Civilian Secretariat for Police Services Bill [B16-2010]: Deliberations

Meeting report

Chairperson’s opening remarks
The Chairperson expressed her concerns about the early retirement of senior members in the Supply Chain Management Unit of the South African Police Service (SAPS), especially since this had occurred shortly after the President had announced the investigation of the SAPS Supply Chain Management Unit by the Special Investigating Unit (SIU). She did not know what the situation would be with regard to the investigation and the outcome. However, whatever happened, she hoped that all assistance would be forthcoming in the investigation. The Committee would look forward, with interest, to the outcome of the investigation. It was in the interests of the Committee that both the Supply Chain Management and the Sector Education and Training Authority (SETA) should be investigated.

Ms D Kohler-Barnard (DA) asked whether the Committee would still meet on the coming Friday, in light of the recent resignations.

The Chairperson responded that she would find out but for the time being the meeting was still on the agenda.

Civilian Secretariat for Police Services Bill [B16-2010]: Deliberations
The Chairperson noted that the Committee was busy processing the Civilian Secretariat for Police Services Bill [B16-2010] (the Bill). This was an important piece of legislation, as it addressed issues that the Committee had been raising for many years. The (currently named) Police Secretariat (the Secretariat) had been asked to attend to certain changes, during the previous meeting, and she asked that these now be presented.

Presentation of Amendments document
Ms Jennifer Irish-Qhobosheane, Secretary of Police, stated that the only addition on the part of the Secretariat had been Clause 32 which related to imposing an obligation on SAPS to cooperate with the Secretariat.

Ms A Schafer, (DA), stated that the word “existing” should appear under subclauses (a) and (b) and the word “providing” should appear under (c), otherwise the clause would not make sense.

Ms Irish-Qhobosheane pointed out that Clause 20(1)(c) had been reworded.

She stated that there had been a numbering change in Part 2 of Chapter 5.

She pointed out that in Clause 26(2) there had been a number change, and the Secretariat had added the words “Civilian Secretary” under subclause (4). In Clause 26(5) the heading had been removed and this had been included in subclause (5).

She highlighted that there were also number changes under Chapter 6.

In respect of transitional arrangements, subclause (7) had been added.

She also pointed out that the Short Title allowed discussions for the implementation to hold off until the next financial year.

Ms A Van Wyk (ANC) suggested the use of the word “determined”.

Presentation on Bill, incorporating proposed amendments (combined document)
Mr Theo Hercules, Principal State Law Advisor, Office of the Chief State Law Advisor, tabled what he termed the “combined document” which set out the Bill incorporating the amendments made up to 31 August.

He stated that Clauses 4(2) and (3) would be suspended.

He pointed out that Clause 8(1)(a) and (2) which referred to the Civilian Secretary as the Accounting Head, would be suspended. He pointed out that Clause 14 now tied in with the role of the Secretariat as the Accounting Officer.
Ms Van Wyk asked why the role of the Secretariat as the Accounting Officer was being suspended. She stressed that someone still needed to be in this position.

Ms Irish -Qhobosheane responded that there was one accounting officer for each Department, and until the Secretariat became a designated entity, the current incumbent would remain the accounting officer.

Ms Van Wyk pointed out that in this case Clause 8(1) could not be suspended.

Ms Irish-Qhobosheane responded by suggesting that the clause be split.

Ms Schafer asked what had been done in relation to the Domestic Violence Act (DVA) and whether the indemnity was going to be removed.

Ms Irish-Qhobosheane responded that there had been a lengthy discussion with Domestic Violence Act groups, and the Minister responsible. She pointed out that the Secretariat needed to do some research before this could be amended, as the Secretariat was not sure about the indemnity.

Ms Schafer asked about the implications of this.

Ms Irish-Qhobosheane responded that there were a number of other things that needed to be amended in the DVA, relating also to SAPS’ officials non-compliance.

The Chairperson stated that the Committee had a lengthy discussion on the matter and the Committee had agreed to the proposed changes as set out.

Mr Hercules then went through the combined document, clause by clause.

Long Title
Mr Hercules stated that a definition for the Secretariat had been inserted and the title had been aligned with the definition of Civilian Secretariat, and with the wording of the Constitution. He stated that a new Clause had been inserted in the long title that dealt with cooperation between the Civilian Secretariat and the SAPS.

Preamble
Mr Hercules pointed out that there had been no changes to the Preamble to the Bill.

Clause 1
Mr Hercules highlighted that a new definition of “Civilian Secretary” had been inserted in Clause 1. The definition of “organ of State” had been aligned with Clause 2(1). The definition of “Provincial Department” had been amended, and a new definition of “Provincial Secretariat” had been inserted to differentiate between the “Provincial Secretariat” and the “Civilian Secretariat”.

The Chairperson asked why “organ of State” was not defined in Clause 1, which contained other definitions.

Mr Hercules suggested that the Committee could amend the definition of “organ of State” in Clause 1 and then amend Clause 2 accordingly.

Clause 2
Mr Hercules pointed out that Clause 2(1) would be amended in light of what he had just suggested. He stated that a new subclause had been inserted which stated that all organs of the State should reasonably assist the Civilian Secretariat.

Clause 3
Mr Hercules stressed that a new subclause, containing what had previously been outlined in Clause 4, had been inserted as Clause 3. He also highlighted that a new paragraph (f) had been inserted.

Ms Van Wyk asked whether it was necessary to have Clause 2(1) since “organs of State” had already been defined in Clause 1.

The Chairperson concurred with Ms Van Wyk.

Clause 4
Mr Hercules pointed out that the word ‘national’ had been inserted in Clause 4(1). He stated that subclauses (2) and (3), which pointed out that the Secretariat was the Accounting Officer, had been inserted. He stressed that the wording of Clause 4(6) had been taken from the Independent Police Investigative Directorate (IPID) Bill.

The Chairperson pointed out that in the previous meeting the Committee agreed that the references to Civilian Secretary would mean the national Secretariat.

Ms Van Wyk concurred with the Chairperson. She also requested a response to the question raised with regards to subclause (2) in the previous meeting. She questioned the wording of Clause 4(2) suggesting that the wording should refer to ‘at’ (not ‘on’) ‘the national level’.

Mr Irish-Qhobosheane responded that the Secretariat had held discussions with the Minister of Police, who was agreeable that this Clause be inserted. She pointed out that the wording in subclause (2) was done deliberately, so that the Secretariat could make it clear that the designated Department related to the Civilian Secretariat and not the Provincial Secretariat.

Clause 5
Mr Hercules pointed out that the Clause had been aligned with the definition of Civilian Secretariat and paragraph (h) had been amended.

Ms Van Wyk raised her concern about the word ‘to’ in subclause (h). She pointed out that the wording suggested that the Secretariat itself was going to facilitate the proper functioning.

Mr M George (COPE) concurred with Ms Van Wyk, stating that the wording seemed to place an obligation on the Secretariat.

The Chairperson asked what the Secretariat was going to do about the Community Policing Forums (CPFs).

Ms Irish-Qhobosheane agreed with the suggestions made about the wording. She said that the references to CPFs would not be taken out of the SAPS Act. There were no proper functioning CPFs and until the review of the SAPS Act, there would be dual functions performed by the Secretariat and SAPS. In reality, at the moment it was the Secretariat who was playing a greater role in enhancing CPF, although in theory the responsibility remained with SAPS until the Secretariat was fully ready to take over the obligations.

Ms Van Wyk agreed with the word “to” being removed, as suggested.

She added that then subclause (i) should be moved up to become (a) because that was the main function of the Secretariat. She also requested the Committee to have a look at subclause (a). She also stressed that the Secretariat was not implementing policy, but was rather to monitor the implementation of policy, in subclause (e).

Ms Irish-Qhobosheane agreed, in relation to subclause (a), that the Secretariat was not implementing but was advising the Minister on the implementation of policies.

Mr George asked the Secretariat about the dual function that had been talked about. He asked whether this meant that eventually the Secretariat would take over the control of CPFs.

Ms Irish-Qhobosheane responded that the dual function would enable the Secretariat to accurately define which functions were for the SAPS and which functions were for the Secretariat.

Ms Schafer stated that she differed from Ms van Wyk’s suggestions. She asked why the words ‘associated structure’ were used in subclause (h), as she did not think it was appropriate.

Ms Irish-Qhobosheane noted that there were CPF, provincial and national boards. She stated that the Secretariat did not want to report specifically to these boards. She pointed out that by using the term ‘associated structure’ the Secretariat was referring to the coordinating structure for CPF.

Mr George agreed with the Secretariat. He suggested that this subclause be aligned with Section 21 of the SAPS Act, so that it would be clear that the Secretariat was not taking over the work of the SAPS in relation to the CPFs.

Ms Irish-Qhobosheane responded that Section 21 of SAPS Act had certain problems already. The Secretariat would address the issue when the review of the SAPS Act took place.

Clause 6
Mr Hercules stated that the heading had been aligned with the definition of the Secretariat. He stated that subclauses (a) to (d) and (j) had been reworded. He pointed out that Clause 6(2) had also been aligned with the definition of Civilian Secretariat, and that subclauses (2)(a)(iv) and (v) had been reworded.

Ms Schafer stated that there was no provision that followed up on the non-compliance mentioned in Clause 6(1)(d).

Ms Kohler-Barnard raised a question in relation to the organisation’s research centre. She asked whether it was going to be a single body.

Ms Van Wyk said that the SAPS was a national competency, and policy was arrived at a national level, so the Secretariat would have one policy unit.

Mr George pointed out that Clause 6(1)(j) seemed to repeat what had been said in 6(1)(a).

Mr G Schneemann (ANC) responded that Clause 6(1)(j) addressed Clause 6(1)(i). He suggested that (1)(j) should be renumbered as (1)(i)(iii).

Ms Irish-Qhobosheane responded in relation to the issues around the Domestic Violence Act (DVA). She stated that a huge amount of the Secretariats’ time would be taken up with producing quality reports so that the Minister could issue instructions, and this would also apply to the DVA.

She added that there was a specific reason why Clause 6(1)(j) had been inserted. She drew the Committee’s attention to the discussions during the public submissions. There were some serious concerns around who would handle complaints. SAPS was to deal with its own complaints whilst the role of the Secretariat was to monitor the system. The Secretariat wanted to make it clear that it would not actually be dealing with complaints, and had thus included Clause 6(1)(j) specifically.

Ms Van Wyk suggested a change in the wording of that subclause to make it clear that the Secretariat was referring to complaints against SAPS members.

The Chairperson and Mr George indicated their agreement with this suggestion.

Clause 7
Mr Hercules stated that there were no amendments to this Clause.

Clause 8
Mr Hercules stated that Clause 8(1)(a)(i) and (2) had been aligned with the issue of the Civilian Secretary being the designated Accounting Officer . He stated that Clause 6(2) would be suspended. The Secretariat would ensure that the correct clauses were suspended.

The Chairperson corrected Mr Hercules that Clause 6(1)(a)(i) would deal with the Head, whilst Clause 6(1)(a)(ii) would deal with the Accounting Officer.

Ms Van Wyk stated that there would be a problem if Clause 6(2) was suspended, since the Head still needed to be in charge.

Mr Hercules concurred.

Ms Schafer suggested that the amendment be noted in the transitional provisions.

Mr Hercules said that the clause would be suspended until the Secretariat was a designated entity.

The Chairperson summarised this Clause by saying that a subclause was going to be added, but it was going to be suspended until the appropriate time.

Clause 9
Mr Hercules pointed out that Clauses 9(d) and (f) had been aligned with the definition of the Civilian Secretariat.

Clause 10
Mr Hercules pointed out that the heading had been amended.

Clause 11
Mr Hercules stressed that the Clause had been reworded to say “The Minister may remove the Secretary from office on account of...”

Clause 12
Mr Hercules stated that the Clause had been aligned with the IPID Bill.

Clause 13
Mr Hercules pointed out that the Clause had been aligned with the IPID Bill.

Clause 14
Mr Hercules stated that the Clause had been aligned with the IPID Bill as had been requested by the Committee.

Clause 15
Mr Hercules noted that the Clause had also been aligned with the IPID Bill.

Mr George asked whether annual reports were not prepared in terms of a particular Act.

Ms Van Wyk suggested a rewording of Clause 15(3) by replacing the word ‘if’ with the word ‘of’.

Clause 16
Mr Hercules pointed out that the amendments in the Clause related to the time frame for the constitution of the Provincial Secretariats.

Ms Irish-Qhobosheane stated that the Secretariat had not wanted to alter the clause, because that was the wording that had been agreed to by the Committee. However, she felt that the current wording of the clause was confusing. She highlighted that if the Bill was to be passed in January 2011, the next financial year would be from April 2012.

Ms Van Wyk agreed that the wording was confusing. She pointed out that the Committee had agreed that the clause should make reference to ‘one financial year’ instead of simply ‘financial year’.

The Chairperson asked what was meant by ‘after the commencement’ in Clause 16(3).

Ms Schafer agreed that the wording of the clause was confusing.

The Chairperson suggested that the clause be reworded.

Ms Irish-Qhobosheane suggested that the Committee should amend the clause by inserting a reference to 18 months instead of one financial year.

The Secretariat would attend to the amendment as suggested.

Clause 17
Mr Hercules pointed out that the Clause had been aligned with the definition of Civilian Secretariat.

Ms Van Wyk pointed out that Clause 17(2)(a)(ii) was supposed to be aligned with what had been said about the national level at the previous meeting.

Clause 18
Mr Hercules stated that a new subclause had been inserted in 18(4) which stated that: ‘The head of a Provincial Secretariat must not be a member or former member of the police service of the Republic...’

Mr George asked the Secretariat if it had researched the position, in order to ascertain whether Clause 18(4) could not be challenged on grounds of unfair discrimination.

Ms Irish-Qhobosheane responded that it was possible that Clause 18(4) could be placed in the Bill without being subject to challenge.

Clause 19
Mr Hercules pointed out that subclauses (1)(d) and (e) had been inserted.

Mr George asked what was meant by the reference to substitute and investigate.

Ms Irish-Qhobosheane suggested the use of ‘must evaluate and monitor’.

Mr Hercules pointed that Clause 19(d) would be amended to say ‘must monitor that the implementation…’ instead of ‘must ensure..’.

Clause 20
Mr Hercules pointed out that the Clause had been aligned with the Secretariat’s removal.

Clause 21
Mr Hercules pointed out that there was a missing amendment in Clause 21(2), which would state that the vacancy should be filled in six months.

The Chairperson asked whether the Minister was not going to play a role in the removal of the Secretary.

Mr Hercules responded that this amendment had been omitted, but it would be inserted.

Mr George suggested that it was better to say ‘after consultation’ instead of ‘in consultation’.

Ms Van Wyk responded that the Committee had limited powers, and thought that ‘in consultation’ was the better term.

Ms Irish-Qhobosheane concurred with Mr George that ‘after consultation’ should be used in relation to the removal of the Secretariat, and ‘in consultation’ should be used in relation to the appointment of the Secretariat.

The Chairperson concurred with Ms Irish-Qhobosheane.

Clause 22
Mr Hercules stated that there had been no amendment to this Clause.

Clause 23
Mr Hercules noted that the amendment related to subclause (c).

Ms Kohler-Barnard suggested that the subclause be reworded.

Ms Van Wyk suggested that the Committee insert the words ‘identify best practices’ in subclause (c)

Clause 24
Mr Hercules pointed out that there had been no amendments to this Clause.

Clause 25
Mr Hercules stated that no amendments had been made in relation to this Clause.

The Chairperson pointed out that in the previous meeting, the Committee highlighted that there was supposed to be a subclause relating to the invitation and agendas. This should be inserted.

Clause 26
Mr Hercules stated that the Clause had been aligned with the definition of Civilian Secretariat. He also pointed out that a new subclause (2) had been inserted.

Ms Van Wyk noted that in the previous meeting a suggestion had been raised about MECs being informed, especially around subclause (2).

The Chairperson agreed.

Ms Van Wyk suggested that the point about the MECs being informed should be inserted in subclause (1), so that it would be clear that there was a role for the MECs.

Ms Irish-Qhobosheane suggested that a new subclause (3) be inserted.

Mr Hercules agreed with Ms Irish-Qhobosheane.

Ms Van Wyk stated that she wanted to tread carefully. She also pointed out that it was not intervention in police services but intervention in the Provincial Secretariat. She suggested that the amendment should rather appear earlier in the Clause, as she had requested.

Mr Schneemann disagreed with the use of the word ‘notification’ as had been suggested by Mr Hercules.

The Chairperson asked what the difference was between ‘in consultation’ and ‘after consultation’.

Ms Irish-Qhobosheane responded that ‘in consultation’ implied that the parties must reach consensus. ‘After consultation’ meant that there was a requirement to consult, but that the person finally making the decision could disagree with the views of those who had been consulted.

Mr G Lekgetho (ANC) asked whether it would not be a waste of time and money to consult.

The Chairperson responded that it was necessary.

Clauses 27 and 28
Mr Hercules stated that there had been no amendments to these clauses.

Clause 29
Mr Hercules stated that the clause had been aligned with the definition of Civilian Secretariat.

Clause 30
Mr Hercules stressed that there had been no amendments to the clause.

Clause 31
Mr Hercules noted that this clause had been aligned with the definition of Civilian Secretariat.

Ms Irish-Qhobosheane suggested that Clause 31(3) be aligned with the IPID Bill.

Clause 32
Mr Hercules stated that this was a new clause, which had been inserted at the request of the Secretariat.

The Chairperson pointed out, in relation to the wording of this clause, that the SAPS should only be obliged to cooperate with the Civilian Secretariat, and not the Provincial Secretariat.

Ms Irish-Qhobosheane responded that it was an issue of delegation of powers and regulation with regards to provinces.

Ms Schafer stated that she did not agree.

Mr George pointed out that the Committee was dealing with a complicated situation. He stated that policing was a national competence, so it was easy to say that the police should cooperate. He stated that in relation to the Provincial Secretariat, the Provincial Secretariat had more powers than the MEC. Parliament should not be enacting legislation that could not be enforced.

Ms Van Wyk agreed to some extent with Mr George. The Committee wanted to instruct the police to cooperate. The wording could be worked on. She stated that the Committee was faced with making a choice between two options.

The Chairperson asked how Provincial Secretaries were going to perform their functions.

Ms Schafer stated that she disagreed with Mr George. She asked what would happen if the police did not comply.

The Chairperson responded that Ms Irish-Qhobosheane had answered this question by stating that the Secretariat would report to the Minister, and the Minister would then instruct the police.

Mr George pointed out that the Bill that the Committee was discussing was not supposed to be drafted in the same way as had been done with the IPID Bill. He reiterated that the Secretariat would inform the Minister, and the Minister would then act. However, if the Minister did not act, the Secretariat could not do anything.

Ms Kohler-Barnard stated that the Secretariat did not have any teeth, but she was not sure whether it was in the mandate of the Secretariat to have teeth.

The Chairperson stated that the Committee had to go back to the mandate and objects of the Civilian Secretariat. She main issue that the Committee needed to look at properly was the role of the Secretariat in the implementation of the DVA.

Ms Van Wyk agreed with the Chairperson that the Secretariat was not an investigative or punishing body. She pointed that a further subclause could be inserted under Clause 32, to say that any Member of the SAPS who obstructed the Secretariat should be reported. This was not to say that there should be any suggestion of a sanction such as imprisonment, as would apply under the IPID Bill. She added that the Secretariat did not have a mechanism to solve a deadlock, should such occur between the Minister and the Secretariat. Nothing stopped the Committee from inserting a provision to say that any obstruction would be reported to the Minister.

Mr George pointed out that he could not imagine how police could obstruct, and that was why he was misunderstood.

Ms Kohler-Barnard asked whether it was up to the Minister to take on disciplinary matters, as this would surely clutter up the Minister’s core functions.

Ms Van Wyk stated that the Committee should differentiate between the work around the DVA, and the rest of the work of the Secretariat. She stated that no-one had suggested that disciplinary action be taken to the Minister. She responded to Mr George that obstruction by the SAPS could be in the form of delaying giving information or giving wrong information. She stated that the Secretariat should look at the complete reasons why the SAPS were not implementing the DVA. The Committee should not be naive enough to imagine that there would not be any obstruction from SAPS. She stated that she could not see any harm if there was some sort of instruction around this included in the Bill.

Ms Irish-Qhobosheane agreed with Ms Van Wyk that there should be another subclause inserted in Clause 32. She clarified that in relation the DVA, disciplinary recommendations were issued. However, there were also policy recommendations. There was no question that SAPS did obstruct in DVA investigations. SAPS had obstructed the Secretariat for years.

Ms Kohler-Barnard requested that the State Law Advisors should look at this issue seriously.

Mr Lekgetho stated that the Committee should not lose sight of the fact that the Secretariat had experience that it was bringing to bear on the subject, when making recommendations.

Mr George suggested that the wording for the proposed new subclause should be placed before the Committee, because he was not entirely in agreement.

Ms Van Wyk stressed that Committee Members should differentiate in the treatment of the DVA matters. Her suggested subclause could in fact be inserted anywhere in the Bill.

Mr Irvin Kinner, Chief Director: Policy and Research, Secretariat of Police, pointed out that the Secretariat had on one occasion requested a copy of the policing on a recent demonstration, but SAPS refused to supply it. This made it clear that the “obstruction” could take the form of police simply referring a matter so that it became a dead end.

Mr George suggested that the Committee should wait for the wording of the proposed new subclause before discussing this further.

The Chairperson agreed.

Clause 33
Mr Hercules highlighted that no amendments were effected to this clause.

Mr Schneemann pointed out that in the previous meeting it had been agreed that the regulations in Clause 33 should be referred to the Committee.

Mr Hercules suggested that the clause be aligned with the IPID Bill, and the regulations should come to the Committee for scrutiny.

Mr George disagreed with Mr Hercules, stating that the regulations should come before the Committee for noting only, and not for scrutiny.

Clause 34
Mr Hercules stated that a new subclause (7) had been inserted.

Mr George stated that he was not comfortable with the way subclause (7) had been written. He stated that there should be a period specifically stated, otherwise provinces would not implement the provisions of the Bill. He asked to be reminded what period had been discussed.

Mr Schneemann responded that 18 months was the period that had been set.

Mr George requested that the Committee go back to Clause 16, because what Mr Schneemann was now saying was not what he understood that clause to mean.

Ms Irish-Qhobosheane clarified out that Clause 16 related to the Secretariat reporting to Parliament.

Short Title and Commencement.
Mr Hercules pointed out that the commencement date would be suspended until a time determined by the Minister.

Mr Schneemann pointed out that there were other areas that needed to be suspended, which related to the new changes that the Committee had just made.

Ms Van Wyk noted that Ms Kohler-Barnard had raised an objection to the heading “Miscellaneous” in the previous meeting.

Ms Schafer noted that the Long Title provided for the cooperation between the Secretariat and the IPID. She stated that she had not seen anything in the Bill that referred to the IPID Bill.

The Chairperson responded that it was in Clause 31.

Ms Kohler-Barnard suggested that the two bills should talk exactly to one another.

The Chairperson asked the State Law Advisors and the Secretariat to effect the further changes agreed to by the Committee, and hopefully the revised Bill could be adopted at the next meeting. The implementation plan would also be presented.

The meeting was adjourned.