviating the need to report separately.
Ms Van Wyk stated that this would not have to be for three years, but only until the provincial secretariat had been established.
Mr George asked whether it would not be better for the Committee to establish a time frame.
Ms Irish-Qhobosheane responded that this clause only applied to the position of the Secretariat and the Provincial Head.
Ms Van Wyk concurred that Mr George had raised a realistic point.
Ms Kohler-Barnard responded that she was sceptical whether any time frame, whether five or ten years, would necessarily ensure that a person was impartial. She was hesitant to have the moratorium lifted.
The Chairperson agreed with Ms Kohler-Barnard.
Ms Van Wyk stated that she would not pursue this issue if the Committee did not agree, but still thought that the Committee should give serious consideration to imposing a time frame.
Ms Kohler-Barnard agreed with the Chairperson that it would not make sense to lift the restriction.
Mr George agreed that further thought was needed on this. He asked whether the Bill could not be challenged on grounds of unfair discrimination.
The Chairperson agreed that the Committee would think further about this issue.
Ms Irish-Qhobosheane stated that this issue was to be found in other legislation all over the world. It was not easy to break the police culture.
Ms Van Wyk noted that it was difficult to determine whether one’s background or current thinking would prevail.
The Chairperson stated that lawyers who were former police were different from lawyers who had not been in the SAPS.
She asked whether the Secretariat had other issue that was not currently in the Bill.
Ms Irish-Qhobosheane asked whether the Bill could not include a clause that would impose obligations on SAPS members to furnish information, if the Secretariat requested any information.
The Chairperson asked that the Secretariat bring a proposal for discussion by the Committee.
The meeting was adjourned.
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