Independent Police Directorate Bill & Civilian Secretariat for Police Service Bill: response to negotiating mandates

NCOP Security and Justice

28 October 2010
Chairperson: Mr T Mofokeng (ANC, Free State)
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Meeting Summary

The Independent Complaints Directorate responded to the negotiating mandates on the Independent Police Investigative Directorate Bill. There was a long discussion as provinces were insistent that the provincial MEC should be consulted in the appointment of the Provincial Head of the Independent Police Investigative Directorate. The Independent Complaints Directorate did not agree, stating that the Provincial Head was appointed in terms of the Public Service Act because as a national department it would be accountable to the Minister of Police who was the executive authority. It was also a concern that the provincial head only reported to the MEC on those matters referred by the MEC, whereas in terms of s206(3) of the Constitution the provincial executive had a role to monitor all police conduct matters dealt with by the directorate.  The Secretariat of Police provided its response to the negotiating mandates on the Civilian Secretariat for Police Service Bill. The Committee was assured that it was not the intention of the Bill to erode the power of the provinces. The intention was to strengthen the civilian oversight of the Police. There were no cases in the Bill where the Secretariat of Police had made an attempt to take power away from the provinces. The fact that the Secretariat for Police agreed with most of the concerns of the provinces was an example of the fact.

Meeting report

Independent Police Investigative Directorate Bill: ICD response to negotiating mandates
Mr Thabo Leholo, ICD's Western Cape head, referred the Committee to the document titled ICD Response To Provincial Inputs and proceeded to take them through the document:

Clause 6(2) and (3): Eastern Cape and Mpumalanga raised a point here. The ICD agreed that the relevant Committee should be the Portfolio Committee on Police of the National Assembly.

The Chairperson interrupted so that the Mr Theo Hercules, State Law Adviser, might speak on the issue. He also requested that Committee members be allowed to interrupt where the Committee made certain submissions on the proposed comments made by the ICD.

Mr Theo Hercules said that the way Clause 6(2) was drafted: “to the Portfolio Committee” would be more suitable. It was drafting practice to refer to “the relevant Portfolio Committee” since the matters concerned not only the national but also provincial legislatures. It would be better to refer to “the relevant Portfolio Committee” in the event that there were changes to the Committee name then there would be no need for an amendment to the legislation. Thus it would be preferable to retain the wording of Clause 6(2) and (3) as is.

The Chairperson stated that the Mr Hercules must indicate where he wanted to make recommendations.

Mr Leholo continued to the second issue raised in Clause 6(2) and (3): What would happen when a nomination was rejected? This might create an oversight problem as Parliament would be reviewing its decision. The Free State was the only province to raise an issue with Clause 6(2) and (3). The ICD’s view was that Clause 6(1) provides that the Minister would determine the procedure for the appointment. The ICD was of the opinion that this procedure would include instances where there was a rejection of a nominee and if there was such a nomination, it would have to be referred back.

Clause 7(1)(b): Eastern Cape and the Mpumalanga said this was inconsistent with section 40(1)(c) of the Public Finance Management Act (PFMA) on the submission of annual financial statements. Mr Leholo said the ICD agreed with the proposal that the time period for submission to the Minister of Finance should be two instead of four months.

Mr Theo Hercules said that the Committee would rather propose that the financial statements should be submitted to the Minister of Finance “one month after the end of the financial year” and then one would comply with the PFMA on that matter. Further on in section 7, it said that the financial affairs of the director must comply with the Public Finance Management Act. Thus the procedure would be aligned with policy. Then after another month, totalling to two months, after the close of the financial year, the financial statements should be submitted to the Auditor General.

Clause 20(1): Eastern Cape, Kwazulu-Natal, Mpumalanga and the Western Cape said the MEC should be consulted in the appointment of the Provincial Head. The ICD did not agree and stated that the Provincial Head was appointed in terms of the Public Service Act (PSA). The Department would be accountable to the Minister of Police who was the Executive Authority.

Mr A Matila (ANC, Gauteng) asked if the Committee was going to go through the entire ICD presentation and finally go through the Bill again clause by clause. He believed it would be easier to discuss each clause as the presentation progressed so as to save on time; however that would depend on the decision of the Chairperson.

The Chairperson indicated that Mr Leholo should continue.

Clause 20(4): Mpumalanga suggested that the MEC should be consulted when the Executive Director appointed a person to act in the position of a Provincial Head. The ICD did not agree and stated that the Provincial Head was appointed in terms of the PSA. The Department was accountable to the Minister of Police who was the Executive Authority.

Clause 28: Eastern Cape, Gauteng, Kwazulu-Natal and Mpumalanga said that the IPID would not be able to investigate as it did not have the capacity and funding. The ICD stated that the financial implications, in particular staff requirements, of the Bill would be determined in consultation with the DPSA and National Treasury. This would include a reorganisation plan of the structure, job evaluation of new positions by the DPSA and approval of the new structure by the Minister of Police and the Minster of Public Service and Administration. There were ongoing meetings taking place between the ICD and the DPSA. In terms of the Departmental Implementation Plan there were proposals for the establishment of satellite offices in certain districts within provinces. This was an ongoing process between the ICD, the Department of Public Service and Administration as well as the National Treasury.

Definitions of ‘MEC’, ‘systemic corruption’ and ‘Constitution’: Free State raised this concern. The ICD agreed with the proposed amendment that the definition of ‘MEC’ should state “responsible for policing” instead of “safety and security”. Also the Constitution must be cited in full in the preamble and be defined in the Bill. The State Law Advisors should advise on the definition of “systemic corruption”.

Mr Hercules said that with reference to “Constitution”, the Committee would prefer in this instance that the Constitution be defined than to use the full citation in the preamble because it was used in the main provisions of the bill. Thus the Committee would prefer that there be a definition of Constitution in the definition clause, clause 1. Regarding the definition “systemic corruption”, Mr Hercules referred to clause 28, and said that to have the definition of “systemic corruption” would limit the types of corruption matters to be investigated and the intention was to ensure the definition was as broad as possible. In clause 28(1)(g) the Directorate must investigate corruption matters within the Police initiated by the Executive Director or after receiving a complaint by a member of the public or referred to the Director by the Minister or MEC or Secretary. It would be restrictive to have a definition and it would be preferable to have the definition as broad as possible so as to include all types of corruption.

Clauses 16(1), 16(2), 17(a) and 17(b): Free State, Kwazulu-Natal and Mpumalanga proposed that the consultative forum should be replicated in the Provinces and should include the Community Policing Forum board chairpersons. The ICD did not agree. The ICD stated that the objective of the consultative forum as stated in clauses 17(a) and (b) was clear. The aim was to facilitate co-operation between the National Secretary and the IPID Executive Director. Other stakeholders could be invited to the forum provided that the stakeholders had specific issues that must be raised.

Clause 21: Free State proposed it should include a sub-clause on referrals of disciplinary matters by the Provincial Head to the Provincial Commissioner. The ICD agreed

Clause 29(1): Free State proposed replacing ‘Station Commissioner’ with ‘Station Commander’ which might have something to do with the new realignment within the police. The ICD agreed.

Clause 29(a): Free State proposed it should refer to clause 28(1)(a) to (f) only. The ICD agreed. Mr Leholo added the current bill referred to clause 28(a) to (h. However, the ICD could not have a situation where the ICD compels the SAPS to report on (g) and (h) and thus the ICD would amend the clause.

Clause 33(3): Free State proposed this clause should apply to clause 30 regarding non compliance by the National Commissioner and Provincial Commissioner with IPID recommendations. The ICD did not agree that clause 30 should be included in the penalty provision of clause 33(3), as clause 30(a)-(c) covered the compliance issues sufficiently. These matters fell within the jurisdiction of the Executive Authority. Clause 30 covered the issue sufficiently and if not, the matters of non compliance would fall within the ambit of the Minister.

Clause 23: Gauteng proposed IPID investigators should be paid more than SAPS detectives due to the nature of their work. The ICD agreed that the salaries of IPID investigators should not be less favourable than those of the SAPS.

Clause 33(1): Gauteng raised the issue of what informed the specific penalty of a fine or two years imprisonment? The ICD stated that the penalty was based on similar legislation, that is, all legislation that had a similar provision also had similar penalties.

Eastern Cape, Free State, Gauteng, Kwazulu-Natal and Limpopo said that the Provincial Legislature should have oversight over IPID work. The ICD stated that reporting to the Provincial Legislature was not provided for in the Constitution. The IPID was established in terms of national legislation and therefore accountable to the Minister of Police as the Executive Authority. As a national department, accountability was to Parliament.

Gauteng and the North West proposed that the bill should include oversight over traffic officials, correctional services and other law enforcement agencies. The ICD stated that Section 206(6) of the Constitution only referred to investigation of offences or misconduct committed by SAPS. Mr Leholo said that the ICD could not go beyond what the Constitution stated.

Clause 7(3)(a): Appointment of staff by the Executive Director subject to section 21. This issue was raised by Kwazulu-Natal. The ICD agreed that there would be consultation between the Executive Director and the Provincial Heads with respect to the appointment of staff at the Provincial offices, and this would be done in terms of the PSA as all the staff IPID would be appointed in terms of the PSA.

Clause 22(2): This section should be deleted as it was provided for in the SAPS Act. The issue was raised by the province of KwaZulu-Natal. The ICD did not agree. The SAPS Act was not relevant for the purposes of this Bill.

Clause 3(1): Mpumalanga proposed the name be changed to include “Complaints” to IPID. The ICD did not agree. The IPID would be investigation driven, rather than complaints orientated.

Northern Cape proposed the Bill must stipulate time frames for investigations and report back on complaints. The ICD did not agree as this was an operational issue that would be dealt with in the regulations and IPID Standard Operating Procedures.

All the provinces except for the Western Cape suggested the establishment of district offices for accessibility. The ICD remarked that satellite offices were provided for in the IPID implementation plan. This would also be dependent on the MTEF allocation. The ICD welcomed the fact that the provinces want the IPID to be accessible to the majority of the citizens in the provinces.

Clause 4(1) and (2): Western Cape said that the Bill did not give sufficient independence to IPID. The ICD did not agree. The ICD was of the view that clause 4 sufficiently provided for the independence of the IPID. If it was the intention of the drafters of the Constitution that the IPID should be a Chapter 9 institution, it would have been created in terms of that Chapter.

Clauses 6(5) and 20(5): Limpopo suggested the time frame for filling of the vacancy of the Executive Director should be six months and that of Provincial Heads should be three months. The ICD did not agree. The ICD stated that sufficient time should be provided for the advertising of the vacant posts, the short-listing and interviewing processes as well as the notice period of the selected candidate.

Clauses 8(8): Mpumalanga suggested adding to the clause that labour law procedures should be followed. ICD did not agree. This issue was covered in the PSA.

Mr D Bloem (Cope, Free State) referred to clause 6(2), saying that the ICD merely stating “Portfolio Committee” meant the ICD was excluding the Select Committee on Security and Constitutional Development from the document.

Mr A Matila (ANC, Gauteng), speaking on behalf of the ANC agreed with Mr Bloem’s argument, adding that the Committee thought that the ICD remark would mention that the clause should state “Parliamentary Committee” which would constitute both Committees.

Mr Hercules stated that where the ICD stated the relevant Portfolio Committee it in fact meant Parliament and thus included both Committees. Therefore it would be preferable for the status quo to be retained. The original draft mentioned Parliamentary Committee and thus by retaining that, both concerns were dealt with.

Mr L Nzimande (ANC, KZN) requested an explanation on the ICD’s reasoning for their disagreement with regard to the consultation with the MEC in clause 20(1).

The ICD Executive Director, Mr Francious Beukman, explained that the ICD was accountable to the National Assembly and with respect to the Executive Authority the ICD accounted to the specific Minister. The ICD being a National Department, this was in line with the Constitution and public administration legislation.

Mr Nzimande argued that the ICD’s response was not strong. The ICD had to provide a more convincing argument as there were inefficiencies at the national level that took too long to be resolved and affected the provinces. The ICD had to provide a stronger argument ensuring processes were being implemented effectively.

Mr Beukman responded by referring to section 206 of the Constitution dealing with political responsibility for police services. He quoted the role of the provinces regarding police in 206(3):
(3) Each province is entitled-
(a)        to monitor police conduct;
(b)        to oversee the effectiveness and efficiency of the police service, including receiving reports on the police service;
(c)        to promote good relations between the police and the community;
(d)        to assess the effectiveness of visible policing; and
(e)        to liaise with the Cabinet member responsible for policing with respect to crime and policing in the province”.
He also read out
section 206(6): ”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”.

It was clear that section 206(3), the specific roles of the provinces had been defined and, in terms of the oversight role, the ICD would argue that this was within the national domain and that was where it should be.

Mr Nzimande responded to Mr Beukman by stating that if one argued on the basis of separating the functions and prescribing them separately, then inconsistencies would be caused. Since when putting the functions into practice, one would be limited by the fact that the functions were separate. It would be advisable to tie the two together. The ICD was limiting the significance of the role of the functions in that the provinces could have a cooperative relationship.

Several members, including Mr Matila, agreed with Mr Nzimande. Mr Mokgobi refered to section 206(8) where there was mention of “cooperation” which permitted him to agree with the argument.

Mr Bloem stated that the Committee did not dispute the ICD’s remark but wanted to meet them half way in that the provinces must meet in consultation with the MEC with regrd to the decision on the appointment of the Provincial Head.

Mr P Zulu (ANC, KZN) agreed and stated that in this case an amendment must be made to the Constitution so that the provinces had more governance over matters in their respective provinces.

A Democratic Alliance member stated that collaboration with the people at a provincial level was important as it built trust with the people - since they were living within the provinces and not on a national level.

Mr Beukman stated that in terms of the Bill, the role of the MEC and Provincial Heads was to respond to complaints from the provincial bodies and provide feedback. Then in terms of the Executive Authority, that would be the Minister of Police. There could not be ten points of executive authority. This would only lead to divided arguments. In terms of consultation, the ICD was like any other department and the appointment of a Chief Director in this case would be done in accordance with the terms stipulated in the PSA.

The DA member said that the point the Committee was trying to make was that of transparency whereby the MEC would be consulted to approve the prospective Provincial Head prior to the decision being finalised. This did not mean that the MEC would have direct involvement in the actual decision process but it allowed for cooperation in the appointment of the appropriate candidate. Ultimately the final decision would always rest with the Minister.

Mr Bloem seconded the comment by the DA member and added that the aim of the Committee was not to challenge or go against the Constitution.

Mr Beukman replied that such an arrangement would impede on the Constitution.

The Chairperson asked Mr Beukman to explain how the arrangement would impede the Constitution.

Mr Beukman stated that by dividing the decision making process into ten points of authority, the Constitution would be impeded.

Mr Mokgodi said that the ICD should consider the view of the provinces. The Committee was not making a final mandate rather it was negotiating on behalf of the interests of the provinces.

Another member added that the point the Committee was presenting had been raised by the people in the provinces who were seeking greater transparency. He pointed out that if things went wrong regarding the appointment of a particular Provincial Head in a province, it would be up to the respective province to manage the problems that would arise within the communities. 

Mr Hercules stated that it was important that the Committee recognize the level of autonomy provided to the ICD in the Constitution. The ICD was an independent institution mandated in terms of the Constitution. In addition the ICD was funded by money appropriated by Parliament. With regard to consultation, there were structures created in the Bill for reporting and referrals where the MEC was involved. There was the establishment of a management committee with a Provincial Head who reported to the MEC. If an amendment was to be made for consultation with the MEC, there must be an agreement between the two and this would detract from the independence of the ICD.

The DA member stated that the law was prescriptive and great importance must be taken in the selection process for a Provincial Head with respect to responsibility and independence.

Mr Nzimande stated that he would like to put it on record that with regard to clause 28, the Committee opposed the ICD standpoint. He said that he would like to push for accessibility on behalf of the provinces through the use of claims courts.

Mr Matila and Mr Mokgobi and another seconded Mr Nzimande’s views on the necessity for claims courts on the ground level through public hearings where valid issues were raised and through the involvement by members of the public.

Mr Beukman stated that the ICD was in agreement with the Committee on this.

The Chairperson requested a response to Mr Matila’s query about the reasons for the definition for “systemic corruption”.

Mr Hercules said that the intention of the Bill was to refrain from the use of “systemic corruption” as its definition restricted it to only certain matters of corruption. By having the term defined as broadly as possible, one avoided any margin for error due to an incomplete definition. With regard to the definition of Constitution, it was necessary to have it defined in clause 1 of the Bill because it was referred to in the main part of the Bill as well as the preamble.

Mr Nzimande asked for clarity on the point made about clause 16(1), 16(2), 17(a) and 17(b) and the remark by the ICD that the MEC might be invited to the consultative forum.

Mr Beukman replied that the reasons for the forum was due to the reasoning that ever since the inception of the ICD, some of the ICD recommendations were not implemented by the police in some provinces and that there were no mechanisms in place to cater for such a development. The forum would allow for an arena across all level of structures and between relevant institutions to ensure matters were dealt with, especially in the context of problems that require investigation at an executive level.

Mr Matila raised the concern that more transparency be ensured by allowing the forum to be open to all stakeholders such as the community policing forums. This would ensure that the matters raised at the forums impacted holistically. It would relay the views of all stakeholders.

Mr Bloem seconded Mr Matila’s argument.

Mr Beukman replied that the intention of the forum was not to be exclusive but where the case did arise certain meetings would be closed due to the nature of the meeting - based on levels of authority and relevance to those concerned in a particular discussion.

Mr Matila raised the concern about there not being another opportunity. There were situations such as in the Western Cape where communities had been closed out of the governance of the particular province.

Mr Nzimande raised an query about the ICD’s remark on clause 33(1).

Mr Beukman stated that in that instance referral was being made to the National and Provincial Commissioner in that they had to submit reports to the Minister. The ICD viewed the Minister as the supervisor of the national commission. If there was a case where there was no compliance in submitting the reports, then it would be a case where discipline would be put into action.

Mr Hercules responded by clarifying that the adequate response by the ICD would have been the remark on clause 33(1) that the penalty was based on similar legislation and not the remark from clause 33(3) provided by the Executive Director. He went on to add that there was the Adjustment of Fines Act that would speak to the issue raised in this regard.

Mr Matila stated that Gauteng province felt that the penalty was too lenient. The penalty must be made heavier so as to ward off any further cases of non compliance, considering the occurrences in the SAPS.

The Chairperson asked the Committee if there was an agreement regarding Mr Matila’s comments.

Mr Bloem reiterated that the Committee wanted to understand why the ICD stated two years as part of the penalty for non compliance.

Mr Beukman replied that this would be dependent on the reasons for issuing a penalty because matters of proportionality must be considered. The penalty would usually depend on when SAPS members do not notify the ICD or provide the necessary report or cooperate with regard to things such as ID parades.

Mr Leholo pointed out that this particular penalty was to do with instances of non compliances, not necessarily criminal acts which already had their own form of legislative penalties.

Mr Nzimande referred to the ICD’s response to clause 22(2). He requested more detail on their reasoning for their remarks. He did not think it was sufficiently substantial.

Mr Leholo replied that the appointment of IPID investigators was governed by the PSA while the appointment of members of the SAPS was governed by the SAPS Act. Labour relations for IPID investigators would also be governed by the PSA while SAPS members would be governed by the SAPS Act. The requirements in clause 22(2) would be applicable to members of the ICD and not the SAPS.

The Committee agreed that time frames for investigations report-back to complainants must be included in the Bill.

Mr Beukman replied that such a practice was necessary to ICD operations but these must be included in the regulations.

After the Chairperson thanked the ICD for their input and Mr Beukman in turn thanked the Committee for the opportunity for engagement, the ICD members left.

The Committee referred to the Civilian Secretariat for Police Service Bill and said that there was a common agreement, but he requested the legal team to be sure to clarify any issues that required attention.

Civilian Secretariat for Police Service Bill: response to negotiating mandates
Mr Irvin Kinnes,
Chief Director: Policy and Research, Secretariat for Police, discussed the issues and concerns raised by the provinces during the previous meeting. He identified the issues of the respective provinces and elaborated on why the Secretariat for Police agreed or disagreed to the proposed amendments to the Bill (see document).

The Chairperson suggested that the clauses must be discussed one at a time due to various disagreements by the
Secretariat for Police on the concerns raised by the provinces so as to hear the response the provinces had to this.

Mr Nzimande suggested a further elaboration by the legal body on the discussion of section 206 as the legal representatives from the KZN were in agreement with the concern raised regarding section 206.

Mr Kinnes said that it was never the intention of the Bill to erode the power of the provinces, the intention was to strengthen the civilian oversight of the Police. There was a shift in policing methods and in addition the Minister had announced during his budget speech that he wanted the policing instrument to be strengthened and sharpened. There were no cases within the Bill where the
Secretariat of Police had made an attempt to take power away from the provinces. One of the most important matters was that the MEC’s role had not been sidestepped and consultation was a prerequisite. The fact that the Secretariat for Police had agreed with most of the concerns of the provinces was an example of the fact.

The Chair asked the Committee if there was a common agreement regarding the adoption of the new amendments and after receiving a unanimous response, proceeded to end the meeting.

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