The Portfolio Committee on Police conducted clause-by-clause deliberations on the proposed amendments to the Independent Police Investigative Directorate Bill [B15-10]. The Committee agreed that it would stick to a 48-hour period in Clause 30(2)(a). The Committee raised concerns that Clause 34(3) and (4) implied that a guilty officer could merely pay a fine and continue as if no offence had been committed. The state law advisors confirmed that an imprisoned officer in Clause 34 would face automatic dismissal. The Committee felt that the wording in Clause 7(3)(a) would create an unnecessary administrative burden on the Executive Director, as he/she would appoint every single appointment including investigators. A Committee Member suggested that the following wording should be included to correct the concerns raised in Clause 7(9): “The Executive Director may upon the receipt of a complaint cause any offence allegedly committed by any member of SAPS to be investigated”. It was agreed that ‘on or off duty’ would be removed in Clause 29(1)(c). The Committee also agreed that the current wording of Clause 29(1)(f) was too wide and only assault by a police officer whilst on duty or during the discharge of duties would be included. Clause 9 meant that it was for the Executive Director to make a decision on whether or not to investigate. This was a policy decision and could not be a delegated power. It could be set out that the Executive Director takes policy decisions but in terms of operating procedures for the handling of complaints, that could be included under the Regulations. The Committee was in agreement that the concepts of “independent”, “investigative”, “police” and “directorate” were important for the title and it would remain unchanged.
The Chairperson reminded the Committee that it had agreed to 48 hours in Clause 30(2)(a) as the original 24-hour period was considered to be too little.
Mr M George (COPE) said that the Committee should bear in mind that the Bill was aimed at transforming the South African Police Service (SAPS)
The Chairperson requested input from the Independent Complaints Directorate (ICD).
A Representative of the ICD said that at present the 24-hour period was being used by SAPS members to report back to the ICD. The ICD did not have any qualms about SAPS members reporting in writing, the only problem was where they had not reported at all.
The State Law Advisor said that the only amendment was the insertion of the word ‘detailed’ in Clause 33(2)(c).
The State Law Advisor noted that the amendment in Clause 34(3) made non-disclosure an offence.
Ms D Schaefer (DA) asked why there was an option of a fine in Clause 34(3) and (4). Would the implication not be that a police officer who was guilty of an offence could just pay a fine and carry on as if nothing had happened. If a police officer was guilty of an offence in Clause 34, would they be ejected from SAPS?
Mr George commented that the issue of disclosure applied to all public servants. Were the penalties in Clause 34(3) for failure to disclose in line with other government departments and organisations?
Ms A Van Wyk (ANC) said that the Committee had already discussed this matter at length; the non-compliance referred to in Clause 34(3) was specific. The Committee could not legislate for the removal of a police officer under the whole of Clause 34 because circumstances may differ from time to time. The current wording was as far as the Committee could go on this matter. The question from Mr George was valid, the Committee had to make sure that this clause was in line with other legislation governing similar institutions.
Ms Schaefer asked if an officer was imprisoned in Clause 34, would that mean automatic dismissal?
The State Law Advisor replied in the affirmative.
The Chairperson reminded the Committee that there were two processes in such an instance, the one would be an internal disciplinary hearing and the other would be court proceedings. The outcome of both processes might differ.
The State Law Advisor pointed out that in Clause 35(1)(j), reference should be made to section 29 and not section 28. The proposed amendments that had been identified in Clause 35(1) were properly aligned as requested by the Committee during the previous meeting.
The Chairperson asked if there were any questions and there was none.
Ms Schaefer said that the one issue that was flagged for later discussion was the name of the investigative body; a suitable name could be the Directorate of Police Investigations.
The Chairperson said that the Committee was not there yet.
The State Law Advisor moved on the say that the next amendment was in Clause 37 which would be dealt with in the Schedules. Schedule 1 dealt with the amendments to the Domestic Violence Act. With regards to Section 18 of the Domestic Violence Act, the responsibility would no longer be with the ICD but would now reside with the Secretariat.
Ms Schaefer asked if the Committee should not discuss under what circumstances SAPS should be allowed not to comply with the Domestic Violence Act.
Ms D Kohler-Barnard (DA) agreed but added that it should be discussed under the Secretariat Bill.
The rest of the Members agreed and there were no further discussions.
The Chairperson referred back to Clause 7(3)(a) and asked for more clarity from the State Law Advisor. Did the clause mean to say that only the Executive Director could appoint investigators?
A Member agreed with the Chairperson and said that Clause 7(3)(a) should be deleted as it would create an unnecessary administrative burden.
Mr George agreed.
Ms Van Wyk said that she understood this clause as meaning that the Executive Director signs off on any appointments as opposed to conducting interviews of all staff including cleaners. The clause meant that one could not delegate the signing of employment contracts.
A Member said that his understanding of the clause was that the buck stopped with the Executive Director who was the accounting officer.
The Chairperson said that the point raised was on accountability and it should be remembered that one could not delegate accountability. The clause did not incorporate delegation. Moving on to sub-clause 6, did this clause mean to say that all complaints would go to the Executive Director, even those from the provinces?
The State Law Advisor replied that the Executive Director had to make sure that the complaints were referred to the appropriate bodies, not that he had to handle them himself.
The Chairperson moved on to Clause 9 and said that it contained a non-delegated function. Could there be more clarity on this clause.
The State Law Advisor replied that the Secretariat would be in a better position to explain.
A representative from the Secretariat said that from a practical point of view there could be delegation.
The Chairperson said that she was still not clear on this clause.
Ms Schaefer suggested that the following wording could be used: “The Executive Director may, upon the receipt of a complaint, cause any offence allegedly committed by any member of SAPS to be investigated”.
Ms Van Wyk said that Clause 9 was over and above the ‘must’ and the ‘may’; it was outside of the designated mandate of the Executive Director. It was meant for the Executive Director to make a decision on whether or not to investigate otherwise the provincial commissioners would investigate cases that they were not meant to. This was a policy decision that had to be made and this was why it was not a delegated power. The delegation came to effect once the Executive Director referred a particular case to the provincial office or provincial commissioner to investigate. The suggestion by Ms Schaefer was agreeable.
The Chairperson said that the implication was that all complaints would go to the Executive Director and it was the practicability of this that was a concern.
The representative from the ICD partly agreed with Ms Van Wyk on the policy decision aspect but added that this could fall under the Regulations. It could be set out that the Executive Director takes policy decisions but in terms of operating procedures for the handling of complaints, that should be included under the Regulations.
The Chairperson moved on to Clause 23(7) and asked if this clause was in line with the Public Service Act.
The State Law Advisor replied that within any government structure if someone failed a security clearance, the person would not hired or would be removed from office, this was a condition of employment.
The Chairperson asked if there were any prescribed procedures.
The State Law Advisor replied that there were none.
Ms Van Wyk agreed with the State Law Advisor.
A Member of the Committee commented that he was trying to determine how practical the Bill was on the matter of security clearance. The time frames within which a security clearance could be issued would have an effect on the appointment of a particular applicant.
A Representative of the ICD said that if documentation were sent in advance then the time frames would not be a factor. The new process envisaged in the Bill allowed for faster time frames and there would be a close working relationship with the National Intelligence Agency (NIA).
The Chairperson referred to Clause 29(1)(f) and asked if it meant that any type of assault would be investigated. If there was no injury from the resulting discharge of a firearm in Clause 29(1)(c), should the matter be investigated by the ICD, was this not too broad?
Ms Van Wyk said that in Clause 29(1)(c) there should be no differentiation between when an officer was on or off duty as long as an official service firearm was fired. As long as there was a complainant, then the matter should be investigated. A complainant need not be wounded before they could be allowed to lay a complaint.
Ms Schaefer agreed with Ms Van Wyk.
Mr George said that torture was linked to assault in Clause 29(1)(f) and should not be separated.
Ms Schaefer asked why sexual assault was not included.
A Member agreed with the Chairperson that there were too many avenues for complaints.
A Representative of the ICD said that currently the ICD was investigating 1400 cases of assault. The current wording of Clause 29(1)(f) could lead to the increase of this figure.
Ms Van Wyk said that the clause was too wide and it should be restricted only to assault whilst a police officer was on duty or during the discharge of duties.
The Chairperson moved on to the title of the Bill and mentioned that the ICD would now be the Independent Police Directorate (IPD). The Chairperson asked what Members thought of the name suggested by Ms Kohler-Barnard.
Ms Van Wyk said that there were three issues that were of importance, this was “independent”, “investigative” and “police”. This was no longer just a complaints organisation.
Mr George said that the suggestion by Ms Kohler-Barnard left out “independent” and agreed with the three aspects laid out by Ms Van Wyk.
A Member agreed with Mr George.
The Chairperson summarised that the Committee was in agreement that the concepts of “independent”, “investigative”, “police” and “directorate” were important for the title.
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