Independent Police Investigative Directorate Bill & Civilian Secretariat for Police Service Bill: Negotiating Mandates

Meeting report

Chairperson’s opening remarks
The Chairperson asked representatives of the State institutions whether they could give any input on the negotiating mandates submitted by the provinces in relation to the Independent Police Investigative Directorate Bill [15B-2010] (the IPID Bill) and the Civilian Secretariat for Police Service Bill [16B-2010] (the CSP Bill)

Mr Irvin Kinnes, Chief Director, Police Secretariat, responded that the State Law Advisors and he had only received these mandates a few hours ago.

The Chairperson asked if this posed a problem.

Mr Theo Hercules, Principal State Law Advisor, Office of the Chief State Law Advisor, answered that this was a concern, as the institutions needed sufficient time to draft responses to the proposed amendments.

The Chairperson asked the Committee Members whether they had any objections to reconvening the meeting in two days time.

Mr L Nzimande (ANC, Kwazulu Natal) suggested that the Committee break for an hour or two to allow the advisors some time to respond.

Mr J Bekker (DA, Western Cape) noted that this would not be enough time for an adequate response, as all the legal implications needed to be taken into account and analysed.

The Chairperson agreed, and said that a meeting would be arranged within the next two days to allow the input of the State Law Advisors and institutions to be drawn.

The Chairperson summarised that the Independent Police Investigative Directorate (IPID) was intended to play a similar role as the Independent Complaints Directorate (ICD). It would investigate and oversee the work of the police in relation to complaints by the public about the way in which matters were handled by the South African Police Service (SAPS) and the Municipal Police Service. The Bill also sought to establish a Management Committee and Consultative Forum, and set out the respective functions; the appointment and powers of investigators, reporting obligations and cooperation by the police services, and to provide for transitional arrangements.

He summarised that the Civilian Secretariat for Police Service Bill [B16B-2010] sought to establish a Civilian Secretariat for the Police Service (the Secretariat), as required by the Constitution. It would conduct civilian oversight over the police services and report to the Minister of Police. The Secretariat would be structured to function independently from the services and would implement a partnership strategy to mobilise role-players, including civil society organisations.

The Chairperson then noted that the negotiating mandates would be presented.

Independent Police Investigative Directorate Bill [B15B-2010]: Presentation of Negotiating Mandates
Eastern Cape
The Eastern Cape supported the Bill, but proposed some amendments. In relation to Clause 6(2), relating to the appointment of the Executive Director, it proposed that the Parliamentary Committee should be fully described as the “relevant Parliamentary Committee of the National Assembly”.

The Eastern Cape also proposed an amendment to Clause 7(1)(b) of the Bill, which required the Executive Director to prepare financial statements within four months after the end of the financial year. This was not consistent with Section 40(1)(c) of the Public Finance Management Act (PFMA), which required accounting officers to have prepared financial statements within two months after the end of the financial year. It was therefore proposed that the period in Clause 7(1)(b) be reduced to two months.   

A further amendment was proposed to Clause 20 of the Bill. Currently, the MEC in the Province had no role to play in the appointment of the Provincial Head, and it was proposed that the MEC must at least be consulted before the appointment was made.

The Province was also concerned about the financial implications of the Bill. It was unclear how the Independent Police Investigative Directorate would be able to investigate matters set out in Clause 18. The Independent Complaints Directorate (ICD), which performed similar work to the proposed IPID, had seven investigators looking at 199 police stations and about 26 000 police officers. It seemed, therefore, that the capacity of the new IPID must be enhanced significantly, and that IPID must be assisted to establish offices at local levels to enhance accessibility.

Western Cape
Mr J Bekker (DA, Western Cape), noted that the Western Cape did not support the Bill. It was, firstly, concerned about the Constitutional implications. Section 206(6) of the Constitution stipulated that “On receipt of a complaint lodged by a provincial executive, an independent police complaints body established by national legislation must investigate any alleged misconduct of, or offence committed by a member of the police service in the province.”

The preamble to the IPID Bill stipulated that there was a need to ensure effective independent oversight of the South African Police Service, and the Municipal Police Service, and this was further highlighted as an objective in the Bill. Mr Bekker said that the Western Cape believed that there was grossly inadequate independence accorded to IPID. Although IPID was removed from the South African Police Service (SAPS), it still resided under the Ministry of Police. The Minister of Police was therefore the political head of both SAPS and IPID. The responsible Minister could also be the Minister against whom complaints may be lodged in terms of the IPID Bill. Questions may therefore be raised whether IPID was in a position to execute its mandate “without fear, favour, or bias.”

He noted that it was essential that operatives of IPID should enjoy a higher degree of independence, to protect them from high-level interference in their operations. Any institution formed to investigate and adjudicate upon criminal activity needed to enjoy a measure of independence in order that it could function properly, as required by law. The Western Cape highlighted that independence of IPID must not be seen as a matter of degree, IPID was either independent from the Ministry of Police or it was not.

North West
The representative stated that the North West Province proposed amendments to the Bill. One of the resolutions highlighted by this Province was that every case should be treated on its own merits, lest criminals take advantage of any loopholes.

The province noted the proposal to have IPID offices in four regions throughout the province, in order to bring them closer to the district municipalities, in a cluster of police stations. There would be a Provincial head and the IPID offices would have investigators, with an investigator being assigned to each district. This province pointed out that this was similar to the investigations that ICD had carried out in the past. However, the powers differed. IPID would not only have to deal with its own complaints, but would also be doing investigations on cases reported. After the investigations, criminal charges could be laid.

The Chairperson noted that if investigators found sufficient evidence in relation to SAPS officers, a written report would be submitted to the administration. If there was any suspicion that a commissioner was also involved in corruption, that person could then complain at another level, such as to the Public Protector or National Minister.

The Province highlighted that it had foreseen challenges, and that the public was consulted, and asked to voice concerns and give input on the Bill, to speed up the enactment process.

In the final result, the province was in support of the Bill, with the amendments proposed.

Free State
The Free State representative stated that the Province supported the Bill, but proposed some amendments.

In Chapter 1 of the Bill, at page 4, line 33, the Free State proposed that the words “safety and security” should be replaced with the word “policing”. The reason for this was that the former Department of Safety and Security had been renamed the Department of Police, so the alteration would allow for consistency.

The Chairperson also noted that Clause 6(2) and Clause 6(3) which dealt with the appointment of the Executive Director, must state further what would happen in the event that the Portfolio Committee rejected the appointment. The Free State highlighted that there could be some problems with Clause 6(2). If the rejection or appointment had to be decided by the Parliamentary Committee, then this could create a problem of oversight in regard to the performance of the incumbent, because Parliament would technically have reviewed IPID’s appointment decision if the decision was that the incumbent be removed.

The Free State also proposed an amendment to Chapter 9, at page 13, line 42. It proposed that Clause 33(3) should be amended to read “Any police officer who fails to comply with Sections 29 and 30 is guilty of an offence and liable on conviction to a fine or imprisonment for a period not exceeding two years”. The insertion of reference to Section 30 placed a responsibility on the National or Provincial Commissioner to implement recommendations by IPID.

Gauteng
Mr A Matila (ANC, Gauteng) said that Gauteng had a number of concerns with the Bill. Many of these concerns were raised during hearings with the Community Policing Forum (CPF), South African National Civic Organisation (SANCO), Community Development workers, and patroller groups.

He highlighted that the decentralisation of IPID offices throughout the regions in the province was needed, to ensure accessibility, efficiency, and reasonable turn-around time on police misconduct and other police-related matters that fell under the jurisdiction of IPID. This issue was highlighted during public hearings.

The issue of resources, particularly capacity inefficiencies, was raised as a serious concern for service delivery. The public felt that, in order to ensure maximum efficiency of the IPID and to improve the tarnished reputation of its predecessor, the ICD, more financial resources, and competent human resources, should be made available.

The accountability of the IPID was also raised as a concern. It was suggested that IPID would have to account on a regular basis to oversight structures such as Parliament and the Provincial Legislature, as a measure of determining its success and identifying areas of improvement.

Kwazulu Natal
Mr L Nzimande (ANC, Kwazulu Natal) noted that KwaZulu Natal supported the Bill, but had recommended amendments. The province was firstly concerned about Clause 7(3)(a) of the Bill. He felt it was important to include a provision that the Executive Director must appoint staff necessary to enable the Directorate to perform its functions, subject to Section 21 of the Act.

A concern was also raised by this province on Clause 21. The clause did not provide for the responsibilities of the Provincial Head of the Directorate. It only made reference to the necessity for reporting to the MEC on those matters referred by the MEC. However, in terms of other legislation, the provincial executive clearly had a role to monitor all matters pertaining to police conduct that was dealt with by the Directorate. It was thus strongly recommended that the provisions of Clause 21 be expanded to include all matters dealt with by the provincial head of the Directorate.

With regard to the appointment of investigators in Clause 22(2), the province proposed that the entire clause should be left open as it was already provided for in Section 28 of the SAPS Act.

Mpumalanga
The Mpumalanga representative noted that it supported the Bill, having taken into consideration the inputs of the public and recommendations made. The Province proposed that the name of the Directorate itself be changed to the “Independent Police Complaints and Investigative Directorate”.

This Province also suggested amendments to Clause 7(1)(b), in line with earlier suggestions by Eastern Cape, that the time frame for preparation and submission of annual financial statements should be reduced from four to two months.

Clause 22 of the Bill noted that a person, in order to be appointed as an investigator, should have relevant qualifications as determined by the Minister. This province requested that a person who was appointed should have, at least, a Grade 12 certificate, or relevant diploma or degree.

Northern Cape
Mr J Gunda (ID, Northern Cape) noted that the Northern Cape supported the Bill but raised some concerns that were voiced by the public. These included that the Bill should stipulate a time frame for investigators to complete their investigations. The Bill should also include a provision for the establishment of regional offices in order to report a matter. A clause for report back and a clause on redress, according to the outcomes of public hearings, should be incorporated.

Limpopo
The provincial representative for Limpopo outlined that the Province supported the Bill, but recommended some amendments. It noted that, in respect of Clause 2(g), there was no provision for traffic officials under the Department of Transport to be included. Such traffic officials should be included in the Bill, as they served as law enforcement agencies.

Limpopo also raised some concerns with the wording of Clause 9(m). The public comment had suggested that the clause should be more explicit about the powers given to the IPID in respect of compelling SAPS to implement the IPID recommendations.

Limpopo noted that one of the major concerns with the functioning of the ICD had been the lack of provincial offices, and said that a lack of offices of IPID could defeat the objects of the Act as stipulated in Chapter 1. It was therefore recommended that IPID offices should be established in every policing area.

Civilian Secretariat for Police Service Bill [B16B-2010]: Presentation of Negotiating Mandates
Eastern Cape
The Eastern Cape supported the CSP Bill. However, it noted two concerns. The Chairperson asked, on behalf of the province, that care must be taken to ensure that there was no overlap between the functions of the Department of Police and those of the Civilian Secretariat. This province also proposed that once the Bill was passed, the new structures must be assisted to establish offices at local levels, to allow for enhanced accessibility.

Free State
Mr D Bloem (COPE, Free State) stated that the Free State Province supported the Bill but proposed an amendment. The Free State was concerned that the Bill excluded members or former members of the police service from being appointed as a National Secretary and Heads of National Secretariats. However, the exclusion did not extend to staff members in the respective Secretariats. It was felt that this might defeat the very purpose of the exclusion. Furthermore, Clauses 12(1) and 21(2) of the CSP Bill did not exclude members or former members of the police service from being appointed by the Minister or MEC to act, in the event that there might be vacancies. Free State had requested the Committee to consider making these amendments.

Gauteng
Mr Matila noted that Gauteng Province supported the CSP Bill. However, it raised some concerns that emerged from the public hearings held on the Bill. The role of the Community Policing Forums (CPFs) was raised as an issue that was not properly addressed in the Bill. It was generally felt that this Bill should have adequately provided for the resourcing and capacity building of CPFs, to ensure that they would function better and more effectively.

Mr Matila also noted that Sections 211 and 121 of the Constitution provided a role for traditional councils or traditional leaders in respect of the administration of justice and safety and security. However, the Civil Secretariat for Police Services Bill was silent on this sacrosanct role, in relation to the administration of this Bill, particularly in regard to matters of domestic violence within the traditional leaders’ jurisdictions.

The Province was also concerned about the financial management and accountability of the Civil Secretariat for Police Services (the Secretariat). It suggested that the Bill must clearly articulate the management of finances and accountability of the Secretariat, for purposes of effective monitoring.

The Province also noted that the Secretariat aimed to conduct a robust oversight role over the police service, but was concerned with how the oversight roles by the Secretariat and provincial legislature would be coordinated, in order to avoid duplication.

The Province’s recommendations were then outlined. The role of the accounting officer must be clearly articulated, for purposes of reporting performance management and for compliance with the PFMA. The Provincial Head of the Secretariat should report to the MEC of Community Safety, which would allow all reports of the Secretariat to form part of the Department’s reporting to the legislature. Gauteng also wanted a funding model developed, in consultation with all provincial Secretariats, to ensure consistency.

The Province also noted that it was important to factor in the financial implications, particularly since each province was expected to establish a provincial Secretariat within 18 months after the Act came into effect.

Kwazulu Natal
Mr Nzimande reported that Kwazulu Natal supported the CSP Bill but proposed some amendments to certain clauses.

He noted that the Province was concerned that the Preamble to the Bill, the Objects clause and Chapter 4 did not contain any reference to Sections 206(3) or 206(4) of the Constitution. The fact that there was no reference to these Constitutional provisions, nor was there any explanation as to how the provisions of the Bill related to the Constitution, could lead to legal uncertainty about the implementation of the Bill by the provincial executive. It pointed out that there had also been some difficulties with Chapter 2 of the South African Police Services Act of 1995, which provided for provincial secretariats and their powers and functions. The inclusion of the necessary references would create legal certainty and avoid ambiguity.

The province also highlighted Clause 4(2), which provided that the Secretariat was a designated department at national level. This meant that it would be subject to the Public Service Act of 1994. Section 9 of the Public Service Act provided for appointments in departments to be made by the executive authority. This would be the Minister of Police. However, Clause 8(2)(e) of the Bill provided for the Police Secretary to appoint the staff of the Secretariat. This appeared to be in conflict with the Public Service Act. The Province suggested that this clause be revised.

Clause 15 provided for preparation of an Annual Report and incidental matters. However, the Public Finance Management Act (PFMA) and Public Service Act already contained such provisions. Clause 15 was therefore superfluous. The Province recommended that it should be removed.

Clause 18 provided that the MEC must, in consultation with the Minister for Police, appoint a head of a provincial secretariat. The phrase ‘in consultation with’ had been held by courts to mean that agreement or approval must be obtained. However, Section 9 of the Public Service Act provided for the appointment of officials to be done by the executive authority, and did not contemplate the approval of any other executive authority, especially one in another sphere of government. In view of the apparent conflict with the Public Service Act, it was strongly recommended that this provision be revised.

Clause 19 of the Bill was also of concern to the province. The Bill provided for the powers of the Secretary to enable the execution of functions, which included the power to enter buildings under the control of the police service, and similar powers. However, no similar clause was provided in respect of the head of a provincial Secretariat. It was recommended that such provision should be included, in order to enable the head of the provincial Secretariat to execute his or her functions adequately.

Mr Nzimande then highlighted the concerns on Clause 26, which provided that the Minister may instruct the Secretariat to intervene in the affairs of a provincial secretariat when that provincial secretariat was unable to perform its functions effectively, or had not fulfilled its obligations in terms of the Act. This intervention may be extended for a period of 90 days at a time.

He pointed out that Section 100 of the Constitution dealt with national intervention in the provincial administration. In terms of the Constitution, when a province could not or did not fulfil an executive obligation in terms of the Constitution or legislation, the national executive may assume responsibility for the relevant obligation in that province, to the extent necessary to maintain essential national standards or meet established minimum standards for the rendering of a service. If this happened, however, the NCOP must be informed of the intervention within 14 days, otherwise would have to approve that intervention within 180 days. The NCOP must also have reviewed the intervention and made recommendations to the national executive. National legislation may regulate this process.

Kwazulu Natal was concerned whether Clause 26 of the CSP Bill could be considered as “national legislation” that regulated the process under Section 100 of the Constitution. Clause 26 only referred to “an intervention”, without indicating what form it may have taken. Section 100 of the Constitution, on the other hand, noted that an intervention could take the form either of a directive to take remedial steps, or of assuming responsibility for the function concerned, with specific conditions, and it then prescribed the conditions under which the national executive may assume responsibility for a provincial function. Clause 26 did not contain any similar conditions.

Kwazulu Natal was further concerned that Clause 26 did not require that the NCOP be notified of the intervention. No provision was made that the intervention must cease if the NCOP failed to approve it. In view of the material differences between Clause 26 and Section 100 of the Constitution, Kwazulu Natal believed that Clause 26 could not be considered as national legislation regulating the process set out in Section 100. The different procedures may lead to legal uncertainty, if not Constitutional invalidity.

Mpumalanga
The representative for Mpumalanga noted that this province supported the Bill, but with certain amendments. The province proposed, in regard to Clause 25(1), that two sub clauses be added. The new subclause (e) should include a representative from the Community Policing Forum. The new subclause (f) should include a representative from relevant stakeholders.

A public concern had been raised about the alignment of the provincial secretariat to the national secretariat. At the moment, Mpumalanga had a provincial secretariat that was functioning as a directorate under the Department of Safety, Security and Liaison. Clause 34(2) of the Bill provided that if any provincial structure was in existence, at the provincial sphere of government, immediately before the commencement of the Act, it would continue to exist, subject to Clause 16. Clause 16 mandated the MEC to establish provincial secretariats within 18 months after the commencement of the Act. The roles and mandate of the current Civilian Secretariat would need to be aligned to the National Civilian Police Secretariat by the MEC.

The province was also concerned about Clauses 26(1) and (4). It was important to note that that the intervention by the Civilian Secretariat, nationally, would only happen on instructions of the Minister, and only after the Minister had consulted with the MEC. The province also proposed that the Minister must regularly inform the MEC on the progress of such an intervention.

Northern Cape
The Northern Cape supported the Bill, and proposed no amendments.

Limpopo
The province supported the Bill but suggested certain amendments, arising out of public hearings that it had held with forums, Non-Governmental Organisations (NGOs), Community Based Organisations (CBOs), and political parties and the general public.

In respect of Clause 4(1), the public agreed that the Civilian Police Secretariat should be established, although it did express the reservation that the envisaged structure seemed to overlap with the duties and functions of the Department of Safety, Security and Liaison.

In regard to Clause 5, some stakeholders recommended that oversight over the Police Service should be extended to Municipal Police Services, which also served as a law enforcement agency.

The public felt that Clause 18(1) should have given the MEC a mandate to appoint the head of a provincial secretariat in the province. The motivation was that the provincial secretary must report to the MEC, as reflected in Clause 22(1).

It was further recommended that the provincial heads should report annually to the Legislature.

The public also submitted that, in regard to Clause 21(2), three months would be a reasonable period for the MECs to fill vacancies of provincial secretariats.

Western Cape
Mr Bekker reported that the Western Cape did not support the CSP Bill, because it had serious concerns.

Firstly, there were concerns about Clause 26 of the Bill, which regulated intervention by the Civilian Secretariat in the affairs of a provincial secretariat, if the provincial secretariat assumed the identity of a provincial organ of state. The province commented that in this event the intervention by the Secretariat would not comply with the intervention requirements set out in Section 100 of the Constitution. Clause 26 indicated that both the national Secretariat and provincial Secretariats formed part of the same sphere of government, which meant that it was not necessary to comply with Section 100 of the Constitution. However, this led to further uncertainty regarding the status of a provincial Secretariat. If it was the intention of the Bill to provide for provincial Secretariats within the provincial sphere of government, this was not made clear by the wording. If that was the case, then the intervention by the National Minister in the provincial sphere of government, as proposed by Clause 26, was inconsistent with Section 100 of the Constitution.

North West      
The North West provincial representation indicated that this province supported the Bill, after considering the inputs from public hearings. However, the public had requested more clarity on the difference between IPID and the Secretariat. Comments had also been made that the core functions of the Secretariat and CPFs were similar, although the Secretariat was given more power. However, the public appreciated government’s efforts to have a civilian body rendering advice.

The Chairperson noted that another meeting would be arranged shortly to allow the State Law Advisors and drafters to respond to the mandates and recommendations.

The meeting was adjourned.